The Oi Group - IR NEWS BLOG

The Fair Work Ombudsman has launched a prosecution against the Transport Workers Union of Australia (TWU) and one of its officers, Neale Harper for allegedly organising unlawful industrial action at McColl’s Transport’s Wetherill Park depot in western Sydney during the full working day of February 16, 2009.

It will be alleged that the industrial action was conducted in objection to McColl’s Transport dismissing an employee, who was a TWU member, on February 13, and that such action was unlawful because it occurred prior to the expiry of the McColl’s Transport employees’ enterprise bargaining agreement.

It will also be alleged that Mr Harper breached workplace laws by failing to return his Permit to Enter and Inspect Premises within 14 days of it expiring in 2008.

The three breaches of workplace laws by the TWU and four breaches by Mr Harper carry maximum potential fines of $33,000 per breach for the union, and maximum fines of $6600 per breach for Mr Harper.

The case is listed for a directions hearing on February 2.

Boags Brewery (Mr Allan John Button v J Boag & Son Brewing Pty Ltd – U2009/12078) was ordered to reinstate an employee (Mr Allan Button) after his employment was terminated by the Company because he could not perform the inherent requirements of his role. Mr Button was apprehended for driving with a blood alcohol reading in excess of the prescribed limit on 7 August 2009, which was after the time the Company had decided to terminate employment – but before the actual termination occurred.

Mr Button, who had been employed for just over 4 years, submitted that he had successfully been performing modified duties in his role of brewery operator for approximately 8 months.

The Company, through a number of witnesses, claimed that it was unaware that Mr Buttons’ restrictions were permanent.

Senior Deputy President (SDP) Kaufman of Fair Work Australia heard the unfair dismissal case and in addition to witness evidence, considered a number of doctors’ and occupational therapist’s reports. SDP Kaufman found that the Company witnesses’ claims in regard to the permanent or temporary nature of the modified duties, seemed to be Continue reading →

The Full Bench of Fair Work Australia has agreed to an application to vary the following awards:

• Manufacturing and Associated Industries and Occupations Award 2010;
• Nursery Award 2010;
• Pastoral Industry Award 2010;
• Timber Industry Award 2010; & the
• Wool Storage, Sampling and Testing Award 2010

so as to include Westscheme Pty Ltd as a default fund for superannuation contributions.

For the benefit of members, the following Awards have recently been adjusted by decision of the Australian Industrial Relations Commission. Please note that Awards are in alphabetical order and there may be more than one decision for any particular document. Please click on the links below to open any award change.

Australian Public Service Award 1998

B&E Ltd Award 2005

Bendigo Bank Award 1999

BNP Paribas Award 2005

Colonial Group Enterprise Award 2003, The

Colonial Retail Network Multi-Site Franchise Interim Award 2000

Connect Credit Union Award 2004

CONNECT Credit Union Award 2004

EDS Information Technology Award 2000

EDS Information Technology Award 2000

Electricians &c. (State) Award

GIO Australia Award 2002

Insurance Employees (Clerical Indoor Staff, RACQ and RACQ-GIO) Award 1999

Insurance Officers (Motor Accident Insurance Board) Award 1998

Metropolitan Newspapers (South Australian and Tasmania) Printing Award 2003

Metropolitan Newspapers (South Australian and Tasmania) Printing Award 2003

Metropolitan Newspapers (South Australian and Tasmania) Printing Award 2003 [Transitional]

National Australia Bank Group Award 2002

Perpetual Trustees Award 2000

Pizza Hut - SDA National Employee Relations Award 2000

Continue reading →

Federal Magistrate Philip Burchardt has fined both the sole director, Kurt Braune and Crown Trading Group Pty Ltd, trading as Hobart’s Macquarie Motor Inn for underpaying a former assistant manager.

Crown Trading was fined $52,800 and Kurt Braune a further $10,560 after they were found to have underpaid the former employee a total of $28,441 in overtime and annual leave entitlements.

Crown was also ordered to back-pay the worker $8041 still owing, plus $5846 interest.

The Federal Magistrate commented in his decision that the case called “very strongly for general deterrence, … because the industry itself was notoriously difficult and that a number of similar cases involving underpayment were being presented before the courts. The facts before the Magistrate, inclusive of a general demeanour that strongly suggested to the Magistrate that the employer offered no contrition did not assist the situation, which came about when the former assistant manager complained of that she was working up to 70 hours a week from October, 2004 to August, 2007 but being paid for only 40 hours, with the rest of the time banked.

NSW Chief Industrial Magistrate Gregory Hart has declared that a Newcastle company director David Tape had shown “no trace of remorse” for his failure to provide employees with such basic entitlements as a regular payslip, and had shown an “arrogant disregard for the welfare of his employees”.

The director’s company, Newcastle Bakehouse was ordered to pay a $17,000 penalty by January 1 after finding the company deliberately failed to keep proper employment records.

Further CIM Hart found the company had “consistently ignored or rebuffed” efforts to comply with its legal obligations.

The Court had previously heard allegations from former employees that the Newcastle Bakehouse regularly withheld a week’s pay from staff, but refused to pay it back when workers left the business.

Former employees also alleged that staff were frequently not paid for all hours worked and that the company failed to pay sick leave and annual leave entitlements.

CIM Hart noted that the company’s failure to maintain proper time-and-wages records may make it extremely difficult for underpayments to be calculated – but that they could amount to tens of thousands of dollars. Continue reading →

The Australian Industrial Relations Commission has now finalised all of the stage 4 Modern Award components including the Miscellaneous Award 2010.

This Miscellaneous Award 2010 will commence operation across Australia from January 1, 2010.  It is designed cover employees who are not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards (including State awards). In their final decision the Commission decided to include a new clause in this award which removes a number of managerial and professional employees completely from its coverage. That clause (4.2) states:

The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

Guarantee of Earnings statements should still be presented to employees in these areas who are earning over $108,300. The National Employment Standards will also commence from January 1, 2010 and will cover non-award employees as well as all National System Employees.

All employers covered by the national workplace relations system are obligated to give each new employee a Fair Work Statement before, or as soon as possible after, the employee starts employment.  This obligation is one of the 10 minimum standards of the National Employment Standards (NES) that apply to all employees from January 1, 2010. Together with Modern Awards, the NES will provide the new safety net for employees.

A copy of the statement is available by clicking here.

The Statement may be:

• given personally to the employee
• sent by pre-paid post to the employee’s residential address or a postal address nominated by the employee
• sent to the employee’s email address at work or to another email address nominated by the employee
• send a link or a copy of the statement by email to the employee’s email address at work
• faxed to the employee’s fax number at work, fax number at home or another fax number nominated by the employee
• another method that ensures delivery, such as by courier providing that there is a signed receipt by the employee of the Statement.

Employers should retain details (proof) of how the Statement was given.

Failure to give the Statement to a new employee as specified above is a contravention of the Fair Work Act and can attract significant penalties

Queensland Parliament has passed laws that transfer responsibility for industrial relations from the State to the Commonwealth.

From next year, the Federal Government will take control of industrial relations for private companies and some government-owned corporations (GOCs) in Queensland.

The NSW Office of Industrial Relationshas gazetted December 26 (Boxing Day) which falls on a Saturday this year to the following Monday December 28.  This means most workers will be entitled to have a 4 day holiday from Friday December 25 (Christmas Day) through to Monday 28 inclusive.

In the case of Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd (U2009/4528) Ms Dover-Ray (Applicant) filed an unfair dismissal application on 15 June 2009, and her former employer Real Insurance (Respondent) filed a notice of motion to dismiss the application on jurisdictional grounds – stating that the termination was not at the initiative of the employer.

By way of background, in early 2009 the Applicant made a complaint about a colleague and the complaint was investigated company CEO. During the investigation the Applicant who had engaged a solicitor was sent three letters. The first letter informed the Applicant that the complaint had not been sustained.

The second stated that the Respondent had concerns about comments the Applicant had made on her Facebook page during the investigation process which the Respondent believed were directed at the Respondent’s handling of the Applicant’s complaint. The second letter also raised the issue of alleged unsatisfactory conduct of the Applicant during the investigation and asked the Applicant to show cause before 5pm Tuesday, 5 May 2009 as to why she should not be summarily dismissed from the Company.

A third letter followed up by asking whether the Applicant could recommence work given her attitude, and the letter also sought out whether the Applicant wished to resign, and if so the letter gave settlement terms in relation to resignation.

The Applicant responded on 5 May 2009 stating that she didn’t accept the decision and would appeal. Continue reading →

Mr Russell, who was dismissed from his employment because he did not report damage to the roof of the trailer of the truck he was driving prior to it being noticed by another employee (Mr Rendell), placed an unfair dismissal claim with Fair Work Australia (Russell v Dyers Gippsland Transport U2009/10074). The case was heard by Commissioner Whelan.

Mr Russell commenced employment in December 2007 and gave evidence that on the day his employment was terminated (July 1, 2009) he was delivering refrigerated goods in the Frankston area and there were gusty winds with heavy rain. He returned to the dairy area of the depot and noticed Mr Rendell looking at the trailer. Mr Russell looked and saw the damage and claimed it was the first time he had noticed it. Mr Russell then moved the truck to the dry goods area and parked outside the office. Mr Rendell was in the office talking to Mr Dyer, and after Mr Dyer left, Mr Rendell called Mr Russell into the office and pointed out the damage and Mr Russell said that he had only just noticed it.

Mr Rendell’s evidence was that Mr Russell was expected to report the damage prior to taking the trailer back to the dairy area because it would then be hard to know who was responsible for the damage. It was Mr Rendell’s evidence that Mr Russell told him he had hit a tree doing a delivery in Frankston and when asked why he hadn’t reported it, Mr Russell said he was going to.

Mr Rendell and Mr Dyer decided to terminate Mr Russell’s employment immediately. It was noted that Mr Russell had a previous warning for not reporting damage to a vehicle and he had been involved on 8 occasions where damage had occurred to the vehicle he was driving. Mr Russell had also had two previous written warnings.

In the unfair dismissal case, Mr Russell claimed there was no valid reason for the termination and he was not given procedural fairness [no opportunity to respond]. Continue reading →

Mr Dzuy Nguyen placed an unfair dismissal application in the Australian Industrial Relations Commission (Dzuy Nguyen v Chesterville Hot Bread Bakehouse U2009/4365) in relation to the termination of his employment on 4 June 2009. It was heard by Commissioner Lewin.

There was some uncertainty on Mr Nguyen’s application relating to which grounds he was applying under so the Australian Industrial Registry wrote to him seeking information as to the grounds he was claiming under. Mr Nguyen replied on June 11, 2009 claiming unlawful termination under s.661 of the Workplace Relations Act 1996.

A conciliation conference was eventually set for September 15 – after numerous adjournments were granted in relation to earlier dates. At the conference Mr Nguyen indicated that the application was to be pursued in relation to S.661 of the Workplace Relations Act – Employer to give notice of termination.

Settlement was not reached at the conciliation and a Certificate was issued which stated that Mr Nguyen had 7 days to elect to proceed (as per the statute) to Federal Magistrate’s Court or Federal Court. The Certificate was however issued with correspondence from the Associate to Commissioner Lewin. The correspondence wrongly stated that Mr Nguyen had Continue reading →

Deputy Prime Minister Julia Gillard and the Rudd Government have agreed to support the Australian Services Union in a major test case that seeks pay rises of up to 37% for the 200,000 mostly female workers in the Community Sector.

The case is set to be heard by the new industrial umpire, Fair Work Australia and will involve the presentation of an appropriate equal remuneration principle for the federal jurisdiction. The Government whilst throwing its support behind the case has reserved the right to argue for less than the 37% increases requested by the union. The pact between the two parties will be tabled before Fair Work Australia in Melbourne today.

The results of the test case will likely trickle down or directly relate to workers currently not in the federal jurisdiction as a result of the Fair Work Amendment (State Referrals and Other Measures) Bill 2009 that is currently before Federal Parliament.

Please click below for a full report of the story in today’s Melbourne Age Newspaper.

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Community work pay push
andBy MISHABEN SCHNEIDERSSCHUBERT
The Age
05 Nov 2009

FORTY years after Australian women won the right to equal pay, the Rudd Government will back a major test case seeking hefty pay rises for 200,000 mostly female workers in the community sector. In a pact with the Australian Services Union, Deputy…read more…