
Issue No 79		24 November 2000

LaborNET	Ask Neale	Tool of the Week

Trades Hall

Neal Towart's Labour Review

Industrial manslaughter, employee share ownership, stress - it's just another week in the crazy life of our Man with the Answers.

Workplace Safety; Death Can Be Manslaughter

The Victorian Government's "industrial manslaughter" proposals will make this an offence under the Crimes Act and will dramatically increase penalties for other OHS breaches. A maximum fine of $5m may be imposed for manslaughter and $2m for an offence causing serious injury. Companies will need to focus much more on OHS and how they incorporate OHS practices into management systems.

The Qld government has released a paper on "dangerous industrial conduct" which also calls for the new offence to become part of the criminal code.

Commentators have argued that the introduction of the "industrial manslaughter" offence will make it more likely that OHS agencies will prosecute and enforce compliance, as agencies have been reluctant to use existing manslaughter/murder procedures.

(Workplace Intelligence; November 2000; Occupational Health and Safety Bulletin; vol, 9, no. 205, November 1, 2000)

New US Ergonomic Rules Will Prevent Million of Injuries

Millions of workers will be spared painful repetitive stress injuries under Occupational Safety & Health Administration's new ergonomic standard for American workplaces. Issued Nov. 13 after a decade of efforts by the business community and anti-worker members of Congress to derail the rule, the standard "is the most important worker safety action developed" in OSHA's history, AFL-CIO President John Sweeney said.

OSHA estimates that some 1.8 million workers a year report such work-related musculoskeletal disorders as carpal tunnel syndrome, tendinitis and back injuries and more than 600,000 of those workers are forced to take time off from work to recover. The safety agency predicts that the new standard will prevent 4.6 million such injuries in the first 10 years.

"Workers in poultry plants, meat packing and auto assembly, along with computer operators, nurses' aides, cashiers and others in high-risk jobs, will finally have much-needed protection," Sweeney said.

"Since the passage of OSHA in 1970, the job fatality rate has been cut by 75 percent saving more than 220,000 lives," said AFL-CIO Safety and Health director Peg Seminario. "Job injury rates have been lowered by 39 percent. This new standard will also help make jobs safer and lower injury rates even more.

Seminario discussed the standard during a press roundtable Nov. 13 that included testimony from a chemical plant employee fired from her job after she suffered severe nerve damage from repeated lifting, reaching and twisting and a trade expert and writer at an Internet publishing company disabled from intensive computer work.

Business groups have argued that no scientific evidence backs up the need for the new ergonomic standard-despite years of research and studies to the contrary, including reports from the National Academy of Sciences, National Institute of Occupational Safety and Health and the dozens of hearings with hundreds of witnesses that OSHA conducted around the country this year.

But the battle over the ergonomic standard is not over, as business groups and their allies in Congress are expected to continue their efforts to kill the worker safety rules. Opponents of the new safety standard are expected to continue their fight to include a ban in the still-pending fiscal year 2001 appropriations legislation that funds OSHA that would prevent the agency from spending any money on implementing the standard. They also may take their fight to the courts.

www.aflcio.org

(Social Justice E-Zine #39, 14 November, 2000 from Kim & Ray Goforth)

High Court Sets Out Approach for Determining Transmission of Business

Whilst not formulating a general test to ascertain whether an employer has succeeded or transmitted a business or part of a business, the High Court of Australia has indicated the manner in which the question pertaining to 'transmission of business' ought to generally be approached.

The approach of the High Court is a three-step process that:

1.Identifies the characteristic of the business or part of the business

2.Identifies the characteristic of the transferred business activities in the hands of the new employer.

3.Compares the two entities.

If the third step reveals that in substance, the two entities bear the same character, then it will usually be the case that the new employer has succeeded to the business or part of the business of the previous employer.

In its long awaited decision in PP Consultants v Finance Sector Union, [2000] HCA 59, (16 November 2000), the High Court has adopted this three step process to rule that no part of a Bank's business was succeeded to, assigned or transmitted to a Byron Bay pharmacy that conducted banking activities. In this regard the High Court distinguished between the claim that the pharmacy was involved in banking activities and the claim that the pharmacy was carrying on banking business.

The ACTU has strongly criticised the decision saying "the decision is a blow for job security for working Australians and is one more example of the unfairness of an industrial relations system that would see people doing the same work but earning far

less pay and with no right of appeal," the ACTU chief, Ms Sharan Burrow, said.

(HRLINK on http://www.workplaceinfo.com.au)

Fables of ESOP: Share and Share Alike?

Employee Share Ownership schemes have just been the subject of a report by a House of Representatives Committee. Strong criticism even within the committee sows that there are many views on this issue. ALP committee members were especially concerned that the use of such schemes for large scale tax avoidance had not been addressed.

ESOPs vary widely in their structure, eligibility criteria, funding arrangements, whether options on shares at a discount are available or fully priced shares. Common to all schemes are the aims to transfer some equity to employees.

Historically they have been pretty much part of executive remuneration packages and have been more common in large public companies and in highly unionised workplaces.

Unions have often been wary of ESOPs because they fear the schemes will be used to improve the financial position of executives and not the rest of the working population. Workers' money in effect finances discount share schemes for executives, who can then push asset-stripping plans and other schemes to maximise the share price and leave the company shorn of physical and intellectual assets.

Also unions are concerned that share ownership schemes are a way of opting out of maintaining wages and conditions.

(Workplace Intelligence; November 2000)

Common Interest: Employers and Employees Overcome Traditional Workplace Divides

The Newcastle branch of the AMWU and local employers and community groups are taking the initiative on the Newcastle leg of the Make It Here Or Jobs Disappear campaign.

Amongst the campaigns goals is pressuring governments to ensure all major publicly funded projects include a minimum of locally manufactured content.

The local taskforce has so far developed a draft plan including some of the following recommendations:

� Create a NSW manufacturing industry council

� Establish an industry division of the Dept of State and Regional Development

� Reorienting DSRD structure to focus on the needs of particular strategic industries

� Expanding DSRD role to promoting industry clusters

� Adequately resourcing the Industrial Supplies Office

� Require state owned corporations to participate in the procurement strategy

� Require DSRD to address the decline in apprenticeships in NSW and other skill shortages

(Workplace Intelligence; November 2000)

Refusal to perform changed duties

This case concerned a written contract of employment and a separate specification for the position which stated that the successful employee would report directly to the managing director and be on the executive committee. Following a structural reorganisation, the issue arose whether these were essential terms of the contract because of a subsequent direction that the employee no longer report to the managing director or be on the executive committee.

The Court stated that the existence of writing which appears to represent a written contract between the parties is no more than an evidentiary foundation for a conclusion that their agreement is wholly in writing. In this case the Court also looked at the job specifications and found them to contain essential terms of the employment contract.

The employee had asserted the direction was ineffective to alter the terms of his employment contract and was summarily dismissed for refusing to accept the downgraded position. While the Court found the employee's view was wrong as to the Managing Director's power to change his duties, the question was whether his refusal amounted to ``serious misconduct'' justifying summary dismissal.

The Court did not regard this conduct as amounting to serious misconduct, misconduct sufficiently serious to justify summary termination of the contract, conduct constituting a serious breach of the contract, or as showing an intention to be no longer bound by it. Therefore the applicant was entitled to damages for wrongful dismissal.

Bruce v AWB Ltd, FCA (Sundberg J) (FCA 594; VG 654 OF 1998) 10/5/00.

(Australian Industrial Law News; no, 9/2000 September 2000)

Rural Safety

Workcover News focuses on safety on farms, with articles on dairy farm safety, keeping children safe with machinery, livestock and livestock handling equipment, hearing loss, using sprays safely, tractor operation safety and rehabilitation and rural workers.

(Workcover News; no 43, Spring 2000)

Employers' Stress Liability

Wendy Thompson

Three recent decisions show that an employer's duty to provide a safe system of work also includes taking reasonable precautions to prevent psychiatric injury. The three cases discussed in this article show that am employer that continually exposes an employee to traumatic or stressful experiences, without taking any practical steps to alleviate that risk, may be found negligent at common law and liable for damages.

(OHS Alert; vol. 1, issue 10, October 2000)

View entire issue - print all of the articles!

Issue 79 contents

Interview: Back on Track
After blowing the whistle on rail privatization, NSW Transport Minister Carl Scully is rebuilding bridges with the trade union movement.

Unions: The Problem with Organising
It may be the new mantra, but Brisbane Institute director Peter Botsman argues that organising may be the wrong to go for a movement attempting to attract a new breed of workers.

International: Burma: Workers Act on ILO Ruling
Energy workers' trade unions across the Asia-Pacific have urged Western oil and gas companies to "cease investment in Burma while the use of forced labour continues".

Economics: Rethinking Incomes Policy
While many have thrown incomes policy out with the Acoord bathwater, Graham White argues it still has a role to play.

History: What Goes Around Comes Around
Labor Council's Mark Lennon argues that while trade unions - and labour history - might be unfashionable, there's life left in both of them.

Education: Peas in a Pod
Both sides of politics must take blame for funding levels in our public schools, argues NSW Teachers Federation president Sue Simpson.

Satire: Hurley Rebukes Actors' Guild: I'm No Actor!
Liz Hurley has responded angrily to claims by actors that she crossed a picket line by filming an Estee Lauder ad.

Review: It's Only a Job
In a stunning new book, author Phil Thornton and photographer Paul Jones have combined to portray working life in all its diversity through the eyes of ordinary people like process worker Sharonak Shannon

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» Workers Ask NAB To Have A Heart

» Wattyl Happen on Monday?

» Wage Stats Back ACTU Living Wage Claim

» Deadline Approaches for Organiser of the Year

» Training Crisis - Carr Called to Action

» Cleaners Down Garbage Bags

» Shaw's Man Aims for Canberra

» Life After Seattle: A Citizen's Guide to the WTO

» Sinn Fein Deputy in Sydney