Issue 19635
, Friday 29 May 2015
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In this issue
[1]
The Australian Workers Union (AWU) has been
accused of false accounting by allegedly concealing thousands of dollars in
'membership fees' that it secured from Victorian civil construction company
BMD Constructions.
Following on from claims AWU Vic had agreed with
cleaning company Cleanevent to $25k annual 'membership fees' in return for
an agreement that excluded casual penalty rates, Trade Union Royal Commission
senior counsel assisting Jeremy Stoljar today alleged the AWU Vic
branch had also secured almost $35k in 'membership fees' from BMD.
However, the union had described the fees as for
"occupational health and safety" services.
Stoljar's opening address
said in 2007 the AWU and BMD entered into an EA just for Victoria, despite
a national agreement negotiated.
The union also issued BMD with an invoice for
$14,300 for "OHS inspection at various work sites in Victoria".
BMD paid the invoice on Dec 18, 2007 and two weeks
later 44 BMD employees became AWU members.
However, one of those BMD employees David Brick
gave a statement to the cmn he was unaware he had been an AWU member.
Brick also said he was unaware of any arrangement
where BMD would pay monies to AWU for union membership fees.
Neither the AWU nor BMD sought to challenge
Brick's evidence.
Invoice for OHS
services named 'membership'
Stoljar also detailed that during BMD's 2010
negotiations for a replacement EA, BMD sent a list of staff names to
then-AWU Vic secretary Cesar Melhem.
That same day the AWU sent an invoice to BMD for
$19,800 described in an email as 40 members x $450.
While the invoice itself said the money was for
OHS training and safety audits the item code on the invoice related to
"membership".
Stoljar said the invoice strongly suggested the
payment was for membership costs, not safety audits or training.
That was supported by the AWU failing to produce
any documents relating to the said safety training to which the invoice
referred.
One of the employees included in the members list
gave un-challenged statement he was unaware of ever having joined the AWU.
Another said he was a member but paid his
membership by payroll deduction.
TURC asks why
fee monies were not secured for member pay rises
Stoljar said the cmn would investigate next week
whether BMD employees were entered into the AWU membership roll when they
were not "truly" members.
The cmn would also investigate whether AWU persons
created "false accounting records to conceal this fact".
Stoljar questioned whether the union's efforts to
get extra members came at the expense of workers' pay.
"Instead of securing BMD's agreement to pay
$18k plus GST to the union as part of the EBA negotiations in 2010, why
could the AWU Vic not have secured BMD's agreement to increase by that
amount the wages or entitlements of the 41 employees the AWU (Vic) was
supposed to be representing?"
More BMD witnesses have been summonsed for next
week, including BMD director Andy Marcos who was the recipient of the 2007
and 2010 invoices.
Although the AWU decided not to appear or
cross-examine any witnesses this week, it is understood it will appear with
legal representation for next week's witnesses.
Andrews adviser
negotiated 'fee for EBA'
Earlier this morning, the royal cmn (above) delved deeper
into the union's interactions with Cleanevent (see WFD 28/05/15), whose HR manager Michael
Robinson confirmed the $25k was, in Stoljar's words, a "fee for an
EBA" – ie to continue the 2006 WorkChoices EA.
Robinson's statement said
he understood in 2010 that the 2006 EA would not have passed the Fair Work
Act's new Better Off Overall Test in relation to the modern award. But he
received legal advice that Cleanevent could still continue the EA on an
"informal basis" with the AWU by entering into a memorandum of
understanding (MOU).
In 2010, Cleanevent negotiated a MOU with the AWU
Vic branch that effectively continued the "commercially
beneficial" casual rates – ie sans the award's penalty rates - of the
2006 EA, along with some pay increases and income protection insurance for
permanent staff.
At the same time, it secured a side-deal to pay
the branch $25k a year for three years and provide it with a list of staff
names for membership recruitment.
Robinson said the low casual rates were a
"very important commercial benefit" to Cleanevent as it was
"key" to Spotless' acquisition of the business in 2010.
He said he first reached an in-principle deal over
the membership fee during the EA negotiations with AWU
organiser John-Paul Blandthorn – now a political adviser to Vic
Premier Daniel Andrews – and the fee was approved by AWU Vic sec – now Vic
Labor MP – Cesar Melhem.
Melhem's counsel Steve Moore questioned whether
the fee was in fact a "service fee" for industrial representation
of non-members. Robinson said he did not recall it being described that
way.
The cmn heard the then-Liquor Hospitality and
Miscellaneous Union (LHMU) had also been seeking to negotiate an agreement.
However, Robinson told the cmn Cleanevent had a "very good" relationship
with the AWU, in contrast with its "difficult" relationship with
the LHMU. In his view the AWU "wasn't as unreasonable" as the
LHMU. He said the difficult LHMU relationship was the result of the union
seeking to have associated entity Clean Domain have a "Clean Start
Agreement", which included higher pay rates and terms
"unacceptable" to the business.
Robinson said it was "not surprising"
the AWU wanted to improve its membership in Cleanevent's casual staff base
as the "often itinerant" workers were "not willing to give
up even a small amount of their wage to pay union dues".
[2]
Employees will have easier access to sick leave on
holidays and shift workers will get more annual leave due to changes in the
four yearly modern award review.
The changes were part of the Fair Work Commission
review panel's rectification of a number of inconsistencies with the
National Employment Standards, including clauses relating to taking annual
leave, sick leave and the amount of termination notice for probationary
employees.
No minimum
service for extra annual leave
The review panel – President Justice Iain
Ross, Vice President Adam Hatcher, Senior Deputy President Jonathan
Hamberger and Commissioners Michelle Bissett and Geoffrey Bull - held that
a number of awards "impermissibly required a minimum of 12 months'
service" before the entitlement to an additional week's leave for
shiftworkers in Fair Work Act s87(2)
accrued. These awards also "impermissibly provided the additional
entitlement accrued on a monthly and not daily basis". The bench
deleted one such offending clause from the Manufacturing and Associated
Industries and Occupations Award 2010 and said equivalent variations would
be made in other awards.
Easier access
to sick leave on holidays
The bench held the Air Pilots Award was
inconsistent with FW Act s89(2)
because it put two impermissible conditions on when personal/carer's leave
could be used during annual leave: that the employee had to be
"seriously ill"; and they had to be off work for at least seven
days. It replaced the clause with a condition that if the pilot "would
not be fit for work during annual leave because of a personal illness"
he or she could take personal leave, regardless of the duration.
Prior service
won't count without employer approval
The bench identified 11 awards in which an
employee's service with one employer counts as service with a
non-associated second employer in a transfer of employment, including the
Building and Construction, Food Beverage and Tobacco Manufacturing and
Timber Industry awards.
But they said the effect of FW Act s91(1)
was that in a transfer of employment, an employee's period of service
should not count for calculating annual leave entitlements if the second
employer decides not to recognise it. Accordingly, they removed the
offending provisions.
More notice for
probationary employees
The bench (above)
deleted a clause in the Horse and Greyhound Training Award which provided
that probationary employees would get one day's notice of termination for
each week of service, up to four days on the fourth week. They said this
was inconsistent with FW Act s117(3)
"because it prescribed shorter periods of notice of termination"
and it was "difficult to discern a justification" for the lesser
entitlement.
Further
proposed variations
The bench published draft determinations to vary
three awards which currently require 12 months' service before an
employee may take annual leave that has not yet accrued. It
proposed a requirement in the Hair and Beauty Industry Award that a minimum
of 48 hours' absence is required for carers leave be removed. (4 yearly review of modern awards –
alleged NES inconsistencies [2015],FWCFB 3023, 8/05/2015)
[3]
Former Australian Council of Trade Unions (ACTU)
assistant secretary Tim Lyons has announced he will research labour
markets, inequality and democratic institutions at progressive think-tank
Per Capita. Lyons announced his part time research fellow position on
Twitter today (May 29). Lyons resigned from the ACTU
in March after unsuccessfully challenging Dave Oliver for the top
job (WF 20/03/15).
Lyons told Workforce
"a lot has already been written about the causes of inequality"
so that aspect of his research would focus on "more practical things
in the Australian context to deal with it". "A lot of that is
about the way the labour market and tax systems work … and the role market
incomes have in inequality," he said. "I've spent 20 years
practically dealing with how the labour market works … and done a lot of
talking about the problems through the prism of an institution's policy
position." The new position would allow him to "state my own
views free of politics", he said. Lyons said he was "excited by
the opportunity". Per Capita executive director David Hetherington
said he was "delighted" to have Lyons join the think-tank to
"look at the big issues of work, inequality and democracy".
[4]
The Fair Work Ombudsman (FWO) has launched a
prosecution against a national security company for being an accessory to
subcontractor underpayments on the grounds it was aware the flat weekly
rate did not meet minimum entitlements. The prosecution is understood to be
the first time the agency has used the Fair Work Act's s550
against a principle contractor in the highly cost-competitive security
industry.
Security International Services (SIS) allegedly
engaged GRI Global to supply security guards as part of its contract with
Thiess to provide security for the Qld Curtis LNG project construction
sites.
SIS and GRI allegedly agreed to pay guards $21 an
hour, with one guard paid a flat weekly rate of $1,500 for working 12-hour
shifts, seven days a week, on a 21 days on, seven days off roster.
The FWO alleges this was not enough to cover the
workers' minimum award entitlements including penalty rates for night,
weekend, overtime and public holiday work and resulted in more than $11k in
underpayments. While GRI allegedly breached the workplace laws, the FWO is
also alleging SIS was culpable as an accessory because it knew the flat
rate was not enough to cover min award entitlements. It has also accused
GRI of sham contracting by misrepresenting to the worker he was a
contractor, not an employee.
Pay below
$24/hr likely in breach: FWO
FWO Natalie James said GRI had previously
underpaid employees more than $70k, which it had to reimburse. SIS and GRI
each face maximum penalties of $51k for each breach. SIS was not available
for comment and GRI did not return requests for comment before
presstime. James warned employers not to "turn a blind eye"
over worker payments if they engaged contractors to supply labour.
"Sometimes the lowest quote can have the highest cost if it ultimately
damages the organisation's reputation and exposes it to financial penalties
for being an accessory to contraventions of the FW Act." The FWO has
previously cautioned security services costing less than an average $24 an
hour will "likely" result in the employee being underpaid.
Later this year, FWO inspectors will audit
security companies providing services to local councils. James warned
councils procurement decisions could mean they breach workplace laws.
Industry
increasingly subcontracting out
United Voice Qld security industries coordinator
Damien Davies told Workforce
"unfortunately this situation is all too common in the security
industry these days". While "top-tier" companies paid
above-award wages, more and more of the "big" companies were
"going for the low-cost model", he said. Companies like SIS ended
up only providing "a bit of client liaison" and "on
site" management. The labour would be contracted out. But Davies
warned "you can't have multiple subcontractors in a contract where
100% of the costs is labour".
[5]
WFD:
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 associate 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 weremoving 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 Australian 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 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-compliance through 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 a
"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 as part of 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 over 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 for 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 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.
Expand
relevance beyond party politics
But Kaine (above)
argued labour laws should not just be 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 NSW ALP.
An edited version speech is available here.
[6]
WFD:
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 on 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
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
[our 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.
[7]
WFD:
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 on 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 peak union body's
six point charter of its 'Build a Better Future' campaign.
The campaign 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 on
the opening morning, May 26.
[8]
WFD
Comment: ACTU president Ged Kearney launched Congress this
morning boldly declaring "a contest of ideas is a sign of a healthy
movement".
It was "a contest of ideas" that
then-ACTU assistant secretary Tim Lyons had also cited as his reason to
challenge Oliver for leadership of the movement (WF 6/02/15).
Lyons, who announced his challenge in February,
called for a "much more aggressive agenda" and proposed an
"organising blitz" to grow the union movement (WF 20/02/15).
But by March, his challenge was snuffed out after
just a month of campaigning, and never threatened to gain enough votes to
win on the Congress floor (WF 20/03/15).
At press time Oliver, Kearney and assistant
secretaries Michael Borowick and Scott Connolly were re-elected unopposed
to their positions.
Organising is on the agenda at Congress, but
'rights at work' is just one point of the ACTU's unanimously-approved
six-point charter.
Instead, the movement has chosen to focus on
political rather than industrial demands, with proceedings focused on
reversing Abbott govt cuts to social services.
There were cries of "hear hear",
"shame" and chants of "stand up, fight back" from the
conference floor in response to debate over the charter.
But when the time came to vote, it became just a
photo opportunity to hold up a sign indicating unanimous support.
The congress was also the occasion for a bit of
political theatre.
The NSW Nurses and Midwives' Association staged a
mock-surgery to protest privatisation of healthcare: a campaigner in Tony
Abbott mask pretending to conduct chainsaw surgery on a patient – 'the
Australian economy' -- while Uncle Sam offered them $500 paracetamol.
Meanwhile, as incoming ACTU VP Sally McManus
claimed Abbott lied that Work Choices was "dead buried and
cremated", a zombie took to the stage to represent it was anything
but.
All good fun, and rousing for the delegates in
attendance.
But if there were a contest of ideas in the ACTU,
it is the one Lyons sparked but could not sustain to the Congress floor.
[9]
WFD:
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
on 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.
[10]
WFD:
The Australian Council of Trade Unions (ACTU) Congress has changed the peak
body's rules to increase the number of vice presidents (VPs) from five to
seven.
The VPs will be elected at the next ACTU executive
meeting.
Former Australian Services Union NSW secretary
Sally McManus is expected to win one VP position, after moving to the ACTU
to take on a campaigning role (WF 2/04/15).
However, it's not known who the other VP will be.
On Tuesday (May 26) Shop Distributive Allied
Employees Association (SDA) national secretary Gerard Dwyer was elected
senior VP, replacing his predecessor Joe de Bruyn.
Australian Workers Union (AWU) national secretary
Scott McDine withdrew his nomination for the senior VP position, reportedlydue
to the AWU's opposition to the ACTU $2 a member campaign levy (WF 27/05/15).
McDine told Workforce
Daily he will not seek a VP position.
Oliver plays
down levy dissent
The Australian
Financial Review reported that the AWU and Rail Tram and Bus
Union abstained from the May 27 congress vote on the increased
campaign levy due to their opposition to it.
The motion was carried on the voices.
On May 28 Oliver said "we didn't
hear any dissent [when the vote was taken] … the decision was taken, and it
is very clear this Congress has backed the [campaign] plan for the next
three years".
[11]
WFD:
Unions should run "radical" campaigns including sit-ins and
blocking roads to "misbehave" and hold corporate power to
account, according to the Transport Workers Union (TWU) NSW secretary
Michael Aird.
Aird made the comments at the Australian Council
of Trade Unions (ACTU) on May 26. He was one of the few delegates
to use their time on the floor to champion old-style industrial tactics,
with much of the focus of other speakers being the 'Build a Better Future'
campaign centred on political campaigning at the next federal election and beyond.
Aird told his fellow delegates the move to
enterprise bargaining in the early 1990s and continued in the Fair Work Act
had "broken down our solidarity".
"All the great union campaigns are not
enterprise campaigns – they are radical, or fought large," he said.
Aird cited United Voice's 'Big Steps' childcare
campaign, the equal pay campaign, nurse-to-patient ratios, the TWU's 'Safe
Rates' and the Textile Clothing and Footwear Union campaign to lift
employment conditions for outworkers.
Conservatives and the Trade Union Royal Commission
were "trying to make us think small and behave ourselves". But
Aird argued "we're unionists because we're all about
misbehaving."
He said the union movement "needs to think
more about being radical … our members are up for it, they understand
it". "Let's have sit-ins, let's block the roads. Let's take on
corporate power. Let's hold power to account."
Aird said "elements of the Labor party"
believed tax and welfare were sufficient to achieve fair distribution of
wealth. "You know what else is fundamental? Union jobs," he said.
Aird's comments follow TWU national secretary Tony
Sheldon last year saying
his union was considering a campaign of civil disobedience in the face of
Qantas job cuts with he and other union officials willing to be arrested (WF 17/04/14).
Collective
bargaining must reach marginalised workers: Ayres
The call to expand collective bargaining rights to
an industry level was backed by Australian Manufacturing Workers Union NSW
secretary Tim Ayres. He said the movement needed to help workers who are
"remote" and "haven't had the benefit of enterprise bargaining"
such as independent contractors, labour hire workers and those in the new
economy like Uber drivers. "What is our membership proposition for
people in the new economy? Or who can't access the instruments of the law
and the union movement?" "Our answer can't be 'more of the same,
more energetically'. More enterprise bargaining won't solve the problem for
these people".
[12]
WFD:
More women hold office at the top of unions than ever before but women are
still short of equal representation, holding just 40% of senior positions,
according to a report.
University of Sydney Associate Professor Dr Rae
Cooper presented a summary of her report into women in unions to the
Australian Council of Trade Unions (ACTU) Congress on May 27.
The report showed in women held 39% of secretary
positions of 21 unions surveyed in 2014, up from 30% in 2010 and 23% in
1999.
Women held 40% of all leadership positions
(secretaries, presidents, vice presidents and assistant secretaries), up
from 37% in 2010 and 28% in 1999.
But by some measures women's representation had
declined, eg their share of delegates at ACTU Congress had fallen from 49%
in a 2010 survey to 38% in the 2014 survey.
Women were more than half the unions' employees in
fields including campaigns (71%), support staff (66%), communications (60%)
and organisers (60%), but were less than half in industrial positions (46%)
and as directors (42%).
Cooper said that the vast majority of unions have
strategies to support and develop women's careers including sexual
harassment policies, family friendly work arrangements and equal access to
conferences and training for men and women.
In terms of representation of members, most unions
had mechanisms to ascertain women's priorities in bargaining and campaigns
(85%) and had standard bargaining clauses relevant to women (75%).
Cooper said the next steps to advance women in the
movement included:
·
more training and
mentoring;
·
organising
workplaces or sectors that are predominantly women;
·
pursuing issues of
importance to women in bargaining and campaigning; and
·
addressing
barriers to participation such as inflexible work arrangements and
workplace culture.
[13]
WFD:
Improvements to the social wage such as health, education and retirement
incomes will be at the centre of the Australian Council of Trade Union's
(ACTU) political campaign, secretary Dave Oliver has revealed.
In an interview with Workforce Daily, Oliver said the main
focus of its triennial Congress this week will be achieving endorsement of
the peak body's 'Build a Better Future' campaign to be rolled out "in
workplaces, online, in communities and marginal electorates" (WF
6/03/15).
Of the six points central to the campaign, five
are policies to be implemented by government, including improvements in the
social wage, ie:
·
universally
accessible healthcare;
·
highest quality
education;
·
decent public
services;
·
dignity in
retirement through the pension and superannuation system; and
·
"a fair go
for all, including cracking down on multinational tax avoidance".
The sixth point in the charter is "rights at
work". Oliver said "the main focus [of this point] is to stop the
Abbott government attacking penalty rates, minimum wages and impeding the
rights of workers to actively organise and campaign".
He said the ACTU had a positive agenda as well as
"stuff we're fighting against", eg expanding collective
bargaining rights to include multi-employer bargaining (WF
22/05/15).
"This will encourage collaboration rather
than confrontation in bargaining, allowing employers and employees to
engage at a higher level."
Oliver argued elements of the "social policy
ask" such as improvements in health and education were also
"industrial" in nature because "we do represent workers in
those particular industries".
Digital
platforms encourage 'lowest cost' work
Oliver reiterated his pledge made at the National
Press Club to set up a taskforce on how to represent workers in the 'liquid
economy' – digital platforms like Uber and Freelancer.com which treat them
as independent contractors (WF
8/05/15).
"Workers are bidding on ebay style platforms
for a parcel of work, where the work goes to the lowest bidder," he
said.
"How the hell do you regulate this? How do
you ensure [workers] are protected by minimum standards like super and
workers' comp?"
"This is a real challenge not only for our
movement but govts now and in the future," Oliver said.
ACTU reaffirms
boycott of 'political' TURC
Despite the Trade Union Royal Commission (TURC)
discussion paper flagging proposed anti-racketeering provisions and new
restrictions on who can hold union office (WF
22/05/15), Oliver was adamant the ACTU would not engage
with TURC.
"Our position is very clear - it's a
political witch-hunt," he said.
"If [TURC] wants our views on those matters
[in the discussion paper] – it can look at our website or the submission
we've made to legitimate bodies such as the Productivity Commission review
of workplace relations and Senate bodies."
[14]
WFD:
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 on 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", Shorten said.
"Labor has a plan to put these skills front
and centre – we want more Australians to study coding and computational
languages."
The country faces "massive change" as
$100bn of mining investment has dried up and Australia needed to plan for
future job growth, Shorten said.
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".
Shorten said Labor had put a submission to the
Fair Work Commission minimum wage case for the first time because it
recognised "the minimum wage is not too high, it's a fundamental
driver of dignity for people in this country".
He argued the government 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.
Labor fights
against visa exploitation: Shorten
Shorten (above)
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" in terms of exploitation of s417 visa workers by
providing a disincentive to pay them appropriately and "dooming"
them to a black market economy (WF 22/05/15).
[15]
WFD:
A construction company that used labour hire companies to distance itself
from its workplace obligations and entered into agreements to keep the
construction union "at bay" has been ordered to pay almost $300k
for breaches over underpayments and record-keeping.
The Federal Court penalty ruling - the first to be
made after a full court decision that held the parties cannot reach
settlements on penalties (WF
4/05/15) –ended up ordering penalties $30k larger than the
company had agreed with the Fair Work Building and Construction (FWBC)
director.
NSW subcontractor Foxville Projects Group – which
worked on the Park Hyatt and Gowings construction projects – failed to pay
employees leave and other entitlements over three years but mainly
from August 2011 to May 2012.
The FWBC's 2013 statement of claim
had pointed out that shortly before entering into a 2011 EA with the
Construction Forestry Mining Energy Union (CFMEU) Foxville stopped directly
employing its workers and started sourcing them from labour hire firm
Caiman.
However, Caiman was alleged to have no experience
in labour hire and had an issued capital of $10, no real property or
registered assets. Foxville allegedly directed the Caiman employees' work,
filled out timesheets, gave them payslips, and even paid them directly.
In October 2011, it shifted its labour
supply to a company called BSI Manpower, which had an issued capital of $2,
no real property or other registered assets.
By the time of the court hearing, Foxville and the
FWBC had come to an agreed statement of facts that it was the true employer
of the Caiman employees and concurred on penalties of $115k.
A FWBC claim the company had engaged in adverse
action by forcing workers to join the CFMEU was not pursued at court.
CFMEU EAs 'artifice' to keep union at bay
Considering penalties himself, Justice
Geoffrey Flick rejected a Foxville director's evidence it had engaged
Caiman because Foxville did not have the knowledge to properly manage the
employees. Instead, the judge concluded Foxville retained Caiman "in
an attempt to distance Foxville from its workplace obligations".
Justice Flick agreed with the FWBC that Foxville
had entered into EAs with the CFMEU "simply as an 'artifice' to keep
the CFMEU at bay" and to enhance the prospects of successfully
tendering for work. Yet Foxville had failed to comply with the EA
provisions. Evidence also suggested its failure to keep records was
"simply part of the means … by which contraventions could potentially
be obfuscated or made difficult to detect".
Penalty to
deter 'similar' labour hire conduct
Justice Flick rejected Foxville's arguments about
the "comparative innocence" of its breaches and found its conduct
fell at, or slightly above, the "middle of the range". He ordered
penalties totalling $145k. The $30k difference was largely due to his
emphasis on Foxville's failure to provide its largely non-English speaking
employees with a Fair Work Information Statement, for which FWBC and
Foxville had agreed on only $5k in penalties out of $33k max.
Ordering Foxville to pay $20k for the
breach, Justice Flick noted the requirement to provide such a
statement was "an important means to ensure employees are informed of
their rights".
"This may be seen as assuming even
greater importance where the workforce consists of many persons not fluent
in English," he said. "A failure to be made aware of one's rights
places an almost insurmountable obstacle in the path of those who may need
to exercise those rights."
The judge said even if the breaches were not
deliberate Foxville had "adopted a fairly cavalier attitude to its
workplace obligations". Further, even if Foxville had not deliberately
retained a labour hire company to distance itself from its workplace
obligations, it "nevertheless remains important to fix a penalty at a
level which serves to deter other employers from engaging in similar
conduct for that very purpose".
He ordered the penalties to be paid to 15
underpaid employees equally. He also ordered it to pay the employees
compensation and interest totaling more than $150k. (Director, Fair Work Building
Industry Inspectorate v Foxville Projects Group Pty Ltd [2015], FCA 492,
21/05/2015)
[16]
WFD:
Senator Jacqui Lambie has written to Prime Minister Tony Abbott and
Trade Union Royal Commission (TURC) Commissioner Dyson Heydon demanding to
see the confidential third volume of the TURC interim report, which she has
described as one of the most "explosive" documents in Australian
history.
The new push comes despite Cmr Heydon's initial
refusal to show it to senators, citing the threat it would pose to the
wellbeing of witnesses and their families.
On May 13, Lambie wrote a letter to Cmr
Heydon, seen by Workforce
Daily, asking whether TURC had read the Vic Government's
confidential report on criminality in the building industry by now Fair
Work Building Construction (FWBC) chief Nigel Hadgkiss. She also sought
access to the confidential third volume of the TURC interim report.
On May 14, Cmr Heydon responded
expressing gratitude for Lambie's interest in the cmn's work but refusing
to release the TURC third volume.
Cmr Heydon explained he had made an order
prohibiting publication of the TURC report, subject to exceptions including
that copies may be provided to TURC staff, the Governor-General,
PM, Department of Prime Minister and Cabinet, Ministers of the Crown, State
Governors and Premiers.
"It goes without saying that I am confident
that you personally would preserve the confidential status of the
report," Heydon wrote. "But I fear that any significant
dissemination of it would result in a destruction of confidence and create
the possibility of the danger to the physical wellbeing of witnesses and
their families." Cmr Heydon also revealed TURC did not have a copy of
the Hadgkiss report but was briefed on its content.
Report needed
to vote on ABCC: Lambie
On May 11, Lambie voted with the other
crossbench senators to extend the coercive powers of FWBC (WF
15/05/2015). But on May 14 in a Senate speech
Lambie reiterated her need to see the TURC confidential report before
deciding how to vote on the proposed reintroduction of the Australian
Building and Construction Commission.
Lambie described the report as "one of the
most important and explosive documents ever written in recent Australian
political history", citing its description in the interim report as
revealing "grave threats to the power and authority of the Australian
state". "Implicit in these words is a warning … that the very
authority of Australian govt is under threat by an unknown hostile
enemy," she said.
Lambie accused the govt of "deliberately
covering up" the TURC report and criticised the Napthine and Andrews
Vic govts for refusing to release the Hadgkiss report. Speculating on the
reasons for these 'cover-ups' Lambie said "it is likely that the
reputations of both major political parties, Labor and
Liberal, may be harmed if these reports were ever made public or
viewed by independent parliamentarians".
Proposal to securely
show secret TURC report
On May 19, Lambie wrote to PM Abbott and
Cmr Heydon. She asked the PM what the "grave threat" identified
by the report was, and who had been given access to it. Lambie proposed the
PM release the secret TURC report to all senators, adopting procedures to
protect the identity of witnesses. She noted the Defence Abuse Royal Cmn's
confidential materials in 'DLA Piper Volume 2' had been made available to
senators who signed a confidentiality agreement. They were then shown copies
without being able to take photos or notes.
[17]
WFD:
About 50 manufacturing workers were protesting outside Canterbury Windows
South Melbourne factory on May 28, after they were locked out
over a pay dispute.
The workers are seeking a 4% a year pay increase
over three years, with the company offering 1%, 2% and 2%.
The dispute came to a head on May 27
after the union withdrew a threatened eight-hour stoppage planned
for May 28 and a further four-hour stoppage for May 29,
only to see the company impose a lock out over both eight-hour shifts.
Victorian secretary of the Construction Forestry
Mining and Energy Union's forestry/furnishing division Frank Vari told Workforce Daily
negotiations with the company had "ground to a halt".
But Vari said workers were determined to see the
matter through, "lock out or not lock out".
Canterbury Windows general manager Paul Armstrong
told WF Daily
union withdrawal of threatened industrial action came too late for the
company, which had stopped deliveries in anticipation of the strike.
He claimed the company's workers already received
pay levels 25% better than the rest of the industry. "It is a tough
market and we're asking workers to recognise that by accepting what we
believe is an affordable increase."
[18]
WFD:
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 -but it refused the stop-bullying
application.
Despite the ambush, FWC refused an 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)
[19]
WFD:
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)
[20]
WFD:
Compensation in unfair dismissal cases is not a punishment for an
employer's poor practices, a Fair Work Commission (FWC) full bench has
ruled in upholding a refusal to award a unfairly dismissed worker any
compensation.
The bench upheld Commissioner Chris Simpson's
decision last year that found labour hire company Matilda Greenbank – which
did not appear at the hearing - had unfairly dismissed casual Deborah Kable
when terminating her contract on June 4, 2014 - three weeks
before its June 30 expiry.
Matilda had told Kable and other employees that it
no longer required their services since Puma Energy Australia had advised
it would be terminating its contract with Matilda early.
Cmr Simpson found the dismissal was not a genuine
redundancy as Matilda had not complied with consultation requirements, and
on further consideration found the dismissal unfair.
However, he concluded it would not be appropriate
to order compensation given Kable had been unfit for work
until June 16.
He found her employment would only have continued
for another four days - ie until June 8, the date the Puma
contract was terminated - and she had not suffered any loss from the
dismissal.
Kable appealed the compensation ruling, arguing
the cmr should have concluded her employment would continue
until June 30 and therefore she was entitled to two weeks' wages.
The bench – Vice Presidents Joe Catanzariti
and Graeme Watson and Deputy President Val Gostencnik – said there was no
appealable error and the cmr was correct in his conclusion.
"There was no evidence before the cmr that
[Matilda] could have continued to employ [Kable] in some other position
beyond June 8, 2014."
The bench said compensation was designed to
compensate for "losses reasonably attributable to the unfair
dismissal".
"Compensation orders are not designed to be a
form of punitive measure to punish perceived poor employment or business
practices of an employer," the bench said.
It refused permission to appeal, saying Kable's
real grievance was she was dissatisfied with the outcome of her
application.
(Deborah
Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015], FWCFB
3512, 22/05/2015)
[21]
WFD:
The Qld opposition has questioned the legality of Government plans to
provide public sector employees' contact details to unions under its new
union encouragement policy.
ThePalaszczuk govt has approved a union
encouragement policy
which:
·
allows
"employees full access to union delegates/officials during working
hours to discuss any employment matter or seek union advice";
·
encourages
employees to join unions;
·
provides employees
an application for union membership and information on their union at
induction;
·
grants paid time
off "to acquire knowledge and competencies in industrial
relations"; and
·
"subject to
privacy considerations" provides unions with details of new employees.
The policy warned "passive acceptance by
agencies of membership recruitment activity by unions does not satisfy the
govt's commitment". Rather, it required agencies "to take a
positive, supportive role although ultimately it remains the responsibility
of the unions themselves to conduct membership". On May 21
opposition leader Lawrence Springborg claimed the legality of the policy
was "in doubt". His comments followed an alleged statement by
Treasurer Curtis Pitt the personal information of new govt employees cannot
legally be sent to union bosses under its encouragement policy.
"[On May 20], Pitt refused to confirm whether a new govt
employee could opt-out of having their personal details provided to union
bosses," Springborg said in a statement. "[Now] he reveals the
policy, that demands personal details of public servants be sent to union
bosses, is apparently illegal."
Privacy
respected, only name, location revealed: govt
A spokesperson for Pitt told Workforce Daily he had
"confirmed that all new starters in the Qld govt are protected by
privacy laws". But he said the policy was not illegal because "no
private details are passed on … the only information that's passed on is
limited to a person's name and details about where they work".
The spokesperson said new employees would be
"clearly advised" that their name, workplace name and location
would be passed on."If an employee is contacted by a union
representative, they are free to join or not join a union as they see
fit. This policy gives them freedom of choice and freedom of
association," he said.
[22]
WFD:
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
4/10/13).
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.
Judge Simpson 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 Fair Work Act
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 breach under the DD Act occurred 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 the term "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."
Non-qualification
not relevant to awareness
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 (above) 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".
[23]
WFD:
Essential Energy has successfully appealed a Fair Work Commission (FWC)
decision limiting its ability to place senior and higher paid employees on
individual contracts.
On appeal, Essential Energy successfully argued
coverage under clause 1.3 of the company's enterprise agreement (EA) was
determined solely by whether an employee's base weekly rate of pay was in
excess of $2,589.75 a week. If it was, the worker was covered under an
individual contract; if not, the EA applied, a FWC full bench ruled.
Overturning an earlier decision by Senior Deputy
President Jonathan Hamberger, the full bench - Vice President Adam
Hatcher, DP Peter Sams and Commissioner Donna McKenna – found SDP Hamberger
erred in putting aside a literal construction of Clause 1.3 in favour of a
"common-understanding" approach supported by the Australian
Services Union (ASU). This approach raised the contract eligibility bar by
including a range of allowances and other additions in the salary
calculation equation.
The full bench agreed with Essential that the line
between those covered by the EA and those outside it was "expressly
drawn" by reference to the base weekly rate of pay at pay point 44.
There was "no available reading of that
expression which could equate it with total remuneration", nor was one
suggested, the bench found. "In relation to an employee required
by Essential Energy to work a 40 hour week, it cannot be the case, as the
unions suggested, that simply by paying a few dollars per week more than
the current $2,589.75 weekly rate for pay point 44, the person thereby
falls outside of the coverage of the 2013 agreement," it found.
(Essential
Energy v AMWU, FWCFB1981,
4/5/15)
[24]
WFD:
Casual cleaners at a major sports event company were short-changed by up to
two thirds of their hourly rate after the Australian Workers Union (AWU)
Victoria branch maintained an expired WorkChoices agreement that saved the
employer millions of dollars a year in wages.
The AWU agreed to keep the 2006 enterprise
agreement (EA) 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.
TURC senior counsel Jeremy Stoljar said it
appeared the AWU had entered a MOU and not an EA because the 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 deal 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 paid $41.44 an hour.
At the same time as the MOU the parties agreed to
a 'side letter' where Cleanevent would pay the AWU up to $25k a year in
'membership fees' and supply it with a list of cleaners' 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 for who it would pay membership fees at
"random".
Asked how he had known whether the members wanted
to join the union or not, Webber replied "I didn't."
In 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" deal 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 to Webber 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 within the Australian Labor Party (ALP).
That 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."
False
accounting serious offence
Stoljar (above)
questioned whether the fees were breaches of s287 of the Fair Work
(Registered Organisations) Act. He said 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 fees 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 made 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.
[25]
Committee
for Economic Development of Australia: 'Digital disruption
and Australia's future workforce'. June 16, Melbourne. More info here.
Australian
Workplace Relations Study conference, Fair Work Commission: June 25-26,
at University of Melbourne. More info here.
ALP
national conference: July 24-26, Melbourne. More
info here.
Australian
Mines and Metals Association: August 6-7, at Pan
Pacific, Perth. Speakers include Stuart Wood QC, Kate Carnell and Senator
Zhenya Wang. More info here.
[26]
Editor: David
Marin-Guzman, (02) 8587 7682, david.marin-guzman@thomsonreuters.com. ChiefJournalist: Paul
Karp. Journalist:
Steve Andrew. Managing
Editor: Peter Schwab. Product Code:314021719635.Twitter:
@WorkforceTR
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