From:                              Customer Helpdesk, LTA

Sent:                               Friday, 28 March 2014 5:10 PM

To:                                   Schwab, Peter R. (Legal)

Subject:                          Workforce 19085: Royal Cmn restricts cross-examination; EA site exclusion clause not unfair; Min wage review submissions; more


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Thomson Reuters Australia

Issue 19085 , Friday 28 March 2014

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In this issue


Royal Cmn limits cross-examination



Small business income should be factor in min wage review: ACCI


Fed court rules EA site exclusion clause not unfair



Fed Govt comes to bargaining table


Communicated, not real, reason key to unlawful adverse action



Senate Committee says building criminality 'wildly overstated'


Qld Govt threatens to use scab doctors in contract dispute



Williamson sentenced to 5 years jail


Required overtime part of income



Genuine redundancy may require contractor replacement


Tracey fails in RoE appeal



FWC restrains co-worker in first bullying order


AAWI for current agreements falling



FWO offer small biz hiring help


Cleaning guideline repeal cuts pay



Adult rate win for 20 year olds


Thomson out on bail pending appeal of prison sentence



No delay in super increases


Fed Court defines complaints as rejects sexual harassment claims



Costs of unreasonable settlement offer


Bullying claim fails due to jurisdictional objection



ABCC claims led to no convictions


No further clarity for 'crippling' and 'indefinite' paperwork ban



Vale Wally Curran


Anaesthetist's reinstatement fight goes under



Howes resigns amid confusion over next move


Hadgkiss targets pattern bargaining



Registered orgs already regulated


Toyota appeal to be heard in May





Editorial team





Royal Cmn limits cross-examination

 The Royal Commission into trade union corruption will not allow an automatic right to cross-examine witnesses and could even preclude parties from examining their own witnesses, according to practice directions issued this week. The directions issued on Wednesday (March 26) also suggest the cmn's first substantive hearings may not be held for another two months, given the directions require any person seeking to appear to lodge an application by Thursday, May 1. The Govt previously proposed the cmn's first hearing be held on April 9. Workforce understands the cmn will hold a broad directions hearing on that date. A cmn spokesperson told Workforce it would not be making any public comment about the hearing as it was "still working through a lot of detail" on how the cmn will operate and when hearings will be held. However, the cmn will issue a statement about the first hearing at 5pm on press day.

No immediate cross-examination

The directions make clear Commissioner Dyson Heydon will have extensive control over parties' participation in the inquiry. They specify there will be no immediate cross-examination once counsel assisting has examined a witness. Instead, the hearing will be adjourned and parties can file documents within a "designated time" challenging the accuracy of witnesses' evidence and setting out "with precision" topics for cross-examination. However, the cmr will have ultimate say over whether to permit cross-examination and can limit it to a topic, time or otherwise. The cmr can also restrict parties from examining their own witnesses-once he permits them to appear-leaving their examination only to counsel assisting. Workforce understands the restrictions are similar to the 2006 Cole Royal Cmn into building unions. They differ from the NSW Independent Commission Against Corruption practice which allows interested parties to ask relevant questions to witnesses. Maurice Blackburn special counsel Michael Doherty, who will be representing unions in the inquiry, told Workforce the restrictions could allow questionable evidence to go unchallenged for days while they are publicly spread in the media. Doherty said the requirement for written submissions on cross-examination would lead to "much more drawn-out proceedings" and the cmn could be "jumping from one bit of evidence to another". "All that makes for a disjointed and problematic proceeding," Doherty said.


Small business income should be factor in min wage review: ACCI

Employer groups are seeking minimum wage rises of as low as 1.3% in submissions to the Fair Work Commission annual review due to fears of low growth and rising unemployment. The Australian Chamber of Commerce and Industry (ACCI) and Australian Retailers Association (ARA) have both recommended the national minimum wage rise by no more than $8.50 per week, or 1.3%. The current minimum is $622.20. The highest claim is by the Australian Council of Trade Unions (ACTU), which is asking for a $27 per week increase to $649.20, 4.3%. The Australian Industry Group (AiG) wants $10 per week, 1.6%. ACCI's draft summary of submissions stated it believed CPI would be 2.7%, but warned of "heightened risks to growth" that the minimum wage panel "must take into consideration". "ACCI's proposed $8.50 increase seeks to minimise employment losses in a weak labour market," it said. ACCI said Australian has "one of the highest minimum wages in the world and this continued to limit employment opportunities for the low-paid". ACCI asked the panel to consider the income of small business owners, which it said the panel failed to do in 2012-13. "In comparison to employees, both employing and non-employing small business owners in award-reliant industries work longer hours, have more experience, and make significant capital investments," it said. ARA executive director Russell Zimmerman said a 1.3% increase would "claw back the over-compensation for inflation provided in the last two minimum wage decisions".

Increase must prevent working poor: ACTU

ACTU secretary Dave Oliver said "if action isn't taken to increase the minimum wage and turn around the alarming decline in the relative earnings of low paid workers then Australia will have an entrenched working poor". "The minimum wage is now just 43.3% of average full time wages - the lowest proportion on record," Oliver said. He said "a $27-per-week increase to the minimum wage will ensure the gap between low paid workers and the rest of the workforce does not widen even further". AiG chief executive Innes Willox said the unions' proposed $27 rise was "unrealistic, unaffordable and unsustainable". "If such a claim was granted it would cause significant economic damage and undoubtedly lead to greater unemployment," he said.Hearings in the case are scheduled in May with a decision expected in early June. Any increase awarded will be operative from July 1, 2014.


Fed court rules EA site exclusion clause not unfair

In a big win for employers, a Federal Court judge has found the Fair Work Commission cannot reject an enterprise agreement (EA) under the "fairly chosen" test on the basis its coverage undermines collective bargaining. Justice Antony Siopsis made the ruling when quashing a then-Fair Work Australia (FWA) full bench decision that had rejected John Holland's broad West Australia EA which excluded employees on site-specific agreements (WF18625). The bench held it could not be certain how many employees were covered by the EA and that the agreement's 'exclusion' provision was contrary to the purpose of the Fair Work Act and the "fairly chosen" test under s186(3A). It found the agreement, negotiated with just three employees, would undermine collective bargaining by other employees. John Holland appealed arguing the bench had misconstrued the fairly chosen test. Justice Siopsis agreed. He noted there were no employees on site-specific agreements at the time the agreement was made and found FWC had wrongly considered how many employees "would, or may, be covered" throughout the EA's term. The judge stressed the "was fairly chosen" test under s186(3) referred to the past tense and did not refer to the number of employees to be covered. Further, he said an exclusion clause that contemplated that "circumstances may arise when employees who would otherwise have been covered by this agreement may be covered by a different agreement" was fair and did not affect the fairness of the choice of the employees covered. "In other words, the inclusion of cl 1.2 did not preclude FWA from embarking upon an assessment of the fairness of the fundamental criteria specified by the makers of the agreement."

Fairly chosen about 'business' characteristics

Justice Siopsis found the question under s186(3) of whether parties had acted "fairly" in choosing the employees covered arose because those employees would be better off overall than those not covered by the agreement. He noted each of the criteria in subclause s186(3A), which specifies the group must be organisationally, operationally and geographically distinct, describes a "legitimate business-related characteristic". The reason for that, in his view, was to prevent an EA from excluding employees because of an "extraneous characteristic", such as their nationality or political beliefs. As an example, he said if a group of employees doing the same work and in the same location were chosen to be covered by an EA on the basis of their birth place or their support of a particular political party, that group would not have been fairly chosen.

FW objectives do not affect construction

He rejected that s186(3) test required consideration that the group "was chosen in a manner which would not undermine collective bargaining" as under s587(a). "I am of the view that the general words in s578(a) do not permit FWA to imbue the words of the statute with concepts which are not to be found in those words when properly construed," he said. He said the general words in s578(a) "must yield to the specificity embodied in s 186(3A)" in relation to the proper construction of "was fairly chosen". He noted there was no express provision preventing an EA approval if it undermined collective bargaining, although there was if it undermined good faith bargaining. "In the absence of that power having been conferred expressly on FWA, it is, in my view, not open to FWA to exercise such a power under the rubric of s 186(3) of the FW Act," he said. "Plainly, the full bench was of the view that there was something wrong with three employees being able to make an agreement which covered work classifications other than their own," he said. "However, if there is a lacuna in the FW Act, on which I express no view, then the remedy would appear to lie in legislative amendment." He quashed the decision and invited submissions on further orders. (John Holland v CFMEU [2014] FCA 286, 27/3/2014)

Master Builders Association WA construction director Kim Richardson told Workforce he welcomed the decision as the John Holland EA was common in WA and the full bench decision had operated as a "bit of a road block" to approving similar agreements due to uncertainty about the criteria.


Fed Govt comes to bargaining table

The Federal Government will release its bargaining framework today, after the Community and Public Sector Union (CPSU) started launching petitions to force the govt to bargain through majority support determinations (MSDs).

In December 2013, the CPSU lodged bargaining claims seeking three 4% pay rises for 110 public service enterprise agreements due to expire on June 30, 2014. This week the CPSU started petitions for MSDs in the veterans' affairs, education and employment departments, claiming the govt had failed to authorise agencies to start bargaining. On Thursday (March 27) employment minister Senator Eric Abetz revealed bargaining would begin with the release of the govt's bargaining framework today. The enterprise agreements cover 165,000 public servants in 114 agencies. Abetz told the Senate there was "minimal capacity for wage increases". He said he had told the CPSU governing council to "be mindful that unsustainablewage rises will cost other public servants their jobs and that it would be particularly beneficial for both the Commonwealth and unions to manage expectations". Abetz claimed the CPSU's 12% wage claim would cost "around $1.5bn over three years", which was "clearly unsustainable". He said the claim was "out of touch with community expectations" and "potentially jeopardises over another 10,000 public service jobs". The CPSU said the start of bargaining was "a significant win" after "months of stone-walling and delays from the Govt".


Communicated, not real, reason key to unlawful adverse action

In an unusual decision, a judge has said that an employer would have committed adverse action for a prohibited reason because its manager had given the employee the impression it was because of his industrial activities, despite the real reason being operational changes.

However, Federal Circuit Court Judge Rolf Driver ultimately dismissed union delegate David Cole's claim against Premier Motor Services because he found the company's failure to allocate work to the union delegate was not adverse action.

The Transport Workers Union (TWU) had claimed in August 2012 Premier removed Cole from its list to do coach charter trips after he circulated a petition to other drivers on behalf of the union ahead of a planned industrial campaign at the site in support of enterprise agreement demands. The TWU said that was an "injury" to Cole in his employment "and an alteration to his position as an employee to his prejudice for the purposes of s342 of the Fair Work Act".

Premier denied any adverse action, claiming Cole was asked whether he would be available to do a charter run but the run was not allocated for operational reasons.

Judge Driver found the action was not an injury or prejudicial alteration specific to Cole because the company had subcontracted the work. If the work had been taken from Cole and given to another employee in preference to Cole, it would have been an injury and so adverse action. But the judge found the charter work "ceased to exist as work" at Premier as a result of its operational decision to subcontract that work.

However, Judge Driver warned if he had found the withdrawal of charter work was adverse action, the NSW bus operator would not have discharged its onus to prove it had not done it because of the worker's exercise of a workplace right ie, engaging in industrial activities.

While accepting Premier's real reason for the action was operational, Judge Driver found the company had sent a message to Cole about the work withdrawal to "create the impression" it was because of his industrial conduct. "For these reasons, the court could not be satisfied that the reason for not confirming Cole to undertake the charter work was dissociated from and did not include that Cole had participated in an industrial activity," he said. However, he rejected the application due to his findings there was no adverse action.

(TWU v Premier Motor Service Pty Ltd, FCCA9, 21/3/14)


Senate Committee says building criminality 'wildly overstated'

The Senate education and employment committee has recommended the upper house reject re-establishment of the Australian Building and Construction Commission (ABCC), because it would not have the jurisdiction to tackle criminality.

The committee's report's said claims of criminality were "wildly overstated". The cttee, dominated by Labor and Greens members, recommendation to knock back the ABCC was based on "the failure of the government and proponents" to establish:

·         an economic or productivity case for the ABCC;

·         the "uniqueness" of the industry sufficient to warrant "draconian powers and penalties";

·         sufficient oversight and safeguards for coercive powers;

·         the ABCC would improve occupational health and safety; and

·         justification for the "very serious incursions on human rights" in the bills.

Govt evidence fails 'standard of proof'

The committee (above) said submissions by employment minister Senator Eric Abetz were "not of a sufficient detail and quality to satisfy the very high standard of proof" required to justify interference with human rights. Rights infringed included "the burden of proof applying to an accused person, the right to silence, the privilege against self-incrimination, freedom from retrospective laws, equality of treatment before the law and infringement of the separation of powers by delegating law making power to the executive", the committee said. The report noted the "almost complete absence of successful criminal prosecutions" since the Cole Royal Commission into the building industry, which indicated "highly inflammatory claims of endemic thuggery, violence and criminal activity" were "wildly overstated". It rejected the idea the ABCC could stamp out criminality, since it would not have criminal jurisdiction and if it did "it could irrevocably prejudice any possible prosecution". Claims of productivity improvements were "not supported by the evidence" and "made on the basis of deeply flawed analyses", it said. The Coalition Senators' dissenting report blasted Labor and the Greens' decision to force the committee review of the Bill as "at best an abuse of process and at worst a meaningless exercise" (WF18965). The Coalition stood by the Legislation Committee's December 2013 report (WF18965).


Qld Govt threatens to use scab doctors in contract dispute

Qld Premier Campbell Newman has threatened to recruit overseas and interstate doctors to replace Qld doctors who resign over attempts to push them onto individual contracts. Newman made the threat after the Australian Salaried Medical Officers Federation (ASMOF) began coordinating mass resignations to force the Qld Govt back to the bargaining table in the dispute. Qld Health, the Australian Medical Association (AMA), Together Union (TU) and ASMOF have been embroiled in a major dispute over introduction of individual contracts for senior medical officers (SMOs) and visiting medical officers (VMOs) since a Qld Health report recommended the move last year. Qld Health has set a deadline of April 30 to sign the contracts, to come into force from July 1. The proposed SMO and VMO contracts would allow for termination with three months' notice for medical officers of fewer than five years' service and six months for those with more than five years. SMOs would lose their right to appeal dismissal to the Qld Industrial Relations Commission (QIRC). In February, doctors voted to reject the individual contracts. The AMA recommended members not sign until demands for greater protections were met. It cited concerns over: "the absence of a binding arbitration process for dispute resolution"; arbitrary dismissal; "the absence of a no-disadvantage clause"; enforced shift work, and certain key performance indicators being tied to income. The AMA has argued health managers could unilaterally change conditions because under December 2013 amendments the Hospital and Health Boards (HHB) Act 2011 s51C allows employment directives from the Qld Health director general to prevail over industrial instruments. Qld Health stated the directives "are specifically designed to regulate employment across separate statutory bodies so conditions such as pay rises can be applied without renegotiating thousands of contracts". "They were not specifically designed as an instrument to regulate employment." Rejection of the individual contracts forced a new round of consultation with Qld Health and Qld health minister Lawrence Springborg, which began on March 6.

Dept makes concessions

Qld Health drafted an addendum to contracts stating that before termination, doctors will receive notice of concerns and an opportunity to respond. It also allows for appeal of termination to the Qld Health director general, who will request a review of the dismissal by the deputy president of QIRC to determine if it was harsh, unjust or unreasonable.

The QIRC DP will also provide final dispute arbitration. The addendum promises four weeks' notice for roster changes, but still provides medical officers "cannot unreasonably decline" to work proposed shifts or to decline to work at alternative locations. It allows SMOs to revert to collective employment arrangements before June 30, 2015 but the termination and dispute settlement clauses of individual contracts will still apply to them.

Unilateral contract change still in dispute

Despite the concessions, the AMA wrote to its members that the new offer "does not cover the full range of unilateral changes which may be made to a number of terms and conditions in both SMO and VMO contracts". The AMA said "proposed legislative changes appear to allow the health minister to override contract provisions via regulation".

AMA national president Dr Steve Hambleton told Workforce the Qld Govt made a further concession on Tuesday (March 18), offering to amend the HHB Act so that employment directives could not override industrial instruments. He said this was a "substantial improvement" but the AMA was seeking legal advice to check these changes would guarantee contractual conditions were protected.

ASMOF blasts 'sham changes and weasel words'

ASMOF national president Dr Tony Sara told Workforce the union believed the concessions (above) were "sham changes, weasel words and complete crap" because they did not restore a right to access the QIRC itself with protections of "due process", only a review by a hand-picked QIRC DP. Legal advice to ASMOF seen by Workforce noted the right to review of dismissal and final arbitration before a QIRC DP was contingent on referral by the Qld Health director general. "That is the last thing that you would want – to be relying on your opponent to get your matter before the decision maker," the advice said. The advice noted the contracts contained clauses, such as "unless a regulation provided otherwise", which would still allow legislation and regulation to override the contracts.

Qld Health claims doctors misled by unions

Meanwhile, Qld Health director general (DG) Ian Maynard has been conducting meetings with doctors to settle the dispute. Yesterday (March 26), Maynard said unions had been "less than constructive" and "it was clear from [doctors'] comments that many felt they had been actively misled by representatives of industrial unions". Senior doctors – by contrast – "were effective in representing their colleagues' interests and concerns", he said. Maynard claimed "it's clear [Qld Health's] genuine solutions to issues raised by senior doctors, including changes to the HHB Act, are not being communicated by those who represented them in discussions". "The unions seem to have little interest in providing doctors with the [Qld Health's] solutions which have been offered in good faith," he said. Maynard claimed he was allowed only five minutes to outline proposed solutions at a March 19 mass meeting of doctors. ASMOF's Sara said accusations doctors had been misled were "completely fallacious" and an attempt to divert attention from the "unconscionable contracts" the Qld Govt was trying to force on doctors. Together Union did not respond by press time.

ASMOF coordinating mass resignation

Sara told Workforce the union would be coordinating mass resignations by doctors unless the govt meets its demands. ASMOF was giving doctors pro-forma resignations, as well as a document which delegates authority to the national president to submit the resignation on their behalf. Sara said once the union had enough resignations to shut the Qld health system down, the govt would be forced to restore rights to collective bargaining and proper access to the QIRC to dispute dismissals. This led to the March 19 threat by Premier Newman in Qld Parliament that "if people choose to resign, we will have in place arrangement to replace those people, and if we have to recruit people from interstate or overseas, we shall do that". DG Maynard has warned there will be no extension of the April 30 deadline to sign individual contracts. On March 26, AMA's Hambleton said the possibility of "mass resignations by highly-qualified and dedicated senior doctors who have lost trust in this process to date" was "very real". "It is not the time to put petrol on the fire," Hambleton said. "Qld cannot afford to lose these doctors. Contrary to some views being bandied around, these doctors cannot be easily or quickly replaced." He said the AMA had been "constructive" and "had not been misleading anybody".

AMA calls for contract roll-out moratorium

Hambleton blamed the deadlock on "the pressure of the short timeframes for detailed discussions and an unrealistic deadline for an agreement". "There was no time for the doctors to absorb the complexity of the changes being offered by the Govt," he said. Hambleton has called for a return to negotiations and an "immediate moratorium on the roll-out of contracts so that the Govt's offer can be properly considered".


Williamson sentenced to 5 years jail

Former NSW secretary of the Health Services Union (HSU) Michael Williamson has been sentenced to at least five years jail for defrauding the union of almost $1 million. In a sentencing hearing today (March 28), the District Court described Williamson's action as "brazen and arrogant". Responding to the sentence, HSU NSW secretary Gerard Hayes told Workforce associate publication WFNSW the NSW branch would continue to pursue the lost money, despite Williamson's declaration of bankruptcy. A Federal Court action examining Williamson family assets is expected to get underway in five weeks. The hearing comes just days after former national secretary of the union Craig Thomson was sentenced to three months jail for wrongly using a union credit card including to pay for prostitutes. Thomson is appealing the sentence.

HSU NSW to open its books

The HSU NSW branch will now open its books to members under orders designed to address "invalidities and irregularities" in the financial administration of the union during the Williamson years. Approving on Friday (March 21) the branch's application for rectification orders, Justice Walton ordered the union provide members with unaudited accounts and balance sheets; a balance sheet and profit and loss statement; and audited financial statements. For more see WFNSW.



Required overtime part of income

WFD: A Fair Work Commission full bench has found mandatory overtime counts towards the high income threshold on unfair dismissal applications because - regardless of whether it was "guaranteed" - it can be calculated in advance. The decision is one of the first full bench rulings to look at what constitutes earnings under s332 of the Fair Work Act. The bench was dealing with Aaron Foster's appeal of Commissioner Danny Cloghan's decision that he was prohibited from claiming unfair dismissal against CBI Constructions. Cmr Cloghan found Foster's regular overtime meant his income was over the high income cap in s382(b)(iii) of the FW Act. Earnings which count to the cap include "employee's wages" but exclude "payments the amount of which cannot be determined in advance". A note in the section states overtime is an example of a payment "which cannot be determined in advance" unless it is "guaranteed". Foster argued Cmr Cloghan erred in finding he was "guaranteed" 2.5 hours overtime a week, because although he was required to work overtime CBI Constructions was not obliged to permit him to work.

Test is advance determination not 'guarantee'

The full bench – Vice Presidents Joe Catanzariti and Michael Lawler and Cmr John Lewin – held there was a public interest in hearing the appeal due to scarce authority on what constituted earnings. The matter is now governed by reg 3.05 of the FW Regulations, which was not in force at the time of the dismissal. The bench held "guaranteed" overtime was not the only type that could count towards the cap. It found "thepurpose of the legislative note is not to exclude all overtime payments as a broad category" – only payments which could not "be determined in advance".Whether Foster "had a legal right" to overtime and his employer a "legal obligation" to give it was "of no assistance to determining whether the payments" of overtime could be determined in advance. The bench held it could, as the evidence showed Foster and other supervisors had been directed to attend a 30 minute pre-start meeting every work day. The bench found Cmr Cloghan's emphasis on the term "guaranteed overtime" was "not entirely warranted", but said there was "nothing to suggest he misconstrued s332". Nevertheless the conclusion overtime was "guaranteed" was open, it said.The bench found Cmr Cloghan had decided on the basis overtime could be determined in advance, and dismissed the appeal. (Foster v CBI Constructions [2014], FWCFB 1976, 24/03/14)


Genuine redundancy may require contractor replacement

WFD: The Fair Work Commission (FWC) has held employers must consider contractor work as part of possible redeployment options for redundant employees.

However, it rejected miners' claims their redundancies were not genuine because their employer could have cut overtime hours or given them contractors' work.

The Construction Forestry Mining Energy Union (CFMEU) represented 12 miners made redundant from Ravensworth Underground Mine (RUM) in NSW. The coal mine, part of the Glencore Xstrata Group, is due to be wound down in 2014. By July 1, 2013 RUM had retrenched 74 of the mine's 283 employees, with about 19 redeployed within the Group. RUM told employees who were not redeployed that it had "considered other employment opportunities within the Group" but "there [were] currently no appropriate positions available" because the restructure had created more redundant positions than vacancies. FWC Deputy President Jeff Lawrence rejected the CFMEU's claim RUM had "acted contrary to the decision in Ulan Coal" (WF17355) because "no preference was given to the applicants over other Xstrata Group employees". Rather, those seeking redeployment at associated entities had "lost out to other RUM employees at risk of redundancy".

Overtime cuts and contractor work possible …

DP Lawrence said it was "legitimate" for the CFMEU to raise reducing overtime as an alternative to redundancies but there was insufficient "evidence of the reason for overtime and how it could be translated into work for the applicants".

He held the recent FWC full bench decision in Pykett (WF19005) meant "work within the employer's enterprise" would include work carried out by employees of contractors. Even though he accepted the applicants had the necessary skills to do the work of contractors, DP Lawrence found there had already been a "significant reduction" in that work, and regular contractor positions had been eliminated.

… but no evidence redeployment reasonable

DP Lawrence accepted that "positions cannot be created where there are none", existing occupants of positions should not be displaced and "a complete change in employment strategy is not appropriate". There was "insufficient evidence" to decide there were jobs to which it would have been reasonable to redeploy dismissed employees, he said. He dismissed the unfair dismissal applications for reason of genuine redundancy.

(Teterin v Resource Pacific Pty Limited T/A Ravensworth Underground Mine [2014], FWC 1578,20/03/14)


Tracey fails in RoE appeal

WFD: Maritime Union of Australia (MUA) Western Australia assistant branch secretary Will Tracey has failed in his appeal against the Fair Work Commission's (FWC) refusal to renew his right-of-entry (RoE) permit. Lawyers for the union are now "looking at the decision", branch secretary Chris Cain confirmed to Workforce on Thursday (WF18961).

The March 26 decision by a FWC full bench – Deputy Presidents Val Gostencnik and Nicole Wells and Commissioner Wayne Blair - included a detailed look at what makes a "fit and proper person to hold a right of entry permit" under s512 of the Fair Work Act.

The bench noted an absence of a "precise meaning" for 'fit and proper person' under the Act. However, it found the cmn was entitled to take into account Tracey's participation in unlawful industrial action while in a senior leadership position, even though those matters did not necessarily involve the exercise of permit rights.

The bench rejected much of Tracey's submission s513 must be "read down", in the sense various permit qualifications matters must be taken into account only to the extent they were relevant to the exercise of entry permit rights.  

"In a given application for an entry permit, if a matter that is a permit qualification matter, then that matter must be taken into account in determining whether the official of the applicant organisation is a fit and proper person to hold an entry permit," the bench said. "Parliament has determined that such matters are relevant to that question and it would be wrong to only have regard to those matters if they are relevant to the exercise of entry permit rights. Such words of limitation appear nowhere in s513."

The bench said consideration of such matters should include the seniority of the union position, and conduct not necessarily involving exercise of permit rights, such as unlawful industrial action.

"Put simply, the determination of whether an official is a fit and proper person to hold an entry permit involves an assessment of the effect that the existence of any of the matters in s513, described as the permit qualification matters, has on the suitability of the official to hold an entry permit, with all of its attendant rights, conditions, limitations, and responsibilities."

The 2013 refusal subject to this appeal was the third time the cmn had refused Tracey's RoE permit, after previously revoking it in 2001 and 2002.

(The Maritime Union of Australia,FWCFB1973, 26/3/14)


FWC restrains co-worker in first bullying order

WFD: The Fair Work Commission (FWC) has issued its first order to stop bullying, including bans on an employee commenting about a colleague's clothes. The order limits interaction between two employees and was agreed to after a conference before Senior Deputy President Lea Drake on March 4, 2014. It prohibits the employee whose behaviour was complained of from:

·         having contact with the applicant alone;

·         making comments about the applicant's clothes or appearance;

·         sending emails or texts to the applicant "except in emergency circumstances"; and

·         raising "any work issues without notifying the chief operating office of the respondent, or his subordinate, beforehand".

The employee subject of the order must complete any exercise at the employer's premises before 8am and the applicant is not to arrive at work before 8:15am. SDP Drake exercised discretion not to give written reasons for the decision. (Applicant v Respondent AB2014/1052, PR548852, 21/03/14)


AAWI for current agreements falling

WFD: The average annualised wage increase (AAWI) for current agreements is falling, with increases in deals approved in recent quarters lower than the ones they replace, the latest Enterprise Bargaining Trends report reveals. AAWI overall in December showed no change from September, with the AAWI for collective agreements in all sectors steady at 3.5% - and the AAWI for all current wage agreements 3.7%. The public sector recorded a small drop in AAWIs, down 0.1% for both collective agreements (3.4%) and all current wage agreements (3.4%). The report said the AAWI had remained "relatively stable" at around 3.5% since 2012, but the wage price index (2.5% in December) and AAWIs for current agreements had declined. Agreements exerting "significant influence" on the private sector AAWI in December included Toll Group Transport Workers EA (4% AAWI), Australian Services Union Qantas Airways Ltd agreement (3.1%) and Crown Melbourne Ltd EA (4.2%). Construction in particular had a high AAWI (4.7%). The report noted more than one third of all non-managerial employees in Australia are now covered by federal enterprise agreements (34.3% in 2012 compared to 28.5% in 2006). Individual agreements (registered and unregistered) covered 37.3% of all non-managerial employees, up from 34.5% in 2006.


FWO offer small biz hiring help

WFD: The Fair Work Ombudsman (FWO) has issued a guide to hiring new employees as part of a suite of measures to help small business. FWO Natalie James said the guide gives small businesses advice in plain-English about the best way to employ new workers and to outline their workplace obligations. James said the guide – foreshadowed in the Coalition's election policy – would help small business recruit the right people and grow their business. The guide contains advice on workplace laws such as the National Employment Standards, industrial instruments, discrimination, tax, record keeping and work health and safety. Employment minister Senator Eric Abetz welcomed the initiative and said it would "helpsmall business people to navigate the Fair Work laws and make it easier to employ more people".Abetz said the guide added to special assistance for small business such as the FWO priority telephone hotline. In Senate estimates in February James revealed FWO answered small business hotline inquiries 13 minutes sooner than other inquiries (WF19045).The guide is accompanied by an online course on hiring at the FWO online learning centre. The centre has a course on minimising workplace disputes and will soon have a unit on performance management. FWO says it has catered to small business through feedback at a roundtable in Melbourne earlier this month, and now has a small business strategy team.


Cleaning guideline repeal cuts pay

WFD: The repeal of Federal Government cleaning procurement guidelines could result in lower pay for cleaners because the guidelines mandate above-award rates of pay. Last Friday, Workforce reported that as part of 'red tape repeal day' the Govt announced it would abolish the Commonwealth Cleaning Services Guidelines (CCSGs) (WF19075). The CCSGs require contractors tendering for govt work to pay employees no less than prescribed minimum hourly base rates of pay which are higher than the award minimums. Full time cleaning employees must receive a minimum of $22.02 under the CCSGs, as opposed to $17.49 in the cleaning award. The CCSG rates rise by 4% per year.  After the repeal – effective from July 1, 2014 – cleaners could still collectively bargain for enterprise agreements with the higher rates, but the CCSGs would no longer induce employers to agree to above-award rates.

Higher pay the domain of award review: Abetz

Employment minister Senator Eric Abetz said the CCSGs "create an inequitable and inconsistent approach within the cleaning industry … creating separate pay scales for the small section of workers in this industry who happen to work in some govt buildings in metropolitan locations". Abetz claimed there was "no evidence [the CCSGs] provide any broader benefits for industry or workers" and were "outside the mainstream workplace relations and procurement frameworks". He claimed Labor implemented the guidelines "for no other reason than to give favourable treatment to a particular trade union"."If the Labor Party or unionswish to argue that award wages in this sector should be higher, then they are entitled to do so in the modern awards review that is currently being conducted by the Fair Work Commission – just like unions in any other industry," he said. Shadow workplace relations minister Brendan O'Connor said "wage protections for low-paid workers might make Prime Minister Tony Abbott see red, but these important guidelines help cleaners make ends meet". "This assault on cleaners, who already do it tough, articulates Abbott's workplace relations agenda. A fair day's pay for a fair day's work is under threat," he said.


Adult rate win for 20 year olds

WFD: A Fair Work Commission full bench has delivered unions a victory in their long-term plan to do away with junior rates as it ordered changes to the retail award so 20-year-old workers are paid adult wages. However, they must have more than six months' experience with their employer and the increases will be phased in. The bench – Senior Deputy President Justice Alan Boulton, SDP Anne Harrison and Commissioner Julius Roe – held the "rationale for junior rates of pay remains relevant and that discounted rates continue to be justified ... [particularly] in the retail industry given the large number of juniors who are employed in it." However, "the discounted rate for all 20-year-old retail employees" failed modern award objectives because it was "not a fair and relevant minimum safety net", the bench found. Employer evidence included claims 20-year-olds exhibited "less productivity, greater recklessness, immaturity, a higher error rate, and unreliability" relative to co-workers just one year their senior. Although the bench agreed evidence supported the idea people mature with age, it questioned the "relevance or utility" of that generalisation because work experience was more important. The bench agreed with Shop Distributive and Allied Employees' Association (SDA) evidence a significant number of 20-year-olds had at least three years experience in the industry, and some supervised older employees. The bench accepted the SDA's conclusion "there was no difference in the work and duties" of 20 and 21 year-olds who have reached the retail employee level one grade.

Bench not persuaded on cost to business

The bench (above) was "not persuaded" the variation would negatively impact workforce participation, because there was "no evidence" employers had hired fewer 20-year-old employees when they were paid adult wages through enterprise agreements. It was "not their current practice to prefer" younger employees or those 21 and older to 20-year-olds - the bench said – particularly because they would favour experience with the business and customers to considerations of age. It noted that "none of the witnesses called by employer organisations suggested the variation would have any significant adverse effect" on business, productivity and employment costs. The bench concluded the cost impact would likely be "moderate". "We are not persuaded it will have a discernible impact on employment growth," it said. The bench said it took account of the potential for the SDA to seek to eliminate all junior rates for 18 and 19-year-olds in the award. However, the bench said the claim was "specific" to 20-year-olds and would not "be a precedent for any other claim which may be made either in respect to the award or any other modern award".

The bench decided to order 20-year-olds be paid full adult rates under the retail award, provided they have six months experience with their employer. The pay rise will be phased in as 95% of the adult rate on July 1, 2014 and 100% from July 1, 2015. (Modern Awards Review 2012 - General Retail Industry Award 2010 - Junior Rates [2014], FWCFB 1846, 21/03/14)

Aus Retailers Association to raise with Abetz

ARA exec director Russell Zimmerman blasted the decision as "inexplicable" and "based on no evidence". "This junior wage increase will severely hit retailers financially, as well as change the face of employment for 20 year olds," he said in a statement. Young people would be "locked out of employment opportunities" and "forced to compete against older and more experienced job-seekers," Zimmerman said. Zimmerman told Workforce Daily the ARA would pursue two methods to overturn the decision. First, the ARA would "raise the matter directly with [employment minister Senator Eric] Abetz and encourage him to introduce a panel of review on top of FWC" to fulfil the Coalition's election policy of an appeal panel (WF18925).

Second, ARA would fight the adult wage for 20-year-olds in the next modern award review. The retail award is up for review in the last quarter of 2014. Zimmerman said "the ARA will also fight against the already promised claims from the union movement to move on under 20-year-old pay rates".

Unions will push for adult rates at 18: AiGroup

Australian Industry Group chief executive Innes Willox said the decision was a "blow to the retail industry" and the emphasis "should be on preserving employment in the industry, not on imposing higher costs". "Despite the cmn saying that the decision does not set a precedent, undoubtedly the decision will encourage unions to pursue similar claims in other industries," Willox said. "Unions have made it clear that their claims in this case are just the first stage of a union push for adult rates to be paid at age 18 across numerous industries."

SDA national secretary Joe de Bruyn said "for too long employers have been getting away with paying workers less than what they deserve. It's fantastic that the Cmn has recognised that." De Bruyn said the next step in its '100% pay at 18+' campaign will be looking at achieving fair rates of pay for 19-year-old workers.


Thomson out on bail pending appeal of prison sentence

WFD: Former Labor MP Craig Thomson has been sentenced to 12 months jail, with nine months suspended, for using Health Services Union (HSU) funds for personal benefit including paying for prostitutes. Thomson's counsel Gregory James QC told Workforce Daily he would appeal both his conviction and the sentence to the Vic County Court. Thomson received bail pending the appeal, set down for November 24. The sentence, if served, means Thomson would spend three months in prison; the remaining nine months is suspended for two years. Thomson had been found guilty last month of 65 charges of theft and obtaining financial advance by deception, and misappropriating $25k of HSU money while he was the union's national secretary between 2002 and 2007 (WF19035).

Magistrate Charlie Rozencwajg imposed the sentence at the Melbourne Magistrates Court, labeling Thomson's actions as brazen and arrogant. Magistrate Rozencwajg said Thomson displayed a "sense of entitlement" and nothing was put to him to suggest Thomson committed offences "for anything other than personal greed". HSU acting national secretary Chris Brown said the sentence "brings closure to the most difficult period in the national union's history". "Thomson's criminal actions were a gross betrayal of the trust placed in him and today's sentence ensures he is punished for that betrayal," he said. Brown said the HSU national executive was determined to "recover all unauthorised expenditure including those not dealt with as part of these proceedings" and "these actions will be vigorous and ongoing".


No delay in super increases

WFD: Employers' compulsory superannuation contributions look set to rise this year after the Senate knocked back the Government's Bill to delay any increases until 2016.

On March 25, Labor and The Greens voted in the Senate to block a second reading of the Govt's mining tax repeal Bill, which included its proposed deferral of super increases for two years.

The Bill now returns to the House of Representatives. Under existing legislation, the super guarantee will increase from 9.25% to 9.5% on July 1, 2014. It will then increase in 0.5 percentage point annual increments from 2015 until 2019.

The Govt had proposed to maintain the super guarantee at 9.25% for 2014 and 2015, with an increase to 9.5% in 2016. A govt spokesperson did not return requests for comment about whether it would seek to defer the super increases by other means.


Fed Court defines complaints as rejects sexual harassment claims

WFD: In the most comprehensive decision to date on the workplace right to make complaints related to employment, the Federal Court has narrowed the scope of the protection so that the complaint must be grounded in a source of entitlement and the complainant must believe the claim was valid, even if it is was not substantiated.

Rejecting former Energy Australia (EA) executive Kate Shea's adverse action and sexual harassment claims, Justice Julie Ann Dodds-Streeton set out seven principles for defining a complaint under s341(1)(c)(ii) of the Fair Work Act.

·         a complaint is a communication which as a matter of substance "explicitly or implicitly" conveys a "grievance, a finding of fault or accusation";

·         the claim must be "genuinely held or considered valid" by the complainant;

·         the claim does not have to be substantiated or proven but the exercise of the workplace right must be "in good faith and for proper purpose";

·         the "proper purpose" of a complaint is to give notification of the grievances so that it may be received and where appropriate investigated and redressed;

·         a complaint may not just be made to an external authority or party with enforcement or compliance powers but can be made to persons including an employer or its appointed investigator;

·         a complaint that is in relation to employment "is not at large but must be founded on a source of entitlement, whether instrumental or otherwise"; and

·         a complaint is limited to grievances in relation to employment and does not extend to other grievances "merely because they are communicated contemporaneously or in association with a complaint".

On those principles, Justice Dodds-Streeton rejected that Shea's alleged complaints were covered by general protections and if they were they were rebutted because the employer did not act for a prohibited reason.

Shea alleges 'cover up' and corporate culture

Shea had alleged Energy Australia made her redundant because she had complained then-CFO Kevin Holmes had sexually harassed her at a Hong Kong bar after a corporate dinner on February 24, 2010.

Shea alleged that while she was telling Holmes about her sick husband, Holmes had touched her hair and shoulders.

Holmes said he had made the contact out of empathy and denied it was a sexual advance.

EA appointed a Landers and Rogers partner to conduct the investigation into Shea's complaint, which ultimately found Holmes had not sexually harassed her.

During the investigation, Shea made further complaints about Holmes, CEO Richard McIndoe, and HR director David Purvis.

 Her main complaint was in a June 21, 2011 letter that claimed the investigation report was flawed because of false evidence and its failure to consider separate claims of CFO misconduct against other employees.

The letter alleged McIndoe had colluded with Purvis and Holmes to "cover up" the incident.

It alleged he did so because it claimed he had sexually harassed an employee at a company Christmas party in 2006 and had fostered a workplace culture condoning sexual harassment.

Shea sent the letter as an email to McIndoe requesting he accede to her various demands, including a financial settlement, within three days or her letter would go to the CEO of EA's parent company CLP Holdings.

In October 2011, following lengthy negotiations, the company agreed to give Shea an ex-gratia payment of $133,000.

Shea returned to work having been on extended sick leave since June when she was provided with the investigation report.

Four months later, EA made Shea redundant after a restructure left her with only three reports.

Claims had 'no reasonable basis'

Justice Dodds-Streeton (above) found that while Shea could make a "bona fide" complaint that the investigation was flawed, her June 21 letter was not such a complaint. Shea's claims of collusion, cover up and false evidence, her allegation McIndoe had engaged in sexual harassment, and general claims of a corporate culture of sexual harassment had no reasonable basis. Further, Justice Dodds-Streeton was not satisfied Shea held those grievances in good faith for a proper purpose. The judge found Shea's sexual harassment complaints were not made in the terms pleaded. Even if they were, the judge found the complaints were not a substantive or immediate reason for McIndoe's decision to retrench her. She noted on Shea's return to work, the disputed issues did not re-emerge and "civil, professional relationships" continued with Purvis and McIndoe. Considering how to define a complaint, Justice Dodds-Streeton held while the grievance did not have to be true, it had to be made in good faith. To make a complaint to achieve "some collateral advantage or objective, would not, in my opinion, invoke the statutory protection" as "no legitimate statutory objective would be achieved", she said. That ruled out "the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees", she said.

Complaints can be from witnesses not victims

The complaint's connection to employment could be both a direct and indirect nexus, the judge said. As a result, there could be sufficient connection between misconduct in the workplace and the employment of a person who is not a direct victim. "For example, the employee may witness misconduct visited on a fellow employee or be exposed to its consequences, the threat of like mistreatment or related adversities in the working environment". Ultimately a complaint was a matter of substance, not form, she said. "An employee's communication of a grievance or accusation could amount to making a complaint within the meaning of s 341(1)(c)(ii) despite an express disavowal of any intention to complain," she said. That was "if a reasonable observer would conclude from the employee's words and conduct in the circumstances (including the nature and gravity of the grievance or accusation) that he or she intended to bring the grievance to the employee's attention for consideration or other appropriate action," Justice Dodds-Streeton said. On the other hand, all conduct and communications associated under the aegis of a valid complaint were not necessarily a complaint. That would "effectively prohibit the employer from taking adverse action against an employee for misconduct because it was coupled with a complaint or inquiry that the employee was able to make". "A provision aimed at the protection of workplace rights should not operate to secure immunity from the consequences of misconduct."

Policy, not statute, source for complaint

Since under the Act a complaint was one the employee "is able to make", Justice Dodds-Streeton said that suggested there were complaints the employee was not able to make. "The ability to make a complaint does not arise simply because the complainant is an employee of the employer," she said. "Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation." But she rejected Shea's claims that her initial sexual harassment complaints had a statutory basis in the Equal Opportunity Act, the Sex Discrimination Act or occupational health and safety legislation. Those laws allowed complaints only to their respective bodies, such as the Victorian Equal Opportunity and Human Rights Commission. Justice Dodds-Streeton held sexual harassment complaints were allowed under EA's policies, which were incorporated by reference in Shea's employment contract. The grievance policies included reference to "touching" and "unwelcome behaviour of a sexual nature". However, she found Shea's complaint was not about sexual harassment but "something equivalent to 'making a pass'". Shea's telling the incident to HR director Purvis, a "close personal friend", was informing him personally and did not show she intended to make a formal complaint. (Shea v TRUenergy Services (No 6), [2014] FCA 271, 25/03/2014)


Costs of unreasonable settlement offer

Roy Morgan has been hit with a further costs order over its handling of an unfair dismissal claim after the Fair Work Commission (FWC) ruled it should have put forward a reasonable settlement offer to avoid the expense of a hearing. Earlier this month, the FWC hit the pollster with costs for its failed appeal of the case because it unreasonably rejected dismissed HR employee Karen Baker's settlement offer (WF19075). This week, Deputy President Anne Gooley ordered it to pay costs for the original unfair dismissal proceedings because it failed to make a "genuine or reasonable offer" to Baker despite its case having little prospect of success. On May 28, 2013 Baker had put a settlement offer to Roy Morgan of $28,000. Roy Morgan rejected it and countered Baker discontinue her claim and each party bear their own costs. Baker pursued her case and in September DP Gooley awarded her max compensation at $37,000.

Reasonableness of offer not simple math: DP

Considering Baker's (above) claim for costs, DP Gooley found it was not unreasonable for Roy Morgan to reject Baker's offer, noting assessment of such refusals was not a "simply mathematical exercise". But she did accept that the pollster's failure to make a genuine or reasonable offer of settlement prior to the hearing was unreasonable.  Roy Morgan's counter offer, made when it had filed its jurisdictional objection that the dismissal was a genuine redundancy, assumed it would be successful on every aspect of its argument. "Given my findings in this matter, that assessment was not reasonable," DP Gooley said. "This is a case where on the evidence of Roy Morgan alone it should have been reasonably apparent that the jurisdictional objection had no reasonable prospect of success." DP Gooley said given Roy Morgan's concession Baker would have remained in employment for a further two years if its jurisdictional objection failed, it was "incumbent on Roy Morgan having reviewed its evidence to take steps to have the matter resolved without putting Baker to the expense of the hearing". "Instead it took the view Baker's claim had 'no tenable basis on which to sustain a credible claim of unfair dismissal'," she said. She ordered Roy Morgan pay costs from the date of its settlement offer. (Karen Baker v Roy Morgan Research Ltd [2014], FWC 1857, 24/3/2014)


Bullying claim fails due to jurisdictional objection

WFD: The Fair Work Commission has thrown out the bullying case that saw the cmn's first decision because the employer where alleged bullying occurred was not a trading corporation so it was beyond jurisdiction. Kathleen McInnes' application for a stop-bullying order against mental health charity Peninsula Support Services (PSS) had been the subject of FWC's inaugural decision in the new jurisdiction. A full bench had held conduct before January 1, 2014 can be considered to establish a pattern of bullying (WF19055). Now PSS has successfully challenged FWC's jurisdiction to hear the case, on the basis it is not a constitutional corporation as required by s789FD(3)(a)(i) of the Fair Work Act. PSS argued it is not a trading corporation – the only category of constitutional corporation that could apply – because most of its funds came from the Vic Government in block grants which were not fee-for-service contracts. PSS is a not-for-profit charity providing mental health services free of charge. McInnes contended PSS was a trading corporation because it competes with other service providers for project funding and then delivers services in exchange for those grants.

Alleged bullying now just employment issue

Commissioner Peter Hampton found PSS activities of receiving client donations and selling fixed assets were not trading activities and were nevertheless "insubstantial and incidental". Cmr Hampton found funding for the "great majority" of PSS's health department-related activities and all funding from the family and community services department were not gained through competitive tender and therefore "lack the character of buying and selling, even when considered in the broadest sense". Where PSS did tender for health department work, the process "led to the provision of a general grant … rather than a contract to provide specific services", Cmr Hampton said. Cmr Hampton found two grants which were fee-for-service accounted for just $82,000 of PSS's $2.8m income in 2012/13. Since its trading activities were "insignificant, peripheral and incidental", Cmr Hampton held PSS was not a trading corporation and dismissed the application for want of jurisdiction. Cmr Hampton made no findings in relation to alleged bullying conduct, but noted "there are remaining issues that have been raised by McInnes and these need to be properly dealt with in the context of the party's ongoing employment relationship". (Ms Kathleen McInnes [2014],FWC 1395, 24/03/14)


ABCC claims led to no convictions

WFD: The Victorian Police has revealed no criminal convictions resulted from referrals by the Australian Building and Construction Commission (ABCC) in its entire seven year existence. In a Senate hearing last week into the government's approach to re-establishing the ABCC, Deputy Police Commissioner Graham Ashton told the senate committee the cmn had referred 15 allegations of criminal conduct to Vic Police from 2005 to 2012. The Fair Work Building and Construction agency (FWBC) had referred four matters from 2012 to 2014. Ashton said only one matter had resulted in a guilty finding and that had led to a diversion record, not a conviction. A diversion is when a party admits there has been a wrong done but reaches agreement so the matter does not seea conviction recorded. Ashton said the matter had not been serious enough for police to seek a custodial sentence. In the March 17 hearing, Ashton said the ABCC had referred matters to police by writing but the FWBC referred matters orally. Since Nigel Hadgkiss' appointment as FWBC Commissioner, the watchdog had returned to referring matters by writing and was also seeking police responses to those matters. Ashton noted Vic police had pursued other investigations and convictions in the building industry, "but not specifically from those bodies [ABCC or FWBC]".

Abetz criticism of state police 'unprecedented'

The Australian Federal Police took it on notice on how many matters the building watchdogs (above) had referred to federal police. Last week, the Productivity Commission said the ABCC/FWBC had referred 21 matters to state and federal police from 2005 to February 2014 (WF19065).

In a previous Senate inquiry hearing, the ACTU took aim at employment minister Senator Eric Abetz's veiled criticism of the Vic Supreme Court and Vic Police for not doing more about unlawful union conduct in the building industry (WF19045). ACTU assistant secretary Tim Lyons said he was "very surprised" a federal minster would criticise a state police force over its investigatory priorities and the state supreme court in relation to the time it took with a reserve judgment. "That is reasonably unprecedented, and in our view it, in effect, cannot be interpreted as anything other than an attempt by the minister to affect the independent investigatory priorities of Vic Police and in respect of attempting to influence or be critical of the Supreme Court of Victoria," Lyons said. "I am not familiar with another recent example where I think anything of the sort has occurred. Courts should be left alone to make their own independent judgments -that is what they are for -and federal ministers should not be buying into that."


No further clarity for 'crippling' and 'indefinite' paperwork ban

WFD: The Fair Work Commission has dismissed an employer's bid for orders against its warehouse workers' indefinite paperwork ban after finding the notice for action was sufficiently clear and did not need to distinguish between paperwork and technology.

Commissioner David Gregory also rejected CEVA Logistics' claims employees were engaging in an unprotected overtime ban, suggesting the company may only become aware of such a ban when it made overtime a requirement.

The National Union of Workers (NUW), representing workers at three CEVA warehouses in Victoria and Queensland, gave CEVA notice on March 18 that its members would take industrial action in the form of a "ban on paperwork of indefinite duration" starting March 25. CEVA pushed for a FWC s418 stop order, arguing the notice was unclear and a paperwork ban could range from limited action with negligible effect to broad action that could be "crippling" to its warehouse operations. It submitted paperwork was involved in almost every aspect of its warehouse operation and could impact on employee and customer safety.

However, Cmr Gregory ruled the NUW's "indefinite" paperwork ban notice was sufficiently clear about its start date and duration. CEVA's concerns were "perhaps more to do with the impact of the ban, rather than seeking further clarity about what is actually involved", he said. "Doubtless CEVA would prefer a precise date as to when the action will conclude," he said. "However, the description of action of 'indefinite duration" is not uncommon in such notices." 'Indefinite duration' was also not so uncertain that CEVA could not put in place "appropriate" response arrangements for that duration. "Clearly, this will likely involve significant disruption and inconvenience at the very least," he said. "But, as the authorities referred to confirm, this is an intended and inevitable outcome of the legislative framework established in this context."

Cmr sticks to 'ordinary English' for notices

Cmr Gregory rejected CEVA;s claim the NUW must clarify what kinds of paperwork the ban would involve. CEVA argued it lacked understanding about where the paperwork ended and technology began, particularly for keyboard work that generated paperwork, and the use of barcode scanners. Cmr Gregory cited David's Distribution v NUW [1999] as authority that the intended action had to be described in "ordinary industrial English".

Further, the recent FWC full bench in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] specified it was not necessary for an industrial action notice to contain "precise details of when and how every future act or omission will or may occur" (WF18725). The cmr pointed out that CEVA did not take up the uncertain nature of the ban during protected action ballot order proceedings. If the company had concerns about the ban's safety implications it could lodge a s424 application, he said.

'Unusual' rejection of overtime not enough

The cmr found there was insufficient evidence to establish CEVA's claim workers at its Somerton warehouse were implementing an unprotected overtime ban. CEVA had alleged it was "most unusual" that employees had not taken up overtime offers last week but the NUW denied there was a ban. The cmr noted CEVA "might only become aware of the existence of a ban on overtime at the time when there is a requirement for overtime to be worked, and a request is then made to employees". He found the NUW's notice met the requirements and there was no basis for s418 orders. There was also no basis for a further three days' notice on the argument that CEVA now had a clearer understanding of what the paperwork ban involved given NUW submissions on the matter.

(CEVA Logistics (Australia) Pty Ltd v National Union of Workers [2014], FWC 1948, 24/3/2014)


Vale Wally Curran

WFD: Iconic meat union leader and former communist Wally Curran has passed away on March 24 following a long battle with cancer. Workforce Daily understands Curran fell into a coma over the weekend while on morphine and passed away at 8am. Curran was the Australian Meat Industry Employees Union (AMIEU) Victoria branch secretary from 1973 to December 1997. He established the meat workers industry superannuation fund in 1982 and remained on the board until 2013. During his 40 years with the militant union, Curran took a major role in the campaign for equal pay for women in the meat industry and fought battles on job security, including five days work for five days pay, no sackings at Christmas and minimum daily and weekly pay. Curran took an active involvement in politics and the Australian Labor Party's Victoria Socialist Left faction. Former AMIEU Vic secretary Graham Bird described Curran on his retirement in 1997 as a "character" and "one of the truly great figures of the Australian labour movement". "He is a man of absolute integrity, who has remained faithful to his class, who has demonstrated his intelligence alongside prime ministers, judges, queens counsels, academics, journalists and business leaders, and has rarely been bettered," Bird said.


Anaesthetist's reinstatement fight goes under

WFD: A Fair Work Commission (FWC) full bench has ended a long-running battle for reinstatement by a Geelong Hospital anaesthetist, refusing permission to appeal because FWC findings trust and confidence had broken down were well-founded. Dr Mark Colson won reinstatement with Barwon Health for unfair dismissal in February 2013 (WF18561) but a full bench quashed the order on appeal (WF18765).In November 2013 Deputy President Val Gostencnik ordered $59k compensation instead, finding reinstatement would be inappropriate due to a breakdown of trust and confidence between Colson and management (WF18945). Colson sought permission to appeal the remedy, arguing in part the DP had failed to apply the statutory object of "emphasis on reinstatement" and had erred in his conclusions on loss of trust and confidence.The full bench – Senior Deputy President Ian Watson, DP John Kovacic and Commissioner Nick Wilson – held DP Gostencnik had not failed to consider whether loss of trust and confidence was sufficient to make reinstatement inappropriate. DP Gostencnik had made numerous findings as to Colson's managers' "rationally-based concern" he would "continue to challenge management at every opportunity and be a destructive presence in the department", the bench said.The bench held there was no error in finding Colson's "obstinacy" was a "relevant factor" for determining lost trust and confidence. The bench said the DP had based his findings on a range of evidence including a sarcastic email attacking Colson's managers and allegations they had "set him up".

Difficulty of relocation, harshness outweighed by lost trust

Evidence of "congenial" and "professional" interactions during the reinstatement period had to "be weighed against other evidence". The bench rejected Colson's contention even if there had been "an irreparable breakdown in trust and confidence, that breakdown forms no impediment to reinstatement", finding it was "not supportable on the evidence". The bench rejected Colson's contention DP Gostencnik had not adequately considered difficulty of relocation, finding it "weighed heavily in his decision". The bench said it was not inconsistent to find the dismissal harsh and still deny reinstatement. The bench refused permission to appeal and dismissed it for failure to establish an error of law, significant error of fact and failing to raise matters of public interest. (Colson v Barwon Health [2014], FWCFB 1949, 24/03/14)


Howes resigns amid confusion over next move

WFD: Australian Workers Union (AWU) leader Paul Howes has announced he will be stepping down as union national secretary in July but has denied claims he will be seeking Labor pre-selection. Howes advised the AWU national executive of his decision on March 24, with assistant national secretary Scott McDine expected to replace him. In a statement to members, Howes said that "for some time now I have been contemplating the next steps in my life" and "as such I recognise the right thing to do is to step down"."Of course this has not been an easy decision to arrive at," he said. "But my primary consideration must be what is best for the organisation that has provided me with so much. And I truly believe this is the right move for me, and for our union." Howes denied his resignation was linked to political ambitions. "I have always said that representing the AWU's members is the highest honour I can imagine seeking. And so, despite what you may hear, I am not leaving this job to pursue a seat in parliament." Howes acknowledged his decision "may come as a surprise" but pointed out he had been in national secretary for seven years, having been elected when just 26. He has worked for the union movement since he was 17. Howes will leave the mid-term having been re-elected in 2013

Study or private sector touted as options

In an interview with Sky News, Howes (above) said he was "not sure" what he was going to do next but suggested interest in pursuing university studies. Workforce understands there is genuine confusion within union ranks about what Howes will do after his resignation. Union sources have told Workforce in recent months Howes appeared to be repositioning himself for a role in the private sector. In media comment pieces Howes advocated industry super funds to privatise public infrastructure (WF18875) and in his National Press Club speech he called for a "grand compact" between unions and business (WF19015). In his statement, Howes said he was "especially proud to be leaving our union in better shape than ever. "With a growing membership, a bright financial future, a strong and united leadership team and a talented and capable group of officials, we are rightly regarded as the most professional union in this country," he said. "I know the future of this union is secure and robust."Howes leaves as the Royal Commission into trade union corruption gets underway. One issue the cmn will examine is the AWU Victorian branch's conduct during the 1990s when under the leadership of Bruce Wilson.

AMMA backs Howes 'positive' support

Australian Mines and Metals Association (AMMA) chief executive Steve Knott wished Howes "all the best in the next phase of his career". "In serving the union movement as national secretary of the AWU and vice president of the ACTU, Howes has achieved a great deal in what is still a developing career," he said. He said despite some public disagreements, AMMA and the AWU had a "strong history of constructive IR" and the mining body had "worked positively with Howes behind the scenes to progress new resource project investment, another area in which we appreciate his support and insight".


Hadgkiss targets pattern bargaining

WFD: Fair Work Building and Construction (FWBC) director Nigel Hadgkiss has warned employers against agreeing to unproductive clauses via pattern bargaining ahead of industry negotiations in Victoria. Hadgkiss told the Master Builders Association Victoria industry breakfast the building industry has "regressed" to a state of "appalling lawlessness" and the FWBC had "weakened powers". Speaking on March 20 Hadgkiss lamented the evils of pattern bargaining, which he said continued to be "widespread" in the building industry. "No consideration is given to [businesses'] respective unique interests or needs. As a consequence, productivity improvements which could flow from such discussions are prevented and denied to all involved," he said. Hadgkiss cited calls by Australian Industry Group chief executive Innes Willox to outlaw industry-wide pattern bargaining completely (WF19035). Hadgkiss said he agreed with his predecessor Leigh Johns that "agreeing to pattern agreements, which contain no clauses to advance productivity, is not the type of leadership that many head contractors should be demonstrating". Hadgkiss said this would not be "an attack on rates of pay" – as critics might suggest – because "there are plenty of ways in which these agreements restrict efficiency and flexibility". He cited industry-wide registered days off, shutdown weekends and restrictions on using subcontractors and labour hire. "These clauses reduce productivity and stifle competition and need to be consigned to the past where they belong. I would not want to be the last builder on the block who has these sort of clauses in their enterprise agreements," he said.

IR regulator 'insufficient' to combat crime

Hadgkiss said "the presence and actions of an IR regulator are insufficient to confront serious criminal issues". "FWBC simply does not have criminal jurisdiction," he said. FWBC and the ABCC – if re-established - "can truly make a difference" to prevailing culture through "a powerful regulatory framework, strong powers and a determination to apply them against any person or organisation that contravenes the law", he said. Hadgkiss said he would not "simply wait around" until the Govt re-established the ABCC. He said he had switched FWBC's focus from wage and entitlement matters, which it refers to the Fair Work Ombudsman. FWBC inspectors now focus on "coercion, unlawful industrial action, right of entry, freedom of association, discrimination and other conduct more commonly described these days as 'thuggery'". He promised FWBC would "look wherever the evidence leads it, whether such conduct is engaged in by unions, head contractors, subcontractors or anyone else". Hadgkiss claimed the new Vic Guidelines "are already playing an important role in the industry". "By relying on their obligations under the guidelines, contractors can reject unlawful conduct on their sites by placing the importance of tendering for [govt] work ahead of any short term incentive." He claimed the guidelines – replicated in NSW and Qld – were not "anti-union" because "compliance obligations are imposed on building companies, rather than unions". Hadgkiss noted the Fed Govt intended to revise the building code and apply it to upcoming rounds of enterprise bargaining negotiations in the industry. He said the code had been "watered down" since the 2006 to 2009 period when it was "at its most robust" and "helped to reduce unlawful conduct".


Registered orgs already regulated

The Labor and Greens-dominated education and employment committee has recommended the Senate reject the Fair Work (Registered Organisations) Amendment Bill 2013 (RO Bill), claiming increases in penalties and disclosure in 2012 are sufficient to prevent corruption.

The RO Bill would establish a Registered Organisation Commission (ROC) with "enhanced investigation and information gathering powers to monitor and regulate" registered organisations (WF18935). The committee report stated even if only officers with financial duties were subject to personal interest disclosure – as recommended by the Legislation Committee (WF18965) – "the Bill would still cause great disruption and harm to the operations and effectiveness of the administration of registered organisations".

The report noted changes in the RO Act 2012 had tripled penalties and added new disclosure requirements. It found these changes were "adequate" to address deficiencies in accountability and should be fully implemented before any further attempt "to interfere with the governance of registered orgs".

Invasive disclosure harms member services

New criminal offences were "unnecessary duplication of existing crimes legislation", the committee said. The report labeled new investigative powers "too extreme" and said they "go far beyond what is appropriate to ensure adequate regulation of registered orgs" The committee was "concerned" the ROC could infringe rights against self-incrimination and legal professional privilege. The committee found "fundamental differences" between the goals of trading corporations and registered orgs and disagreed disclosure requirements for union officials should be similar or more stringent than company directors. It found "invasive" personal disclosure requirements would "further dissuade and discourage members of registered orgs from nominating" as officers. The committee concluded the regulatory burden would be "excessive and inappropriate" and necessitate diversion of assets from "core member services". This was "a great threat to the ability of registered org to provide services for the advancement of their membership if they are occupied with increasing regulation".

Bill builds on Shorten's 2012 changes: Govt

The Coalition Senators strongly supported the Bill, arguing "existing regulation does not sufficiently protect members' interests". The Coalition Senators argued the RO Bill "builds on the existing framework" of the 2012 Act – which already increased disclosure requirements in a manner which now caused the committee majority to express concern.


Toyota appeal to be heard in May

A Full Federal Court – Justices Chris Jessup, Richard Tracey and Nye Perram – will hear over two days Toyota's appeal of Justice Mordy Bromberg's decision that it could not seek an employee vote for changes to its enterprise agreement due its no-extra claims clause.

The case is listed for May 26 and 27.



What's In Store for the Workplace under Tony Abbott: April 10, Sydney 'Politics in the Pub'. Speakers include ASU secretary Sally McManus and AMWU secretary Tim Ayres. More info here.

NSW IR Society Conference:May 23 to May 25, Leura. Speakers include FWC President Justice Iain Ross and University of Adelaide Law Professor Andrew Stewart. More info here.

AMMA Australian Resource People Summit: May 29 and May 30, Perth. More info here.

Workplace Research Centre Labour Law Conference: August 25, Sydney. Speakers include FWC SDP Jonathan Hamberger and Professor Anthony Forsyth. More infohere.

Australian Labour and Employment Relations Association bi-annual national conference: August 28 to August 30, Sofitel Gold Coast. More info here.


Editorial team

Editor: David Marin-Guzman, (02) 8587 7682, Chief Journalist: Paul Karp. Journalist: Steve Andrew. Managing Editor: Peter Schwab. Product code: 314021719085. Twitter: @WorkforceTR



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