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COLE REPORT INTO BUILDING AND CONSTRUCTION INDUSTRY RELEASED The federal government has released 22 volumes of Royal Commissioner Terence Cole’s report on his inquiry into the building and construction industry in Australia. The Royal Commissioner was damning in his assessment of the current state of the industry saying there was widespread lawlessness and disregard for the law by all parties in the industry, including various government departments.
Matters involving 31 individuals have been referred for possible criminal prosecution. The Commissioner identified: 392 separate instances of unlawful conduct by individuals, unions and employers; 25 different types of unlawful conduct; and 90 types of inappropriate conduct.
The Royal Commissioner found there is an urgent need for structural and cultural reform in the industry. He considered that structural reform was needed to ensure that bargaining occurs at the enterprise level rather than on a pattern basis, mechanisms are needed to ensure greater responsibility for unlawful industrial action, disputes should be resolved in accordance with the law rather than by application of industrial or commercial pressure and there needs to be an independent body to act as an umpire in the industry. The Royal Commissioner recommended a wide ranging reform package including special legislation, the creation of a body to monitor conduct in the industry and act as an independent umpire and the introduction of “industrial democracy” at the enterprise level. It appears the government will act quickly to implement the findings. Copies of the report and its principal findings can be accessed at www.royalcombci.gov.au.
EMPLOYERS TAKE NOTE: WAGE REVIEWS BEING CONDUCTED BY WORKCOVER WorkCover Queensland has the authority to conduct investigations and inspections to monitor employers’ compliance with the legislation. Audits are currently being undertaken on employer records to ensure that correct premiums are being paid according to the number of employees and their actual wages. The following documents are some of those being requested by WorkCover for inspection: Trading statements/profit and loss accounts; Payment summaries and PAYG payment summary statements; Wages books and/or payroll reports; Fringe benefits tax returns and workings; Details of any voluntary employment agreements, salary sacrifice arrangements, termination payments and allowances; Details of suppliers including the total amount paid to each supplier; and Work papers detailing how the declared wage figures were derived.
Significant penalties apply for failure to supply correct information to WorkCover. Employers are urged to ensure that their internal records are in order and up to date information has been provided to WorkCover for premium calculation purposes.
REGULAR AND SYSTEMATIC HOURS NOT INCONSISTENT WITH CASUAL STATUS Joel Fleur v. Blairgrove Enterprise Pty Ltd – Burwood Hotel Australian Industrial Relations Commission, Senior Deputy President Harrison, Sydney, 26 February, 2003 The applicant had been employed as a casual bar attendant from October 2001 to August 2002 when his name was removed from the work roster of his employer and he was told his services were no longer required. Upon his making application for reinstatement/compensation to the AIRC, the employer sought to have the application dismissed on the basis the applicant was a short term casual. The Workplace Relations Act 1996 (Cth) excludes employees from the unfair dismissal jurisdiction where a casual employee has been employed for less than 12 months. Similar provisions apply under the Queensland legislation. The job had been advertised as being for nightshift work on an ongoing and regular basis, midnight until the early hours of the morning, six nights a week. . . A roster was set at the beginning of each week and the applicant worked an average of 36 to 38 hours a week nightshift. He was paid the casual rate and was not paid sick or annual leave. Shortly after the commencement of his employment, the applicant signed a tax file number declaration recording that his employment was casual. In dismissing the applicant’s case, SDP Harrison did not consider the facts that the applicant’s name appeared on a roster and that in many weeks he worked in the vicinity of 36 hours to be decisive. He confirmed that it was not inconsistent with casual employment for there to be a possibility of the employee’s work pattern being regular and systematic, particularly when other circumstances indicating casual employment were present.
SCOPE FOR EMPLOYERS TO PAY UNFAIR DISMISSAL COMPENSATION BY INSTALMENT J Meyer and R Meyer v. Creswick Christian Camp Australian Industrial Relations Commission, Commissioner Whelan, Melbourne, 21 February 2003 This case highlights the discretion of the Industrial Commissions to allow payment of an award of compensation by instalments where there are genuine financial reasons for allowing the employer to do so. Here, the AIRC had decided the termination of the applicants’ employment was harsh and awarded compensation of $2300.00. The respondent employer (being a charitable organisation) was given the opportunity to lodge submissions about the period it needed to pay and the amount of instalments it could make. The employer submitted that, based on their financial situation, they could pay $30.00 per month, which would take over 6 years to pay the award. The employer did not produce any documents to justify its submission and it was rejected by the Commission. However, even in the absence of material from the employer, the Commission was prepared to allow the award to be paid within a reasonable time. Whilst this employer was charitable in nature, there is no reason why other employers who can demonstrate the genuine nature of their request, should not be able to seek the exercise of this discretion.
REDUNDANCY – CONSIDERING ALTERNATIVES TO TERMINATION Rosemarie Atkins v. Ausdata Pty Ltd Australian Industrial Relations Commission, Commissioner Grainger, Melbourne, 28 February 2003 This case highlights the need for employers to be fair in considering possible employment alternatives for redundant employees. The applicant worked as nightshift manager in a company which looked after the scanning and data entry requirements of other companies. By mid 2002, the only work she supervised was for Coles Myer. Due to structural changes within Coles Myer, the majority of this work was transferred from the night shift to the day shift and the majority of night staff were transferred to work during the day, with the exception of the applicant. The applicant was a permanent employee whereas the dayshift supervisor was a casual. The employer made the applicant’s position redundant and did not offer her the daytime position. The employer took into account her relative lack of experience with a broader range of clients and consequent need for further training but did not tell the applicant about this. The Commission found that there was a valid reason for the termination of the nightshift supervisor position given the reduction of work. However, the company had erred in not providing the applicant with an opportunity to address the reservations held about her capacity to perform in the dayshift position and not disclosing them to her at the time of redundancy. Whilst not considering the dismissal to be harsh, the Commissioner considered it unjust as the applicant was selected for redundancy partly because of her capacity to perform another position without having been consulted or given an opportunity to respond to the company’s concerns.
HOW TO REDUCE WORKERS COMPENSATION COSTS A simple guide for employers has been developed by the Australian Industry Group, WorkCover Queensland and Q-COMP. The purpose is to heighten awareness and knowledge of the Queensland workers compensation claims management process amongst Queensland employers. The guide covers such areas as: Setting up a safety management program; Injury reporting and investigation; Notifying WorkCover; Access to claims information; Claims determination; and Provision of rehabilitation
The guide can be downloaded from the WorkCover Queensland website in the Whats New section www.workcover.qld.gov.au or contact Rob Stevenson or Cecilia Doyle for a copy. |
2003 Bulletin Archive