Labour Review

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By Neale Towett - Labor Council Research Librarian

View the latest issue of Labour Review, Labor Council's fortnightly IR newsletter for unions.

Labour Review No. 15, 12 April 1999

• UK Tries to Regulate Maximum Working Hours
• Transmission of Business
• Employer Can't Escape Broad Liability
• Public Interest Defined
• Reduction in Hours and Termination
• Changes in Earnings Inequality, 1975-1998

The Working Time regulations commenced on 1 October 1998 and apply to almost all employees and many contractors in the UK.

The regulations require:

• An employer to take steps to ensure that employees do not work (including overtime) more than an average of forty eight hours per seven day week during periods of 17 weeks
• An employer to take all reasonable steps to ensure that night workers do not work more than an average of eight hours per twenty four (excluding overtime) during the reference periods
• Where night work involves special hazards or heavy physical and/or mental strain, there is a limit of eight hours in any twenty four hour period.

Failure to observe the requirements is a breach of occupational health and safety legislation.

Employees may bring tribunal hearings if:

• They are not allowed at least eleven consecutive hours away from work in any twenty four hour period
• They are not allowed at least twenty four uninterrupted hours away from work in any seven day period
• They are not allowed at least one twenty minute rest break in any work period over six hours

So far there have been problems with the regulations, including the "reasonable steps" requirement which is difficult for employers of employees with more than one job. It may require the employer to request employees to inform then of other jobs held, and if employees don't the employer would then not be liable for breaches.

The employer, if they find an excess of hours because of two jobs, may need to reduce an employees hours, which would also reduce their income.

(Work Alert; no. 4, 26 March 1999)

It has been generally accepted that for a transmission of business to occur there will be a different employer. However this view does not account for situations where the employer does not change. For example, in the FCU v Davids (NSWIRC matter no. 6281/98, 8-12-98)

The commission examined whether or not employees of a business that had relocated were still covered by an enterprise agreement that had been negotiated for the original worksite. Also the Commission had to consider whether employees from another business which had been taken over by Davids and relocated to the new site should be covered by the Davids Enterprise Agreement.

The NSW Industrial Relations Act on a literal interpretation requires new agreements if a definite location for workers covered by the agreement is specified. However, in the Atlantis Removals case (AILR 43 5-162), the Commission held that to argue that an agreement did not cover employees because the business had moved was "unrealistic and artificial".

In the Davids case, however, the relocation question was complicated by the employees who were originally employed by the company Davids took over. These employees relocated from Lidcombe to Blacktown.

Justice Marks statement in the Atlantis case seems applicable to the Davids case. Therefore if conditions for the ex-Lidcombe employees at the Blacktown site are compatible and comparable with conditions at Lidcombe, they should be covered by the Davids Agreement. This conclusion also accords with the High Court in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980-1981) 147 CLR 297 which held that the rules of statutory interpretation were no more than the rules of common sense.

(Work Alert; no. 4, 26 March 1999)

The NSW Supreme Court has confirmed a decision of the NSW Equal Opportunity Tribunal that found an employer liable for the actions of its president when he rubbed himself against a junior employee at the staff Christmas party. Justice Studdert found that the employers have a broad responsibility for the actions of employees under EEO legislation, and bear the onus of proving that they did not authorise such action. Authorise was found to mean "sanction, approve, countenance and permit". The court upheld the Tribunal finding because the woman had twice complained of the man's conduct before the party, and should have acted before the party incident. A circular had gone out which may have gone before the club board but it was incumbent on the secretary/manager to make sure the board discussed it so that all board members were aware of the consequences of such types of behaviour.

(Discrimination Alert; Issue 83, 30 March 1999)

Section 170LT(3) of the Workplace Relations Act allows the AIRC to certify an enterprise agreement even if it fails the "no disadvantage" test provided it is in the "public interest". Section 170LT(4) gives the example of an agreement which is part of a strategy to deal with a short term crisis in a particular business. A recent case found that this did not limit the use of the public interest clause. A union argued against a decision by Harrison SDP but the full bench found that the term "public interest" imports a discretionary value judgement and section 170LT(4) was not the limitation on the meaning of "public interest". (Appeal against Certification of Chubb Security - Darling Harbour Rangers Enterprise Agreement 1998; 45 AILR 3-997)

(Australian Industrial Law News; no. 3, 26 March 1999)

The AIRC has found that an employee, whose hours changed from 38 per week to 9, and whose job description changed form bistro cook to kitchen hand and dishwasher, and who then resigned, was a termination at the initiative of the employer. There was no valid reason for the termination, so the dismissal was harsh, unjust and unreasonable.

The employee worked between 38 and 50 hours per week and the management kept giving her extra work to do in the existing hours. The manager also made comments about her being stressed, and called her into the office about the number of medical apportionments she was having. Then she was given a letter reducing her hours to 13.5 per week because of her "stress". The decision was to be reviewed in 3 months. She told management she could not survive on those hours and the manager told her that she was free to find other work. After 3 months she was recalled to the office and hours were further reduced to 9 per week.

Management claimed, with some support from fellow employees, she was often crying at work. The Commission regarded such claims as vindictive. The employee felt she could no longer tolerate working there as she was sure she would eventually be dismissed so she resigned.

Reinstatement was not considered as a practical option by the Commission so compensation of 20 weeks pay in lieu of reinstatement was ordered. (Taylor v Port of Bourke Hotel, 45 AILR 4-001)

(Australian Industrial Law News; no. 3, 26 March 1999)

There has been a significant increase in earnings inequality over the past twenty five years, and in this article Keith Norris and Ben Mclean argue that the main reason is differential employment growth at different parts of the earnings distribution, rather than changes in relative wages. A picture of increases in high paid and low paid employment, with a large decrease in middle income level jobs is presented. This supports the views of those who urge the need for highly skilled workers as they are doing relatively well. However the majority of employment growth is at the low skilled end.

There has been an increase in the dispersion of earnings within occupations and between people with the same educational qualifications. An explanation for this may lie in the decrease in the proportion of unionised workers.

(Australian Bulletin of Labour; vol. 25, no. 1, March 1999)

  View entire issue - print all of the articles!

  Issue 9 contents

»	Public Speaks: We Are Not Monsters!
»	Qantas to Dump Aussie Accents
»	Carr�s Faction Call Music to Costa�s Ears
»	But Thumbs Down to Small Business Labor...
»	Blow for Reith's Anti-Unionism
»	Un-Reconstructed Unionists on Study Tour
»	Unionists to Celebrate May Day
»	Tanner to Bragg with Billy

»	Guest Report
»	Sport
»	Trades Hall
»	Piers Watch

»	Social Audit: Where's the Left?
»	Piers, Piers, Piers
»	Conspiracy of Silence?
»	Y2K plus VCR Equals SCAM

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