MINIMUM WAGE FOR STATE AWARD EMPLOYEES TO INCREASE BY $18 PER WEEK Queensland Council of Unions & The Australian Workers’ Union of Employees, Queensland AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Others Queensland Industrial Relations Commission, President Hall, Vice President Linnane, Commissioner Edwards, 7 August 2002
A full bench of the Queensland Industrial Relations Commission handed down a general ruling on 7 August 2002 declaring that all awards be amended to include an $18 per week increase for full-time adult employees and a 3.5% increase in work related allowances. These increases are to be applied proportionally to part time and junior employees These increases are to take effect from 1 September 2002. The decision reflects the increase granted earlier in the year at a federal level by the AIRC.
REASONABLE HOURS TEST CASE Working Hours Case Australian Industrial Relations Commission, 23 July 2002, Justice Giudice (President), Vice President Ross, Vice President McIntyre, Commissioner Gay and Commissioner Foggo, Melbourne. Employees will now have a limited award right to refuse overtime hours because of family and other responsibilities. A full bench of the Australian Industrial Relations Commission has handed down a test case decision that will make it possible for employees to refuse to work overtime if it leads to unreasonable hours. The decision dealt with a claim by the ACTU that the Commission should make clauses in an award regarding reasonable hours of work, reasonable overtime and paid breaks after extreme working hours. The Commission accepted the claim but decided to make a more limited provision as follows: “1.1 Subject to clause 1.2 an employer may require an employee to work reasonable overtime at overtime rates. -
An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to: Any risk to employee health and safety; The employee’s personal circumstances including any family responsibilities; The needs of the workplace or enterprise; The notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and Any other relevant matter.”
The Commission generally accepted evidence that Australia (along with the United Kingdom and the United States) is one of the few OECD countries where there is a trend towards longer full-time working hours and that Australia has average working hours that tend towards the very top of the rankings. The Commission accepted that there are adverse health consequences associated with working long hours, particularly when associated with shift work, and there are associated effects on families and communities. The Commission said that it sought to address this issue by creating an explicit award right for an employee to refuse to work overtime in circumstances where it would result in the working of unreasonable hours. The decision applies to 14 test case awards operating across a range of industries. At this stage, the provision does not apply to employees under state awards. However, the Commission’s decision will provide a model for the amendment of all federal and state awards. FEDERAL MAGISTRATES COURT AWARDS EXEMPLARY DAMAGES IN SEXUAL DISCRIMINATION CASE Font v Paspaley Pearls & Ors [2002] FMCA 142,Raphael FM, Sydney, 23 July 2002 This case enforces the need for employers to have in place procedures to minimise discrimination claims. Ms Font was a former employee of Paspaley Pearls. She alleged that during her employment as a salesperson between September 2000 and January 2001, she had been sexually harassed and discriminated against in breach of the Sex Discrimination Act 1984 (Cth). The allegations involved unwelcome comments and certain physical actions by the retail manager of the employer. The federal magistrate accepted that the employer’s retail manager had, among other things, asked Ms Font to model a bikini, slapped her on the backside and jabbed her in the rear with a cane. The homosexuality of the retail manager was no defence. The employer conceded that it was vicariously liable for the actions of its employee.
In considering damages, the federal magistrate noted the serious failure of the employer to put in place any appropriate machinery for dealing with this type of complaint. The federal magistrate awarded Ms Font $10 000 for the hurt and humiliation she suffered. The sum of $7 500 was also awarded by way of exemplary damages because of the respondents’ insistence on putting into evidence matters designed to blacken the character of the applicant. The issue of costs is yet to be determined by the federal magistrate.
EVIDENCE NEEDED TO JUSTIFY UNFAIR DISMISSAL SMALL BUSINESS EXCEPTIONS Nicoletta Pergaminos v Thian Pty Ltd t/as Glenhuntly Terrace Australian Industrial Relations Commission, Senior Deputy President Lacey, Melbourne 16 July 2002 This case highlights the need for employers to be able to substantiate defences based on the small business exceptions in the federal legislation. Ms Pergaminos applied to the AIRC in respect of her dismissal as a cook with the employer in December 2001. The employer contended the termination was an operational requirement due to economic necessity and sought to rely on so called “small business” provisions inserted into the Workplace Relations Act 1996 (Cth) in August last year. In deciding whether a termination was harsh, unjust or unreasonable, the AIRC must consider the impact of: (a) the size of the employer’s business; and the absence of dedicated human resource management specialists in the business.
Ms Pergaminos claimed that her termination was unfair because she had been given no warning of her termination and had not been paid notice or her accrued entitlements. The employer argued that it was unable to meet its obligations due to unforeseen costs. However, the employer had been able to pay entitlements to other dismissed employees. The Commission found that the applicant had not been treated equally with other employees and the small business provisions did not override the necessity that employees be given a “fair go” when being terminated. It was not readily apparent to the Commission how the relatively small size of the business (12 employees) or the absence of dedicated human resource managers detracted from the unfair nature of the termination.
STATE GOVERNMENT FACED BY MASS OF PAY CLAIMS – ANNOUNCES REVIEW OF ENTERPRISE BARGAINING Former Prime Minister Bob Hawke has been appointed by the state government to conduct a review of enterprise bargaining in the Queensland public sector, in the wake of widespread claims for wage increases. He is due to complete his report in September and is examining 3 potential models in the review: annual economic wages adjustments with access to the Queensland Industrial Relations Commission for work value/special case applications; an awards/arbitration model; and public service arbitrations involving a mix of the above models.
Unions have said they will not take part in the review and have branded it a “panic reaction” to recent claims. In addition to its current dispute with nurses and the police, the government is also negotiating agreements with Qhealth, Qbuild, Main Roads, ambulance officers and the Education Department.
CECILIA DOYLE JOINS FIRM ROB STEVENSON GOES ON HONEYMOON Cecilia Doyle will be joining Nathan Lawyers from Monday 2 September 2002. Cecilia is an experienced industrial relations practitioner and employment law adviser who has held a senior position in the workplace relations division at Commerce Queensland (formerly the Queensland Chamber of Commerce and Industry) for several years. She previously worked in industrial and employment relations roles within the Queensland Government. Cecilia holds a Bachelor of Commerce degree majoring in industrial relations and human resource management and is currently completing her Bachelor of Laws degree part time from the Queensland University of Technology. She will be working primarily with Rob Stevenson in the workplace relations area of the firm. Rob Stevenson will be away from the firm from Friday 6 September to Wednesday 13 November 2002 for his honeymoon. He and fiancée Jan Howkins are to be married on Saturday 14 September. In his absence, employment related queries should be directed to Cecilia Doyle or to Julian Nathan. |
2002 Bulletin Archive