
Issue No 73		13 October 2000

LaborNET	Ask Neale	Tool of the Week

Unions

Discrimination

By Zoe Reynolds

New to the union and the maritime industry and with only a few days casual work to live off, Stephen Rolls courageously spoke up against individual contracts during a job interview with Burnie Port Corp.

The job interview had been going okay. Stephen Rolls had all the qualifications and experience for the position. He felt pretty certain he'd been performing well during the interview. But something the two men on the panel had said at the outset disturbed Stephen. Signing an Australian Workplace Agreement (individual contract), he was told, would be a condition of employment.

At first Stephen had bit his tongue. Then he did voice concern. And when they later asked him how he performed under stress, he decided to speak his mind.

"I told them that the company was putting stress on people by forcing them to sign Australian Workplace Agreements," said Stephen.

The convivial atmosphere came to an abrupt end.

"The personnel manager suggested it would be better to terminate the interview then and there", said Stephen.

A chill in the air was broken a moment later with the second man over-ruling the first. No, he said. The interview would continue. Stephen could decide whether he'd sign if he was offered one of the positions. But the remainder of the interview was, in Stephen's words, "rather strained".

No one had to say a thing. He could read it all over their faces. They went through the motions, but Stephen could see they had already decided.

"I knew it was really all over," he said. "I just knew I was never going to get the job because of the way the interview went towards the end after I'd opened my mouth".

Stephen Rolls was already working on the wharves as a casual with Patrick. He had finished a long term job with Australian Paper in May 1999, moving to the waterfront with contractors Skilled Engineering and as a Patrick supp. He liked the work. So when he heard Burnie Port Corp was looking to take people on, he was among the first to apply.

The Port Corp handed out the AWAs to Stephen Rolls and the other prospective candidates. They were told that Port Corp would not announce who had the jobs until the signed AWAs had been handed back.

But when Stephen Rolls read the AWA he didn't like what he saw.

"It wasn't as good as the EBA," he said. "The terms of employment on offer were inferior - only four weeks annual leave (not five) and a 38 hour week (not 35)."

He rang Maritime Union branch secretary Mike Wickham and made a time to come in with a written statement.

"I would like to inform you of my concern that I may have been discriminated against at a recent interview for the port operative positions with Burnie Port Corporation due to my not agreeing to sign up to an Australian Workplace Agreement rather than working to the award that isnow in place..." he wrote.

"I was informed by the personnel officer that the position was only available provided that I was prepared to sign an AWA. I voiced my concern that would make me at odds from the rest of the workforce in what I felt would become a dispute over the rest of the workforce signing AWAs.

"We continued the interview in which I felt I had performed quite well until a question about stress was brought up..."

Down at the union rooms Mike Wickham read the statement, listened and agreed to help.

A phone call to Burnie Port Corp soon confirmed both men's suspicions.

Stephen Rolls was not one of the successful applicants.

Mike Wickham had been briefing MUA National Office. Industrial Officer Bill Giddins and National Secretary John Coombs took legal advice. Was it discrimination or duress? The union decided to take Burnie Port Corp on in the courts.

"I had cold feet at first," said Stephen. "I knew it was costing the union a lot of money. I'd only been a member a few months and was surprised they wanted to take my case on. But Mike told me we had a strong case."

Enterprise agreement negotiations between Port Corp and the Maritime Union had bogged down for some months. Management had made excuses rejecting any pay rise or improved conditions contained in the union log of claims.

Offering job applicants work on condition that they signed individual contracts was one way of undermining the union and the enterprise agreement negotiations.

Successful applicant and MUA member, Mr Kristen Donohue, had at first balked at signing an AWA. But he later told the union secretary he was 'desperate for the job'.

Mike Wickham understood his dilemma. Burnie is a small town but unemployment is high - one of the worst rates in Tasmania - ranging from 12per cent to 20 per cent for young men like 20 year old Mr Donohue. Many Burnie residents who do have jobs have to get by with only part time or casual work. "In the present climate the opportunities for job seekers in Burnie are bleak to put it mildly," Mike Wickham told the court. "I can certainly understand why Mr Donohue was desperate for the job at the Burnie Port Corp."

The union argued that the job applicants had been forced to sign under duress and that Stephen Rolls had been refused a job for saying he did not want to sign an AWA. This, the MUA solicitors argued, was in breach of the Workplace Relations Act.

The court agreed on one count - discrimination.

On August 24 Justice Ryan of the Federal Court found the Burnie Port Corp had contravened section 298K(1) the Freedom of Association provisions of the Workplace Relations Act when it declined to employ Stephen Rolls after he told an interview panel that he did not wish to be placed on an individual contract.

It was a landmark decision, setting an important legal precedent.

Union solicitors Maurice Blackburn Cashman described the decision as a blow to individual contracts. It was also a blow to the Howard Government, especially Workplace Relations Minister Peter Reith, who has been advocating AWAs as the preferred method of employment.

Solicitor Kim Parker, who acted for the Maritime Union of Australia in the Burnie case, said the ruling made it clear that employers may be in breach of the Act where suitable candidates for jobs refuse to sign AWAs and, as a result, are not offered employment.

"The Court found it was unlawful to refuse to employ someone where they would not sign an AWA because they were otherwise entitled to the benefit of an EBA,' said Ms Parker.

The decision further extends the scope of the Freedom of Association provisions of the Act. It means that in some circumstances an employer who makes a job offer conditional on accepting an individual contract is in breach of the Act.

Section 298K (1) of the Workplace Relations act provides that an employer must not threaten to refuse to employ another person because they are entitled to the benefit of an award or agreement. The union had successfully argued in court that the Corporation had refused or threatened to refuse to employ Stephen Rolls when it stipulated that the positions on offer would only be filled by those prepared to enter into an AWA.

Justice Ryan found that "Given Mr Rolls had effectively declined at interview to enter into an AWA, he fell, on the union's argument, into a category of persons who would never be accepted for employment."

Justice Ryan also found that in denying Rolls a job unless he signed an AWA, Port Corp was also denying him the benefit of an industrial agreement. MUA National Secretary John Coombs said the decision of the Federal Court was to be applauded.

"This should give people going for jobs the courage to demand that they be afforded the protection and benefits of collective bargaining agreements," he said. "And that includes representation by unions. Stephen Rolls had the balls to make a stand against a bullying employer. As a result thousands of workers nationwide stand to benefit."

During the hearings Burnie Port Corp gave an undertaking that if the court found against them they would terminate the relevant AWAs where employment was conditional on signing the contract. But Port Corp has since applied to the court to be released from this commitment.

"I felt I had been short shifted," said Stephen Rolls. "I felt I was being discriminated against. So I really appreciated the union backing me. I'm relieved we won. It is great to see the union prepared to support the little man."

The corporation has filed an appeal on the grounds that the "learned trial judge erred in fact and/or in law".

The appeal will be heard in November. And the case is such an important one that the Minister for Workplace Relations Peter Reith has notified he will intervene.

Meanwhile the Howard/Reith Government has suffered a second blow to its plans to have Australian workers move to individual contracts.

On September 28, only weeks after the MUA win against the Burnie Port Corp, the Federal Court restrained the Commonwealth Bank from signing up its employees on individual contracts. The court found the Finance Sector Union had an arguable case that the bank had breached the Workplace Relations Act by coercing the union and its 23,000 award employees to accept an inferior EBA by threatening to offer individual AWAs to those employees at a time when the EBA negotiations became deadlocked.

If the Commonwealth Bank had not been restrained it would have been the largest rollout of individual employment contracts in Australian industrial relations history.

The law firm representing the FSU were Maurice Blackburn Cashman.

Comment From John Coombs:

THE Maritime Union won a landmark case in the Federal Court on August 24, when Justice Ryan ruled that the Port Corp had breached the Workplace Relations Act by refusing to employ a suitable job applicant because he refused to sign an AWA. It was a win against Burnie Port Corp, but it was the Federal Government and Workplace Relations Minister Peter Reith who really took the blow. So much so that the minister has intervened on behalf of the Commonwealth in the appeal scheduled for November.

Standing his ground against the might of the government and the employer was one very courageous MUA member, Stephen Rolls. New to the union and the industry and with only a few days casual work to live off, Stephen spoke up against individual contracts during the interview with Burnie Port Corp.

If Burnie Port corp loses the appeal - and we are prepared to take this battle all the way to the highest court in the land - it will mean that desperate out of work men and women who are otherwise suitable for the job need no longer be bullied into signing Australian Workplace Agreements when an award or collective agreement is available to them. It is therefore not only the one brave member we are fighting for - but all MUA members and all Australian workers. Burnie Port Corp were attempting to bypass the union and force the entire workforce onto contracts. The court decision has not only foiled their tactic of undermining the pay and conditions of MUA workers in the port, but sent a very strong message to all employers contemplating following the Reith model of workplace relations.

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Issue 73 contents

Interview: Righting The Wrongs
Improving the lives of Aboriginal people can't be taken out of the context of the economy, welfare and other areas says Bob McMullan, Shadow Minister for Aboriginal Affairs.

Economics: At The Mercy Of Gamblers
The plunge of the Australian dollar relative to the greenback has consequences for Aussie workers according to Frank Stillwell.

History: Labour History Under Seige Again
The Friends of the Noel Butlin Archives Centre have recently been informed of proposed changes to the Noel Butlin Archives Centre (NBAC), changes that will cut staff by more than 50% and leave the Archives mothballed in the tunnel where the repository is situated.

Workplace: Fighting The Flexible Firm
We are told that hardship and exploitation at work is dying out, and the new economy offers opportunity, freedom and job satisfaction for all. Richard Sennett unveils the true nature of the flexible workplace.

Safety: Being bossed around is bad for your health
A survey of more than 3,000 Australian workers has revealed that some 54% of workers experience intimidating behaviour in their workplace. In almost 85% of cases it is employers, managers and supervisors who are identified as the culprits.

Unions: Discrimination
New to the union and the maritime industry and with only a few days casual work to live off, Stephen Rolls courageously spoke up against individual contracts during a job interview with Burnie Port Corp.

International: Serbian Workers and Their Unions Fight for Freedom
Serbian workers and their unions have been at the forefront of the struggle for democracy in Yugoslavia as they led a general strike in response to attempts by President Slobodan Milosevic to nullify the defeat he faced in the Sept. 24 election.

Satire: A few more years of civilised brutality will advantage Aborigines: Ruddock
CANBERRA, Tuesday: The Minister for Reconciliation Philip Ruddock has defended his comments to French newspaper Le Monde claiming that Aborigines were disadvantaged because they were late in coming into contact with developed civilisations.

Review: Poetry For Workers By Workers
Poems about the trials and tribulations of a waitress and what you learn in a chocolate factory are among the gems from the 925 anthology.

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