Issue 19631
, Monday 25 May 2015
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In this issue
[1]
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)
[2]
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.
[3]
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."
[4]
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.
The Palaszczuk 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 Thursday (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 Wednesday 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," Springbord claimed.
Privacy
respected, only name and 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.
[5]
Editor: David
Marin-Guzman, (02) 8587 7682, david.marin-guzman@thomsonreuters.com. Chief Journalist: Paul
Karp. Journalist: Steve
Andrew. Managing
Editor: Peter Schwab. Twitter: @WorkforceTR
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