Issue 19632
, Tuesday 26 May 2015
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In this issue
[1]
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.
[2]
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)
[3]
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.
[4]
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.
[5]
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)
[6]
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.
[7]
Editor: David
Marin-Guzman, (02) 8587 7682, david.marin-guzman@thomsonreuters.com. ChiefJournalist: Paul
Karp. Managing
Editor: Peter Schwab. Twitter: @WorkforceTR
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