
Issue No 111		14 September 2001

LaborNET	Ask Neale	Tool of the Week

Trades Hall

Neale Towart's Labour Review

Our man with the Midas touch oils back the mullet and lets it rip for another crazy week in the world of IR


	Neale Towart

Is the Control Test Back in the Saddle?/Mick Shiels

The High Court decision Hollis v Vabu Pty Ltd [2001] HCA 44; 9 August 2001 effecticely overruled a decsion by the NSW Court of Appeal of 1996. The Court of Appeal observed that control test is now superseded by something more flexible and that "a person may supervise others without becoming their employer." The High Court disagreed. The decision of the High Court does reinforce the role of the control test, but more as part of the "totality of the relationship" f employment, rather than as the sole factor.

(CCH Australian Industrial Law Update; newsletter 8/August 2001)

What's Out in Outsourcing/ Kathryn Lumley

The freedom of association provisions in the Workplace Relations Act 1996 have had unintended consequences for employers, with unions having successfully employed the provisions to challenge outsourcing, restructuring or redundancy business decisions. The Federal government's aim was to attack unions forcing membership on workers. They aimed to promote the use of non-union labour. This was at odds with the ILO concept of freedom of association. Freedom of association provisions are similar to anti-discrimination provisions and discrimination arises if an employer acts because of a worker's union membership or non-membership or participation in union activities. To avoid liability an employer must prove it was motivated by purely business considerations. Another recent decision also queried the right of companies to act even on this basis, saying that the disadvantage to the workers outweighed to disadvantage to the company of keeping them on rather than outsourcing.

(CCH Australian Industrial Law Update; newsletter 8/August 2001)

Workers Entitlements/Peter Punch and Mick Shiels

Tristar, Maintrain and now Ansett have raised the problem of workers' entitlements. The differences between entitlements that are accrued rights and those that are contingent rights are outlined. Accrued leave rights would fall into the accrued rights category (accrued means here entitlements the worker already possesses). Redundancy entitlements are contingent. The different solutions to the problem and the difficulties involved with their implementation (Manusafe trust, employer levy, setting aside the redundancy entitlements, government safety fund) are briefly sketched.

(CCH Australian Industrial Law Update; newsletter 8/August 2001)

Workplace Democracy

The Lloyd Ross Forum conference Workplaces for Citizens? papers are now available at http://labor.net.au/worksite . Contributors to the conference included Mark Hearn, Bradon Ellem, Ron McCallum, Greg Patmore, Russell Lansbury and Nick Wailes. The papers discuss a range or proposals related to the ideal of providing workers with greater control over the their workplace lives, including: Australian industrial relations and workplace democracy, proposals for the establishment of Australian Works Councils and Lloyd Ross's contribution to workplace democracy as a unionist and labour intellectual

(WorkSite; Spring 2001.. http://labor.net.au/worksite

Employee Enforces Superannuation Rights/Shirley Murphy

The Australian Prudential Regulation Authority has set out guidelines for employers who deduct superannuation contributions from employees' wages. The guidelines reminded employers that they could be liable to heavy fines if they fail to send the contributions to a superannuation fund within 28 days of the end of the month and that employee members who suffer loss as a result could sue the employer.

An employee who suffered such a loss has just successfully brought a case to the Superannuation Complaints Tribunal.

The Tribunal (29 June 2001) directed the trustee to calculate and pay the employee out of superannuation fund assets any contributions deducted by the employer from his wages and not forwarded to the fund, as well as any superannuation guarantee amounts that should have been paid, with interest at the fund's earning rates.

Further details of the case are available online at:

http://scaletext.law.gov.au/html/sctdec/0/2001/0/SC001570.htm

http://www.workplaceinfo.com.au

Most AWAs have broad change agenda

Reporting on the results of a new system of classifying AWAs on the basis of 13 key variables Callus said that ACIRRT had found that about 58% of AWAs had a broad change focus.

And about 5% of AWAs went much further, containing a strong, pro-active change agenda that was informed by a strategic HR management approach, he said, in a presenting a paper, What's in an agreement? An approach to understanding AWAs written with ACIRRT colleagues Mark Cole and Kristin van Barneveld.

Callus said the more comprehensive AWAs seemed to aim not only to reform work rules but to bring about changes in organisational culture and management style.

At the other extreme, 18% of AWAs were "basic hours agreements" that had the sole aim of changing working hours.

http://www.workplaceexpress.com.au http://www.workplaceinfo.com.au

New NSW Payslip Laws Aimed at Stopping Employer Shonks.

Employers in NSW will be required to include their company name and ABN on workers' payslips from next year, after the state government responded to union concerns about some companies deliberately restructuring to avoid paying entitlements.

Failing to comply with the new payslip regulation, which applies from January 1 next year is a criminal offence carrying a maximum penalty of $2,200 for each pay slip and offence.

http://www.workplaceexpress.com.au

Government Intervention Needed on Work and Family Measures

Regulated standards should replace the current adhoc system of helping employees manage work and family responsibilities according to a report by John Buchanan and Louise Thornthwaite at ACIRRT for the Chifley Research Foundation.

The report recommends 8 key initiatives including extended paid maternity and paternity leave, provided by the government but partly financed by the employers, extending childcare subsidies and funding, giving employees scope to choose their own rosters and a level of domestic help for workers.

http://www.workplaceexpress.com.au

Bosses Need to Prove Hours Are Safe

There is clear evidence that working more than 48 hours per week significantly increases the risk of poor health, safety and social outcomes according to research by the University of Adelaide's Centre for Sleep Research.

Rather than regulating a cap on hours as has occurred in France the researchers advocate a more flexible approach. Employers should have to demonstrate that employees who work more than a threshold of hours should have the onus put upon them to demonstrate these hours are in the long term interests of the community.

The report was done for the Qld Department of Industrial Relations, and is on their website at http://www.dir.qld.gov.au

(Occupational health and Safety Update; vol. 10, no. 225, September 2001)

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Issue 111 contents

Interview: Amidst the Debris
ACTU President Sharan Burrow surveys the wreckage from a week that rocked the world.

Politics: Consequences of Empire
The horror of the events in New York has not led to all American and international observers feeling committed to bloody revenge.

Industrial: Grounded
Ansett workers lay bare their feelings at seeing their company driven into oblivion.

International: Election Results from East Timor
Fretelin as expected has topped the poll in East Timor�s first free democratic election and the violence predicted by some has not eventuated.

E-Change: 3.2 The Electronic Consumerist
In their latest instalment Peter Lewis and Michael Gadiel ask how effective has the law become in safeguarding the things that really matter to us?

Legal: Howard's Falkland War
Zoe Reynolds chronicles the bizarre tale of the Tampa and how a group of refugees bacame pawns in a bigger political game.

Compo: Round Two Begins
Nancy Searle reviews the Sheahan Report and highlights some of the areas of concern to injured workers.

Economics: Knowledge, Power, Banking
Raj Patel questions whether a new World Bank initiative is actually designed to control the way the Third World thinks.

Review: Political Theatre
The Naked Theatre Company is a youthful, adventurous, professional, Sydney theatre company committed to the development and production of Australian playwrights.

Satire: Howard US Visit "Marginally Overshadowed"
Australian Prime Minister John Howard has said his US trip was a complete success, if slightly upstaged towards the middle.

» Howard Deserts Ansett Workers

» Trans Tasman Battle for Entitlements

» Qantas Workers Move To Protect Their Entitlements

» Unions Denounce Muslim Attacks

» Fund Established for New York Workers

» Australian Unionist Lost in New York

» US Flight Crews Support Ansett Workers

» Compo: Threshold Too High

» Della Moves on Premium Evasion

» Travel Site Severs Burma Links

» Paint Company Wants Strike Declared Illegal

» Casino Staff Locked Out Again

» Tax Staff to Strike Back

» Union Applauds Deet Ruling On Clothing

» Unions Take Message to Migrant Workers

» Get Ready to Wobble

» Activists' Notebook

» STOP PRESS: Howard Rolls Abbott on Entitlements