17/11/06: States and territories shore up their defences in wake of High Court ruling

20/10/06: Lawyers hold court on Work Choices

18/10/06: OWS revs up wages breaches claims


Workforce, Issue 1565

Reporter: Steven Andrew

States and territories shore up their defences in wake of High Court ruling

Vic has joined SA in giving in-principle support to a proposal by the Qld Govt for a constitutional convention to sort out state and federal powers in the wake of this week’s High Court ruling. A spokesperson for NSW IR Minister John Della Bosca told Workforce on November 16 the NSW Govt had “yet to make a call” on the proposal. Qld acting premier Anna Bligh raised the prospect of a convention in a doorstop interview earlier this week. SA premier Mike Rann backed the proposal and took it one step further, floating a possible 2008 meeting date after the federal election. The Vic Govt on Nov 15 gave in-principle support, with premier Steve Bracks saying the state would “be happy to not only discuss the High Court decision on industrial relations powers but also to look at the totality of powers of the Commonwealth” if re-elected. Earlier in the week, an election-mode Bracks told state voters a Liberal govt in Canberra and Vic would “spell disaster” for working families in this state in the wake of the High Court ruling. He said the state govt had introduced a total of 10 bills in recent months to protect state workers from Work Choices, ranging from outworker legislation to public sector award entitlements (WF1563). In WA, Employment Protection Minister John Bowler vowed the WA Govt would continue to oppose Work Choices despite the High Court finding. “The Carpenter Govt will be doing whatever it legally can to protect workers from these extreme laws,” Bowler said. Tas Minister for Justice and Workplace Relations Steven Kons said the only way Tas workers can now get rid of the legislation was to “vote Mr Howard and his govt out-of-office at the next federal election”. In the ACT, Chief Minister Jon Stanhope condemned Work Choices as “the biggest attack on the rights of working men and women in a century”. In the NT, Public Employment Minister Paul Henderson said the dismissal of the legal challenge was “bad news” for territory workplaces. Federal WR Minister Kevin Andrews, meanwhile, has dismissed the state and territory reaction to the High Court ruling as “knee-jerk and shrill”. Andrews said the Labor states had been predicting the “sky would fall” for 12 months now - and it hadn’t happened.

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Workforce, Issue 1561

Reporter: Steven Andrew

Lawyers hold court on Work Choices

While the jury is still out on whether Work Choices in its current form will satisfy the appropriate “constitutional” tests, Workforce thought it timely to ask a few members of the IR legal fraternity their views on the first six months of the legislation. This is the final of three reports asking employers, unions and now lawyers and the judiciary about their views on the early days of the legislation.


Full force of Work Choices yet to be felt: Munro

Former senior deputy president of the AIRC Paul Munro believes the full impact of Work Choices has yet to be felt, with a tight labour market, “transitional arrangements”, and a concern by employers “not to be seen to be exploiting workers” masking the effects of the legislation. Munro told Workforce “relatively few informed commentators” expected the High Court to reject the constitutional basis of the scheme. But the probability of some disruption to elements of the scheme was “sufficiently strong” to create uncertainty. “That uncertainty feeds the hesitancy of employers to exploit their new powers,” he said. “Predictably, the retail, hospitality and services industries have made most use of the opportunities thus far presented (see Retail and accommodation the biggest users of AWAs for under 15s), aided no doubt by easily churned workforces.” Munro said state govts, especially NSW and Qld, appear to have consolidated policy around resistance to not only Work Choices’ nationalisation of industrial regulation - but to any future installation of a unitary system by federal govts. “On the other hand, it is plain that an alternative policy to Work Choices could be framed to build on the constitutional framework of the existing legislation, substituting a different set of employer, worker and public interest right/duty relationships, without reverting to the former dispute settling model,” he said. Measures encouraging the use of state tribunals under common law contract arrangements - and the “process cost advantage” of public alternative dispute resolution (ADR) providers over private ADR providers - have yet to make their mark, according to Munro. “It is early days for both factors … the Federal Magistrate’s Court jurisdiction has also scarcely cut its teeth as yet.”


Autonomy of tribunals ‘under attack’?

Munro said one of his biggest concerns was the long-term impact of the govt’s policy on tribunals, courts and other IR institutions. “No-one ought pretend that there are no precedents for inappropriate and reprehensible appointments by state and federal ALP govts,” Munro said. “However, the extent to which the Howard Govt has unashamedly stained institutions by staffing them in a blatantly partisan manner is likely to prove one of the more enduring damages associated with Work Choices. It is destructive of Australia’s commonwealth and public administration.” Munro said a number of appointees owed their appointments to past services for political or employer entities “indelibly associated with reducing collective bargaining strength in the labour market”.

Changes positive for the economy: Napper

PricewaterhouseCoopers employment law partner Neil Napper believes Work Choices has been a positive for the economy, particularly in the areas of agreement-making and unfair dismissal. “Agreement-making is definitely easier under the new system - it does away with unnecessary layers while leaving in the protections,” Napper said. “The employment market has continued to grow under Work Choices, refuting claims employers would use the legislation to remove workers.” Napper said the pre-Work Choices unfair dismissal laws were particularly onerous on employers, with Work Choices’ introduction of genuine operational reasons an “important step” towards balance. Napper said a big issue emerging was increasing state legislation “in counterpoint” to Work Choices. “It is still uncertain to what level Work Choices overrides state legislation. There may be some clarity when the High Court releases its ruling, but it may take case-by-case litigation before we see the true picture.”

Agreement reaching tainted: Pasfield

Slater & Gordon practice group leader for industrial and employment, Phillip Pasfield, disagrees agreement-making under Work Choices is simpler. Calling the legislation “overly complex and unfair”, Pasfield said new agreement-making provisions hamper workers and employers trying to freely reach deals, particularly in one enforceable document. “The legislation has encouraged unscrupulous employers to sink to new depths in their behaviour to their employees. Some think the legislation is just a green light to act as they please without any regard to fairness and good conscience,” he said. “The lack of access to both the federal and state cmns in the dispute resolution process is also most notable for those organisations previously in state systems,” he said.

Cases in limbo due to uncertainty: Phillips

State Chambers barrister Jeff Phillips said a considerable amount of his advice work was devoted to what particular aspects of the legislation could mean, with very little work in court dealing with the legislation itself. This was the consequence of proceedings being delayed in the NSW IRC and the Industrial Court of NSW due to the impact (or uncertainty about the impact) of Work Choices, in particular unfair contract claims under s106 of the NSW IR Act. Phillips said the passing of NSW Govt legislation deeming employees of statutory organisations employees of the NSW govt service had provided some safeguards for NSW employees. “Also, a lot of private employees have been persuaded to sign referral agreements of industrial disputes to be determined by the NSW IRC rather than the AIRC,” Phillips said. “The full impact of Work Choices, however, will not be felt until after the High Court delivers its decision on the states’ and others’ challenges to it, and until after the next fed election if the Fed Govt is returned to office.”


Bullying complaints a ‘shift in focus’

Nichola Constant of Cutler Hughes & Harris has welcomed the removal of unfair dismissal for employers with less than 100 employees, saying it was an unnecessary burden on small business. However, she said there appeared to be an increase in the number of clients defending themselves against bullying complaints, suggesting a shift in focus by workers. A number of employers had sought advice on hidden traps in the new laws, including obligations re transmission of business notifications and new requirements re accrual of personal leave, she said.

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HR Report, Issue 380

Reporter: Steven Andrew

OWS revs up wages breaches claims

After a slow start that saw the opposition accusing the Office of Workplace Services (OWS) of spending time responding to media stories rather than initiating its own investigations, the IR watchdog has launched a series of prosecutions.

In the space of 10 days, the OWS released five press releases confirming it had launched seven prosecutions, five in Vic and two in WA.

In one of its latest announcements, the OWS said the Vic Magistrates Court had ordered Australian Ophthalmic Supplies Pty Ltd (Merringtons) to pay six current and former employees a total of $17,564 in underpaid wages and other entitlements and an additional $5,353 in interest.

OWS director Nicholas Wilson welcomed the ruling as a "clear win" for the OWS and a "reminder to employers to comply with the obligations required of them under Work Choices". He said a related application for a Federal Court injunction preventing the company "causing duress" to an employee due to be appear as a witness in the matter would be heard on October 26.

Vic Magistrate Kate Hawkins ordered the disbursements to be paid within 30 days. The order was made in response to claims the company failed to apply the correct award to the employees. A hearing to consider penalties against Merringtons has been adjourned until Feb 2007.

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Remuneration & Reward Strategies
Remuneration & Reward Strategies
Author: Steven Andrew
Publisher: CPD
Country: Australia

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