From:                              eNews, LTA ANZ

Sent:                               Tuesday, 26 May 2015 4:22 PM

To:                                   Schwab, Peter R. (Legal)

Subject:                          Workforce Daily: Union plan to recruit school children; Subcontractor hit with $300k for hiding behind labour hire firms; ACTU Congress report; more


Please click here if you are having problems viewing this email

Thomson Reuters Australia

Issue 19632 , Tuesday 26 May 2015

Click here to view printer friendly PDF

In this issue

Union plan to recruit school children


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


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


No contest at ACTU Congress


Compensation is not a punitive measure: bench


Lambie makes new push for 'explosive' secret TURC report


Editorial Team




Union plan to recruit school children

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

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

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

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

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

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

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

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

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

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

Unions need numbers not just strategy: delegate

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

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

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

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

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

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


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

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 4/05/2015) –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, Foxville replaced Caiman with a company called BSI Manpower, which had an issued capital of $2, no real property or other registered assets, and no prior experience in the labour hire industry.

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

Deciding on the question of 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' conduct over labour hire

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 a maximum $33k.

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)


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

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

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

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

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

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

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

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

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

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

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

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

The charter was adopted unanimously by Congress this morning.


No contest at ACTU Congress

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.


Compensation is not a punitive measure: bench

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 andGraeme 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)


Lambie makes new push for 'explosive' secret TURC report

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

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

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

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

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

"It goes without saying that I am confident that you personally would preserve the confidential status of the report," Heydon wrote.

"But I fear that any significant dissemination of it would result in a destruction of confidence and create the possibility of the danger to the physical wellbeing of witnesses and their families."

Cmr Heydon also revealed TURC did not have a copy of the Hadgkiss report but was briefed on its content.

Report needed to vote on ABCC: Lambie

On May 11, Lambie voted with the other crossbench senators to extend the coercive powers of FWBC (WF 15/05/2015).

But on May 14 in a Senate speech Lambie reiterated her need to see the TURC confidential report before deciding how to vote on the proposed reintroduction of the Australian Building and Construction Commission.

Lambie described the report as "one of the most important and explosive documents ever written in recent Australian political history", citing its description in the interim report as revealing "grave threats to the power and authority of the Australian state".

"Implicit in these words is a warning … that the very authority of Australian govt is under threat by an unknown hostile enemy," she said.

Lambie accused the govt of "deliberately covering up" the TURC report and criticised the Napthine and Andrews Vic govts for refusing to release the Hadgkiss report.

Speculating on the reasons for these 'cover-ups' Lambie said "it is likely that the reputations of both major political parties, Labor and Liberal, may be harmed if these reports were ever made public or viewed by independent parliamentarians".

Proposal to securely show secret TURC report

On May 19, Lambie wrote to PM Abbott and Cmr Heydon. She asked the PM what the "grave threat" identified by the report was, and who had been given access to it.

Lambie proposed the PM release the secret TURC report to all senators, adopting procedures to protect the identity of witnesses.

She noted the Defence Abuse Royal Cmn's confidential materials in 'DLA Piper Volume 2' had been made available to senators who signed a confidentiality agreement. They were then shown copies without being able to take photos or notes.


Editorial Team

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




Advertising enquiries email

Editorial Enquiries:

Level 6, 19 Harris St Pyrmont NSW 2007

Phone: 02 8587 7682

Subscription Enquiries: (e.g. change of subscriber names and new email addresses):

PO Box 3502 Rozelle NSW 2039

Phone: 1300 304 195

Fax: 1300 304 196

© 2015 Thomson Reuters (Professional) Australia Limited ABN 058 914 668

Workforce is published weekly and is available by subscription only.

Published by Thomson Reuters (Professional) Australia Limited: ABN 64 058 914 668 ISSN: 1446-5752

Copyright. Reproduction prohibited. Private and confidential information for subscribers only. 

Copyright waiver applications should be made to the editor.