Issue 19085
, Friday 28 March 2014
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In this issue
[1]
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.
[2]
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.
[3]
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.
[4]
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".
[5]
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)
[6]
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).
[7]
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".
[8]
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.
[9]
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)
[10]
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)
[11]
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)
[12]
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)
[13]
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.
[14]
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.
[15]
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.
[16]
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.
[17]
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".
[18]
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.
[19]
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)
[20]
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)
[21]
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)
[22]
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."
[23]
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)
[24]
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.
[25]
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)
[26]
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".
[27]
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".
[28]
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.
[29]
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.
[30]
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.
[31]
Editor: David
Marin-Guzman, (02) 8587 7682, david.marin-guzman@thomsonreuters.com. Chief Journalist: Paul
Karp. Journalist:
Steve Andrew. Managing
Editor: Peter Schwab. Product code: 314021719085.
Twitter: @WorkforceTR
|