Issue 233 , Friday 29 May 2015

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In this issue

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[1]

Mandate employer PPL top-ups: ACTU

The trade union movement looks set to ramp up its campaign on paid parental leave (PPL), with an Australian Council of Trade Unions (ACTU) draft policy document demanding government-funded PPL be boosted to 26 weeks and employers be required to supplement it with their own schemes.

The May 7 draft policy paper, obtained by Workforce ahead of the ACTU triennial Congress next week, would commit the peak union body to lobby for:

·         a govt-funded PPL scheme of 26 weeks paid "at no less than the national minimum wage plus superannuation"; and

·         a "mandated top-up of the govt scheme to full wage replacement to ensure a co-contribution from employers".

On May 12, Treasurer Joe Hockey announced the govt would prevent parents accessing both the govt and employer PPL schemes, which other senior ministers described as 'double-dipping' (WF 15/05/15).

Unions will also "campaign and bargain for an increase to the 'dad and partner pay scheme' to provide eligible employees with four weeks leave rather than two", the policy document said. They will push for the accrual of entitlements including payment of public holidays and employer super contributions during periods of paid and unpaid parental and carers' leave.

Strengthen bullying and adverse action claims

The ACTU document proposes extending the Fair Work Commission's (FWC) jurisdiction to issue stop-bullying orders to "all workers, not just those employed by constitutional corporations". Unions should be able to apply to stop "systemic bullying rather than the sole focus on individual complaints required to be made public", it said. The ACTU proposed removing the "reasonable management action taken in a reasonable manner" defence to bullying claims. It argued the defence was "a means for employers to cover workplace bullying".

It also wanted to reinstate the "essentially beneficial and protective operation of the general protections provisions of the FW Act" through either:

·         a positive description of the relevant test of characterisation as an objective test; or

·         excluding the "purely subjective approach" to ascertaining the reasons for adverse action.

The proposal responds to union fears courts are in effect allowing decision-makers' evidence they did not take adverse action for a prohibited reason to determine claims, after employer wins in the High Court's BHP Coal (WF 17/10/14) and Barclay v Bendigo TAFE (WF7/09/2012).

Regulate labour hire and supply chains: ACTU

The draft policy document called for FW Act amendments "to facilitate and support parties negotiating arrangements which have industry-wide or supply chain impact".

"In particular, Congress is concerned to ensure collective agreements can cover labour hire workers who are economically dependent servants and agents of an entity with which they have no 'employment relationship'," it said.

The document backed "enterprise bargaining across an industry or supply chain" as "more reflective of the modern organisation of industries operating on the basis of joint production and joint employment".

It proposed "the establishment of a comprehensive national scheme for the registration, licensing and regulation of labour hire agencies". In addition, unions should have "unrestricted" rights to represent independent contractors. The current system requires Australian Competition and Consumer Commission approval for independent contractors to collectively bargain. The ACTU proposed banning enterprise agreements (EAs) which "cover only one employee" and EAs "made with a small number of employees prior to the engagement of the rest of the workforce".

More worker protections needed for strikes

The ACTU paper (above) called for more protections for workers involved in strikes, ie:

·         removing the secondary boycott provisions of the Competition and Consumer Act 2010;

·         requiring employers to give "three clear working days' written notice" of a lockout; and

·         ensuring employer response action "must be a "proportional response" to employees' protected action.

Lift good faith bargaining requirements

The ACTU document proposed higher standards for good faith bargaining including:

·         requiring employers to disclose relevant and material information to bargaining parties in a timely manner, while ensuring genuinely confidential information is "treated appropriately";

·         requiring the employer's "principal decision-maker" to participate in bargaining;

·         prohibiting employers from submitting an agreement to a vote until the bargaining representatives are agreed a course or bargaining is at an impasse; and

·         promoting a "normal expectation" that bargaining parties should reach an agreement unless there are genuine reasons based on reasonable grounds not to do so.

'Last resort' arbitration for FWC

·         FW Act amendments to empower FWC "to arbitrate disputes about any matters arising under awards, agreements or the NES, as a last resort"; and

·         FW Act and state referral legislation amendments to expressly permit the federal system, including the FWC, "to deal with all public sector employment matters that state govts have argued are subject to constitutional limitations, such as job security and staffing levels".

Unions to campaign on youth super

The draft document proposes an ACTU campaign to "expand the superannuation guarantee to workers under the age of 18, and remove the discriminatory requirement that workers under 18 must work at least 30 hours per week to receive employer super contributions".

Other youth-oriented policies included:

·         opposition to unpaid internships that are not part of an accredited course; and

·         a resolution "to explore and support new organising strategies, particularly those that integrate technology with campaigning".

FEG, modern award review and IFA changes

The ACTU also proposed campaigning to ensure:

·         all employee entitlements, including deductions, are fully recoverable from the Fair Entitlements Guarantee (FEG);

·         abolition of compulsory four yearly reviews of modern awards; and

·         abolition of individual flexibility agreements (IFAs).

(Source: Workforce 19625, 22 May, 2015)

[2]

Aurizon terminates EAs before Full Court appeal decision

Aurizon has terminated 12 expired enterprise agreements (EAs) so it can start redundancies and cut allowances before the Full Federal Court issues its decision in a union appeal to prevent the termination.

Yesterday (May 21) Justices Christopher Jessup, Richard Tracey and John Reeves heard the Qld rail unions' appeal (WF 1/05/15) against a Fair Work Commission full bench decision allowing Aurizon to terminate the EAs (WF 24/04/15). The court reserved its decision.

Immediately after the hearing Aurizon terminated the 12 EAs, moving 3,500 employees onto the Rail Industry Award 2010.

Aurizon said in a statement it had undertaken to maintain current base wages, super and leave accruals for six months but "there will be immediate changes for affected employees, including the 'no forced redundancy' clause ceasing to operate and the loss of some allowances".

The company plans to make 160 employees at its Redbank workshop redundant, with further cuts to follow.

Aurizon had said it would delay the redundancies until the unions' appeal was heard to "minimise the disruption to our employees and customers" (WF 8/05/15). But the company has since clarified it meant only to delay until the conclusion of the hearing, not the determination of the appeal.

Rail Tram and Bus Union national secretary Bob Nanva told Workforce the full court "must be wondering what the hell is going on" because Aurizon terminated the EAs on "the very day" of the appeal.

"Aurizon has effectively given the Federal Court a single-fingered salute. It is an act of pure, brazen arrogance by a company that's out of control," Nanva said.

Aurizon chief executive Lance Hockridge said termination of the EAs "means a range of legacy conditions, that are a hangover from government ownership and restrict Aurizon from making changes in a competitive market, will disappear".

(Source: Workforce 19625, 22 May, 2015)

[3]

Govt to pull public/private sector levers to boost Indigenous jobs

The Federal Government will "partner with Australia's largest employers to help increase their average Indigenous employment rate to at least 3% of their workforces by 2020", assistant employment minister Luke Hartsuyker has announced. Its Employment Parity Initiative will target an extra 20,000 Indigenous Australians in jobs within five years by supporting private sector employers such as Accor Hotel Group and Compass Group Aust. Talking to the May 20 Indigenous Employment Conference, Hartsuyker said this was on top of the Commonwealth public sector target of "increasing its Indigenous workforce to 3% by 2018, which means an extra 7,500 people". Hartsuyker said the Govt's aim of having 3% of C'wealth procurement contracts with Indigenous suppliers by 2020 would boost its current value of $6.2m to some $135m a year. By supporting Indigenous business that should also boost Indigenous employment, he said.

"As at 31 March 2015, there were around 78,000 Indigenous job seekers on the Job Services Australia caseload, around 9% of the total caseload. Of these, 65% were in the most disadvantaged streams in Job Services Australia (JSA) - compared to 38% of all job seekers," he said. He said JSA fees have been restructured around job retention with "new outcome payments at 4, 12 and 26 weeks". "For the first time, there will be Indigenous Outcome Targets, to ensure jobactive (the employment services model replacing JSA July 1) providers are achieving job outcomes for Indigenous job seekers at the same rate as other job seekers in their region."

(Source: Discrimination Alert 470, 25 May, 2015)

[4]

Disciplinary ambush not reasonable management action: FWC

An employer springing a disciplinary meeting on an employee was a "threatening" rather than a reasonable management action, the Fair Work Commission (FWC) has found.

Despite the ambush, FWC refused a stop-bullying order because the employer dealt with the probationary employee fairly after the incident and in the face of the worker's inflammatory emails calling for the dismissal of his alleged persecutors.

Radiologist James Willis complained that on May 30, 2014 the general manager and human resources manager of his employer Capital Radiology Pty Ltd held a disciplinary interview with him without notice.

He said the GM "unreasonably berated him" while the HR manager "demonstrated amusement at his predicament".

Willis sought stop-bullying orders against his employer and the two managers.

Capital Radiology had lost a bid to have the application dismissed after Commissioner John Lewin rejected its claim the meeting was reasonable management action (WF 20/02/15).

Employer patient in face of worker's inflammatory emails

In the substantive decision, Cmr Lewin said the meeting without warning was "unreasonable action carried out in an unreasonable manner".

Willis was "subject to severe criticism based on complaints by a person employed by a different entity", he said. This would have been "threatening", especially seeing as Willis had only recently started work and was on probation.

The cmr said a reasonable course of action would have been to advise Willis of the meeting and its purpose and then explain expectations about his performance.

Capital Radiology engaged in "repeated unreasonable behaviour" by starting a disciplinary process which "risked injury of Willis' psychological health and wellbeing", he said.

Cmr Lewin noted Willis' relationship with Capital Radiology had become "very strained" and Willis had brought Federal Circuit Court proceedings against it for alleged "breaches of his workplace rights".

But the cmr found that since Capital Radiology withdrew notice of the disciplinary process it had not taken any further unreasonable actions and had kept the two managers away from Willis.

The employer handled the matter with "restraint and patience" and showed "careful attention to procedural fairness" while Willis was now stood down with pay, he said.

Willis, on the other hand, "has not been fully cooperative" and had sent "inflammatory emails" which made "serious allegations" against the two managers, demanding their dismissal and giving "derogatory descriptions" of their character.

Cmr Lewin held in light of Capital Radiology's "fair procedure" he was not satisfied there was any risk of bullying to Willis, and dismissed the application.

(James Willis v Marie Gibson; Capital Radiology; Peita Carroll [2015], FWC 3538, 22/05/2015)

(Source: Workforce Daily 19631, 25 May, 2015)

[5]

Labour law a side show – 'what happens when the music stops'

Globalisation, the fracturing of the employment relationship and the politicisation of industrial relations are rendering labour law increasingly irrelevant, a former union organiser turned management academic has argued.

Delivering a speech at the NSW Industrial Relations Society conference last week, University of Technology assistant professor Sarah Kaine argued Australia needed to look beyond narrow economic questions and reconsider what labour law was relevant to.

"If I wanted to be provocative I'd say that labour law is a side show – and that the real game is political," she said. "But it doesn't have to be that way."

Kaine listed three reasons for the declining relevance of labour law:

Fragmentation of employment relationship

Labour law's "problem number one" was the "porous" boundaries between organisations as well as between nations, Kaine argued.

Companies were moving away from in-house production to the "fragmentation of business functions across intricate networks and supply chains".

That altered the power dynamics between firms and blurred organisation boundaries. It also led to an increase in insecure work, associated with poorer wages and conditions.

"At a legal level, these changes challenge the basis of traditional industrial law focused as it is on the primacy of the direct employment relationship and attempts to regulate it based on organisational and national boundaries."

It meant labour law was covering a shrinking percentage of the workplace, with an estimated 40% of the workforce now falling under the broad definition of "precarity".

Impact of other areas of regulation on IR

While Australia had a long history of linking other policy areas to IR, such as tax and the White Australia policy, Kaine argued the contemporary context was different.

"[W]hat is different now is that along with those other regulatory mechanisms, historically there was a robust arbitration system and we did not have the same type of fragmentation or organisational blurriness that we experience now."

She noted that successive govts had also been "actively looking for ways around the constitutional constraints of the labour power".

Further, globalisation was challenging the very sovereignty of Australia law, Kaine argued, citing free trade agreements such as the Trans-Pacific Partnership (TPP).

In the TPP, domestic laws become subordinate to provisions in the agreement allowing foreign companies to sue countries for non-compliancethrough Investor-State Dispute Settlement procedures.

Kaine said that "raises questions about who is ultimately influencing not only our trade policy put our capacity to set and enforce minimum standards through national labour legislation".

"How relevant is our labour law going to be in that environment?"

Politicisation of labour law

Kaine argued that while IR had always been "hot area" of political contestation, "something has changed over the past 20 to 30 years".

IR was now politicised "to a point in which no sensible or mature public conversation can be had about what constitutes an appropriate legal framework".

"We have become 'discursively disabled' … . We seem to be stuck in party political rut in which thoughtful debate has ceded to tabloid ideology." 

Some had argued this was due to the dominance of neoliberal thought, while others framed it with the "international decline in social democracy or a reconfiguration of the social contract".

Whatever the cause, Kaine argued the main idea of labour law had shifted from a "countervailing force to counteract inequality of power" to a "tool of economic policy".

That meant the debate about labour law was "often limited to the benefits for business".

Labour law failure sparks quest for alternative

Kaine argued all three factors meant civil society and even regulators like the Fair Work Ombudsman with its "proactive compliance deeds" were looking to other regulatory solutions – "with mixed success".

This area of "co-regulation", in which non-state actors become increasingly involved in developing and enforcing labour regulation outside the strict bounds of labour law, could be seen in codes of conduct in contract cleaning and the campaign to regulate pay rates for truck owner-drivers.

However, Kaine said it would be "disingenuous" to argue these innovations "somehow escape that key weakness of labour law".

"[T]hat is, these innovations in labour regulation are themselves subject to the political breeze of the day," she said.

She noted the Road and Safety Remuneration Tribunal was under review, cleaner contractor guidelines were scrapped as part of a red tape repeal day and proactive compliance deeds had yet to be applied on a large scale.

But Kaine argued labour laws should not just party politics. She called for a mature debate among the public and IR practitioners about what constitutes a "truly fair" IR system and what can be done to protect "whatever version of Australian equity and fairness it is that we still hold dear".

"Perhaps we need to once again expand our palate and ask ourselves some serious questions - not about the relevance of labour law but a bigger question – what do we need it to be relevant to?"

Kaine is a former organiser with the ACTU and former junior vice president of the ALP. She is the wife of Transport Workers Union national secretary Tony Sheldon.

An edited version speech is available here.

(Source: Workforce Daily 19631, 25 May, 2015)

[6]

Federal parliamentarians to get bespoke compensation scheme

The Federal Government will provide $1.4m over four years to implement a parliamentarians' injury compensation scheme beginning January 1, 2016. The federal budget papers said the scheme would "provide a senator or member with an entitlement to compensation in respect of an injury that arises out of, or in the course of the performance of, his or her duties as a parliamentarian". A spokesperson for Special Minister of State Michael Ronaldson told WCR Comcare would administer a scheme modelled on, "but not a carbon copy of", the Safety, Rehabilitation and Compensation Act 1988. He acknowledged parliamentarians aggrieved by the outcome of personal injury claims could apply to the Administrative Appeals Tribunal for relief.

(Source: Workers Compensation Report 1018, 26 May 2015)

[7]

SA conciliation panel shaping up

The SA Government is close to finalising its panel of conciliation officers for the SA Employment Tribunal (SAET) ahead of July 1, when the Return to Work Act takes effect (WCR 16/12/14). Full-time, part-time and sessional conciliation officers are to be appointed, with the manager of conciliation services set to earn up to $122,879. Meanwhile, Monday June 1 is the earliest state Cabinet can consider the appointment of a new principal registrar for SAET, WCR has been told.

(Source: Workers Compensation Report 1018, 26 May 2015)

[8]

SA case law on review determinations clarified

The SA Workers Compensation Tribunal (WCT) has found case law that was sought to bind a worker's injury to that strictly considered by a review officer in the early stages of her claim was distinguishable. In so doing, Auxiliary Justice (AJ) Malcolm Gray found Southern Cross Care (SCC) (SA & NT) Inc worker Allison Reade did not have a capacity to work because of a psychiatric injury stemming from a 2008 back injury. On March 14, 2008, SCC accepted Reade's claim for what was described as "lower back sprain" and determined she was totally incapacitated for work.

On September 16, 2009, SCC determined, on the basis of a report from orthopaedic surgeon Dr George Potter, that Reade had no entitlement to compensation for non-economic loss by way of a lump sum under s43 of the Workers Rehabilitation and Compensation Act 1986.

On December 28, 2011, SCC, relying on s35B of the Act, determined Reade's entitlement to weekly payments were to be discontinued. SCC was satisfied on the basis of its medical evidence Reade had a capacity to work. Then on August 9, 2012, SCC determined it was not required to establish a rehabilitation program that provided for a "home assistance regime". On May 13, 2013, SCC also determined to reject Reade's claims for certain medical expenses, cost of physiotherapy, gym membership, chemist expenses and travel expenses incurred mostly from April to Dec 2012 and claimed under s32 of the Act. It argued those expenses had not been reasonably incurred. SCC found Reade had not sustained a compensable thoracic spine injury and she was not entitled to an assessment under s43.

In his reasons on May 5, AJ Gray said GM Holden Automotive Ltd v Wey Ping Lu (1996) case law was distinguishable. In his view, the determination SCC made, "unlike the position appertaining to the employer in Lu's case, squarely puts in issue the question of a disabling diagnosable psychiatric illness and, in so far as it may be a broader question, a chronic pain syndrome or condition".

AJ Gray said it was of course still necessary for the evidence relied on by Reade to establish there was a psychiatric or psychological condition and "its consequence was a sequelae of the injury arising out of or in the course of the worker's employment".

SCC argued Reade created "a false impression" about the injuries she claimed to have sustained as to their extent and effect on her. Particular reference was made to her presentation to medical practitioners of minimal ability to move her head left or right, lack of substantial movement in her back or legs and her reliance on a walking stick, and walking in a hobbled over fashion with unusual gait.

AJ Gray said it was "one thing to suggest [Reade's] presentation to medical practitioners for examination is guarded and restrained in demonstrating movement without pain". It was another to say such a presentation was a "deliberate and conscious construct" rather than the effect of her wish to present her best case and to genuinely believe that it was the best she could do.

A "factor" AJ Gray regarded as more persuasive was the extent Reade claimed to be able to accomplish the ordinary tasks of living. "In that regard she has consistently presented as doing as much as she can and demonstrated a significant disconnect between her physical presentation to those examining her and what she has described as being able to do," AJ Gray said.

Ultimately, he accepted evidence Reade was suffering from a "psychiatric condition as a pain disorder in the area of a somatoform disorder caused by unconscious conflicts where the emotions are playing a significant part in the production of pain".

Reade 'did not fall into category' for work capacity

AJ Gray (above) accepted that assessment of Reade's presentation "as one of an actual pain experience unconsciously generated". He set aside SCC's assessment that Reade "did not fall within the category of having no current work capacity". AJ Gray ordered parties to convene to assess medical expenses. (Reade v Southern Cross Care (SA & NT) Inc [2015], SAWCT 15, 05/05/2015)

(Source: Workers Compensation Report 1018, 26 May 2015)

[9]

Union plan to recruit school children

Victoria Trades Hall Council (VTHC) secretary Luke Hilakari has revealed a plan to target school children for union membership and organise young workers in hospitality and retail industries.

Hilakari made the comments at a 'fringe' session on organising at the Australian Council of Trade Unions Congress today (May 26).

The VTHC planned "to give every kid in high school a union work card", Hilakari said, likening it to Commonwealth Bank of Australia's successful 'Dollarmite' accounts targeting young school children.

He said students could organise campaigns in their schools like getting ethically-sourced chocolate in their canteens or Textile Clothing and Footwear Union-approved school uniforms, which would teach practical campaigning skills.

Hilakari also revealed a plan to target youth-heavy industry sectors for organising and recruitment, such as hospitality and retail sectors.

Workers in these sectors had industrial concerns like being "paid in pizza" or below minimum wage, he said. "That's a prime opportunity for us as organisers."

Hilakari said that VTHC had run sessions with young workers to gauge their concerns and they had raised sexual harassment in the workplace, being paid cash in hand and safety.

Hilakari championed the importance of data and sharing of contact lists and petitions between unions. Having detailed information about members' and workers' concerns allowed campaigners to have an "authentic conversation" with voters about issues that matter to them, he said.

Looking at petitions and sign-in sheets at union events could help identify people who were passionate about union causes, he said.

"If a member has filled in five or six petitions – make them a delegate. If a non-member signs three or four times, ask them to join the union."

Unions need numbers not just strategy: delegate

Professionals' Australia chief executive Chris Walton said the union movement must maintain focus on increasing numbers, because "if you don't have adequate power, adequate numbers of members, you can't win campaigns even if you get [everything else] right".

"Do we just keep defensively running the next state election campaign? Will the door to door [campaigning] model support significant growth? I don't think the debate's been had adequately," Walton said.

He asked why the union movement was campaigning on penalty rates "without [the campaign] being completely connected with workers".

Even if organising and recruiting around this campaign were unsuccessful, the movement would still appear "connected to workers" and the debate would be framed "as a workers' issue, not one about institutions and laws".

Walton said the union movement should focus on workers it currently classes as too hard to organise, such as hospitality workers.

"[Nobody is willing] to do a traditional organising model in hospitality. But look at the overseas model, they've organised workers in Walmart. Let's have a go," he said.

(Source: Workforce Daily 19632, 26 May, 2015)

[10]

Loss of traditional work leading to 'trickle up' wealth: ACTU

The decline of traditional employment relationships due to digital disruption and globalisation has led to a 'trickle up' effect in wealth, according to Australian Council of Trade Unions (ACTU) secretary Dave Oliver.

Oliver made the comments about growing income inequality at the opening of the ACTU's triennial Congress today (May 26).

He reiterated his comments made in an interview to Workforce that the 'liquid workforce' created by digital platforms like Uber and Freelancer was contributing to insecure work (WFD 25/06/15).

Working on these platforms was akin to 'zero hours contracts' because they encouraged "a reverse auction where the lowest bidder wins and the worker loses", he said.

Oliver warned of the emergence of "monolithic empires" such as Google, Microsoft, and Apple which he said "contributed to the rise in inequality".

He compared Sony, the $18bn technology business, with Snapchat, the $19bn app-based photo sharing service. Sony, he said, had "10,000s of employees" compared to Snapchat which could "fit its entire operation under this one roof", of just 1,000 ACTU delegates.

Oliver said digital disruption and globalisation were combining to cause a 'trickle up' effect - "more money at the top, less at the bottom, and income not being distributed fairly".

Australia was now "11th most unequal of 34 OECD members", he said.

ACTU president Ged Kearney opened Congress with a call for "a new social compact that delivers a fair distribution of wealth for all Australians".

Kearney said workers are suffering under the burden of "weak wage growth, longer commuter times, insecure work and unemployment". "Wages' share of national income at close to record lows," she said.

Kearney formally launched the ACTU's six point charter of its 'Build a Better Future' campaign, which is centred around improvements in the social wage including health, education, better public services, secure retirement and a "fair go for all" in tax (WFD 25/06/15).

The charter was adopted unanimously by Congress this morning.

(Source: Workforce Daily 19632, 26 May, 2015)

[11]

Quarry directors 'more culpable'

A NSW north-coast rock quarry company's capacity to pay fines ordered by the Land and Environment Court (LEC) is "questionable" as it has "no assets", has multiple creditors and "is no longer a going concern".

At the Corinda quarry's height of production Wyanga Holdings Pty Ltd extracted 368,363 tonnes of gravel and/or rock from February 1, 2012, to January 31, 2013. However, that was more than seven times its environmental protection licence's (EPL) annual limit of 50,000 tonnes. Wyanga delivered almost all the extracted material to Leighton Contractors Pty Ltd and Fulton Hogan Pty Ltd's Pacific Highway upgrade for the then NSW Roads and Traffic Authority. Some tonnage was supplied to Coffs Harbour City Council. The highway upgrade between Sapphire and Woolgoolga finished in late 2013.

On May 15, NSW LEC Justice Terry Sheahan fined Wyanga and its two directors a total of $106,500. Wyanga and directors Joseph and Louise Cauchi pleaded guilty to nine of 12 charges and agreed to pay $90,000 for the Environment Protection Authority's (EPA) legal costs. Justice Sheahan sentenced Wyanga and the Cauchis on all 12 matters after they exceeded the EPL annual extraction limit over 2.5 successive licence years and gave misleading information to the EPA (EM 17/06/14).

Justice Sheahan held Joseph Cauchi "more culpable" than Louise for the EPL exceedances, fining him a total of $76,000 for four breaches of the Protection of the Environment Operations (PEO) Act 1997. He fined Louise Cauchi a total of $27,000 and found her "primarily culpable" for supplying "false and misleading" information in a 2012 annual return to the EPA. He was satisfied the failure to disclose the exceedance was "at least negligent, and really quite reckless". He noted the prosecutor conceded it couldn't establish the "criminal onus" that Wyanga and its directors "deliberately misled" the EPA and it remained a "rational hypothesis" the breach was "inadvertent". However, the prosecutor submitted there was "no satisfactory explanation" for the omission because the defendants disclosed other breaches in the return. Those were unrelated to the proceedings before Justice Sheahan.

The judge said Joseph and Louise were Wyanga's "directing mind and will". He ordered Wyanga to pay a total $3,500 for its four PEO Act breaches. Justice Sheahan apportioned the fines among the three defendants to avoid "possible triple" punishment.

Outside the court on May 21, EPA north branch director Gary Davey said Wyanga's EPL was revoked after the court case. Earlier, in August 2013, the EPA had suspended the licence after issuing repeated warnings about the exceedances, "which the company continued to ignore", Davey said. (Environment Protection Authority v Wyanga Holdings Pty Ltd; Environment Protection Authority v Cauchi [2015], NSWLEC 78, 15/05/2015)

(Source: Environmental Manager 1002, 26 May 2015)

[12]

Vic EPA review starts June

The Vic Environment Protection Authority's powers to ensure environmental justice principles are adhered to and "the environment is protected for the benefit of the community" will come under scrutiny in a new review.

Vic environment, climate change and water minister Lisa Neville announced the inquiry last week, saying the relevant legislation was almost 46 years old and the regulator needed to "keep up with the times". The review would start in June and report in March 2016, she said.

Former state justice department secretary Penny Armytage will chair the review. Former 2009 Bushfires Royal Commission CEO Jane Brockington and NT EPA non-executive director Janice Van Reyk will join the review committee. Its terms of reference include examining the scope and adequacy of the EPA's statutory powers; the EPA's role in public health issues; community and industry expectations; and its "appropriate" role in protecting the environment. Whether the EPA's governance and funding allow it to "effectively and efficiently" discharge its powers and perform its duties would be studied.

(Source: Environmental Manager 1002, 26 May 2015)

[13]

Tas EPA leadership changes

The Tas Government has appointed a new Environment Protection Authority (EPA) director and three new board members, including a new chair and deputy chair.

Former resources director at the state Department of Primary Industries, Parks, Water and Environment (DPIPWE) Wes Ford has been appointed as EPA director to replace retiring director Alex Schaap. Ford has held several senior govt positions, most recently AgriGrowth acting deputy secretary.

Warren Jones has been elevated to EPA chair after serving as deputy chair since 2012. Jones was DPIPWE's environment/EPA division GM. The new board deputy chair is Anthony Ferrier, Kingborough Council's current deputy GM. Professor Colin Buxton, a former director of the University of Tas's Fisheries, Aquaculture and Coasts Centre was appointed to the EPA board. He joins new member Catherine Murdoch, Tasmanian Irrigation Pty Ltd environment manager.

(Source: Environmental Manager 1002, 26 May 2015)

[14]

Hunt go-ahead for Abbot Point EIS

Federal environment minister Greg Hunt has asked the Qld Government to produce an environmental impact statement (EIS) to support its plan to dump dredge material from its Abbot Point Port's expansion proposal on industrial land next to an existing coal terminal (EM 31/03/15, 29/04/14).

Renamed the "Abbot Point growth gateway project", the new Qld Govt wants to dispose of project dredge material on unused industrial land instead of on nearby protected wetlands or undersea within the Great Barrier Reef (GBR) marine park, as the former state govt had proposed and the Federal Govt had approved.

Hunt on May 14 decided he would assess the proposal by an EIS under the federal Environment Protection and Biodiversity Conservation (EPBC) Act. That was despite a new bilateral agreement with Qld under s45 of the EPBC Act allowing the state govt to assess development projects on the Federal Govt's behalf.

The new Qld Govt's coal terminal expansion project would dredge about 61ha of seabed within the port's limits, outside the GBR park, it said. It would increase the port's capacity to handle coal exports from 50m to 120m tonnes a year to cater for planned Galilee Basin coal exports, including Adani Mining Pty Ltd's proposed $16.5m Carmichael Mine.

"The full cost of the EIS will be paid for by mine proponent, Adani, not taxpayers, under an agreement with the govt," Qld state development minister Dr Anthony Lynham said. Meantime, the legality of Hunt's 2014 approval for the Carmichael mine is being challenged for a third time in the Qld Land Court (EM 20/01/15).

In a statement of reasons, Hunt said he'd reviewed Qld Govt advice and found the project "was not eligible" to be assessed under the bilateral agreement. Given that, plus a lack of detail on the project's final design and mitigation measures, and uncertainty about "the nature and scale" of its impact on matters of national environmental significance (the GBR world heritage protected area) Hunt said he'd accepted advice he assess it with an EIS. He agreed, "in particular" with his "department's view assessment by EIS would provide a robust and thorough assessment … and the opportunity for public engagement" to help him make an informed decision on whether to allow the port's expansion to proceed.

GBR reg change to formalise dredge backflip

Hunt's decision (above) was a backflip on his October 2014 decision to not require an EIS for dredge material to be disposed on Canley Vale wetlands next to the GBR marine park. It triggered a Federal Court challenge during which Hunt promised the court he would provide one days' warning to the Qld Environment Defenders Office of any decision on the former Qld Govt's project application. (EM 20/01/15).

But on May 17, Hunt said he'd "formally approved" an amendment to GBR regulations to prevent any dredge material being disposed "in the entire 344,400km² park". "This covers 100% of the area under Commonwealth legislative control and 99% of the world heritage area." The Qld Govt had committed to a dredge disposal ban in the remaining 3,000km² area under its jurisdiction which included port areas, he said. The regulatory change has yet to be registered.

Hunt's GBR protection decisions precede a UNESCO World Heritage Committee (WHC) decision on whether to list the GBR world heritage area as "in danger" at a meeting in June.

(Source: Environmental Manager 1002, 26 May 2015)

[15]

Safety at risk as Comcare expands

Plans to expand the national workplace safety regulator's role were a "disaster waiting to happen" in light of its "demonstrated inability to regulate safety in the workplaces", a lawyers' association claims. The Australian Lawyers Alliance (ALA) used a recent prosecution against construction giant John Holland (JH), which Comcare oversees, as evidence of the federal safety regulator's "series of failures" (OHN 25/3/15). ALA national president Andrew Stone said JH had breached occupational health and safety (OHS) laws several times before the successful prosecution. He said the company was fined $110,000 after a worker suffered a head laceration when a bridge at the Brisbane Airport Link site collapsed. Some months earlier, a worker died when he was crushed to death at the same worksite in an incident still being pursued by the federal safety regular. "There are too many cases like this which clearly show Comcare has a patchy record on workplace safety enforcement and oversight," Stone said. "This court ruling shows that the Comcare scheme has put workers' lives at risk by failing to enforce OHS regulations in the limited number of workplaces for which it has responsibility. In the case, it was noted that JH had breached the OHS Act 1991 Act a number of times already. "It must be asked: where was Comcare in preventing these breaches?" Stone said. "If Comcare is struggling to adequately regulate worker safety across only 33 companies, why on earth would you put more workers from across the country at risk by allowing employers to leave well-funded and well-administered state-based schemes to join Comcare's poorly functioning regulatory arrangements?". A spokesperson for employment minister Senator Eric Abetz told OHN the ALA had an "unfortunate history of defending the rorts and loopholes that currently exist in the Comcare scheme". "The very fact that a prosecution was taken and successful shows that Comcare is an effective and active regulator," he said. "(The ALA) is putting the interests of those who would benefit from the current flaws in the scheme at the expense of taxpayers who fund the scheme." Stone said Comcare reported 13 workplace fatalities within its mandate in its 2014 annual report.

The Australian Council of Trade Unions (ACTU), at its annual congress in Melbourne, attacked the Comcare reforms urging the Federal Govt to dump its legislation. It pushed for stronger OHS laws to fine or jail directors for safety breaches to ensure companies could not restructure to avoid penalties for negligent conduct.

(Source: Occupational Health News 1111, 27 May, 2015)

[16]

Stress symptoms not enough for discrimination in adverse action law

The Federal Court has held the meaning of discrimination under adverse action laws is narrower than under anti-discrimination laws, in a decision that found a traumatised train driver's symptoms of stress were not enough to show he had been fired because of his mental illness.

Justice Melissa Perry partly allowed RailPro's appeal of Judge Denys Simpson's 2013 decision that found the train operator had taken adverse action against Colin Flavel when it fired him. Flavel had refused to take the controls of a train as part of a competency test six weeks after he had been involved in a train collision (WF 4/10/2013).

Judge Simpson's decision – delivered more than 12 months after hearing - found Flavel had told RailPro he would be violently ill if he drove the train and that this was because of his subsequently diagnosed post-traumatic stress disorder arising from the collision.

The judge found RailPro's dismissal was because Flavel had a disability under the Fair Work Act's (FW Act) s351 and had exercised his workplace right to protect his own and others' safety under the SA Occupational Health and Safety Act as per s340(1)(a).

Discrimination law requirements don't apply

However, Justice Perry held Judge Simpson had wrongly interpreted s351(1) in finding it had been breached because the dismissal contravened the Disability Discrimination Act (DD Act).

Section 351 requirements for discrimination were different from the DD Act's "expanded" meaning of discrimination, she said.

While s351 did not require the DD Act's comparison between treatment of employees to prove discrimination, it was also not enough that discrimination under s351 was "a perceived, as opposed to actual, disability or a disability of an associate".

Further, a DD Act breach occured if the act was done for a prescribed reason, as opposed to it being a "substantial and operative" reason under the FW Act.

In this context, the "carve out" in s351(2) – saying s351(1) did not apply if the conduct was "not unlawful under any anti-discrimination law" – simply "avoids a result whereby the FW Act imposed more onerous obligations upon an employer than those already imposed upon her or him under general anti-discrimination laws".

"In effect s351 proscribes a 'subset' of that which is proscribed under the DD Act," Justice Perry said.

The converse was not, however, true, she said.

Conduct that breached the DD Act did not therefore also breach 351(1) "contrary to the assumption apparently made by [Judge Simpson]".

Employer only aware of 'attack on the nerves'

Despite the difference between statutes, Justice Perry held "disability" under s351 still "cannot be limited" to the "underlying diagnosed medical or physiological or psychological condition" and could refer to the symptoms of that condition.

"Unless the term included symptoms or manifestations of the disability, the Act may well fail to achieve its object."

Therefore, the fact Flavel's condition was not diagnosed before his dismissal was "notnecessarily an impediment" to finding he was dismissed because of his disability. 

However, Justice Perry said courts still needed to give "particularly close consideration" to an employer's reasons for adverse action "where it may not be apparent that the symptom or manifestation is in fact a symptom or manifestation of a disability".

In Flavel's case, Justice Perry held the evidence of his symptoms went "no higher than to suggest that the decision-makers were aware that Flavel had had an 'attack of nerves'".

She agreed with RailPro that disability "does not include ordinary human responses to particular circumstances, such as nervousness".

"[K]nowledge by a lay person that a person feels nauseous and has other feelings typically related to nervousness in a stressful situation like an assessment is likely to fall short of amounting to knowledge of a disability."

Judge Simpson's finding to the contrary that RailPro's decision-makers were aware of Flavel's condition was "glaringly improbable", she said.

The judge's findings Flavel was "putting on a brave face" after the train crash and RailPro managers were not "qualified" to give opinions about his psychological state were inconsistent with a finding they were "aware" of his state.

A letter from Flavel's wife to RailPro showing he was under stress and grief was also not sufficient.

For Judge Simpson to infer that "[u]ndoubtedly" the letter warned RailPro of Flavel's fragile mental state "assumes a capacity to differentiate between stress and a disability", Justice Perry said.

Dismissal over OHS right not disproven

But while Justice Perry set aside Judge Simpson's s351 finding, she upheld his separate finding that Flavel was dismissed because he exercised his workplace right to protect himself and others as per the OHS Act.

Justice Perry upheld RailPro's argument that Judge Simpson was incorrect to find Flavel's competency was not a reason in the dismissal.

But she said that was not sufficient to overturn the adverse action finding as RailPro had not shown that Flavel's exercise of his right under the OHS Act was not one of the dismissal's operative reasons.

Errors in damages calculation

Nevertheless, Justice Perry said the competency issue should have been taken into account when deciding on $95k in damages.

Further, Judge Simpson erred by failing to discount Flavel's workers' compensation payments from loss occasioned by dismissal and in mistakenly estimating the period he would have been fit to return to work for the compensation order.

The judge's order for RailPro to pay a penalty of $5k was also incorrectly based on an individual penalty rather than a corporation's penalty.

His order for a "high" award of $25k for distress, hurt and humiliation was insufficiently justified and took into account the erroneous finding that the decision-makers were aware of Flavel's mental illness.

However, Justice Perry considered a $7,500 award for distress was still warranted after noting the dismissal meeting occurred without prior notice, was held immediately on Flavel's return from the competency test and did not "realistically" allow him to have a support person.

She proposed remitting the question of compensation and penalty to Judge Simpson.

(RailPro Services Pty Ltd v Flavel [2015], FCA 504, 22/05/2015)

Academic to invite 'reconsideration' of court approaches to discrim under FW Act

Melbourne Law school employment relations Associate Professor Anna Chapman told Workforce Daily that the decision "provides a very strong statement" about the distinction between anti-discrimination law relating to disability and the FW Act's discrimination provisions.

However, while there had been previous decisions about the connection between symptoms and the disability, Chapman said it was still "uncertain" what degree of manifestation of those symptoms was required.

"That's always going to be a difficult factual issue," she said.

Unlike the test under anti-discrimination law – which required no intention or consciousness – the FW Act was "more subjective" and related to the reasons of the decision-maker. "They need to have some knowledge," Chapman said.

She said the RailPro decision appeared to be the first on stress symptoms in relation to PTSD.

Chapman will be speaking on courts' methods for interpreting discrimination in an industrial framework this Friday at a Fair Work workplace relations lecture at Melbourne Law School.

She will argue there has been "a turning away under the FW Act from earlier, broader judicial approaches on the meaning of discrimination" and will invite a "reconsideration of current judicial approaches".

(Source: Workforce Daily 19633, 27 May, 2015)

[17]

ACTU unit will organise affiliates' industrial campaigns: Oliver

Campaigners employed by the Australian Council of Trade Unions (ACTU) for its federal election push will stay on to help affiliates organise their own campaigns around industrial matters, ACTU secretary Dave Oliver has revealed.

The ACTU Congress today (May 27) unanimously approved a $13m budget for its 'Build a Better Future' campaign, which will target 30 marginal electorates and hire 21 campaigners. $10.8m of the $13m will be funded by a permanent $2 per member levy on affiliates.

Oliver said the ACTU campaign unit would shrink to 14 campaigners in the 18 months after the election, but the peak body would maintain a "permanent campaigning capacity".

"We have a federal election, three state elections and two territory elections [in the next three years] … it doesn't make sense to keep ramping up and ramping down campaigns," he said.

Oliver said the ACTU would mobilise the unit to organise affiliates' campaigns around industrial matters.

"They are notionally based in marginal seats, but we want a mobile and nimble nation-wide campaigning team," he said.

Oliver told Workforce Daily the campaigners would help affiliates on industrial matters like the Transport Workers Union's 'Safe Rates' campaign, but not industrial disputes.

After the election, the ACTU campaign team would "aim to achieve key advancements for working people such as secure jobs and portable entitlements", Oliver said.

The campaign will be paid for by a $2 levy on top of the $3.71 ACTU fee paid by affiliates for each member.

From 2016, the $2 levy will be built into the affiliation fee as a "minimum guaranteed campaign" contribution.

Affiliation fees, including the levy, will increase to $5.88 in 2017 and $6.05 in 2018.

Local resourcing the focus of $13m spend

Oliver said the campaign will be ready to roll out by the end of June, in the event the Abbott government calls an early election.

The ACTU would focus its efforts on data, such as aggregating and updating union lists, social media engagement with voters, and ground resources like field campaigners and door-knocking. None of the $13m will pay for national TV advertising, despite that being the "most significant spend" in the successful Your Rights At Work campaign in 2007, Oliver said.

Instead the ACTU would do "low level ads online, on local TV and radio", he said.

Oliver said he hoped "in the cut and thrust of the federal election there will be affiliates who donate resources to run [national] TV ads", as occurred on a state-wide level in the Vic, Qld and NSW state polls.

ACTU could go further: Professionals Australia

Professionals Australia chief executive Chris Walton spoke in favour of the motion, but said the ACTU should consider raising a $5 levy to achieve an ever greater increase in its capacity.

Walton said although unions would "always have to bargain" for their members "if we really want to help [members] and not just negotiate redundancies, we have to shape the environments in which they work".

The ACTU could work at an industry and national level to effect changes to govt funding and legislation, he said.

"We need this to win in our industry campaigns, not just deal with the symptoms."

"I don't support this resolution [because it is] for an election campaign but because we are building a capacity to win for you," Walton said.

He said the ACTU benefited its affiliates through running campaigns on equal pay, minimum wage cases, giving information on legal and economic changes and training unionists.

The ACTU should do more, including "bargaining for us together" on expenses like phones and cars, Walton said.

"We'd save more than $2 a member if we acted on this novel concept called collective bargaining," he said.

(Source: Workforce Daily 19633, 27 May, 2015)

[18]

Australia must get ahead of automation curve: Shorten

Australia needs to prepare for the jobs of the future as it confronts the risk of automation of low-wage sectors, opposition leader Bill Shorten has said.

Shorten made the comments in an address to the Australian Council of Trade Unions (ACTU) Congress today (May 27).

He criticised the view that high wages made Australia less competitive, and warned that "low wage jurisdictions will be replaced by automation".

"We have to be the country which designs, builds and operates the machines," he said.

Australia should prepare for "jobs which haven't yet been developed" because "three out of four jobs in the fastest growing industries will need skills in science, technology, engineering and maths", he said.

"Labor has a plan to put these skills front and centre – we want more Australians to study coding and computational languages."

Shorten said the country faces "massive change" as $100bn of mining investment has dried up and Australia needed to plan for future job growth.

However, he committed Labor to oppose "the race to the bottom in terms of wages and conditions, which erodes the safety net which makes this a great country".

Labor fights against visa exploitation: Shorten

Shorten said Labor had put a submission to the Fair Work Commission minimum wage case for the first time because it recognised "the min wage is not too high, it's a fundamental driver of dignity for people in this country".

He argued the govt was attempting to repair the budget deficit through 'bracket creep', which he described as the "stealthy invisible hand of inflation". "[The govt] puts its hand into your pocket taking your wage increases as increased taxes," he said.

Shorten also promised Labor would "never sign up for the exploitation of people on working visas, no matter what pressure is put on us by the conservatives".

However, last week shadow treasurer Chris Bowen announced Labor would support the Coalition's proposed 32.5% working holiday visa tax from the first dollar earned.

That was despite the National Union of Workers saying the tax would be like "pouring gasoline on a fire" by providing a disincentive to pay the visa workers appropriately and "dooming" them to a black market economy (WF 22/05/2015).

(Source: Workforce Daily 19633, 27 May, 2015)

[19]

Is your workplace OK?

By Professor Niki Ellis

Adjunct Professor, Institute for Safety, Compensation and Recovery Research and Department of Epidemiology and Preventive Medicine, Monash University

www.nikiellis.com.au

Twitter @ProfNikiEllis

Recently an organisation asked me to consider what being a mentally healthy workplace might look like for them. It was a great brief, they were up for it. I started by having a look at their business strategy and found they were growing, planning to further develop their leadership and workforce and IT platform to enable them to be competitive and make the most of the opportunities they could see. 

I then reviewed their current investment and performance in health and safety and concluded that they were a strong performer in the traditional health and safety model. By that I mean they aimed for zero harm in relation to the prevention of injuries. They had started a workplace health promotion program, but it was early days, and quite a long way off best practice.

A team from Johns Hopkins recently described best and promising practice as:

·         Health education

·         Supportive social and physical environments

·         Integration with HR, infrastructure and environmental health and safety

·         Links between HP and related programs eg EAP. 

And that it works if:

·         Goals are aligned to business

·         Program design is evidence-based

·         Theory-based implementation

·         Ongoing evaluation

What they did have was R U OK, and a great start on a health portal. Way to go.

Potential for web-based interventions

In another project I am working on for the life insurance industry we have done a rapid review on the management of psychological claims. 

The review found that with regard to treatment there was huge potential with web-based interventions for mental health.

A Canadian case study illustrated the future with a confidential web-based mental health self-management resource. This allows someone to assess their own mental health, provides information on treatment and rehabilitation, with supporting material for doctors and then tools for tracking progress. 

The resource was based on recent evidence-based guidelines, and was being marketed to insurers and employers. 

A proposal to become a mentally healthy workplace

Meanwhile back in Australia, having assessed the broader strategic environment and what programs were already in place relevant to mental wellbeing; not just in health and safety and workplace health promotion but also in HR more broadly (EAP, diversity strategy, respectful workplace policy etc), I developed a proposal for becoming a mentally healthy workplace.

This drew on two sources of information: Tony La Montagne's model of an integrated approach to mental health in the workplace; and Gloria Sorensen's conceptual model for an integrated approach to the prevention of 'work-related injuries and illness and the enhancement of overall workforce health and wellbeing'. 

Tony La Montagne is at the University of Melbourne and his model has four components:

·         Prevent harm from psychosocial hazards

·         (using work to) Promote positive mental wellbeing

·         Early detection

·         Manage illness and minimise consequences.

Implementation science is key

Sorensen (above) is the Queen of the integrated approach to workplace health and safety. She is the head of the Centre for Work, Health and Wellbeing at Harvard University.

A colleague of La Montagne's told me the light bulb went on for Sorensen when she was running Quit programs at a foundry, and realised the uselessness of talking to workers about them giving up cigarette smoking in an environment filled with toxic fumes. She presented a generic conceptual model, drawing on implementation science, with the following elements: context (external and organisation); interventions, mediating factors in the work organisation or work environment, mediating factors related to workers, expected early outcomes, and then expected final outcomes, at the first international conference on Total Worker Health, American for the integrated approach, in October last year. (Selected papers from the conference can be found here)

Drafting the strategic direction

Using both frameworks I generated draft strategic directions for this organisation, which essentially draw together and build upon many different strands of activities already in existence across the organisation, with the aim of assisting to deliver on the broader business plan.

These included:

·         Work design and re-design: Proposed as they were building a new IT platform, the idea is that health and wellbeing becomes a consideration in that work. For existing work process, suggested the addition of psychosocial hazards to the existing risk management system, possibly by using the routine employee opinion survey to collect information on the psychosocial working environment and leadership performance.

·         Proposed the concept of work-life balance as a great link between individual behavioural change and work environment change. Could be a focus of communications on the strategy.

·         Extension of a middle management development program on mental wellbeing which had already been developed and run out to some. This is key, if you ramp up conversations about mental health in a workplace you need to be confident middle management can deal with mental health issues, otherwise you may see this reflected as an increase in stress claims.

·         Inclusion of health and productivity, especially mental health, in review of the leadership development program.

·         Continue to develop the health portal in relation to mental wellbeing, noting evidence of effectiveness of web-based self management support and improving mental health literacy.

·         Streamlining business metrics: Opportunity to ensure that relevant indicators for mental wellbeing and their link to productivity are included.

I provided three options for the goal. The first two were based on integrated thinking. One was very broad, an aim of improving organisational performance through health. The second was more tightly focussed – improving workforce capability and wellbeing by including mental health considerations in the development of leadership, systems and workforce. The third option was based on extending the traditional model to better include mental health – that is to contribute to achieving zero harm through programs aiming to minimise psychosocial risks and to promote mental health (separately, as is the tradition). 

Bravo to this organisation for taking this topic seriously and giving it a good shake. They are in a good position to succeed as they have a strong foundation in a high performing traditional workplace health and safety program, and they are not unused to the concept of psychosocial ergonomics.

There are benefits to be had for workers in terms of improved health outcomes and benefits to employers in terms of performance, presenteeism and absenteeism. 

But it is going to take a lot more than asking R U OK. 

(Source: Inside OHS 90, 28 May, 2015)

[20]

Zero-tolerance drug policies to become the norm?

By Stephanie D'Souza

Impairment caused by the use of drugs is a constant concern in industries like mining, building and construction, utilities and the transport sector, where public safety, workplace safety and employee rights are balanced against each-other.

As technology develops to provide different options for testing in the workplace, eg urine, saliva or hair testing, the options to detect drug use farther and farther back in time are becoming available to employers.

Some legal developments under the Fair Work Act would see the preclusion of more sophisticated methods of testing like urine testing on the basis it affects privacy, as was determined by the Fair Work Commission in January 2014 where Endeavour Energy faced off with the Electrical Trades Union (ETU). The union justified this perspective by focusing the application of the law on whether the worker is impaired at work by earlier drug use.

However, the argument is already changing driven by the emergence of different drugs, one union fearing for the safety of its members and employers changing the basis for their drug and alcohol (D&A) policies.

Clayton Utz partner Shae McCartney has analysed the impact of a number of decisions in 2015 which supported employers who have moved to a "zero-tolerance" approach. They have argued their drug and alcohol policies needed to focus on preventing the risk of incident or injury, rather than whether an employee was impaired.

Urine testing 'unjust & unreasonable': 2014

In early 2014, Fair Work Commission Senior Deputy President Jonathan Hamberger ruled for the third time supporting the ETU's position that urine testing was an unfair imposition for Endeavour Energy's employees.

At the time, ETU assistant secretary Neville Betts said: "While oral testing accurately identifies recent drug use, where an individual may be impaired in their abilities, urine tests unfairly monitor workers' private lives by potentially showing a positive result even where a substance may have been used many days prior, in a private capacity."

In the original case SDP Hamberger identified both urine and oral testing were liable to cheating and that for some drugs, like cannabis, oral testing is superior to urine testing particularly when testing for on-the-job impairment.

"Not only is urine testing potentially less capable of identifying someone who is under the influence of cannabis, but it also has the disadvantage that it may show a positive result even though it is several days since the person has smoked the substance."

When he was still a senior partner at Clayton Utz, now FWC Vice President Joe Catanzariti had analysed the decision, saying by describing urine testing as "unjust and unreasonable" SDP Hamberger had supported the requirement to balance competing considerations when constructing policy. That is "the need to ensure a safe workplace against the need to protect employees from undue interference by employers in their personal lives".

Zero-tolerance favoured by courts?

This decision had been described as a landmark and victory for the unions, but Clayton Utz's McCartney says the courts have since been supporting employers' moves away from impairment-based policies.

"A series of recent decisions by the Fair Work Commission have recognised the legitimacy of drug and alcohol policies and procedures in removing safety risks, and the right of employers to take disciplinary action for drug use, even if there's no actual evidence of impairment."

Referencing the statutory duties owned by employers not just to their workers but to people who could be affected by the employers' business, eg the general public, McCartney noted effective drug testing was particular important in "high-risk industries".

She said the debate around efficacy of testing was further complicated by the "emergence of synthetic cannabinoids (such as Kronic) which can affect employees' fitness for work, but may not show up in establishing testing procedures".

FWC full bench does about face on urine

In late 2014 a FWC full bench overturned a decision precluding urine testing at DP World Brisbane. The original decision by Deputy President Anna Booth had found urine testing was "unjust and unreasonable" even when used as a second test after an oral swab returned a "non-negative" result.

The bench decided DP Booth fell into error by concluding she had to consider the merit of using urine for testing; rather she should only have looked to whether the enterprise agreement (EA) precluded it. McCartney noted the full bench drew on evidence "urine testing was an established part of the site-specific drug and alcohol testing arrangements operating at each of DP World's terminals" and workers had not raised concerns about it during EA consultations.  

Ferry driver collides with wharf

Another zero-tolerance decision McCartney (above) drew on was at Harbour City Ferries where a ferry driver's reinstatement was overturned after urine testing revealed cannibinoid use.

"The fact that the employer had a zero tolerance drug policy was a key factor in the Full Bench's reasoning in finding that non-compliance with the policy justified termination of employment (as there was no evidence that the employee's drug use caused any impairment nor contributed to the incident)."

The full bench judgment observed Harbour City's emphasised its zero-tolerance policy was required due to its responsibility to public safety.

"[Harbour City] does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor," the bench said. "It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment."

The ferry driver had said the use of canniboids was for "pain relief". But the full bench said his decision to use should have informed his subsequent decision to accept a shift "while aware of the likelihood of being in breach" of the D&A policy.

Sara Hopkins and Mark Sullivan from law-firm Lander & Rogers agreed with McCartney's analysis saying the decision was "positive news for employers with zero-tolerance drug and alcohol policies. An employer, particularly where public safety is involved, can require strict compliance with appropriate drug and alcohol policies, without being required to determine that a related safety incident was caused by an employee's impairment".

Urine shows meth in mine operator's sample

In January 2015, the FWC upheld EDI Mining's decision to dismiss a dump truck driver who recorded a methylamphetamine at four times the reporting cut-off figure. McCartney said the decision "provided hope and optimism to even the most jaded employment practitioner".

The worker had submitted she had unknowingly taken the methylamphetamine, saying her drink had been spiked by two strangers over the weekend past.

The Construction Forestry Mining Energy Union (CFMEU) submitted that the worker felt "perfectly well" and the employer had failed to prove any impairment. EDI Mining rejected the need to prove impairment instead drawing on the existence of its "cardinal rule" against non-approved substances.

Commissioner Ian Cambridge said the worker had failed to prove during the hearing that her drink had been spiked and resultantly the employer had acted appropriately to dismiss her, following consideration of the alleged mitigating factor.

"Individuals who attend a workplace like the Mine under the influence of drugs or alcohol endanger the lives of other workers," Cmr Cambridge said. "This test result would of itself, provide valid reason for the employer to terminate the employment of the applicant. This test result was appropriately treated as a prima facie serious risk to the safety of fellow workers."

McCartney said the cmr was "highly critical" of the CFMEU's approach, stating it was "highly regrettable" for an organisation "which apparently conducts campaigns which strongly advocate safety in the workplace".

CFMEU's new 'mandatory testing' policy  

As an alternative to zero-tolerance policies, the CFMEU construction division's announced its "Impairment Policy" in March this year. For the first time for the union, the policy recommends mandatory blanket testing for the first time including testing employers, focusing on scrutinising impairment.

CFMEU national construction secretary Dave Noonan said "We acknowledge that testing already happens in specific circumstances in the industry and accept that our membership is increasingly concerned about the problems associated with people turning up to work impaired and the risks this poses."

The CFMEU proposed impairment assessors would be nominated from the safety committee and would be made up equally of employer and employee representatives.

The Master Builders' Association (MBA) welcomed the union's "belated commitment" but was sceptical the CFMEU's motives included trying to persuade Senate cross-benchers there was no need to extend the powers of the Fair Work Building and Construction Commission.

In spite of this, MBA CEO Wilhelm Harnisch said his organisation was ready to discuss practical solutions for implementing the testing regime. "Master Builders will take at face value the CFMEU's commitment to a compulsory random drug and alcohol testing regime because Master Builders is committed to ensuring that construction workers each day return home safely to their wives, partners, children, families and friends."

Workmates beg workmates to quit drug use

The National Cannabis Prevention and Information Centre (NCPIC) released survey results in May, showing of 2,000 people surveyed 40.3% had worked with a cannabis affected colleague believed it reduced their colleague's motivation and almost one-third believed they were impaired.

NCPIC senior researcher Dr Peter Gates said cannabis affects motivation, reaction time and concentration making it a "blue collar and white collar issue".

Some 38.4% of respondents believed cannabis caused decreased concentration in their colleague, and 31.1% believed it had impaired that person's ability to perform complex tasks.

However, the survey also showed self identified cannabis users did not note the same shortcomings in their work that their colleagues observed, although 10% said the quality of their work would improve if they quit.

Gates said "the reality is, if you are a regular cannabis user, there is a chance your colleagues are going to notice you are letting the team down in key performance areas such as motivation and, in turn, productivity".

47% of users admit to being stoned at work

Gates said the data emphasised the need for clear communication about drug use in work-places. Whilst more than 80% of respondents said they would be comfortable raising the issue with affected workers, and more than 50% said they would be comfortable talking to the cannabis user's manager, only 5% of cannabis users said the issue had been raised with them at work. Gates noted more than 47% of the cannabis users surveyed admitted to being stoned at work.

"Employers need to make sure they have clear drug policies in place at work, and that these are not just included in a pile of paperwork during employee induction." Gates emphasised the use of strong assistance programs and making sure workers feel able to ask for help.

The NCPIC added human resources teams should be educated to look for warning signs where longer term effects can be subtle amongst users. "It's easy to spot drug use at a party...but would you think to consider a combination of a lack of focus, motivation, memory and learning challenges or even sleep issues, as a possible drug issue?".

Perception that workers can avoid testing

NCPIC conducted another survey late last year of 500 tradies across mining, construction, transport and defence. The survey said 21% of respondents indicated they had consumed cannabis within four hours of going to work. Almost two-thirds (63%) said they knew someone who had failed a drug test.

Gates noted in these industries, despite rates of random testing increasing, only 29% of respondents believed they would definitely be tested. A third said it was unlikely or there was only a small chance of being tested.

Gates emphasised smoking so close to working was a warning sign: "If [workers] are smoking before work, it's also more likely they are having a problem controlling their use, which is a sign of addiction. No tradie wants to be responsible for hurting a mate while on the job, so knowing the side effects of cannabis use, and weighing up that risk, is really important."

AHPRA testing doctors' hair

In non-high risk industries, like the health sector, focus on drug-related impairment is also increasing. The Australian Health Practitioners Registration Authority (AHPRA) has initiated a far harsher regime of hair testing on all practitioners with substance related impairment.

AHPRA CEO Martin Fletcher said "under the protocol, all health practitioners who have restrictions on their registration linked to past substance abuse will have routine hair testing in addition to urine testing".

The Australian Drug Foundation says hair testing detects past use up to a few months, and can "therefore test for chronic use". AHPRA drew on its role to protect the public and manage risks to patients.

Can employers ask workers to see the doc?

Swaab Attorneys say employers have the option of requiring workers to undergo a medical assessment if the employer can establish that there was evidence to show an employee's limitations at work.

Swaab Partner Warwick Ryan said in one case the Fair Work Cmn had prevented an employer adding bi-yearly examinations of forklift drivers on top of regular medical assessments already required by the National Heavy Vehicle Accreditation scheme.

However, analysing the case Ryan said "the clear learning from this is that where an employee discloses or displays specific health limitations that cast doubt on their ability to carry out their job, employers can require them to undertake a medical assessment before returning to work".

He added the cmr and the union involved had emphasised privacy concerns for workers if medical examinations had been compelled, so employers should "put some thought into how medical information is going to be stored to ensure the privacy of the individual".

(Source: Inside OHS 90, 28 May, 2015)

[21]

AWU undercut award for $25k fee, inflated membership: TURC

Casual cleaners at a major sports event company were short-changed by up to two thirds of their hourly rate by the Australian Workers Union (AWU) Victoria branch maintaining an expired WorkChoices agreement that saved their employer millions of dollars a year in wages.

The AWU agreed to maintain the 2006 enterprise agreement past its 2010 expiry date in return for employer Cleanevent paying it $25k a year in 'membership fees' and inflating the branch's membership roll.

The Trade Union Royal Commission (TURC) heard that Cleanevent, which did clean ups for the Formula 1 Grand Prix, the Easter Show and the Melbourne Cup, saved an estimated $2m a year from the arrangement .The company's low casual rates – with substantially reduced penalty rates - were said to be "very attractive" to Spotless, which later acquired the business in 2010.

Labor Vic MP Cesar Melham – who will be called to the stand next week - was the AWU Vic secretary at the time involved in negotiating to continue the agreement and setting the $25k fee.

The cmn heard that the AWU had initially entered negotiations with Cleanevent to replace the 2006 EA in 2010 but ended up agreeing to a three-year Memorandum of Understanding (MOU) instead.

The MOU, which was also signed by then-national secretary Paul Howes, said the 2006 EA would continue to apply, except in so far as the MOU adjusted pay and penalty rates.

Senior counsel Jeremy Stoljar said it appeared the AWU had entered a MOU and not an EA because an EA would not have passed the Fair Work Act's better off overall test as it was "significantly worse" than the modern award.

Stoljar said as a result of the agreement level 1 casual workers were paid $18.14 an hour for public holidays compared to the 2010 award rate of $50.17 an hour. Level 3 casual workers were paid $19.86 an hour for a Sunday when the award gave them $41.44 an hour.

At the same time as the MOU a 'side letter' was agreed to where Cleanevent would pay the AWU up to $25k a year in 'membership fees' and supply it with a list of cleaner names.

Cleaners had 'no knowledge' of membership selection

Then-Cleanevent general manager now business development executive Steven Webber gave evidence to the cmn the company came up with the list of staff it would pay membership fees at "random".

Asked how he knew whether the members wanted to join the union or not, Webber replied "I didn't."

An email to the AWU at the time Webber referred to one of its biannual $12,500k payments as "12,500 big ones!!!"

In a 2012 email about Cleanevent's failure to pay the AWU fee on time, Webber warned staff "this has the ability to cost us some $2m if we pee them [the AWU] off".

On the description of the fee as 'membership fees', Cmr Heydon said "to be blunt about it, the side-letter seems to be a sham".

He said the "actual" agreement was "simply to pass $25k a year and some names of people who had never been asked whether they wanted to join the AWU".

When Stoljar put that an invoice description of the payment as 'membership fees' was "not true or accurate because what was being charged for was not membership fees at all", Webber responded "I'm not sure to be honest".

Asked whether the fee was in exchange for the continuation of the 2006 EA, Webber said it was "part of the process".

Counsel for Melham sought to argue the fee was a "service fee" but did not specify what the "service" was. In any case, Webber says he did not recall Melham using that term in negotiations.

Inflated membership boost AWU power in ALP

Stoljar said in his opening statement the Cleanevent workers chosen for AWU membership were "members" only in the sense that their names were entered on the AWU Vic membership roll but "without their knowledge or authorisation".

Indeed, some were already AWU members and were having their union dues paid "twice over", he said.

Aside from the financial benefit to the AWU Vic, inflated membership numbers increased the branch's influence in its union's national executive as well as the Australian Labor Party (ALP) – which in turn led to greater influence over ALP policy formation, membership of ALP committees and selection of ALP candidates.

"The persons who miss out are the workers," Stoljar said. "Cleanevent's employees, or at least its casual employees, appear to have been significantly worse off under the MOU than they would be under the relevant 2010 award."

He questioned whether the fees were breaches of s287 of the Fair Work (Registered Organisations) Act in that AWU national or Vic branch officials "seem to have been entering into an arrangement which gained benefits for themselves and Cleanevent … but which were detrimental to their members".

If false accounting was involved to conceal the payment of membership numbers that could be an offence under the Crimes Act, he said.

He said the TURC discussion paper had referred to such payments as "corrupting payments" and asked whether significant penalties should be imposed on employers who make such payments to unions.

AWU member fees cover other companies

Stoljar said over the coming days TURC would investigate other instances where the AWU had raised revenue and inflated membership numbers through 'membership fees'. He named payments from BMD Constructions Pty Ltd, Winslow Constructors Pty Ltd, the Australian Netball Players' Association and the Australian Jockeys Association.

At press time, the cmn was set to call several Cleanevent cleaners to give evidence.

The AWU has decided not to be represented at this week's hearings but is understood to be appearing next week. An AWU Vic spokesperson did not return requests for comment before presstime.

(Source: Workforce Daily 19634, 28 May, 2015)

[22]

Bullying application rejected as was really an operational dispute: FWC

Disputes about compliance with work health and safety laws and "operational practices" were not "bullying conduct" which could be dealt with by a stop-bullying application, the Fair Work Commission has found.

Andrew Gilbert was accused of bullying by St John's Ambulance WA Ltd volunteer paramedics. St John's, his employer, stood him down while it conducted an investigation.

Gilbert applied to FWC for a stop-bullying order against an employee of St John's Ambulance.

Commissioner Danny Cloghan noted from Gilbert's application he "disagrees with operational practices" of St John's and had made allegations about its compliance with the 'Workplace Health and Safety Act'.

Cmr Cloghan noted Gilbert had mentioned the alleged bully only in the fields to nominate the subject of the order, and not in the "narrative" areas describing alleged bullying conduct.

The cmr said this was "notable" because Gilbert had alleged bullying started in February 2011 and continued until November 2014 and occurred "almost every day".

The cmr found Gilbert was in "obvious conflict" with St John's and volunteer paramedics which could be resolved in "a number of ways".

"However, there is [an] incongruity … between a dispute over operational practices and an application to the cmn alleging bullying," he said.

Cmr Cloghan was satisfied the application was "not the appropriate means to resolve the workplace conflict", and dismissed it for having "no reasonable prospect of success".

(Andrew Gilbert, PR567824, 27/05/2015)

(Source: Workforce Daily 19634, 28 May, 2015)

[23]

Class actions 'intensify'

Jurisdictions may establish class action lists with dedicated judges, Qld Supreme Court Justice David Boddice told the Australian Insurance Law Association's Qld intensive in Brisbane. He said NSW Chief Justice Tom Bathurst was reported saying it was important class actions be overseen by judges with specific expertise. The Federal Court was the class action "forum of choice". But steps were being taken to give Qld a class action regime, perhaps by adopting the Federal Court's class action rules. Qld had only representative actions, which required all parties to have the same interest in the dispute and therefore it was harder for parties to qualify. Justice Boddice said Qld's lack of class action procedural rules meant many were lodged in NSW, eg an action against the Qld Government alleging dam mismanagement during the 2011 floods (CN 10/07/14). Justice Boddice said the rise in class actions had occurred since the advent of litigation funders and particularly since the High Court's 2006 Fostif decision, which found third-party litigation funding was "not contrary to public policy or an abuse of process, even though individual funding arrangements may fall foul of those imperatives". He said many personal injuries firms now focused on class actions because tort law changes made injury claims more difficult to prosecute.

(Source: Cover Note 1915, 28 May 2015)

[24]

Honesty 'a core obligation'

"If you can't get indemnity under the policy, the doctrine of utmost good faith (DUGF) is not going to deliver it to you," Qld barrister Sandy Thompson told the AILA Qld intensive (above). Thompson appeared for CGU in the Qld Supreme Court case Matton Developments Pty Ltd v CGU Insurance Ltd(CN 30/04/15). He said the unsuccessful insured had lodged an appeal. Matton had accused CGU of breaching DUGF by not accepting the insured's account of events when a crane's boom collapsed on a building site. Justice Peter Flanagan said honesty was "a core obligation" and DUGF required full and frank disclosure. But insurers were not prevented from seeking proof if a claim raised suspicions. They did not have to "coddle insureds", surrender commercial advantage or put an insured's interests above their own. Thompson said Justice Flanagan had found insurers were entitled to deny indemnity if circumstances fell outside the insurable interest or exclusion clauses applied. In Matton, the crane driver gave evidence the crane was on a level surface when its boom collapsed but a CGU expert's evidence said it was not. Justice Flanagan found the driver's evidence was inconsistent. (Matton Developments Pty Ltd v CGU Insurance Ltd (No 2) [2015], QSC 72, 15/04/2015)

(Source: Cover Note 1915, 28 May 2015)

[25]

Court awards $659K for sexual assault

The ACT Appeal Court has found a civil servant liable under the Civil Liability Act for $658,850 in negligence damages to a staff member after failing to prove he had her consent to have sexual intercourse with her during an interstate work conference. Expressed as assault and battery, 38-year-old Sharon Whitehead claimed she had sustained a personal injury in August 2007 because of Michael Moon's sexual assault, which had caused her to lose her virginity. She claimed as a result she had received treatment from a rape crisis centre and psychologists and had been totally incapacitated for work from Aug 17, 2007, to June 10, 2008. Master David Harper, who has since retired, had entered a judgment against Moon for $668,856, including $10,000 for aggravated damages and costs. Moon appealed against that decision, claiming among other things Master Harper had erred in finding he did not have Whitehead's consent to sexual intercourse.

The court heard Whitehead had met Moon in 2005, when they worked together at the Department of Immigration and Multicultural Affairs. The following year, the pair engaged in sexual activity short of intercourse. Whitehead left the same year to work at the Department of Veterans Affairs. The pair met again in 2007, after Moon had started working for the Child Support Agency and a few months later Whitehead agreed to work at the agency under Moon's supervision but said she did not want a sexual relationship with him. On Aug 13, the pair travelled to Sydney to attend a two-day conference. They had agreed beforehand to share a two-bedroom, two-bathroom apartment. It was established on the first night the pair visited several sex shops in Oxford St before returning to their apartment. Whitehall claimed Moon had entered her bedroom without her permission and forced himself on her despite her repeatedly telling him to "get out". Master Harper accepted Whitehall's evidence.

In the Appeal Court, Chief Justice (CJ) Helen Murrell and Justice John Burns said Moon was liable in battery unless he proved on the balance of probabilities he had Whitehall's consent to that contact. Justice Hilary Penfold agreed. They found Master Harper had gone "beyond finding" Moon had failed to discharge that onus. CJ Murrell and Justice Burns found Moon's appeal must therefore fail and Justice Penfold agreed. They upheld Master Harper's decision but set aside the $10,000 award of aggravated damages. (Moon v Whitehead [2015], ACTCA 17, 22/05/2015; Sharon Whitehead v Michael Moon [2013], ACTSC 243, 05/12/2015)

(Source: Cover Note 1915, 28 May 2015)

[26]

SCT inquiries fall

The Super Complaints Tribunal (SCT) received 2,724 phone inquiries in the March qtr, down 6.7% on the previous qtr. Written complaints dropped 11.5% to 637. In its latest quarterly bulletin, SCT said 62.8% of complaints were within its jurisdiction. Of those, administration complaints were the biggest category at 43.5%; death benefit complaints 29.7%; and disability 20.8%.

(Source: Cover Note 1915, 28 May 2015)

[27]

RET Bill politicking goes on

A deal to cut the legislated 2020 renewable energy target (RET) by 8,000GWh may yet fall apart over the Federal Government insisting on listing native forest wood waste as a renewable energy source in a Bill tabled this week.

The Renewable Energy (Electricity) Amendment Bill (REE Bill) tabled on May 27 by environment minister Greg Huntreflected bipartisan agreement on reducing the legislated target from 41,000GWh to 33,000GWh. The Bill would axe the destabilising two-yearly reviews of the RET scheme by the Climate Change Authority (CCA) and exempt emissions-intensive, trade-exposed (EITE) industries from compliance with the scheme, as Hunt agreed with Opposition climate change spokesperson Mark Butler last week.

It would overturn Labor's 2011 change to RET regulation 8, which removed native forest biomass as an eligible energy source. But the Bill would also shift the regulation's definition of eligible woody biomassinto the legislation, and significantly changed the definition.

The explanation of Hunt's Bill referred to the definition of eligible woody biomass as "protections". It would introduce the term "ecologically sustainable forest management principles" into the RET legislation. To be eligible to earn renewable energy certificates under the RET the Bill said the biomass must have been harvested primarily for a purpose other than for biomass for energy. The biomass must be either a by- or waste product of a govt-approved harvesting operation that meets a new "high-value test", or a by-product of an operation based on ecologically sustainable forest management principles. The harvesting operation must be covered by a regional forest agreement or meet equivalent ecologically sustainable forest management principles "to the satisfaction of the minister", the explanatory memorandum said.

The REE Bill's new "high-value test" would ensure the forestry operation's primary purpose was sawlog, veneer, poles, pile, girder, carpentry or craft wood, or oil product production and that it derived most of its financial value from those products.

Senators will decide Bill's fate

The govt shifting the RET's legal definition of woody biomass came as a surprise to many, including the clean energy industry, after the drawn-out negotiations between the major parties meant to seal a bipartisan deal on the scheme's future was finally forged last week. Most had expected the govt would table a separate regulatory amendment to reintroduce native-forest wood biomass into the RET.

The govt's move generated a clash between Labor and Greens MPs. New Greens leader Senator Richard Di Natale demanded Labor "abandon its deal to cut the RET, which was introduced to parliament today and allows for the burning of native forests". Labor Opposition climate change spokesperson Mark Butler rejected as "completely false Di Natale's suggestion Labor's deal with the govt was designed to allow native forest biomass back into the scheme in return for dropping the CCA's biannual reviews. Labor "does not support burning native forests as a renewable energy source" and would move to amend the Bill, Butler said. "We opposed it in govt and we oppose it now," he said.

That means the Bill's fate rests on the govt securing the needed Senate six cross-bench votes for it to pass as is. Alternatively, the govt may be hoping Labor will cave into industry and forestry union pressure and pass it without amendment, Carbon Extra sources said. Hunt has not yet delivered the Bill's second reading and his office has not responded to Carbon Extra's question.

RET regs will prevent EITE windfall, govt says

The Bill's (above) 100 exemption for EITEs from having to comply with the RET scheme would introduce new electricity intensity baselines for EITE activities, the explanatory memorandum said.

More flexible' RET regulations

That created a risk some EITE firms may receive "assistance that exceeds the cost impact of the RET on these EITE activities". The govt would consult on the detail of amended regulations "to address this risk", it said. Therefore, the REE Bill (above) would allow "more flexible" regulations "in terms of how they may characterise or describe the amount of an exemption certificate".

(Source: Carbon Extra 319, 29 May 2015)

[28]

Most ERF abatement not new

Clean Energy Regulator (CER) CEO Chloe Munro this week confirmed most of the carbon abatement contracted after the first emissions reduction fund (ERF) auction last month would come from projects already operating under the former Federal Government's carbon farming initiative (CFI).

The CER spent about $660m of the ERF's total $2.55bn funds on the first auction, paying on average $13.95 per tonne/CO_2-e for a total of 47m tonnes of abatement.

Under questioning inSenator Estimates this week, Munro said 107 of 144 projects underERF contracts had transitioned from the CFI. The 34.4m tonnes of carbonabatement they would deliver represented 72% of the total abatement contracted from the first auction, she said. The remaining 37 projects were new. Opposition climate change spokespersonMark Butler saidthatmeant the govt had effectivelypaid $66t/CO_2-e for "only 10m additional tonnes of carbon abatement".

(Source: Carbon Extra 319, 29 May 2015)

[29]

ASIC updates carbon markets guide

Newly updated federal regulatory guidance takes into account the "broader scope" of emissions reduction fund (ERF) project types, new participants and "anticipated" aggregated structures that "may emerge".

The Australian Securities & Investments Commission's (ASIC) latest Regulatory Guide 236 (RG 236) also affirms who "may need" Aust financial services licences (AFSLs) under the Federal Government's revised carbon markets regime. In March, after negative reaction, the govt split its plans to exempt some ERF participants from having to hold AFSLs (Carbon Extra 20/03/15).

ASIC's updated RG 236, released on May 20, confirmed Australian carbon credit units (ACCUs) and eligible international emissions units (EIEUs) were financial products.

Providing information on ACCUs or EIEUs to another person could constitute financial product advice in some circumstances, the guide said. Eg, where the information was intended to influence their decisions on regulated emissions units or "could reasonably be regarded as being intended to have such an influence". Providing financial product advice could relate to an ERF project or to people seeking to produce EIEUs through developing or operating international offset projects. It could include advice given to voluntary emissions offsetters "on approaches to, or strategies for, acquiring or disposing of regulated emissions units". Providing advice to entities covered by the govt's proposed safeguard mechanism to help them make decisions about acquiring or disposing of regulated emissions units could also constitute financial product advice.

The guide noted other emissions-related financial products included derivatives over emissions units and interests in managed investment schemes involving carbon abatement activities or emissions units. Carbon abatement contracts themselves were not financial products, RG 236 said. That meant people did not require AFSLs to provide advice about those contracts or deal in them.

ASIC in an online statement said it had worked closely with the federal environment department and the Clean Energy Regulator (CER) to "anticipate a variety of different structures of ERF aggregated projects that may emerge". However, ASIC said it would "monitor the need to more closely align its guidance to emerging and evolving ERF practices".

Carbon Extra sources say it's likely the next ERF auction, expected later this year, will see bids based on the scheme's method for aggregated energy efficiency projects. The legal technicalities, including ASIC's final position on who needed AFSLs, had stalled market players forging the multiple contracts involved in preparing aggregated projects for bid.

(Source: Carbon Extra 319, 29 May 2015)

[30]

Treas says electricity EBAs intact as pollies push through poles & wires

The Electrical Trades Union (ETU) has sought "urgent meetings" with the NSW Government about protections for employees after the lower house passed legislation allowing the sale of majority stakes in Ausgrid and Endeavour Energy, and the full sale of statewide transmission business TransGrid. Treasurer Gladys Berejiklian told parliament the bill guaranteed existing enterprise bargaining agreements terms and conditions. "Once transferred, employees may continue to be a contributor to their existing superannuation fund, retain rights to annual leave, sick leave, extended or long service leave accrued or accruing immediately before the transfer," Berejiklian said on May 26. However, ETU NSW sec Steve Butler told WFNSW the bill didn't provide worker protections retailers and generators had previously been offered such as salary maintenance and job security for five years following the sale, nor addressed issues like guaranteed apprentice numbers. The ETU is pinning its hopes on the Legislative Council Leasing of Electricity Infrastructure Inquiry headed by Fred Nile (WFNSW8/05/15) which will produce recommendations on June 2. Butler said: "It is extremely concerning that the NSW Govt has decided to jump the gun, tabling legislation ahead of the parliamentary inquiry even handing down its findings ..." Butler told WFNSW it's a bid to get the laws through "before they are truly understood". The Electricity Network Assets (Authorised Transactions) bill passed the lower house last night with the upper house debate scheduled for next Wednesday.

·         Fred Nile MLC is to address Unions NSW on Thursday June 4.

Unions say govt broke promises to consult

The ETU and United Services Union (USU) are "considering their legal and industrial options following the Baird govt's failure to consult with the workforces of Ausgrid, Endeavour Energy, and TransGrid ahead of their privatisation". The unions said the govt has told them a scheduled 30 minute meeting with Premier Mike Baird and Berejiklian on Monday (June 1) will be the only consultation over protections for workers and apprentices. Butler said "power industry unions have made themselves available for urgent negotiations, including after hours or over the weekend, but neither the Premier nor Treasurer is willing to meet". Berejiklian responded saying the govt had been working "round the clock" to kick-start their infrastructure program and reiterated conditions would be maintained per negotiated EBAs. "The Fair Work Act and Enabling Legislation will in effect ensure continuity of employees' accrued entitlements including superannuation."

(Source: Workforce NSW 19635, 29 May 2015)

[31]

Police oversight 'out-of-date'

The NSW Government plans to reform and end overlap for the seven agencies responsible for police corruption and misconduct, having commissioned former state shadow attorney general Andrew Tink to undertake a review by August 31. A govt statement said: "The current system for doing this is out–dated, complex, and confusing with overlapping responsibilities amongst the agencies." Agencies under the microscope include Ombudsman, the Police Integrity Commission, the Inspector of the Police Integrity Cmn, Crime Cmn and WorkCover. Deputy Premier and Minister for Justice Troy Grant said an effective system will uphold "the highest standards of behaviour and integrity, while allowing police to get on with the job". Tink will take submissions until June 24. The final report is to include options for a single civilian oversight model for police.

(Source: Workforce NSW 19635, 29 May 2015)

[32]

Unions NSW to 'spit the dummy' against PPL reforms

On Monday June 1, peak state union body Unions NSW will protest outside federal Treasurer Joe Hockey's office against govt cuts to paid parental leave. Unions NSW encouraged supporters to bring "dummies" and their baby or toddler as part of the protest.

(Source: Workforce NSW 19635, 29 May 2015)

[33]

Diary

July 22, Sydney: AILA twilight seminar: An update on ASIC's regulatory priorities. Go to www.aila.com.au/events

August 5, Sydney: AILA twilight seminar: Good faith and claims handling. Go to www.aila.com.au/events

August 5-6, Sydney: AICLA/ANZIIF 2015 claims convention. Go to theinstitute.com.au

(Source: Cover Note 1915, 28 May 2015)

[34]

Editorial team

Managing Editors: Helen Jones, Peter Schwab. Emailhelen.jones@thomsonreuters.com or peter.schwab@thomsonreuters.com.