Conservative ideologues, bankers and employers determined to have their way on wages, unions & industry not-for-profit super funds

Australian unions, the successful not-for-profit super funds they administer and enterprise agreements are all well and truly in the firing line as Australia enters the 2016 election year.

The Australian, 11 January 2016:

A new clash is looming over rules that can ban millions of workers from choosing their own retirement fund as the government tries to increase choice in the $2 trillion superannuation industry.

Despite fears it will be accused of running an “ideological” campaign against funds that are backed by unions, the Coalition will move to scrap a key part of the industrial relations regime that gives unions and employers the right to limit fund choice for up to 4.7 million workers.

The push sets up a new fight in the Senate after parliament resumes within weeks, but armed with a warning from trade union royal commissioner Dyson Heydon against the “tyranny of the majority” being allowed to dictate where workers put their retirement savings, the government will insist that the choice of fund cannot remain a bargaining chip in workplace deals.

Assistant Treasurer Kelly O’Dwyer will make the issue one of four major changes to the superannuation sector this year in a reform plan that appears certain to deepen the divisions in the fund ­industry while sparking renewed objections from Labor.

Ms O’Dwyer told The Aus­tralian a government analysis indicated that 26 per cent of enterprise bargaining agreements gave workers no choice of super fund and another 5 per cent allowed only limited choice. “We think that everyone should have a choice about where their money goes — after all, it’s their superannuation, it’s their retirement,” she said. “That money should be provided to a fund of their choice.”

At stake is control of tens of billions of dollars that flow into super funds every year from employee pay packets under terms negoti­ated by unions and employers in more than 20,000 enterprise agreements that cover 40 per cent of the nation’s workforce.

The move opens a new front in attempts to overhaul the wider super system after Ms O’Dwyer last month failed to persuade crossbench sen­ators to legislate governance changes that would require all funds to appoint independent directors.

Labor and the unions have claimed the Coalition is seeking to undermine the not-for-profit industry funds set up by employer groups and unions decades ago, and which often have the advantage of being named in EBAs or as the “default” option in industrial awards……

Excerpts from Prime Minster Malcolm Bligh Turnbull, Attorney-General George Brandis and Minister for Employment Michaelia Cash, Joint Media Release - Royal Commission into Trade Union Governance and Corruption Final Report, 30 December 2015:

Today the Government announces that it will re-introduce legislation to re-establish the Australian Building and Construction Commission in the first sitting week of 2016 and will seek to have it passed by both chambers before the end of March…..

The Government will therefore introduce additional legislation to further strengthen the Registered Organisation Commission [previously rejected by the Senate].

Taskforce Heracles - the existing Federal and State Police Taskforce attached to the Royal Commission - will be funded to continue its work investigating referrals [from the Royal Commission into Union Governance & Corruption].

Seven News, 27 December 2015:

Business groups say a cut to Sunday penalty rates is now inevitable despite a potential backlash at the next federal election.

The Sydney Morning Herald, 22 December 2015:

National Pharmacies is attempting to cut pharmacists' penalty rates by as much as 50 per cent for certain hours on Saturday shifts. Double-time Sunday rates would remain in place.

The company also wants to lower overtime pay, freeze the wages of existing pharmacists and introduce a two-tiered pay scheme that would slash the wages of new employees, according to the union.

The union, Professional Pharmacists Australia, estimates the proposed cuts could trim new pharmacists' pay cheques by up to $10,000 a year…..

"The company is disappointed that enterprise agreement negotiations have failed to reach agreement,….

Liberal Party member & IPA Deputy Executive Director James Paterson appearing on Sky News on18 December 2015:

https://youtu.be/pjllmNzGoVU

As to be expected, far-right Institute of Public Affairs' propaganda deliberately forgets to mention that 87.6 per cent of public servants have a base salary which is less than $80k, as well as failing to mention that almost half of all public servants receive an employer superannuation contribution below the 15.4 per cent quoted by Paterson. See Australian Public Service Commission's 2014 remuneration survey.

How will Minister for Agriculture and Water Resources Barnaby Joyce & Nationals MP Kevin Hogan handle local opposition to Turnbull Government's move to lower penalty rates?

Electorates in Northern New South Wales, such as Page and New England have an long-established tourism component in their local economies.

Both full-time, part-time and casual retail and hospitality workers play a big part in the tourism industry in these rural and regional areas, so it is interesting to note that local opposition to the Turnbull Government’s less than subtle move against weekend penalty rates in the retail and hospitality sectors is obviously on the radar of local voters.

The Australia Institute:

Polling in key Liberal and National Party seats shows strong opposition to reducing Sunday penalty rates for retail workers, according to new ReachTEL polling commissioned by The Australia Institute.

Polling conducted across the electorates of Page, New England, Warringah and Dickson on 17th December shows that between 65% and 79% of people in these electorates want Sunday penalty rates in the retail industry kept the same or increased.

“The research underscores the political difficulty any Government faces if they allow Sunday penalty rates to be cut,” said Ben Oquist, Executive Director of The Australia Institute.

“Furthermore the consequences for lowering Sunday penalty rates for the macro economy need to be considered. Lowering the take-home pay for many low paid employees, who are more likely to spend most of their income, could lower the amount of spending in the economy with negative flow on effects for economic growth and employment,” said Mr Oquist.

Page MP Kevin Hogan initially called these local concerns a beat up.

However, with media reporting the possibility that Page and Richmond workers losing a minimum est. $12.2 million and $11.8 million in total income respectively, this was perhaps not the wisest choice of words to use in an election year.

Given that in his own electorate 74.6 percent of all those of all those surveyed and 56 per cent of those Nationals supporters surveyed wanted penalty rates to increase or stay the same, attempting to brush aside valid concern in this way looks foolhardy to say the least.

Hogan appears to have realised this by 29 December and changed his tune when speaking to a Daily Examiner journalist: "I'm very cognisant that penalty rates are very important to many people who don't earn a lot of money….For a lot of people any extra benefit they get is very important to them. I'm yet to be sold there is an economic benefit in cutting penalty rates."

A statement that only the gullible would accept at face value, as his parliamentary voting record shows that he has never once voted against Abbott or Turnbull government legislation or spoken up strongly in the House of Representatives against their policies.

The Minister Agriculture and Water Resources, Barnaby Joyce, takes a different tack by saying that any changes to workplace laws including penalty rates would be taken to an election.  

With 70.7 percent of all those of all those surveyed and 56.9 per cent of those Nationals supporters surveyed wanting penalty rates to increase or stay the same, he will have to work hard to convince his own electorate that reducing these rates is not going to hit the New England economy hard.

Across rural New South Wales a partial abolition of penalty rates in the retail and hospitality sectors would result in workers losing between $118.9 million p.a. and $220.0 million p.a. with a  loss in disposable income of between $53.8 million p.a. and $106.2 million p.a. to local economies, according to research conducted by The McKell Institute.

While I was away........

After a prolonged absence from blogging due to illness, here is a little catchup from the period July to December 2015.

* NSW Premier and Liberal MP for Manly Mike Baird puts "lipstick on a pig" by calling for an increase in the Goods & Service Tax (GST) to 15 per cent. 

* The community consultation dialogue between ratepayers and Clarence Valley Council over proposed consecutive rate rises every year for the next five years remained as colourful as ever:

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* One of Australia’s most influential women, former Federal Labor MP for Page Janelle Saffin announced she will be standing against sitting Nationals MP Kevin Hogan at the 2016 federal election. [Echo Netdaily, 23 September 2015]

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* Clarence Valley Council changed its logo to:

And not everyone was happy.               

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* Coal seam gas company Metgasco Limited finally bowed to people power and walked away from its exploration leases on the NSW North Coast with a state government compensation cheque totaling $25 million in its back pocket:

http://www.asx.com.au/asxpdf/20151204/pdf/433l1v4zvxvk8v.pdf

http://search.asx.com.au/s/search.html?query=mel&collection=asx-meta&profile=web

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* The NSW Nationals used Twitter to take credit for Metgasco’s capitulation – which saw a predictable response:

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* The strength of NSW gun laws was demonstrated to a retiree living on Palmer's Island in the Clarence Valley:

Full decision at https://www.caselaw.nsw.gov.au/decision/567386b1e4b05f2c4f04a307.

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* On 17 December 2015 The Daily Examiner published an article titled The 600 major companies that paid less tax than you, but neglected to tell its readers that it was owned by one of these very same companies, APN NEWS & MEDIA  LTD, which had an income of $310.3 million in the 2013-14 financial year.  A total of $21.2 million of this was considered taxable income, yet this company had no tax payable listed for that financial year.

http://data.gov.au/dataset/c2524c87-cea4-4636-acac-599a82048a26/resource/237d7ede-3a63-4b9b-9434-2f79b9d70ce8/download/2013-14-Corporate-Report-of-Entity-Tax-Information.xlsx

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* That one-time darling of the Liberal-Nationals federal government, Kathy Jackson, got her comeuppance:

The disgraced union leader declared bankruptcy in June, on the opening day of HSU Federal Court proceedings which resulted in her being ordered to pay $1.4m to the union as compensation for up to $2.5m misappropriated from members while she was its national secretary between 2008 and February this year.

But her discharge from bankruptcy will only remain in place for three years, meaning the HSU may be able to continue to recoup some of the money she owes after that time.

On Tuesday, Ms Jackson's bill increased by $997,349, when judge Richard Tracey ordered she pay $554,215.67 in interest, $356,500 in legal costs and $86,633.81 in appeal costs.

Brisbane-based commercial barrister Gavin Handran, listed in the most recent Doyles Guide as one of Australia's leading insolvency and reconstruction junior counsels, said Ms Jackson solicited bankruptcy too early.

"The order for costs, circa $350,000, made by Justice Tracey on 21 December is not a debt provable in her bankruptcy even though it relates to a damages award made before bankruptcy," Mr Handran said. "The HSU may accordingly enforce that order against her, perhaps resulting in her again becoming bankrupt or surrendering any assets she acquires in the interim, after her current bankruptcy ends." Mr Handran said the law applied differently to interest and costs. "She might be safe with the interest," he said.

"I suspect what Kathy Jackson did, like so many in her troubled circumstances, was that she ran off on first day and filed for bankruptcy. That was premature.

"It's particularly important for the HSU workers to understand that she's not out of the woods. The sword still hangs over her head." "Not only does she face the real prospect of re-entering bankruptcy after she emerges from this period, but there's also the possibility that the HSU, depending on a cost-benefit analysis, may examine her under oath in the Federal Court, with the assistance of the bankruptcy trustee, to ascertain whether she's transferred any assets to a third party or (her partner, Michael) Lawler." HSU national secretary Chris Brown said the union was "alive to the possibility" of Ms Jackson facing a second round of bankruptcy, or interrogation over the transfer of assets. The union was still determining how it would approach the matter. [The Australian, 24 December 2015, p.5]

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* NSW Coalition Premier Mike Baird thought his ability to waste $500,000 of taxpayers' money deserved a tweet or two:

Go to http://www.stonersloth.com.au/ to see the Australian version of Reefer Madness that Baird signed off on.

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There were 222 industrial disputes in Australia during the year ended September 2015, involving 78,000 individuals in a workforce of est. 11.7 million people. The majority of these ‘strikes’ appear to have lasted 2 days or less.

This low level of disputes does not please former prime minister Tony Abbott who, living in a time long past, argued in December 2015 for a tougher approach to breaking up illegal union pickets, saying police forces “around our country” had to be prepared to “uphold the law and not simply keep the peace … A lot of police forces have been traditionally reluctant to break picket lines where picket lines have been preventing people from going about their ordinary lawful business”.

                                                                  _______________

* Royal Commissioner Dyson Heydon delivered his discredited final report on union governance and corruption to the Australian Governor-General on 28 December. The full report can be found at: https://www.tradeunionroyalcommission.gov.au/reports/Pages/default.aspx.

It came as no surprise that Dyson Mr.Apprehended Bias 2015 Heydon decided that Kathy Jackson was really a hero who just happened to embezzle over $1.4 million dollars:

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* The independent Q&A Review Final Report released in December 2015 appears to have discovered that this ABC program is skewed in favour of the government of the day:

Conservative flying monkeys dropped from Australian skies in shock.

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* WorkChoices Mark 2 appears to be forming on the horizon ahead of this year’s federal election:

http://www.afr.com/news/politics/scott-morrison-flags-taking-industrial-relations-reform-to-next-election-20151215-gloika

Former workplace relations minister Eric Abetz says the Fair Work Commission cannot ignore calls to reduce Sunday penalty rates, if as expected the Productivity Commission recommends the move on Monday.

Senator Abetz was the workplace relations minister until the Liberal leadership change and cabinet reshuffle in September.

Speaking ahead of the Productivity Commission's release of its final report into the industrial relations system, he told Fairfax Media the review must be respected by the Fair Work Commission which sets wages and entitlements. [The Sydney Morning Herald, 21 December 2015]

The recommendations — laid out in the commission's final report into workplace relations released on Monday — would affect workers in the entertainment, hospitality and retail industries, if adopted.

The commission did not recommend any changes to overtime penalty rates, night penalty rates or shift loadings, nor changes to rates for nurses, teachers or emergency services workers.

"Penalty rates have a legitimate role in compensating employees for working long hours or at asocial times," it stated.

"However, Sunday penalty rates for hospitality, entertainment, retailing, restaurants and cafes are inconsistent across similar work, anachronistic in the context of changing consumer preferences, and frustrate the job aspirations of the unemployed and those who are only available for work on Sunday.

"Rates should be aligned with those on Saturday, creating a weekend rate for each of the relevant industries."

Announcing the report's findings, Employment Minister Michaelia Cash said the Government would examine the recommendations and, if the case for sensible and fair changes to workplace relations were outlined, they would be taken to the next election. [ABC News, 21 December 2015]

ACT Liberal senator Zed Seselja said the Coalition should argue for a cut in Sunday penalty rates at next year's election.

"The Productivity Commission has done some really important work here," Senator Seselja he said.

"I think that we should be looking to put some policies to the next election which make incremental reforms in this area that go down the path the Productivity Commission is recommending.

"In the hospitality industry, in particular, that's where I hear the most from business owners, that's where I think the reforms should be occurring, and I think that's the sort of thing that we could develop a policy to take to an election." [ABC News, 21 December  2015]

Pharmacists in Australia have voted to launch industrial action for the first time, starting Christmas Eve, as a national pharmacy chain moves to slash penalty rates. It comes amid tense debate over a proposed Australia-wide rollback of Sunday penalty rates for workers in hospitality, retail and entertainment jobs, following an inquiry by the Productivity Commission. Pharmacists employed at dozens of National Pharmacies sites across Victoria and South Australia will now become the first in their profession to take action against an employer, as anger rises over threats to their penalty rates. From Thursday, pharmacists will embark on a campaign against National Pharmacies, authorising strikes of up to 24 hours that could force the temporary closure of some sites if the deadlock continues. The campaign this week will begin with pharmacists refusing to perform a range of work duties. National Pharmacies is attempting to cut pharmacists' penalty rates by as much as 50 per cent for certain hours on Saturday shifts. Double-time Sunday rates would remain in place. The company also wants to lower overtime pay, freeze the wages of existing pharmacists and introduce a two-tiered pay scheme, according to the union. In a statement, National Pharmacies said the pressures of a competitive and uncertain marketplace had forced a need to align with the rest of the industry. [The Sydney Morning Herald, 23 December 2015, p.4]

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* It became obvious that local thoughts had begun to turn to the 2016 election of councillors:

   

                                                             
Excerpts from Clarence Valley Rate Payers, Residents and Business Owners Facebook page - featuring Deputy Mayor Cr. Craig Howe & the artwork of a ratepayer.

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With the national terrorism threat level still fixed as "PROBABLE" by the Turnbull Government, DIBP and presumably many in Border Farce took an eleven day Chrissie holiday:

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On 29 December The Guardian reported that the Turnbull ministry is three and a half months old and already there are two casualties. One looks fairly straightforward. The other, not so. In both cases, Malcolm Turnbull is well rid of them under the circumstances….

Jamie Briggs resigned after he “interacted” with a female public servant in an “informal manner” in a late night bar on an overseas trip. She complained he had acted inappropriately…..

The other casualty was Mal Brough, the former special minister of state. This is more opaque and the stink has a potential to linger given Brough has promised only to step aside, not resign…..

Background on Mal Brough “stink” by barrister Ross Bowler.

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Industrial Relations: if you thought Tony Abbott could not sink much lower....

Australian Government Productivity Commission media release, 22 January 2015:

Productivity Commission release issues papers on workplace relations

The Productivity Commission has today released a suite of five issues papers relating to its current public inquiry into the performance of the Australian workplace relations framework.

The issues papers are intended to canvas all the big questions about Australia's workplace system. The Commission has asked Australians — employees, employers, unions, people not in work and others — to give their views about the best system for the future. While the Commission seeks detailed responses from key stakeholders, people can also make brief comments and can do so by going to its web page.

The Australian Government asked the Commission to undertake the wide-ranging inquiry into Australia's workplace relations system in late December 2014.

The chair of the Commission, Peter Harris, said: 'We know people hold passionate views about workplace relations. I'd like to emphasise that the Commission is open-minded, and our approach will be evidence-based and impartial. We know that a workplace relations system goes beyond its important economic impacts, and will take account of the human and social elements of what is at stake. We are required by our legislation to account of benefits to the community as a whole, and not any particular interest group'.

The Commission's five issues papers cover all the key aspects of the system: its objectives; the safety net provided by minimum wages, awards and the national employment standards; how people bargain in the system, the protections it provides employees, its compliance costs and its institutions.

Peter Harris said that 'The system is complex and interlinked, so the inquiry must be broad ranging. But just because we raise an issue does not mean we will recommend change in that area. We plan to undertake the analysis and hear what people think, and based on that we will reach conclusions. There will be substantial opportunity for public comment on any proposals'.

The Commission has indicated that it will entertain fresh ideas. The first issues paper says that the Commission 'is open to lateral suggestions so long as they are practical, beneficial and backed by solid evidence and argument'. It also asks for lessons from other countries' workplace relations systems.

The Commission is due to report by the end of November 2015, and will produce a draft report midyear, hold hearings after the draft and seek two rounds of submissions over the course of the inquiry. It is also looking at ways to make it easier for regional Australia to participate in this process.

The Commission is seeking initial public feedback on its issues papers by 13 March 2015.

Background information

Ralph Lattimore (Assistant Commissioner) 02 6240 3242

Requests for comment / other

Leonora Nicol (Media and Publications) 02 6240 3239 / 0417 665 443

It takes minimal research to realise that the Abbott Government hopes to use The Workplace Relations Framework: The Inquiry In Context: Issues Paper 1, January 2015 as a first step in introducing Work Choices Mark II, because none of those in the ranks of neo-conservative politics or self-interested business can wrap their minds around the fact that it is the effort of workers (more than average annual investment in a business) which sees owners garner both business and personal wealth.

Make no mistake Prime Minister Tony Abbott & his merry band of fascisti are intent on attacking the basis of a fair day’s work for a fair day’s pay by dismantling minimum wages, the award system (which includes penalty rates) and National Employment Standards.

The War On Workers: and so it begins again.....

The second front forms in the ongoing Liberal-Nationals ideological war against ordinary workers and their families.

I, Joseph Benedict Hockey, Treasurer, pursuant to Parts 2 and 3 of the Productivity Commission Act 1998, hereby request that the Productivity Commission undertake an inquiry into the workplace relations framework…..

The Productivity Commission will assess the performance of the workplace relations framework, including the Fair Work Act 2009, focussing on key social and economic indicators important to the wellbeing, productivity and competitiveness of Australia and its people. A key consideration will be the capacity for the workplace relations framework to adapt over the longer term to issues arising due to structural adjustments and changes in the global economy.

In particular, the review will assess the impact of the workplace relations framework on matters including:

unemployment, underemployment and job creation

fair and equitable pay and conditions for employees, including the maintenance of a relevant safety net small businesses productivity, competitiveness and business investment

the ability of business and the labour market to respond appropriately to changing economic conditions

patterns of engagement in the labour market

the ability for employers to flexibly manage and engage with their employees

barriers to bargaining

red tape and the compliance burden for employers

industrial conflict and days lost due to industrial action

appropriate scope for independent contracting.

[Productivity Commission Review of the Workplace Relations Framework, Terms Of Reference, 19 December 2014]

Rather oddly, at present only one commissioner is listed as participating in this inquiry, Chairman Peter Harris. There is silence on who among the other eleven commissioners/

associate commissioners may also be participating.

There is also no opening or closing dates for submissions listed and no hearing dates decided as yet.

The Productivity Commission does invite organisations to register their interest here and people to make brief comment here.

One has to wonder why there was such a mad scramble to so scrappily start this process just before Christmas this year, when the reporting date is not expected before November 2015.

The reaction from the Australian Chamber of Commerce and Industry was predictable - it sees the Fair Work Commission's current review of the Fair Work Act and this inquiry as providing the opportunity to fix “major flaws” such as too high penalty rates.

Co-incidentally, the Australian Law Reform Commission (ALRC) Freedoms Inquiry released its first consultation document this month,Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (IP 46). Part of that inquiry's terms of reference include laws relating to workplace relations.

The $61 million plus royal commission into trade unions fails to get the only scalp Australian Prime Minister Tony Abbott was after

http://www.tradeunionroyalcommission.gov.au:

The Commissioner John Dyson Heydon AC QC handed his Interim Report to the Governor General Sir Peter Cosgrove at Government House in Canberra on Monday 15 December 2014.

The Interim Report was tabled in Parliament on 19 December 2014.

Royal Commission into Trade Union Governance and Corruption Interim Report–Volume 1 [PDF 5.7MB]

Royal Commission into Trade Union Governance and Corruption Interim Report–Volume 2 [PDF 11MB]

Statement of the Hon Julia Gillard - Dec 19 2014 by Bruce Wolpe

More proof that when Tony Abbott promised "Work Choices, it's dead, it's buried, it's cremated now and forever" he was lying?

More proof that when Tony Abbott promised Work Choices, it's dead, it's buried, it's cremated now and forever he was lying?

The Liberal-Nationals Coalition Government widens its political moves against unions ahead of final consideration of the Fair Work Amendment Bill 2014  and Building and Construction Industry (improving productivity) Bill 2013 by both Houses of  the Australian Parliament.

The Australian 28 July 2014:

The Abbott government has asked commonwealth agencies to supply detailed information about contact with unions, ­including during the years Julia Gillard and Kevin Rudd were in office, leaked documents reveal.

Unions last night condemned the extraordinary move, but the Attorney-General’s Department said the information was neces­sary in the event the government needed to respond quickly to the Royal Commission into Trade Union Governance and Corruption. Confidential government documents obtained by the ACTU show agencies have been asked by the Attorney-General’s Department to supply broad-ranging information by Friday about their contact with unions, including documents relating to policy development.

Agencies have been asked to detail the nature and frequency of their consultation with unions on policies and programs, negotiations on workplace relations matters, and any appointments of union officials to government ­positions.

Agencies have been asked whether they made any grants, including research grants, gifts or donations to unions over the past five to 10 years, a period covering the Rudd and Gillard governments as well as John Howard’s final term in office.

The department has also sought information about any significant property transactions between agencies and unions over the past five to 10 years.

The request seeks information about agency contact with all unions, not just the five unions being investigated by the royal commission. Agencies have been asked if they have documents relating to policy development concerning unions and payments made to unions.

They have also been asked if they possess documents that contain “credible allegations’’ of wrongdoing by a commonwealth official, including a minister, agency head, ministerial adviser or public-sector employee in ­relation to a union.

The department asks agencies if they have had direct contact with the royal commission.

In a letter to agencies, the ­Attorney-General’s Department says it was seeking their assistance to identify “potential areas of commonwealth exposure to matters being considered by the royal commission’’.

“So far, the commission has had limited attention on the commonwealth but this could change at any time should an allegation be made about the conduct of a minister, employees, agency or other matter in relation to a trade union, trade union official or member or a spate entity such as a ‘slush fund’,’’ it says.

“In the event that a credible ­allegation were made against the commonwealth, it is important that the commonwealth is able to respond quickly.’’….

Morgan Research does itself no favours by airing the Morgan Group's legal problems in public

According to the Federal Circuit Court; Sham contracting arrangements enable employers to avoid legal obligations such as payment of payroll tax, workers compensation premiums, employee entitlements and superannuation contributions.

Linkhill Pty Ltd, a holding company of the Morgan Group, was found to have engaged in sham contracting and other contraventions of law.

This is the position of a director of that company, as set out on the Morgan Research website on 20 June 2014:

Gary Morgan responds to the Federal Court decision regarding Linkhill.

In an extraordinary decision today, Linkhill Pty Ltd was fined $313,500 in the Federal Circuit Court for supposedly ‘underpaying’ ten tradespeople and labourers, who were actually paid almost $300,000 more than the Award rates and benefits to which they were entitled during the periods of their engagement.

The ten tradespeople, ranging from an electrician and carpenters to several short term labourers, were all found by Federal Circuit Court Judge John O’Sullivan to be employees (rather than contractors) and were found to have been underpaid despite each receiving payment for their services that was substantially more than their full Award entitlements (including overtime, leave and redundancy payments)…..

Excerpt from the court judgment in The Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.7) [2013] FCCA 1097 (20 December 2013):

Conclusion

238. An examination of the totality of the relationships between each of the individual workers and Linkhill, the system and arrangements pursuant to which they worked and the work practices which regulated that work, clearly establishes by reference to the established indicia that each of those relationships were in the nature of employment and not independent contractor relationships. The limited indicia which suggest otherwise do not alter or detract from the central features of the relationships established. Those central features were the fact that the contracts in issue were contracts quintessentially in the nature of contracts of employment for the personal provision of each workers labour to Linkhill. Linkhill reserved to itself control over where, when and to what ends that labour was to be directed and it directed and supervised the performance of the work of each worker on a daily basis. In providing their labour in this way, none of the workers could be said as a matter of fact to have been conducting their own business but plainly did so in the furtherance of and as part of Linkhill’s business. The fact that the workers were required to supply an ABN and did not have taxation deducted from the payments they received from Linkhill and were paid pursuant to invoicing arrangements imposed by Linkhill does not alter these fundamental features of their engagement. The true character of those relations is likewise not altered by the fact that four of the workers concerned had previously entered into written contracts with Linkhill which describe those relations as contracts for services.

239. This conclusion is supported by the evidence summarised in Part 2 of these submissions relating to what occurred at the end of the relevant period of engagement of each of Walker, Darrigrand, Elliott, Najdoski and Lowery. Immediately following the termination of their respective contracts the characterisation of which is in issue in this proceeding, each of those workers entered into a contract of employment with Linkhill. Their evidence is that, under these contracts of employment, nothing changed in relation to the work they had previously performed for Linkhill.^[653] Linkhill’s preparedness to explicitly characterise the continuing engagement and work of these individuals as being in the nature of employment, reveals the true character of the previously existing relationships. It also shows that the representations previously made to the contrary by Linkhill, considered in the next Part of this submission, at best merely accorded with Linkhill’s own preferences as to the character of its relationships with the workers, or at worst were a deliberate façade constructed by it to disguise the true character of those relationships.”

Excerpt from The Director of the Fair Work Building Industry Inspectorate v  Linkhill  Pty Ltd (No.9) [2014] FCCA 1124 (20 June 2014):

ORDERS

(1) A combined penalty of $313,500 is imposed on the respondent for the contraventions declared in The Director of the Fair Work Building Industry Inspectorate v  Linkhill  Pty Ltd (No.8) [2014] FCCA 225 for the reasons set out in The Director of the Fair Work Building Industry Inspectorate v  Linkhill  Pty Ltd (No.7) [2013] FCCA 1097.
(2) The penalty referred to in paragraph (1) is to be paid into Consolidated Revenue within 30 days of the date of this order.

By complaining of the outcome on the Morgan Research website all Linkhill Pty Ltd and Morgan Research have achieved is to widen knowledge of the court judgement and cast doubts on the conduct of the entire Morgan Group.

How safe is the Clarence Valley Council workplace?

On 19 March 2014 this letter to the editor appearing in The Daily Examiner set the alarm bells ringing, coming as it did on the heels of an earlier letter to the editor by another person and a locally reported application to the Industrial Relations Commission which led to a Clarence Valley Council employee returning to work after being officially dismissed:

Question bullying

Councillor Margaret McKenna's motion in council regarding violence against people on the basis of their sexuality is commendable (DEX, 15/3).

The violation of anyone's human rights is unacceptable in a civilised society.

Bullying and intimidation in the workplace is equally abhorrent and, I would suggest, a far more widespread form of human rights abuse.

If the good councillor were to ask just how many complaints of this kind of abuse have occurred within Clarence Valley Council over the past 12 months, she may be very unpleasantly surprised.

Bullying in the workplace can become endemic if it is not addressed forcefully and publicly. Bullying and intimidation are trademarks of an absence of quality leadership.

The impact on its victims, their families, their work colleagues, and the productivity and morale of the entire organisation is as profound as it is irreparable.

It cannot be contained or hidden.

We live in an age when social media and personal networks can negate any attempted commercial blackmail of mainstream media.

I would suggest Cr McKenna and all Clarence Valley councillors need to address an issue that threatens not only the reputation and integrity of this council but its continuance in office, and they need to do it immediately.

Ian Saunders

Maclean

Bullying in the workplace is a serious issue, but what has been rumoured since then is even more serious. 

There are allegations that the Clarence Valley Council workplace is now so toxic that some employees are quietly beginning to look for jobs elsewhere.

Some spooked by the alleged verbally abusive behaviour of more senior staff, others worried by the alleged scapegoating of workmates and some shocked by alleged threat/s of serious physical violence.

The general impression gathered is that Clarence Valley Council is no longer considered a safe workplace by sections of the wider Clarence Valley community.

I have no idea who Mr. Saunders is, but he appears to have come close to hitting the proverbial nail on the head.

If even one of these allegations has a basis in fact, it is time that all nine shire councillors addressed the issue of how and why local government workplace culture has been allowed to sink to such problematic depths.

Not happy, Mr. Shorten!

In 2003 The Howard Government introduced the Business Services Wage Assessment Tool (BSWAT) which determines the level of wages paid to people with disabilities who are employed in Commonwealth-funded Australian Disability Enterprises [ADEs].

On 21 December 2012 the Full Federal Court found that the test of competency in the BSWAT discriminated against people with an intellectual disability.

In September 2013 the Dept. of Social Security sought an exemption from the Australian Human Rights Commission to continue to use the BSWAT. A limited  exemption for a twelve month period was granted, subject to provisions.

According to the Commission an estimated 10,000 individuals with an intellectual disability have their wages assessed under the BSWAT scheme.

In January 2014 ABC News reported that the Abbott Government announced that it would make a one-off payment to intellectually disabled workers who had been unfairly paid - but only if they were not involved in the discrimination class action which was scheduled for a first directions hearing in February.

On 10 May 2014 the Abbott Government was refused leave to appeal the Federal Court judgment.

On 17 June 2014 the Abbott Government’s Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014 was passed in the House of Representatives with the support of the Opposition. This bill offers for a limited period to enter into individual agreements to pay half of the lost wages owed to any affected ADE worker with an intellectual disability.

Lawyers running a class action on behalf of supported employees with intellectual disabilities have described this legislation as "an outrageous abuse of power".

Given that ADEs pay workers with an intellectual disability as little as $0.33 per hour and given that it appears the government bill locks out any of 10,000 workers taking part in the class action from receiving the half of lost wages ‘offer’ and, will see the future wages of those workers (who receive compensation for past wage discrimination if the class action is successful) cut by about half, I am amazed that Federal Labor would endorse this legislation.

A confidential notice of motion before Clarence Valley Council piques my interest

The very last item in Clarence Valley Council’s Governance & Corporate Committee business paper for 10 June 2014 piqued my interest:

11. CONFIDENTIAL BUSINESS

20.008/14 Referrals to Industrial Relations Commission

The General Manager advises that, in accordance with Section 10A (2)(a) of the Local

Government Act 1993, that the matter be dealt with in a Closed Meeting as the matter and

information are personnel matters concerning particular individuals (other than councillor).

Scrolling through this business paper I found it concerned a motion lodged by Cr. Karen Toms.

So my fingers took a walk down Google byways using keywords from the listed item and this is what I found:

http://www.dlg.nsw.gov.au/dlg/dlghome/documents/Circulars/07-09.pdf

http://www.gtcc.nsw.gov.au/webcomm/files/attachments/BusinessPapers/2007/June/R5-Letter_April2007.pdf

Could it be that there is yet another argument brewing over the degree of control the General Manger is exercising with regard to the flow of information concerning council industrial relations disputes/adjudications/legal costs?

Given a recently discovered management error of judgement, one wonders how the next General Manager's Performance Review will pan out.