|Issue No 81||08 December 2000|
Neale Towart's Labour Review
Workplace theft, drug abuse and redundancy - it's nearly Christmas and Neale's going crazy!
McCallum weighs up contending "freedoms" in industrial relations. The Workplace relations Act appears to have contending freedoms, the freedom to manage and the freedom of association. Undoubtedly the freedom of association provisions were drafted with the intent of attacking unions, to break down so-called closed shops. Unions have, however, been able to use these sections to defend their rights. McCallum looks at the BHP dispute and the Commonwealth bank dispute to illustrate how the unions and the Federal Court have played out the varying interpretations. He concludes that these cases highlight the necessity for rules concerning the recognition of trade unions. The Act erroneously seems to say that freedom of association only protects membership, but not the right of collective bargaining. "This type of argument is akin to saying that freedom of religion protects the right to be a member of the church, but not the right to practice the faith through attending religious worship".
He also calls for more authority for the AIRC, which has been nobbled by Reith. The Federal Court is seen as ill equipped to deal with ongoing disputes
Changing Hours Drive Employer Bargaining
Working time arrangements are the 'one overwhelming issue' on employers' agenda when they enter into enterprise bargaining negotiations, according to the Australian Centre for Industrial Relations Research and Training.
Ron Callus, Director of ACIRRT, told a Sydney conference today that most employers ultimately wanted their agreements to facilitate changes like annualised salaries, 12-hour shifts, expanding ordinary hours, and time off in lieu instead of overtime.
Callus said some 83% of Australian Workplace Agreements had a clause dealing with working time arrangements. His analysis is drawn from various sources including the recent joint ACIRRT/Australian Business Ltd research, concentrating on small to medium enterprises; a Business Council of Australia survey focussing on large businesses; and research conducted for the Office of the Employment Advocate.
Callus told delegates at the Enterprise Agreements Update Briefing 2000 he could not come to grips with the 'crucial' question of why employers moved to Australian Workplace Agreements.
'I can't understand rationally why in a large organisation you'd choose AWAs over a non-union certified agreement, which is a much easier process', he said. 'It's not entirely a rational decision-it has to do with a belief system.'
Similarly, the research showed an 'almost universal belief' that enterprise bargaining brought about change, although there had been no perceived change in skills, output, productivity of profitability.
Man Who Resigned After Plant Sold is Owed Redundancy
The NSW IRC has found that BHP Refractories acted unfairly in refusing to pay redundancy to an employee who resigned to accept another job after being told the plant he worked at was being sold.
Justice Roger Boland accepted the man's evidence that he believed he wouldn't be offered a position with the new owners, and that he left BHP with "deep sorrow" to avoid uncertainty about his future.
A woman at a nearby BHP plant (that was being closed down) also left early but she received redundancy. The man claimed that in applying two different policies on the availability of redundancy packages - and doing so purely to protect its own interests - BHP breached the NSW IR Act's s106 unfair contract provisions.
He ordered BHP pay the man what he would have received if he'd been given redundancy in April 1998, plus interest. He refused to take into account what the man had since earned, saying that would "perpetuate the unfairness inflicted on the applicant".
Justice Boland also found the man had made out a case for the payment of proportionate long service leave under s4(2)(1)(iii) of the Long Service Leave Act, accepting his claim that he resigned because of "domestic or pressing necessity". He ordered BHP pay him 7.58 weeks. The company has to also pay costs.
David Pearce V BHP Refractories Pty Ltd, NSW IRComm235. (23 November, 2000)
The AIRC has set a checklist for determining whether a probationary period exceeding three months is reasonable. Issues to be considered include:
· The nature of the job
· Entire circumstances of employment including the situation at the date the employment commenced
· Employee's previous experience, training and employment
Pisa and Merritt v Country Fire Authority (2000) AIRC Print T0960, 19-9-00
It has been held that a three month probationary period for someone employed as a storeperson was excessive, with 6 to 8 weeks being considered reasonable. It was also held that a period of work experience before employment was offered should be taken into account.
Frattinin v Mission Imports (2000) SAIRC no. 1295 of 1999, 16-5-00
Earlier rulings from the AIRC on probation are discussed in Corrs Workplace Relations for November by Linda Paterson. Other key factors in longer probationary periods are the seniority of the position, the amount of supervision, degree to which the quality of the performance is immediately apparent and the practices in the relevant industry. The nature of the job is the key factor.
If a probationary period is to be extended then this time must have been determined in advance for a maximum specified period.
Commissioner Eames of the AIRC has also noted in Irving v Paspaley Pearls Properties Pty Ltd (AIRC, 8 Dec, 1998, D Print Q9496) that "if a probationary period is to be attached to employment, it ought to be spelled out at the outset. In my view, it should be committed to writing at the outset, so that both the employer, and employee, know very clearly what the circumstances are."
(Recruitment and Termination Update; newsletter 26, 17 November 2000)
(Corrs Workplace Relation; November 2000)
Drug Addicts Have Rights, Too
The massive overreaction in the national media and by some politicians, including the NSW Premier, to a Federal Court ruling on a former heroin addicts expulsion form a club is inappropriate, says Leigh Johns from Mallesons Stephen Jaques.
The Court found that drug dependency was a disability, bringing it under the umbrella of federal and state anti-discrimination legislation.
Johns said it was an unremarkable decision that the court had found drug dependency to be a disability and thus workers were entitled to the protection of anti-discrimination laws.
"In certain circumstances, if you were to find out at the recruitment stage that someone had a drug addiction, you would treat them like anyone else who with a disorder or a disability.
"The next inquiry you would make is whether they are able to perform the inherent requirements of the job and if they are able to do that?then they ought to be entitled to be employed."
(Occupational Health and Safety Bulletin; vol. 9, no. 207, 29 November 2000)
Lack of Robbery Prevention Measures Putting Workers At Risk
Employers are putting workers in danger by failing to adopt basic robbery prevention strategies, the Australian Institute of Criminology has warned. Adam Graycar, AIC director says armed hold-ups are significant concerns for business, but some are not doing enough to reduce the risk. He was speaking at the launch of the AIC workplace violence handbook, which focuses on the prevention of robbery. Risk control measures suggested by the AIC include:
· Restricting public access to cash and stock handling areas
· Installing alarms and surveillance systems
· Keeping cash to a minimum
· Developing a crisis response plan
· Training staff in how to respond during and after robberies
· Keeping emergency phone numbers close to the phone
· Requiring the reporting of suspicious, violent or unusual behaviour
· Providing additional security for staff working at night
The level of risk varies between jobs and industries, so planning must consider each circumstance. Failure to take precautions is traumatic for employees, and can be expensive for employers because of workers' compensation claims and legal action for failure to provide a safe workplace.
(Occupational Health and Safety Bulletin; vol. 9, no. 207, 29 November 2000)
Interview: Back to Work
After a stretch of unemployment following the 1996 election, former Keating Minister Robert Tickner is now helping others find work.
Media: Reality Check
Aiden White, head of the international journalists' union, argues that online journalism presents a new set of challenges for organising.
Economics: In the Same Boat
In an unprecedented move, a coalition of industry, community and trade union groups have joined forces to address long-trerm unemployment.
International: Nepalese Hotel Workers Ask for Support
Hotel workers in the small Himalayan nation of Nepal have finally decided to vent their anger and call a general strike for Monday - over a 21 year old dispute.
Unions: Speaking in Tongues
Labor Council's Mark Morey outlines the successful campaign by local government workers for a community language allowance.
History: Fighting Words
The anti-conscription campaign of 1914-18 tore the ALP apart; but this was not the first time the labour movement took a militantly anti-war stance.
Politics: A New Socialism
In an extract from his new book, political economist Frank Stilwell argues the need for a new radicalism to counter the Third Way
Satire: Roy Slaven on the Rampage
John Doyle's history of the ABC stretches back to a 1958 evening in Lithgow on which he was "scared shitless" by Blackboard on Mr Squiggle.
Review: Mauled in the Bear Pit
Vengeance may be sweet but it is always made better when you are able to write a book about yourself that also provides the opportunity to dump a bucket load on those who undertook your removal.
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