Showing posts with label Fair Work Commission. Show all posts
Showing posts with label Fair Work Commission. Show all posts

Monday, 12 March 2018

Employer groups put pressure on Turnbull Government to stifle union mergers

In 2017 members of the Construction, Forestry, Mining and Energy Union (CFMEU), The Maritime Union of Australia (MUA) and the Textile, Clothing and Footwear Union of Australia (TCFUA) considered a proposal to amalgamate into one union or alternatively to amalgamate only the CFMEU and the MUA.

The ballot was conducted by the Australian Electoral Commission (AEC) and results declared on 28 November 2017. There appears to have been no irregularities affecting the ballot outcome.

The Fair Work Commission handed down a decision giving effect to the CFMEU and MUA amalgamation on 27 March 2018.

Employer groups Australian Mines and Metals Association (AMMA) and Master Builders Australia (MBA) are now appealing the Commission’s decision.

The Australian, 9 March 2018, p.2.

Employers have taken legal ­action to try to overturn the Fair Work Commission decision ­approving the merger of the construction and maritime unions.

The Australian Mines and Metals Association and Master Builders Australia yesterday ­appealed the decision to a ­commission full bench.

The employers are also seeking a stay of the decision, which, if granted, would mean the merger would not proceed from its scheduled date of March 27.

The AMMA and MBA say the commission decision contained errors of laws and should not have approved the amalgamation.

Maritime Union of Australia national secretary Paddy Crumlin said the unions would vigorously oppose the appeal and defend the rights of workers to have freedom of association.

“Our members have overwhelmingly supported this amalgamation (with the CFMEU) and it should be up to them to decide whether they merge,” he said.

Former employment minister Eric Abetz welcomed the ­appeal, saying the government should intervene in the proceedings in support of the employer application. He said the government should move urgently to pass laws subjecting union ­mergers to a public interest test.

Workplace Relations Minister Craig Laundy said the government would resume talks with Senate crossbenchers in a bid to win support for the bill, which has yet to be put to a vote.

AMMA is lobbying for an amendment to the bill designed to have the public interest test take affect before March 27 but Mr Laundy declined to express a view on the proposed amendment.

The Australian, 8 March 2018:

Employers have accused the Turnbull government of being missing in action after the Coalition failed to pass laws subjecting union mergers to a public interest test.

Workplace Relations Minister Craig Laundy said today the government would resume talks with Senate crossbenchers in a bid to win support for the bill, which has yet to be put to a Senate vote.

 “The Ensuring Integrity Bill remains a priority for the Government, but because of Labor’s opposition we need the support of the crossbench,’’ he said.

“Despite what has been said in recent days, the Government simply didn’t have the numbers to pass the Bill. I am reaching out to the crossbench to see if that has changed.

Friday, 21 July 2017

A reminder to rural and regional businesses that there always needs to be a valid reason based on fact for dismissing staff

Excerpts, 14 July 20017

[42] In dealing with unfair dismissal claims over the past 20 years a handful of cases remain memorable because of their particular circumstances. In some instances, the case was remarkable because of the manifest absence of valid reason for dismissal, usually accompanied by deplorable procedural deficiencies. In other cases, the audacity of the employee to make complaint about their dismissal was consistent with a history of misconduct that provided unassailable valid reason for which the individual should have been dismissed much earlier. Unfortunately, this case will join the ranks of those elite few which forever remain ignominiously memorable…..

[52] Employees are human beings and not human resources. A machine or item of office equipment might be quickly discarded if it is broken or malfunctioning. However, an employee is entitled to be treated with basic human dignity, and advice of the termination of employment by telephone or other electronic means should be strenuously avoided so as to ensure that the dismissal of an employee is not conducted with the perfunctory dispassion of tossing out a dirty rag……

[59] In summary, this case has involved a very regrettable absence of valid reason for the applicant’s dismissal. Further, it has been highly lamentable to observe the seriously flawed manner in which the employer first determined, and then conveyed the decision to dismiss the applicant. The circumstances of this case provide strong foundation for argument against any lessening of legislative protections for unfair dismissal, a proposition which seems to regularly resurface, and gain a level of publicity that is disconnected with reality.

[60] Regrettably, the dismissal of the applicant was harsh, unjust and unreasonable. Thankfully, the applicant is a person protected from unfair dismissal, and she is entitled to have the Commission provide an appropriate remedy.

Thursday, 13 April 2017

Fair Work Commission 2017 Minimum Wage Review - heads workers lose, tails workers lose?

Fair Work Commission (FWC) website 10 April 2017:       

Every year an Expert Panel of the Fair Work Commission must review modern award minimum wages, and set a national minimum wage order for employees not covered by enterprise agreements or modern awards.
Each national minimum wage order made in an annual wage review comes into operation on 1 July in the next financial year, and continues in operation until the next national minimum wage order comes into operation.

The minimum wage hourly rate currently stands at $17.70 – and yes, we all probably know of an adult who is not even receiving this.

The  FWC Annual Wage Review 2016-17 (C2017/l) is being conducted by:

The 2017 final minimum wage decision will be handed down in sometime in June coming into effect on 1 July.

Here is the preliminary hearing dealing with transitional instruments and relevant to annual wage reviews and existing arrangements for employees with disability DECISION.

Shorter version of this decision is:

go away little low-skilled people and don’t expect a minimum wage rise larger than that which we gave you in 2013, 2014, 2015 or 2016 - if you are lucky it will be somewhere between 41-50 cents an hour for an estimated 196,300 low-paid workers;

as for workers with a significant disability - too hard, we’ll pass the buck.

Of course if Justice Iain Ross, Adam Hatcher et al listen to the business sector this year then these 196,300 workers will only receive about a 20 cents an hour increase.

Tossing a silver coin in the air right now……….

Friday, 31 March 2017

Turnbull Government opposes rise in minimum wage because 9 out of 10 Australian workers on a low wage are NOT from highest income households

The Daily Telegraph, 30 March 2017:
Read the full article here.

Other statistics the Turnbull Government helpfully offered up to the Fair Work Commission in its submission of 27 March 2017:

* More than 50% of low income workers are in the bottom 1-4 percentiles of the 1-10 percentile range of household incomes;
* 20% of all female workers and 15.5% of all male workers are low-paid;
* 26.7% of all low-paid women and 30.3 % of all low-paid men were in the bottom two deciles of household incomes (ie. these households are likely to have an average disposable income of less than $300 to no more than $375 per week);
* 24.7% of all low-paid workers with a partner are the only breadwinner in the relationship; and
* 46.9% of all low-paid workers have children living at home, with 35.9% having dependent children ranging in age between under 1 year and 17 years of age.

Based on the figures cited in the government’s submission (much of it derived from 2012-2014 data) it appears Liberal and Nationals members of parliament and senators are quite content with the fact that so many of their fellow Australians live in either absolute income poverty or relative income poverty, while they enjoy parliamentary base incomes in excess of $195,000 per annum plus allowances and entitlements.

Friday, 24 February 2017

Will cuts to Sunday penalty rates become a textbook example of unintended consequences?

ABC News, 23 February 2017:

Let's start by calling a spade a spade. Sunday penalty rates have been cut by the Fair Work Commission. Not "equalised" or "brought in line" with Saturday rates. Cut.

Business, big and small, has been seeking this cut for years, saying Sunday penalties are a legacy of a bygone era where families went to church — one that's costing them a tidy sum.

They also argue it's a legacy that's been costing jobs, with many employers choosing not to open on Sundays, or to maintain just a skeleton staff (although ask yourself, just how many retailers, restaurants, cafes and bars are actually shut on Sunday?).

But the cuts to Sunday penalty rates could become a textbook example of unintended consequences, where a move supposed to increase employment instead hurts the economy and increases business failures and job losses.

Why? Because the hundreds of thousands of retail and hospitality workers affected by this decision are also customers.

What do you think happens when you cut someone's pay packet by as much as 25 per cent for their Sunday shifts?

(For a typical permanent retail worker on the award who always works Sunday shifts this will cut their annual pay by about $3,500).

They either have to work more, or they have to cut their spending to match their new, lower wage.

Given that unemployment is stubbornly high at 5.7 per cent, and underemployment is near record levels, it seems unlikely they'll actually be able to get more work to make up the lost pay — and, remember, these staff already work Sundays, so it's not like they'll benefit from any increase in jobs on that day.

According to the Australia Bureau of Statistics (ABS) an est. 850,300 people were employed in the accommodation and food industry sector in November 2016 as their main job and another est. 1.25 million people have their main job in the retail sector [ABS 6291.0.55.003 - Labour Force, Australia, Detailed, Quarterly, Nov 2016].

An est. 54.7 percent of female employees in the accommodation/food industry work part-time and an est. 45.3 per cent males do likewise. While in retail an est. 54.6 per cent of females and 45.3 per cent of males work part-time.

In accommodation/food businesses part time employees work for an average of 16.1 hours while in the retail trade part-time employees work for an average of 16.7 hours.

Underemployment appears to be highest in the food and hospitality sector, third highest in the retail sector and females highest in both sectors. [Workplace Gender Equality Agency, Gender composition of the workforce: by industry, April 2016]

Females with only one job were more likely to work on weekends - 73% compared to 68% for males.

These statistics tend to confirm that “hundreds of thousands” of single person and family households will be hit by cuts to Sunday penalty rates as set out in the Fair Work Commission’s 4 yearly review of modern awards – Penalty Rates Decision covering Hospitality, Fast Food, Retail and Pharmacy Awards and, I have no doubt that their loss of income will affect local economies to a significant degree.

Award Sunday Penalty Rate

Hospitality Award full-time and part-time employees: (no change for casuals) 175 per cent -> 150 per cent

Fast Food Award (Level 1 employees only)
Full-time and part-time employees: 150 per cent ->125 per cent
Casual employees: 175 per cent ->150 per cent

Retail Award Full-time and part-time employees: 200 per cent ->150 per cent
Casual employees: 200 per cent ->175 per cent

Pharmacy Award
(7.00 am – 9.00 pm only)
Full-time and part-time employees: 200 per cent ->150 per cent
Casual employees: 200 per cent ->175 per cent

Local and regional economies on the NSW North Coast - where often low levels of employment opportunity combined with the fact that few hospitality/food outlets in tourism-orientated towns and none of the big retail stores currently close on a Sunday anyway - suggest that this wages cut will be nothing more than a straight forward cost saving for local businesses, with no or very little additional full-time, part-time or casual employment eventuating.

That a backlash to the Fair Work Commission decision appears inevitable is indicated by this online poll active on the day the decision was published:

Tuesday, 21 February 2017

Looking for work in 2017? Some advice on your rights from the experts

By and large businesses in the Northern Rivers region of New South Wales are fair to their employees.

However, there is no denying that there is an element amongst employers which attempts to take advantage of people desperate to find paid work and, under award rates, no payslips, wages not paid on time, deductions from wages for a little as dropping one small bottle of soft drink, unfair dismissal, are not unknown.

So it pays to know your rights upfront and this may help…….

Fair Work Ombudsman, media release, February 2017:
Fair Work Ombudsman out to smash myths relating to young workers
13 February 2017
The Fair Work Ombudsman is seeking to educate employees and business on the myths that are contributing to a concerning number of young workers being underpaid around Australia.
Fair Work Ombudsman Natalie James says too many people mistakenly believe that a range of workplace practices relating to young workers are OK when they are in fact unlawful.
“It’s time to address the myths that have achieved widespread levels of acceptance and are resulting in employers short-changing young workers around the country,” Ms James said. 
“Young workers make up about 16 per cent of the Australian workforce but account for a disproportionately high 25 per cent of requests for assistance to the agency. Last year 44% of the litigations we filed in court involved young workers.” 
“It is critical to raise awareness among employees and employers that they may be involved in serious contraventions of workplace laws by unwittingly continuing with practices that they believe are acceptable. 
“Young workers can be vulnerable in the workplace as they are often not fully aware of their rights or reluctant to complain if they think something is wrong. 
“We also come across too many employers who are short-changing young workers and when we contact them they say, ‘I just assumed what I was doing was OK’,” Ms James said. 
Ten common young worker myths the Fair Work Ombudsman encounters are:
MYTH 1: Paying low, flat rates of pay for all hours worked is OK if the worker agrees. 
FACT: Minimum lawful pay rates are mandatory. In many jobs, penalty rates must be paid for evening, weekend, public holiday and overtime work.

MYTH 2: Lengthy unpaid work trials are OK.
FACT: Unpaid trials are only OK for as long as needed to demonstrate the skills required for the job. Depending on the nature of the work, this could range from an hour to one shift.

MYTH 3: Employees don’t need to be paid for time spent opening and closing a store or for time spent attending meetings or training outside their paid work hours.
FACT: If a meeting or training is compulsory, then it is work. Employees must be paid for all hours they dedicate to work and this includes time spent opening or closing a store. For example, if an employee is required to be at work at 7.45am to prepare for an 8am store opening, they need to be paid from 7.45am.

MYTH 4: Employers can make deductions from an employee’s wages to cover losses arising from cash register discrepancies, breakages and customers who don’t pay.
FACT: Unauthorised deductions from an employee’s pay are unlawful. Deductions can be made only in very limited circumstances. 

MYTH 5: Employees are obliged to buy store produce such as clothing or food.
FACT: Employers cannot require staff to purchase store produce. This includes any items for which the worker may receive a staff discount. For example, an employer cannot require workers to purchase the particular clothing stocked in a retail outlet. 

MYTH 6: Unpaid internships are OK for all inexperienced young workers looking to get a foot in the door.
FACT: Internships can only be lawfully unpaid when they are a requirement of a course at an authorised educational or training institution.

MYTH 7: Employers can pay young workers as ‘trainees’ or ‘apprentices’ without lodging any formal paperwork.
FACT: Employers must negotiate and lodge a registered training contract for an employee in order to lawfully be able to pay trainee or apprentice rates. An employer cannot pay an employee trainee rates just because they are young or new to the job. 

MYTH 8: Paying employees with goods such as food or drink is OK.
FACT: Payment-in-kind is unlawful. Employees must be paid wages for all work performed.

MYTH 9: If a worker has an Australian Business Number (ABN) they are an independent contractor and minimum pay rates don’t apply.
FACT: Having an ABN does not automatically make a worker an independent contractor. Fair Work inspectors apply tests of fact and law to determine whether a worker’s correct classification is as an independent contractor or an employee. Whether an employer has labelled a worker as a contractor and required them to obtain an ABN may not be relevant.

MYTH 10: Pay slips aren’t mandatory – employers only need to give employees pay slips if they ask for them.
FACT: Employers must give all employees a pay slip within one working day of pay-day. Employers can give employees paper or electronic pay slips, such as a link sent via email. 

Ms James says that in 2017 her Agency will have a particular focus on proactively checking that employers of young workers are doing the right thing. 
“Young workers can be vulnerable, so we place high importance on checking and treat cases of their rights being contravened more seriously, which means we are more likely to pursue enforcement action,” Ms James said. 
Between July 2011 and June 2016, the Fair Work Ombudsman received more than 27,000 requests for assistance from young workers and recovered over $18 million for young workers who had been short-changed.
Employers and employees seeking assistance can visit or contact the Fair Work Infoline on 13 13 94. An interpreter service is available by calling 13 14 50 and information on the website is translated into 27 different languages.
Resources available on the website include the Pay and Conditions Tool (PACT), which provides advice about pay, shift, leave and redundancy entitlements and an employer’s guide to employing young workers.
Online resources available for young workers include a guide for young workers, the ‘starting a new job’ online learning course and a range of helpful tips.
Follow Fair Work Ombudsman Natalie James on Twitter @NatJamesFWO , the Fair Work Ombudsman @fairwork_gov_au  or find us on Facebook .
Sign up to receive the Fair Work Ombudsman’s media releases direct to your email inbox at


If you are not covered by an agreement, your minimum wages and conditions are likely to be set by a modern award

The modern award will deal with:

minimum wage rates
annual leave, and annual leave loading
other types of leave
hours of work
penalty rates, overtime and casual rates
consultation, and
many other minimum conditions.

Friday, 29 July 2016

Shop at Woolworths on the NSW North Coast? You need to read this

Trolley collection services procurement by Woolworths Limited,  media release date June 2016: 

In June 2014 we commenced an Inquiry into Woolworths’ procurement of trolley collection services.

For nearly a decade before this, we'd been investigating allegations of serious non-compliance with workplace laws involving businesses providing trolley collection services to Woolworths Limited (Woolworths).

In response to a perceived lack of improvement in compliance and disturbing allegations of violence towards workers at some Woolworths' sites, we started an Inquiry into their procurement of trolley collection services. It aimed to comprehensively identify and address the levels and drivers of non-compliance with Australian workplace laws by businesses involved in Woolworths' labour supply chains.

We examined around 130 Woolworths' supermarket sites across Australia and found indications of some form of non-compliance at 79% of them. The findings of this report indicate an entrenched culture of non-compliance in the Woolworths trolley collection supply chain.

At the time of publishing, as a result of the Inquiry, we've taken enforcement action against a number of businesses (and their Directors) involved in various Woolworths' labour supply chains, including:
commencing legal action against 2 businesses and their Directors, one of which we believe provided us with false and misleading records and the other for allegedly underpaying over $25 000 in wages
issuing 9 letters of caution for various Award contraventions, failing to adequately keep records, and misclassifying employment as an independent contracting arrangement.

We are also considering future legal proceedings against a number of other businesses providing labour to Woolworths for similar alleged contraventions.

Download the full report on our Inquiry into trolley collection services procurement by Woolworths Limited (PDF 1.1MB).


Examining 130 (or 13.5%) of Woolworths’ supermarket sites across Australia , the Inquiry found:

n more than 3 in every 4 (79%) of sites visited had indications of some form of non-compliance with workplace laws
n almost 1 in every 2 (49%) of sites visited presented serious issues, that is multiple indicators of non-compliance
n deficient governance arrangements contributing to a lack of Award knowledge and substandard record keeping
n false, inaccurate or misleading records
n failure to issue pay slips to workers
n workers being paid rates as low as $10 an hour
n cash payments which disguised the true identities of workers and actual amounts paid to workers
n manipulation of the identity card system implemented by Woolworths
n workers vulnerable to exploitation and often complicit in acts of non-compliance
n complex labour supply chains with networks of corporate structures and intermediaries to facilitate cash payments, recruitment of vulnerable workers and production of false records.

These characteristics are indicative of an entrenched culture of non-compliance in the Woolworths trolley collection supply chain......

We examined correspondence and the Trolley Collection Service Agreement from 2011 relating to 17 NSW and ACT supermarket sites. By dividing the agreed price by the weekly labour hours required to deliver the service, we found the cost per labour hour was below minimum pay rates at 15 of the 17 sites.

Tuesday, 19 January 2016

So what's happening with the Fair Work Commission's penalty rate review?

By December 2015 the Fair Work Commission’s penalty rates review had generated five days of transcripts and received a large number of submissions from employer groups, unions representing employees and one federal Labor MP, Melissa Price.

This last hearing date in the penalty rates case is scheduled for 15 April 2016.

There will be a good many households in rural and regional Australia where those with paid employment receive penalty rates for working long and/or unsociable hours.

As the two industry groups being targeted are significant employers outside metropolitan areas, perhaps those living in the NSW Northern Rivers region should all be closely watching the Commission at work and the degree to which its final determinations align with the data to which it has access.

The Fair Work Commission in its Changing work patterns report has this to say in December 2015:

5 Conclusion

This report presented data on changes in the labour market, types of work arrangements and preferences, and how people spend their time outside of work.
The analysis showed that the Australian labour market has changed over the last 25 years.
Although the participation rate for males has fallen over time, it has increased for females, while the decline in male full-time employment has been offset by an increase in part-time employment.
Further, employment in the services industries has increased, along with the proportion of Professionals and Community and personal services workers.
Data from the ABS showed that most employed persons worked Monday to Friday, and five days was the most common number of days worked in all jobs per week, with almost one in three employees usually working weekends.
Focusing on the nature of weekend work, data from the HILDA survey also showed that around one in three employed persons usually worked weekends.
Employed persons who usually worked weekends were more likely to have their working days vary and work a rotating shift or irregular schedule.
They were also more likely to work part-time hours, be employed on a casual basis, prefer to work more hours and be currently enrolled in a course of study for a trade certificate, diploma, degree or other education qualification.
Around one in three employed persons who usually worked weekends were employed in Retail trade or Accommodation and food services.
Employed persons in these industries were more likely to prefer working more hours, taking into account how it would affect income. Data on activities outside of work showed that the total number of minutes per day spent on free time activities decreased between 1997 and 2006 and that almost half of those surveyed never attend religious services.

According to the Fair Work Commission as at June 2014 nationally there were 13,212 accommodation businesses, 35,457 cafes and restaurants, 3,583 catering services, 6,067 pubs, taverns and bars, 2,908 hospitality clubs and 24,035 takeaway food services.

The Fair Work Commission also produced an Industry profile— Accommodation and food services in December 2015:

Data for June to November 2015 show that the industry accounted for: over $80 billion of sales and 2.6 per cent of value added to the economy; 7 per cent of employment, almost 6 per cent of actual hours worked per week in all jobs and over 4 per cent of wages;  around 4 per cent of all businesses and 17 per cent of all award-reliant employees; around 1 per cent of investment;  around 16 per cent of total underemployment; and around $6.6 billion in company gross operating profit……

Over half of enterprises in Accommodation and food services used shift work arrangements compared with less than one quarter across all industries. The most common shift work arrangements among enterprises in Accommodation and food services were evening and night shifts, short shifts of four hours or less, afternoon shifts and eight-hour shifts.

When the data is broken down: (i) 10.7 per cent of these businesses open on one or both days on a weekend; and (ii) 44.5 per cent of all businesses supplying accommodation and food services are found in rural and regional Australia.

Australian Bureau of Statistics (ABS) business profitability tables show that; in the September Quarter 2012 seasonally adjusted total accommodation & food service industry profit-before-tax was $966 million ($1.2 billion in December Quarter 2012), in the same quarter in 2013 it was $844 million ($744 million in December 2013), in September Quarter 2014 it was $1.1 billion ($1.1 billion in December Quarter 2014 ) and, by September Quarter 2015 total profit was still holding at $1.1 billion.

The Fair Work Commission states as at June 2014 there were 130,000 businesses in the retail trade. The highest individual sector percentage of these was clothing retailers at 8.4 per cent, super markets/grocery stores at 7.3 per cent, other specialized food retailing at 4.2 per cent and, electrical/electronic/gas appliance retailing at 3.6 per cent.

The Fair Work Commission published an Industry profile— Retail trade in December 2015:

The highest proportion of enterprises in Retail trade operated seven days a week, followed by weekdays and Saturday, while across all industries, the highest proportion of enterprises operated weekdays only…..

A lower proportion of enterprises in Retail trade used shift work arrangements compared with all industries. The most common shift work arrangements used in both enterprises in Retail trade and across all industries were set rosters and eight-hour shifts.

When it comes to retail businesses: (i) 39.9 per cent operate on one or both days on a weekend; and (ii) 43.6 per cent of are located in rural and regional Australia.

According to the latest available ABS statistical data relating to business profitability; in the September Quarter 2012 seasonally adjusted total retail industry profit-before-tax was $3.2 billion, in the same quarter in 2013 it was $3.3 billion, in September Quarter 2014 it was $3.8 billion and, by September Quarter 2015 these profits had risen to $3.8 billion.