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Subject:                          Executive Compliance News Public Sector 233: Treasurers says electricity EBAs intact; RET Bill politicking goes on; & More...


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Thomson Reuters Australia

Issue 233 , Friday 29 May 2015

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In this issue


Mandate employer PPL top-ups: ACTU



Samuel review urges Cbus to boost independence from unions


NSW announces DV pilot scheme



Court upholds Vic Police beard ban


Question is coming on constitutional recognition



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


No bias at funeral home



Women stuck at back of the bus


Disciplinary ambush not reasonable management action: FWC



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


Oliver unveils social wage wishlist



Qld opposition claims 'privacy' flaw in union encouragement clause


Federal parliamentarians to get bespoke compensation scheme



SA conciliation panel shaping up


PTSD a 'disturbing' issue for Vic emergency services: minister



Fears of 'physiotherapy dependence' founded: AAT


SA WorkCover extinguishes inactive claim



SA case law on review determinations clarified


Heavy alcohol consumption attributed to military service stress



Union plan to recruit school children


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



Lambie makes new push for 'explosive' secret TURC report


Rise in offshore oil leaks 'a serious concern', NOPSEMA CEO says



Quarry directors 'more culpable'


Vic EPA review starts June



Tas EPA leadership changes


Hunt go-ahead for Abbot Point EIS



Coral Sea protection increased


$US45m to retire Alcoa site



Draft CFI to ERF intentions released


Water commission abolished



Comcare prosecution sees landmark penalties, agency claims


Safety at risk as Comcare expands



UnionsWA and govt at loggerheads over number of work-related deaths


$20m for work violence prevention



Workers demand safety charter


Medical staff wellbeing declines



ATO emails target sickie increase


ACTU unit will organise affiliates' industrial campaigns: Oliver



Let's get radical: TWU NSW secretary


Australia must get ahead of automation curve: Shorten



Is your workplace OK?


Zero-tolerance drug policies to become the norm?



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


Bullying application rejected as was really an operational dispute: FWC



ACTU adds two vice presidents


ASIC comparison site 'waste of space'



Class actions 'intensify'


Court awards $659K for sexual assault



ASIC bans former MEL adviser


RET Bill politicking goes on



Most ERF abatement not new


ASIC updates carbon markets guide



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


USyd 'protest' professor keeps job



FWO investigates 'No Land Tax' party's failure to pay 1000s


Opp'n parties get local govt inquiry



Police oversight 'out-of-date'


Women stuck at back of the bus



Unions NSW to 'spit the dummy' against PPL reforms


Editorial team





Mandate employer PPL top-ups: ACTU

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

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

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

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

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

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

Strengthen bullying and adverse action claims

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

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

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

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

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

Regulate labour hire and supply chains: ACTU

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

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

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

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

More worker protections needed for strikes

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

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

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

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

Lift good faith bargaining requirements

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

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

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

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

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

'Last resort' arbitration for FWC

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

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

Unions to campaign on youth super

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

Other youth-oriented policies included:

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

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

FEG, modern award review and IFA changes

The ACTU also proposed campaigning to ensure:

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

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

·         abolition of individual flexibility agreements (IFAs).

(Source: Workforce 19625, 22 May, 2015)


Samuel review urges Cbus to boost independence from unions

Industry superannuation fund Cbus should reduce its "heavy" reliance on unions in collecting arrears and appoint more independent directors to counter a "culture of proprietorship" from sponsor organisations.

However, while the report found past Cbus practices had risked breaching privacy laws it said those practices had developed as a response to the serious problem of super non-compliance in the construction industry.

Professor Graeme Samuel with consultant Robert Van Woerkom made the recommendations in a report released last week in response to the Trade Union Royal Commission findings.

The royal cmn found senior Cbus members had secretly leaked private member contact data to the construction union in relation to Lis-Con.

The Qld construction company owed employees hundreds of thousands of dollars in super and was the target of a union industrial campaign.

Samuel's report – commissioned by Cbus - said the data leaks appeared to be the "rogue" actions of two employees and an "extreme extension" of past practices developed in Cbus of giving unions personal member data to collect arrears.

Indeed, the report said Cbus may now be too cautious about members' data, with coordinators adopting practices that "excessively err on the side of caution relative to what might be regarded as reasonable compliance with privacy laws".

While this reflected a "significant behavioural and cultural swing", Samuel warned "an unduly cautious attitude" may "hamper" coordinators' ability to carry out their duties and collect arrears.

Regulatory failure exacerbated reliance on unions

The report said a "large" number of builders saw super compliance as "more the exception than the rule", with some regularly "gaming the system" through "quite sophisticated techniques" to avoid detection of non-compliance.

Techniques included:

·         payment of salary sacrifice contributions but non-payment of super guarantee contributions;

·         payment of only part of the super amount so a payment still appears recorded; and

·         non-payment for up to three months, knowing alerts and collection will not occur until after that and in the meantime they gain a cash flow advantage.

The report said the Australian Taxation Office's lack of enforcement and the slow, bureaucratic processes of Cbus' external collection agencies exacerbated the reliance on unions for arrears.

The lack of regulatory effort took place in an industry beset with a "very itinerant" workforce, overseas 457 visa workers, sham contracting and a high level of bankruptcies and phoenix companies.

Unions have benefit of 'certain negotiating strategies'

As a result Cbus "relied heavily" on unions to alert it about non-compliance and "bring about that compliance".

"Unions have certain negotiating strategies that are not available to Cbus in the protection of members' benefits," the report said.

Samuel endorsed unions' role as the "canary in the coal mine" and said as unions pursue arrears under enterprise agreements their assistance in collection was "inevitable".

But he said the "deficiency in the process in the past has led to excessive reliance on external parties, including unions".

Cbus' modernisation of its processes post-leaks "will enhance significantly its ability to collect arrears" and reduce the need to provide personal info to unions.

"The likely outcome of the transformation of arrears processing will be to reduce the reliance on unions in assisting or providing an expedient process for collection of arrears on behalf of Cbus to exceptional cases." 

More diversity and independence needed

On Cbus' culture, Samuel said union and employer board directors seemed to "act cohesively with the common pursuit of the best interests of the members of the super fund".

But the board also "effectively represents a joint venture" between unions and employer organisations.

That "inevitably creates a culture of proprietorship" by the sponsor organisation".

"[T]hat proprietorship culture permeates through to impact in varying ways on those dealing with the organisation and in particular its employees," the report said.

The report recommended Cbus consider additional independent board directors – though not a majority – as an advantage to Cbus future governance "both internally and in its dealings with external parties".

In the case of Cbus member coordinators, the report noted some of their approaches had been influenced by their past or current union membership.

The report recommended a review of the coordinator section to assess whether a "more diverse background and expertise" would make it more effective.

Sub-committee considers indie directors

Cbus CEO David Atkin said the fund (above) "will continue to work closely with our sponsoring organisations, both unions and employers, who have a legitimate role in ensuring compliance with the payment of super across the industry". "But we will build our internal capability, modernise our arrears program to allow for pro-active identification of employers not doing the right thing, strengthen oversight and management of the processes in-house." Cbus was realigning roles across the fund, including by bringing in greater diversity and skills in its workplace distribution unit, he said. A sub-committee would explore how more independent directors could strengthen expertise and advantage operations.

Review may influence TURC 'culture' finding

TURC Cmr Dyson Heydon said the cmn would further investigate Cbus this year, including its culture and why its employees deceived the cmn about giving the union the private member data. In his interim report last year, Cmr Heydon appeared to support counsel claims of 'cultural corruption' at Cbus but accepted not finding should be made at this stage, saying the Samuel review may cast further light.

(Source: Workforce 19625, 22 May, 2015)


NSW announces DV pilot scheme

The NSW Government will pilot a Domestic Violence Disclosure Scheme (DVDS) enabling people to find out whether their partner has a history of domestic violence offending and it has released a discussion paper on its plan. On May 20, Minister for the Prevention of Domestic Violence and Sexual Assault Pru Goward said "the DVDS is another tool which the NSW Govt is using to tackle the scourge of domestic violence". The paper says the disclosure scheme "is based on research that demonstrates domestic violence is rarely a one off incident but is more commonly a pattern of abusive and controlling behaviour with the highest recidivism rate of any crime. In Australia, 65.1% of victims of current partner violence have experienced more than one incident". Goward said the DVDS allows people to make informed decisions about their relationships and safety, to seek assistance or undertake safety planning. The scheme will be piloted over two year in four areas in NSW and, if successful, could be rolled out statewide. The DVDS is similar to a United Kingdom initiative, Clare's Law.

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


Court upholds Vic Police beard ban

The Vic Supreme Court has rejected a bid by 16 police officers to overturn a ban on goatees, beards and soul patches in the Chief Commissioner of Police grooming policy by finding it discriminated against them and breached their human rights. Justice Greg Garde held the Chief Cmr had wide-ranging authority under the Police Regulation Act 1958 (PR Act) section 5 and amendments in 2012 exempted the policy from the Equal Opportunity Act. Justice Garde noted by 2011, Chief Cmr Ken Lay informed police officers he would be changing the policy due to community concerns about grooming standards and appearance. Chief Cmr Lay sent two emails to Vic officers setting out the coming policy changes, including the barring of most forms of facial hair. A third August 2012 email told officers they must comply with the grooming standards or lodge a complaint with the Vic Civil and Administrative Tribunal, and they would then not have to comply with the policy until their case was decided. Some 16 officers lodged complaints, one of whom was Michael Kuyken who had grown a goatee in 2004 when grooming standards had been altered to permit them.

A need for 'certainty and finality'

Justice Garde rejected Kuyken's argument the term "grooming standards" limited the Chief Cmr to ensuring officers appeared "neat and tidy". Justice Garde held, "adopting ordinary principles of statutory construction, that the intention underlying s 5 of the PR Act is clear and unmistakable". The police cmr "is to have wide power to set standards", he said and it empowered him to order them "to change, modify or remove the appearance" including of facial hair. "Parliament also clearly intended that the Chief Commissioner's determination as to these matters may be discriminatory in the sense that standards may differ, or turn, on attributes such as sex, gender, identity, physical features, religious beliefs or activities." Justice Garde rejected the Chief Cmr's submission that as Kuyken's original claim before the VCAT had not raised whether the PR Act breached the Human Rights Charter's protections from discrimination the court should not consider it. "It is desirable for all concerned that certainty and finality be given to the construction of s5(2)of the PR Act," Justice Garde said. Otherwise Kuyken or another office would simply lodge another complaint before VCAT. He noted the 2012 amendment bill "was passed in the context of an ongoing dispute between the plaintiff and fifteen other members of Victoria Police and the Chief Cmr," Justice Garde said. "It was the intent of Parlt to authorise the imposition of grooming standards even if they were discriminatory as to an attribute under s6 of the EO Act, or infringed upon the human right to have equal and effective protection against discrimination under s 8(3) of the Charter." He dismissed the claim. (Kuyken v Chief Commissioner of Police [2015],VSC 204, 14/05/2105)

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


Question is coming on constitutional recognition

Battlelines are forming over the constitutional recognition of Indigenous Australians, with a poll suggesting 75% of Australians would support it, a conservative MP saying it is racially divisive and doomed to fail, and Indigenous, human rights and political leaders meeting to discuss the referendum question. Australia could know the form of that question as early as next month even though the vote itself is possibly two years away, Attorney-General George Brandis has said. Brandis said the Joint Standing Committee chaired by Ken Wyatt is due to deliver its report on the question's form next month before Prime Minister Tony Abbott meets Indigenous leaders to discuss it, at a meeting to which he has invited Opposition leader Bill Shorten. Brandis said he had not heard Liberal Senator Cory Bernardi's comments the constitutional recognition question was racially divisive and doomed to fail but was not concerned by them. "It's in the nature of a conversation that different people will bring different views to the table and we have not settled on the final form of the referendum question. I'm on the record as saying that I think that we should be relatively modest in our aspirations here because anything that is too radical is going to frighten public opinion away and the referendum would fail." However, a May 18 referendum poll by advocacy group Recognise found 75% of all Australians and 87% of Aboriginal and Torres Strait Islander people would have voted yes if a referendum were held on that day. That included a majority in all states (the hurdle for constitutional referendums to succeed) and two-thirds of Liberal voters. Polity Research conducted the survey, polling 2,700 voters from the wider community and 750 Aboriginal and Torres Strait Islanders. Recognise is part of Reconciliation Australia and is supported by a range of organisations including Telstra, Qantas and Sodexo

Can constitution accommodate rep body?

Brandis was speaking on May 21 after an Indigenous Leaders Roundtable in Broome convened by Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda and Human Rights Commissioner Tim Wilson. The roundtable discussed the proposal by Cape York Institute's Noel Pearson to create an Indigenous representative body to provide advice on proposed laws that impact Aboriginal and Torres Strait Islander people. The Institute had sent the proposal to Wyatt's cttee for consideration (here and here). Brandis would not be drawn on Pearson's proposal or Sydney University constitutional law Professor Anne Twomey's suggestion on May 20 of how the constitution could be changed to accommodate it. Wyatt's Constitutional Recognition committee is to report on the referendum question by June 30.

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

Improving economic benefits of native title

Meanwhile, the Indigenous leaders roundtable has called on the Govt to work with Aboriginal and Torres Strait Islanders about "pursuing economic development on native title land". "This is an unprecedented meeting of Aboriginal and Torres Strait Islander leaders to tackle the challenges facing our communities once native title determinations have been made," Gooda said. "Property rights are central to human rights because they underpin the autonomy and security of individuals and communities," Wilson said. Attorney-General George Brandis said "it's important to think of it as a property right so that members of Indigenous communities can get the economic benefit and the economic independence out of the native title system that it hasn't been perfectly good at producing for them so far".


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

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

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

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


No bias at funeral home

A woman has lost a marital/de facto relationship status claim after a tribunal rejected her allegation a funeral parlour director fraudulently recorded her deceased partner was married so his ex-wife could access his estate. "There is no proper basis for such a serious allegation," NSW Civil and Admin Tribunal (NCAT) Deputy President Magistrate Nancy Hennessy said. Emmeline Asquith, the deceased's father and a friend of the deceased had all gone to Parkview Funeral Home on December 6, 2013, two days after the man died. The deceased man's father had signed the contract engaging Parkview and the Death Information form, and paid for the funeral. The tribunal accepted it was because of this that Parkview did not help Asquith claim funeral expenses from the insurer and refused to give her the ashes and the death certificate. It refused to change the Death Registration to note a change in the marital status because it had already completed an electronic lodgement of the form with the Registrar of Births Deaths and Marriages. Magistrate Hennessy noted "following a decisionof this Tribunal in Asquith v Registrar, NSW Births, Deaths and Marriages [2015], the Registrar has amended the deceased's Death Certificate to record that Ms Asquith was the deceased's de facto partner at the time of death". (Asquith v Bluehills 7 26 15 Pty Ltd [2015]NSWCATAD 73, 14/04/2015)

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


Women stuck at back of the bus

Women still have a long way to go to ensure equal representation in the male-dominated rail and bus industry, Rail Tram and Bus Union (RTBU) NSW representatives have told a national conference. Only 8% of State Tranist Authority, 16% of Sydney Trains and 24% of NSW Trains employees are female, the biannual Wimdoi – Women in Male Dominated Occupations & Industries – Conference heard. Five RTBU NSW representatives attended the conference in Sydney. It attracted women from industries ranging from construction and transport to correctional services, maritime, firefighting and mining.

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


Disciplinary ambush not reasonable management action: FWC

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

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

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

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

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

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

Employer patient in face of worker's inflammatory emails

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

Fragmentation of employment relationship

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

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

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

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

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

Impact of other areas of regulation on IR

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

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

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

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

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

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

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

Politicisation of labour law

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

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

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

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

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

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

Labour law failure sparks quest for alternative

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

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

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

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

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

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

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

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

An edited version speech is available here.

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


Oliver unveils social wage wishlist

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 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."

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


Qld opposition claims 'privacy' flaw in union encouragement clause

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.

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


Federal parliamentarians to get bespoke compensation scheme

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

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


SA conciliation panel shaping up

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

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


PTSD a 'disturbing' issue for Vic emergency services: minister

Vic health minister Jill Hennessy has told Vic's Public Accounts and Estimates Committee the state had "a significant issue around post-traumatic stress disorder (PTSD) in our emergency services, but particularly among the paramedic population". On May 13, she said that was "an issue the policy and performance ctee [is] investigating, but we are also doing some data throws and comparisons around things like suicides, anxieties, WorkCover claims and those issues to compare them with analogous workforces, both nationally and internationally". Hennessy said "early observations are quite disturbing, that we have a really significant issue around PTSD". "We often think about PTSD as being a response to a horrific tragedy that a paramedic may have to respond to, but just like many other workforces, sometimes it is the slow burn of working in a career, of observing awful tragedies, that has a particularly challenging impact."

The Vic Budget allocated $1.33m to improve peer support and access to chaplains, Hennessy said. "But I do not also kid myself that will be the silver bullet for these very challenging issues. It is very interesting, having attended many of those forums in the community, that often it is the wives or partners of paramedics who will come up to me after a forum and just talk about what they observe at home, and what they observe is the slow burn for paramedics who had been in the workforce for a long period of time," Hennessy said. Fatigue was also a significant issue, she noted. "Many ambulance stations have rest beds, but none of them have been laid in. One of the other issues that paramedics talk about constantly is fatigue. So you have got the growth in demand that is occurring in our ambulance system, partly driven by other challenges in the health system whereby people then rely on ambulance services."

Other issues like an ageing population and general population growth were all "contributing to a demand which means that our paramedics go out and come back, they go out and they come back, and there is absolutely no time for downtime, and when you are working a 14-hour shift, that is really significant", she said. Hennessy told the ctee there was "a significant musculoskeletal injury rate within the Ambulance Vic workforce, and we have spent enormous amounts of money training our paramedics". Hennessy said the other issue around musculoskeletal rates was "this amazing demographic change occurring within our paramedic workforce".

Women edge out men in graduate intake: Hennessy

Hennessy (above) said that in the last graduate intake there were almost 60% of women. That also meant "we need to think about what are the ways in which we better support that workforce not just in terms of the capital equipment but one of the issues we were talking about before – improving the culture or modernising the culture," she said.

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


Fears of 'physiotherapy dependence' founded: AAT

Fears a former Australian Postal (Post) Corporation worker had become dependent on physiotherapy for symptomatic relief has prompted the Administrative Appeals Tribunal (AAT) to suggest more "self-management". Post employed Zahra Bayani from 1980 until 2012 (with two years off in between) when she accepted a voluntary redundancy package. She held several positions, initially as a mail officer, a van driver, supervisor and eventually performing administrative work. Bayani sustained neck and left-shoulder pain as a consequence of events that occurred during her employment. But she challenged a reviewable decision made on June 12, 2013, that denied the costs of ongoing physiotherapy treatment and a 12-month gymnasium program. Post's review officer affirmed the decision concerning the gymnasium program but varied the determination to accept liability to meet the costs of Bayani attending a physiotherapist, restricted to three sessions over one month, to encourage and empower Bayani to self-manage her injuries by a home exercise program. Bayani, who was unrepresented in the hearing, contended she was entitled to compensation payments from Post to meet ongoing physiotherapy treatment costs and the 12-month gymnasium program that she said would strengthen her muscles, give greater mobility and reduce her pain. Post did not contest Bayani suffered from neck and left-shoulder pain. The incidents, which arose out of or in the course of the employment and which Bayani contended were responsible for her pain, were also not in issue. Senior Member (SM) John Handley was "satisfied the physiotherapy treatment and a 12-month gymnasium program can be embraced by the definition of medical treatment under the [Safety, Rehabilitation and Compensation (SRC) Act 1988]". Whether Post had a liability to meet the cost of it was a separate issue, he said. Looking at case law such as Rope v Comcare and Comcare v Holt, SM Handley was satisfied Post's reviewable decision, in so far as it refused liability to meet the cost of a 12-month gymnasium program, should be affirmed. The remaining part of that decision, namely Post's acceptance of liability to fund the cost of three sessions with a physiotherapist within a one-month period to instruct, encourage and empower Bayani to self-manage her injuries should also be affirmed. "At the risk of stating the obvious, I am satisfied [Post] does have a liability to meet the cost of that process, it being therapeutic treatment because it will be conducted under the supervision of a physiotherapist and it will have the purpose of alleviating [Bayani's] injuries." SM Handley said Bayani had engaged in physiotherapy treatment for many years but without any alleviation of her injuries. "At best, those consultations have done no more than provide her with temporary reduction in her levels of pain and minimal but temporary increases in mobility and independence." He said it was "very unfortunate" there had not been recognition by her practitioners she had "become dependent on them rather than them directing her focus towards appropriate and competent instruction of appropriate self-management strategies". "For her to undertake self-management will require a refocus of responsibility and a willingness to be instructed and subsequently practice and implement appropriate strategies as determined by a competent physiotherapist," SM Handley said. (Bayani v Australian Postal Corporation [2015], AAT 342, 19/05/2015)

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


SA WorkCover extinguishes inactive claim

SA WorkCover has secured an application to strike out an injured worker's notice of dispute because of "sufficient inactivity" associated with the alleged psychiatric injury claim. On February 21, 2014, Catherine Henstridge submitted a claim for compensation for an alleged psychiatric injury for "acute stress and anxiety from conflict at work". It identified the date as January 10, 2014. On April 10, 2014, Employers Mutual Ltd (EML) rejected the claim because it said Henstridge had not suffered an injury. But on May 15, 2014, Henstridge lodged a notice of dispute challenging that rejection with SA Unions' help. The matter was referred to EML to reconsider but its decision was confirmed. The matter was then listed for a conciliation conference on August 22, 2014. The conference was adjourned twice.

Then on October 31, 2014, the SA Workers Compensation Tribunal (WCT) was advised Henstridge had instructed SA Unions to concede the dispute. EML's consent orders were sent to SA Unions and on December 5, 2014, SA Unions advised EML Henstridge had withdrawn her instructions.

The WCT re-listed a conciliation conference but Henstridge failed to attend. EML then filed the want of prosecution application.

SA Unions advice 'likely ended matter'

WCT Deputy President (DP) Judge Brian Gilchrist said it was likely SA Unions' advice that Henstridge had instructed it to concede the dispute ended the matter and the tribunal was entitled to act on that advice and dismiss the notice of dispute. "That is not, however, the ground upon which this order is now sought. It is grounded upon the assertion that there has been a want of prosecution." On that basis, and given case law in WorkCover v Nonkovic, there were grounds to dismiss the notice of dispute. "It is sufficient to say that what is involved here is a general discretion and, [while] that discretion is unfettered, significant factors to be considered are the length of the delay, the explanation for the delay, the hardship to the worker if the action is dismissed [and] the prejudice to the compensation authority."

DP Gilchrist said there was "nothing to suggest anything untoward about EML's conduct. Given the delay it has plainly been prejudiced". He said it was hard to measure the prejudice Henstridge "will suffer because on one view she has already conclusively conceded the dispute". Even if she had an arguable claim, DP Gilchrist said there had "been a sufficient level of inactivity on [Henstridge's] part to warrant the grant of the order sought". He dismissed the notice of dispute for want of prosecution. (WorkCover (Uniting Care Wesley Adelaide Inc) v Henstridge [2015], SAWCT 14, 30/04/2015)

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


SA case law on review determinations clarified

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

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

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

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

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

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

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

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

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

Reade 'did not fall into category' for work capacity

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

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



Heavy alcohol consumption attributed to military service stress

Stressful incidents such as being strafed by enemy aircraft in New Guinea during WWII contributed to a veteran's alcohol consumption, the Administrative Appeals Tribunal (AAT) has found. AAT Senior Member (SM) Bernard McCabe and Member Dr Marian Sullivan found that consumption contributed to hypertension that preceded a stroke and the onset of a heart condition that was listed as his cause of death. The AAT set aside a Repatriation Commission (RC) decision to find Clifford Winter's death was war-caused and his widow, Bernece Winter, was entitled to a widow's pension under the Veterans' Entitlements Act 1986. Mrs Winter claimed her husband became a heavy drinker during his military service in the Pacific. Winter died on December 29, 2011. Winter, then aged 18, enlisted in the militia on February 9, 1939. He rendered operational service in the Army in the south-west Pacific between Dec 1941 and Dec 1944. Mrs Winter said in her oral evidence Winter told her he and other members of his unit had a still which they used to make alcohol when they were based in New Guinea. SM McCabe and Member Sullivan acknowledged Winter wrote in his alcohol questionnaire for the Department of Veterans' Affairs he drank because of "mateship". But Mrs Winter insisted his drinking was a response to the stresses associated with his war service. SM McCabe and Member Sullivan said there was no dispute Winter was a regular drinker after he returned from overseas. Mrs Winter recalled her husband stopping by a hotel every afternoon following work when he returned to civilian life. She said he would arrive home in time for dinner, smelling of alcohol. He would often slur his words. He preferred to drink beer but also drank fortified wine. Mrs Winter recounted how her husband would acquire flagons of port and drink directly from the bottle. Mrs Winter said in her oral evidence he consumed about three flagons of port each week over a long period in addition to his daily beer consumption. She said Winter continued that level of consumption until he had a stroke in 1998. The RC conceded at the hearing Winter was consuming in excess of 300g of alcohol each week before the stroke. SM McCabe and Member Sullivan said the Statement of Principles (SoP) on ischaemic heart disease and the SoP on aortic stenosis referred to the presence of hypertension at the time of the primary condition's onset. The SoP on hypertension referred to consumption of "an average of at least 300 grams of alcohol per week for at least the six months before the clinical onset of hypertension". Ultimately, SM McCabe and Member Sullivan were reasonably satisfied by cardiologist Dr Kenneth Hossack's evidence that Winter was experiencing hypertension, for the purposes of the SoP, in 1998. They acknowledged Hossack's evidence the "anatomical position of [Winter's] cerebrovascular accident in 1998 is classically associated with hypertension". Winter's subsequent cardiovascular pathologies were also consistent with long-standing hypertension. "We should emphasise we are actively persuaded [Hossack] is right: his careful analysis of the evidence demonstrates it is more likely than not [Winter] was experiencing hypertension within the meaning of the relevant SoP when he experienced a stroke in 1998 – and when he was still consuming at least 300g of alcohol per week." SM McCabe and Member Sullivan did not think "there is any sufficient ground for concluding, beyond reasonable doubt, [Winter starting] a long-term pattern of heavy drinking was not associated with the circumstances of his service". (Winter v Repatriation Commission [2015], AAT 350, 21/05/2015)

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


Union plan to recruit school children

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

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

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

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

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

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

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

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

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

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

Unions need numbers not just strategy: delegate

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

The charter was adopted unanimously by Congress this morning.

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


Lambie makes new push for 'explosive' secret TURC report

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.

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


Rise in offshore oil leaks 'a serious concern', NOPSEMA CEO says

A 25% increase in uncontrolled hydrocarbon leaks in Australian waters over the past two years was a "serious concern" and a fall in the oil price no excuse, head of the national offshore oil & gas watchdog says.

The National Offshore Petroleum Safety and Environmental Management Authority's (NOPSEMA) latest offshore performance report showed most leaks in Commonwealth waters were in the lower category (1-300kg).

But the jump from 20 leaks in 2013 to 25 in 2014 was a "serious concern due to the risk of ignition and potential safety and environment consequences", NOPSEMA CEO Stuart Smith said.

"Anecdotal evidence from other jurisdictions internationally suggests industry maintenance performance often drops around four to six months after a large fall in the oil price," he said. There was no evidence "of a correlation in Australia with the current downturn in prices" but "duty holders should keep in mind that any changes in processes made as a result of reduced budgets should not compromise safety and environmental outcomes in any way", Smith said. NOPSEMA would continue to monitor the issue, he said.

While most uncontrolled hydrocarbon releases were in the lowest mass category, the rate per 100m barrels of oil equivalent was consistently higher than the reported international regulators forum (IRF) average, the report said. Most occurred at fixed platform facilities.

Of the 25 releases, 13 were at normally attended platforms, six were from floating production, storage and offloading vessels, four were at "not normally attended" platforms and two were from pipelines.

Six hydrocarbon vapour releases were due to flares being extinguished. Other causes included a crude oil leak from a subsea pipeline, well fluids leaking from a subsea control module and leaks of petroleum-based liquids or gas from topside equipment. The report said while environmental impacts from the releases were not significant, they showed a need to improve prevention measures.

'Ageing facilities need robust management'

The data suggested "a significant number of unplanned events occurred on ageing facilities", Smith said. Deficient preventive maintenance, the second largest cause of occupational health and safety (OHS) incidents in 2014, also had "the potential to create environmental impacts, as has been seen with unplanned hydrocarbon releases from ageing pipeline infrastructure".

Ageing facilities placed an increased burden on project resources and often required more maintenance and repair, he said. "It is crucial that operators of aged or ageing facilities ensure that integrity management systems and processes are applied robustly together with regular audits to ensure their continued quality and effectiveness," Smith said.

In 2014, NOPSEMA did 146 inspections covering 202 facilities, titles, wells and petroleum activities. Its environmental assessment time frames were reduced by 40% due to higher quality titleholder submissions and regulatory amendments, the report said. Smith said environmental management inspections would increase in 2015.

A total of 119 petroleum activities were authorised through accepted environment plans in 2014, 38% down from the 192 authorised in 2013, the report said.

Of those approved last year, 42% were production facilities or pipelines, 19% were activities like repairs to subsea installations, production cessation and non-production phases before decommissioning, 16% were drilling activities, 14% were seismic surveys, 7% were geophysical or geotechnical surveys and 2% were construction activities.

In December 2014 the Federal Government tabled a Bill to dramatically expand NOPSEMA's jurisdiction to streamline regulatory arrangements. (EM 09/12/14).

(Source: Environmental Manager 1002, 26 May 2015)


Quarry directors 'more culpable'

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

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

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

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

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

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

(Source: Environmental Manager 1002, 26 May 2015)


Vic EPA review starts June

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

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

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

(Source: Environmental Manager 1002, 26 May 2015)


Tas EPA leadership changes

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

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

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

(Source: Environmental Manager 1002, 26 May 2015)


Hunt go-ahead for Abbot Point EIS

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

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

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

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

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

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

GBR reg change to formalise dredge backflip

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

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

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

(Source: Environmental Manager 1002, 26 May 2015)


Coral Sea protection increased

Roughly 12% of the Coral Sea will be covered if the Federal Government expands the Great Barrier Reef (GBR) and Torres Strait "particularly sensitive sea area" (PSSA).

The International Maritime Organisation (IMO) had agreed to the proposal to protect the south-west Coral Sea, which expanded the PSSA from 403,000km2 to 958,000km2, the govt said. Designation as a PSSA covered areas with "significant ecological, socio-economic or scientific attributes [that] may be vulnerable to damage by international shipping", the govt said. The GBR was declared the world's first PSSA in 1990.

About 430 ships navigate the PSSA waters annually, with certain areas deemed challenging because of reefs, cays, islets, sandbars and shoal patches. There are 341 species listed for conservation in the area.

There will also be three new associated protective measures (APM) to support the PSSA, a new area ships must avoid and with supporting two-way routes. They would enhance ship safety, reduce the risk of groundings and allow more time for intervention in developing situations like a ship suffering a mechanical breakdown.

Deputy Prime Minister and infrastructure and regional development minister Warren Truss said the move showed the govt was implementing measures outlined in the north-east shipping management plan released in October 2014. It's expected the PSSA measures will come into effect in June and the APMs in January 2016.

(Source: Environmental Manager 1002, 26 May 2015)


$US45m to retire Alcoa site

Alcoa of Australia Ltd says closing and rehabilitating its Anglesea coal mine and power station on August 31 will cost up to $US45m.

In February 2014 Alcoa put the plant up for sale but when it didn't sell the company decided to close the entire operation in August. The Anglesea power station had previously supplied 40% of power for the Port Henry aluminium smelter in Geelong which closed on August 1, 2014.

An Alcoa spokesperson told EM discussions with the Vic Government on rehabilitating the site were ongoing. The company expected restructuring-related charges for asset retirement obligations and environmental remediation would be about $US40-45m, he said.

Vic energy and resources minister Lily D'Ambrosio told EM "Alcoa is responsible for the rehabilitation of the site and there are a number of regulatory measures that ensure this". Alcoa would prepare a mine rehabilitation plan for the govt's "earth resources regulator" within Vic's new economic development, jobs, transport and resources department. The Vic Environment Protection Authority would regulate the power station site's remediation. Rehabilitation was "not a quick process", D'Ambrosio said. "Work is expected to take a number of years to complete, following closure at the end of August 2015."

Alcoa's spokesperson said the company didn't have any long-term plans for the site. "We will work through the details of the decommissioning and rehabilitation plan over the coming months in consultation with the relevant govt authorities."

(Source: Environmental Manager 1002, 26 May 2015)


Draft CFI to ERF intentions released

It's been proposed nine carbon farming initiative (CFI) determinations covering agriculture, vegetation management & landfill and alternative waste treatment be updated and shifted to the emissions reduction fund (ERF) from July 1.

Methodology determinations on using covered anaerobic ponds and engineered biodigesters to destruct methane generated from dairy cow manure and piggeries are among those targeted. So too are determinations on reducing greenhouse gas (GHG) emissions, managing regrowth of native forests, measurement-based methods for new farm forestry plantations, sequestering carbon in soils and using environmental or mallee plantings for reforestation.

The federal environment department last week sought submissions by June 2 on its proposals to update CFI "transitioning methods". It would ensure all transitions methods "are consistent with the ERF legislation, easy to use and more streamlined", the dept said. The proposals were foreshadowed in an energy white paper before the Federal Government's first auction of Australian carbon credit units in April.

A draft explanatory statement issued under environment minister Greg Hunt's authority said the carbon credits (CFI-ERF) methodology determination variation 2015 would make "minor" amendments. The dept consulted the Clean Energy Regulator in developing the variation.

Proposed amendments were "primarily" to ensure CFI determinations continued to operate as "originally intended" in light of changes made to the Carbon Credits (CFI) Act 2011, the statement said. They were also aimed at ensuring there were "no unintended consequences for eligible offsets projects wanting to apply the determinations".

It's proposed 17 other CFI determinations will be revoked because new methods covering the same activities have "superseded" them. The dept said existing projects "will not be affected or disadvantaged". Projects could continue to use methods in place when they were registered or transition to a new method "if more advantageous".

(Source: Environmental Manager 1002, 26 May 2015)


Water commission abolished

A year after the Federal Government moved to abolish the National Water Commission by axing its funding in the 2014-15 budget, a National Water Commission (Abolition) Bill was passed by Parliament on May 14. The Bill transferred the commission's key responsibilities to the Productivity Commission (PC).

(Source: Environmental Manager 1002, 26 May 2015)


Comcare prosecution sees landmark penalties, agency claims

Transpacific Industry Pty Ltd faces paying $363,000 for occupational health and safety (OHS) breaches plus costs in a prosecution result Comcare has labelled a "first" on two fronts.

In a May 22 media statement, Comcare said the penalty was the largest against an employer "as a result of a single court proceeding" by the regulator. It was "also the first time" multiple breaches of Commonwealth work health and safety laws "have been found against an employer in regard to an ongoing risk to health and safety", Comcare said.

Earlier on May 22, Federal Court Justice Michael Barker held Transpacific liable for two civil financial penalties after a fatal incident in Perth in February 2011 and subsequent truck safety maintenance system failures in April and May 2011. He said Comcare and Transpacific had agreed on a declaration for two OHS breaches in each of four time periods. But they disagreed on the range and number of penalties that should be imposed. Comcare had sought four separate penalties at the "upper end of the range". Conversely, Transpacific had contended the "objective seriousness" of its offending should be considered at the "lower end of the range" and that the financial penalty imposed "should reflect that". Transpacific said its conduct on Feb 28, April 2-19, April 21-May 8 and May 10-13, 2011, was "quite clearly" the same as it failed to "do the same things". It had taken steps to prevent further contraventions since the events subject to the proceedings.

Comcare lodged the single court proceeding in December 2013, 22 months after a Transpacific Cleanaway garbage truck collided with a Ford van then a Kia Rio wagon in Caversham (OHN 22/01/14). Wagon driver Mary Louise Ross, 71, died as a result of injuries she sustained and van driver Susan Michelle McMerrin was injured. Justice Barker said McMerrin wasn't seriously injured but suffered ongoing neck pain. Transpacific owns the Cleanaway business and the Iveco Acco truck that was serviced seven days before the Feb 28, 2011, collision. The company admitted the "substance" of Comcare's case but raised issues of fact. That was after it initially filed and served a defence on Feb 21, 2014, in which it denied alleged breaches of the OHS Act 1991. Three mediations in April, September and November 2014 preceded an agreed statement of facts between the company and Comcare. The statement said Transpacific employee driver Aaron Meotti applied the truck's brakes after a sedan travelling in front of him "swung around very quickly and, without warning or indicating", veered to the left of the road to pass the stationary Ford van. Meotti when he saw the van believed there was insufficient room for him to pass the van safety on its left without colliding with a light pole and a stabiliser post that supported a second pole. He immediately applied the service brakes and the truck's four rear wheels "locked up" and stopped rotating. The two front wheels did not lock up and the truck skidded before colliding with the van's right-hand rear corner and continued to skid into the lane of oncoming traffic where it hit the front right-hand corner of Ross's wagon. The truck skidded a total 60m before it hit the wagon.

Brake defects not identified

Justice Barker said Meotti was driving the truck at 65-70kph on part of West Swan Road that had a 70kph speed limit. He was driving the truck about two car lengths behind the sedan that was travelling at about the same speed. Meotti was not charged with any offence arising from the incident. Transpacific had Meotti assessed by a doctor before giving him two weeks' leave from work. On his return it paired Meotti with another driver for several days before he resumed normal duties. Transpacific accepted the brake defects existed on Feb 28, 2011, but submitted there was no evidence they were there when the truck was last serviced on Feb 21, seven days earlier.

Roadworthy despite brake troubles

The company (above) accepted three of its mechanics when separately servicing the truck on April 1 and 20 and May 9, 2011, didn't identify or rectify the brake defects. The three services were conducted on the truck after WA transport department vehicle examiners on March 28 passed it as a roadworthy, "although it still had the brake defects", after accident damage to its front was repaired. Justice Barker said the examiners "did not report the brake defects to Transpacific". On May 9, WA police informed Comcare the truck's front brakes had been defective at the time of the fatal incident. On May 13, Comcare issued an improvement notice to Transpacific requiring it to ensure all brakes on its heavy vehicles were serviced and operating in accordance with the manufacturer's instructions. The next day a Transpacific mechanic identified and rectified the brake defects on the truck Meotti had driven on Feb 28. After taking all relevant factors into account, Justice Barker said he would order Transpacific to pay a $181,500 fine for the Feb 28 breaches listed in declaration 1 because they comprised "one course of conduct". That was 75% of the maximum $242,000 penalty. Similarly, he was satisfied Transpacific's breaches in May, April and May after the fatal incident that were listed in declarations 2-4 were "one continuing contravention". He accepted there was a "systematic servicing problem in this regard,as there were three separate mechanics on three separate occasions who failed to identify any faults". Justice Barker accepted Comcare's submission there was a "less than adequate supervision system in place". He did not believe it necessary for each mechanic to be constantly supervised but the circumstances of the case suggested the system of supervision was "inadequate". Justice Barker said he would impose a further $181,500 fine for the breaches in declarations 2-4 "given the continuing seriousness of the contraventions". He invited Comcare to confer with Transpacific to submit a minute on final orders "that reflect the court's findings". (Comcare v Transpacific Industries Pty Ltd [2015],FCA 500, 22/05/2015)

·         Outside court in the May 22 statement (above), Comcare CEO Jennifer Taylor said the Transpacific case "highlighted" the need for employers to provide robust safety systems, particularly for heavy vehicles. It "showed ongoing, systematic failures in safety practices", Taylor said. "It's also a reminder that in such cases, Comcare will not just consider the final result. We will examine every opportunity a company has had to fix these issues, and we will take appropriate enforcement action."

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


Safety at risk as Comcare expands

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

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

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


UnionsWA and govt at loggerheads over number of work-related deaths

UnionsWA has accused the State Government of disguising the state's "worsening number and rate of mining fatalities" after the govt claimed mine deaths had stabilised over the past three years.

The war of words broke out in response to UnionsWA calls for a royal commission to investigate the state's work-related death rate, including those in the mining sector. It follows the death of a mining worker at a Pilbara operation earlier this month. The union said the state's third mine fatality this year at the Aditya Birla Minerals Nifty copper mine in the Pilbara underscored the need for an independent inquiry. A sink hole prompted the copper mine's closure last year, with the govt placing a prohibition notice on the mine, which was lifted in July. UnionsWA secretary Meredith Hammat said it was unclear whether the death was linked to the sinkhole. She said the WA Department of Mines and Petroleum (DMP) reviewed the mine following the sinkhole incident before reopening the site. The dept also investigated the subsequent workplace fatality. She pressed for a "proper objective" examination of the mine and believed the dept would be "compromised" in its ability to carry out a thorough investigation. "The departmental investigation into the Nifty Copper mine is fundamentally flawed, it should not be allowed to investigate itself in that matter," Hammat told OHN. "A royal commission should investigate ensuring that relevant occupation health and safety entities enjoy an adequate level of independence from undue influence." Minister for Mines and Petroleum Bill Marmion said in a statement three experienced inspectors determined the death was not related to the 2014 sinkhole. He rebuffed union claims there had been a recent spike in mining death numbers. "Aside from fatality free 2012, mine site deaths have been static at three per year since 2010," he said. He said deaths rates in mining had halved during the past decade given the workforce's expansion. "There were four deaths in 2004 and three in 2014 but the number of people working on mine sites doubled during that time," he said. Hammat dismissed the govt figures, claiming they relied on a calendar rather than a financial year."The recent statement by minister Marmion sought to disguise the worsening number and rate of mine fatalities, which UnionsWA has shown is at five deaths in the year to May 2015, and four the year prior to that, periods when the mine workforce has declined," she told OHN. She said recently Safe Work Australia showed the WA work-related death rate from 2012 to 2013 rose from 1.85 to 2.2 per 100,000 employees, with the Australian-wide rate declining from 1.98 to 1.64 over the same period. "These figures are among a number of reasons why UnionsWA has called for a royal commission into work fatalities, including those in mines," she said. Hammat raised the spectre of WA failing to harmonise its work health and safety laws through delays and inadequate fines. "At present the maximum fine provided for is $200,000, which is clearly inadequate," she said.  "Under economic pressure, workplace management too often seeks to cut corners on health and safety."

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


$20m for work violence prevention

The Vic Government will tackle the growing problem of violence against hospital staff with a $20m hospital service violence prevention fund (OHN 19/12/14). Vic health minister Jill Hennessy told the Public Accounts and Estimates Committee on May 13 service operators could make applications to receive funds for occupational health and safety innovations. However, she could not "pretend that the hospital violence prevention fund in and of itself is going to eradicate this very, very difficult issue of occupational violence and aggression". "We will also provide $20m for capital infrastructure to our health services to make them safer for staff, patients and visitors," she said. Hennessy said the Vic Auditor-General report tabled earlier this month "alluded to the scale of the problem". She said a culture of expected stoicism within the profession meant the problem was under-reported. "It is not acceptable, and it has incredibly awful impacts not only on people's physical wellbeing but also on their mental wellbeing," she said. Clinical oversight, stronger leadership, supervision and training were vital in protecting employee wellbeing, Hennessy said.

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


Workers demand safety charter

Truck drivers and family members demonstrated outside Coles' headquarters last week (May 21) amid claims of unsafe work practices jeopardising transport workers' health and safety. The Transport Workers Union (TWU) claimed the retailer's practices placed pressure on truck drivers to "drive faster, for longer with over-loaded vehicles in a stressed and tired state". The TWU said an average of 330 lives were lost each year in truck-related crashes and many thousands more were injured. It said truck drivers were 15 times more likely to die than any other profession.

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


Medical staff wellbeing declines

Mental health group beyondblue warned heavy workloads and a lack of disclosure had compromised doctor and medical students' health and wellbeing. Beyondblue chairman Jeff Kennett said in a May 25 statement medical professionals were "overworked, stressed, depressed, dependent on alcohol or other substances and are at risk of suicide". He noted this week's Four Corner's program on ABC TV, which investigated the pressure Australian doctors faced in the workplace. It followed the" sudden deaths of four young doctors this year and reports of improper working conditions, sexual harassment and bullying within the health system", Kennett said. In 2013, beyondblue conducted a survey of doctors' and medical students' mental health and found they suffered higher rates of suicidal thoughts and psychological distress than the general community. "Too many doctors are working in a culture and environment where they are scared to tell anyone about their mental health and hide problems rather than seek the care and support they would demand for their patients," Kennett said. He blamed mandatory reporting laws for having an "unintended effect of harming patients by making doctors too scared to seek help for their conditions". Kennett said WA amended its laws so doctors were exempted from mandatory reporting, sparking a rush of doctors travelling to WA for treatment. A steering group comprising representatives from beyondblue, the Australian Medical Association and the Australian Medical Students' Association will "develop, support and promote practical solutions and advice to leaders within Victorian hospitals so that they can create change".

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


ATO emails target sickie increase

The Australian Tax Office (ATO) has defended a new program aimed at tackling rising sickie rates, in which staff would receive regular emailed updates about their recent absenteeism record and how it compares to their colleagues. The ATO plans to trial the scheme given the agency is among the worst government sector performers in absence rates. ATO workers on average failed to show up to work for more than three weeks a year in the 2013-14 financial year. The Australian Services Union taxation officers' branch attributed high sick leave rates to an "insufficient regard for the individual needs of employees". An ATO spokesperson told OHN the program, which is currently in pilot phase, was one of "many opportunities being explored ... to better understand unscheduled absences". "Like most best practice human resources initiatives, we are leveraging off research, and thoroughly testing ideas prior to considering whether they have broader application in the work context," she said. The spokesperson said the program would "strengthen our rehabilitation and return-to-work approaches and practices to better support our employees with an injury or illness". It would also "enhance our internal capability, systems and infrastructure to make it easier for our staff to monitor and manage their attendance", she said. "Our intention is to keep our people engaged and productive at work, provide appropriate support during unscheduled absences, and achieve a safe, sustainable and timely return to work from illness or injury."

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


ACTU unit will organise affiliates' industrial campaigns: Oliver

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

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

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

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

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

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

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

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

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

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

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

Local resourcing the focus of $13m spend

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

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

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

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

ACTU could go further: Professionals Australia

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

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

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

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

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

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

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

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

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


Let's get radical: TWU NSW secretary

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".

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


Australia must get ahead of automation curve: Shorten

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

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

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

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

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

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

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

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

Labor fights against visa exploitation: Shorten

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

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

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

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

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

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


Is your workplace OK?

By Professor Niki Ellis

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

Twitter @ProfNikiEllis

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

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

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

·         Health education

·         Supportive social and physical environments

·         Integration with HR, infrastructure and environmental health and safety

·         Links between HP and related programs eg EAP. 

And that it works if:

·         Goals are aligned to business

·         Program design is evidence-based

·         Theory-based implementation

·         Ongoing evaluation

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

Potential for web-based interventions

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

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

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

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

A proposal to become a mentally healthy workplace

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

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

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

·         Prevent harm from psychosocial hazards

·         (using work to) Promote positive mental wellbeing

·         Early detection

·         Manage illness and minimise consequences.

Implementation science is key

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

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

Drafting the strategic direction

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

These included:

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

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

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

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

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

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

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

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

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

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

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


Zero-tolerance drug policies to become the norm?

By Stephanie D'Souza

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

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

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

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

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

Urine testing 'unjust & unreasonable': 2014

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

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

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

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

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

Zero-tolerance favoured by courts?

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

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

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

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

FWC full bench does about face on urine

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

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

Ferry driver collides with wharf

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

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

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

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

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

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

Urine shows meth in mine operator's sample

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

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

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

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

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

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

CFMEU's new 'mandatory testing' policy  

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

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

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

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

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

Workmates beg workmates to quit drug use

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

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

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

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

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

47% of users admit to being stoned at work

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

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

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

Perception that workers can avoid testing

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

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

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

AHPRA testing doctors' hair

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

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

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

Can employers ask workers to see the doc?

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Cleaners had 'no knowledge' of membership selection

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

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

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

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

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

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

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

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

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

Inflated membership boost AWU power in ALP

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

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

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

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

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

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

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

AWU member fees cover other companies

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

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

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

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


Bullying application rejected as was really an operational dispute: FWC

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

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

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

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

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

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

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

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

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

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

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


ACTU adds two vice presidents

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 yesterday (May 27) abstained from the congress vote on the increased campaign levy due to their opposition to it. The motion was carried on the voices.

Today (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".

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


ASIC comparison site 'waste of space'

ASIC's north Qld home and contents policy comparison website was unpopular with senior executives Asia Insurance Review interviewed for its Australian country profile issue (CN 21/05/15). Steadfast CEO Robert Kelly said the site was "cumbersome to use", so consumers would not persist. "People look for price not advice on aggregator sites. They ask how much and what's cheapest, not will I get full value on a claim," he said. Allianz GM corporate affairs Nicholas Scofield said the site was a waste of space. "It's telling people what they already know … premiums are really high and it could potentially confuse people because the pricing will be different when consumers actually go to an insurer." High-risk insureds were likely to get higher quotes from insurers than ASIC site suggestions "and that's not a great outcome". "People will complain so it's not going to assist the industry's or the govt's reputations." QBE EGM Tim Plant said aggregator sites did not always explain product benefits. Consumers needed improved product understanding, which "aggregator sites often do not provide".

(Source: Cover Note 1915, 28 May 2015)


Class actions 'intensify'

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

(Source: Cover Note 1915, 28 May 2015)


Court awards $659K for sexual assault

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

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

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

(Source: Cover Note 1915, 28 May 2015)


ASIC bans former MEL adviser

ASIC has banned Brett O'Malley, of Sunshine Beach, Qld, from giving financial services advice for five years after he engaged in unauthorised discretionary trading on his clients' accounts and created false records. He illegally invested on their behalf without their instructions before each transaction. O'Malley was a Macquarie Equities Ltd (MEL) representative from December 2009 to January 2013. ASIC said in a statement it had acted on a MEL report and found O'Malley had engaged in discretionary trading on nine client accounts contrary to MEL's prohibition against it. O'Malley also breached financial services laws by misrepresenting to those clients MEL had authorised him to operate discretionary trading accounts. ASIC found O'Malley had created records on clients' behalf falsely indicating he had given them advice before engaging in unauthorised discretionary trading. MEL was conducting a review to compensate O'Malley's clients for any losses he had caused as part of a broader client remediation process. MEL had agreed to implement the review in an enforceable undertaking ASIC had accepted in Jan 2013. O'Malley has a right to appeal to the Administrative Appeals Tribunal for a review of ASIC's decision.

(Source: Cover Note 1915, 28 May 2015)


RET Bill politicking goes on

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

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

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

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

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

Senators will decide Bill's fate

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

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

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

RET regs will prevent EITE windfall, govt says

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

More flexible' RET regulations

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

(Source: Carbon Extra 319, 29 May 2015)


Most ERF abatement not new

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

The CER spent about $660m of the ERF's total $2.55bn funds on the first auction, paying on average $13.95 per tonne/CO2-e for a total of 47m tonnes of abatement.

Under questioning inSenator Estimates this week, Munro said 107 of 144 projects underERF contracts had transitioned from the CFI. The 34.4m tonnes of carbonabatement they would deliver represented 72% of the total abatement contracted from the first auction, she said. The remaining 37 projects were new. Opposition climate change spokespersonMark Butler saidthatmeant the govt had effectivelypaid $66t/CO2-e for "only 10m additional tonnes of carbon abatement".

(Source: Carbon Extra 319, 29 May 2015)


ASIC updates carbon markets guide

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

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

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

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

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

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

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

(Source: Carbon Extra 319, 29 May 2015)


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

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

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

Unions say govt broke promises to consult

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

(Source: Workforce NSW 19635, 29 May 2015)


USyd 'protest' professor keeps job

University of Sydney (USyd) Associate Professor Jake Lynch has told WFNSW he is "relieved and delighted" the threat to his position has been lifted, after the Uni investigated him for misconduct at a protest in March. The investigation sparked a Defend Civil Liberties campaign (WFNSW1/05/15) led by academics and the National Tertiary Education Union (NTEU) and supported by Australian Greens Senator Lee Rhiannon and Julian Burnside QC. Lynch said: "I am grateful for the campaign which rallied right-thinking people both within and outside the university to oppose the vexatious and insubstantial allegations." USyd said it "will not comment on the outcomes for any individual due to the confidentiality of the investigation process, and privacy rights of those individuals". It said: "A number of members of the University community and the public were found to have engaged in unsatisfactory conduct, as a result of which disciplinary action, including counselling, warning and suspension of access rights to the University grounds have been imposed." WFNSW understands only serious misconduct charges could have resulted in dismissal. The uni's preliminary investigation into the events at the Richard Kemp lecture had cleared Lynch of anti-Semitism.

(Source: Workforce NSW 19635, 29 May 2015)


FWO investigates 'No Land Tax' party's failure to pay 1000s

Some 3,600 people may be affected by the No Land Tax (NLT) party's failure to pay workers at the last NSW election, says the Fair Work Ombudsman (FWO). FWO said NLT party secretary and former Communications Electrical Plumbing Union official Peter Jones "is not fully cooperating with the investigation and has been asked to meet with Fair Work inspectors to provide further information". It added: "Mr Jones has made misleading statements to his former workers regarding their eligibility for Fair Entitlements Guarantee [FEG] assistance." FEG assistance is for workers of bankrupt employers. In the meantime the FWO will continue efforts to negotiate back-payments from Jones, and gather evidence from affected workers. FWO executive-director dispute resolution and compliance Steve Ronson confirmed it had enforcement options available. Ronson said it was unusual for the FWO to comment on "ongoing operational matters", but chose to do so given the volume of complaints in order to "reassure the public that the matter is receiving priority attention". The Sydney Morning Heraldreported some workers had been promised $330 for the day's work.

(Source: Workforce NSW 19635, 29 May 2015)


Opp'n parties get local govt inquiry

Labor and the NSW Greens have successfully pushed for an upper house inquiry into the impacts of the Government's "Fit for the future" local government package, which could see councils amalgamated and jobs lost. The terms of reference for the Local Government in NSW Inquiry includes reporting on "evidence of the impact of forced mergers on municipal employment, including aggregate redundancy costs". It will be chaired by former Shoalhaven mayor and Christian Democratic Party MLC Paul Green. A United Services Union (USU) submission to the Independent Pricing and Regulatory Tribunal (IPART) Expert Advisory Panel criticised the govt's speed to introduce the policy. The USU said while it did not oppose amalgamation in general, it did "oppose amalgamation where employees have not been properly consulted or in circumstances where appropriate steps have not been taken to protect employees' jobs and conditions". Shadow local government minister Peter Primrose said "many councils have objected to the timeline, criteria and methodology imposed by IPART and the Govt".

(Source: Workforce NSW 19635, 29 May 2015)


Police oversight 'out-of-date'

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

(Source: Workforce NSW 19635, 29 May 2015)


Women stuck at back of the bus

Women still have a long way to go to ensure equal representation in the male-dominated rail and bus industry, Rail Tram and Bus Union (RTBU) NSW representatives have told a national conference. Only 8% of State Tranist Authority, 16% of Sydney Trains and 24% of NSW Trains employees are female, the biannual Wimdoi – Women in Male Dominated Occupations & Industries – Conference heard. Five RTBU NSW representatives attended the conference in Sydney. It attracted women from industries ranging from construction and transport to correctional services, maritime, firefighting and mining.

(Source: Workforce NSW 19635, 29 May 2015)


Unions NSW to 'spit the dummy' against PPL reforms

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

(Source: Workforce NSW 19635, 29 May 2015)


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