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  Issue No 107 Official Organ of LaborNet 17 August 2001  




.  LaborNET

.  Ask Neale

.  Tool of the Week

Trades Hall

Neale Towart's Labour Review

Our recovering IR afficianado cleanses his soul by scouring the darkest recesses of the world he knows so well.


Terminating Injured Employees by Anthony Powter and Sam Kennedy

For a termination of an injured employee to be legal:

· dismissal must be for a valid reason

· the worker must be allowed to respond to any reason relating to their capacity or conduct

· the employer must follow rehabilitation policies and procedures in a fair and reasonable manner

· the worker must be given reasonable notice of dismissal

· dismissal must not be harsh, unjust or unreasonable

The article outlines the federal and NSW legislation, and outlines the case of Harvey v Blayney Abattoirs (1994), where An employee was dismissed whilst undergoing rehabilitation and was reinstated by the NSWIRC.

(CCH Australian Industrial Law Update; newsletter 7, July 2001)

Privacy Act Amendments

Ron McCallum recently highlighted the need for stricter privacy laws ans policies in the workplace, saying that Australian laws, despite recent amendments, still lag behind European standards.

Recent amendments to the federal Privacy Act, to take effect from 21 December 2001, are designed to protect personal information. This article outlines the scope of the changes.

(CCH Australian Industrial Law Update; newsletter 7, July 2001)

Casual Employees: a long-term problem for employers? by Peter Punch and Mick Shield

The Dymocks' Case in the NSW Industrial Relations Commission overturned the view that a casual employee with less than 6 months service on a "regular and systematic basis" had no right to access unfair dismissal provisions of the NSW Industrial Relations Act. The result is that the facts and circumstances of each case have to be taken into account. For example, a period of work on a casual basis for an employer that is less than 6 months may, in some industries, not be regarded as employment "on a casual basis for a short period."

A recent move by the full bench of the AIRC to refer a case about casual employment to the Federal Court to determine the validity of regulations about unfair dismissal and casuals with less than 12 months service could also improve the position of casual employees.

(CCH Recruitment and Termination Update; newsletter 28a, 2 August 2001)

Court Identifies New Transmission Argument

Justice Catherine Branson, in ruling on a transmission of business, indicated that the court could partly rely, when trying to determine whether a transmission has occurred, on the IRC's acceptance that a business was a single business for the purpose of registering an enterprise agreement.

In her ruling, Justice Branson for the first time indicated that the Court might be able to partly rely - when determining whether the "business concerned" had been transmitted - on the Commission's acceptance of the status of a business as a single business for the purposes of registering an enterprise agreement.

"In my view, the phrase 'the whole or a part of the business concerned' in par 170MB(2)is intended to refer to the whole or a part of the 'single business, or a part of single business' referred to in par 170LI(1)(b). That is, in the circumstances of this case, the 'business concerned', within the meaning of par 170MB(2)(c) of the Act is the operation of the [coal washery]".

However, she instead used the test set out in PP Consultants and found that

the part of the business operated by a contractor retained the same character as it had under the original employer and owner.

Construction, Forestry, Mining and Energy Union v Henry Walker Eltin Contracting Pty Ltd, [2001] FCA1009 (2 August 2001)

Unemployment, Job Insecurity and Health

Three papers from a conference held last year in Newcastle on unemployment. These papers look in particular at health effects. Unemployment imposes considerable social costs on society and on individuals, many of which don't appear in standard national accounts figures.

Elizabeth Harris and Mary Morrow look at the evidence of the impact of unemployment on the health of the unemployed, their families and society and provide strong evidence for a causal link between unemployment and ill-health.

Stephen Morrell, Andrew Page and Richard Taylor examine the link between unemployment and youth suicide. Then Philip Bohle, Michael Quinlan and Claire Mayhew extend the analysis to the effects of job insecurity. This is important because the numbers of workers who hold insecure jobs far outnumber the officially unemployed.

(Economic and Labour Relations Review; no. 12, no. 1 June 2001)

No Case to Answer: Productivity Performance in the Australian Construction Industry by Phillip Toner, Roy Green, Nic Croce and Bob Mills

The CFMEU commissioned this study in response to the Productivity Commission report that claimed high levels of union membership is bad for productivity levels in the industry. The recommendations of the Commissions' report are seen as leading to an exacerbation of structural features in the industry that will further constrain productivity growth. The study finds that the Australian construction industry is within the top three OECD countries in terms of construction output per employee.

(Economic and Labour Relations Review; no. 12, no. 1 June 2001)

Trends in Income Inequality in the 1990s

National income inequality increased between 1990 and 2000. Changes were primarily due to strong growth in incomes among those at the top. Census data and tax office statistics between 1986 and 1996 shows growing regional inequality with above average growth in the incomes of individuals in the most affluent 10% of postcode areas.

In response to these and other statistics, the ACTU is seeking to move beyond the Living Wage case to assist low paid workers and argues that there is a case for tax relief for low-income families through a GST rollback and targeted income tax relief, possibly a tax credit system.

(Trends in Income Inequality in the 1990s/Ann Harding: paper presented by the Business Council of Australia 'Future Directions' Seminar, 13 August 2001. NATSEM Conference Paper no. 6, 2001. Social Action issue 218, July 2001)

Fitness for Duty - Recent Legal Developments by Jim Nolan and Kylie Nomchong

Medical examinations have long been a pre-requisite but preemptory testing for a variety of conditions throughout a workers career often without any manifest signs of unfitness are becoming a feature of many workplaces. The most controversial is random drug testing, particularly in the mining industry. Many regard this kind of testing as the precursor of genetic screening and more controversial interventions in the workplace.

(ACIRRT Working Paper no. 69;


*   View entire issue - print all of the articles!

*   Issue 107 contents

In this issue
*  Interview: What's The Deal?
Labor's IR spokesman Arch Bevis explains how a Beazley Government will rebuild our broken system.
*  E-Change: 2.3 The State of the Union
White hope or white elephant? The future of trade unions is by no means guaranteed in the networked society.
*  Industrial: Into the 21st Century
ACTU President Sharan Burrow looks at the landmark deal delivering workers 12 months paid maternity leave.
*  Unions: The Black Hole
Jim Marr goes inside Stellar to discover the human cost of a management philosophy that says: you are on your own.
*  History: The Age of Dissent
The Sydney Branch of the Australian Society for the Study of Labour History has organised a Conference on Social Protest Movements and the Labour Movement, 1965-1975.
*  Media: ABC and the Knowledge Nation
Tony Moore looks at how the national broadcaster's fortunes are closely linked to the Knowledge Nation Agenda
*  International: Brazil´s C.U.T. - When Big Is Beautiful
The CFMEU´s Phil Davey drops in on Brazil´s equivalent to the ACTU, the Central Unica Dos Trabalhadores (CUT).
*  Satire: Bracks Disputes Cabramatta tag
Victorian Premier Steve Bracks has called for a national council to decide on a location for Australia's drug capital.
*  Review: Globalisation Is Globalisation
In an extract from his book, Christopher Shiel argues that the official Australian perspective on globalisation is strikingly narrow.

»  Labor's Entitlements Pledge: Trust Will Remain
»  Ripped Off Workers Start Election Push
»  Stellar Out of Line: Hamberger
»  It’s a Record! Longest Ever Bank Queue
»  Still No IR at ABC Radio
»  Qantas Threatens Bangkok Workers
»  WorkCover Report Delayed Two More Weeks
»  Unrest in Hospitals Over Contracting Out
»  Paid Baby Leave Sparks New Family Push
»  Nurses Pay Action Hots Up
»  Costello's Couriers March to Canberra
»  'Man Who Worked Too Hard' Wins Back Job
»  Soldiers Suffer Dodgy Bog
»  Union Backs Call For Safety Review
»  Cleaner Wins Annual Leave Rights Dispute
»  Tip Top's Not the One
»  Flying High: Airport Guards Scoop Cash
»  Union Presence At Big Indian Community Fair
»  Activists Notenbook

»  The Soapbox
»  Sport
»  Trades Hall
»  Tool Shed

Letters to the editor
»  The Shark That Cried Woolf
»  The Plight of Casual Teachers
»  Belly's Back!

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