Issue 19634
, Thursday 28 May 2015
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In this issue
[1]
Casual cleaners at a major sports event company
were short-changed by up to two thirds of their hourly rate by the
Australian Workers Union (AWU) Victoria branch maintaining an expired
WorkChoices agreement that saved their employer millions of dollars a year
in wages.
The AWU agreed to maintain the 2006 enterprise
agreement 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 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.
Senior counsel Jeremy Stoljar said it
appeared the AWU had entered a MOU and not an EA because an 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 agreement 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 gave them $41.44 an hour.
At the same time as the MOU a 'side letter' was
agreed to where Cleanevent would pay the AWU up to $25k a year in
'membership fees' and supply it with a list of cleaner 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 it would pay membership fees at
"random".
Asked how he knew whether the members wanted to
join the union or not, Webber replied "I didn't."
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" agreement 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 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 the Australian Labor Party (ALP) – which 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."
He questioned whether the fees were breaches of
s287 of the Fair Work (Registered Organisations) Act in that 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 numbers 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 make 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.
[2]
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)
[3]
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 yesterday (May 27) abstained from the congress vote on the increased
campaign levy due to their opposition to it. The motion was carried on the
voices.
Today (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".
[4]
About 50 manufacturing workers were protesting
outside Canterbury Windows South Melbourne factory at presstime (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 yesterday after the
union withdrew a threatened eight-hour stoppage planned for today and a
further four-hour stoppage for tomorrow, 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."
[5]
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 Australian Municipal, Administrative, Clerical and Services Union
[2015], FWCFB1981,
4/05/15)
[6]
Editor: David
Marin-Guzman, (02) 8587 7682, david.marin-guzman@thomsonreuters.com. Chief Journalist: Paul
Karp. Journalist:
Steve Andrew. Managing
Editor: Peter Schwab. Twitter: @WorkforceTR
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