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AMMA Bulletin – October 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
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Supported Events
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Forward with Fairness – a Christmas gift
for unions?
The
new Fair Work Act will commence (subject to the parliamentary process) on 1
July 2009.
AMMA
has been involved in the confidential process of reviewing the draft
legislation held over a two week period in Canberra and a further meeting this
week in Melbourne.
As
we move closer to the introduction of the bill more information on the content
is being publically revealed.
In
its submission to the Award Modernisation process, the Federal Government
reveals that modern awards would cover workplaces on a common rule basis if the
work performed fell within the industry or occupation. Whilst such a change
might seem innocuous, this combined with the current right of entry
requirements will result in expanded rights of entry for unions, as the modern
award will always cover the employer even if an agreement is made that
displaces the award.
In
addition, the Australian Financial Review has reported that a union that
suspects that an employer has breached a term of the Act or an industrial
instrument can inspect the details of non-member records. At present the union
is required to seek approval for such a request from the Australian Industrial Relations
Commission. Privacy laws do not protect employees’ confidential information
and such a provision could permit union access to non-member information if it
were alleged (for example) that union members were being paid less or more
than their non-union counterparts. This information would no doubt be eagerly
sought by unions seeking to re-unionise workplaces
The
media has also speculated that all existing agreements will ‘drop dead’ 12
months after their nominal expiry date or two years after the commencement of
the new Act (1 July 2009). Some members have been operating under all staff
employee collective agreements since the 1990s, these arrangements will be
‘nuked’ under this process.
Such
a position appears to conflict with the Deputy Prime Minister’s election policy
guarantee that an ALP government would only allow AWAs (and other agreements)
to be terminated according to the current (WorkChoices) rules.
The
effect of the drop dead provision will be to force all employers with
agreements into a new bargaining round where the union will be the default
bargaining representative for members, accompanied by rights for representation
ballots and having the spectre of good faith bargaining orders being imposed by
Fair Work Australia, and if an agreement cannot be reached the potential for
Fair Work Australia to determine how your business will be operated.
These
revelations put the lie to union cries that Julia Gillard is introducing
WorkChoices lite. Despite the fact that less than one in six employees is a
member of a union, the ALP government appears set to hand the keys to your
workplace to the union movement. AMMA is lobbying behind the scenes to vary
the more objectionable provisions.
In
December 2008 AMMA will hold invitation-only member briefings on the content
and impact of the new Fair Work Bill on your business. To make sure you get
your invitation contact
your AMMA consultant now.
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Dealing
with absenteeism: the options
Written
by Alice
Trethewey, Policy and Employee Relations
Assistant in AMMA’s Adelaide office.
Given
absenteeism represents a major cost for businesses, it is desirable for
employers to have strategies in place to minimise the effect of such absences.
The causes of absenteeism are discussed in another article in this month’s AMMA
Bulletin: The greater the leave entitlement, the more leave is taken.
Consequently, this feature article will consider the possible strategies
available to reduce the occurrence of absenteeism and thus its detrimental
effects.
Strategies
to reduce absenteeism
Numerous
strategies are available to employers to counter non-attendance, the
suitability of which must be assessed by businesses after determining the major
causes of absenteeism in their workplace. Examples include:
- providing
flexible work practices which meet the needs of your staff (and business)
to allow personal activities to be undertaken without forcing staff to
take sick leave. This would encourage employees to be honest about having
time off and reduce the number of ‘sickies’ occurring. Examples of such
practices include flexible hours, part-time work, working from home (where
practical), job sharing, part-year employment and personal’s carer’s
leave.
- working
with staff to develop strategies to address unexpected absences, such as
individual counselling and performance management. This is often
considered a suitable approach where investigation shows the problem is
confined to individuals rather than being a widespread issue.
- provision
of on-site amenities such as health and fitness facilities, regular
eye-testing, and medical or ergonomic services in an attempt to pre-empt
issues such as lateness, leaving early and long lunch breaks;
- changes
to job design or employee transfers where job tasks are causing boredom or
stress;
- attendance
incentive schemes designed to improve presence at work. Care should be
taken as such policies don’t always treat the causes of absenteeism, and
thus rewards must be a balanced against competing considerations. Such policies
are not always recommended and can have side effects such as encouraging
‘presenteeism’ or attendance at work when employees are genuinely ill,
risking health, safety and productivity levels;
- return-to-work
interviews allowing the employer to demonstrate their concerns for the
employee’s welfare and implement any practical measures to assist
employees where appropriate; and
- the
development and promotion of an attendance control policy which may be
appropriate where causes of absenteeism have been identified. Such a
policy would need to set out minimum attendance requirements, procedures
for notifying and recording absences and consequences for failure to
comply with the requirements (which may include termination or assumed
abandonment of employment in certain situations). Any policy must include
clear definitions of terms such as ‘unscheduled absence’ and requirements
perceived by employees as reasonable. In this context it would be
desirable to include employees in the policy’s development.
Whatever
you decide, it is vital to make sure absenteeism policy and procedures are
communicated well to the employee group and well designed in terms of equality
and fairness. Accordingly, employers must also apply such strategies
consistently to raise the profile of absenteeism (and its detrimental effects).
Inconsistent application of policy may also be to an employer’s detriment in
the case of any legal action.
Whatever
strategy you have in place, it must be relevant to your operations and
constantly developed and improved. If you would like further information or
assistance in developing absenteeism strategies, contact your local AMMA office.
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AMMA
HSE Advisory Group established
AMMA
has developed a Health, Safety and Environment Advisory Group (HSEAG) comprised
of senior OHS professionals drawn from AMMA’s broad membership base across Australia. HSEAG will assist AMMA to identify and assess current and potential OHS issues
and assist with the development of AMMA’s OHS policy and submissions. Members
of the group represent a number of sectors within the sector (coal,
metalliferous mining, hydrocarbons, catering, and mining contractors) and are
from the following companies located Australia-wide:
§ Newcrest Mining;
§ Rio Tinto Coal Australia;
§ BMA Coal;
§ Unimin Australia;
§ Compass Group;
§ Atwood Oceanics;
§ Alinta East;
§ Transfield Services;
and
§
Pybar
Mining
Services.
At its
inaugural meeting on November 14, HSEAG will take the opportunity to advance
resources sector concerns regarding model OHS laws with members of the National
Review into Model Occupational Health and Safety Laws panel, who have been
invited to attend.
The review panel was established by Minister for Employment and
Workplace Relations, the Hon Julia Gillard MP, in April and comprises Robin
Stewart-Crompton as chair, Barry Sherriff and Stephanie Mayman.
The panel has been asked to report to the Workplace Relations
Ministers’ Council on the optimal structure and content of a model OHS act that
is capable of being adopted in all jurisdictions.
The full scope of the review is set out in the Terms
of Reference.
To
date, the review has received 242 submissions, including from employers,
industry bodies, unions, governments and government agencies, professional
bodies, academics, and individuals.
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Education
and Training Advisory Committee inaugural meeting
The AMMA Education and Training Advisory
Committee met for the first time on 17 October 2008 in Melbourne.
The committee has been established to:
§
identify
and analyse strategic education and training risks and opportunities;
§
develop
and recommend education and training policy and strategy to the board and chief
executive;
§
engage
government on high level strategic education and training issues;
§
provide
regular reports to the Board and Chief Executive on education and training
matters;
§
advise
on emerging and current education and training trends and best practice; and
§
undertake
any other tasks referred to it by the Board.
At the meeting the committee agreed to:
§
its
future modus operandi, terms of reference and objectives;
§
establish
two working groups: the Events Working Group chaired by Kaili Ford from Pybar
to examine and lead events and the AMMA M.I.N.E ™ Programme Working Group to
review and lead its development and introduction;
§
support
AMMA’s policy position on the government’s Productivity Placements Programme;
and
§
Endorse
AMMA’s submission to Skills Australia’s review of the Future Governance of the
National Vocational Education and Training System.
The committee includes senior
representatives from the membership including Rio Tinto, BHP Billiton, Oz Minerals, Alcoa, Barrick, Newcrest, Fortescue, Downer EDI, Thiess, BMA, Macmahon, Boart Longyear, Origin Energy, HWE, P&O Maritime, Xstrata Copper, Santos, Jemena, Newmont and Iluka.
The next meeting of the committee is
scheduled for February 2009 and an invitation will be extended to the Minister
for Education and Minister for Employment and Workplace Relations Hon Julia
Gillard to meet with the Committee.
Members seeking to join the committee should
contact Robert
Wilson, National Project Manager Education and Training, on (07) 3210 0313
or email robert.wilson@amma.org.au.
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One
lucky survey respondent wins free ticket to AMMA’s 2009 National Conference
Thanks go to all members who
took the time to complete our recent member forum survey. Your responses will
assist us immensely in improving the quality of our forums going forward and
you’ll be pleased to hear we are already implementing a number of the
suggestions put forward by members.
As an incentive to complete the survey, we offered members the opportunity to
win a free ticket to the 2009 AMMA National Conference. We are pleased to
announce that the winner of the 2009 AMMA member forum survey competition is Tamzin
Verning from
Panoramic Resources, who will receive a free registration to the
2009 AMMA National Conference.
2009 AMMA National
Conference: 20-21 April
AMMA’s 2009 National Conference will be held over two days on 20 and 21 April
in Adelaide, South Australia. The theme this year is Success in a Changing
Climate – achieving excellence through people.
So, please block these dates out now in your 2009 Calendar and make sure you
keep an eye out as the first brochure will be arriving soon!
The AMMA 2009 National Conference will see people management leaders and
communicators from the resources and allied industries sector come together to
learn about and discuss solutions for many challenges facing the sector in the
coming year.
Attendees at the conference are the decision makers within the resources and
allied industries sector and comprise of CEOs, general managers, human resources/workplace
relations practitioners, employee communications specialists, training and development
managers as well as media and public affairs directors.
Enquiries about the conference can be emailed to the Membership, Communications
and Media team at membership@amma.org.au,
who can also be phoned on 07 3210 0313.
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Business
expects Labor to deliver, says ACCI
ACCI has
outlined 10 points against which Australian employers will judge Labor’s
substantive industrial relations legislation.
In a
speech to the SA Industrial Relations Society on October 24, ACCI chief
executive Peter Anderson set out five criteria against which the new system
would be judged at the exposure stage and during implementation.
The
criteria were that the system: generate productivity and employment; provide
stability and certainty in IR; be effective under diverse economic and business
conditions; work in diverse employment and union contexts; and respect employer
group and union representation.
Anderson
also outlined 10 areas on which the Federal Government had given assurances to
employers in the past year, including that: the system would drive new
productivity bargaining; laws would take a tough stand against unlawful
strikes; there would be an obligation to bargain but no obligation to reach
agreement; only majority votes of employees would trigger collective
bargaining; there would be no general arbitration; the safety net would be
limited to 20 matters; abolishing AWAs would not prevent ‘beneficial’
flexibility agreements between employers and employees; existing right of entry
laws would be retained; bargaining would be enterprise-based, not
industry-wide; and small business would not have to pay ‘go away’ money in
unfair dismissal cases.
‘In the
same way the union movement expects the government to deliver on the industrial
relations promises it secured, so does business’, Anderson said.
The
substantive IR legislation will be tabled in parliament before December 4.
To view
the two ACCI media release, click here.
To view
the 10 point appendix, click here.
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Commonwealth
makes submission on award modernisation
The
Commonwealth Government has made a submission to the AIRC on award
modernisation, flagging some changes it will make in its substantive IR
legislation later this year.
The
Federal Government has decided to include in its draft legislation statutory
prohibitions on employers putting pressure on employees to cash out their
annual leave. Initially, modern awards were to contain the prohibition, given
cashing out of annual leave is available under the National Employment
Standards (NES).
Now that
this will be done legislatively, modern awards don’t need to include the
protection.
The government
submission also confirmed the substantive bill would contain a number of
dispute resolution provisions.
Fair Work
Australia will have the power to attempt to settle disputes through mediation
or conciliation; order compulsory conferences; make recommendations or express
an opinion; or inform itself by requiring parties to provide information. It
will only be able to arbitrate with the consent of all parties.
Arbitration
other than by consent will be left to the Fair Work divisions of the Federal Magistrates
Court and the Federal Court, the government said. The two courts will have
jurisdiction over compliance with the NES and modern awards. They will be able
to make any orders they deem appropriate, including ordering injunctions, and
will be able to award compensation for breaches of the NES, awards and
agreements.
Unions
will be able to initiate enforcement action where they are entitled to
represent employees at a workplace.
The
government submission also confirmed the substantive legislation would do away
with the old ‘parties bound’ concept of awards and replace it with new concepts
of ‘coverage’ and ‘application’.
For
example, right of entry for discussion purposes would be linked to ‘coverage’
of an employer and employee by a relevant modern award. Entry to investigate a
breach of an award would be allowed where the award ‘applied’ to the union, the
submission said.
To view
the government’s full submission to the AIRC, click here.
To view
the latest version of the NES, which the government has indicated will change,
click here.
AMMA
makes final submissions on mining award
Arnold
Bloch Leibler partner Henry Skene made AMMA’s final submissions on the draft
mining award before a Full Bench in Sydney on October 21. During submissions,
Skene stressed the importance of, among other things, including transitional
provisions in modern awards to eliminate disadvantage to employees as well as
costs to employers.
To
download the full transcript of October 21 AIRC consultations, click here.
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Safe
Work Bill amendments could jeopardise national OHS system
The House
of Representatives has sent the Safe
Work Australia Bill back to the Senate, rejecting amendments passed in the
Upper House on the grounds they will jeopardise the intergovernmental agreement
on a harmonised national OHS system.
The Bill
was introduced to federal parliament in September, marking the first
legislative step of the Rudd Government towards creating a single, national OHS
and workers’ compensation system.
It seeks
to establish Safe Work Australia as an independent national body whose role
would be to improve OHS outcomes and workers’ compensation arrangements. The
new body would replace the Australian Safety and Compensation Council (ASCC).
Responding
to the Bill in September, Deputy Opposition Leader Julie Bishop said the
Coalition was ‘broadly supportive’ of harmonised, national OHS laws but the new
national body would be ‘dominated by state representatives’ and more
importantly the bill reduced the number of social partners drawn from two
groups (industry and union representatives) from six down to four.
Both bills were
introduced to parliament on September 4, passed the Lower House on September 22
and were introduced to the Senate on September 23. Senate debate resumed on
October 13 and 14, at which time the Opposition, the Greens and Independents
moved amendments.
The amendments
The Opposition and
the Greens unsuccessfully moved amendments to prohibit the Workplace Relations
Minister being able to give directions to the CEO of Safe Work Australia. They
also sought to remove the ability of the minister to terminate the employment
of the CEO for ‘misbehaviour or incapacity’.
Independent Senator
Nick Xenophon on October 13 moved an amendment restoring the number of
representatives from the ACTU and ACCI from two each to three each, as it had
been on the ASCC. This amendment was adopted.
Meanwhile, DEEWR
Acting Deputy Secretary Workplace Relations, John Kovacic, told Senate
Estimates on October 23 that all areas of contention had been discussed at
Workplace Relations Ministers Council (WRMC) meetings throughout the year.
Issues around membership and voting were ‘particularly sensitive’ for state
ministers, which is why the number of stakeholder partners had been reduced
from six to four, he said. Any change would put at risk the establishment of
Safe Work Australia and the buy-in of the states, he said.
Questions at Safe
Work Australia meetings will be decided by a two-thirds majority of all members
except the CEO. Safe Work Australia will have a chair, one member representing
the Commonwealth, eight members representing each of the state and territories,
two (or three) members representing the interests of workers, two (or three)
members representing the interests of employers and a CEO.
The reduction of the
number of social partners from six to four was a decision of the WRMC, to whom
Safe Work Australia would be answerable, Kovacic said.
Tasmanian Liberal
Senator Eric Abetz, part of the Senate Estimates Committee, said it seemed a
‘pretty ham-fisted approach’ for the government to knock back all amendments.
Queensland ALP
Senator Joe Ludwig on behalf of the WR Minister told the Senate Estimates
committee the government continued to maintain its rejection of all amendments,
saying ‘we do think the intergovernmental agreement is important to make sure
we’ve got state and territories on board’. The government does not want to lose
the point it is trying to achieve – the ‘harmonisation of health and safety
laws’, he said.
AMMA has previously
raised concerns about the number of industry and union representatives, as
well as rules for voting and the selection of representative organisations. It
also has concerns about the level of funding.
The Senate will have
another look at the bill when parliament resumes on November 10.
To view
the Safe Work Australia Bill, click here.
To view
the Safe Work Australia (Consequential and Transitional Provisions) Bill, click
here.
To view
the Senate Hansard for October 13, click here.
To view
the Senate Hansard for October 14, click here.
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What
do you want from the specialist building division?
There
will be a specialist building division of the Fair Work Australia inspectorate
- that is a ‘given’ - but as far as what the new body will look like,
everything is up for debate, the Hon Murray Wilcox QC said in his discussion
paper The Proposed Building and Construction Division of Fair Work Australia.
While
those on ‘both sides of the employment divide’ had tended to assume the new
division would be the ABCC ‘rebadged’, this was not necessarily the case, with
many outcomes possible under the terms of reference of the current review,
Wilcox said.
The
specialist division will be limited to investigation and enforcement, but the
question of the specific laws it would enforce had yet to be decided, he said.
As to the
role of the division, Wilcox sought comment on whether it should ‘follow the
lead of the ABCC and confine itself to alleged transgressions by unions and
employees, concerning itself with employers only to the extent that they are
alleged to be involved in those transgressions’, or whether it should
investigate other alleged breaches by employers such as non-payment of employee
entitlements, and whether it should carry out educational activities and/or OHS
inspections and prosecutions.
On the
scope of the division’s investigation and compliance activities, Wilcox said
they could stay exactly as is or be changed completely, depending on
submissions.
‘In
discussions with me, all union leaders strongly opposed the idea of conferring
on the new specialist division power to summons a witness for compulsory
interrogation’, he said. ‘With a few exceptions, employer representatives
expressed the opposite view, usually equally strongly. The state government
officers expressed mixed views.’
Some saw
it as a human rights issue, arguing the ABCC’s current compliance powers under
s52 of the Building and Construction Industry Improvement Act were
discriminatory in that similar powers were not available against other workers,
he said.
To that
end, he has asked for submissions on the causal connection between the
existence of the ABCC’s compliance powers and increased productivity. ‘If the
compulsory interrogation power is to be retained, a question arises as to the
safeguards that ought to be built into the legislation to reduce the
possibility of inappropriate exercise of those powers’, Wilcox said.
Submissions
to the review are sought by December 5, with new arguments in response to
submissions able to be made until January 23, 2009. Wilcox will make his final
report to government by the end of March 2009.
To view
the discussion paper, click here.
To view
general information about the Wilcox review, click here.
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Worker
migration Bill goes to Senate inquiry
The
Migration Legislation Amendment (Worker Protection) Bill has gone to a Senate
inquiry, which is due to report on November 7.
As we
reported last month, the Bill includes amendments to Australia’s migration
program, including but not limited to the 457 visa program.
It seeks
to provide a new structure to define sponsorship obligations for employers;
change information sharing processes across government; expand powers to
monitor and investigate possible non-compliance by sponsors; and introduce new
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 for a period.
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.
Employer
sponsors of temporary migrant workers face penalties of up to $33,000 per
breach under the Bill, which gives inspectors enhanced monitoring and
investigative powers.
The Bill
was introduced to the Senate in September, with submissions to the Senate
inquiry closing on October 27.
To view
the Migration Legislation Amendment (Worker Protection) Bill, click here.
To view
the Senate inquiry home page, click here.
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The
government’s latest job seeker initiatives
State and
territory employment services ministers will meet for the first time in ten
years for a roundtable discussion on matters of importance for job seekers.
Minister for Employment Participation, Brendan O’Connor, announced on October
23 that ministers will discuss how state and territory governments can work
together to ensure workers who are displaced by the global economic crisis are
helped as quickly and effectively as possible. The meeting will also discuss
the Rudd Government’s $3.9 billion new Employment Services, which will
begin on July 1, 2009. To view the minister’s media release, click here.
The
Minister for Employment Participation, Brendan O’Connor, has announced a new
project to help students from remote communities in the Torres Strait and Cape
York successfully move from school into employment. During a visit to Cairns, O’Connor announced the Australian Government would fund the new School-to-Work
Transition project to the tune of $294,640. Funding will be provided under the
Structured Training and Employment Projects (STEP).
To view the minister’s media release, click here.
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Stakeholder
feedback on Skilling Australia released
The
Federal Government has released a Feedback report on the discussion paper
for Skilling Australia for the Future, detailing stakeholder views on the
Productivity Places Program (PPP) to date.
Around
104 responses were received to the discussion paper from a range of
stakeholders.
‘An
overwhelming majority of the total submissions emphasised the importance of
linking training to employment outcomes’, the report said. ‘It was suggested
employment should drive training and training should lead towards employment
and that the program should be driven by this objective.’
Stakeholders
also said national data feeding into the program had to reflect what was
happening in regional markets and be supplemented by ‘local’ or ‘micro’ level
information.
‘A number
of submissions suggested that it is also necessary to understand the
preferences of workers and job seekers to ensure that the program is accurately
targeted. Without this information the program may fail to get the necessary
take-up’, it said.
According
to the report, the initial phase of consultation has highlighted the need for
ongoing communication with all those involved in the training system. ‘This
continuing consultation is essential to ensure that the PPP continues to
respond flexibly and dynamically to priority needs to ensure Australia has
highly skilled, productive workers to compete in global markets’, it said.
To view
the feedback report, click here.
For more
information about the PPP, click here.
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56,000
extra job seeker places created under PPP
The
Federal Government has announced an extra 56,000 job seeker training places at
Certificate II, Certificate III and Certificate IV levels, allocating 26,000,
20,000 and 10,000 places respectively as part of its Productivity Places
Program (PPP).
The
October 14 announcement followed a September 10 announcement by the government
of an extra 15,000 job seeker places under the program.
In
announcing a further 56,000 places, Prime Minister Kevin Rudd, Deputy Prime
Minister and Workplace Relations Minister Julia Gillard and Treasurer Wayne
Swan said: ‘There has been a huge demand for training since the PPP began in
April, with more than 53,000 job seekers enrolled and over 11,000 having
already completed their training in areas of skill shortage.’
The new
places take the government’s total commitment to the PPP to more than $2
billion, with more than 700,000 new training places to be created in the five
years from April 2008.
A demand
management strategy will be developed to ensure the new places are enough to
maintain a sustained allocation through to the end of the 2008-09 financial
year.
AMMA
Education and Training has been approved to deliver training programs under the
PPP contract.
For more
information about the PPP, click here.
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SA
WorkCover launches review of regulations
WorkCover
SA has announced a comprehensive review of all regulations underpinning the
Workers Rehabilitation and Compensation Act.
Marking
the first external consultation phase, WorkCover SA has launched a discussion
paper seeking public submissions. The first phase of consultation runs from
October 1 to February 13 next year, by which date submissions are due.
Submissions
will contribute to the development of draft replacement regulations, after
which further consultation will ensue between July and October 2009.
As of
October 1 this year it was estimated there were seven separate regulations
effective under the Act. The discussion paper seeks feedback on any problems or
issues associated with any of the regulations and poses specific questions.
‘The
Regulation Review provides an opportunity for individuals, community and
industry groups to take a comprehensive look at our workers compensation
regulations and provide comment in light of industry best practice, and to
ensure consistency of regulation, policy and practice in South Australia’s
workers compensation scheme’, WorkCover said.
To
download the discussion paper and more information about the review, click here.
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AWU
Qld applies for federal registration, again
The AWU Queensland
branch (AWUEQ) has reapplied for federal registration under the Workplace
Relations Act, having been the first state-based union to file for transitional
federal registration as soon as Work Choices began.
When the
union applied for permanent federal registration in the AIRC in February this
year, it was told it had to go back to the Queensland Industrial Relations
Commission to amend its eligibility rules. The amendment
application was granted on July 21.
The union
then renewed its application to the AIRC.
Queensland branch
secretary Bill Ludwig wrote to the union’s executive on September 5 telling
them the union had initially applied for registration on February 28 this year.
‘Subsequently,
the AWUEQ withdrew the application to allow certain amendments to be made to
the rules of the AWUEQ’, the memo said. ‘Those amendments have now been
approved by the Queensland Industrial Registrar and in the case of the change
to the AWUEQ eligibility rule, the QIRC.’
‘As such
it is proposed that the AWUEQ now reapply for registration as an organisation
under the WR Act. Would you please indicate your support or otherwise.’
All 12
members of the executive supported the application.
The
application was gazetted on October 1, with objections to the application
closing on November 5, after which the commission will make a decision.
To view
the gazetted AIRC application, click here.
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CFMEU WA
election stayed
Elections
for the CFMEU in Western Australia continue to be plagued by controversy, with
the West Australian Industrial Relations Commission conducting an inquiry into
who is eligible to vote in state elections.
Rival
candidates accused state secretary Kevin Reynolds of inappropriately removing
some members from the voting roll purely on grounds of how they paid their
union dues, including by direct debit.
Two
separate elections are on foot in Western Australia. Nominations for the West Australian
branch divisional secretary role (currently held by Reynolds) closed on
September 19 and a ballot is due to be held between November 2 and 16. These
elections are part of federal union elections and are going ahead as planned.
Nominations
for the state secretary role (also held by Reynolds) closed on September 4,
with ballot papers due to be completed by October 30. However, due to
allegations of irregularities with voting rolls, the West Australian Industrial
Relations Commission has stayed the elections pending the outcome of five days
of hearings commencing on October 27.
West Australian
Industrial Relations Commission Acting President Mark Ritter on October 3 gave
orders to that effect.
To view
the orders, click here.
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The
greater the leave entitlement, the more leave is taken
The more
leave an employee is entitled to take, generally speaking, the more they will
take, a 2008 Absence Management Survey by absence management service
provider Direct Health Solutions has found.
Employers
offering 16 to 19 days a year in personal/sick leave recorded absence rates of
11.9 days per employee per year, while those offering 10 days or less were
recording 8.10 days lost - a 46 per cent lower level, the survey found.
‘The
relationship reinforces to those organisations offering 10 days or more to
utilise effective reporting systems and proactive employee and management
support frameworks to ensure absence levels do not become unhealthy’, it said.
Interestingly,
employees who lost their unused sick leave at the end of the year rather than
accruing it took less sick leave, the survey found. ‘This finding is in
contrast to arguments that rolling over sick leave into the next year can help
reduce overall absence levels.’
The
survey collected data between March and August 2008 from 183 respondents across
13 industry groups representing 1.2 million employees.
Its aim
was to identify benchmark policies, practices and strategies adopted by
organisations and to ‘unveil’ factors that were reducing absenteeism. The
online survey asked 51 questions relating to absence management including about
rates of absence; reasons for change in absence levels; the cost of employee
absence; workplace stress; managing absence; recruitment; and employee
wellbeing.
From the
183 respondents, the survey found:
§
public
sector absenteeism was 35 per cent higher than that in the private sector;
§
the
average rate of absenteeism was 8.62 days a year, compared to 10.8 days in the
public sector and four days in IT;
§
82
per cent of respondents reported absenteeism was on the increase or staying the
same, with just 19 per cent believing it had reduced;
§
the
average cost of absences was $354 per employee per day;
§
only
38 per cent of respondents actually monitored the cost of absences, and just 28
per cent monitored the reasons for absence;
§
for
manual workers the main cause of absence was minor illness, ‘entitlement
mentality’, workgroup norms and culture, rostering, and management capability;
§
for
non-manual workers the main cause was home and family responsibilities, minor
illness, entitlement mentality, stress and mental health, and workgroup norms
and culture;
§
stress
and mental health were significant drivers of short-term absence across the
board, with the main reasons for stress cited as workload, organisational
change and management style; and
§ there was no
reportable difference in absence levels where medical certificates were
required, despite this being a highly adopted practice in Australia.
Size
matters
Large
employers with more than 500 employees generally recorded higher levels of
absenteeism than smaller organisations, the survey found.
Companies
employing up to 499 people recorded average absence rates of eight days a year
compared with 9.4 days for large organisations.
‘The
lower levels of absence in smaller organisations may be because absence is
harder to cover and causes more disruption’, the survey suggested. Smaller
firms were also known to offer less generous entitlements, acting as a
‘disincentive’ to taking time off.
Unionised
workplaces have higher levels of absence
Employers
with unionised workforces recorded higher average absence levels compared to
those with no unionisation, the survey found, at a rate of 9.26 days to 7.78.
‘Over the
years, unions have very effectively negotiated the entitlements afforded to
employees,’ the survey found. ‘As such, the higher levels of absence may well
be a product of higher levels of entitlement. It is also typically more
challenging to commence disciplinary procedures in highly unionised
environments.’
On a
state-by-state basis, the highest levels of absence were recorded in Queensland (11.04 days), Victoria (10.12), and the ACT (9.18). ‘Surprisingly, absence
levels in New South Wales were considerably lower (7.03) compared to the
overall average absence rate of 8.62 days’, the survey found. Western Australia
recorded 7.99 with South Australia the lowest at 5.97.
What
works?
The
survey found current strategies employers were using to tackle absenteeism were
largely ineffective.
The ‘top
three’ methods cited for managing absence were manager accountability, employee
assistance programs and disciplinary procedures. The three least utilised were
HR taking primary responsibility for managing absence, stress counselling and
attendance bonuses or incentives.
Some 88
per cent of respondents had introduced employee wellbeing initiatives in the
previous year, the most popular being employee assistance programs, access to
counselling and advice on ‘healthy eating’.
‘Although
these initiatives have not been found to have any real impact on absence
levels, senior management’s attitude towards employee wellbeing initiatives is
positive’, the survey found.
As to
what is a good starting point for managing absenteeism, the survey recommends a
‘coherent’ assessment of current absence management practices.
‘Absence
management needs to be considered as a stand alone HR issue, and greater
co-ordination between management, HR, OHS, IR, unions and other stakeholders is
required,’ it said.
It should
be a key organisational excellence issue that is constantly worked on, with a
‘strategic’ framework developed and implemented. ‘It is a key issue where the
return on investment can be clearly measured.’
A
copy of the survey may be purchased ($495) from Direct Health Solutions, phone 02 8668 0800 or email: surveys@dhs.net.au.
Back to Top
WorkSafe
Victoria launches handbook for SMEs
WorkSafe Victoria has released a new handbook – Getting help to improve health and safety –
aimed at helping employers in small and medium sized businesses improve their
workplace safety and meet their duties under Victorian OHS laws.
The
handbook also provides useful information for large employers’ health and
safety representatives, managers, supervisors and employees.
The
handbook outlines ways for businesses to get help including by: contacting
WorkSafe, unions and employer, trade and industry associations; developing the
necessary in-house OHS expertise and knowledge through education and training
certificates, diplomas and tertiary qualifications including via Registered
Training Organisations; and employing or engaging suitably qualified people to
provide OHS advice, including a checklist on how to tell if someone is suitably
qualified.
The
handbook notes Victorian business operators with 50 or fewer employees can
register for a free three-hour session with an independent health and safety
consultant who will come to their workplace.
To
download the handbook, click here.
Back to Top
9,873
Tasmanians injured at work in 2007
During
2007, 9,873 Tasmanians were injured in the workplace, according to the latest
statistics from WorkCover Tasmania.
The
figures were released as part of the launch of the Safe Work Tasmania Week,
which ran from October 19 to 25.
The
figure equates to 27 Tasmanians being injured each day – an
increase of one per cent on 2006 injury levels.
Tasmanian
Minister for Planning and Workplace Relations, Allison Ritchie, said small
business in particular had work to do on safety. ‘In 2007, 1,492 Tasmanians
employed in small business were injured’, she said. ‘This is a slight rise of
74 over the previous year and that is not acceptable.’
The most
common injuries in small business were soft tissue disorders due to trauma,
with the next most common being wounds, lacerations and amputations and
fractures.
The most
common injuries across all organisations were caused by body strain, falls,
trips and slips and being hit by moving objects.
Ritchie
reminded employers an OHS Advisory Service was set up in 2007 to help small and
medium sized Tasmanian workplaces manage workplace health and safety.
‘Advisors
visit workplaces and undertake an assessment before providing them with a
practical action plan to implement’, Ritchie said.
The
Helpline can be contacted on 1300 366 322.
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Wage
increases up to 4% in June quarter
Average
annualised wage increases (AAWIs) rose by 0.3 percentage points in the June
2008 quarter to four per cent across all sectors, according to the latest DEEWR
Trends in Federal Enterprise Bargaining report.
AAWIs in
the quarter were lower in the private sector at 3.9 per cent than in the public
sector at 4.1 per cent.
The
largest increases in the quarter were seen in construction agreements at 4.8
per cent; agriculture, forestry and fishing at 4.6 per cent; and electricity,
gas and water supply at 4.4 per cent. Mining agreements in the quarter offered
3.9 per cent increases (down from 4.2 per cent in the March quarter).
The
smallest increases were seen in accommodation, cafes and restaurants; property
and business services; and health and community services, all at 3.6 per cent.
Across
all currently operating certified agreements, the largest AAWIs were seen in
electricity, gas and water supply (4.6 per cent); education (4.7 per cent); and
construction (4.4 per cent). AAWIs in mining across all current agreements were
4.1 per cent.
The
lowest AAWIs across all current agreements were in communication services at
2.6 per cent; and accommodation, cafes and restaurants at 3.3 per cent.
By
agreement type, union collective and union greenfields agreements saw the
largest increases in the quarter at four per cent; while employer greenfields
and employee collective agreements saw the lowest rises at 3.6 per cent.
By state,
the largest increases in the June quarter were in WA at 4.7 per cent, Qld and
SA at 4.5 per cent, Tasmania at 3.9 per cent, NSW and the ACT at 3.8 per cent,
Victoria at 3.7 per cent and the NT at 3.2 per cent.
To view
the June quarter report, click here.
Back to Top
CPI
jumps to 5%, largest annual change since 1995
The Consumer
Price Index (CPI) jumped 1.2 per cent in the September 2008 quarter, compared
to a 1.5 per cent rise in the June quarter, the latest figures from the ABS
show.
For the
year to September 2008, this puts the CPI at five per cent, the largest annual
change since December 1995 aside from when the GST was introduced.
In the
latest quarter, the most significant price rises came from rents, water and
sewerage, house purchases, petrol, deposit and loan facilities, overseas
holidays, electricity, and property rates and charges.
The most
significant offsetting price decreases this quarter came from childcare,
pharmaceuticals, audio-visual and computer equipment, and cars.
To view
the September CPI figures, click here.
Back to
Top
DEEWR
confirms downturn in cyclical employment
The DEEWR
Monthly Leading Indicator of Employment has fallen in October for the ninth
consecutive month.
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. However,
this is the first month a downturn in cyclical employment has been
substantiated.
‘A cyclical
downturn in employment is confirmed this month because cyclical employment has
now declined for six consecutive months’, DEEWR said.
Two out
of four components contributing to the decline in October were the ANZ
Newspaper Job Advertisement Series and the Westpac-Melbourne Institute Leading
Index of Economic Activity.
To view
the October indicator, click here.
Back to Top
Seasonally
adjusted unemployment rate grows to 4.3%
The
seasonally adjusted unemployment rate increased by 0.2 percentage points to 4.3
per cent in September, according to the latest ABS Labour Force statistics.
For men,
the seasonally adjusted unemployment rate increased by 0.2 percentage points to
4.0 per cent, and for women the unemployment rate rose by the same amount to
4.6 per cent.
At the
same time, Australia’s participation rate remained steady at 65.1 per cent.
Meanwhile,
seasonally adjusted employment increased in September by 2,200 jobs to
10,737,400; full-time employment decreased by 15,400 jobs to 7,706,800; and
part-time employment grew by 17,700 jobs to 3,030,500.
To view
the September Labour Force statistics, click here.
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CFMEU
to assist Federal Court in award interpretation
In an
unprecedented decision, a Full Court of the Federal Court has given the CFMEU
leave to intervene to make written submissions on the question of allowable
matters under the National Building and Construction Industry Award.
In its
October 15 judgment, the Full Court gave the CFMEU leave to intervene in the
matter concerning a construction worker who had resigned without notice from
his job with Yirra Pty Ltd (t/as Richmond Demolition and Salvage).
The award
includes provisions under the heading of ‘redundancy’ that require payouts to
employees in the event an employment relationship comes to an end, other than
in cases of misconduct or refusal of duty. The payout kicks in even if the
worker resigns.
The
Industrial Relations Court of SA in June decided the construction worker was
entitled to the payout of $6,323.20, equating to eight weeks’ pay for four
years of service.
The
company appealed the ruling to the Federal Court, arguing ‘redundancy’ clauses
ceased to have effect as allowable award matters immediately upon Work Choices
commencing.
The
worker argued it was not technically a ‘redundancy’ payment but an ‘incentive’
payment as it increased with service and did not have to follow a retrenchment.
The Full Court said it would be useful for the CFMEU to make written submissions in a timely
manner on the true construction of s513 and s525 of the Workplace Relations
Act. The issues were whether clause 16 of the award was a term about an
allowable award matter being ‘incentive-based payments and bonuses’ or whether
it ceased to have effect under Work Choices.
‘In my
opinion, leave to intervene should only be granted on the basis that the CFMEU
pays such additional costs of the appeal as may be incurred by the appellant by
virtue of the grant of leave that is given’, the court said. These costs will
be paid to the MBA representing the employer.
The
outcome of the case will potentially affect thousands of CFMEU members as the
union is the main party to the award. However, because the union did not
represent the applicant it had to seek leave to intervene. The company opposed
the intervention.
Implications
for members
This case
sets a precedent in that the court has allowed the CFMEU to intervene (despite
the worker not being one of its members) but only to make written submissions.
It also ordered the union to pay the additional costs of the MBA for the
appeal. The question of whether the union will also pay costs for the
intervention application will be decided at the full hearing of the award
matter on November 20. Written submissions, including from the CFMEU, are due
by November 13.
To view
the decision, click here.
Back to Top
AIRC
bench defines ‘single business’
There is
no precedent for treating different ‘parts’ of one employer’s business as
different ‘businesses’ and therefore being subject to a multiple-business
agreement, the AIRC has ruled.
Specialist
engineering and construction contractor Bilfinger Berger Services (Australia) Pty Ltd (BBSA) had asked the commission to reject a secret ballot application by
the CEPU initiated in May this year.
The
company argued the five parts of the business the union sought a collective
agreement for were five different businesses. These were project and asset management;
major construction contracting; telecommunications and power
services/infrastructure; road maintenance; and restoration.
Each of
the five had separate resources, budgets, profits, employees and cost and
billing centres, the company told the commission.
BBSA
argued the union was seeking a multiple-business agreement by seeking to cover
employees at all five businesses, while at the same time specifically excluding
some employees. It had therefore not initiated a valid bargaining notice and
its application for a secret ballot should be rejected, it said.
The Full
Bench said while there might be some weight to the company’s argument the five
business units were five separate businesses, there had never been a single
instance of a multiple-business agreement applying to just one employer.
Section
331(1)(a) of the Workplace Relations Act and its predecessors had never, since
1993, been interpreted in the way BBSA argued. Given the section remained
unchanged under Work Choices, parliament was evidently happy with the way it
was being applied, the Full Bench said.
If the
commission upheld the company’s argument, it could lead to ‘unpredictability
and caprice’ in the agreement making system depending on the operating
structure used by the employer, it said. This could not have been intended by
parliament.
‘In our
view, an agreement which is limited in its application to the employees of one
employer would not be a multiple-business agreement’, it said.
Implications
for members
This
decision shows the AIRC will uphold the validity of bargaining notices covering
different parts of the same business as long as there is seen to be one
employer. An entity will be seen as one business for the purpose of agreement
making even where there are separate budgets and cost centres for different
parts of a business. The decision also shows the commission will give primacy
to what it sees as the intentions of parliament in drafting workplace
legislation.
To view
the decision, click here.
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AIRC
suggests substantive legislation needs to allow for varying secret ballot
orders
The CEPU
has argued it should not have to re-apply for a secret ballot covering workers
at Bilfinger Berger Services (Australia) Pty Ltd because it was the company’s
appeal against the ballot order that caused the date for the proposed ballot to
expire.
The
company’s appeal of Senior Deputy President Ian Watson’s decision approving the
ballot application was rejected on October 7 (see related story in this
edition).
In his
October 22 follow-up decision, the Senior Deputy President said while ‘on face
value’ the ballot order had expired, the union argued the Workplace Relations
Act did not intend to prevent varying an order that had been subject to an
appeal process. Otherwise, every employer would be able to ‘subvert’ the ballot
process by filing an appeal against every ballot application, the union said.
‘In this
case, the conflict between appellate rights and the right to protected action
is achieved by treating s469(1) as having application not in a case where
appellate procedures are instituted’, the union argued.
BBSA
argued the appropriate course was for the union to make a fresh application for
a ballot order, with the company promising not to oppose the new application.
‘A
requirement for a new application, each open to appeal, could result in
repeated appeals and ongoing frustration of the legislative right to protected industrial
action, subject only to the construction of an arguable case as to the merit of
the appeal’, the Senior Deputy President said.
It would
therefore seem ‘desirable’ in redrafting the WR legislation that the government
consider introducing a statutory basis to vary ballot orders in circumstances
where an appeal prevented the conduct of a ballot on a specified date.
For the
current case, however, this was unnecessary as he simply treated the union’s
application to vary the ballot order as a fresh application, applying new dates
for it to be held.
To view
the decision, click here.
Back to Top
Dismissal
before restructure not for genuine operational reasons
The AIRC
has rejected a company’s claim it dismissed a former payroll officer for
operational reasons, finding its argument was undermined by the fact the
employee was dismissed three months ahead of a restructure.
Commissioner
Frank Raffaelli in his September 29 decision found United Petroleum (NT) Pty
Ltd had dismissed an employee in December 2007 whereas her payroll functions
were not transferred to the Melbourne head office from Darwin until late March
2008.
While the
commission acknowledged it was prohibited from interfering with management’s
decision to terminate employment if genuine operational reasons were involved,
the exemption did not give employers ‘carte-blanche’ to get rid of anyone
leading up to a restructure, Commissioner Raffaelli pointed out. For instance,
if someone were dismissed for misconduct leading up to a restructure the
operational reasons exemption would not apply, he said.
While in
this case there was an operational reason for transferring the employee’s work
to Melbourne, the termination of her employment ‘was not caused, either in full
or in part, by the operational reason’, the commissioner found.
‘For a
termination to be for a genuine operational reason (or to include a genuine
operational reason) there must be a link between one and the other,’ he said.
‘The operational change must be a cause (but not necessarily the only cause) of
the termination.’
The
accounts work the woman previously performed did not stop being performed in Darwin until at least March 2008, Commissioner Raffaelli noted. The work had not decreased
or been removed at the date of her termination.
The
dismissal was therefore not for genuine operational reasons.
Implications
for members
This
decision reinforces the view that just because operational change is occurring
in an organisation, that does not mean every dismissal surrounding the change
will be exempt from termination claims. Proper procedures must still be
followed and the commission will look into the particular facts of the case
including whether the work is still being performed by someone else.
To view
the decision, click here.
Back to Top
Operational
reasons exemption stands despite no operational change
In an
unprecedented decision, the AIRC has upheld the termination of employment of a
former Griffin Coal Mining Company production employee for operational reasons,
despite the company undergoing no structural or operational change.
Deputy
President Brendan McCarthy in his October 6 decision said the fact that the
employee had been unable to perform the inherent requirements of the job for
more than two years, coupled with the fact there was no suitable alternative
work for him, meant the operational reasons exemption applied to his dismissal.
The
employee had taken two years’ sick leave at 75 per cent of his pay between
March 2006 and June 2008 under a company insurance policy for work-related
injuries.
Prior to
his payments being cut off, he contacted the company seeking to come back to
work on the proviso he couldn’t operate heavy equipment yet but was hoping to
get medical clearance at some point.
Griffin
Coal terminated his employment on June 27.
‘In this
matter there is no evidence or even any contentions that there has been any
change to the operations of the employer at all’, the Senior Deputy President
said. ‘There is no structural change, no technological change, and no change
because of financial circumstances’, yet the employer argues dismissal was on
operational grounds.
The sole
point relied on was the employee was no longer capable of performing the role
for which he was engaged.
As to
whether this constituted an ‘operational reason’, the Senior Deputy President
said there was ‘little or no prospect of the applicant being able to return in
a reasonable period to his pre-incapacity role nor to be able to work night
shifts’.
‘The
facts here are that the reason for the termination was that no suitable assignment
could be found for the applicant’, he said. This was ‘genuine’ and therefore
the dismissal was for reasons that included genuine operational reasons, he
found.
Implications
for members
This
decision shows the AIRC will interpret ‘operational reasons’ to include
instances where no suitable position is available. In the case of injured employees,
this will only be after all other legal obligations with regard to workplace
injuries have been exhausted.
To view
the decision, click here.
Back to Top
Exemplary employee entitled to full redundancy payout
The AIRC
has rejected an application by flooring chemicals manufacturer Nuplex
Industries Australia to be exempt from paying redundancy to a former lab
employee who refused a job following a transmission of business.
AIRC
Senior Deputy President Lea Drake in her September 26 decision said the worker
was quite ‘sensible’ in knocking back the lab job offered with new owner Lomb
because it was a step backwards.
The new
job involved committing to working in a lab that had not yet been built, would
have less staff, and would require longer travelling distances which would
necessitate him buying a car because he currently walked to work.
If the
man had taken the job with Lomb and was later made redundant he would have been
in a ‘dire situation’, the Senior Deputy President said. His assessment of the
situation was ‘entirely sensible’.
‘An offer
of employment may not be an acceptable alternative offer if it does not contain
comparable terms overall’, she said. One of the most beneficial terms of his
job with Nuplex had been the redundancy. Given he had been an ‘exemplary’ and
‘reliable’ long-term employee, it was reasonable for him to be concerned to
give up such a beneficial entitlement which the new employer had no intention
of continuing, she said.
‘I accept
that in situations involving a transmission of business the relevant
consideration when deciding if there is a redundancy or not is whether the
particular type of work within the business has come to an end’, the Senior
Deputy President said. The type of work covering the employee in this case had
come to an end, she said.
Nuplex,
however, argued if any redundancy was to be paid it should be under the award
rather than the certified agreement given the interaction between the two
instruments.
The
difference between redundancy entitlements was 64 weeks’ pay under the
agreement compared with 20 weeks under the award.
The
Senior Deputy President found the agreement provisions were intended to ‘cover
the field’, and award entitlements were not intended to undermine agreement
entitlements but supplement them. ‘When there is conflict, the enterprise agreement
terms prevail’, she said. ‘In this case there is a conflict and the agreement
provision prevails. No other outcome in this situation could produce a
commonsense result.’
The
worker was entitled to be paid his redundancy entitlement under the agreement
by Nuplex, she ruled.
Implications
for members
This
decision shows that in the event of a transmission of business an employee will
not be under an obligation to accept an offer of employment with the new owner
unless it is suitable alternative employment. Workers will be entitled to their
full redundancy entitlements under the relevant instruments if they decline an
offer of unsuitable work.
To view
the decision, click here.
Back to Top
The AIRC
has ruled it was harsh for Pacific National (NSW) Pty Ltd to dismiss a
locomotive driver for an unauthorised absence two days after he was due to receive
a voluntary redundancy payout.
The
driver had told the company at short notice he needed to take February 29 this
year off to go to an ‘induction’ session at the local abattoir where he was
seeking work after his voluntary redundancy took effect in late March.
The
company declined his leave request but he took the day off anyway.
He was
terminated shortly thereafter, with the termination letter stating he had been
counselled over ‘numerous indiscretions’ for abuse of Pacific National owned
mobile phones, excessive absenteeism, losing his driver’s licence, a fraudulent
expense claim and a claim for wages he was not entitled to.
In his
October 2 decision, Commissioner Colin Thatcher said: ‘There is no doubt that
in not attending for his rostered shift on 28/29 February 2008 [the driver]
gave priority to his own interests.’
The
commissioner noted the driver had also given an undertaking to Pacific National when his voluntary redundancy was approved that until his employment ended he
would only take days off when he was genuinely sick or when they were rostered
well in advance.
Despite
breaching this undertaking, the commissioner found the driver was treated
‘unreasonably’ in having his leave request refused given the company could have
replaced him, albeit by paying overtime to someone else.
While the
driver had received warnings over his performance in the past, including
written ones, he had not been warned about termination of employment for
failing to attend work to attend an induction, the commissioner said. Therefore
there was not a valid reason for termination.
His
dismissal also cost him $23,781.66 in redundancy pay, he pointed out.
‘This
seems harsh, particularly given that I have found that there was not a valid
reason for the termination of his employment’, the commissioner said.
The
driver was entitled to the amount of his redundancy as compensation in lieu of
reinstatement, the commissioner ordered.
Implications
for members
This
decision shows that dismissing an employee over an unauthorised absence has to
be backed up by previous explicit warnings or employers run the risk the
commission will find there was no valid reason for termination or that it was
harsh or unjust.
To view
the decision, click here.
Back to Top
Qantas
management acted reasonably towards stressed out worker
The Quensland
Industrial Relations Commission has upheld a decision by Q-COMP to reject a
Qantas employee’s workers’ compensation claim, finding her psychological injury
was not compensable because it arose out of ‘reasonable management action taken
in a reasonable way’.
Commissioner
Glenys Fisher in her October 7 decision found a cabin crew duty manager did suffer
a psychological injury in the form of a ‘stress-related disorder’.
Under
s32(5) of the Queensland Workers’ Compensation and Rehabilitation Act, the term
‘injury’ does not include psychiatric or psychological disorders arising out of
or in the course of ‘reasonable management action taken in a reasonable way by
the employer in connection with the worker’s employment’.
The duty
manager had started work for Australian Airlines in Cairns in January 2005,
which in early 2006 ceased to operate as a separate entity and was folded into
Qantas.
The woman
said she was prescribed sleeping tablets in late 2005 after experiencing a
‘period of worry’, but she did not file a workers’ compensation claim until
October 2006. By letter in January 2007 Qantas rejected the claim, a decision
supported by Q-COMP in December 2007.
She then
appealed to the QIRC.
The duty
manager claimed her stress was related to the volume of her workload,
insufficient support, and her manager’s personal relationships with other staff
getting in the way of his managerial responsibilities (the commission found no
evidence for the last claim).
Commissioner
Fisher found her manager had taken three ‘unreasonable’ management actions:
failing to inform her about upcoming trial work arrangements; changing the
timeframe for the review of a procedures manual; and kissing her on the cheek
after a mediation session that was called to air her complaints against him.
‘Only one
of these unreasonable management actions occurred prior to the critical episode
on September 1, 2006’, the commissioner said. This was failing to inform her of
the trial.
However,
when the failure was viewed along the ‘continuum’ of management action, ‘it
cannot be said that the injury arose out of or in the course of unreasonable
management action taken unreasonably’, she said.
The
decision not to compensate the woman for her illness should stand, she said.
Implications
for members
This
decision shows that as long as management action is reasonable, the Queensland commission will find psychological injuries are not compensable under the state
workers’ compensation scheme. Particular conduct, however, will be considered
as part of the continuum of management action.
To view
the decision, click here.
Back to Top
Former
Fairfax employee gets through to round two
The
Federal Court has found a man’s alleged termination for threatening to complain
to WorkCover New South Wales, as well as for threatening to seek a court
injunction to stop his dismissal, would fall within prohibited reasons under
the Workplace Relations Act if it was proven.
A former
Fairfax Media Publications employee had brought a raft of legal action against
his former employer flowing from his dismissal in May 2007. The Federal
Magistrates Court had earlier this year dismissed his latest two applications
that alleged his termination was prohibited because of the threatened WorkCover
complaint and court action.
The court
dismissed his applications on the books, saying they had no prospects of
success.
To fall
within the prohibitions, WorkCover would have to be an industrial organisation
under s793(1)(j) and (k) of the Act, which the court deemed it was not.
However,
on appeal to the Federal Court, Justice Jayne Jagot found both of the former
employee’s applications had weight and were entitled to be argued at a full
hearing.
‘The
trial judge held that a proposal to complain to WorkCover could not engage
s793(1)(j) because, by reason of the freedom of association overlay, that
section is concerned with proposals to complain to industrial associations’,
Justice Jagot said. In this case, the applicant did not claim he was dismissed for
membership of an industrial organisation, which is usually how the section was
used.
However,
Justice Jagot found the legislation with which WorkCover dealt included
legislation regulating the relationships between employers and employees, and
it was therefore within the scope of ‘industrial law’ as required by that
section of the Act.
As to the
applicant’s threat to take out a court order preventing his dismissal, Fairfax argued that did not fall within the prohibited reasons for dismissal because his
threat to do so was offhand. Justice Jagot found his statement to that effect
was enough to engage the section.
Both
applications should be remitted back to the Federal Magistrates Court for a
full hearing, she said.
Implications
for members
This decision
shows that even vague threats by employees to take court action or complain to
an industrial body will be seen as falling within the scope of prohibited
reasons if they are followed by a termination of employment. The definition of
industrial body does not have to include a freedom of association component,
with the courts now ruling WorkCover falls under that definition.
To view
the decision, click here.
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AIRC
split decision upholds RailCorp reinstatement
In a rare
split decision, the AIRC has found by a two-to-one majority it does not have to
consider evidence in termination of employment cases in a ‘robotic’ or
‘formulaic’ way, it being enough that it considers all the evidence at some
point before making a decision.
Deputy
President Brendan McCarthy and Commissioner Wayne Blair disagreed with the view
of Senior Deputy President Les Kaufman that Commissioner Annette Larkin was
wrong in how she arrived at her June 2008 decision.
She had
found RailCorp New South Wales’ termination of a Bankstown station manager, who
had 28 years’ service, was harsh, unjust and unreasonable and ordered
reinstatement. She found while he had ‘misbehaved’ on two relevant occasions
this was not a valid reason for dismissal.
RailCorp
appealed the decision, saying the commissioner did not have regard to the
station manager’s disciplinary history in deciding whether there was a valid
reason.
RailCorp
said the man’s disciplinary record included: a 1998 warning over a verbal
altercation with a workman; a 1999 written complaint about an altercation with
a police officer; a 2000 suspension for three days for his behaviour towards
the chair of the Transport Appeals Board (TAB); a 2003 counselling over his
behaviour towards a member of parliament; a reprimand for being ‘rude,
aggressive, argumentative and demeaning to a fellow employee’; and a July 2007
formal reprimand for sending inappropriate emails to City Rail stations.
Senior
Deputy President Kaufman agreed Commissioner Larkin erred in not taking into
account his disciplinary history in finding there was not a valid reason for
termination.
If it
weren’t for his ‘abysmal’ record, the termination might be seen as harsh
because he had lost a promotion as well as long service, he said. ‘However, the
respondent has a long history of abusive conduct towards his workmates and
others.’
In
deciding there was no valid reason for termination, Commissioner Larkin had
considered just two incidents relating to his conduct towards a TAB board
member after a promotion he had gained was revoked on appeal.
RailCorp
argued the commissioner had ‘conflated’ the question of whether there was a
valid reason for dismissal with whether it was harsh. Having found there was no
valid reason she only then turned her mind to his disciplinary history. ‘She
had not taken his disciplinary history into account in determining whether
there had been a valid reason for the termination’, Senior Deputy President
Kaufman agreed. ‘In my view, in not doing so the Commissioner erred.’
In the
majority decision, Deputy President McCarthy and Commissioner Blair disagreed,
saying after finding there was no valid reason for termination, Commissioner Larkin
then turned her mind to the worker’s disciplinary history. Having considered
those issues she did not then revisit her finding there was no valid reason.
She then determined the termination was harsh, unjust or unreasonable.
‘Consequently,
the Commissioner had regard to the totality of the factual matrix in reaching
her ultimate judgment’, they said. The order in which each element was
considered is ‘in our view not critical’.
Implications
for members
This
decision shows that when deciding if there was a valid reason for termination
and/or whether a termination was harsh or unjust, the commission can weigh
evidence in any order it chooses, so long as the totality of evidence is
considered at some point before arriving at the decision.
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
November and December are:
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December 08
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15-18
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Perth, WA
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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 registration
form.
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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
The final round of
member forums for 2008 will take place in November.
Members
have already received electronic circulars about these forums. For further
information or to register for these forums, 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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