Issue 19633
, Wednesday 27 May 2015
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In this issue
[1]
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".
[2]
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.
[3]
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) yesterday (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 sayinghis
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 17/04/2014).
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?" Ayres asked.
"Our answer can't be 'more of the same, more
energetically'," he said. "More enterprise bargaining won't
solve the problem for these people".
[4]
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 today (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.
[5]
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).
[6]
Editor: David
Marin-Guzman, (02) 8587 7682, david.marin-guzman@thomsonreuters.com. Chief Journalist: Paul
Karp. Managing
Editor: Peter Schwab. Twitter: @WorkforceTR
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