Carol Louw of CCH reports on the latest workplace cases from the courts.
Award modernisation decision handed down
An Australian Industrial Relations Commission full bench has identified priority industries and occupations as part of its recent decision on the award-modernisation process.
This follows the award-modernisation request from the minister for employment and workplace relations on 28 March and updated on 16 June following release of the National Employment Standards (NES). The decision identifies priority industries and occupations, provides a model award flexibility clause and a timetable for the completion of award modernisation.
In its 20 June decision the full bench identified the following 14 priority industries / occupations: coal mining; glue and gelatine; higher education; hospitality; metal and associated industries; mining; private sector clerical occupation; racing; rail; retail; rubber, plastic and cablemaking; security; textile, clothing and footwear; vehicle manufacturing.
Each modern award will include a flexibility clause, adapted for the award in which it is included. The commission issued a flexibility clause in its 20 June decision (set out in attachment C of the decision).
In summary, the following award terms may be dealt with in a flexibility clause: arrangements for when work is performed, overtime rates, penalty rates, allowances and leave loading.
The commission included a definition of 'disadvantage' in the flexibility clause itself. This is broader than the no-disadvantage test that currently applies to individual transitional employment agreements, namely that there is no reduction in the overall terms and conditions of employment under a relevant award or agreement, or under any Commonwealth, state or territory laws.
Minimum wage increases by $21
The Australian Fair Pay Commission (AFPC) has increased minimum wages by $21.66 a week for Australia's 1.3 million pay-scale-reliant workers. The increase applies to the standard federal minimum wage and to all Australian pay and classification scales. It is to be implemented on the first pay period on or after 1 October 2008.
The increase is the third made by the commission and follows an increase of $10.26 in July 2007. AFPC chairman Ian Harper says the decision took into account the state of the national economy and the pressures on low-paid Australian workers.
Parental leave for same-sex couples
Introduced on 26 June 2008, The Parental Leave Legislation Amendment Bill 2008 amends the Discrimination Act 1991 to make it clear that it is unlawful to discriminate against same-sex parents in relation to their employment entitlements including, for example, parental leave. The Bill also repeals the Parental Leave (Private Sector Employees) Act 1992, which is no longer operational due to the current provisions of the Workplace Relations Act 1996.
A-Mart practices far from A-OK
The Federal Magistrates Court of Australia imposed a penalty of $52,800 on an employer that did not pay its employees for work they did before and after normal hours.
A-Mart All Sports Pty Ltd had required employees at two stores to work either 30 minutes or 15 minutes before the official start of work for no pay, and for between 15 and 30 minutes after they finished work also for no pay. All parties agreed that A-Mart had engaged in this conduct and had done so for that length of time. The only issue in the proceedings was the size of the penalty that should be imposed.
On behalf of A-Mart, it was conceded that the contravention had been serious. But there were nevertheless extenuating circumstances that mitigated the contravention. In particular, the practice whereby employees worked without pay was initiated by managers at the particular branches concerned. It was not a policy that A-Mart had itself instigated or endorsed. A-Mart also pointed out that some of its more senior executives had expressed concerns about the practice. In such circumstances, it could not be wholly blamed for what had happened.
The workplace inspector who commenced the proceedings pointed out that many of the employees had been young and had been employed on a casual basis. Many of them had not even realised that they were routinely working unpaid time. In addition, the workplace inspector contended that A-Mart was a large organisation that employed more than 1000 employees. There was therefore a particular need for general deterrence to show similar employers that these sorts of workplace practices were intolerable. That was especially because A-Mart had not accepted its liability until well after the proceedings had been commenced.
The federal magistrate described A-Mart's conduct as 'Dickensian'. He stated that forcing employees, many of whom were casual and/or very young, to work for nothing both before and after their allotted hours of paid work was conduct calling for severe condemnation. He also noted there was a need for general deterrence because of A-Mart's size. The fact that it had not conceded liability straight away was another matter to consider.
As to matters in mitigation, it was accepted that to some extent the store managers had been acting on their own initiative. There was no question that A-Mart had not initiated the policy or required it to be applied. At the same time, a number of A-Mart's executive employees had known what was going on. Although they had suggested the practices should stop, they never took active steps.
In these circumstances, a penalty of 80 per cent of the maximum was to be imposed upon A-Mart.
Workplace fact sheets updated
The Workplace Ombudsman has released an updated catalogue of fact sheets in line with recent changes to federal workplace legislation.
The updated fact sheets reflect the recent changes contained in the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008.
Contact details for the National Relay Service (NRS) have been added to the fact sheets. The NRS will assist in communication with people who are deaf or have a hearing or speech impairment.
Fact sheets cover everything from the role of the workplace ombudsman to record-keeping and are available on the Worplace website.
Carol Louw is a senior editor and writer on equal opportunity and human resources for CCH Australia.
