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AMMA Bulletin – November 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
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AMMA
Supported Events
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Fair Work Bill swings the pendulum
The long-awaited Fair Work Bill was tabled
in Parliament on November 25. On the issue of union rights the industrial
relations pendulum has swung back to give unions the greatest increase in power
since Federation.
Despite the fact that only 14 per cent of
private sector employees actually belong to a union, the Fair Work Bill in its
current form will:
§
allow
unions to access non-union employee records;
§
increase
union rights by watering down the existing sensible right of entry laws;
§
require
union members to have the union as their default bargaining representative;
§
allow
unions to force employers to disclose business information under the guise of
good faith bargaining;
§
allow
unions to apply to Fair Work Australia to impose agreements on business.
AMMA was an active participant in the Fair
work Bill consultation process and as a result some of the most objectionable
provisions have been curtailed. However as all industrial participants know,
consultation does not mean consent, and AMMA will continue to lobby for change
where the Bill harms business interest or goes beyond the policies taken to the
election.
AMMA’s Board Reference Group will consider
the impact of the Bill in a meeting next week and a Fair Work fact sheets are
being emailed to members via our e-newsletter service.
The Bill will be reviewed by a Senate
Committee early next year with submissions due on 9 January 2009. AMMA’s Workplace Policy Director, Christopher Platt will be discussing the Bill and its
effects in member briefings in Melbourne, Brisbane, Perth and Adelaide between
9 and 16 December, which will give members an opportunity to raise concerns
about how the Bill will impact on their business.
Whilst this is all happening, AMMA has
appeared before the Productivity Commission in relations to concerns about how
paid parental leave is proposed to be implemented and adverse impacts on
cashflow and administrative requirements, and is finalising the AMMA submission
to the Wilcox Inquiry on the Australian Building and Construction Industry
Commission.
On a more positive note AMMA’s experience in
the (hard rock) mining industry award modernisation process to date has been
positive, with the final industry award being handed down on 19 December 2008. The Hydrocarbon Industry Award Modernisation group met last week and the
draft award is well underway. We are also intervening in the maintenance and
construction sectors and (subject to member interest) will become involved in
the maritime sector.
Workplace reform has been proceeding at a
cracking pace in 2008 and we expect it to continue in 2009, all the more reason
to renew your membership for 2009.
Have a safe and happy Christmas!
Back to Top
Managing
redundancy programs
Written
by
Peter Baxter, Principal Employee Relations Consultant based in the AMMA Sydney office.
In
challenging economic times many companies are finding that they have no
alternative but to review their existing operations in order to remain viable
and competitive. In some cases, inevitably, this will mean organisational
reviews followed by the shedding or reduction of functions. In human terms
this means job losses.
To
an individual, the trauma associated with job loss can be very serious. It
calls for careful management and special treatment.
Having
to tell your some of your employees that their positions will no longer exist
is very difficult. Redundancy causes the affected employees considerable stress
and anxiety. It can also have stressful consequences for remaining employees
and the organisation itself.
How
the company treats employees who are made redundant is important on many levels
and can have a strong bearing on the company’s reputation, morale, credibility
and integrity.
How
a company conducts itself during a redundancy program is a true litmus test of
its organisational culture and values. It is critical, therefore, to ‘get it
right’ in order to underline a positive and compassionate corporate image.
General
principles and actions
The
following general principles and actions can be a valuable framework in
developing a suitable redundancy project plan:
- Maintain
strict confidentiality on a ‘need to know’ basis until the time to
implement the decision. This includes reinforcing the importance of the
confidentiality requirement to those ‘in the know’, and the destabilising
consequences if the decision becomes known prior to formal announcements.
- The
dignity of individual employees must be respected.
- Conduct
brief and to the point exit interviews with no room for ambiguity.
- Formulate
a clear and consistent message.
- Plan
for the logistics involved if the redundancies are across different sites,
especially if in different time zones.
- Provision
for assistance in assisting employees from the premises should be arranged
in advance and offered.
- Administrative
matters such as return of company laptops, security passes, corporate
credit cards etc. are considered. Checklists are a handy tool for this
purpose.
- Prepare
responses in advance to FAQs such as ‘What am I supposed to do now?’, ‘I
want to talk to the boss now’.
- Provide
appropriate outplacement support.
- Meet
with remaining employees as a group and advise of the decision and the
reasons why the decision was made, and how the company intends to move
forward in the future. Be prepared to answer any questions that may
arise.
- Ensure
that none of the actions associated with the above steps conflict with the
company’s established culture and value set, or if they do make the
necessary modifications to ensure your actions are consistent with the
company’s culture and value set.
Summary
The
foundation for success for a redundancy program is to ensure that the company
behaves consistently with its value set and treats all affected parties with
genuine care and dignity, including making active and worthwhile efforts to
place redundant employees in suitable alternative employment.
There
is no reason why a company cannot emerge from a redundancy program with its
reputation intact or even enhanced and avoid litigation into the bargain,
providing it takes a planned and considered approach including perhaps applying
some of the principles and actions outlined in this article.
Need
more help?
AMMA
provides a range of specialist services, specifically designed to assist
companies through all phases of a redundancy program. Our consultants have
extensive first-hand experience in managing all aspects of major downsizing in
complex, multi-site environments, from the boardroom to the coalface.
Depending
on your needs our consultants are ready to provide the full suite of services
up to and including the complete project management of your redundancy
program.
For
a confidential preliminary discussion please don’t hesitate to contact a
consultant today.
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Increased union power bad for
the economy, AMMA warns
AMMA has
raised grave concerns with many provisions of the Fair Work Bill, which it says
will give unprecedented power to trade unions and derail the economy.
Workplace
Relations Minister Julia Gillard tabled the draft substantive legislation and
explanatory memorandum in parliament on November 25, announcing it as a ‘good
bill’ for employees, employers, families and the economy.
While
participants in the Committee on Industrial Legislation (COIL), including AMMA,
were expecting Labor to make some concessions to unions, the draft bill has
taken things further than expected. AMMA has publicly unless the Senate makes
amendments it will be a return to the adversarial days of IR.
Announced
provisions include that where an employer refuses to bargain collectively with
its workforce, an employee bargaining representative can ask Fair Work
Australia (FWA) to determine whether majority support exists for negotiating an
enterprise agreement. If so, the employer will be required to bargain
collectively.
The bill
also states that where one party completely ignores good faith bargaining
orders the other party can apply to FWA to make a workplace determination.
The bill
allows parties who wish to bargain on a multi-employer basis to do so, but
doesn’t allow good faith bargaining orders in those circumstances.
The bill
also requires employers to give written notice to all employees they are
entitled to be represented in an employer-initiated bargaining process and bans
pre-emptive lockouts by employers.
Regarding
right of entry, the bill allows employees to meet with their union at the
workplace during non-working hours for discussion purposes, with workers able
to decline or participate. Right of entry for discussion purposes will be
governed by strict obligations including 24 hours’ notice and requirements as
to conduct.
Controversially,
the bill gives unions the right to look at and copy the records of all
employees at a workplace where they have members.
Bill
shifts the focus from productivity, says AMMA
Responding
to the Bill, AMMA chief executive Steve Knott said: ‘These new union rights
will shift the focus from productivity and job creation to fending off
disruptive union membership turf wars and dealing with the red tape associated
with union requests for information under the deceptive “good faith bargaining”
system.’
He said a
union only had to have one member at a workplace to be involved and notified at
every level of the agreement making process, ‘even in cases where the
overwhelming majority of workers are opposed to their involvement’.
The bill
allows unions access to non-employee records, increases union rights by
watering down existing right of entry laws, requires unions to be the default
bargaining agent for union members, and allows unions to obtain business
information from employers under the good faith bargaining process, he said.
‘None of
these increased union rights will assist in insulating Australia against the current economic downturn’, Knott said.
The
Deputy Prime Minister has said she expects the Bill to pass through the House
of Representatives before the final sitting day this year (December 4) after
which a Senate inquiry will be called.
To
download the draft Fair Work Bill, click here.
To
download the Explanatory Memorandum, click here.
Back to Top
It’s
now all about the corporations power, says Gillard
The new
Forward with Fairness workplace relations system will rely principally on the
corporations power, as did Work Choices, plus referrals from the states
‘instead of the legal artifice of the conciliation and arbitration of
interstate disputes power’, Deputy Prime Minister and Workplace Relations
Minister Julia Gillard told the Australian Labour Law Association’s (ALLA)
conference in Melbourne on November 14.
‘But in
writing the new workplace relations legislation from scratch, there were many
questions of detail to be thought through,’ she said.
Consultation
included feedback from the Committee on Industrial Legislation (COIL), in which
AMMA participated. COIL feedback was ‘mostly in the form of helpful technical
suggestions, although a number of significant policy issues were debated which
required the government’s further consideration’, Gillard said.
To view
the Deputy Prime Minister’s full speech to ALLA, click here.
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WA
won’t refer powers, says Buswell
West Australian
Commerce and Industrial Relations Minister Troy Buswell will recommend his
state not sign up for a national IR system, he revealed on November 8.
At the
same time, he announced there would be a review of the state IR legislation,
including an overhaul of unnecessary bureaucracy associated with its
administration.
Buswell
confirmed to the West Australian IR Society’s annual convention it was ‘highly
unlikely West Australia would refer its IR powers to the Commonwealth’, a
stance the Queensland and New South Wales governments shared. However, he had
not ruled out enacting some type of mirror federal legislation in the state.
He said
the states had a constitutional right and a responsibility to administer IR
under their own power.
The West Australian
IR system had ‘languished’ since it was downsized under the Work Choices
federal takeover in March 2006, and the former state Labor government had done
nothing to strengthen it, he said.
‘The
previous government had done nothing to adjust the WA system or to make it
relevant to the remaining employers and employees still covered locally’,
Buswell said.
He
promised the new Liberal-National government would work to deliver a better
framework to serve those entities remaining within the West Australian system
under new laws, ‘some of which potentially may mirror federal arrangements’.
He
promised the review of the state IR Act would not be a ‘radical overhaul’ but a
sensible, balanced approach to driving better outcomes for the state.
To view
Buswell’s statement, click
here.
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State
IR ministers, excluding WA, agree substantive bill the basis for national
system
Federal,
state and territory workplace relations ministers met on November 5 for the 78th
Workplace Relations Ministers’ Council (WRMC) - the first meeting for Liberal Western
Australian Minister for Commerce and Industrial Relations, Troy Buswell.
At the
meeting, ministers agreed the draft substantive IR legislation (the Fair Work
Bill), released on November 25, would provide the foundation for a national
workplace relations system for the private sector.
‘To that
end, ministers agreed that senior officials from all jurisdictions would meet
further to discuss matters concerning the transition to a new workplace
relations system for the private sector, in particular issues relating to
governance and service delivery including compliance and tribunals’, a
communiqué from the WRMC said.
On the
OHS front, ministers at the November 5 meeting were given the first report of
the National Review into Model OHS Laws prepared by Robin Stewart-Crompton,
chair of the national OHS review panel (see related story in this edition of
the AMMA Bulletin). The panel’s second report will be released to state and
territory ministers at the end of January 2009.
On the
Safe Work Australia front, state and territory ministers highlighted the fact
that proposed Senate amendments to the Safe Work Australia Bill were
‘inconsistent with the historic commitment of all governments to uniform
national OHS legislation as reflected in the inter-governmental agreement on
OHS reforms signed by the Council of Australian Governments (COAG) in July
2008’.
Buswell
told the meeting he supported a number of the Senate amendments.
To view
the communiqué, click here.
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Coalition
doesn’t hate unions, says Keenan
Contrary
to the way things were often portrayed, the Liberal and National parties ‘do
not approach workplace relations with some set ideological agenda’, nor do they
hate unions or seek to exclude them from the WR system, Shadow Employment and
Workplace Relations Minister Michael Keenan has said.
In a speech
to the IR Society of Victoria on October 31, Keenan said while the Opposition
accepted the Federal Government had an electoral mandate to change Australia’s workplace relations system, the Coalition would make sure it did so in line
with pre-election policy commitments.
Delivering
his speech several weeks before Labor tabled its substantive IR legislation in
parliament on November 25, Keenan said a lot would depend on how the government
implemented its policies.
‘The
devil is in the detail and when we are dealing with a whole new Act … then the
detail will be enormous and the potential for mistakes is large’, Keenan said.
‘Sadly,
the government has already cast aside their promise to release an exposure
draft of their policy, so the people who are most affected by it – the public –
do not get to scrutinise it’, he said.
The
Opposition remains committed to engaging with the government ‘to do our best to
help Australia navigate these treacherous economic times with a minimum of job
losses’, Keenan said. ‘We owe the Australian people nothing less.’
In a
later statement on November 19, following Labor’s release of more policy
detail, Keenan said it appeared the government had reneged on key election
promises.
While
having originally promised no compulsory arbitration, Keenan said the
government had since ‘caved in to union demands by allowing arbitration by Fair
Work Australia’. Deputy Prime Minister and Workplace Relations Minister Julia
Gillard had on November 14 announced there would be ‘last resort’ arbitration
for protracted bargaining disputes and for workers in low-paid jobs.
According
to Keenan, far from retaining current right of entry provisions as promised,
Labor has ‘significantly weakened this promise by letting unions in the back
door on the quiet’.
‘The
award modernisation process is likely to result in vastly broadened
opportunities for unions to enter workplaces and the proposed good faith
bargaining rules are a virtual guarantee that they will always be the loudest
voice at the bargaining table,’ Keenan said.
Another
‘back-flip’ to ‘appease’ the union movement was handing unions access to
non-member records, he said. He predicted this would cost jobs, particularly in
the current financial crisis.
To view
Keenan’s speech to the IR Society of Victoria, click here.
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Award
modernisation time consuming but worth it if it provides flexible outcomes
While the
priority award modernisation process had been time consuming for all involved,
‘it will be a welcome improvement if it provides for flexible outcomes’, AMMA
director workplace policy Christopher Platt told the Australian Labour Law
Association (ALLA) conference in Melbourne on November 14.
‘AMMA’s
experience in creating a modern mining industry award to replace a myriad of
state regulation has been a positive one, with the real prospect of achieving a
concise, flexible, simple modern award’, Platt said.
But Platt
warned the modernisation process would expand award coverage, with industries
that might have been award-free in one state covered if a modern award is made
for that industry or occupation.
‘After
the modern catch-all award is made, we expect that only managerial and
supervisory employees will escape the net’, Platt said. ‘This has implications
for right of entry.’
Deputy
Prime Minister and Workplace Relations Minister Julia Gillard also addressed
the ALLA conference, saying in general, awards would only be reviewed every
four years as of January 1, 2010. However, ‘test cases’ could be run in the
interim on issues such as maternity leave, redundancy pay, and occupational
superannuation, she said.
‘Outside
these four-yearly reviews, awards will be able to be varied in limited
circumstances, such as work value cases, to remove ambiguity, uncertainty or
discriminatory terms’, she said.
All
submissions and consultations are now finalised for priority stage one awards,
including the mining and coal mining awards, following the Full Bench sitting
in Melbourne on November 5. Final modern awards will now be made on December
19.
As for
stage two awards, pre-drafting consultations began on November 24, 25 and 26
for the manufacturing group award, on November 28 for the quarrying industry
award and on December 1 and 2 for the building, metal and civil construction
group.
To view
Platt’s speech to the ALLA conference, click here.
To view
the Deputy PM’s speech to ALLA, click here.
To view
the AIRC’s latest award modernisation timetable, click here.
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First
national OHS report given to state ministers
State and
territory IR ministers were on November 5 given a copy of the first report of
the National Review into Model OHS Laws prepared by Robin Stewart-Crompton,
chair of the national OHS review panel.
An
earlier Workplace Relations Ministerial Council (WRMC) on February 1 saw
ministers agreeing the use of model legislation was the most effective way to
achieve harmonisation of OHS laws by 2011.
‘The
model legislation will consist of a model principal OHS Act, supported by model
regulations and model codes of practice that can be readily adopted in each
jurisdiction’, the Stewart-Crompton report said. ‘Harmonising OHS laws in this
way will cut red tape, boost business efficiency and provide greater certainty
and protections for all workplace parties.’
Australia has nine
OHS jurisdictions and a ‘multitude’ of laws relating to health and safety in
the workplace, the report noted. This included 10 specific OHS statutes – six
state Acts, two territory Acts and two Commonwealth Acts – plus 50 other
legislative instruments applying to offshore petroleum, mining, construction,
public health, public safety and statutes relating to explosives, transport of
dangerous goods, radioactive materials and more.
In the
past 10 years, all jurisdictions have undertaken major reviews of their OHS
laws, most recently in NSW, the NT and the ACT.
‘While
there has been some progress towards achieving consistency in various areas of
OHS regulation, there are material differences between the principal OHS Acts,
as we identify in this report’, Stewart-Crompton said. ‘Our review is part of
the broader COAG National Reform Agenda aiming to reduce regulatory burdens and
create a seamless national economy.’
Peak
employer group ACCI welcomed the release of the report, saying OHS regulation
was an ‘issue of critical importance for business’.
‘Whilst
there is significant detail to be analysed across the report’s 75 separate
recommendations, the review panel appears to have taken a sound approach on
critical issues such as ensuring that the core safety obligation on employers
is limited to doing that which is reasonably practicable, and that the
prosecutor must bear the onus of proving any breach of OHS law beyond
reasonable doubt’, ACCI director of workplace policy Scott Barklamb said.
To view
the Stewart-Crompton OHS report, click here.
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Worker
migration bill set to pass
The
Migration Legislation Amendment (Worker Protection) Bill was again before the
Upper House on November 26 and 27, having been the subject of a Senate
Committee inquiry report on November 10.
The
majority Labor Senators on the committee recommended the Senate pass the bill
and that it be reviewed within three years of commencement.
The
minority report by Liberal Senators said it did not want to delay the
protection of overseas workers so it would support the passage of the bill.
‘However,
the Coalition places on record its concerns about the enactment of legislation
which imposes obligations which are not available for scrutiny at this point
but are to be contained in regulations which will be available at some stage in
the future.’
The bill
aims to provide a structure for better defined sponsorship obligations for
employers hiring overseas workers; improve information sharing across all
levels of government; expand powers to monitor and investigate possible
non-compliance by sponsors; and introduce meaningful penalties for sponsors
found to have breached their obligations.
As well
as imposing penalties for breaching the Migration Regulations, the Bill allows
the Department of Immigration and Citizenship to cancel an employer’s
sponsorship and/or bar them from applying for sponsorship.
It also
allows the Commissioner of Taxation to divulge tax information about current
and former visa holders and current and former sponsors to the Department.
The bill
is part of the government’s broad reform agenda for the temporary skilled
migration program and will commence operating nine months after it receives
royal assent.
AMMA
and ACCI
both made submissions to the inquiry, along with 22 other stakeholders.
To view
the Migration Legislation Amendment (Worker Protection) Bill, click here.
To view
the Senate Committee report, click here.
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Deegan
gives final report to government on 457 visas
AIRC
Commissioner Barbara Deegan has given her final report on the 457 visa scheme
to the Federal Government, making 67 recommendations that will now go to a
Skilled Migration Consultative Panel.
The
Deegan recommendations and the views of the panel will inform the development
of the government’s broader reforms to temporary skilled migration as part of
the 2009 Federal Budget, Minister for Immigration and Citizenship Chris Evans
has said.
Deegan’s
67 recommendations include:
§ abolishing minimum
salary levels in favour of market rates for 457 visa holders earning less than
$100,000 a year;
§ applying, as far as
possible, the same terms and conditions to 457 visa holders as other employees
in the workplace;
§ introducing a salary
‘floor’ for 457 workers by referring to an appropriate ABS published wage rate
based on average weekly full-time earnings;
§ having a federal
tribunal with responsibility for employment conditions decide the appropriate
market rate to be applied if the rate is disputed;
§ requiring sponsors
to pay 457 visa workers directly into their named bank account;
§ requiring sponsors
to maintain income protection insurance for 457 workers for the duration of
employment unless an alternative is spelled out in a labour agreement;
§ consideration be
given to requiring offshore skills testing by a qualified workplace assessor or
registered training organisation for all occupations on the standard 457 visa
occupations list; and
§ requiring employers
sponsoring more than 20 workers from the standard list (excluding workers
earning more than $100,000 a year) to be a party to a labour agreement.
Visa
applications have tripled in 10 years
Deegan’s
report notes that 30,000 visa applications were granted under the 457 scheme in
1997-98, more than tripling to 110,000 in 2007-08. Senator Evans predicted the
use of 457 workers would decline due to the global financial crisis, but said
demand would remain strong in some sectors.
Deegan’s
report found 457 visa holders were ‘potentially vulnerable’ to exploitation as
a consequence of their temporary status, particularly those with ‘aspirations
towards permanent residency’.
The
Australian Human Rights Commission had provided her inquiry with numerous
examples of complaints from 457 visa workers alleging discrimination in the
workplace. Complaints included not being paid overtime; working longer hours
than non-visa workers; limited access to sick leave; being threatened with
dismissal if they took sick leave, fell pregnant or took leave to care for a
sick spouse or child; being overcharged for rent and other expenses organised
by the sponsor; and being sexually harassed.
The
Deegan review received more than 150 submissions, including from ACCI and the
Queensland Resources Council.
To view
Deegan’s final report, click here.
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Sexual
harassment seriously under-reported, finds AHRC
Just 16
per cent of those who have experienced sexual harassment at work in the past
five years have reported it, a telephone survey conducted by the Australian
Human Rights Commission (AHRC) has discovered.
The Sexual
harassment: serious business – Results of the 2008 sexual harassment national
telephone survey found sexual harassment remained a ‘serious problem’ for
Australian workplaces yet was chronically under-reported.
While
there had been a lowering of the incidence of workplace sexual harassment in
the past five years – with 22 per cent of women and five per cent
of men telling the survey in 2008 they had experienced it, down to 28 per cent
of women and seven per cent of men in 2003 – the
number of people making a formal complaint had declined from 32 per cent to 16
per cent during the period.
‘Employers
need to ensure that their employees have a solid understanding of what sexual
harassment is,’ Sex Discrimination Commissioner Elizabeth Broderick said in
releasing the findings.
She noted
the survey found an ‘even spread’ of employer size among those who had been
sexually harassed – 39 per cent working for large employers, 30 per cent for
medium sized employers and 31 per cent for small employers.
To view
the telephone survey findings, click here.
New code
of practice launched giving guidance to employers
In the
wake of the telephone survey, the AHRC has released a new code of practice for
employers providing practical guidance on how to meet their legal obligations
to prevent and manage sexual harassment in the workplace.
‘Disturbingly,
the telephone survey found that there is a significant lack of understanding as
to what sexual harassment is’, Broderick said in launching the code.
Sexual
harassment in the workplace can take many forms including unwelcome touching,
hugging or kissing; suggestive comments or jokes; unwanted invitations to go
out on dates or requests for sex; insults or taunts of a sexual nature; or
sexually explicit emails or text messages.
‘Both men
and woman can experience sexual harassment at work’, the code said. ‘However,
it is most commonly experienced by women.’
Organisations
need to reassess how staff are trained to identify and deal with sexual
harassment, Broderick said. ‘Training should be behaviourally based so that
everyone understands the types of behaviours that are unacceptable in
workplaces.’
She
stressed employers who took decisive action could improve their bottom line by
reducing the risk of absenteeism, lost productivity, staff turnover and low
morale. ‘I challenge all employers to show leadership on this issue’, she said.
The code
is intended to help employers develop and implement policies and procedures.
It
applies to most people in the private sector (including small business),
unions, non-government community organisations, voluntary bodies, clubs,
federal government agencies, federal government business enterprises and
educational institutions not under state government control.
The code
provides guidelines only and employers should seek legal advice as needed.
While the document is not legally binding it does incorporate mandatory
requirements of the federal Sex Discrimination Act.
Employers
are encouraged to comply with the code to minimise the risk of liability for
unlawful sexual harassment given the Sex Discrimination Act makes employers
‘vicariously liable’ unless they take all reasonable steps to prevent it.
In the
case of contractors, if they are harassed at your workplace, your company may
be held liable as well as your individual employee. If a contractor harasses
one of your employees, the employment agency will be vicariously liable for the
behaviour unless it took all reasonable steps.
At a
minimum, employers are expected to have an appropriate policy in place that is
effectively implemented, monitored and communicated to all workplace
participants; and to take appropriate remedial action if sexual harassment does
occur.
Remind
employees of their obligations during party season
The fact
a work party takes place at a venue outside the workplace or outside working
hours does not affect an employer’s liability for employees’ actions, the code
points out.
Employers
should remind employees they are responsible for any inappropriate behaviour at
a work social function and that being drunk is not a defence to sexual
harassment.
‘Employers
should also remind managers to model appropriate behaviour and be mindful that
alcohol is served in a responsible way’, the code suggests.
To view
the code of practice, click here.
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New powers
for Qld safety representatives
Queensland
workplace safety representatives will from next year be able to issue
provisional improvement notices (PINs) in their workplace under new laws passed
in state parliament.
In
announcing the changes under the Workplace Health and Safety and Another Act
Amendment Act 2008, Workplace Health and Safety Queensland executive director
Dr Simon Blackwood said the new laws would also encourage greater use of
‘victim impact statements’ in prosecutions for workplace and electrical safety
breaches.
The Act
would also allow, ‘for the first time’, Queensland government departments to be
prosecuted for workplace health and safety offences.
The
changes will take effect on January 1, 2009, with PINs likely to be introduced in
May to allow for training and developing procedures.
Under the
changes, PINs can be issued by a worker who is an elected health and safety
representative and who has received appropriate training in issuing PINs.
‘This
reform is a major new development in Queensland and should add significantly to
existing measures to prevent workplace incidents as workplace health and safety
representatives will generally be on the spot as incidents unfold’, Blackwood
said.
If a PIN
is disputed, a workplace health and safety inspector can give a second opinion.
‘The
ability to prosecute government departments for OHS offences brings Queensland
into line with other states and introduces a more level playing field between
the private and public sectors’, Blackwood said.
The
legislative changes adopt some of the recommendations of an independent review
by Robin Stewart-Crompton into the current workplace health and safety
framework.
To view
the bill,
click here.
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New
code of practice for underground mining in Tas
Workplace
Standards Tasmania has released a new code of practice for Applicable
standards for underground mining and associated operations.
The code
of practice aims to provide guidance to responsible people in the mining
industry on how to meet their general duty of care responsibilities under the
state Workplace Health & Safety Act.
‘This
code of practice applies to any workplace that is a mine where underground
mining occurs on site. Application extends to any adjacent associated surface
processing operations but excludes downstream processing facilities at another
site’, the code said.
The code
does not cover all OHS responsibilities and notes that failure to observe a
provision of the code is not in itself a breach of the OHS Act.
However,
a court can hold that a failure to comply with an approved code of practice
constitutes proof of a breach of the duty of care responsibility ‘unless it can
be shown that the actions taken achieved compliance in another way’.
To view
the code of practice, click here.
Related
article: Draft code for underground mining in Tasmania published in the
July 2008 AMMA Bulletin.
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WorksSafe
Victoria releases guide to safe work-related driving
WorkSafe
Victoria and the Transport Accident Commission (TAC) have released a Guide
to safe work related driving designed to reduce injuries and deaths on the
road.
‘This
guide will help employers with light fleet vehicles to improve their
work-related driving safety’, the guide says.
It points
out employers are responsible not only for the safety of those who drive for
them but also for members of the public including other drivers and
pedestrians.
‘Many of
the risk factors addressed in this guide apply to all commercial vehicles, and
to that extent, this guide may have broader application’, it said.
‘All
Victorian workplaces where driving is a requirement of the job should aim to
progressively develop and implement policies and practices based on these
guidelines as soon as practicable.’
Around 30
per cent of all registered vehicles were used for business purposes, with more
than 50 per cent of new vehicles bought for commercial use.
Around
one-third of all travel is work-related, and fleet vehicles travel around three
times the distance of the average private car, the guide said. Fleet vehicles
also had a higher rate of involvement in crashes than non-fleet vehicles.
The
potential benefits of a work related driving safety program included reduced
death and injury, greater productivity through increased vehicle use and
greater ability to manage the fleet safely by using fleet safety and incident
information, it suggested.
Employers
are required to purchase and maintain a safe and roadworthy fleet, ensure
employees have relevant driver’s licences, schedule work to account for speed
limits and fatigue management, provide appropriate information and training,
and monitor and supervise the work-related driving safety program.
‘An
employer’s duties also extend to an independent contractor engaged by the
employer and any employees of the contractor’, the guide said. ‘This duty is
limited by the extent of control the employer has over the contractor’s
activities.’
Employees
are also required to take reasonable care not to put themselves or others at
risk by their actions or omissions, which includes reporting any incidents
required by the employer’s program and carrying out any routine vehicle checks
required by the employer.
To view
the guide, click here.
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State
ministers meet to talk education and training
With the
current Commonwealth-state agreement for Skilling Australia’s Workforce nearing
an end, state and federal education and training ministers met in Darwin on November 20 to discuss the future of Australia’s national training system.
A
communiqué said the meeting discussed the work currently being done by the
Council of Australian Governments (COAG) on reforming the Vocational Education
and Training sector.
‘Ministers
agreed that the reform agenda needed to be progressed, understanding the
implications of the global financial crisis, the looming recessions in many
nations and the implications for Australia’s economy’, the communiqué said.
‘Consequently,
the Deputy PM advised ministers that the National Partnership on VET Market
Design will not be considered at the next COAG meeting and ministers agreed
further work would be undertaken on the national partnership on VET reform.’
The
Commonwealth government will continue to support all jurisdictions that engage
in significant reform of the training system, the communiqué said.
It was
expected the National Agreement for Skills and Workforce Development and the
National Partnership on the Productivity Places Program would be considered at
the next COAG meeting on November 29.
To view
the communiqué, click here.
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The
latest education and training moves
· Workplace
Relations Minister Julia Gillard on November 18 announced the
Australian Technical College of North Qld would expand the services it offered from
its Douglas campus next year. It will expand opportunities for students to
enter trades by offering a full Certificate III apprenticeship pathway starting
in Years 11 and 12 in skills shortage vocations including automotive, building
and construction, electro-technology, commercial cookery and metals and
engineering. Announcements are expected on each of the 24 Australian Technical
Colleges in Queensland as negotiations are finalised in coming months.
· Deputy Prime
Minister Julia Gillard on November 13 announced a new partnership
between the Rudd Government and industry to pilot training for existing workers
through a series of National Enterprise Productivity Places Program (PPP)
trials. The trials will kick off in the next six months in the form of joint
ventures between the national Industry Skills Council network and large
enterprises to offer 1,250 training places to increase existing workers’
skills. The joint ventures will cut across industry sectors in companies
including the St George Bank, Inghams, Qantas, Mitsubishi, Woolworths, Thiess Services, Origin Energy and Westfield. The Commonwealth will cover up to 50 per cent of
the cost of training places, equating to $3 million, with companies covering
the rest. ‘The pilot builds on the already successful implementation of the PPP
for jobseekers, which as of this week has delivered over 58,000 enrolments
across Australia with 15,000 people already completed training,’ Gillard said.
· Workplace
Relations Minister Julia Gillard on November 8 welcomed the positive
response to round one, phase two of the Trade Training Centres in Schools
Program, with 136 applications received from schools around Australia. Trade Training Centres are being established to increase the number of students achieving
Year 12 or equivalent to help address skill shortages in traditional trades and
emerging industries. The program will provide $2.5 billion over 10 years to
enable all secondary schools to apply for funding of between $500,000 and $1.5m
each. Expressions of interest for round two opened on October 31 and will close
in December. Decisions on round two will be announced early next year. For more
information go to: www.tradetrainingcentres.deewr.gov.au.
· The
Australian Employment Covenant (AEC) was signed on
October 30 aimed at driving the collaborative efforts of industry, indigenous
leaders and government in an ‘aspiration’ to fill 50,000 sustainable jobs by
indigenous Australians. The Federal Government will assist by providing funding
for AEC employer-specified training to the appropriate job levels for
guaranteed jobs. The covenant is also aimed at actively encouraging and
increasing the commitment by Australian employers to employ indigenous workers.
For more information go to www.fiftythousandjobs.com.au.
To view the covenant, click here.
· Minister
for Employment Participation Brendan O’Connor has said the
Productivity Places Program (PPP) will help weather the global financial crisis
by helping people outside the labour force retrain and get the skills they need
to ‘get back into those parts of the economy where employers are still crying
out for skilled labour’. ‘This is a central part of the government’s economic
platform designed to drive the skills agenda, and putting people into jobs will
be critical to seeing us through the tough times ahead’, he said. ‘We recognise
also that we need to support businesses to use innovation to improve
productivity and stay globally competitive while at the same time taking better
account of environmental considerations.’ Hence the need for changes to work
practices and the development of new ‘green skills’, he said. ‘Responding to
these rapidly changing demands for skills and labour will require more
investment in education and training’, he said. As an example he cited the Eyre
Mining Training Program, the Goal 100 Program and the Get SET programs in South Australia. The Eyre project was a five-week program of pre-employment and literacy
and numeracy training followed by a Certificate II in Open Cut Mining and a
number of electives in machinery operation. It included work experience
placements, individual case management, brokering for employment opportunities
and post placement mentoring. ‘To date, 61 people from the Eyre Peninsula have
participated in the training, of which 43 are indigenous people, and 42 were
long-term unemployed’, O’Connor said. ‘Important lessons were learnt from
previous pilot programs conducted in Ceduna, particularly in relation to
industry involvement, accommodation and transport issues and developing a
better understanding of the mining job market in the region.’
· The
Commonwealth Government is supporting a forum to look at strategies
to increase indigenous employment in the building and construction industry in New South Wales, Minister for Employment Participation Brendan O’Connor said on November
18. Around 90 people including indigenous builders, tradespeople and building
organisations were taking part in the Building Futures, Moving Forward Forum
held in Arrawarra. O’Connor said the government was supporting the development
of a comprehensive industry strategy for indigenous employment in the
construction industry, incorporating successful elements from strategies used
in the mining and other sectors.
· The
Working Victoria strategy was launched by the Brumby Government on
November 20 aimed at boosting Victoria’s workforce participation rates and
skills. Access Economics estimates Victoria will be short 240,000 workers by
2040 ‘but the cumulative impact could push the gap as high as 3.5 million
employees’, Skills and Workforce Participation Minister Jacinta Allan said. ‘We
have begun responding to this challenge through the release in August of our
historic $316 million skills reform package Securing Jobs for Your Future –
Skills for Victoria’, Allan said. ‘It is the largest package of additional
funding ever invested in Victoria’s skills system that also provides more than
170,000 new training places.’
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Single
portal coming for all discrimination jurisdictions
State and
federal attorneys-general have agreed to provide a single website where members
of the public can turn for all the information they need on Australia’s various anti-discrimination systems.
‘There
are separate anti-discrimination laws and commissions in every jurisdiction,
which can make it difficult for people to raise concerns or find out the
information they need’, Federal Attorney-General Robert McClelland said.
The
website will be hosted by the Commonwealth government and will be launched
early next year.
To view
the Attorney-General’s media release, click here.
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Mining
industry delivers highest annual increase in hourly rates of pay
Hourly
rates of pay excluding bonuses rose by 4 per cent in trend terms in the 12
months to September 2008, and by 0.9 per cent for the September quarter alone,
according to the latest ABS Labour Price Index.
This
annual growth rate of four per cent was 0.1 percentage points less than the
annual growth rate for the 12 months to June 2008.
In the 12
months to September, wages in the private sector grew in trend terms by 4.2 per
cent and in the public sector by 3.6 per cent.
In the
September quarter alone, wages grew by one per cent in the private sector and
0.8 per cent in the public sector.
Industry
level increases (in original terms) ranged from the highest annual change of
6.3 per cent in mining, to the highest quarterly change in personal and other
services of 2.1 per cent. Accommodation, cafes and restaurants recorded the
lowest quarterly and annual change of any industry, at 0.7 per cent and 2.3 per
cent respectively.
To view
the September Labour Price Index, click here.
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Mining
industry records highest average days lost for workers’ compensation claims
The
mining industry recorded the highest ‘average days lost’ due to workers’
compensation claims in 2005-06, but was at the lower end of the scale in terms
of actual incident rates.
According
to the WorkCover WA’s Workers’ compensation in WA statistical report 2003-04
to 2006-07, the mining industry in 2005-06 recorded the highest average
days lost per incident of workers’ compensation at 121.9.
The
report aims to assist individuals and organisations in their endeavours to
prevent workplace injury and disease and to minimise the social and economic
impact of claims through injury management practices.
It noted
that in 2006-07, there were 41,573 workers’ compensation claims lodged across
the board.
Lost-time
claims by industry in 2006-07 ranged from 20.2 per cent in manufacturing down
to 0.4 percent in finance and insurance, with mining at 4.8 per cent, retail
trade at 11.2 per cent, transport and storage at 5.8 per cent, health and
community services at 12.4 per cent and agriculture, forestry and fishing at
4.6 per cent.
In
2003-04, the mining industry accounted for 3.9 per cent of lost-time claims,
rising to 4.4 per cent in 2004-05, then 4.5 per cent in 2005-06 then 4.8 per
cent in 2006-07.
To view
the report, click here.
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Seasonally
adjusted unemployment remains steady at 4.3%
The
seasonally adjusted unemployment rate in October remained steady at 4.3 per
cent, according to the latest ABS Labour Force statistics.
For men,
the seasonally adjusted unemployment rate also remained steady at 4.0 per cent,
and for women rose by 0.1 percentage points to 4.8 per cent.
At the
same time, Australia’s participation rate increased by 0.1 percentage points to
65.3 per cent.
Meanwhile,
seasonally adjusted employment increased in October by 34,300 jobs to
10,768,300; full-time employment decreased by 9,200 jobs to 7,688,200; and
part-time employment grew by 43,500 jobs to 3,080,100.
Deputy
Prime Minister and Workplace Relations Minister Julia Gillard responding to the
figures said: ‘In the context of a dramatically slowing international economy,
the government welcomes these very solid figures. However, while we are better
placed than most other countries, Australia is not immune from the global
financial crisis.’
She said
she expected to see Australia’s unemployment rate rise to 5 per cent by June
2009 and to 5.75 per cent by June 2010.
To view
the October Labour Force statistics, click here.
To view
the Deputy Prime Minister’s press release, click here.
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DEEWR employment indicator
continues to fall
The DEEWR
Monthly Leading Indicator of Employment has continued to fall in November,
marking the tenth consecutive month it has been in decline.
Since
July 2008, the indicator has been confirming a prospective slowdown in the pace
of employment growth below its long-term trend of 2.4 per cent a year. A
downturn in cyclical employment was confirmed for the first time in October and
has now declined for seven straight months.
To view
the November indicator, click here.
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Reynolds re-elected leader of CFMEU WA branch
Kevin
Reynolds has been re-elected federal secretary of the CFMEU WA branch in
federal elections held in November, while the state elections for the branch
continue to be deferred pending court proceedings.
The
results of other federal positions at the CFMEU WA branch are yet to be
formally declared.
Also in
the federal elections, CFMEU construction and general division Victorian
secretary Bill Oliver was re-elected with around 84 per cent of the vote.
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ABCC
investigating North-West Shelf industrial action
The ABCC
is conducting an ongoing investigation into unprotected industrial action by
employees of CBI Construction Pty Ltd on the Woodside Energy Limited North West
Shelf LNG Phase V Expansion Project, following a Federal Court injunction
restraining the workers from further action.
CBI had
entered a contract with Woodside in September 2006 to perform work on the
project under the management of Foster Wheeler Worley Parsons. CBI entered two
identical union collective agreements lasting for three years from August 2006.
Around
209 CBI workers employed on the Stabiliser 6 or Vapour Return Line packages
failed to attend for work on numerous days in October in defiance of AIRC
orders. It was estimated the action cost the project around 12,720 hours of
lost work.
Federal
Court Justice John Gilmour on October 28 issued an injunction against further
industrial action by the workers who were predominantly members of the AMWU and
CFMEU.
The 209
were originally part of a larger workforce of 1,200 but had stayed on to finish
other work on the project as mechanical fitters, boilermakers, structural
riggers, scaffolders, crane operators and storepersons.
In
staying on, they were told they would enjoy uninterrupted and identical terms
and conditions of employment.
However,
the Federal Court heard that from October 1 they demanded their employment be
terminated, they be paid out redundancy and immediately rehired.
The
Federal Court heard CBI had repeatedly refused the demand because the work was
part of the original project, because it would breach tax laws to pay the
workers out then re-employ them, and the workers would be no worse off if they
waited until the end of the project to get their redundancy pay because
entitlements would continue to accrue.
‘The
effect on the applicant if there is further industrial action will be
significant’, Justice Gilmour said. ‘The estimated wasted costs alone exceed
$600,000 a week. There are further potential consequences of industrial action
such as damage to the applicant’s reputation and loss of production.’
The
impact on third parties, including Woodside, was also a relevant consideration.
‘In this
case it may well be difficult for the applicant to quantify its damage to
reputation and for Woodside to quantify any loss of production attributable to
the industrial action engaged in by the respondents’, the judge said.
It was
estimated once the S6 package was complete it would produce 23,000 barrels a
day of condensate with a value of $75 a barrel, translating to $1.725m of
product a day.
As well
as breaching s38 of the BCII Act, the industrial action also breached s494 of
the WR Act and s496 orders by Deputy President Brendan McCarthy, the judge
pointed out.
While the
workers were currently at work, the unions had given no guarantees it would
stay that way, he said.
‘This is
not a case of idle threats’, Justice Gilmour said. ‘The defendants have in the
past acted unlawfully in violation of the plaintiffs’ rights. This factor makes
the case different from those in which an injunction is sought because of
conduct which is only apprehended.’
He
restrained the workers from taking further action until the substantive CBI
application could be heard.
To view
the Federal Court orders, click here.
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No
uninvited entry for Joe McDonald for two years
The AIRC
has ordered the CFMEU West Australian branch not to apply for a federal right
of entry permit for assistant secretary Joe McDonald for two years, as well as
ordering no other branch official to enter a construction site ‘in concert’
with McDonald in that time.
Senior
Deputy President Brian Lacy in his November 18 decision upheld ABCC allegations
of breaches of entry laws by several CFMEU officials, most notably McDonald,
and suspended their permits accordingly.
Union
official Michael Buchan had his federal entry permit suspended for three
months, with the potential for another two months’ suspension if he re-offended
right of entry provisions under the Workplace Relations Act during that time.
Walter
Molina had his permit suspended for two months, while Doug Heath’s was also
suspended for two months after which he has to notify the ABCC in writing if he
reapplies.
Following
the orders, McDonald was told by the union he was not to claim to exercise
right of entry under the WR Act for the next two years because he had no
current permit. If and when McDonald reapplies after two years he has to give
written notice to the inspectorate of Fair Work Australia.
Shadow
Employment and Workplace Relations Minister Michael Keenan said the orders
reinforced the need for a ‘tough cop on the beat’ in the construction industry.
He said the Federal Government’s ‘move to kill off the ABCC is looking more and
more foolish by the day’.
To view
the AIRC orders, click here.
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Legal
costs to defend job can be tax deductable
The High
Court has ruled a public servant’s legal expenses in defending himself against
misconduct charges were tax deductible as they were part of his work role.
A
majority decision by Justices Bill Gummow, Ken Hayne and Dyson Heydon on
November 12 ruled in favour of allowing the deductions, despite the
Commissioner of Taxation having rejected them.
The
Customs Service officer was charged with breaching his duty in 1998 and again
in 1999 after which he produced his Customs identification to a clerk at the Downing Centre Local Court in New South Wales to get information about a search warrant that
had been executed on him. The warrant had authorised the Australian Federal
Police to search his work station.
He was
unsuccessful in getting a copy of the warrant but once his unauthorised
behaviour was discovered he was demoted.
He
subsequently claimed a deduction of $37,077 should have been allowed in his
2002 income tax assessment, being the balance for legal expenses incurred in
response to the charges against him.
The
initial Federal Court judge ruled the expenses were not deductible with regard
to one of the charges against him but were in regard to the second charge. The
Commissioner of Taxation appealed that finding to the High Court on the grounds
the legal expenses were incurred in ‘defending charges of conduct extraneous to
the performance of the respondent’s income-producing activities and therefore
cannot be said to have been incurred in the course of gaining or producing
assessable income’.
On
November 12, the High Court majority said a ‘narrow approach’ to the
deductibility of expenses was to be avoided, stressing the whole of business
operations had to be taken into account.
In this
case, the Customs official’s legal expenses followed charges about his
misconduct as an officer. ‘He was exposed to those charges and consequential
expenses, by reason of his office. The charges cannot be considered as remote
from his office, in the way that private conduct giving rise to criminal or
other sanctions may’, the majority said.
It had
still not been established whether the charges were well-founded, it noted.
‘Much
will depend upon what is entailed in the employment and the duties which it
imposes upon an employee. In the present case the requisite connection is
present.’
Implications
for members
This
ruling shows the High Court will take a broad view of tax deductions in
relation to employment-related expenses, and will weigh each case individually
in arriving at a decision. Importantly, a nexus needs to be established between
the expense and the employment.
To view
the decision, click here.
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AIRC
sheds light on ‘related bodies corporate’
The AIRC
has rejected a man’s unfair dismissal claim, saying he failed to show his
former employer MCH Cargo Australia employed more than 100 people through
related bodies corporate.
The man’s
employer said the only related bodies corporate were MCH Holding Australia
(which employed three people), MCH Cargo Australia (employing 19) and MNC
Cargonet Australia (employing four).
Counsel
for the worker said this was inconsistent with ASIC records showing MCH Holding
was also the sole shareholder of Jetair Services Pty Ltd, which had an unknown
number of employees.
ASIC
extracts also demonstrated MCH Holding had shares in Leisure Cargo Australia and M&C Cargo and that MCH Holding had not relinquished its shares in
Aviation Partners Australia until after the man’s dismissal, counsel for the
applicant claimed.
But the
employer said Jetair Services had no employees now or at the time of the
dismissal, Leisure Cargo was run by exactly the same employees as MCH Cargo,
and M&C Cargo had no employees at the date of
dismissal.
As to
other alleged related bodies corporate, counsel for the applicant said Dart
Global Logistics employed 13 people and Dart Express Customs Services employed
four.
The
company said these were not related bodies corporate and the man was at all
times employed by MCH Cargo. The only reason his wages were sometimes paid by
Dart Express was because MCH Cargo did not have sufficient cash flow at the
time and was establishing its banking facilities.
Commissioner
David Hoffman in his October 30 decision clarified: ‘For two entities to be
related bodies corporate, one entity must be either a holding company or a
subsidiary of another entity, or it must be a subsidiary of a holding company
of another entity.’
‘If the
Dart Group are related bodies corporate, all employees in its entities, not
only in Australian bodies corporate, would be relevant to the jurisdictional
issue’, he said. ‘However, commercial contractual relationships are not
evidence of related bodies corporate.’
While
finding none of the additionally named companies were related bodies corporate,
the issue of whether MCH Cargo ‘controlled’ any of them was relevant to the
headcount, the commissioner said. However, he was not able to make a finding
because no evidence was led on that point, he said.
‘In the
circumstances, the commission finds that legally enforceable control has not
been established, and therefore, the wider group of entities are not relevant
for the purpose of calculating the number of employees at the relevant time.’
Implications
for members
This
decision shows the issue of ‘legally enforceable control’ is relevant to
calculating the number of employees a company has across all related companies
for unfair dismissal purposes.
To view
the decision, click here.
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Construction
redundancy was for economic reasons
The AIRC
has rejected an unfair dismissal claim from a former AV Jennings Properties
sales and marketing co-ordinator, finding the company had established the
relevant nexus between an economic downturn and the woman’s dismissal.
The woman
had claimed her termination of employment in August was ‘not a genuine
redundancy’. The company had relied on the operational reasons exemption to
have her application dismissed on the books.
AV
Jennings gave evidence to the commission of a downturn in dwellings being
purchased as well as the number of contracts signed. It said actual sales
versus budgeted sales for the financial year ending June 2008 had dropped by 45
per cent.
Counsel
for the company said management considered a number of avenues to reduce costs,
including identifying a number of employees for redundancy. It said no new
administrative staff had been hired since July, although another sales employee
was now performing some of the woman’s marketing functions.
The woman
unsuccessfully argued it was not a genuine redundancy because her work was
being performed by someone else and after 10 years and nine months’ service she
was dismissed without consultation and not given time to say goodbye to her
colleagues.
Commissioner
Peter Lawson in his November 17 decision dismissed the woman’s application on
the grounds it ‘substantially failed to address the fundamental elements of the
jurisdictional objection’.
Based on
the evidence, the termination was ‘economic’ in nature and was therefore for
genuine operational reasons, he said.
Implications
for members
This
decision shows employees will be expected to directly address the jurisdictional
questions in contesting operational reasons dismissals rather than arguing
about the fairness of the dismissal. Where economic hardship can be proven by
the employer, an operational reasons exemption is likely to be upheld barring
any contradictory evidence from the employee.
To view
the decision, click here.
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Bovis
Lend Lease can take photos of construction workers
The
Federal Court has ruled Bovis Lend Lease can take photos of its construction
employees and keep them on a database, which is not contrary to a deed of
release it signed with the CFMEU and CEPU.
In the
latest instalment of the Blue Glue dispute between the two unions and Bovis
over the planned introduction of swipe cards at the company’s Victorian
construction sites, the unions claimed taking photos was prohibited by the
terms of the deed.
In her
November 11 decision, Justice Michelle Gordon noted that on September 23 the
unions and Bovis had signed the document. ‘The deed, arrived at after a long
and difficult negotiation process facilitated by the district registrar of this
court as mediator, was at the time thought to signal the end of a protracted
battle between the unions and Bovis over a new system for regulating the entry
and exit of workers at four Bovis construction sites in Victoria’, the judge
said.
Early in
2008 the company told unions it had decided to implement a new swipe card
access system known as the Blue Glue System. Each worker would have a swipe
card with a unique identification number plus a photo of themselves displayed.
The swipe cards would be linked to a database with information about the worker
that could be accessed by various personnel.
The plan
met with resistance from unions, with the company obtaining orders from the
AIRC for workers to refrain from taking industrial action. Faced with continued
resistance, the company launched Federal Court proceedings.
Interlocutory
orders were made on August 28 preserving the status quo of allowing workers
onto the site through unlocked gates with no ID.
Justice
Gordon said the deed reflected a ‘compromise’ position in that the card system
would be implemented but with ‘modifications’. The unions’ understanding was
photos would not be taken of workers under the compromise.
However,
when workers arrived the next day they were asked to submit to photos, with the
company saying they would be held on the database for identification purposes
and not displayed on the cards. Workers were told they could not enter unless
they submitted to the photos.
Unions in
response filed their own Federal Court proceedings arguing that subjecting
workers to photos was a breach of the deed and constituted unlawful industrial
action under s38 of the Building and Construction Industry Improvement Act in
the form of an ‘unlawful lockout’.
Justice
Gordon in her November 11 decision found the deed did permit Bovis to impose a
requirement that workers submit to photos at induction, with the photos to be
kept in a database along with other induction information.
There was
no express statement in the deed precluding the taking of photos, she said.
Added to that, the storing of photos on a database was a well-known part of the
system at other sites with which unions were familiar.
Her
finding was bolstered by the fact restrictions on the system pushed for by
unions mainly sought to restrict ‘access’ to the data on workers rather than
the ‘collection’ of it, she said.
It stood
to reason the company needed a photo of ‘Fred Smith’ on its database in case a
worker trying to gain entry was purporting to be ‘Fred Smith’ but was not
recognised by anyone.
To view
the decision, click here.
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Dismissal upheld for working at another job while on leave
The AIRC
has upheld PIHA Pty Ltd Mineral Resources’ decision to terminate the employment
of a worker who lied about needing two months’ leave for family reasons then
went to work for another company.
Commissioner
Bruce Williams in his November 19 decision noted the worker provided no
response to the company’s application to dismiss his claim as frivolous and
vexatious.
The man
told the commission he obtained PIHA management approval to take two months’
unpaid leave, but a few weeks into it he got a phone call saying he was
dismissed for not showing up to work.
The
company told the commission the man’s manager had told him things were too busy
to operate without him for that length of time as he was the only employee who
could perform some duties.
The man
had also lied and told his manager he needed leave for family reasons including
to attend Family Court proceedings over an inheritance in Melbourne where he
had to appear as a witness for his father. He later admitted he lied and took
the two months off to work for another company in the north of Western Australia.
The
company dismissed the man, saying his lying and the fact he was working for
another company amounted to serious misconduct.
Commissioner
Williams said he was satisfied he had enough information from both parties to
make a decision.
‘Having
considered the information provided by the parties the futility of this
application is plain’, he said.
To allow
the unfair dismissal claim to proceed would involve ‘useless expense’ to both
parties because it had no prospects of success, he said.
Implications
for members
This
decision shows that dismissal on the grounds of wilful misconduct is likely to
be upheld where trust in the employment relationship has broken down.
To view
the decision, click here.
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No
extension of time for undiligent worker
The AIRC
has rejected a man’s unfair dismissal claim filed four weeks late, saying the
fact he contacted the Workplace Ombudsman at some stage in the seven weeks
since he was dismissed was not an adequate reason for the delay.
The
former Customcall Pty Ltd worker claimed his termination of employment in July
was harsh for reasons including his employer failed to give him notice. He was
seeking an extension of time.
AIRC Vice
President Graeme Watson in his November 10 decision said the man claimed that
within the three-week deadline he was ‘actively pursuing the matter’ with his
former employer even though he had not filed a claim with the AIRC.
It was
only after talking to his employer failed that he then contacted the Ombudsman
for assistance, he said, seeking to explain the delay. He said it then took
some weeks for the Ombudsman to let him know it could not help him and he
needed to lodge an unfair dismissal claim with the commission.
Customcall
said the man had only contacted the company about his entitlements, not to
contest his dismissal.
The
company denied wasting his time for three weeks so the filing period would
lapse and successfully argued the worker had not shown sufficient diligence in
informing himself of the process for pursuing his claim.
Vice
President Watson agreed, saying the man had failed to given a sufficient
explanation for the entire seven-week delay.
The man
was dismissed for ‘serious misconduct’ after a recording of a call to a client
revealed significant swearing, the Vice President noted. The worker claimed the
client was on hold at the time.
Implications
for members
This
decision shows the AIRC will not look favourably on extending time in cases
where workers can’t show they have made diligent efforts, aside from filing an
application in the commission, to contest their dismissal before the three-week
expiry date.
To view
the decision, click here.
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Long
service leave test case heads to SA Supreme Court
The
Supreme Court of South Australia has granted permission for a workplace
inspector to appeal a decision of the Full Court of the Industrial Relations
Court of South Australia, agreeing the appeal raised important issues about
‘related employers’ under state long service leave laws.
A Full
Court of the South Australian Industrial Relations Court in December 2007
upheld an appeal by labour hire company Labourforce Solutions against a single
member finding it owed a maintenance worker long service leave.
The Full Court overturned the original decision, saying the labour hire company was not
‘related’ to the former labour hire company that employed the man on behalf of
whom the inspector brought the case.
The man
had joined labour hire firm Rexco in October 1999 then began working for
Labourforce in June 2002 until 2006.
The
single member of the South Australian Industrial Relations Court had upheld the
man’s long service leave claim, backed by a compliance notice issued by the
authorised inspector under the state Fair Work Act.
The Full Court later found there was no commercial relationship between the two labour hire
firms, and Labourforce did not take over the entire maintenance section of
Rexco’s business.
The
workplace inspector applied to appeal the ruling and now has permission for the
appeal to be heard under s191 of the Fair Work Act.
The
Supreme Court of South Australia on October 17 accepted the argument that
labour hire arrangements were increasingly commonplace and the appeal raised
serious issues that would affect other labour hire employees, including at
least one other Labourforce employee.
Implications
for members
This
decision could have implications for long service leave liabilities arising
from labour hire arrangements under state laws.
To view the
South Australian Industrial Court Full Court appeal decision, click here.
To view
the latest Supreme Court decision, click here.
Back to Top
Visy
Paper fines $140,000 for wall collapse
Visy Paper
Pty Ltd has been fined $140,000 by the New South Wales Industrial Relations Commission
under the state OHS Act for allowing recycled products to be stacked against a
wall it had previously been warned was unsafe.
President
Justice Roger Boland on November 11 handed down his judgment against Visy
relating to its operation of a materials recovery facility at Taren Point in Sydney.
In
January 2006, recyclable material at the site was stacked seven metres high
along a wall. Part of the wall collapsed and fell outwards into an adjacent
parking lot. A woman and her son were in the parking lot at the time and
narrowly missed having the wall collapse on them, although eight parked cars
were damaged and the woman grazed her arm.
Visy was
prosecuted as the owner of the premises, to which it pleaded guilty.
A
WorkCover engineer told the commission the collapse was brought about by the
poor construction of the wall and the weight of material stacked against it.
Prior to the incident, Visy did not obtain a report from a qualified person as
to the ability of the wall to sustain the weight of material, the engineer
said.
There had
also been prior incidents relating to the walls of the facility and an
inspector had issued an improvement notice to either reduce the build-up of
material or provide a report from a qualified person.
Justice
Boland noted that prior to the incident, Visy had in place nationally and at
the Taren Point site a ‘detailed, integrated OHS system’. ‘It is evident that
the defendant is very conscious of its responsibilities in relation to
workplace safety and takes those responsibilities seriously.’
In 2004
and 2005 when the problem of the wall came to its attention, Visy took steps to
remedy the problem but the problem was that this was not maintained.
‘Given
the commendable overhaul of the defendant’s policies and practices relating to
OHS and its obvious commitment to workplace safety I consider the risk of
re-offending is not great’, Justice Boland said. However, it did operate
multiple sites and had failed to maintain a safe system of work.
‘I
consider there is a need to remind the defendant of the need to maintain
constant vigilance and, therefore, I have given some weight to the need for
specific deterrence in the penalty’, he said.
To view
the decision, click here.
To view
the Work Cover release on 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.
All courses for 2008
have now been held. Courses coming up in 2009 are:
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February 09
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16-17
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Perth, WA
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April 09
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20-24
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Perth, WA
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June 09
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22-25
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Perth, WA
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August 09
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17-18
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Perth, WA
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October 09
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19-23
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Perth, WA
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December 09
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14-17
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Perth, WA
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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 registration
form.
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Top
Upcoming
AMMA member forums
AMMA
conducts member forums on a quarterly basis at convenient locations for
members. AMMA also conducts online forums, making it easy for members in
remote locations to attend.
Member
forums are designed to keep AMMA members informed about important issues that
impact on the resources and allied services sector. External speakers present
on a range of relevant topics. AMMA member forums also act as an excellent
networking opportunity facilitating the exchange of information
Although
all of our quarterly member forums have now been held, AMMA will be holding
special breakfast briefings in early December about the recently tabled Fair
Work Bill. Members have already received electronic circulars about these
briefings. For further information or to register for these briefings, download
an invitation
and
registration form from our website or contact the AMMA Membership,
Communications and Media team 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 Supported Events
page
of the AMMA website.
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The
AMMA Bulletin is published monthly and is available free to AMMA members.
Copyright. Reproduction prohibited.
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