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| Issue No 71 |  |
15 September 2000 |
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Labour ReviewNeale Towart's Labour Review
The latest from the man with the answers.
Work Versus Life: Union Strategies Reconsidered Belinda Probert, Peter Ewer and Kim Whiting Two research projects have investigated the 'work/life' dilemmas facing teachers and finance sector workers in Australia. The studies used large scale survey data and focus group discussions. Despite the wide range of flexible working provisions in enterprise agreements and company policies in these industries, balancing work and family responsibilities is becoming more difficult. Work intensification and growing pressure to work longer hours are a feature in both sectors. These pressures have eroded the benefits of even those forms of work specifically designed to deal with the work/life issue, that is permanent part time work and job sharing. The strategic challenge for unions is then to address the attacks on the flexibility options they have developed and negotiated, and the options are made more difficult due to unfriendly federal legislation. (Labour & Industry; vol. 11, no. 1, August 2000) Agency is Employer of "Temps" The Victorian Court of Appeal has found that an employment Agency was subject to payroll tax for wages paid to "temporaries" engaged to provide services to its clients. Drake Personnel contended that the temps it provided to clients were neither its common law employees or its deemed employees under sec. 3C of the Payroll Tax Act 1971 (Vic). The Court found that the temps were employees of Drake according to ordinary concepts. Drake took responsibility for tax instalment deductions, WorkCover premiums, superannuation guarantee charge and payroll tax in respect of the temps. The Court said that whatever the reason for Drake undertaking these obligations, its doing so was consistent with the temps being employees. The Court also found that the mere fact that Drake was responsible for paying the temps for the work done was also consistent with their being its employees. (Commissioner of State Revenue (Vic) v Drake Personnel Ltd & Ors, VSCA 122, 30 June 2000) (Employment Law Update; newsletter 158, 28 August 2000) Individual Contracts, Choice and Duress Kristin van Barnveld Can an employer offer a person a job conditional upon him or her accepting an Australian Workplace Agreement (AWA)? Similarly, can an employer effectively force its existing employees to sign an AWA, by offering more attractive pay and conditions to those who do? The decision in the Schanka case indicates that employers can offer employment conditional on the acceptance of an AWA. The comments from the bench show that employers have to be careful about the circumstances in which this occurs. If there is a transfer of business involved also, the Court may take a broader view of duress. Should the offer of an AWA occur in a depressed labour market, where the potential employee's choice is unreasonably constrained, such as in the Electrix and Burine Port Corporation cases, the Court has indicated that it will consider all the facts, and outcomes are not certain. The 1995 Weipa case and the Cranbourne RSL case raised the issue of introducing AWAs to existing employees. The Court will not allow discrimination against employees for refusing to sign AWAs. (Employment Law Bulletin; issue 13, August 2000) AWAs: MUA and Burnie Port Corporation P/L AWAs were considered appropriate and necessary by the Corporation when the EBA expired. Some employees accepted the AWAs. The corporation decided to fill two vacancies and the workers were to be employed under AWAs. Six applicants were interviewed, all of whom were members of the MUA. All were told they would need to work under an AWA. One of the unsuccessful applicants, Mr Rolls, when told he would need to work under an AWA, responded that he was not happy with the prospect of being on different terms and conditions from the rest of the employees at the port and that he thought that management was putting stress on people to sign AWAs. At this point the interview was terminated. The corporation challenged the jurisdiction of the Court to entertain a claim by the union for injunctive relief under div. 7 of Pt V1D of the Workplace Relations Act, claiming that no person, other than a party to an AWA, has a sufficient interest in the observance of Pt VID to attract standing to seek an injunction to compel that observance. Justice Ryan rejected the argument. He also said that he considered that union members, presumptively subject to duress, have an interest in enlisting the support of the union to further their interests and protect them against being coerced to enter into disadvantageous AWAs. Justice Ryan found that there had been a contravention of s. 298K(1) saying: "It is clear that the corporation was concerned to render the EBA inapplicable to port operatives and cold storage operators in order to bring the wages and working conditions of the Corporation's employees at competitor ports. Further he said "the inference is irresistible that refusal to employ those who would not agree to that condition was actuated substantially, if not wholly, by a concern to exclude the appointees from the benefits of the EBA. Evidence from the Corporation has not persuaded me that Mr Rolls was excluded from consideration solely on merit without regard to his foreshadowed refusal to enter into an AWA." Maritime Union of Australia v Burnie Port Corporation P/L (Industrial Relations and Management Letter; vol. 17, no. 8, September 2000) Workplace Change and Employment Relations Reform in Australia: Prospects for a New Social Partnership? Russell D. Lansbury Reform of industrial relations has been a major part of the political economic debate over the past 20 years. Enterprise bargaining developed under the Hawke-Keating governments, with the Howard government seeking to further individualise the industrial relations area with the introduction of AWAs. Responses by employers to recent moves have varied. Some have attempted to exclude unions in areas where strong union representation has long been the norm (the waterfront and the mining industries being the leading examples). Other employers have taken the co-operative route. The greenfield Colgate Palmolive plant at Labrador on the Gold Coast is a good example of the co-operative approach. Despite a history of poor industrial relations at their old Sydney plant, Colgate did not seek to introduce AWAs in the Labrador plant but preferred to deal directly with the unions to negotiate change. (The Drawing Board: An Australian Review of Public Affairs; vol. 1, no. 1 July 2000) Australia in the Dock: The ILO's Decision on the Waterfront Dispute Jill Murray A good review of the ILO decision (full text of which is on the web at http://www.ilo.org case no. 1963 (Australia) 320th report of the Committee on Freedom of Association, March 2000). The review is divided into sections on anti-union discrimination and collusion, government involvement in the training of strikebreakers, economic limitations on the right to strike, international solidarity action, individual agreements, and the use of corporate restructuring to avoid worker rights. Murray concludes that the Committee provides a partial answer to the question of how justice can bloom in the face of corporate subversion. A rigorous legislative program committed to the full upholding of Australia's international responsibilities in the field of labour rights is needed a a starting point. (Australian Journal of Labour Law; vol. 13, no. 2, August 2000)
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   Interview: Surviving The FirestormAfter several years as the focus of some brutal politics Carmen Lawrence is back on the ALP front bench. She talks to Workers Online about her new portfolio, unions and the ALP and mud slinging in politics. History: Unions, Sport and CommunityRemember when sport was a fun way to relax after arduous labour? The fight for the eight-hour work day was based around a slogan that said, in part, eight hours work, eight hours play. The play was unpaid and unsung, but enjoyable. Politics: Global FailuresSharan Burrow told the World Economic Forum this week that the union movement acknowledges the benefits of globalisation but it's time to address the failures. International: Mobile WorkersA global IT labour shortage is throwing up challenges for both the developed and developing world. Gerd Rohde, from the Geneva-based Union Network International, is working to strike a balance. Unions: Stuffed or Stoned?In a recent dispute at the South Blackwater Coal Mine in Central Queensland CFMEU members resisted the introduction of random drug testing in the absence of a better strategy to test impairment and not just lifestyle. Review: A Perfect Circle- Mer de NomsPeter Zangari believes the music world has moved on from the simplistic chords of Nirvana and Soundgarden and the grunge scene has been obliterated. But like most other things, especially music, it re-invents itself. Satire: Silly 2000Editors demand something happen: �We�ve got 300 Olympic pages to fill and everyone is training�.
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