
Issue No 115		12 October 2001

LaborNET	Ask Neale	Tool of the Week

Trades Hall

Neale Towart's Labour Review

The preselected Candidate for Turmoil is back with a no holds barred assault on the crazy world of IR.


	Neale in a pensive moment

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Wage Trends

Average annual increases in certified agreements for the June quarter was 4.3%, up from 3.7% for the March quarter. Non-union agreements were up 4.1% and union agreements up 4.3%.

Wage dispersion: the range of annual average increases was between 3.3% (agriculture, community services and recreational and personal services) and 4.5% in mining and construction..

AWAs approved to the end of 2000: Delivered an annual average increase of 2.2%. Public sector AWAs delivered higher increases than the private sector (3.1% to 1.9%)

(ADAM Report; no. 30, September 2001)

Union Facilitative Provisions in Enterprise Agreements

ADAM includes a special survey of union friendly provisions. Half of union EAs contain explicit reference to unions. These provisions may be included elsewhere in company policy documents for example. Facilities provided for unions are also surveyed, including notice boards, office space, telephones, photocopiers and deduction of union dues. Rights of officials to enter workplaces are in about 25% of agreements.

(ADAM Report; no. 30, September 2001)

New NSW Occupational Health and Safety Act

The new legislation was passed last year and became operative from 1 September 2001-10-09

Important changes include:

� a new duty on employers to consult with employees

� a wider and more flexible range of sanctions, including the capacity to grant orders that an offender publicise an offence or undertake specified projects to address safety problems

� opportunities for victims of workplace accidents, including relatives, to make victim impact statements to a court prior to the sentencing of offenders

The duty to consult conforms with ILO Convention 155 on health and safety

Other aspects of the legislation including risk management, consultation, scope, general duties of employers and employees, offences and penalties, sentencing guidelines, enforcement, appeals against inspectors, union officials powers and coverage of the Crown. All are summarised.

(Employment Law Bulletin; vol. 7, no. 5, 2001)

The Spokes Turn: Employee versus Independent Contractor by Marilyn Pittard

Another review of the question of employee or independent contractor, especially with the recent Vabu decision by the High Court. Pittard provides a good discussion of the case, and looks at the differing views of various judges of the Court. In particular Justice McHugh concluded with the other judges that Vabu was vicariously liable, but differed from the majority in that he did not see the courier concerned as an employee. However the implications of the majority finding of the courier as an employee will impact on unfair dismissal, annual leave, sick leave and long service leave and tax instalment deductions.

(Employment Law Bulletin; vol. 7, no. 5, 2001)

Federal Dismissal Changes

Changes to the Workplace Relations Amendment (Termination of Employment) Act 2000 commenced on 1st August 2001. These changes were:

� All new employees will be prevented from making claims of unfair dismissal claims for the first 3 months of employment. A similar provision existed in the regulations, but that required employees and employers to agree before employment commenced. The new provision is an automatic exclusion. The new provision will not apply for unlawful (as distinct from unfair) dismissals

� The AIRC will be required, when assessing claims, to consider specifically the different capacities of businesses of different sizes to comply with "correct" processes

� Some constructive dismissal claims will be ruled out. For example, an employee who is demoted and continues with the same employer, but does not suffer a "significant" reduction in remuneration or duties will not be able to make a claim.

� The AIRC will be able to dismiss claims after the initial conciliation process if they have "no reasonable prospect of success."

� The AIRC will be able to dismiss claims at an earlier stage if they are beyond the AIRC's jurisdiction, where employees fail to attend hearings, or where second applications referring to the same dismissal are made.

� Lawyers and advisers who represent parties will have to disclose whether they are operating under "no win, no pay" arrangements.

� The AIRC's discretion to extend the time limit for accepting late dismissal claims will be reduced.

(CCH Recruitment & Termination Update; newsletter 29, 14th September 2001; CCH Human Resources Update; newsletter 253, 21 September 2001)

Understanding the New Privacy Laws by Joydeep Hor

An examination of the practical implications of the new privacy legislation, which commences in December 2001.

It defines personal information as information or an opinion about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion. Sensitive information includes particular types of personal information such as health information about an individual or, for example, information about their racial or ethnic origins, sexual preferences, political opinions, criminal record or trade union membership. The National Privacy Principles are outlined and some practical implications of the changes are set out with regard to personnel files, medical files, email and internet use, employee phone calls, requests for information from third parties and related bodies corporate. Training and development for employees in relation to handling and developing policies in personal information handling.

(Human Resources Management Bulletin; issue 18, September 2001)

Paid Care Ruling in New Zealand

A landmark discrimination ruling by the NZ Complaints Review Tribunal may allow families to claim payment for looking after disabled relatives. The Tribunal found that the IHC, the body that coordinated care for a disabled man, had discriminated against the man's parents by refusing to consider them for the job of paid caregivers. The IHC claimed the state Health Funding Authority had a policy of preventing family members from being contracted to provide residential services. The Tribunal did not find evidence of such a policy.

(CCH Equal Opportunity Update; newsletter 122, 11th September 2001)

Bullying in the Workplace: Recognising and Preventing It by Mary-Jane Ierodiaconou

The Victorian WorkCover Authority has recently released an issues paper Code of Practice for Prevention of Workplace Bullying has definitions and examples of bullying. The author considers what sort of conduct amounts to bullying. Bullying can be unlawful at common law, under anti-discrimination law, under OHS law and under workers' compensation law. Preventative strategies are also outlined.

(CCH Equal Opportunity Update; newsletter 122, 11th September 2001)

Genetic Testing

A recent US case has provided a significant lead in the way tribunals may look at the issue of testing. In US Equal Employment Opportunity Commission (EEOC) v Burlington Northern Santa Fe Railroad the EEOC alleged that the railroad was secretly testing workers to see if they had a predisposition to carpal tunnel syndrome. The matter was settled by the railway admitting it had tested certain employees for a genetic marker. AN agreement provided that the railway would not:

� directly or indirectly require its employees to submit blood for genetic tests

� analyse any blood previously obtained

� evaluate, analyse or consider any gene test analysis previously performed on any of its employees

� retaliate or threaten to take any adverse action against any person who participated in EEOC proceddings.

The Commission said that it "takes the position that basing employment decisions on genetic testing violates [US anti-discrimination legislation]."

Originally published in IR Update, from Industrial Relations Victoria

(CCH Equal Opportunity Update; newsletter 121, 10th August 2001)

Union Rights and Freedom of Association by Diana Rowlands

Freedom of association under the Workplace Relations Act has been a constant issue before the courts over the past 12 months or more. Diana Rowlands, at a recent briefing run by ACIRRT and Cutler, Hughes & Harris (where she is a Senior Associate) examined the legislative provisions and why they are controversial at the federal level, and also state level legislation that deals with freedom of association, right of entry of union officials. This is done in the context of the increase in outsourcing, questions of the dismissal process, and occupational health and safety issues.

(Diana Rowlands. Union Rights and Freedom of Association. Sydney: Cutler Hughes & Harris, September 2001)

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Issue 115 contents

Interview: Connecting the State
NSW IT minister Kim Yeadon is the man responsible for enabling the people of NSW. Here's how he's doing it.

Workplace: The Enemy Within
In the IT industry it's the recruiters who are earning the workers' ire, as our special correspondent explains.

Unions: From the Virtual Coalface
Computer programmer Vince Caughley argues there is a place for unions in the IT industry.

History: Conditions Precedent
Frank Bongiorno writes that the recent events off the coast of Christmas Island recall a story once told by Paul Hasluck.

International: Victims of Terrorism
Repression against trade unionists on the increase world wide, with 209 trade unionists assassinated last year, reveals ICFTU 2001 Survey.

Campaign Diary: Week One: Get Shorty
Labor's first week of campaigning was as an effort to gain attention from a nation rocked by the telvised war on terrorism.

Economics: Global Alliances
Ray Marcelo reports from India that the ILO is arguing that globalisation needs a worker and employer alliance.

Health: The Phantom Menace
Trade unions made an impact this week at an international congress In Melbourne in the global fight against AIDS.

Review: Rings of Confidence
In his study on the 2000 Olympics, Tony Webb argues that the government and unions reached a new level of cooperation.

Satire: Greens 'Quietly Unconfident' of Forming Government
A leaked memo from a senior member of the Greens reveals the party is unconfident of winning government on November 10.

» Nauru Guards Under-Paid, Untrained

» IT Workers Flock to Join Alliance

» Freeloader Fees Get Green Light

» Stark Differences on Workers Rights

» Disbelief at Royal Commission Directions

» Abbott Flees Ansett Workers

» Union Support for ALP Climate Change Policy

» Nurses Savage Howard's Neglect Of Workforce

» Optus Workers Entitlements Are Safe

» Airports' Security Front Line Deserves Better

» Workers Rally to Stop NDC Cuts

» World Road Unions Unite To Deliver Decent Work

» Aid Groups Back Western Sahara

» Trade Union Assistance for Afghan Refugees

» Activists Notebook