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Subject:                          Workforce Daily: Disciplinary 'ambush' was bullying; Labour law a 'side show', academic; ACTU unveils social wage wishlist; more


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Thomson Reuters Australia

Issue 19631 , Monday 25 May 2015

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In this issue

Disciplinary ambush not reasonable management action: FWC


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


Oliver unveils social wage wishlist


Qld opposition claims 'privacy' flaw in union encouragement clause


Editorial Team




Disciplinary ambush not reasonable management action: FWC

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

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

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

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

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

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

Employer patient in face of worker's inflammatory emails

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

Fragmentation of employment relationship

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

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

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

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

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

Impact of other areas of regulation on IR

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

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

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

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

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

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

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

Politicisation of labour law

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

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

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

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

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

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

Labour law failure sparks quest for alternative

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

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

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

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

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

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

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

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

An edited version speech is available here.


Oliver unveils social wage wishlist

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

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

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

·         universally accessible healthcare;

·         highest quality education;

·         decent public services;

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

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

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

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

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

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

Digital platforms encourage 'lowest cost' work

Oliver reiterated his pledge made at the National Press Club to set up a taskforce on how to represent workers in the 'liquid economy' – digital platforms like Uber and which treat them as independent contractors (WF 8/05/15).

"Workers are bidding on ebay style platforms for a parcel of work, where the work goes to the lowest bidder," he said.

"How the hell do you regulate this? How do you ensure [workers] are protected by minimum standards like super and workers' comp? This is a real challenge not only for our movement but govts now and in the future," Oliver said.

ACTU reaffirms boycott of 'political' TURC

Despite the Trade Union Royal Commission (TURC) discussion paper flagging proposed anti-racketeering provisions and new restrictions on who can hold union office (WF 22/05/15), Oliver was adamant the ACTU would not engage with TURC.

"Our position is very clear - it's a political witch-hunt," he said. "If [TURC] wants our views on those matters [in the discussion paper] – it can look at our website or the submission we've made to legitimate bodies such as the Productivity Commission review of workplace relations and Senate bodies."


Qld opposition claims 'privacy' flaw in union encouragement clause

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

The Palaszczuk govt has approved a union encouragement policy which:

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

·         encourages employees to join unions;

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

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

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

The policy warned "passive acceptance by agencies of membership recruitment activity by unions does not satisfy the govt's commitment".

Rather, it required agencies "to take a positive, supportive role although ultimately it remains the responsibility of the unions themselves to conduct membership".

On Thursday (May 21) opposition leader Lawrence Springborg claimed the legality of the policy was "in doubt".

His comments followed an alleged statement by Treasurer Curtis Pitt the personal information of new govt employees cannot legally be sent to union bosses under its encouragement policy.

"[On Wednesday May 20], Pitt refused to confirm whether a new govt employee could opt-out of having their personal details provided to union bosses," Springborg said in a statement.

"[Now] he reveals the policy, that demands personal details of public servants be sent to union bosses, is apparently illegal," Springbord claimed.

Privacy respected, only name and location revealed: govt

A spokesperson for Pitt told Workforce Daily he had "confirmed that all new starters in the Qld govt are protected by privacy laws".

But he said the policy was not illegal because "no private details are passed on … the only information that's passed on is limited to a person's name and details about where they work".

The spokesperson said new employees would be "clearly advised" that their name, workplace name and location would be passed on.

"If an employee is contacted by a union representative, they are free to join or not join a union as they see fit. This policy gives them freedom of choice and freedom of association," he said.


Editorial Team

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




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