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AMMA Bulletin – August 2008
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Editorial
Feature Article
News Roundup
Case Files
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AMMA Training and
Education
AMMA
Member Forums
AMMA
Preferred Suppliers
AMMA Employment
Opportunities
AMMA
Supported Events
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AMMA works in members’ interests as reform process gears up
The
last month has been a time of intense activity within AMMA. Not only has AMMA
drafted and submitted the first modern award for the mining industry to the
AIRC, but we have also engaged with the Deputy Prime Minister, Julia Gillard,
on a number of important matters.
Wilcox
Review of Australian Building and Construction Commission
One
matter on which we are keeping a particularly close watch at the moment is the
Wilcox Review of the ABCC. We understand that many of our members have serious
concerns about any outcome that may result in a weakening of the ABCC’s powers
and its proven effectiveness in restoring some normality to workplace relations
in the construction industry. We will therefore continue our lobbying
activities on this front and will keep members abreast of further
developments.
Proposed
Mining Industry Safety Net Award (MISNA)
Our
award modernisation team, under the leadership of Workplace Policy Director
Christopher Platt, has done an outstanding job in delivering a draft modern
award on behalf of the mining industry, which is truly modern in its approach
and content. The draft award aims at preserving existing flexibilities within
the industry, specifically in relation to the ability to average ordinary
working hours over a year, instead of the one week provided for by the highly
prescriptive National Employment Standards. The exposure drafts for awards on
the priority listing (which includes the Mining Industry and Coal Industry)
will be released on 12 September 2008.
OHS
replacement body
In
further developments towards a new national occupational health and safety
legislative framework, COAG entered into an Intergovernmental Agreement for
Regulatory and Operational Reform in Occupational Health and Safety (IGA).
Amongst other matters, the IGA proposes to replace the existing ASCC with a
body where employer and union representatives will be appointed by the
Minister, as opposed to the current position where the ACCI and ACTU appoint
members. Coupled with new heightened majority requirements which provide State
representatives with a deciding vote, AMMA expressed concern over the
undermining of the tripartite approach in working towards a national OHS
framework. We are currently awaiting the Deputy Prime Minister’s response.
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Superannuation
and definition of ordinary time earnings
Written
by Geoff
Bull, Manager Legal and Migration in AMMA’s Perth office.
Issue
The
superannuation changes that came into effect on 1 July 2008 have generated a
great deal of debate about the definition of ‘ordinary time earnings’ (OTE) and
the Australian Taxation Office (“ATO”) interpretation of the words ‘ordinary
hours of work’ contained in the Superannuation Guarantee (Administration)
Act 1992 (SGAA).
AMMA
is of the view that the ATO is misguided in its approach to the meaning of
‘ordinary hours’ and that an examination of the background of the SGAA and
subsequent amendments clearly shows that the words ‘ordinary hours’ where used
in the SGAA should be given their original and intended meaning: ‘being only
those hours worked that are paid at the ordinary time rate for the purposes of
an industrial instrument’.
This
view does not suggest that the employer’s superannuation contribution not be
paid on shift loadings or weekend penalties if these hours form the ordinary
hours of work for an employee. Nor is it suggested that the 1 July 2008 changes
to the SGAA not be given their full effect.
Background
This
issue became relevant on 1 July 2008, when Schedule 1 in the Superannuation
Laws Amendment (2004 Measures No 2) Act 2004, which amends the SGAA, became
operative.
With this amendment it is no longer
possible for industrial awards and agreements to specify the hours that are
used to calculate the 9 per cent compulsory employer superannuation
contribution. All employers must now calculate their SGAA liability against an
employee’s ‘ordinary time earnings’.
The ATO has advised employers that
ordinary time earnings include additional hours regularly worked,
notwithstanding the fact that those additional hours attract overtime rates
under an industrial award or agreement. The ATO rely on the decisions of the
High Court in Kezich v Leighton Contractors (1974) (Kezich) and
the 2002 Federal Court decision Quest Personnel Temping Pty Ltd v The
Commission of Taxation (Quest).
Additional cost
impost
The approach of the ATO, if
maintained, will significantly increase the cost of an employer’s compulsory
superannuation contribution where additional overtime hours are regularly
worked.
There are operational areas where
overtime is a regular and required feature of the manner in which work is
performed. Employer superannuation contributions have always been based on the
working hours paid at the ordinary rate of pay. This is traditionally reflected
in an industrial instrument that also stipulates that overtime rates are to be
paid for work outside ordinary hours.
The
Government, in introducing the SGAA, was ‘particularly conscious of minimising
the labour cost impact of the levy on employers1.
Senator
McMullan stated to the Senate Select Committee on Superannuation into the
Super Guarantee Bills that the Levy will not be an additional cost in the
initial stages at least, as most employers would already be paying the required
amount of superannuation. At the time he was referring to the fact that
employers were already paying under the Australian Industrial Relations
Commission (AIRC) arrangements which excluded overtime as part of
ordinary hours worked for the purposes of calculating the then 3 per cent
employer contribution.
ATO
approach problematic
AMMA
believe that the ATO approach is wrong in principle as it results in an
inequity where employees who have access to regular overtime are to receive
additional superannuation than those employees on the same wage who may only
work ad hoc overtime.
The
current ATO approach is appears contrary to the initial view of the ATO when
the SGAA came into effect and seems to ignore and the historical background and
purposes of the SGAA.
This
view is founded on the following:
§
The
SGAA originated from unsuccessful ACTU claims in the AIRC National Wage Cases
to award 3 per cent of ordinary wages as employee superannuation. The claims
did not include the calculation of superannuation on any form of overtime.
§
An
examination of the second reading speeches and parliamentary debates concerning
the SGAA shows no Parliamentary intention for overtime to be included in the
superannuation calculation.
§
The
June 1992 Report of the Senate Select Committee on Superannuation into the
Super Guarantee Bills indicates overtime was not to be part of ordinary
time earnings for the purposes of the superannuation calculation.
§
The
use of the words ‘ordinary hours’ by the Parliament in the SGAA was to reflect
the existing practice under the Superannuation Principle of the AIRC in
limiting the superannuation calculation to ‘ordinary hours’ and at no
additional cost to employers already paying the 3 per cent.
§
The
correct approach to the calculation of the superannuation contribution was
provided by the ATO in their Ruling 94/4 shortly after the enactment of the
SGAA, categorically ruling out overtime as part of the superannuation earnings
base
§
The
Superannuation Laws Amendment (2004 Measures No 2) Act 2004 was
introduced to remove perceived inequities where employers could calculate their
superannuation contribution on less than an employee’s ordinary time earnings
due to the wording of their industrial instrument. The amendment now requires
payment for weekend penalties and loadings to be included in the superannuation
calculation where this work forms part of an employee’s ordinary hours.
§
An
examination of the second reading speeches and parliamentary debates concerning
the 2004 Amendment Act shows Parliament was not legislating to include overtime
in the superannuation calculation.
§
The
ATO’s reliance on the Kezich and Quest decisions ignores other
more recent authorities including that of the High Court, which favours a conclusion
that overtime is not part of ordinary hours.
For example Justice Dawson in the 1989 High Court decision
of Catlow v Accident Compensation Commission2
stated that:
‘… if there is to be
an ordinary time rate of pay it must be ordinary in relation to something.
Clearly the thing selected is the normal, or standard number of hours worked
per week. It cannot include overtime hours worked because they are
extraordinary and incompatible with an ordinary time rate of pay’.
The
words ‘ordinary hours’ must be read in their context and the historical
background accompanying the SGAA. The words have an established and special
meaning in the context of superannuation which requires the ATO to apply the
interpretation that ‘ordinary hours’ means those hours of work which an
employee works, exclusive of overtime.
Action
by AMMA
AMMA
has written to the Minister for Superannuation seeking his assistance in
correcting the current view of the ATO. If this approach is not successful,
AMMA will consider other options including taking, with the assistance of our
members, action in the Federal Court seeking a declaration on the meaning of
the words ‘ordinary time’ as found in the SGAA.
1
Mr
Dawkins Treasurer Second Reading Speech 2 April 1992.
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AMMA
WA Conference 2008
AMMA held its Western Australian
Conference on the August 22 addressing Changing Responses to People Issues –
Are we doing enough? The Conference attracted well over 100 delegates from
across the resources sector and provided an interesting array of topics from
its presenters.
The presentation by Professor
Alison Preston, on the Engaging Generation X and Y was especially well received
and provided delegates with much food for thought. We especially would like to
thank Alison for ‘stepping-in’ at the last minute.
Senator Chris Evans – Minister
for Immigration and Citizenship – gave delegates an insight into the
government’s migration policy and proposed changes to the 457 visa processing
and compliance requirements soon to be introduced in a Bill into Parliament in
September 2008.
Glen Jakovich (AFL & WAFL
Hall of Fame Inductee 2008) spoke passionately about working as part of a
successful team, and proved that no matter which team it is; business, sport or
otherwise the principles are the always the same for success.
AMMA extends a big thank you to
all conference attendees, presenters, and Glen Jakovich sponsor (Boart Longyear) for helping to make this a successful and relevant conference for AMMA.
Thanks also to those attendees
who provided feedback on their conference experience. AMMA intends to hold
another Western Australian conference in 2009 and all feedback received will be
used to ensure that future conferences are insightful and topics relevant.
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SA IRC awards $24.50 minimum
wage increase
The South
Australian Industrial Relations Commission has awarded a $24.50 a week increase
to minimum award rates of pay, bringing the state minimum wage to $546.65 a
week.
SA Unions
had sought $26 a week, the South Australian Industrial Relations Minister $20,
Business SA the same as the Australian Fair Pay Commission’s rise ($21.66), and
the South Australian Employee Ombudsman $32 a week.
Evidence
in the case highlighted the positive aspects of prevailing economic
circumstances in South Australia, including in comparison with the Australian
economy on some indicators. ‘The areas where the state is faring worse than the
national economy, such as unemployment, generally reflects the age profile of
the state’s population’, the bench said.
‘Several
parties referred to the election of a new Federal Government in November 2007
and its policy to implement a uniform industrial relations system as a further
reason to ensure consistency of federal and state award wage outcomes. We are
not persuaded by this argument’, the bench said. Planned legislation was only
relevant where the detail of reforms was known and the parties could comment on
their impact.
‘All
things being equal, consistency of rates under federal and state awards is
preferable. However, we are of the view that there are issues peculiar to South Australia that weigh in favour of a different approach on this occasion. This is
especially so on what appears to be, in the absence of evidence, a limited
subset of employers affected by our decision who are in the same competitive
market as employers within the federal system and who would otherwise have the
same rates of pay.’
While the
rates of pay awarded by other state tribunals were not a major consideration,
the bench noted the new minimum wage in South Australia would be within the
range established by others.
All state
and federal jurisdictions have now had their minimum wage rises for the year,
putting the minimum wage in West Australia at $557.40 a week, in New South Wales at $552.66, in Queensland at $552.00, in South Australia at $546.65, in Tasmania at $546.10, and federally at $543.78 a week.
The South
Australian minimum wage rise will have an operative date of October 1.
To view
the South Australian state wage case decision, click here.
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Qld
IRC awards $23.60 minimum wage rise
The
Queensland Industrial Relations Commission has awarded a $23.60 a week increase
to the state’s minimum wage (or 4.45%), to take effect on September 1.
The new
minimum wage in Qld is now $552.00 a week.
‘The
amount we have determined will assist in delivering fair wages to low-paid,
award reliant employees, in particular, to women employees who comprise the
majority of award reliant workers and those on the Qld Minimum Wage,’ the full
bench said. ‘Moreover, such an amount is not inconsistent with enterprise
bargaining outcomes and accordingly, should help to prevent any widening of the
gender pay gap.’
The
Queensland Council of Unions had sought a $29 a week rise, the Queensland
Government $23 a week, the Queensland Chamber of Commerce and Industry $15, and
the Restaurant and Caterers’ Employers Association of Queensland no increase.
‘The Act
requires this commission to balance economic and social factors in deciding
state wages cases’, the bench said.
‘The
world economic outlook is clouded by uncertainty over the extent of the slowing
in the US economy, the tighter credit conditions triggered by the sub-prime
mortgage fallout and rising inflationary pressures tending to limit the extent
of any accommodative easing in monetary policy around the globe’, it said.
‘Additionally,
economic growth in Queensland’s major overseas trading partners is also
expected to moderate. Despite the condition of the international economy, the
state of the Queensland economy leads us to the view that it can support a
reasonable and fair wage increase to the Queensland Minimum Wage and award
rates of pay.’
To view
the Queensland state wage case decision, click here.
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What
came out of the Workplace Relations Ministers’ meeting
Australia’s
federal, state and territory IR ministers met on August 22 to discuss a range
of matters of national importance, including the progress of the Rudd
Government’s substantive IR legislation, the broader move towards a national IR
system, harmonisation of OHS arrangements, and the review of the Comcare
self-insurance scheme.
The WRMC
meeting also discussed the replacement of the Australian Safety and
Compensation Council, establishing modern award protections for clothing
outworkers during the award modernisation process, and the review of the 457
visa scheme.
A communiqué
released following the meeting said: ‘The Deputy Prime Minister undertook to
brief WRMC members on the substantive WR Bill as soon as possible, following
the draft legislation being considered by the High Level Officials Group
(HLOG). HLOG will continue to meet to finalise views on the development of a
national WR system for the private sector.’
On the
national OHS review, panel head Robin Stewart-Crompton will provide a first
report to ministers in late October.
‘Ministers
were updated on the establishment of the Australian Safety and Compensation
Council (ASCC) replacement body and noted that the enabling legislation is
scheduled for introduction in the Spring sitting of Parliament’, the communiqué
said.
To view
the full communiqué, click here.
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Gillard on substantive bill, a
national IR system and positive engagement with unions
‘There
are no nasty surprises in store for anyone in the reforms that we’re making,’
Deputy Prime Minister Julia Gillard told the National Industrial Relations
Summit in Sydney on August 20.
Kicking
off her speech with a ‘word of reassurance’, Gillard said: ‘The reforms we took
to the Australian people at the last election will comprise the essential shape
and detail of Australia’s new workplace relations system.’
Extensive
consultation will be undertaken over the substantive reforms, including with
the Workplace Relations Consultative Council and the Committee on Industrial
Legislation, both of which AMMA is a member.
Labor’s
current interim arrangements - under which no new AWAs can be made and the new
no disadvantage test introduced - will be replaced by the new system which will
be fully operational by January 1, 2010 ‘and which will coincide with the
overwhelming completion of the award modernisation process’, Gillard said.
‘And to
bring this about, a substantial workplace relations reform bill will be
introduced into parliament later this year,’ she said.
The
components of the new system are:
A simple
safety net comprising National Employment Standards (NES) and modern awards.
Collective agreements will be approved by Fair Work Australia only if they meet
or exceed the NES and leave employees ‘better off overall’ when compared to a
modern award. Common law contracts will also be available but only if they
build on the safety net.
Collective
enterprise-level bargaining underpinned by good faith bargaining. If most
employees at a workplace want to bargain collectively, their employer will
be required to do so in good faith. This includes a requirement to participate
in meetings at reasonable times, disclose relevant information and respond to
proposals in a timely manner and refrain from conduct that is ‘capricious or
unfair’ or which undermines freedom of association and collective bargaining.
Employees can be represented by a union if they choose but can alternatively
strike a collective bargain directly with their employer.
Fair and
decent treatment in the workplace. ‘This will include a simpler unfair
dismissal system which balances the rights of employees to be protected from
unfair dismissal with the need for employers, including small business, to
manage their workforce, and to ensure a faster, less costly and less complex
process for all,’ Gillard said.
Fair Work
Australia will oversee the system and maintain the safety net. ‘The new
umpire will be a “one stop shop” to provide practical information, advice and
assistance to deal with workplace issues and to ensure compliance with
workplace laws and encourage the adoption of family-friendly work practices’,
she said. ‘All appointments to Fair Work Australia will be made through a
transparent selection process. This is not an industrial relations club.’
Strong
compliance measures. ‘Unprotected industrial action will be dealt
with swiftly’, Gillard warned. ‘And secondary boycotts will continue to be
regulated by the Trade Practices Act and the current rules in relation to right
of entry will remain.’
Gillard
said consultation was under way between Commonwealth and state IR ministers
through the Workplace Relations Ministers Council to move towards a uniform
national system for the private sector. ‘It’s part of our objective of creating
a seamless national economy’, she said.
To view
Gillard’s full speech to the summit, click here.
No delay
in reforms
Gillard
told ABC radio on August 12 there would be no delay to the substantive bill
being released, despite media reports to the contrary. ‘We’ve always said that
our substantive IR bill would be in the parliament in the second half of this
year. And it will be’, she said. ‘We are on track, where we always expected to
be.’
She has
not ruled out bringing in some parts of the legislation (such as changes to
unfair dismissal laws) earlier than the January 2010 kick-off for the rest of
the system. ‘What I’ve always said is the substantive bill, which will deal
with unfair dismissal, would be in the parliament in the second half of this
year. And we will look when the bill is through the parliament – and I say
“when” because obviously we’ve got to deal with a Senate with a Coalition which
is still in the embrace of Work Choices. But when the bill is through the
parliament we will obviously be bringing on stream the parts that we can as
soon as possible.’
Positive
engagement by unions important
Positive
engagement was the theme of Gillard’s address to the Australian Workers’ Union
Industry 2020 lunch, with the Deputy Prime Minister saying all parties had to
‘move beyond the destructive conflict-based model of workplace relations that
was Work Choices and instead build a productive new workplace relations system
based on promoting consultation and co-operation at the enterprise level’.
‘Our
intention has never been to tilt the balance unfairly in the opposite direction
to Work Choices. It is to ensure the workplace relations pendulum is where it
should be – the middle’, she said.
‘It is in
everyone’s interests that employers, unions and employees work together
co-operatively and abide by the rules’, she said. ‘It’s easy for each of us to
sit back and simply say “no” to change. That won’t help us meet our
challenges.’
‘I’m glad
to say, unions like the AWU and the sorts of businesses represented here today
have responded positively to this new way of governing’, Gillard said.
To view
the Deputy PM’s speech to the AWU lunch, click here.
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What
big business wants in the substantive legislation
Australia’s
current system of workplace regulation grew out of an economic and business
landscape that has been left behind, and the current reform process should be
seen as a bridge to the next wave of reform, Business Advisory Group (BAG)
chair John Denton from Corrs Chambers Westgarth has said.
‘To be
clear, it is not the job of BAG to dictate policy’, Denton said in the
Foenander Public Lecture at the University of Melbourne on August 20. ‘Rather,
it is an important mechanism for Deputy Prime Minister Gillard, who has
participated in all meetings to date, to hear directly from the CEOs of large
businesses the practical implications of Forward with Fairness.’
The BAG’s
members are Rio Tinto MD Stephen Crease, Australian Industry Group’s Heather
Ridout, News Ltd’s John Hartigan, HIA’s Dr Ron Silberberg, St George Bank’s
Paul Fegan, Mirvac’s Greg Paramor, AHA’s Bill Healey, Australian National
Retailers Association’s Margy Osmond, Recruitment and Consulting Services
Association’s Julie Mills, and Ron Finemor Transport’s Ron Finemor.
Among the
things big business would like to see in the substantive legislation, Denton
said limiting the content of agreements to ‘matters pertaining’ to the
employment relationship was very important, as were sensible ‘transmission’
rules so employers were not ‘saddled up’ with irrelevant awards and agreements
when they acquired new businesses.
A
workable, quick and fair process for resolving unfair dismissal claims was also
important, with business not being able to afford a return to increased
complexity in unfair dismissal laws, Denton said.
‘I am firmly
of the view that in addition to the important changes to the legislative
framework that Labor is implementing, further reforms will be needed – to drive
the productivity agenda that that government is also committed to. And the
policy work on this broader agenda has to begin now’, Denton said.
To view Denton’s paper, click here.
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Review
of discrimination laws should stop ‘forum shopping’, says ACCI
The
Senate Legal and Constitutional Affairs Committee has kicked off an inquiry
into the Sex Discrimination Act.
ACCI has
lodged a submission to the inquiry pointing out the practical difficulties of
managing employer obligations under anti-discrimination laws, asking for
additional tools to help employers.
According
to ACCI, in addition to the costs of litigation and disputes when they arise,
employers bear ongoing costs arising from having to demonstrate they have met
their obligations. ‘This includes the cost of training, induction, engaging
specialist staff and contractors, and investigating complaints’, ACCI said. ‘Even a harassment and discrimination free business bears a cost due to
anti-discrimination laws.’
A major
problem was employers being subject to multiple and overlapping state,
territory and federal anti-discrimination laws, ACCI said. ‘Harmonisation and
simplification of the legislative framework may produce benefits; the content
of any harmonised legislative approach will, however, be crucial,’ it said.
Various
state discrimination acts under review
‘It is
unclear to ACCI what the level of co-ordination is among the various
initiatives to review federal and state/territory anti-discrimination legislation,
but harmonisation is one issue that governments appear to already be giving
active consideration to,’ the employer group said.
The
National Employment Standards, which will be operative on January 1, 2010, will
include a right to request flexible working arrangements to assist employees in
balancing work with family responsibilities. ‘This NES will usher in a major
extension of employee rights in this area and the management of these requests
may impose significant challenges for business’, ACCI pointed out.
It
recommended sufficient time be allowed for those new rights to be ‘road tested’
and understood before other measures were considered.
‘Whilst
there are legal prohibitions on aggrieved persons bringing claims for
discrimination in both federal and state jurisdictions, this does not remove
the scope for the employee to “forum shop”, with an employer in legal limbo as
to what laws they should have retrospectively complied with (due to the fact
that the laws are broadly similar but not identical’, ACCI said.
Six
objectives a renewed Federal Sex Discrimination Act should meet from an
employer perspective are: the law should be clearly expressed so employers can
readily understand their obligations; employers should be protected from ‘double
jeopardy’ in that the law should not permit multiple claims in different
jurisdictions based on the same conduct; and it should not impede ‘legitimate
business decisions’ such as decisions to employ, not employ, advertise for
employment or terminate employment on certain grounds.
‘There
should be a greater emphasis on education, promotion and problem solving, and
less emphasis on sanctions in the implementation of discrimination law in
employment’, ACCI said.
The
Senate Committee will report on November 12.
To view
ACCI’s submission to the Senate Legal and Constitutional Affairs Committee
Review, click here.
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Award
modernisation quarterly report out
AIRC
President Justice Geoffrey Giudice has released his June 2008 quarterly report
on award modernisation. Quarterly reporting is required under Deputy Prime
Minister Julia Gillard’s award modernisation request. The report details the
steps and timetabling the commission has undertaken up to June 30. Its next
quarterly report will be released later this year for the three months from
July to September 2008.
To view
the quarterly report, click here.
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Workplace
privacy set for overhaul
The Australian Law
Reform Commission (ALRC) has released a report on its 28-month-long inquiry
into the Federal Privacy Act and whether it provides an effective framework for
the protection of privacy in Australia.
‘Businesses
– not surprisingly – were concerned mainly with the overly complex and
confusing web of privacy laws in Australia, citing the overlapping federal,
state and territory laws’, the report, For your information: Australian
privacy law and practice, said.
The ALRC
recommended the Act be redrafted and restructured to achieve ‘significantly
greater consistency, clarity and simplicity’.
Every
state has legislation or administrative guidelines in the area of privacy, the
report noted. The ALRC recommended the national Privacy Act apply to all states
and territories and to the public and private sector ‘to the exclusion of state
and territory laws dealing specifically with the privacy of personal
information, including personal health information, handled by organisations’.
This
would ease the compliance burden significantly and reduce costs for business,
it said.
It also
advocated the removal of existing exemptions from the Act for small business,
employee records and registered political parties.
Businesses
with a turnover of $3 million or less are currently exempt from the Act but as
the ALRC pointed out, no other privacy jurisdiction in the world has a small
business exemption.
Before
removing the exemption, the Office of the Federal Privacy Commissioner should
provide support to small business to help them understand their obligations, it
said.
The ALRC
also cited ‘little justification’ for retaining the employee records exemption.
Public sector agencies were currently required to treat employee records in
accordance with the Act but private organisations were generally exempt in
relation to current and past employees. AMMA had supported the employee records
exemption.
‘The ALRC
recommends that this exemption be removed. This would create consistent rules
for personal information about employees, regardless of whether they are public
or private sector employees.’
Referees’
reports, which might sometimes be undesirable to release to employees, would be
better dealt with under the law of confidentiality, it said.
The
Standing Committee of Attorneys-General (comprising all
state, territory and federal Attorneys-General) is meanwhile considering the
recommendations of a 2005 report by the Victorian Law Reform Commission dealing
exclusively with workplace privacy. The VLRC found workers’ privacy was not
adequately protected under current federal legislation, and needed to be
actioned by the states. ‘Our proposed legislation imposes an obligation on
employers not to unreasonably breach the privacy of prospective workers or
workers while they are working’, it said.
A copy of
the ALTC report is available here.
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Leaders,
not managers, the key to employee engagement
Just one
if five workers today is giving ‘full discretionary effort’ on the job, and
that person is more likely to leave your company than an underperformer,
according to a new study from global professional services firm Towers Perrin.
The
Global Workforce Study 2007-08, Closing the engagement gap: a road map for
driving superior business performance, says the ‘engagement gap’ poses
serious risks for employers due to the strong connection between employee
engagement and company financial performance.
‘More
disturbing still’ is the fact that close to four out of 10 workers are
‘disenchanted or disengaged’, the survey of 90,000 employees in 18 countries
found.
Employers
cannot afford to become complacent about their highly engaged employees, it
warned.
While a
highly engaged employee is more likely to stay with a company, 40 per cent of
engaged workers are ‘passive jobseekers’ in that they are not actively looking
for a job but are open to other offers. In contrast, around half of the
disengaged sample had no plans to leave their current employer and weren’t even
looking for another job. ‘This means employers face a real risk of losing the
people they’d most like to keep – while retaining those who are not
contributing as they should’, the survey found.
The
‘silver lining’ was that organisational attributes like leadership, career and
professional development, as well as the kind of work culture and reputation a
company has, played a significant role in shaping employees’ level of
engagement.
The top
five important attributes in a job were: having a good work/life balance,
having a secure, long-term position, maximising earnings, doing exciting and
challenging work and having adequate protection for self and family.
Senior
leaders ranked as a far more potent engagement factor than immediate managers.
‘While “my manager” clearly matters and plays some role in a number of
dimensions that foster engagement, we believe it’s a dangerous
oversimplification to assume that engagement is all about the supervisor’, the
survey said.
Engagement
is about the ‘unique intangibles that effective leaders create over time by
delivering value to customers and communities, treating employees with fairness
and respect, and demonstrating genuine interest in the mutual success and
growth of all stakeholders’.
Click here
then register to download the free Global Workforce Study.
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New
Work Safety Bill to replace ACT OHS Act
The ACT Work Safety Bill was presented to
parliament on August 19, and when passed will wholly replace the Occupational Health
and Safety Act 1989 (the
OHS Act) ‘with
a modern set of work safety laws that reflect the realities of working and
doing business in the territory’, according to ACT IR Minister Andrew Barr.
In the
explanatory statement for the bill, Barr said it addressed ‘deficiencies’ in
the OHS Act. ‘Every Canberra worker must feel confident they can go to work and
come home safe and sound at the end of the day. At the same time, the duties
must not hamper business but encourage organisations to consider work safety
alongside other business risks’, he said.
Significantly,
the bill proposes to allow private prosecution of offences, giving an express
right of prosecution to unions and employer organisations. A prosecution can be
commenced with the written consent of the secretary of a registered union or
the chief executive of a registered employer organisation.
Barr
acknowledged the bill was delivered at a time when all governments across Australia had already committed to working co-operatively to harmonise OHS laws.
‘The ACT
Government is strongly committed to this work’, Barr said. ‘However, the
current ACT legislation needs to be replaced now.’ It could be as late as 2011
by the time a model national OHS law was introduced, ‘despite the best
intentions of all parties’, he said.
Among
other things, the bill extends its coverage from the narrow definition of
‘employee’ to the broader definition of ‘worker’ which includes employees,
independent contractors, outworkers, apprentices, trainees, volunteers who work
in employment-like settings, and visitors.
‘The
safety duties are extended and clarified to ensure responsibility attaches to
those who control the generation of risks and who are in a position to
eliminate or minimise the risks,’ Barr said. ‘Duty holders are only responsible
for matters over which they have control.’
The bill
also introduces risk management principles requiring duty holders to eliminate
or reduce risk ‘as far as reasonably practicable, and to afford the highest
level of protection that is appropriate for matters within their control’.
It also
places a general duty on employers to consult with all workers on matters that
could affect their health and safety. ‘The duty to consult will apply to all
employers regardless of the number of workers they have,’ Barr said.
To view
the bill, click here.
To view
the explanatory statement, click here.
Back to Top
One
step closer to national induction code for construction
Public
comment will shortly close on WorkCover New South Wales’ National Code of
Practice for Induction and Construction Work, with responses soon to be
collated and a forum made available to stakeholders.
WorkCover
New South Wales CEO Jon Blackwell had encouraged all stakeholders to
participate in the process of moving towards a harmonised construction
induction training system and to give feedback on the code by August 29.
‘One set
of national arrangements should result in a reduction of compliance costs for
businesses operating across jurisdictions, and less confusion for construction
workers working across state and territory borders’, Blackwell said.
The code
will apply to all people involved in construction work, including those with
control of construction projects (such as principal contractors, project
managers, main contractors, builders, employers and the self-employed), those
with control of construction work (such as employers, the self-employed,
principal contractors, main contractors and sub-contractors) and those carrying
out construction work (such as employees, contractors and labour hire workers).
‘General
induction training aims to provide persons new to the construction industry
with a basic knowledge of OHS legislative requirements, principles of risk
management and the prevention of injury and illness in the construction
industry’, the discussion paper said.
To view
the discussion paper, click here.
For more
information about the consultation process, click here.
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Large
employers opting in to NSW commission
Large
employers operating in New South Wales are opting in to conciliation and
arbitration services from the New South Wales Industrial Relations Commission,
despite being constitutional corporations covered by the federal industrial
relations system.
New South
Wales Industrial Relations Commission President Justice Roger Boland in a paper
to the New South Wales Industrial Relations Society’s annual lunch in Sydney on August 15 said BlueScope Steel in Wollongong was one organisation that had a
general referral agreement with relevant unions under s146A of the state IR
Act.
‘Other
large employers that operate referral agreements, either general agreements or
agreements dealing with specific disputes, include Integral Energy, Energy
Australia, Patrick Logistics, Macquarie Generation, State Rail Authority, Blue
Circle, Port Waratah Coal Services, Wingham Beef, Australian Steel Mill
Services, Toll Chadwick, Linfox, Hanson Construction Materials and Shinagawa
Refractories’, he said.
‘The
feedback is that s146A agreements give parties access to a system that provides
for both conciliation and arbitration, and that is the advantage they see over
the federal system. Access is quick and cheap but importantly if the dispute is
unable to be resolved by conciliation the parties may agree to arbitration’,
Justice Boland said.
To view
Justice Boland’s paper, click here.
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New
fatigue guide for NSW and Victoria
WorkCover
New South Wales and WorkSafe Victoria have released a new guide aimed at
eliminating and reducing workplace fatigue.
The guide
is meant to assist people who have duties under OHS legislation to comply with
the laws in relation to fatigue. The advice is generally applicable to any
workplace within New South Wales and Victoria where fatigue is a health and
safety issue.
Fatigue,
described as ‘an acute and/or ongoing state of tiredness that leads to mental
or physical exhaustion and prevents people from functioning within normal
boundaries’, can be brought about by working long hours, with intense mental or
physical effort, or during some or all of the natural time for sleep. Fatigue
can increase error rates, slow down reaction times, increase the likelihood of
accidents or injuries and lead to dangerous ‘micro-sleeps’, according to the
guide.
The guide
suggests how risk factors and work design can be improved to reduce the
incidence of fatigue. ‘A risk management approach is the best way for employers
to prevent work-related fatigue and other OHS hazards,’ it says.
Successful
prevention means consultation between employers and workers and health and
safety reps, it says.
Consultation
should occur when: the organisation identifies fatigue as a hazard in the
workplace; when the organisation checks how fatigue is currently managed; when
changes are proposed to work schedules and working procedures; prior to new
schedules and procedures being introduced; at each step of the risk management
process; when there are indicators that fatigue is affecting the health and
safety of workers; and after there has been an incident or ‘near miss’.
The guide
looks at specific measures to reduce fatigue during night and shift work.
To view
the guide, click here.
Back to Top
Stein
report released
The
long-awaited Stein Report on the review of the New South Wales Occupational
Health and Safety Act (the Act) has been released, having been received by the
New South Wales Government in April 2007.
The Hon
Paul Stein, a former judge of the New South Wales Court of Appeal and the
Supreme Court of New South Wales, was asked to consider whether the proposals
arising out of the review were necessary to better secure the health, welfare
and safety of people at work.
His
report recommended many of the review’s proposals be adopted. WorkCover New
South Wales has stressed, however, that the Stein recommendations should not be
seen as the state government’s policy position. ‘The Stein Inquiry Report has
been released to assist public debate on the future of OHS laws in Australia’, WorkCover said.
The Stein
Report has recommended that the words ‘so far as is reasonably practicable’ be
included in the statement of the general duty and that the onus of proving
‘reasonably practicable’, whenever it qualifies a general duty, should fall on
the defendant on the balance of probabilities.
Stein
also recommended s26 of the Act should state a breach by a corporation is only
attributable to an officer of the company where the officer fails to take
reasonable care.
Stein has
also recommended the New South Wales Industrial Relations Commission retain its
jurisdiction over OHS matters but said there should be an avenue of appeal to
the Court of Criminal Appeal from the Full Bench for ‘dissatisfied defendants’.
Then-IR
Minister John Della Bosca announced the five-year statutory review of the Act
in June 2005 to determine whether the Act’s objectives remained valid and its
provisions appropriate for securing those objectives.
‘By any
yardstick, workplace health and safety is a highly significant economic issue’,
Stein said in his report. ‘The cost of workplace safety is shared between
injured workers, employers, insurers and the community through social security
and health subsidies.’
He pointed
out that in 2005, 384 successful prosecutions were mounted in New South Wales
with fines ranging from high to low. ‘Certainly some of the fines imposed can
be said to have a deterrent effect’, he said.
To view
the Stein Report, click here.
For
information about the wider review of the New South Wales OHS Act, click here.
To view
the WorkCover New South Wales report on the OHS Act review, click here.
Back to Top
The
future of OHS and the NSW commission
The New
South Wales Industrial Relations Commission’s OHS jurisdiction has so far
remained unaffected by federal legislative change, but this could all change
with the National Review into Model OHS Laws, New South Wales Industrial
Relations Commission President Justice Boland has said.
‘Putting
aside those fringe submissions that place the blame on the state’s OHS laws and
how the industrial court applies them for everything that is wrong with NSW
politically, economically and socially, there is, not surprisingly, a divide
between mainstream employer representatives and unions as to what is an
appropriate model,’ he said in a paper to the New South Wales Industrial
Relations Society’s annual lunch in Sydney.
Two
important issues to be dealt with by the national review panel would be the
nature of the general duties and the liability of individual managers and
employees, he said.
‘I think
it is inevitable given the harmonisation objective, that any model laws
recommended by the review panel will mean changes to the OHS laws in NSW,’
Justice Boland said.
To view
Justice Boland’s paper, click here.
Back to Top
Vic
Government releases new family friendly guidelines
The
Victorian Government has released guidelines to help employers and employees
understand their new rights and obligations under changes to the state Equal
Opportunity Act.
The
legislative changes will come into effect on September 1, and are aimed at
protecting working parents and carers from discrimination when trying to
balance work and family.
The
guidelines, Building equality in the workplace, published by IR Victoria
and the Victorian Equal Opportunity and Human Rights Commission, provide
practical information developed in consultation with employers and unions.
Changes
to the Act include that an employer should not ‘unreasonably’ refuse to
accommodate an employee’s parental or carer responsibilities. ‘This means that
an employer should not refuse flexible work arrangements for workers with
family responsibilities without considering all of the circumstances. Requests
should be seriously considered’, the guidelines say.
This
would work in practice by considering arrangements such as working part-time or
agreed hours over fewer days, job sharing, working from home, starting and
finishing earlier or later, changing hours of work, break times, roster times
or times of meetings, extending unpaid leave where paid leave entitlements have
been exhausted, changing the need for work travel or overnight stays and
allowing the employee to work additional hours to make up for time taken for
parental or carer reasons without docking pay.
‘Employers
might also consider other arrangements to assist employees balance work and
family responsibilities such as providing access to an office phone for calls
relating to parental or carer responsibilities’, the guidelines suggest.
‘It is
not sufficient for an employer to refuse a request for flexible work
arrangements simply because it has not been done before or because it does not
fit in with current practic’, they say.
If an
employer decides to refuse a request after consideration, it is ‘good practice’
to meet with the employee and explain why, the guidelines say.
To view
the guidelines, click here.
Back to Top
Labour price index at 4.1 per
cent, 6.7 per cent in mining
Total
hourly rates of pay excluding bonuses rose by 4.1 per cent in the year to June
2008, according to the latest Labour Price Index from the Australian Bureau of
Statistics.
In trend
terms, total hourly rates of pay rose by 4.3 per cent in the private sector,
compared with 3.8 per cent in the public sector.
By
industry, increases in the 12 months ranged from a low of 2.2 per cent for
accommodation, cafes and restaurants to a high of 6.7 per cent for mining,
compared with 4.2 per cent for all industries.
In the
June 2008 quarter alone, indexed mining increases were running at 2.5 per cent,
compared with 0.1 per cent for communication services and 0.9 per cent for all
industries.
To view
the June index, click here.
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Unemployment
and participation rates remain steady
The
seasonally adjusted unemployment rate remained steady at 4.3 per cent in July,
according to the latest Australian Bureau of Statistics Labour Force report.
At the
same time, the participation rate remained steady at 65.3 per cent.
Seasonally
adjusted employment also increased by 10,900 jobs to 10,721,500; full-time
employment increased by 53,700 jobs to 7,718,400; while part-time employment
decreased by 42,800 jobs to 3,003,100.
The
seasonally adjusted unemployment rate for men decreased in July by 0.1
percentage points to 3.9 per cent and increased for women by 0.2 percentage
points to 4.8 per cent.
To view
the July figures, click here.
Back to Top
Employment
growth still slowing
The DEEWR
Monthly Leading Indicator of Employment has now fallen for seven straight
months, confirming a slowing in employment growth below its long-term trend of
2.5 per cent is likely.
The
indicator is designed to give advanced warning of turning points in cyclical
employment. A turning point is confirmed when there are six consecutive monthly
movements in the same direction. A fall in the indicator does not necessarily
mean the level of employment will fall but that the growth rate of employment
might fall below its trend rate of 2.5 per cent a year.
To view
the August indicator, click here.
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Alcohol
and drug policies derived from statutory obligations have precedent, but note
technical advancements and update policies
In
two important decisions the AIRC has drawn attention to the validity of
two companies’ drug and alcohol policies.
One
recent case has determined that the obligation on a company under an agreement
with a union cannot override the statutory duty imposed by Occupational Health
and Safety legislation. In Construction, Forestry, Mining and Energy Union v
Coal & Allied Mining Services Pty Ltd (Mount Thorley Operations/Warkworth
Mining) a company continued to implement its Alcohol and Other Drugs (AOD)
Policy, despite the method of testing being inconsistent with an agreement made
with the CFMEU that the company moves from urine to saliva testing. The CFMEU
notified the company that employees would begin to refuse to submit to urine
testing.
The
company’s AOD Policy stated that multiple refusals of drug testing can lead to
termination. Consequently, it informed employees that any employee who refused
a urine test required in accordance with the company’s AOD Policy would be
stood down without pay, such refusal being treated as a positive test result.
The CFMEU contended this act was a threat of unlawful industrial action in the
form of a lockout.
At
the relevant time, expert advice received by the company indicated that saliva
screening was less reliable that urine screening tests, and the company
followed this advice. Accordingly, the AIRC decided that the position adopted
by the company was motivated not for the purpose of applying pressure to the
union to accede to demands, but by its concern to maximize the safety at the
mine and comply with its statutory OHS duties. It was thus held implementation
of the policy was not industrial action.
Although
making determinations on numerous matters relating to the application of a drug
and alcohol policy, another decision has implied that companies’ AOD Policies
should be updated to take into account advancements in testing technologies,
and thereby reflect what is reasonable at the relevant time given competing
considerations. In Shell Refining (Australia) Pty LTd, Clyde Refinery
v CFMEU, a private arbitration was conducted by Senior Deputy President
(SDP) Hamberger who said the implementation of a urine based random testing
regime when a more focused and less intrusive method such as saliva screening
is available ‘would be unjust and unreasonable’. Emphasis was placed on the
fact that urine testing would detect use over the previous few days, whereas
saliva screening will detect drug use only in the previous few fours. In the
opinion of the SDP, the latter is more appropriate where AOD Policies determine
that positive test results can lead to termination.
SDP
Hamberger qualified this by stating no company could be expected to implement a
saliva-based system until an accredited oral fluid test was available, and
appropriate target concentration levels for each drug were identified.
Importantly, the SDP added that it would not be unreasonable for a company to
continue using a urine-based testing system until the relevant issues were
resolved.
This
decision also noted that companies should ensure contractors adopt consistent
AOD Policies, and adopt a risk management process to identify which employees
should be subject to random testing.
What
does this mean for employers?
The
first case demonstrates that the statutory duties of an employer arising under
relevant OHS legislation will override any obligation under any dispute
settlement agreement with a union. Accordingly, the decision implies that an
employer will be entitled to follow their AOD Policy in place at the relevant
time. However, the second case (remembering that it was a private arbitration
and is not a binding precedent) implies that in determining a company’s AOD
Policy, all the surrounding circumstances must be considered; such as relevant
technical advancements in drug testing, the range of employees to be tested and
the extent of the employer’s statutory obligations. Thus, although a company’s
AOD Policy will be paramount, there is potential for it to be subjected to
external scrutiny at times. Employers must be cautious in effecting their
Policy, and implementing any changes.
Members
seeking advice about or a review of their AOD policies should contact their local AMMA office.
Construction,
Forestry, Mining and Energy Union v Coal & Allied Mining Services Pty Ltd (Mount Thorley Operations/Warkworth Mining)(2008) AIRCFB 1159 can be accessed here
Shell Refining (Australia) Pty Ltd, Clyde Refinery v CFMEU
(2008) AIRC 510 can be accessed here.
Back to Top
CFMEU
denied contractors work on grounds of non-union membership
The
Federal Magistrates Court has found CFMEU shop steward and OHS delegate Jason
Deans breached the Workplace Relations Act by telling two contractors they
couldn’t start work on a building site until their union fees were paid up.
The ABCC
brought the prosecution over events on September 12, 2006 at the CSL Parkville
site in Melbourne.
Wayne
Gauci was denied work altogether when he filled in his induction form and left
the union membership section blank. When union induction officer Deans asked
why it was blank Gauci said he was not a member of the union and had not been
since 2004.
Another
contractor, George Galea, did not start work until three or four hours into the
working day because he was told he had to pay his arrears before he started.
A third
contractor voluntarily offered to get his union fees up to date and was not
pressured to do so by Deans, Federal Magistrate Philip Burchardt found.
Gauci was
a sole trader in construction and earth moving and had given his reasons for
resigning from the CFMEU as ‘disaffection with what the union had or had not
done for sub-contractors prior to the introduction of what all parties refer to
as the Howard laws in relation to industrial law’, Federal Magistrate Burchardt
noted.
Deans was
alleged to have told Gauci when he turned up for work on September 12: ‘You are
not working on this site. You are not in the union, you are not working with
us.’
Gauci
replied that was against the law. Deans replied: ‘Well, I am the boss here. I
run the union. Basically, it is a union site, no union membership – you can’t
work on this site.’
Gauci
complained to the ABCC, who then prosecuted the union.
Finding
Gauci was subject to coercion by Deans (and through vicarious liability the
CFMEU), Federal Magistrate Burchardt said: ‘It is difficult to think of
anything more readily fitting the idea of coercion than being told you cannot
work if you are not a member of a union. It is plainly conduct intended to
negate choice. The fact it did not do so speaks for Mr Gauci’s fortitude,
rather than suggesting that it was not conduct sufficiently significant to constitute
coercion.’
To view
the decision, click here.
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Halliburton’s
decision to dismiss not discriminatory, tribunal finds
The South
Australian Equal Opportunity Tribunal has dismissed a man’s discrimination
claim against Halliburton Australia, finding there was no evidence his shoulder
injury was behind the company’s decision not to continue utilising his services
and not find him an alternative job.
Those
decisions were based on the man’s performance and attitude, the tribunal found.
Andrew
Hunt in August 2005 complained Halliburton had discriminated against him by
denying him access to employment on the basis of a ‘presumed’ impairment; did
not allow him to work because of a perceived impairment; and subjected him to
detriment on the ground of impairment, all in breach of provisions of the SA
Equal Opportunity Act.
Hunt had
dislocated his right shoulder in 2003 while working as a geophysical logger for
Heathgate Resources at the Beverly Uranium Mine, after which he was off work
for a year. He returned to work but decided to look for another job ‘solely
because he wanted a change’, the court heard. ‘He found an advertisement, he
thinks online, for a position at Halliburton for a fracturing technologist’,
Judge Cole noted.
He was
asked to undergo a medical assessment and was given several placements with
Halliburton through recruitment company Maxima.
During
two weeks of work in Sale in Victoria at a gas exploration field, Hunt was
deemed not suitable for the role of fracturing technologist. He was said not to
possess the required leadership qualities, verbal communication skills or
ability to work as part of a team.
The
tribunal upheld the company’s argument it dismissed him based on performance
and attitude, noting the person whose decision it was to dismiss him didn’t
even learn of his shoulder injury until a year later. Three other officers who
had exchanged emails discussing the man’s shoulder injury were not influenced
in their reports to the decision maker by the existence of the injury, the
tribunal found.
‘It was
clear from the evidence that all three of them formed an unfavourable
impression of Mr Hunt well before they learned of his shoulder injury,’ the
tribunal said. ‘We are satisfied that they genuinely formed the view that he
was not capable of learning the job to a satisfactory standard within a
reasonable time frame.’
As to the
man’s claim it was discriminatory for Halliburton not to find a more suitable
job for him, the tribunal said there was no history of the company doing it for
anyone else and therefore it was not discriminatory.
Implications
for members
The judge
in this matter relied on email evidence and verbal testimony. While mention of
the man’s shoulder industry in emails between company officers might have
implied to Hunt that his shoulder injury was a factor in the decision to
terminate his services, this was put to the test during verbal testimony and the
judge found it to be unfounded.
Halliburton
was represented by AMMA in these proceedings.
To view
the decision, click here.
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BHP doesn’t have to reinstate supervisor
BHP
Billiton
Iron Ore
does not have to reinstate a worker pending the hearing of his discrimination
claim against the company, the Federal Magistrates Court has ruled.
Federal
Magistrate Toni Lucev in his August 1 judgment said BHP did not have to
reinstate Trevor Harcourt in the interim.
Harcourt
had sought from the court an injunction reinstating him to his job pending the
hearing of his complaint to the Human Rights and Equal Opportunity Commission
(HREOC). He alleged his dismissal from the company was due to discrimination on
the grounds of disability.
The
53-year-old was employed as a production supervisor at the Nelson Point facility in Port Hedland from Dec 2000 onwards. He was earning around $140,000 a
year when he was dismissed on June 4, 2008.
He had
suffered a neck injury in December 2006 and was unable to work until April
2007. He had since returned to work eight hours a day, five days a week but not
to full duties, the court heard.
‘There is
no question that there is a serious question to be tried as to the nature of
the inherent requirements of the position of production supervisor’, the
Federal Magistrate said.
There was
likely to be a ‘serious dispute about what constitutes the inherent requirements
both for the position of production supervisor, and for other positions for
which the applicant might have warranted consideration, and in respect of both
his actual physical injury and any imputed psychological or psychiatric
injury’, he said.
Harcourt
argued his financial circumstances were ‘dire’, with his wife being the sole
bread winner, and interim reinstatement was crucial.
But the
court said if he was put back on and his dismissal was eventually upheld, there
would be no way for BHP to claim his wages back. This would not be an
appropriate exercise of the court’s discretion, it said.
To view
the decision, click here.
Back to Top
Medical
certificates show employment not abandoned
While a
mining company thought a former worker had abandoned her employment, in fact
she had not and it was the facts of the matter that took precedence over
perception, a Full Bench of the AIRC has found.
The background
to the case was the woman had made a complaint about a co-worker. The company
investigated the complaint and found no substance to it. It then encouraged
both employees to leave the company voluntarily but they declined. The company
then asked the woman to come back to work (she had been stood down pending the
investigation) under the condition she had nothing to do with her co-worker.
Instead
she proceeded onto sick leave and would only communicate via her lawyer. At the
same time, she had lodged a workers’ compensation certificate covering the rest
of her time off work, although she did not communicate this to her employer and
nobody else did on her behalf. The company assumed she had abandoned her job
because her employment contract specified she had to notify the company of all
absences within three days. It sent her a letter advising as it had not heard
from her in more than three days that the employment relationship had ceased.
Commissioner
Bruce Williams at first instance found the termination was not at the
initiative of the employer and that she had abandoned her job.
A Full
Bench on July 29 found all her absences were covered by medical certificates,
despite her lack of direct contact with her employer.
Lodging a
formal workers’ compensation claim was a clear indication she was not
abandoning her employment, the bench said. ‘It is difficult in those
circumstances to say that the appellant was under a duty to report for work. As
a matter of objective fact she was entitled to be absent pursuant to the
certificate.’
The
employer might have concluded she abandoned her job but this conclusion was
‘incorrect’, the bench said. ‘Where questions of jurisdiction are involved it
is the facts which are relevant, not the parties’ subjective beliefs or the
reasonableness of their conduct.’
It
concluded the employment was terminated at the initiative of the employer and
quashed the earlier finding.
Implications
for members
This case
highlights that the facts of any termination case will be upheld in preference
to the parties’ perceptions. Where a worker is deemed to have abandoned their
employment, the onus is on the company to make sure there is nothing it has
missed, or it could face an unfair dismissal claim down the track.
To view
the decision, click here.
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Skiing without the client not work-related, finds
compensation commission
The
president of the New South Wales Workers’ Compensation Commission has found a
marketing manager who injured her knee while skiing on a client business trip
was not directly engaged in work at the time and the injury was not
compensable.
The
client services manager with IT and telecommunications company Nexon Asia
Pacific (trading as Commander Australia) had earlier been awarded weekly
compensation payments by a single commission member.
The
member found because the employer condoned the ski trip to Perisher Blue in
July 2007 for the purpose of schmoozing clients, the context was work related.
Her employer was ordered to pay her $1,538.46 a week from July to October 2007
as well as medical expenses and costs.
‘Although
Ms Badawi was not employed to ski, she was employed to secure the business of
Perisher Blue,’ the single commissioner had found.
On
appeal, President Judge Keating found the accident was not strictly
work-related. While she and a colleague had arranged to go skiing with a
client, the client had dropped out and they had ended up going alone. This
removed it one step from a work context, despite evidence the woman continued
to take work calls and check her emails while skiing. If the client had been
with her at the time, ‘there would be no doubt that not only was the worker in
the course of employment but that her employment was a substantial contributing
factor to the injury’, the judge said.
But when
the client dropped out, the character of the activity changed to one that was
‘primarily recreational’, he found.
The
earlier decision was revoked and the employer awarded monies it had already
paid out.
Implications
for members
This
decision shows that under the NSW Workers’ Compensation Act, for an injury to
be compensable it has to be directly related to a work activity, not just an activity
that is ‘incidental’ to work. An activity might be sanctioned by an employer
but still not be compensable, depending on the circumstances.
To view
the decision, click here.
Back to Top
Falsifying timesheets
no cause for summary dismissal
A school
cleaner who admitted to falsifying his start and finish times did not deserve
to be summarily dismissed, the Australian Industrial Relations Commission has
found, despite the fact he had lied to his managers when first confronted about
the issue.
Commissioner
Frank Raffaelli on August 12 found the actions of the former Broadlex Services
employee who cleaned Banksia Road Public School in Sydney amounted to
misconduct and provided a valid reason for dismissal.
However,
the termination of his employment was still harsh because it did not warrant
summary dismissal, he said.
The man
had not worked long for Broadlex and would not have worked very long even if he
hadn’t falsified his timesheets, the commissioner said.
The
worker had already received a written warning about his performance after a
site he cleaned had failed a departmental inspection. Commissioner Raffaelli
concluded he would probably have been terminated with notice or given a final
written warning in any case. This meant his anticipated period of employment
would have been around four weeks given there was no guarantee his work would
have improved if he had been given a final warning.
The man
had sought reinstatement, which the company opposed, and Commissioner Raffaelli
said would be inappropriate given Broadlex could never trust him again,
‘particularly given that the nature of his employment leaves him largely
unsupervised’.
The
cleaner was, however, entitled to four weeks’ pay in lieu of notice, he said.
To view
the decision, click here.
Back to Top
Toll
was right to dismiss threatening shop steward, says AIRC
The
Australian Industrial Relations Commission has found freight forwarding
business Toll Transport was right to terminate the employment of a TWU delegate
because he threatened a new recruit.
Stephen
Holloway was a leading hand/forklift operator at Toll’s Perth International Airport site as well as a TWU delegate.
The
company claimed it terminated his employment over offensive remarks he made
about a personnel manager in front of other employees, as well as for breaching
freedom of association requirements.
Site
induction processes gave the TWU access to all new recruits to ‘promote union
membership’, the AIRC heard.
On June
3, 2008, Holloway was alleged to have threatened a new employee in relation to
his non-union membership, saying if he didn’t join the union ‘you won’t last a
week here’.
Deputy
President Brendan McCarthy found the statements were a ‘direct threat or had
the effect of being a threat’ aimed at ‘forcing’ the worker to join the TWU. ‘I
do not accept that his statements were intended to be friendly comments nor
warnings about being treated differentially by the respondent’s management’, he
said.
The
impact of the statement was the man thought there would be consequences if he
didn’t join. These could include being forced from the site by Holloway or
others over whom he had influence, the Deputy President said.
There was
a valid reason for terminating Holloway’s employment because he behaved
contrary to the employer’s policies, he said. ‘The applicant knew such conduct
to be in breach of those policies but nevertheless proceeded to bully a new
employee into joining the TWU’, he said. The employer was obliged to take
action.
Implications
for members
This
decision shows that length of service will not be a major mitigating factor in
cases where one employee is threatening another, and in such cases the employer
has a duty to act.
To view
the decision, click here.
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Tristar
was genuinely trying to get back on its feet
Tristar
Steering and Suspension’s efforts to secure remanufacturing work to keep its
business going were genuine even though unsuccessful, and the company was under
no obligation to make long-serving employees redundant even though they were
left idle, the Federal Court has ruled.
Justice
Roger Gyles dismissed the prosecution by the Workplace Ombudsman which claimed
the company had breached s792 of the WR Act.
In an
unusual set of pleadings, the workplace watchdog argued Tristar had caused
detriment to the workers by not making them redundant.
Manufacturing
had ‘effectively ceased’ in the company in 2006, after which it began
‘shedding’ its workforce, the court heard.
In 2000, Tristar
had employed 370 people. In January 2006 it employed 177. By August 2006,
numbers were down to 50 production employees and 19 staff employees. By August
2007, these were 19 and 13 respectively.
The
Workplace Ombudsman claimed the company was keeping the longest-serving
employees on because of their entitlement to large redundancy payouts under
their EBA, claiming the company was waiting for the obligation to expire.
The
company would have had to keep the workers on until February 2008 to avoid paying
the higher redundancy amounts. In the end, Tristar let all workers go in
November 2007 and paid out the higher entitlements.
The
Workplace Ombudsman said paying the workers out did not mean it would not
prosecute.
‘There is
no doubt that the retained employees were seriously underemployed with a number
having no work to do or no work of the kind for which they were qualified and
previously employed,’ Justice Gyles said.
The
Workplace Ombudsman’s contention was the employer had a ‘duty to dismiss’, he
said. This was a ‘misguided assumption’. In this case, Tristar simply
maintained the status quo by keeping the workers on and did not actually do
anything to injure them, he found.
Tristar
was genuinely seeking other business and was entitled to retain employees to
carry out actual or potential work. ‘Once the employer has that choice, then no
individual employee could claim that there was any obligation upon Tristar do
dismiss that employee.’
Implications
for members
This case
shows there is no duty for an employer to dismiss an employee even when there
is no productive work for them. Employers are entitled to keep their workforce
on in the advent of an upturn in work. However, in cases where employees leave
due to lack of productive work, they could have strength to an argument they
were constructively dismissed by the employer, the court said.
To view
the decision, click here.
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Truck
drivers’ contracts unfair, finds Federal Magistrate
Three
linehaul trucking companies have successfully sued Riteway Transport Pty Ltd
(trading as Riteway Express), after the Federal Magistrates Court found their
contracts were unfair for requiring them to spend large amounts of money on new
trucks without a corresponding rise in service rates.
L & D
Lowe Transport Pty Ltd had performed services for the company since 1988, Tambo
Waters Pty Ltd since 1992 and Keldote Pty Ltd since 2002.
In early
2007, Riteway told the three they would have to invest in new trailers to
continue providing services to the company. If they failed to purchase the new
equipment, their final journey would be in August 2007.
The
contractors refused to buy the new trucks and lodged claims with the Federal Magistrates Court under the Independent Contractors Act (IC Act), claiming their contracts
were unfair. This is the first decision handed down under the Independent
Contractors Act.
The
companies’ contracting relationships were based on the terms of an agreement
struck between Riteway and the Transport Workers Union in April 1998. There
were written and unwritten aspects to the contracts, but Federal Magistrate
Robert Cameron said there was nothing intrinsically unfair about having
unwritten parts to a contract.
However,
he upheld their argument the contracts were unfair because Riteway could
unilaterally demand the contractors make significant changes to the equipment
required to service its contracts without making financial compensation to the
drivers.
Federal
Magistrate Cameron noted the Independent Contractors Act did not define
‘unfair’, so he used the Macquarie Dictionary definition. He also noted under
the Independent Contractors Act a contract could only be deemed unfair at the
time it was made, not at any other time during its life. This did not rule out
later events demonstrating aspects of the contract were harsh or unfair from
the outset, he said.
A
contract could also be harsh or unfair because of procedural issues in how it
came to be made, including the circumstances of its negotiation. But a contract
could not be unfair simply because its terms could have been more advantageous
than the ones agreed on.
To view
the decision, click here.
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Working
father owed signed apology from his employer
The
Queensland Anti-Discrimination Tribunal has ordered Carpet Call (Qld) Pty Ltd
and two of its managers to give a former employee $39,325 in compensation and a
signed apology for unlawfully discriminating against him on the grounds of
family responsibilities.
‘This
company unreservedly apologises for the actions of management at its Mansfield
warehouses in discriminating against Mr Vernon Bishop on the grounds of his
family responsibilities and regrets the circumstances that led to the cessation
of his employment with this company on 15 July 2005’, the signed letter of
apology said. ‘The company apologises for the hurt, humiliation and loss caused
to Mr Bishop in the circumstances.’
The man’s
supervisor had denied him urgent sick leave on July 15 to take his
five-year-old daughter to the hospital, despite him having an accrued sick
leave entitlement that he was allowed to use for taking care of his immediate
family.
The
tribunal found the man was treated less favourably than someone without family
responsibilities. One of his managers even admitted if another worker had
approached him that same morning asking to attend to an emergency at home he
would have given him leave.
The
father of five had taken some time off work in the preceding months for family
reasons at short notice, and his manager was clearly a little ‘troubled’ by it,
the tribunal said.
‘That
morning, the complainant was refused carer’s leave that he was lawfully
entitled to take. He was at the same time given a choice between staying at
work and going home to care for a sick child. He reasonably understood the
choice he was given to carry the consequence of him keeping his job if he
stayed at work or losing his job if he left.’
The fact
the worker then told his manager to ‘shove’ his job did not negate the
discriminatory conduct, the tribunal said.
The man’s
daughter was later admitted to hospital for some weeks with a serious blood
disease and missed several months of school.
Implications
for members
This
decision shows employers will be acting in a discriminatory way if they deny
employees’ requests for urgent carer’s or sick leave where there is an existing
leave entitlement. Employers will be expected to be sympathetic to the family
circumstances of their employees.
To view
the decision, click here.
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AMMA Education and Training
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About AMMA Education and Training
AMMA
Education and Training is a division of Australian Mines and Metals Association
Inc. and is focused on providing member-driven education and training
initiatives specific to the resources and allied sectors.
Our
mission is to become the choice education and training provider for our members
to deliver quality and trusted education and training services.
One of
AMMA Education and Training’s key goals is to provide as many people as
possible in the resources and allied sector the opportunity for further
education. We are dedicated to providing as many learning options and
methods to facilitate this goal.
AMMA
Education and Training offers a wide range of services to assist organisations
achieve their education, training and development goals.
Our
education, training and development services are constantly updated to ensure
AMMA Education and Training meets the latest global trends and therefore
continually delivers products that surpass user requirements.
Our courses for
September and October are:
Course
costs
Course
cost is $420.00 for members (GST Incl), which includes workbooks,
handouts, refreshments and lunch. Course numbers are limited so to
avoid disappointment, please register early.
To
register or for more information please contact AMMA Training and Education on
1800 891 662 or email training@amma.org.au or
download our Back to Top
Upcoming AMMA member forums
AMMA
conducts member forums on a quarterly basis at convenient locations for
members.
Member
forums are designed to keep AMMA members abreast of important issues that impact
on the resources and allied services sector. External speakers will present on
a range of relevant topics. AMMA member forums also act as an excellent
networking opportunity facilitating the exchange of information
The
second round of forums for 2008 took place during August. AMMA will be
conducting further
member forums throughout Australia during the year.
AMMA also
conducts online forums, making it easy for members in remote locations
to attend.
For more
information about these forums, contact AMMA Membership Services via email at membership@amma.org.au .
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AMMA Employment
Opportunities
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About employment opportunities with AMMA
Information about
current employment opportunities with AMMA is available in the employment area
of the AMMA website.
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Preferred Supplier Program
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About AMMA’s Preferred Supplier Program
The AMMA Preferred
Supplier Program is designed to assist our members in finding quality service
providers for the varying needs within the resources sector.
As a service to
members AMMA is embarking on a project to identify suitable product and service
suppliers for members.
As part of the preferred supplier program
AMMA has engaged the services of a third party to analyse and evaluate all
applicants to the program. This analysis includes a thorough assessment of the
Applicant organisation’s business history, financial stability and professional
reputation. Only by proving itself a professional and reliable organisation can
an organisation be referred to as an AMMA Preferred Supplier.
To ensure the
ongoing quality and validity of the program the preferred supplier relationship
will be reviewed and renewed on a yearly basis. This will also ensure quality
of services to AMMA members is maintained.
If you believe your
organisation would qualify for the AMMA Preferred Supplier Program and would
like some more information please click here, or contact Corlia Roos on (07) 3210 0313.
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AMMA Supported Events
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AMMA’s Supported Events
AMMA is proud to support selected upcoming
events that we believe will be of relevance and interest to our members. Many
of these events offer a discount rate for AMMA members. Further information is
available on our
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The
AMMA Bulletin is published monthly and is available free to AMMA members.
Copyright. Reproduction prohibited.