From:                              eNews, LTA ANZ

Sent:                               Friday, 29 May 2015 4:23 PM

To:                                   Schwab, Peter R. (Legal)

Subject:                          Workforce 19635: AWU concealed membership fees under fake OHS invoices, TURC; Lyons 'free of politics' in new Per Capita job; FWO uses accessorial provisions to target security contracting; more


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Thomson Reuters Australia

Issue 19635 , Friday 29 May 2015

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In this issue


AWU 'concealed' membership fees under fake invoices: TURC



Modern award review eases access to leave entitlements


Lyons 'free of politics' in new Per Capita job



FWO uses accessory provisions to target security contracting


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



ACTU unit will organise affiliates' industrial campaigns: Oliver


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



No contest at ACTU Congress


Union plan to recruit school children



ACTU adds two vice presidents


Let's get radical: TWU NSW secretary



Unions lack equal representation of women at top: report


Oliver unveils social wage wishlist



Australia must get ahead of automation curve: Shorten


Subcontractor hit with $300k for hiding behind labour hire firms



Lambie makes new push for 'explosive' secret TURC report


Canterbury Windows locks out 50 workers over pay dispute



Disciplinary ambush not reasonable management action: FWC


Bullying orders no way to dispute operational practices: FWC



Compensation is not a punitive measure: bench


Qld opposition claims 'privacy' flaw in union encouragement clause



Stress symptoms not enough for discrimination in adverse action law


Full bench overturns cap on contracts at Essential Energy



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





Editorial Team



AWU 'concealed' membership fees under fake invoices: TURC

The Australian Workers Union (AWU) has been accused of false accounting by allegedly concealing thousands of dollars in 'membership fees' that it secured from Victorian civil construction company BMD Constructions.

Following on from claims AWU Vic had agreed with cleaning company Cleanevent to $25k annual 'membership fees' in return for an agreement that excluded casual penalty rates, Trade Union Royal Commission senior counsel assisting Jeremy Stoljar today alleged the AWU Vic branch had also secured almost $35k in 'membership fees' from BMD.

However, the union had described the fees as for "occupational health and safety" services.

Stoljar's opening address said in 2007 the AWU and BMD entered into an EA just for Victoria, despite a national agreement negotiated.

The union also issued BMD with an invoice for $14,300 for "OHS inspection at various work sites in Victoria".

BMD paid the invoice on Dec 18, 2007 and two weeks later 44 BMD employees became AWU members.

However, one of those BMD employees David Brick gave a statement to the cmn he was unaware he had been an AWU member.

Brick also said he was unaware of any arrangement where BMD would pay monies to AWU for union membership fees.

Neither the AWU nor BMD sought to challenge Brick's evidence.

Invoice for OHS services named 'membership'

Stoljar also detailed that during BMD's 2010 negotiations for a replacement EA, BMD sent a list of staff names to then-AWU Vic secretary Cesar Melhem.

That same day the AWU sent an invoice to BMD for $19,800 described in an email as 40 members x $450.

While the invoice itself said the money was for OHS training and safety audits the item code on the invoice related to "membership".

Stoljar said the invoice strongly suggested the payment was for membership costs, not safety audits or training.

That was supported by the AWU failing to produce any documents relating to the said safety training to which the invoice referred.

One of the employees included in the members list gave un-challenged statement he was unaware of ever having joined the AWU.

Another said he was a member but paid his membership by payroll deduction.

TURC asks why fee monies were not secured for member pay rises

Stoljar said the cmn would investigate next week whether BMD employees were entered into the AWU membership roll when they were not "truly" members.

The cmn would also investigate whether AWU persons created "false accounting records to conceal this fact".

Stoljar questioned whether the union's efforts to get extra members came at the expense of workers' pay.

"Instead of securing BMD's agreement to pay $18k plus GST to the union as part of the EBA negotiations in 2010, why could the AWU Vic not have secured BMD's agreement to increase by that amount the wages or entitlements of the 41 employees the AWU (Vic) was supposed to be representing?"

More BMD witnesses have been summonsed for next week, including BMD director Andy Marcos who was the recipient of the 2007 and 2010 invoices.

Although the AWU decided not to appear or cross-examine any witnesses this week, it is understood it will appear with legal representation for next week's witnesses.

Andrews adviser negotiated 'fee for EBA'

Earlier this morning, the royal cmn (above) delved deeper into the union's interactions with Cleanevent (see WFD 28/05/15), whose HR manager Michael Robinson confirmed the $25k was, in Stoljar's words, a "fee for an EBA" – ie to continue the 2006 WorkChoices EA.

Robinson's statement said he understood in 2010 that the 2006 EA would not have passed the Fair Work Act's new Better Off Overall Test in relation to the modern award. But he received legal advice that Cleanevent could still continue the EA on an "informal basis" with the AWU by entering into a memorandum of understanding (MOU).

In 2010, Cleanevent negotiated a MOU with the AWU Vic branch that effectively continued the "commercially beneficial" casual rates – ie sans the award's penalty rates - of the 2006 EA, along with some pay increases and income protection insurance for permanent staff.

At the same time, it secured a side-deal to pay the branch $25k a year for three years and provide it with a list of staff names for membership recruitment.

Robinson said the low casual rates were a "very important commercial benefit" to Cleanevent as it was "key" to Spotless' acquisition of the business in 2010.

He said he first reached an in-principle deal over the membership fee during the EA negotiations with AWU organiser John-Paul Blandthorn – now a political adviser to Vic Premier Daniel Andrews – and the fee was approved by AWU Vic sec – now Vic Labor MP – Cesar Melhem.

Melhem's counsel Steve Moore questioned whether the fee was in fact a "service fee" for industrial representation of non-members. Robinson said he did not recall it being described that way.

The cmn heard the then-Liquor Hospitality and Miscellaneous Union (LHMU) had also been seeking to negotiate an agreement. However, Robinson told the cmn Cleanevent had a "very good" relationship with the AWU, in contrast with its "difficult" relationship with the LHMU. In his view the AWU "wasn't as unreasonable" as the LHMU. He said the difficult LHMU relationship was the result of the union seeking to have associated entity Clean Domain have a "Clean Start Agreement", which included higher pay rates and terms "unacceptable" to the business.

Robinson said it was "not surprising" the AWU wanted to improve its membership in Cleanevent's casual staff base as the "often itinerant" workers were "not willing to give up even a small amount of their wage to pay union dues".


Modern award review eases access to leave entitlements

Employees will have easier access to sick leave on holidays and shift workers will get more annual leave due to changes in the four yearly modern award review.

The changes were part of the Fair Work Commission review panel's rectification of a number of inconsistencies with the National Employment Standards, including clauses relating to taking annual leave, sick leave and the amount of termination notice for probationary employees.

No minimum service for extra annual leave

The review panel – President Justice Iain Ross, Vice President Adam Hatcher, Senior Deputy President Jonathan Hamberger and Commissioners Michelle Bissett and Geoffrey Bull - held that a number of awards "impermissibly required a minimum of 12 months' service" before the entitlement to an additional week's leave for shiftworkers in Fair Work Act s87(2) accrued. These awards also "impermissibly provided the additional entitlement accrued on a monthly and not daily basis". The bench deleted one such offending clause from the Manufacturing and Associated Industries and Occupations Award 2010 and said equivalent variations would be made in other awards.

Easier access to sick leave on holidays

The bench held the Air Pilots Award was inconsistent with FW Act s89(2) because it put two impermissible conditions on when personal/carer's leave could be used during annual leave: that the employee had to be "seriously ill"; and they had to be off work for at least seven days. It replaced the clause with a condition that if the pilot "would not be fit for work during annual leave because of a personal illness" he or she could take personal leave, regardless of the duration.

Prior service won't count without employer approval

The bench identified 11 awards in which an employee's service with one employer counts as service with a non-associated second employer in a transfer of employment, including the Building and Construction, Food Beverage and Tobacco Manufacturing and Timber Industry awards.

But they said the effect of FW Act s91(1) was that in a transfer of employment, an employee's period of service should not count for calculating annual leave entitlements if the second employer decides not to recognise it. Accordingly, they removed the offending provisions.

More notice for probationary employees

The bench (above) deleted a clause in the Horse and Greyhound Training Award which provided that probationary employees would get one day's notice of termination for each week of service, up to four days on the fourth week. They said this was inconsistent with FW Act s117(3) "because it prescribed shorter periods of notice of termination" and it was "difficult to discern a justification" for the lesser entitlement.

Further proposed variations

The bench published draft determinations to vary three awards which currently require 12 months' service before an employee may take annual leave that has not yet accrued. It proposed a requirement in the Hair and Beauty Industry Award that a minimum of 48 hours' absence is required for carers leave be removed. (4 yearly review of modern awards – alleged NES inconsistencies [2015],FWCFB 3023, 8/05/2015)


Lyons 'free of politics' in new Per Capita job

Former Australian Council of Trade Unions (ACTU) assistant secretary Tim Lyons has announced he will research labour markets, inequality and democratic institutions at progressive think-tank Per Capita. Lyons announced his part time research fellow position on Twitter today (May 29). Lyons resigned from the ACTU in March after unsuccessfully challenging Dave Oliver for the top job (WF 20/03/15). Lyons told Workforce "a lot has already been written about the causes of inequality" so that aspect of his research would focus on "more practical things in the Australian context to deal with it". "A lot of that is about the way the labour market and tax systems work … and the role market incomes have in inequality," he said. "I've spent 20 years practically dealing with how the labour market works … and done a lot of talking about the problems through the prism of an institution's policy position." The new position would allow him to "state my own views free of politics", he said. Lyons said he was "excited by the opportunity". Per Capita executive director David Hetherington said he was "delighted" to have Lyons join the think-tank to "look at the big issues of work, inequality and democracy".


FWO uses accessory provisions to target security contracting

The Fair Work Ombudsman (FWO) has launched a prosecution against a national security company for being an accessory to subcontractor underpayments on the grounds it was aware the flat weekly rate did not meet minimum entitlements. The prosecution is understood to be the first time the agency has used the Fair Work Act's s550 against a principle contractor in the highly cost-competitive security industry.

Security International Services (SIS) allegedly engaged GRI Global to supply security guards as part of its contract with Thiess to provide security for the Qld Curtis LNG project construction sites.

SIS and GRI allegedly agreed to pay guards $21 an hour, with one guard paid a flat weekly rate of $1,500 for working 12-hour shifts, seven days a week, on a 21 days on, seven days off roster.

The FWO alleges this was not enough to cover the workers' minimum award entitlements including penalty rates for night, weekend, overtime and public holiday work and resulted in more than $11k in underpayments. While GRI allegedly breached the workplace laws, the FWO is also alleging SIS was culpable as an accessory because it knew the flat rate was not enough to cover min award entitlements. It has also accused GRI of sham contracting by misrepresenting to the worker he was a contractor, not an employee.

Pay below $24/hr likely in breach: FWO

FWO Natalie James said GRI had previously underpaid employees more than $70k, which it had to reimburse. SIS and GRI each face maximum penalties of $51k for each breach. SIS was not available for comment and GRI did not return requests for comment before presstime. James warned employers not to "turn a blind eye" over worker payments if they engaged contractors to supply labour. "Sometimes the lowest quote can have the highest cost if it ultimately damages the organisation's reputation and exposes it to financial penalties for being an accessory to contraventions of the FW Act." The FWO has previously cautioned security services costing less than an average $24 an hour will "likely" result in the employee being underpaid.

Later this year, FWO inspectors will audit security companies providing services to local councils. James warned councils procurement decisions could mean they breach workplace laws.

Industry increasingly subcontracting out

United Voice Qld security industries coordinator Damien Davies told Workforce "unfortunately this situation is all too common in the security industry these days". While "top-tier" companies paid above-award wages, more and more of the "big" companies were "going for the low-cost model", he said. Companies like SIS ended up only providing "a bit of client liaison" and "on site" management. The labour would be contracted out. But Davies warned "you can't have multiple subcontractors in a contract where 100% of the costs is labour".


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

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

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

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

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

Fragmentation of employment relationship

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

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

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

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

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

Impact of other areas of regulation on IR

While Australia had a long history of linking other policy areas to IR, such as tax and the White Australian policy, Kaine argued the contemporary context was different. "[W]hat is different now is that along with those other regulatory mechanisms, historically there was a robust arbitration system and we did not have the same type of fragmentation or organisational blurriness that we experience now."

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

Further, globalisation was challenging the very sovereignty of Australia law, Kaine argued, citing free trade agreements such as the Trans-Pacific Partnership (TPP). In the TPP, domestic laws become subordinate to provisions in the agreement allowing foreign companies to sue countries for non-compliance through Investor-State Dispute Settlement procedures.

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

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

Politicisation of labour law

Kaine argued that while IR had always been a "hot area" of political contestation, "something has changed over the past 20 to 30 years". IR was now politicised "to a point in which no sensible or mature public conversation can be had about what constitutes an appropriate legal framework".

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

Some had argued this was due to the dominance of neoliberal thought, while others framed it as part of the "international decline in social democracy or a reconfiguration of the social contract". Whatever the cause, Kaine argued the main idea of labour law had shifted from a "countervailing force to counteract inequality of power" to a "tool of economic policy". That meant the debate over labour law was "often limited to the benefits for business".

Labour law failure sparks quest for alternative

Kaine argued all three factors meant civil society and even regulators like the Fair Work Ombudsman, with its "proactive compliance deeds", were looking to other regulatory solutions – "with mixed success". This area of "co-regulation", in which non-state actors become increasingly involved in developing and enforcing labour regulation outside the strict bounds of labour law, could be seen in codes of conduct for contract cleaning and the campaign to regulate pay rates for truck owner-drivers.

However, Kaine said it would be "disingenuous" to argue these innovations "somehow escape that key weakness of labour law". "[T]hat is, these innovations in labour regulation are themselves subject to the political breeze of the day."

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

Expand relevance beyond party politics

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

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

Kaine is a former organiser with the ACTU and former junior vice president of the NSW ALP.

An edited version speech is available here.


ACTU unit will organise affiliates' industrial campaigns: Oliver

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

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

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

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

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

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

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

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

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

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

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

Local resourcing the focus of $13m spend

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

The ACTU would focus its efforts on data, such as aggregating and updating union lists, social media engagement with voters, and ground resources like field campaigners and door-knocking.

None of the $13m will pay for national TV advertising, despite that being the "most significant spend" in the successful Your Rights At Work campaign in 2007, Oliver said.

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

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

ACTU could go further: Professionals

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

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

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

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

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

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

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

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


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

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

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

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

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

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

He compared Sony, the $18bn technology business, with Snapchat, the $19bn app-based photo sharing service.

Sony, he said, had "10,000s of employees" compared to Snapchat which could "fit its entire operation under this one roof", of just 1,000 ACTU delegates.

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

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

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

Kearney said workers are suffering under the burden of "weak wage growth, longer commuter times, insecure work and unemployment".

"Wages' share of national income at close to record lows," she said.

Kearney formally launched the peak union body's six point charter of its 'Build a Better Future' campaign.

The campaign centred around improvements in the social wage including health, education, better public services, secure retirement and a "fair go for all" in tax (WFD 25/06/15).

The charter was adopted unanimously by Congress on the opening morning, May 26.


No contest at ACTU Congress

WFD Comment: ACTU president Ged Kearney launched Congress this morning boldly declaring "a contest of ideas is a sign of a healthy movement".

It was "a contest of ideas" that then-ACTU assistant secretary Tim Lyons had also cited as his reason to challenge Oliver for leadership of the movement (WF 6/02/15).

Lyons, who announced his challenge in February, called for a "much more aggressive agenda" and proposed an "organising blitz" to grow the union movement (WF 20/02/15).

But by March, his challenge was snuffed out after just a month of campaigning, and never threatened to gain enough votes to win on the Congress floor (WF 20/03/15).

At press time Oliver, Kearney and assistant secretaries Michael Borowick and Scott Connolly were re-elected unopposed to their positions.

Organising is on the agenda at Congress, but 'rights at work' is just one point of the ACTU's unanimously-approved six-point charter.

Instead, the movement has chosen to focus on political rather than industrial demands, with proceedings focused on reversing Abbott govt cuts to social services.

There were cries of "hear hear", "shame" and chants of "stand up, fight back" from the conference floor in response to debate over the charter.

But when the time came to vote, it became just a photo opportunity to hold up a sign indicating unanimous support.

The congress was also the occasion for a bit of political theatre.

The NSW Nurses and Midwives' Association staged a mock-surgery to protest privatisation of healthcare: a campaigner in Tony Abbott mask pretending to conduct chainsaw surgery on a patient – 'the Australian economy' -- while Uncle Sam offered them $500 paracetamol.

Meanwhile, as incoming ACTU VP Sally McManus claimed Abbott lied that Work Choices was "dead buried and cremated", a zombie took to the stage to represent it was anything but.

All good fun, and rousing for the delegates in attendance.

But if there were a contest of ideas in the ACTU, it is the one Lyons sparked but could not sustain to the Congress floor.


Union plan to recruit school children

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

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

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

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

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

Workers in these sectors had industrial concerns like being "paid in pizza" or below minimum wage, he said.

"That's a prime opportunity for us as organisers."

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

Hilakari championed the importance of data and sharing of contact lists and petitions between unions.

Having detailed information about members' and workers' concerns allowed campaigners to have an "authentic conversation" with voters about issues that matter to them, he said.

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

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

Unions need numbers not just strategy: delegate

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

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

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

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

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

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


ACTU adds two vice presidents

WFD: The Australian Council of Trade Unions (ACTU) Congress has changed the peak body's rules to increase the number of vice presidents (VPs) from five to seven.

The VPs will be elected at the next ACTU executive meeting.

Former Australian Services Union NSW secretary Sally McManus is expected to win one VP position, after moving to the ACTU to take on a campaigning role (WF 2/04/15).

However, it's not known who the other VP will be.

On Tuesday (May 26) Shop Distributive Allied Employees Association (SDA) national secretary Gerard Dwyer was elected senior VP, replacing his predecessor Joe de Bruyn.

Australian Workers Union (AWU) national secretary Scott McDine withdrew his nomination for the senior VP position, reportedlydue to the AWU's opposition to the ACTU $2 a member campaign levy (WF 27/05/15).

McDine told Workforce Daily he will not seek a VP position.

Oliver plays down levy dissent

The Australian Financial Review reported that the AWU and Rail Tram and Bus Union abstained from the May 27 congress vote on the increased campaign levy due to their opposition to it.

The motion was carried on the voices.

On May 28 Oliver said "we didn't hear any dissent [when the vote was taken] … the decision was taken, and it is very clear this Congress has backed the [campaign] plan for the next three years".


Let's get radical: TWU NSW secretary

WFD: Unions should run "radical" campaigns including sit-ins and blocking roads to "misbehave" and hold corporate power to account, according to the Transport Workers Union (TWU) NSW secretary Michael Aird.

Aird made the comments at the Australian Council of Trade Unions (ACTU) on May 26. He was one of the few delegates to use their time on the floor to champion old-style industrial tactics, with much of the focus of other speakers being the 'Build a Better Future' campaign centred on political campaigning at the next federal election and beyond.

Aird told his fellow delegates the move to enterprise bargaining in the early 1990s and continued in the Fair Work Act had "broken down our solidarity".

"All the great union campaigns are not enterprise campaigns – they are radical, or fought large," he said.

Aird cited United Voice's 'Big Steps' childcare campaign, the equal pay campaign, nurse-to-patient ratios, the TWU's 'Safe Rates' and the Textile Clothing and Footwear Union campaign to lift employment conditions for outworkers.

Conservatives and the Trade Union Royal Commission were "trying to make us think small and behave ourselves". But Aird argued "we're unionists because we're all about misbehaving."

He said the union movement "needs to think more about being radical … our members are up for it, they understand it". "Let's have sit-ins, let's block the roads. Let's take on corporate power. Let's hold power to account."

Aird said "elements of the Labor party" believed tax and welfare were sufficient to achieve fair distribution of wealth. "You know what else is fundamental? Union jobs," he said.

Aird's comments follow TWU national secretary Tony Sheldon last year saying his union was considering a campaign of civil disobedience in the face of Qantas job cuts with he and other union officials willing to be arrested (WF 17/04/14).

Collective bargaining must reach marginalised workers: Ayres

The call to expand collective bargaining rights to an industry level was backed by Australian Manufacturing Workers Union NSW secretary Tim Ayres. He said the movement needed to help workers who are "remote" and "haven't had the benefit of enterprise bargaining" such as independent contractors, labour hire workers and those in the new economy like Uber drivers. "What is our membership proposition for people in the new economy? Or who can't access the instruments of the law and the union movement?" "Our answer can't be 'more of the same, more energetically'. More enterprise bargaining won't solve the problem for these people".


Unions lack equal representation of women at top: report

WFD: More women hold office at the top of unions than ever before but women are still short of equal representation, holding just 40% of senior positions, according to a report.

University of Sydney Associate Professor Dr Rae Cooper presented a summary of her report into women in unions to the Australian Council of Trade Unions (ACTU) Congress on May 27.

The report showed in women held 39% of secretary positions of 21 unions surveyed in 2014, up from 30% in 2010 and 23% in 1999.

Women held 40% of all leadership positions (secretaries, presidents, vice presidents and assistant secretaries), up from 37% in 2010 and 28% in 1999.

But by some measures women's representation had declined, eg their share of delegates at ACTU Congress had fallen from 49% in a 2010 survey to 38% in the 2014 survey.

Women were more than half the unions' employees in fields including campaigns (71%), support staff (66%), communications (60%) and organisers (60%), but were less than half in industrial positions (46%) and as directors (42%).

Cooper said that the vast majority of unions have strategies to support and develop women's careers including sexual harassment policies, family friendly work arrangements and equal access to conferences and training for men and women.

In terms of representation of members, most unions had mechanisms to ascertain women's priorities in bargaining and campaigns (85%) and had standard bargaining clauses relevant to women (75%).

Cooper said the next steps to advance women in the movement included:

·         more training and mentoring;

·         organising workplaces or sectors that are predominantly women;

·         pursuing issues of importance to women in bargaining and campaigning; and

·         addressing barriers to participation such as inflexible work arrangements and workplace culture.


Oliver unveils social wage wishlist

WFD: Improvements to the social wage such as health, education and retirement incomes will be at the centre of the Australian Council of Trade Union's (ACTU) political campaign, secretary Dave Oliver has revealed.

In an interview with Workforce Daily, Oliver said the main focus of its triennial Congress this week will be achieving endorsement of the peak body's 'Build a Better Future' campaign to be rolled out "in workplaces, online, in communities and marginal electorates" (WF 6/03/15).

Of the six points central to the campaign, five are policies to be implemented by government, including improvements in the social wage, ie:

·         universally accessible healthcare;

·         highest quality education;

·         decent public services;

·         dignity in retirement through the pension and superannuation system; and

·         "a fair go for all, including cracking down on multinational tax avoidance".

The sixth point in the charter is "rights at work". Oliver said "the main focus [of this point] is to stop the Abbott government attacking penalty rates, minimum wages and impeding the rights of workers to actively organise and campaign".

He said the ACTU had a positive agenda as well as "stuff we're fighting against", eg expanding collective bargaining rights to include multi-employer bargaining (WF 22/05/15).

"This will encourage collaboration rather than confrontation in bargaining, allowing employers and employees to engage at a higher level."

Oliver argued elements of the "social policy ask" such as improvements in health and education were also "industrial" in nature because "we do represent workers in those particular industries".

Digital platforms encourage 'lowest cost' work

Oliver reiterated his pledge made at the National Press Club to set up a taskforce on how to represent workers in the 'liquid economy' – digital platforms like Uber and 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."


Australia must get ahead of automation curve: Shorten

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

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

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

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

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

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

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

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

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

He argued the government was attempting to repair the budget deficit through 'bracket creep', which he described as the "stealthy invisible hand of inflation".

"[The govt] puts its hand into your pocket taking your wage increases as increased taxes," he said.

Labor fights against visa exploitation: Shorten

Shorten (above) also promised Labor would "never sign up for the exploitation of people on working visas, no matter what pressure is put on us by the conservatives". However last week shadow treasurer Chris Bowen announced Labor would support the Coalition's proposed 32.5% working holiday visa tax from the first dollar earned. That was despite the National Union of Workers saying the tax would be like "pouring gasoline on a fire" in terms of exploitation of s417 visa workers by providing a disincentive to pay them appropriately and "dooming" them to a black market economy (WF 22/05/15).


Subcontractor hit with $300k for hiding behind labour hire firms

WFD: A construction company that used labour hire companies to distance itself from its workplace obligations and entered into agreements to keep the construction union "at bay" has been ordered to pay almost $300k for breaches over underpayments and record-keeping.

The Federal Court penalty ruling - the first to be made after a full court decision that held the parties cannot reach settlements on penalties (WF 4/05/15) –ended up ordering penalties $30k larger than the company had agreed with the Fair Work Building and Construction (FWBC) director.

NSW subcontractor Foxville Projects Group – which worked on the Park Hyatt and Gowings construction projects – failed to pay employees leave and other entitlements over three years but mainly from August 2011 to May 2012.

The FWBC's 2013 statement of claim had pointed out that shortly before entering into a 2011 EA with the Construction Forestry Mining Energy Union (CFMEU) Foxville stopped directly employing its workers and started sourcing them from labour hire firm Caiman.

However, Caiman was alleged to have no experience in labour hire and had an issued capital of $10, no real property or registered assets. Foxville allegedly directed the Caiman employees' work, filled out timesheets, gave them payslips, and even paid them directly.

In October 2011, it shifted its labour supply to a company called BSI Manpower, which had an issued capital of $2, no real property or other registered assets.

By the time of the court hearing, Foxville and the FWBC had come to an agreed statement of facts that it was the true employer of the Caiman employees and concurred on penalties of $115k.

A FWBC claim the company had engaged in adverse action by forcing workers to join the CFMEU was not pursued at court.

CFMEU EAs 'artifice' to keep union at bay

Considering penalties himself, Justice Geoffrey Flick rejected a Foxville director's evidence it had engaged Caiman because Foxville did not have the knowledge to properly manage the employees. Instead, the judge concluded Foxville retained Caiman "in an attempt to distance Foxville from its workplace obligations".

Justice Flick agreed with the FWBC that Foxville had entered into EAs with the CFMEU "simply as an 'artifice' to keep the CFMEU at bay" and to enhance the prospects of successfully tendering for work. Yet Foxville had failed to comply with the EA provisions. Evidence also suggested its failure to keep records was "simply part of the means … by which contraventions could potentially be obfuscated or made difficult to detect".

Penalty to deter 'similar' labour hire conduct

Justice Flick rejected Foxville's arguments about the "comparative innocence" of its breaches and found its conduct fell at, or slightly above, the "middle of the range". He ordered penalties totalling $145k. The $30k difference was largely due to his emphasis on Foxville's failure to provide its largely non-English speaking employees with a Fair Work Information Statement, for which FWBC and Foxville had agreed on only $5k in penalties out of $33k max.

Ordering Foxville to pay $20k for the breach, Justice Flick noted the requirement to provide such a statement was "an important means to ensure employees are informed of their rights".

"This may be seen as assuming even greater importance where the workforce consists of many persons not fluent in English," he said. "A failure to be made aware of one's rights places an almost insurmountable obstacle in the path of those who may need to exercise those rights."

The judge said even if the breaches were not deliberate Foxville had "adopted a fairly cavalier attitude to its workplace obligations". Further, even if Foxville had not deliberately retained a labour hire company to distance itself from its workplace obligations, it "nevertheless remains important to fix a penalty at a level which serves to deter other employers from engaging in similar conduct for that very purpose".

He ordered the penalties to be paid to 15 underpaid employees equally. He also ordered it to pay the employees compensation and interest totaling more than $150k. (Director, Fair Work Building Industry Inspectorate v Foxville Projects Group Pty Ltd [2015], FCA 492, 21/05/2015)


Lambie makes new push for 'explosive' secret TURC report

WFD: Senator Jacqui Lambie has written to Prime Minister Tony Abbott and Trade Union Royal Commission (TURC) Commissioner Dyson Heydon demanding to see the confidential third volume of the TURC interim report, which she has described as one of the most "explosive" documents in Australian history.

The new push comes despite Cmr Heydon's initial refusal to show it to senators, citing the threat it would pose to the wellbeing of witnesses and their families.

On May 13, Lambie wrote a letter to Cmr Heydon, seen by Workforce Daily, asking whether TURC had read the Vic Government's confidential report on criminality in the building industry by now Fair Work Building Construction (FWBC) chief Nigel Hadgkiss. She also sought access to the confidential third volume of the TURC interim report.

On May 14, Cmr Heydon responded expressing gratitude for Lambie's interest in the cmn's work but refusing to release the TURC third volume.

Cmr Heydon explained he had made an order prohibiting publication of the TURC report, subject to exceptions including that copies may be provided to TURC staff, the Governor-General, PM, Department of Prime Minister and Cabinet, Ministers of the Crown, State Governors and Premiers.

"It goes without saying that I am confident that you personally would preserve the confidential status of the report," Heydon wrote. "But I fear that any significant dissemination of it would result in a destruction of confidence and create the possibility of the danger to the physical wellbeing of witnesses and their families." Cmr Heydon also revealed TURC did not have a copy of the Hadgkiss report but was briefed on its content.

Report needed to vote on ABCC: Lambie

On May 11, Lambie voted with the other crossbench senators to extend the coercive powers of FWBC (WF 15/05/2015). But on May 14 in a Senate speech Lambie reiterated her need to see the TURC confidential report before deciding how to vote on the proposed reintroduction of the Australian Building and Construction Commission.

Lambie described the report as "one of the most important and explosive documents ever written in recent Australian political history", citing its description in the interim report as revealing "grave threats to the power and authority of the Australian state". "Implicit in these words is a warning … that the very authority of Australian govt is under threat by an unknown hostile enemy," she said.

Lambie accused the govt of "deliberately covering up" the TURC report and criticised the Napthine and Andrews Vic govts for refusing to release the Hadgkiss report. Speculating on the reasons for these 'cover-ups' Lambie said "it is likely that the reputations of both major political parties, Labor and Liberal, may be harmed if these reports were ever made public or viewed by independent parliamentarians".

Proposal to securely show secret TURC report

On May 19, Lambie wrote to PM Abbott and Cmr Heydon. She asked the PM what the "grave threat" identified by the report was, and who had been given access to it. Lambie proposed the PM release the secret TURC report to all senators, adopting procedures to protect the identity of witnesses. She noted the Defence Abuse Royal Cmn's confidential materials in 'DLA Piper Volume 2' had been made available to senators who signed a confidentiality agreement. They were then shown copies without being able to take photos or notes.


Canterbury Windows locks out 50 workers over pay dispute

WFD: About 50 manufacturing workers were protesting outside Canterbury Windows South Melbourne factory on May 28, after they were locked out over a pay dispute.

The workers are seeking a 4% a year pay increase over three years, with the company offering 1%, 2% and 2%.

The dispute came to a head on May 27 after the union withdrew a threatened eight-hour stoppage planned for May 28 and a further four-hour stoppage for May 29, only to see the company impose a lock out over both eight-hour shifts.

Victorian secretary of the Construction Forestry Mining and Energy Union's forestry/furnishing division Frank Vari told Workforce Daily negotiations with the company had "ground to a halt".

But Vari said workers were determined to see the matter through, "lock out or not lock out".

Canterbury Windows general manager Paul Armstrong told WF Daily union withdrawal of threatened industrial action came too late for the company, which had stopped deliveries in anticipation of the strike.

He claimed the company's workers already received pay levels 25% better than the rest of the industry. "It is a tough market and we're asking workers to recognise that by accepting what we believe is an affordable increase." 


Disciplinary ambush not reasonable management action: FWC

WFD: An employer springing a disciplinary meeting on an employee was a "threatening" rather than a reasonable management action, the Fair Work Commission (FWC) has found -but it refused the stop-bullying application.

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

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

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

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

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

Employer patient in face of worker's inflammatory emails

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

Willis was "subject to severe criticism based on complaints by a person employed by a different entity", he said.

This would have been "threatening", especially seeing as Willis had only recently started work and was on probation.

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

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

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

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

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

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

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

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


Bullying orders no way to dispute operational practices: FWC

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

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

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

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

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

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

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

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

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

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


Compensation is not a punitive measure: bench

WFD: Compensation in unfair dismissal cases is not a punishment for an employer's poor practices, a Fair Work Commission (FWC) full bench has ruled in upholding a refusal to award a unfairly dismissed worker any compensation.

The bench upheld Commissioner Chris Simpson's decision last year that found labour hire company Matilda Greenbank – which did not appear at the hearing - had unfairly dismissed casual Deborah Kable when terminating her contract on June 4, 2014 - three weeks before its June 30 expiry.

Matilda had told Kable and other employees that it no longer required their services since Puma Energy Australia had advised it would be terminating its contract with Matilda early.

Cmr Simpson found the dismissal was not a genuine redundancy as Matilda had not complied with consultation requirements, and on further consideration found the dismissal unfair.

However, he concluded it would not be appropriate to order compensation given Kable had been unfit for work until June 16.

He found her employment would only have continued for another four days - ie until June 8, the date the Puma contract was terminated - and she had not suffered any loss from the dismissal.

Kable appealed the compensation ruling, arguing the cmr should have concluded her employment would continue until June 30 and therefore she was entitled to two weeks' wages.

The bench – Vice Presidents Joe Catanzariti and Graeme Watson and Deputy President Val Gostencnik – said there was no appealable error and the cmr was correct in his conclusion.

"There was no evidence before the cmr that [Matilda] could have continued to employ [Kable] in some other position beyond June 8, 2014."

The bench said compensation was designed to compensate for "losses reasonably attributable to the unfair dismissal".

"Compensation orders are not designed to be a form of punitive measure to punish perceived poor employment or business practices of an employer," the bench said.

It refused permission to appeal, saying Kable's real grievance was she was dissatisfied with the outcome of her application.

(Deborah Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015], FWCFB 3512, 22/05/2015)


Qld opposition claims 'privacy' flaw in union encouragement clause

WFD: The Qld opposition has questioned the legality of Government plans to provide public sector employees' contact details to unions under its new union encouragement policy.

ThePalaszczuk govt has approved a union encouragement policy which:

·         allows "employees full access to union delegates/officials during working hours to discuss any employment matter or seek union advice";

·         encourages employees to join unions;

·         provides employees an application for union membership and information on their union at induction;

·         grants paid time off "to acquire knowledge and competencies in industrial relations"; and

·         "subject to privacy considerations" provides unions with details of new employees.

The policy warned "passive acceptance by agencies of membership recruitment activity by unions does not satisfy the govt's commitment".  Rather, it required agencies "to take a positive, supportive role although ultimately it remains the responsibility of the unions themselves to conduct membership". On May 21 opposition leader Lawrence Springborg claimed the legality of the policy was "in doubt". His comments followed an alleged statement by Treasurer Curtis Pitt the personal information of new govt employees cannot legally be sent to union bosses under its encouragement policy. "[On May 20], Pitt refused to confirm whether a new govt employee could opt-out of having their personal details provided to union bosses," Springborg said in a statement. "[Now] he reveals the policy, that demands personal details of public servants be sent to union bosses, is apparently illegal."

Privacy respected, only name, location revealed: govt

A spokesperson for Pitt told Workforce Daily he had "confirmed that all new starters in the Qld govt are protected by privacy laws". But he said the policy was not illegal because "no private details are passed on … the only information that's passed on is limited to a person's name and details about where they work".

The spokesperson said new employees would be "clearly advised" that their name, workplace name and location would be passed on."If an employee is contacted by a union representative, they are free to join or not join a union as they see fit. This policy gives them freedom of choice and freedom of association," he said.


Stress symptoms not enough for discrimination in adverse action law

WFD: The Federal Court has held the meaning of discrimination under adverse action laws is narrower than under anti-discrimination laws, in a decision that found a traumatised train driver's symptoms of stress were not enough to show he had been fired because of his mental illness.

Justice Melissa Perry partly allowed RailPro's appeal of Judge Denys Simpson's 2013 decision that found the train operator had taken adverse action against Colin Flavel when it fired him.

Flavel had refused to take the controls of a train as part of a competency test six weeks after he had been involved in a train collision (WF 4/10/13).

Judge Simpson's decision – delivered more than 12 months after hearing - found Flavel had told RailPro he would be violently ill if he drove the train and that this was because of his subsequently diagnosed post-traumatic stress disorder arising from the collision.

Judge Simpson found RailPro's dismissal was because Flavel had a disability under the Fair Work Act's (FW Act) s351 and had exercised his workplace right to protect his own and others' safety under the SA Occupational Health and Safety Act as per Fair Work Act s340(1)(a).

Discrimination law requirements don't apply

However, Justice Perry held Judge Simpson had wrongly interpreted s351(1) in finding it had been breached because the dismissal contravened the Disability Discrimination Act (DD Act).

Section 351 requirements for discrimination were different from the DD Act's "expanded" meaning of discrimination, she said.

While s351 did not require the DD Act's comparison between treatment of employees to prove discrimination, it was also not enough that discrimination under s351 was "a perceived, as opposed to actual, disability or a disability of an associate".

Further, a breach under the DD Act occurred if the act was done for a prescribed reason, as opposed to it being a "substantial and operative" reason under the FW Act.

In this context, the "carve out" in s351(2) – saying s351(1) did not apply if the conduct was "not unlawful under any anti-discrimination law" – simply "avoids a result whereby the FW Act imposed more onerous obligations upon an employer than those already imposed upon her or him under general anti-discrimination laws".

"In effect s351 proscribes a 'subset' of that which is proscribed under the DD Act," Justice Perry said.

The converse was not, however, true, she said.

Conduct that breached the DD Act did not therefore also breach 351(1) "contrary to the assumption apparently made by [Judge Simpson]".

Employer only aware of 'attack on the nerves'

Despite the difference between statutes, Justice Perry held the term "disability" under s351 still "cannot be limited" to the "underlying diagnosed medical or physiological or psychological condition" and could refer to the symptoms of that condition.

"Unless the term included symptoms or manifestations of the disability, the Act may well fail to achieve its object."

Therefore, the fact Flavel's condition was not diagnosed before his dismissal was "notnecessarily an impediment" to finding he was dismissed because of his disability. 

However, Justice Perry said courts still needed to give "particularly close consideration" to an employer's reasons for adverse action "where it may not be apparent that the symptom or manifestation is in fact a symptom or manifestation of a disability".

In Flavel's case, Justice Perry held the evidence of his symptoms went "no higher than to suggest that the decision-makers were aware that Flavel had had an 'attack of nerves'".

She agreed with RailPro that disability "does not include ordinary human responses to particular circumstances, such as nervousness".

"[K]nowledge by a lay person that a person feels nauseous and has other feelings typically related to nervousness in a stressful situation like an assessment is likely to fall short of amounting to knowledge of a disability."

Non-qualification not relevant to awareness

Judge Simpson's finding to the contrary that RailPro's decision-makers were aware of Flavel's condition was "glaringly improbable", she said.

The judge's findings Flavel was "putting on a brave face" after the train crash and RailPro managers were not "qualified" to give opinions about his psychological state were inconsistent with a finding they were "aware" of his state.

A letter from Flavel's wife to RailPro showing he was under stress and grief was also not sufficient.

For Judge Simpson to infer that "[u]ndoubtedly" the letter warned RailPro of Flavel's fragile mental state "assumes a capacity to differentiate between stress and a disability", Justice Perry said.

Dismissal over OHS right not disproven

But while Justice Perry (above) set aside Judge Simpson's s351 finding, she upheld his separate finding that Flavel was dismissed because he exercised his workplace right to protect himself and others as per the OHS Act.

Justice Perry upheld RailPro's argument that Judge Simpson was incorrect to find Flavel's competency was not a reason in the dismissal. But she said that was not sufficient to overturn the adverse action finding as RailPro had not shown that Flavel's exercise of his right under the OHS Act was not one of the dismissal's operative reasons.

Errors in damages calculation

Nevertheless, Justice Perry said the competency issue should have been taken into account when deciding on $95k in damages. Further, Judge Simpson erred by failing to discount Flavel's workers' compensation payments from loss occasioned by dismissal and in mistakenly estimating the period he would have been fit to return to work for the compensation order.

The judge's order for RailPro to pay a penalty of $5k was also incorrectly based on an individual penalty rather than a corporation's penalty.

His order for a "high" award of $25k for distress, hurt and humiliation was insufficiently justified and took into account the erroneous finding that the decision-makers were aware of Flavel's mental illness.

However, Justice Perry considered a $7,500 award for distress was still warranted after noting the dismissal meeting occurred without prior notice, was held immediately on Flavel's return from the competency test and did not "realistically" allow him to have a support person.

She proposed remitting the question of compensation and penalty to Judge Simpson.

(RailPro Services Pty Ltd v Flavel [2015], FCA 504, 22/05/2015)

Academic to invite 'reconsideration' of court approaches to discrim under FW Act

Melbourne Law school employment relations Associate Professor Anna Chapman told Workforce Daily that the decision "provides a very strong statement" about the distinction between anti-discrimination law relating to disability and the FW Act's discrimination provisions.

However, while there had been previous decisions about the connection between symptoms and the disability, Chapman said it was still "uncertain" what degree of manifestation of those symptoms was required. "That's always going to be a difficult factual issue," she said.

Unlike the test under anti-discrimination law – which required no intention or consciousness – the FW Act was "more subjective" and related to the reasons of the decision-maker. "They need to have some knowledge," Chapman said. She said the RailPro decision appeared to be the first on stress symptoms in relation to PTSD.

Chapman will be speaking on courts' methods for interpreting discrimination in an industrial framework this Friday at a Fair Work workplace relations lecture at Melbourne Law School. She will argue there has been "a turning away under the FW Act from earlier, broader judicial approaches on the meaning of discrimination" and will invite a "reconsideration of current judicial approaches".


Full bench overturns cap on contracts at Essential Energy

WFD: Essential Energy has successfully appealed a Fair Work Commission (FWC) decision limiting its ability to place senior and higher paid employees on individual contracts.

On appeal, Essential Energy successfully argued coverage under clause 1.3 of the company's enterprise agreement (EA) was determined solely by whether an employee's base weekly rate of pay was in excess of $2,589.75 a week. If it was, the worker was covered under an individual contract; if not, the EA applied, a FWC full bench ruled.

Overturning an earlier decision by Senior Deputy President Jonathan Hamberger, the full bench - Vice President Adam Hatcher, DP Peter Sams and Commissioner Donna McKenna – found SDP Hamberger erred in putting aside a literal construction of Clause 1.3 in favour of a "common-understanding" approach supported by the Australian Services Union (ASU). This approach raised the contract eligibility bar by including a range of allowances and other additions in the salary calculation equation.

The full bench agreed with Essential that the line between those covered by the EA and those outside it was "expressly drawn" by reference to the base weekly rate of pay at pay point 44.

There was "no available reading of that expression which could equate it with total remuneration", nor was one suggested, the bench found.  "In relation to an employee required by Essential Energy to work a 40 hour week, it cannot be the case, as the unions suggested, that simply by paying a few dollars per week more than the current $2,589.75 weekly rate for pay point 44, the person thereby falls outside of the coverage of the 2013 agreement," it found.

(Essential Energy v AMWU, FWCFB1981, 4/5/15)


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

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

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

The Trade Union Royal Commission (TURC) heard that Cleanevent, which did clean ups for the Formula 1 Grand Prix, the Easter Show and the Melbourne Cup, saved an estimated $2m a year from the arrangement .

The company's low casual rates – with substantially reduced penalty rates - were said to be "very attractive" to Spotless, which later acquired the business in 2010.

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

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

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

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

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

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

Cleaners had 'no knowledge' of membership selection

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

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

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

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

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

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

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

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

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

Inflated membership boost AWU power in ALP

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

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

Aside from the financial benefit to the AWU Vic, inflated membership numbers increased the branch's influence in its union's national executive as well as within the Australian Labor Party (ALP).

That in turn led to greater influence over ALP policy formation, membership of ALP committees and selection of ALP candidates.

"The persons who miss out are the workers," Stoljar said.

"Cleanevent's employees, or at least its casual employees, appear to have been significantly worse off under the MOU than they would be under the relevant 2010 award."

False accounting serious offence

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

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

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

AWU member fees cover other companies

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

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

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



Committee for Economic Development of Australia: 'Digital disruption and Australia's future workforce'. June 16, Melbourne. More info here.

Australian Workplace Relations Study conference, Fair Work Commission: June 25-26, at University of Melbourne. More info here.

ALP national conference: July 24-26, Melbourne. More info here.

Australian Mines and Metals Association: August 6-7, at Pan Pacific, Perth. Speakers include Stuart Wood QC, Kate Carnell and Senator Zhenya Wang. More info here.


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Editor: David Marin-Guzman, (02) 8587 7682, david.marin-guzman@thomsonreuters.comChiefJournalist: Paul Karp. Journalist: Steve Andrew. Managing Editor: Peter Schwab.  Product Code:314021719635.Twitter: @WorkforceTR





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