December 2002: the month in IR

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December 2002: the month in IR

Federal Workplace Relations Minister Tony Abbott announced plans for new get-tough measures, including jail terms, for workers who break the law (427/2002). The measures would see fines rise to $6,600 for individuals, 10 times higher than at the moment, with prison sentences doubled to up to one year, while fines for unions and officials would be set at $33,000, or 30 times the current level.

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Federal legislation

Federal Workplace Relations Minister Tony Abbott announced plans for new get-tough measures, including jail terms, for workers who break the law (427/2002). The measures would see fines rise to $6,600 for individuals, 10 times higher than at the moment, with prison sentences doubled to up to one year, while fines for unions and officials would be set at $33,000, or 30 times the current level.

Federal Parliament debated three pieces of IR legislation before rising for the year (405/2002). It passed the Workplace Relations Amendment (Genuine Bargaining) Act 2002, which was assented to on 6 December, and the Workplace Relations Legislation Amendment Act 2002, assented to on 11 December.

From 21 December, the next phase of the federal Privacy Act was phased in, with more small businesses covered (357/2002).

Living Wage case 2003

A full bench of the AIRC has laid out directions for the 2003 Living Wage case. The ACTU is to make written submissions by 5 February, with employers to follow by 26 February (7 March for the retail motor industry). The ACTU's written replies are due by 17 March, and others by 25 March. Hearings have been set for the week of 31 March through until 4 April. The case has its own website.

Redundancy test case

Conciliation by a senior member of the AIRC resolved a number of smaller issues ahead of this year's test case on the doubling of federal redundancy items, but the 'big ticket' issues remain to be dealt with (424/2002).

Federal Govt's PS plans

According to leaked Cabinet documents, federal Workplace Relations Minister Tony Abbott was planning to make Australian Workplace Agreements compulsory for new public servants, to make promotions and transfers reliant on the signing of an AWA and to outlaw union-negotiated certified agreements.

Paid maternity leave

The Federal Sex Discrimination Commissioner Pru Goward called on the Howard Government to introduce 14 weeks' paid maternity leave in the next budget (417/2002). Her proposal is for working women to receive 14 weeks of taxpayer funded paid maternity leave, capped at the federal minimum wage, currently $431.40 per week. The recommended 14 weeks equals the ILO minimum standard.

The ACT Government has offered 7000 public servants 14 weeks' paid maternity leave, up from the current 12.

Macquarie University vice-chancellor Di Yerbury announced the university would immediately pay 14 weeks' paid maternity leave.

Industrial manslaughter

ACT employers and senior officers would face up to 25 years imprisonment and $250,000 in fines ($1.25 million for corporations) under a new law tabled in Parliament (418/2002). If the Bill is passed the ACT could become the first jurisdiction in the world with a specific criminal offence of industrial manslaughter for a death caused by employer negligence or recklessness.

Meanwhile, Qld's IR Minister Gordon Nuttall confirmed reports that an industrial manslaughter proposal had been shelved in that state for this term (415/2002).

WA IR regs

As of 17 December, WA's IRC Amendment Regulations (no. 3) 2002 come into force, taking account of changes arising from the Labour Relations Reform Act 2002. Under the amendments, unfair dismissal claims can be referred to the registrar for conciliation; parties have seven days (or extra time as decided by the Chief Commissioner) to apply for a review of the decision; and the review must be carried out within 14 days (or as decided by the Chief Commissioner).

NSW nurses win 6% in extra pay claim

NSW public sector nurses were partially successful in their work value case in the state's IRC, being awarded a 6% pay rise in an interim decision, although they asked for 15% (422002). Coupled with a scheduled 4% pay rise under an existing agreement, this means nurses are due for an extra 10% in their pay packets from 1 January this year and another 5% in July, which will result in an increase of around 15.75% next year due to the compounding effect.

Union fees

A full bench of the NSW IRC ruled that employees should have a right to have their union dues deducted from their pay and forwarded to their union at their request (431/2002).

A full bench of that Commission also decided the question of whether union bargaining fees clauses can be included in NSW enterprise agreements would be dealt with on a case by case basis, after it inserted a new clause into the principles for approving an EA (428/2002 and IR Link 161).

And an attempt to outlaw union bargaining fees in South Australia has been forestalled for nearly three months after the Government withdrew time set aside for private members' bills in the final sitting week, due to time constraints (413/2002).

Employers gain new status

The NSW IRC has granted three employer bodies peak council status, meaning they can now apply to have test cases heard in the Commission, and have automatic right to access certain matters (421/2002).

NSW State Wage Case

A full bench of the NSW IRC rejected a claim by the Broken Hill Chamber of Commerce to vary the Broken Hill Commerce and Industry consent award to disallow the 2002 State Wage Case $18 wage increase, saying it had not made out its economic incapacity argument.

Entitlements

A ruling by the Victorian Supreme Court on 20 December cleared the way for Ansett administrators to distribute the balance of employee entitlements. The Ansett Superannuation Trustees were seeking to have $200 million held back for the benefit of 8,000 ground staff. However, the court found the trustees were not priority creditors thus allowing the administrators to pay the balance of redundancy payments. A modest percentage of total entitlements will flow from this ruling. The ruling should allow the administrators to make further instalments reasonably soon.

And as the former Ansett workers took their plea for payment of more than $300 million in outstanding entitlements to Prime Minister John Howard, a legal expert recommended workers use principles of corporate law to secure their future (420/2002).

Corporate governance

While strong and effective corporate governance was essential to the sustained competitive advantage of Australian business, business failure did not necessarily mean poor corporate governance, Australian Chamber of Commerce and Industry head Peter Hendy said while launching ACCI's corporate governance and responsibility policy (408/2002).

Construction industry

The interim taskforce, appointed ahead of Building and Construction Industry Royal Commissioner Terence Cole's final report due on 31 January, started its first prosecution against the federal construction union and an organiser for alleged breaches of the federal Workplace Relations Act.

Following on from comments made by Grocon executives attacking the dominance of the construction union in Victoria, some 74% of the construction company's 600-plus workforce rejected a non-union deal.

ADAM report: pattern bargaining in the spotlight

Two recent studies on enterprise agreements in the construction and automotive manufacturing industries challenge many Federal Government assumptions, assertions and policy reforms advanced in relation to pattern bargaining, according to the latest edition of acirrt's Agreements Database and Monitor (430/2002).

The report also contained its usual analysis of average annualised wage rises in certified agreements. AAWIs fell slightly in the September quarter, down from 4.2% in the June quarter to 4%.

Minimum wage for all Qld workers

A full bench of the Queensland Industrial Relations Commission granted the State Government's application for a minimum wage of $431.40 to cover all non-award covered workers in the state, effective from 1 April (429/2002).

Transmission of business

An appeal to a full bench of the AIRC reversed a decision of a commissioner who found that the transfer of the gardening and maintenance functions from a contractor back to the employer-school was a transmission of business within the terms of the federal legislation (IR Link 157).

Awards and pay

A full bench of the AIRC supported a ruling in the Corona case that an employee was not covered by a federal award applying to sales staff as the employee was found to be a management employee (IR Link 158).

The original matter (352/2002) also confronted the issue of whether a certain category of VECCI members - subscriber members - was caught by federal award coverage arising from the membership of a respondent employer association. The commissioner ruled that such members were to be treated like ordinary members. VECCI decided not to appeal the original decision.

The consequence is that there may be back claims for underpaid wages against those employers that failed to meet certain award standards.

An AIRC commissioner considered that an application to pay only accrued leave over school holidays to school cleaners was an attempt by the company to reduce award wages. The application for a stand-down order was consequently referred to the President of the AIRC for consideration (IR Link 153).

The AIRC has been asked to clarify a coal mining award to avoid the situation of employees under the award being inadvertently entitled to more superannuation contributions than the employers had made to date under State legislation (IR Link 148).

Industrial agreements

Only one in five Australian employees (21%) have their pay set by an award, according to new ABS figures (419/2002). The biannual survey found that nearly half of Australian workers (42%) are on individual agreements. The balances of workers (37%) are paid by collective agreements.

An employer has been ordered to pay an ex-employee superannuation contributions, which were promised but never eventuated. The NSW IRC, sitting in Court Session, varied the employee's contract of employment to achieve this under the unfair contracts provisions of the State's 1996 IR Act (IR Link 145).

When there is no obvious relevant award to apply the 'no disadvantage test' to a proposed federal enterprise agreement, the AIRC must determine the appropriate award before the agreement is made (IR Link 140). A full bench of the AIRC made this ruling in overturning a decision of Deputy President McCarthy who had determined that the agreement must exist before the appropriate award is nominated.

A full bench of the AIRC refused to certify a proposed agreement when the union and employers involved were unable to substantiate their case for a multiple-employer enterprise agreement on the basis of public interest (IR Link 139).

Redundancy

In the long-running Blair Athol case, a full bench of the AIRC has found that although Rio Tinto's Pacific Coal unfairly dismissed 16 employees, the reinstatement of the employees was not an appropriate remedy as the employer had substantiated a sound business case for reducing employee numbers (IR Link 152). The CFMEU has signalled its intention to pursue an appeal in the High Court.

An employer should have investigated all possible candidates for redundancy instead of selecting the current occupant of the position being made redundant, the AIRC has found (IR Link 156).

Non-award employees' entitlement to severance pay came within the principles of the ILO termination convention, the AIRC has ordered (IR Link 155).

And the AIRC used its powers to implement the relevant ILO Convention in a generally applicable redundancy clause for all employees of Chubb Pty Ltd working in Western Australia (IR Link 146).

Dismissals

The AIRC found that although an employer was entitled to insist that an employee work reasonable overtime, the manner of dismissal following the employee's refusal was harsh and unjust (IR Link 154). The case highlighted the need for employers to follow due process even when acting from a legally sound position.

Industrial disputes

The number of working days lost in September due to industrial disputation fell on the previous month's figures, and were also down on the previous year, according to figures released by the Australian Bureau of Statistics (423/2002).

Television station Network Ten P/L and associated businesses were not legitimate parties to an industrial dispute initiated by the Musicians Union, due to lack of evidence, a full bench of the AIRC has found (IR Link 147).

Email policy

Some 300 steelworkers at BHP's Western Ports plant in Hastings, north-east of Melbourne, walked off the job for 24 hours in protest at the company's email policy, after an incident arising over the cancellation of Christmas hampers (422/2002).

Workplace drugs and alcohol policy

While there was a very well-established body of research linking the presence of alcohol in the blood to impairment, the case was nowhere near proven when it came to drugs, a researcher told a Sydney briefing (410/2002). Senior acirrt analyst Kathryn Heiler said the key to developing a good drug and alcohol policy, that would stand up in the workplace and the tribunals, was consultation.

People

Victorians got their third Industrial Relations Minister in less than a year, with Premier Steve Bracks announcing Attorney-General Rob Hulls will replace John Lenders in the portfolio (412/2002).

 
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