Issue 233
, Friday 29 May 2015
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In this issue
[1]
The trade union movement looks set to ramp up its
campaign on paid parental leave (PPL), with an Australian Council of Trade
Unions (ACTU) draft policy document demanding government-funded PPL be
boosted to 26 weeks and employers be required to supplement it with their
own schemes.
The May 7 draft policy paper, obtained
by Workforce
ahead of the ACTU triennial Congress next week, would commit the peak union
body to lobby for:
·
a govt-funded PPL
scheme of 26 weeks paid "at no less than the national minimum wage
plus superannuation"; and
·
a "mandated
top-up of the govt scheme to full wage replacement to ensure a
co-contribution from employers".
On May 12, Treasurer Joe Hockey
announced the govt would prevent parents accessing both the govt and
employer PPL schemes, which other senior ministers described as
'double-dipping' (WF
15/05/15).
Unions will also "campaign and bargain for an
increase to the 'dad and partner pay scheme' to provide eligible employees
with four weeks leave rather than two", the policy document said. They
will push for the accrual of entitlements including payment of public
holidays and employer super contributions during periods of paid and unpaid
parental and carers' leave.
Strengthen
bullying and adverse action claims
The ACTU document proposes extending the Fair Work
Commission's (FWC) jurisdiction to issue stop-bullying orders to "all workers,
not just those employed by constitutional corporations". Unions should
be able to apply to stop "systemic bullying rather than the sole focus
on individual complaints required to be made public", it said. The
ACTU proposed removing the "reasonable management action taken in a
reasonable manner" defence to bullying claims. It argued the defence
was "a means for employers to cover workplace bullying".
It also wanted to reinstate the "essentially
beneficial and protective operation of the general protections provisions
of the FW Act" through either:
·
a positive
description of the relevant test of characterisation as an objective test;
or
·
excluding the
"purely subjective approach" to ascertaining the reasons for
adverse action.
The proposal responds to union fears courts are in
effect allowing decision-makers' evidence they did not take adverse action
for a prohibited reason to determine claims, after employer wins in the
High Court's BHP Coal
(WF
17/10/14) and Barclay
v Bendigo TAFE (WF7/09/2012).
Regulate labour
hire and supply chains: ACTU
The draft policy document called for FW Act
amendments "to facilitate and support parties negotiating arrangements
which have industry-wide or supply chain impact".
"In particular, Congress is concerned to
ensure collective agreements can cover labour hire workers who are
economically dependent servants and agents of an entity with which they
have no 'employment relationship'," it said.
The document backed "enterprise bargaining
across an industry or supply chain" as "more reflective of the
modern organisation of industries operating on the basis of joint
production and joint employment".
It proposed "the establishment of a
comprehensive national scheme for the registration, licensing and
regulation of labour hire agencies". In addition, unions should have
"unrestricted" rights to represent independent contractors. The
current system requires Australian Competition and Consumer Commission
approval for independent contractors to collectively bargain. The ACTU
proposed banning enterprise agreements (EAs) which "cover only one
employee" and EAs "made with a small number of employees prior to
the engagement of the rest of the workforce".
More worker
protections needed for strikes
The ACTU paper (above)
called for more protections for workers involved in strikes, ie:
·
removing the
secondary boycott provisions of the Competition and Consumer Act 2010;
·
requiring
employers to give "three clear working days' written notice" of a
lockout; and
·
ensuring employer
response action "must be a "proportional response" to
employees' protected action.
Lift good faith
bargaining requirements
The ACTU document proposed higher standards for
good faith bargaining including:
·
requiring
employers to disclose relevant and material information to bargaining parties
in a timely manner, while ensuring genuinely confidential information is
"treated appropriately";
·
requiring the
employer's "principal decision-maker" to participate in
bargaining;
·
prohibiting
employers from submitting an agreement to a vote until the bargaining
representatives are agreed a course or bargaining is at an impasse; and
·
promoting a
"normal expectation" that bargaining parties should reach an
agreement unless there are genuine reasons based on reasonable grounds not
to do so.
'Last resort'
arbitration for FWC
·
FW Act amendments
to empower FWC "to arbitrate disputes about any matters arising under
awards, agreements or the NES, as a last resort"; and
·
FW Act and state
referral legislation amendments to expressly permit the federal system, including
the FWC, "to deal with all public sector employment matters that state
govts have argued are subject to constitutional limitations, such as job
security and staffing levels".
Unions to
campaign on youth super
The draft document proposes an ACTU campaign to
"expand the superannuation guarantee to workers under the age of 18,
and remove the discriminatory requirement that workers under 18 must work
at least 30 hours per week to receive employer super contributions".
Other youth-oriented policies included:
·
opposition to
unpaid internships that are not part of an accredited course; and
·
a resolution
"to explore and support new organising strategies, particularly those
that integrate technology with campaigning".
FEG, modern
award review and IFA changes
The ACTU also proposed campaigning to ensure:
·
all employee
entitlements, including deductions, are fully recoverable from the Fair
Entitlements Guarantee (FEG);
·
abolition of
compulsory four yearly reviews of modern awards; and
·
abolition of
individual flexibility agreements (IFAs).
(Source:
Workforce 19625, 22 May, 2015)
[2]
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)
[3]
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)
[4]
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)
[5]
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".
[6]
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)
[7]
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)
[8]
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)
[9]
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)
[10]
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)
[11]
Improvements to the social wage such as health,
education and retirement incomes will be at the centre of the Australian
Council of Trade Union's (ACTU) political campaign, secretary Dave Oliver
has revealed.
In an interview with Workforce Daily, Oliver said the main
focus of its triennial Congress this week will be achieving endorsement of
the peak body's 'Build a Better Future' campaign to be rolled out "in
workplaces, online, in communities and marginal electorates" (WF
6/03/15).
Of the six points central to the campaign, five
are policies to be implemented by government, including improvements in the
social wage, ie:
·
universally
accessible healthcare;
·
highest quality
education;
·
decent public
services;
·
dignity in
retirement through the pension and superannuation system; and
·
"a fair go
for all, including cracking down on multinational tax avoidance".
The sixth point in the charter is "rights at
work". Oliver said "the main focus [of this point] is to stop the
Abbott government attacking penalty rates, minimum wages and impeding the
rights of workers to actively organise and campaign".
He said the ACTU had a positive agenda as well as
"stuff we're fighting against", eg expanding collective
bargaining rights to include multi-employer bargaining (WF
22/05/15).
"This will encourage collaboration rather
than confrontation in bargaining, allowing employers and employees to
engage at a higher level."
Oliver argued elements of the "social policy
ask" such as improvements in health and education were also
"industrial" in nature because "we do represent workers in
those particular industries".
Digital
platforms encourage 'lowest cost' work
Oliver reiterated his pledge made at the National
Press Club to set up a taskforce on how to represent workers in the 'liquid
economy' – digital platforms like Uber and Freelancer.com which treat them
as independent contractors (WF
8/05/15).
"Workers are bidding on ebay style platforms
for a parcel of work, where the work goes to the lowest bidder," he
said.
"How the hell do you regulate this? How do
you ensure [workers] are protected by minimum standards like super and
workers' comp? This is a real challenge not only for our movement but govts
now and in the future," Oliver said.
ACTU reaffirms
boycott of 'political' TURC
Despite the Trade Union Royal Commission (TURC)
discussion paper flagging proposed anti-racketeering provisions and new
restrictions on who can hold union office (WF
22/05/15), Oliver was adamant the ACTU would not engage
with TURC.
"Our position is very clear - it's a
political witch-hunt," he said. "If [TURC] wants our views on
those matters [in the discussion paper] – it can look at our website or the
submission we've made to legitimate bodies such as the Productivity
Commission review of workplace relations and Senate bodies."
(Source:
Workforce Daily 19631, 25 May, 2015)
[12]
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)
[13]
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)
[14]
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)
[15]
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)
[16]
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)
[17]
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)
[18]
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)
[19]
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)
[20]
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)
[21]
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)
[22]
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)
[23]
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)
[24]
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)
[25]
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)
[26]
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)
[27]
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)
[28]
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)
[29]
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)
[30]
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)
[31]
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)
[32]
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)
[33]
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)
[34]
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)
[35]
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)
[36]
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)
[37]
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)
[38]
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)
[39]
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)
[40]
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)
[41]
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)
[42]
By
Professor Niki Ellis
Adjunct Professor, Institute for Safety,
Compensation and Recovery Research and Department of Epidemiology and
Preventive Medicine, Monash University
www.nikiellis.com.au
Twitter @ProfNikiEllis
Recently an organisation asked me to consider what
being a mentally healthy workplace might look like for them. It was a great
brief, they were up for it. I started by having a look at their business
strategy and found they were growing, planning to further develop their
leadership and workforce and IT platform to enable them to be competitive
and make the most of the opportunities they could see.
I then reviewed their current investment and
performance in health and safety and concluded that they were a strong
performer in the traditional health and safety model. By that I mean they
aimed for zero harm in relation to the prevention of injuries. They had
started a workplace health promotion program, but it was early days, and
quite a long way off best practice.
A team from Johns Hopkins recently described
best and promising practice as:
·
Health education
·
Supportive social
and physical environments
·
Integration with
HR, infrastructure and environmental health and safety
·
Links between HP
and related programs eg EAP.
And that it works if:
·
Goals are aligned
to business
·
Program design is
evidence-based
·
Theory-based
implementation
·
Ongoing evaluation
What they did have was R U OK, and a great start
on a health portal. Way to go.
Potential for
web-based interventions
In another project I am working on for the life
insurance industry we have done a rapid review on the management of
psychological claims.
The review found that with regard to treatment
there was huge potential with web-based interventions for mental health.
A Canadian case study illustrated the future with
a confidential web-based mental health self-management resource. This
allows someone to assess their own mental health, provides information on
treatment and rehabilitation, with supporting material for doctors and then
tools for tracking progress.
The resource was based on recent evidence-based
guidelines, and was being marketed to insurers and employers.
A proposal to
become a mentally healthy workplace
Meanwhile back in Australia, having assessed the
broader strategic environment and what programs were already in place
relevant to mental wellbeing; not just in health and safety and workplace
health promotion but also in HR more broadly (EAP, diversity strategy,
respectful workplace policy etc), I developed a proposal for becoming a
mentally healthy workplace.
This drew on two sources of information: Tony La
Montagne's model of an integrated approach to mental health in the
workplace; and Gloria Sorensen's conceptual model for an integrated
approach to the prevention of 'work-related injuries and illness and the
enhancement of overall workforce health and wellbeing'.
Tony La Montagne is at the University of Melbourne
and his model has four components:
·
Prevent harm from
psychosocial hazards
·
(using work to)
Promote positive mental wellbeing
·
Early detection
·
Manage illness and
minimise consequences.
Implementation
science is key
Sorensen (above)
is the Queen of the integrated approach to workplace health and safety. She
is the head of the Centre for Work, Health and Wellbeing at Harvard
University.
A colleague of La Montagne's told me the light
bulb went on for Sorensen when she was running Quit programs at a foundry,
and realised the uselessness of talking to workers about them giving up
cigarette smoking in an environment filled with toxic fumes. She
presented a generic conceptual model, drawing on implementation science,
with the following elements: context (external and organisation);
interventions, mediating factors in the work organisation or work
environment, mediating factors related to workers, expected early outcomes,
and then expected final outcomes, at the first international conference on
Total Worker Health, American for the integrated approach, in October last
year. (Selected papers from the conference can be found here)
Drafting the
strategic direction
Using both frameworks I generated draft strategic
directions for this organisation, which essentially draw together and build
upon many different strands of activities already in existence across the
organisation, with the aim of assisting to deliver on the broader business
plan.
These included:
·
Work design and
re-design: Proposed as they were building a new IT platform, the idea is
that health and wellbeing becomes a consideration in that work. For
existing work process, suggested the addition of psychosocial hazards to
the existing risk management system, possibly by using the routine employee
opinion survey to collect information on the psychosocial working
environment and leadership performance.
·
Proposed the
concept of work-life balance as a great link between individual behavioural
change and work environment change. Could be a focus of communications on
the strategy.
·
Extension of a
middle management development program on mental wellbeing which had already
been developed and run out to some. This is key, if you ramp up
conversations about mental health in a workplace you need to be confident
middle management can deal with mental health issues, otherwise
you may see this reflected as an increase in stress claims.
·
Inclusion of
health and productivity, especially mental health, in review of the
leadership development program.
·
Continue to
develop the health portal in relation to mental wellbeing, noting evidence
of effectiveness of web-based self management support and improving mental
health literacy.
·
Streamlining
business metrics: Opportunity to ensure that relevant indicators for mental
wellbeing and their link to productivity are included.
I provided three options for the goal. The first
two were based on integrated thinking. One was very broad, an aim of
improving organisational performance through health. The second was more tightly
focussed – improving workforce capability and wellbeing by including mental
health considerations in the development of leadership, systems and
workforce. The third option was based on extending the traditional model to
better include mental health – that is to contribute to achieving zero harm
through programs aiming to minimise psychosocial risks and to promote
mental health (separately, as is the tradition).
Bravo to this organisation for taking this topic
seriously and giving it a good shake. They are in a good position to
succeed as they have a strong foundation in a high performing traditional
workplace health and safety program, and they are not unused to the concept
of psychosocial ergonomics.
There are benefits to be had for workers in terms
of improved health outcomes and benefits to employers in terms of
performance, presenteeism and absenteeism.
But it is going to take a lot more than asking R U
OK.
(Source:
Inside OHS 90, 28 May, 2015)
[43]
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)
[44]
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)
[45]
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)
[46]
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)
[47]
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)
[48]
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)
[49]
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)
[50]
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)
[51]
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)
[52]
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)
[53]
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)
[54]
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)
[55]
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)
[56]
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)
[57]
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)
[58]
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)
[59]
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)
[60]
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)
[61]
Managing
Editors: Helen Jones, Peter Schwab. Emailhelen.jones@thomsonreuters.com
or peter.schwab@thomsonreuters.com.
|