
Issue No 66		11 August 2000

LaborNET	Ask Neale	Tool of the Week

Trades Hall

Neale Towart's Labour Review

The latest from the mixed up world of industrial relations from the Man with the Answers.

A Novel Enhancement and a Divided Court: Award Simplification and the High Court
Employing a Contractor or Contracting to Employ?
Employee not Contractor
Class of Persons That May Be Declared Employees
Planes, Plant and Maintenance
Work and Family
Union for Managers
OHS Obligations Apply to Labour Hire Company
Rebuilding Australia

A Novel Enhancement and a Divided Court: Award Simplification and the High Court

Penny Csendrits The majority of the High Court ruled award simplification constitutionally valid. Justice Kirby strongly dissented:

"``The decision of this Court, in my opinion, breaks nearly a century of previously unbroken constitutional authority. It upholds, under the conciliation and arbitration power, direct alteration by the Parliament of an existing award made by the process of conciliation and arbitration in the settlement of an interstate industrial dispute. It allows the Parliament to change the internal balances and compromises within an award, which, in this instance, has the effect of benefiting one side in the industrial relationship. Were Parliament allowed to do so, such a change could as easily have the effect of benefiting the other side. The altered award is no longer the outcome of the constitutionally permissible process. It is now simply the product of federal legislation. The size or justice of the change is not the proper concern of this Court. But the novel enhancement of the legislative power of the Parliament is. This decision involves a radical enlargement of the federal legislative power under sec 51(xxxv) of the Constitution. That enlargement will not go unnoticed.''"

(Australian Industrial Law News; newsletter 6, June 2000)

Employing a Contractor or Contracting to Employ?

Susan J. Zeitz

The Sammartino case (as reported in Labour Review no. 42 in Workers Online no. 58, 16 June 2000) involved the development of law relating to the distinction between contracts of service (employees) and contracts for service (independent contractors). Mr Sammartino sought relief from a dismissal claimed to be harsh unjust and unreasonable, where Mayne Nickless claimed he was an independent contractor, not an employee. He appealed against the decision of Cmr Foggo to the full bench which found in his favour. The decision of the Federal Court in Konrad v Victoria Police [1999] FCA 988; (1999) 46 AILR 4-126 has altered the way the Commission approaches these cases.

(Australian Industrial Law News; newsletter 6, June 2000)

Employee not Contractor

The full bench decision in Bibic v First Interstate Security, AIRC (Polites and Watson SDPP, Smith C.) Print S7290, 22/6/2000 (unfair dismissal) has found that a security guard was an employee, not an independent contractor, after an initial decision against the guard. The Commission applied the control test by asking "whether the control exists over the nature and extent of work to be done rather than the question of how the work is done in the physical sense". Other indicators of the employment relationship included a supervisor directing Bibic on site, an obligation to work for Interstate, provision for a uniform, inability of the guard to delegate shifts or to determine his own roster, payment by Interstate of his workers' compensation and superannuation.

(Employment Law Update; newsletter 157, 27 July 2000) Class of Persons That May Be Declared Employees

A decision of the Full Bench of the Supreme Court of Queensland has kept open the possibility that a group of contract couriers working for the same employer may be deemed to be employees. The Court held that, for the purposes of sec 275 of the Industrial Relations Act 1999 (Qld), a class of persons may be defined by reference to the person or persons for whom the work is performed under contracts for services. The Court thus rejected an appeal by Australian Document Exchange Pty Ltd which argued that a class must be defined by the nature of the work performed under a contract for services.

(Australian Industrial Law News; newsletter 5, May 2000)

Planes, Plant and Maintenance

Kevin Jones

Maintenance tasks have increasingly become the responsibility of plant operators, or maintenance has been fully outsourced.

Using plant operators as maintenance workers has substantial OHS implications. Maintenance workers have generally come from a skilled engineering background and acquired skills through apprenticeships. Plant operators have knowledge of machine operations, but not necessarily of the intricacies of the functioning of the machines. Maintenance is not jus fixing machines but fixing them safely.

Contracting out maintenance may seem attractive to employers on this basis, but establishing and maintaining in house skills and knowledge is far easier and more efficient than contracting it out.

(OHS Alert; vol.1, no. 6, June 2000)

Work and Family

Andrea Rayment

The decision in Schou v State of Victoria by the Victorian Civil and Administrative tribunal seems to extend the rights of employees with family responsibilities.

Employers faced with requests for alternative work arrangements to accommodate an employee's family needs must be prepared to take reasonable steps to assess and implement requests. Technology is providing the alternative and affordable means of accessing the workplace from home. These technologies need to be considered by employers when faced with requests by employees.

In 1996 Ms Schou's supervisors had agreed that the best way to cope with the demands placed on her by an ill child and her hours of work as a Hansard sub-editor was to install an modem at home so that she could easily do some work from there.

Despite the supervisors and information technology staff agreeing to this, the Dept did not implement the request. With strains at home, Ms Schou resigned. Her argument to the tribunal was that the dept's failure to implement the request constituted indirect discrimination. She was awarded $161,307.40 for economic loss.

Two earlier decisions in different tribunal's have considered the employers obligations in similar cases and found that they must be more flexible in work and family cases.

(Employment Law Update; newsletter 157, 27 July 2000)

Union for Managers

The Managers and Financial Executives Association (MFEA) has recently been registered as an industrial organization under the Workplace relations Act. This will allow the creation of a federal award for managers and provide access to federal unfair dismissal laws. Currently the MFEA had 800 members including 200 students. Typical salaries of members range between $46,000 and $58,000.

(Employment Law Update; newsletter 157, 27 July 2000)

OHS Obligations Apply to Labour Hire Company

A labour hire company has been fined $50,000 after a worker it had placed with Warman International Ltd amputated three fingers whilst operating a circular saw. The worker had been briefly shown how to use the saw by another employee but had received no training by the labour hire company or Warman. This confirms a decision involving Drake Personnel (see Labour Review no. 26 in Workers Online no 32, 24 September 1999)

(Employment Law Update; newsletter 157, 27 July 2000)

Rebuilding Australia

AMWU

The paper suggests that the future of jobs and nation building depends on investing in education and innovation, rebuilding Australian manufacturing and ensuring Australia does not have a huge knowledge deficit in the first decade of the new millennium. The paper is developed around the themes of:

New Economy-Old Economy: myth or reality
Manufacturing to Lead the Online Economy
Need for Strategic Intervention and New Partnerships

(Rebuilding Australia: Manufacturing in the New Economy: a discussion paper/ AMWU, July 2000)

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Issue 66 contents

Interview: Shifting Sands
Michael Crosby Joint Director of the ACTU Organising Centre talks to Workers Online about the changing nature of union power, 'use it or lose it' coverage and how the ALP will have to deal with a transformed union movement.

Unions: Mission Possible
From Cambodia to Kyrghyzstan, from Malawi to Mozambique, this is one nurse who accepts certain missions where life is on the edge, and she loves it.

Economics: A Progressive Alternative
Andrew Scott outlines a policy approach for an ALP Government that aims to deliver social as well as economic progress.

International: Unions Back International Seafarer Deal
Shipping union representatives from 56 countries have decided to back a pioneering international collective bargaining agreement with ship employers.

Politics: Apolitical Myth
Over the last ten years one story about public interest in politics has found resonance, especially in the US. It suggests that people are no longer interested in political issues. Researchers from the Demos Foundation put this claim under the microscope.

Satire: Elaine Nile retires citing victory in "War on Masturbation"
There were emotional displays and many tributes paid today as Elaine Nile, Christian Democrat MP of 12 years standing, announced her retirement from the Parliament.

Review: Pure Shit
The 1970s Aussie drug classic, Pure Shit - a 70s Australian style Trainspotting - is being dusted off for a one-off showing at the Chauvel.

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» ACOSS Slams Job Network

» Scrap HECS Say Nurses

» Fahey's Flog Off Fiasco

» Things Go Better With a $100 a Day Extra

» Shopping Centre Silent Over Greedy Grab

» Selley's Workers Stick to Union

» Taxi Incentive Needed to Avert Olympic Shortage

» Sneaky Chubb Forced to Pay Redundancy

» Seaforth Picket Marks a Year With Picnic

» Road Rage! Air Rage! WORK RAGE!