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Subject:                          Workforce Daily: 'Attack of nerves' not enough to show PTSD disability under adverse action; ACTU to organise affiliates' industrial campaigns; TWU calls for 'radical' action; more


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Thomson Reuters Australia

Issue 19633 , Wednesday 27 May 2015

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In this issue


Stress symptoms not enough for discrimination in adverse action law



ACTU unit will organise affiliates' industrial campaigns: Oliver


Let's get radical: TWU NSW secretary



Unions lack equal representation of women at top: report


Australia must get ahead of automation curve: Shorten



Editorial Team



Stress symptoms not enough for discrimination in adverse action law

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 4/10/2013).

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.

The judge 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 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 DD Act breach occured 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 "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."

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 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".


ACTU unit will organise affiliates' industrial campaigns: Oliver

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

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

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

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

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

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

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

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

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

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

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

Local resourcing the focus of $13m spend

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

The ACTU would focus its efforts on data, such as aggregating and updating union lists, social media engagement with voters, and ground resources like field campaigners and door-knocking. None of the $13m will pay for national TV advertising, despite that being the "most significant spend" in the successful Your Rights At Work campaign in 2007, Oliver said.

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

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

ACTU could go further: Professionals Australia

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

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

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

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

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

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

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

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


Let's get radical: TWU NSW secretary

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

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

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

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

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

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

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

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

Aird's comments follow TWU national secretary Tony Sheldon last year sayinghis union was considering a campaign of civil disobedience in the face of Qantas job cuts with he and other union officials willing to be arrested (WF 17/04/2014).

Collective bargaining must reach marginalised workers: Ayres

The call to expand collective bargaining rights to an industry level was backed by Australian Manufacturing Workers Union NSW secretary Tim Ayres.

He said the movement needed to help workers who are "remote" and "haven't had the benefit of enterprise bargaining" such as independent contractors, labour hire workers and those in the new economy like Uber drivers.

"What is our membership proposition for people in the new economy? Or who can't access the instruments of the law and the union movement?" Ayres asked.

"Our answer can't be 'more of the same, more energetically'," he said.  "More enterprise bargaining won't solve the problem for these people".


Unions lack equal representation of women at top: report

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 today (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.


Australia must get ahead of automation curve: Shorten

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

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

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

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

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

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

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

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

Labor fights against visa exploitation: Shorten

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

He argued the govt was attempting to repair the budget deficit through 'bracket creep', which he described as the "stealthy invisible hand of inflation". "[The govt] puts its hand into your pocket taking your wage increases as increased taxes," he said.

Shorten also promised Labor would "never sign up for the exploitation of people on working visas, no matter what pressure is put on us by the conservatives".

However, last week shadow treasurer Chris Bowen announced Labor would support the Coalition's proposed 32.5% working holiday visa tax from the first dollar earned.

That was despite the National Union of Workers saying the tax would be like "pouring gasoline on a fire" by providing a disincentive to pay the visa workers appropriately and "dooming" them to a black market economy (WF 22/05/2015).


Editorial Team

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




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