February 2003: the month in IR


February 2003: the month in IR

Federal Parliament sat in February for the first time this year, and Workplace Relations Minister Tony Abbott introduced previously discussed pieces of IR legislation and also agreed in principle to the referral of common rule award coverage powers for low-paid Victorian workers. But the big issue on everyone's minds was when the Government would release the Cole Royal Commission Report into the Building and Construction Industry, and what it would do about the recommendations.


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Federal Parliament sat in February for the first time this year, and Workplace Relations Minister Tony Abbott introduced previously discussed pieces of IR legislation and also agreed in principle to the referral of common rule award coverage powers for low-paid Victorian workers. But the big issue on everyone's minds was when the Government would release the Cole Royal Commission Report into the Building and Construction Industry, and what it would do about the recommendations.
Federal legislation
Parliament sat for the first time this year on 4 February, and debated three pieces of IR legislation, concerning bargaining fees, directors' bonuses and pregnancy discrimination.
Federal Workplace Relations Minister Tony Abbott introduced two new bills to Parliament - aimed at strengthening sanctions against union officials who refused to comply with court and tribunal orders and changing the way the minimum wage is decided.
Abbott also plans to introduce legislation which would make it unlawful to dismiss workers who are absent for emergency services duties during emergencies. He said this would supplement protections already in place in all states and territories, except Victoria and Western Australia.
A Senate committee looking into the effect of regulation on small business growth has come up with 29 recommendations for change, none of which concern the Federal Government's plans to exempt small businesses from unfair dismissal laws.
In an inquiry that could potentially influence the way employment laws operate, the Productivity Commission is to investigate federal disability discrimination laws.
The Federal Opposition labelled a bill addressing discrimination against pregnant and breastfeeding women 'woefully inadequate' and said it would push on with a raft of amendments designed to improve it, despite the Bill passing unamended through the House of Representatives.
Meanwhile, the AiG supported the Federal Government's plan to take away the states' rights to rule on unfair dismissals in a submission made to a Senate inquiry into the Workplace Relations Amendment (Termination of Employment) Bill 2002.
And ACCI met for the first time in 2003 to discuss the upcoming minimum wage case, the Cole Royal Commission, and work and family policies.
Victorian legislation
The Federal Government has done a backflip on its opposition to the Victorian Government's plans to have the state's lowest-paid workers covered by federal award conditions, in the face of the political reality that a friendly Upper House would pass the Victorian Bill.
Cole Royal Commission
As unions launched a book denouncing the Cole Royal Commission into the building and construction industry, the Federal Government promised it would not sit on the final report, which Commissioner Terence Cole handed to the Governor-General on 24 February.
The President of the Australian Industrial Relations Commission hit out at critics who see the Commission as helping extract unfair bargains when certifying enterprise agreements.
A number of amendments have been made to the AIRC rules to introduce the capacity to lodge documents electronically and to simplify and clarify the completion of statutory declarations which are required to be lodged with applications for certification of agreements.
AIRC rules also changed as a result of the Workplace Relations Amendment (Genuine Bargaining) Act 2002 coming into force.
Minimum wage case
Apart from Abbott's last-minute attempt to change the criterion for deciding the case, all parties made submissions ahead of the case being heard on 31 March. The ACTU filed a submission supporting its claim for an increase of $24.60 a week in the pay packets of 1.7 million of Australia's lowest-paid workers, calling on the same day for companies who pay excessive salaries and golden handshakes to executives to be taxed accordingly.
Arguing that they are still paying for last year's $18 Living Wage increase, which almost doubled the $10 amount they recommended, the Australian Chamber of Commerce and Industry has said there should be no rise at all in this year's minimum wage.
Meanwhile the Federal Government has said it will not oppose a rise of $12 per week up to the C10 trades level in the Metals Industry Award. And the Australian Industry Group supported an $11 increase to all award rates of pay, subject to full absorption into over award payments.
NSW pre-election policies
NSW Premier Bob Carr plans further reforms to the labour hire sector and the establishment of a $2.4 million asbestos research centre if Labor is re-elected on 22 March.
NSW working hours case
A full bench of the NSW IRC has reserved its decision in the state's working hours case, after hearings started and finished on 19 February.
Queensland bargaining
Almost five months after completion of a review into public sector enterprise bargaining conducted by former Prime Minister Bob Hawke, 19 Queensland unions have signed up to a protocol which commits them and the Beattie Government to good faith bargaining on behalf of 170,000 workers.
And from 3 February 2003, reforms to the operations of the Queensland Industrial Relations Commission came into effect.
But generally Qld bargaining is in a state of turmoil, with teachers, plumbers and electricians among those taking industrial action in support of claims being made under enterprise agreements.
The office of Federal Education Minister Brendan Nelson has said fears that university academics would have to sign Australian Workplace Agreements in order to secure research funding were 'simply speculation'. But the NTEU said if the claims were true, it would 'fight this with all the means at our disposal'.
Federal Workplace Relations Minister Tony Abbott confirmed in a meeting with public sector union officials that he would be exploring options for ways to move public servants onto non-union agreements or individual contracts.
An accountant with 28 years' service unsuccessfully argued that a cap of one year's salary on his severance pay was unreasonable and unfair.
The NSW Court of Appeal ruled exemplary damages - damages over and above compensation usually awarded as a punishment - should not be ordered when employment contracts are breached.
NSW IRC Justice Russell Peterson, sitting in Court Session, found a former employee of Gabrielle Harrison, a member of the NSW Legislative Assembly, had failed to establish her case of an unfair contract involving claims of overwork, manipulation and abuse.
Awards and agreements
The AIRC has ruled that the necessary step of obtaining the consent of the majority of employees to federal enterprise agreements must be achieved after the employees have been fully informed of the implications of giving consent, in a ballot involving a number of different sites operated by Grocon.
The AIRC made an award that gives some guidance on appropriate wages and conditions for call centres. While specific to the enterprise, the result will impact on other similar cases.
Full-time adult ordinary time earnings have risen 4.7% over the past year, according to trend estimates released by the Australian Bureau of Statistic.
Federal wage deals certified in the December 2002 quarter delivered an average annualised wage increase of 4.1% per employee, unchanged from the September quarter, according to the latest report from the Department of Workplace Relations. But what has changed is a noticeably growing wage differential between unionised and non-union workers. Union-negotiated deals delivered higher AAWIs (4.2%, up from 4.1% in the September quarter) than non-union deals at 3.3%, down from 3.6%.
Women and unions
The Australian Council of Trade Unions hosted more than 500 women delegates from 90 countries, meeting in Melbourne from 18-21 February as part of the International Confederation of Free Trade Unions, which represents 158 million union members worldwide.
Keynote speakers included NZ PM Helen Clark, who outlined plans to extend paid parental leave and Victorian IR Minister Rob Hulls, who outlined the Bracks Government's work and family priorities for the term ahead.
Meanwhile, new research produced for the Labor Council of NSW shows worker attitudes toward unions have become more positive in the seven years since the Howard Government was first elected.
Parental leave options
Monash University hopes to retain women scientists by offering them $15,000 research grants to return to work after the birth of a child.
Meanwhile, a new plan has been proposed instead of a paid maternity leave scheme. The means-tested plan, which relies on factors like a child's immunisation status and a mother remaining out of the workforce for a certain time, could deliver $24,500 cash in a child's first five years, and $4000 a year as an early childhood education subsidy. Certain tax and welfare benefits would be abolished under the plan, formulated by ANU Professor Peter McDonald. It would also extend unpaid maternity leave to 18 months and give the right to part-time work to all parents with primary school-aged or younger children. Funding would be a mix of state and federal.
And newly-elected Victorian Labor MP Kirstie Marshall was ejected from Victorian Parliament during Question Time for breastfeeding her 11-day-old daughter in the chamber, under 100-year-old rules which prohibit the presence of ‘strangers' in the House.
Corporate governance
The NSW Supreme Court found a reasonable cause of action was established against the former non-executive chairman of One.Tel Ltd in the terms argued by the Australian Securities and Investments Commission. The Commission said he was better qualified and more experienced than all of the other One.Tel directors, as regards board supervision of the financial management of the Group.
Class action
The Longford gas explosion in 1998 is still being played out in the courts. The latest development was the loss of a class action in the Victorian Supreme Court by many businesses and some individuals, including some employees who were stood down, that suffered economic loss as a result of the explosion in the gas plant.
Vicarious liability
The High Court held that certain illegal acts committed by teachers while at work were not the responsibility of the schools.
A worker's record
The NSW Administrative Appeals Tribunal gave a man with a police history and a conviction for sexual assault permission to apply again to work with children after one year, instead of the five years otherwise required.
The NSW IRC criticised a service provider for attempting to put a long-standing employee on probation when it took over the cleaning contract at a Sydney St George Bank branch, and allowed the cleaner to bring an unfair dismissal action.
The AIRC refused to overturn a dismissal on operational grounds, saying the employer had satisfied its onus of proof in showing that a reason it alleged to be based on its operational requirements was justified or objectively defensible in the circumstances.
A full bench of the Tasmanian Industrial Commission confirmed on appeal that the 'foolish' sexual activity of a police officer did not impact sufficiently on his work responsibilities to justify dismissal.
The NSW IRC granted an interim injunction to a university professor who was a senior manager in a public health agency so as to put on hold any actions to dismiss him, pending the outcome of an inquiry into his conduct.
A full Federal Court had decided by majority that a reinstatement order does not necessarily require the employer to provide any work to the reinstated employee.
The AIRC has supported the Australian Bureau of Statistic's right to dismiss an employee who showed 'an obvious disregard for the sensitivities of his colleagues'.
Severance pay
The Federal Court refused to halt its proceedings involving an alleged award breach by the Commonwealth Bank and its failure to pay severance pay to a large group of former Commonwealth Bank IT workers, despite the bank arguing the matter should be stayed pending the outcome of proceedings in the AIRC to vary the award.
Transmission of business
The Federal Government has intervened in two transmission of business appeals being heard by the same Federal Court bench - Amcor and Gribbles Radiology.
More working days were lost to industrial disputes in November 2002 than the previous month, but the numbers were down substantially on those of the previous year, according to figures released by the Australian Bureau of Statistics.
The AIRC has recommended that an employer not penalise striking employees who were not informed of a Commission order to return to work, and so remained on strike, thereby breaching that order.
A full Federal Court reduced a contempt fine imposed on the CFMEU after an industrial dispute from an original $200,000 (later reduced to $120,000) to $50,000.
Qantas long-haul flight attendants stopped work for 14 hours in support of a one-off 7% productivity-based pay claim plus 3% a year. The company has offered 3% a year.
Right of entry and access
The Federal Court has stopped the CFMEU playing a role in the North West Shelf gas project in WA until the hearing of the union's right of entry case against Woodside and the site contractors.
In a case involving the meatworkers' union, the AIRC considered that it would be both logical and fair for the employer to be made aware of the nature of any suspected breach before the union exercised its right of entry.
Two communications unions will be permitted to communicate with union delegates and members via the Channel 7 e-mail system.
Victorian WorkCover released a 34-page guide to prevent bullying and violence at work, while WorkSafe WA released two similar guides, one for workers and one for employers.
A company's inconsistency in applying its OHS policies was the sole reason for the Tasmanian IR Commission recommending a worker's final warning be withdrawn.
Drug and alcohol policies
The AIRC has recommended the broad adoption of a new alcohol and drug policy proposed by a subsidiary of Capral Aluminium, after the employer experienced some poor OHS incidents due to abuse of those substances.
The AIRC ordered the reinstatement of four employees who had been dismissed after defying a workplace drug and alcohol policy, after finding they had misunderstood the penalties that might occur from such a breach.
Union bargaining agenda
Corporate governance will be a key focus for future bargaining claims by Australia's oldest union, with Australian Workers' Union delegates calling at their biennial national conference at the Gold Coast for a commitment by employers to annual 'company health checks' to protect entitlements.
Other issues the union will be pursuing this year include wage rises of at least 4% a year across all sites and a rise in super contributions to 15% within eight years; privacy regarding e-mail, psychometric, genetic and drug and alcohol testing; work and family balance; safe workplaces; the accountability of employers in cases of company collapse and protection of employee entitlements; employer contributions to a union members' education fund; changes to working hours and shifts to accommodate workers nearing retirement; and 14 weeks' paid maternity and two weeks' paid paternity leave.
The former secretary of the federal Workplace Relations Department, Dr Peter Shergold, has replaced Max Moore-Wilton as head of the Department of Prime Minister and Cabinet. For the past 18 months he had headed up the Department of Education, Science and Training, which has just signed a landmark deal with around 1500 workers giving them access to an extra eight weeks' annual leave by salary sacrifice and uncapped personal leave to deal with family commitments.
Former NSW IR Minister Jeff Shaw was sworn in as a NSW Supreme Court judge on 4 February.
Labor Senator John Faulkner was appointed Opposition Special Minister of State on 18 February, with responsibility for linking the party's parliamentary arm, members and unions.
The formerly little-known CBA executive Chris Cuffe hit the headlines when news broke of his $33m golden handshake.
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