APTIA Everybody Out - 2016 archives

192 Pages·2016·2.36 MB·English

Everybody Out
2016
Archives
Information contained within this Edition is developed within the Bus and Coach Industry. It is not intended that the information should be relied upon without the reader first seeking their own expert advice.
Welcome to the January-February 2016 edition of Everybody Out
Membership News
Industry News
Stakeholder News
Recent Decisions
Important Dates
Wayne Patch
Membership News Chairperson, APTIA
• Meeting of the Industrial Working Group
• Industrial Relations Breakfasts
• 10 steps for a bully-proof workplace
Meeting of the Industrial Working Group
The Industrial Working Group has recently met in Canberra to develop the industry’s policy position for 2015 in the face of the
4 yearly review of the modern awards, the upcoming federal election and the expected changes to the industrial
relations landscape from the inquiry into Australia’s workplace relation system by the Australian Productivity Commission and
the explosive findings of the Royal Commission into trade unions and employer organisations.
At least 15 members attended to consider various motions which included the following proposals:
1. That APTIA continues to pursue its claim for flexible minimum engagements for school bus drivers and the better
definition for ‘when work is performed’ for individual flexibility arrangements to include hours of work and break as part
of the flexible arrangements.
2. That APTIA continues to oppose the TWU application for a spread of hours between 6.00am and 7.00pm.
3. That APTIA opposes the reintroduction of ‘accident pay’ into the Passenger Vehicle Transportation Award 2010.
4. That APTIA takes an active role in opposing the ACTU application to reintroduce a ‘casual conversion’ clause and the
proposed increase to 4 hours of minimum engagements for casual and part time employees.
The IWG also gave its support to APTIA to oppose the proposed portable long service leave scheme and gave its support in
favour of APTIA’s work with the Australian Human Rights Commission to advocate positive discrimination for its aged
workforce.
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Industrial Relations Breakfasts
In 2016 APTIA proposes to hold a number of breakfasts, which will allow APTIA
members, especially industrial relations staff, in an informal environment, to share
experiences and knowledge on industrial topics of the day.
New Membership
‘Driver Health in an Aged Workforce’ will be the focus of the first breakfast in
Queensland in late March 2016. Driver health encompasses, amongst other things,
obesity, return to work and an understanding of the inherent requirements of the
job.
APTIA’s strategic partners, Piper Alderman, solicitors and rehabilitation providers,
the Interact Group are joint sponsors of the breakfasts and will participate at each breakfast.
It is proposed to also hold further breakfasts in Melbourne in April and Sydney in October.
10 tips for a bully-proof workplace
Workplace bullying is a serious issue and a major risk factor for anxiety and depression. Employers have a duty of care under
work health and safety legislation to provide a safe working environment. Find out more at Heads Up https://www.headsup.
org.au/news/2016/01/04/10-tips-for-a-bully-proof-workplace
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Industry News
• The Four Year Review of the PVTA
• Trade Union Numbers
The Four Year Review of the PVTA
APTIA has filed its submissions and statements in support of its application to seek flexible minimum engagements of school
bus drivers.
APTIA is required to respond to the ACTU claim by 22 February 2016 and it is anticipated that a further supplementary
statement should be provided as to the cost of the amendments sought by the ACTU.
The ACTU and the AMWU has however filed substantial evidence in support of their claim to:
• Provide a mandatory casual conversion clause
• Increase minimum engagements for casual and part time employees to 4 hours, and
• To require existing casual and part time employees to be offered extra hours before future employment.
The ACTU claim is supported by many statements from casual employee seeking more permanent employment and
academics who outline the social implications and impact on the health of its workforce. The submissions and statements
rely on premises such as:
• Changes to employment has eroded security of employment
• Undermining the fairness and relevance of the safety nets by excluding casuals
• Casuals are engaged on long term or regular basis
• Avoiding entitlements by employing casual employees
• A large number have no prospect of conversion
• A need for viable minimum hours
• Consequential health impacts from lack of certainty
• Need for a universal standard
The ACTU has also included an expert academic to provide evidence regarding casual employment and comes up with the
following premises:
• Casual employment does not reflect genuine choice for enhanced flexibility
• Insecure incomes and underemployment are common issues
• Women are negatively impacted by casual employment
• The problems of insecure employment and low income are exacerbated by short hours of work
• Provided full support for the ACTU’s application for casual conversion and additional hours.
• The industry has worn a casual conversion clause before but not a deeming or mandatory clause and has never been
forced into 4 hour minimum engagements for casuals.
APTIA is required to provide its responses (i.e. evidence and submissions) on or before 22 February 2016 with a hearing set
down for 10 days commencing 14 March 2016.
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Trade Union Numbers
New analysis of recently-released ABS data shows that the decline in union membership has resumed and the reduction in
density has accelerated, according to Griffith University’s Professor David Peetz.
He told a symposium in Brisbane last month his assessment of the ABS statistics released last month indicated that the recent
reduction in membership “reverses the stabilisation that occurred through most of the 2000s”.
Peetz, the university’s professor or employment relations, warned that more trouble is on the horizon, with retirements of older
union members likely to “double over the next six to seven years”.
While retirements account for only a minority of “exits” from unions — about one in eight — “their importance will grow”.
The retirements challenge is partly a product of the profile of union members, who are older on average than the general
workforce. Membership down to new low of 1.66 million
Peetz, who applies a “trend” formula to the data, said membership last year dropped to 1.66 million in trend terms, after it had
“more or less stabilised” at about 1.8 million during the 2000s. Membership previously reached a low of 1.75 million in 2007,
before rising to 1.84 million by 2011, he said. Density, in trend terms, had stabilised at about 19%, from 2008 to 2010, but
dropped to 16.1% last year.
Trend density fell by about three-fifths in the private sector (from 30.5% to 11.6%) between 1990 and 2014, but only two-fifths
in the public sector (from 67% to 40.7%). However, density in the public sector had been more “susceptible” to variation as a
result of changes of government.
Recruitment stable, but retention a challenge
“Overall, recruiting appears fairly stable, but unions are losing members faster (through retirements, job movements and
within-workplace exits) than recruiting them”, Peetz said.
He noted that unions appear to have “a major retention problem amongst relatively new recruits”. The 370,000 people in 2014
who had been members for one to four years was down 28% on the level in 2009, he said. Assuming that retention is “fairly
constant”, then “this suggests a growing problem with retention of members who joined in the previous five years”, he said.
Older members stable, but density down among young workers Peetz said density appears to have stabilised for workers over
50, but has continued to drop for younger age groups, particularly in the 15-19, 20-24 and 25-29-year-old cohorts.
Don’t blame “easy scapegoats”
Peetz said it was hard to blame a change in government, as there had been no major changes to legislation affecting union
membership.
“Nor”, he said, “can some of the easy scapegoats be blamed in aggregate – such as casualisation, self-employment, or
changing attitudes”.
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However, he said, “attitudes matter in a different way”, because by last year 72% of employed persons had never been union
members.
“For this group, ideological factors are important in determining whether people join.
“As density declines this number will increase, and any negative ideological views about unionism will be a barrier to
recruitment, even without any changes to attitudes”, he said.
He continued that “changing patterns of socialisation” would also take its toll on membership levels and density.
Declining parental membership of unions would be likely to affect socialisation of young workers “and make them less aware
of unions and the roles they play”. However, he said, this phenomenon didn’t provide a full explanation for the patterns of union
membership and retention among younger workers.
Peetz also suggested that the loss of members in union heartlands indicated that the apparent difficulties in retaining new
recruits, many of them younger workers, “also indicates a failure to demonstrate to workers in unionised workplaces the in-
creased employee power that should arise from unionisation”.
He said this indicated unions needed to direct more attention to identifying, developing and supporting delegates and to
democratisation of unions themselves, “as members cannot have power in the workplace if they do not first have power in the
union”. Peetz said unions had recently focussed strongly on recruitment, but approaches such as campaigns and blitzes often
overlooked retention, which is a bigger problem for unions in Australia.
In the US setting from which many of the organising models are drawn, the institutional settings are different, and in Australia
there is a need for more attention to be given to “the ongoing relationship between new members, delegates and the union
organisation after recruitment”, he said.

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Stakeholder News
• Productivity Commission Inquiry
• Australian Labour Party
• Office of the Fair Work Ombudsman
• Australian Chamber of Commerce and Industry
Productivity Commission Inquiry
The Productivity Commission has renewed its call for “enterprise contracts” to fill the gap between individual and collective
arrangements.
The PC’s final report on the IR system was released prior to Christmas and argues that employers should be able to vary an
award for groups of employees without having to negotiate individual flexibility arrangements with each individual worker.
It has also stuck with its recommendation to switch from the current Better Off Overall Test to a no disadvantage test with
guidelines.
The PC argues it would amount to a “collective IFA” and that it should be offered as a condition of employment.
As expected, the report sticks with the interim recommendation to align Sunday penalty rates with those payable on Saturdays
in hospitality and retail.
The Productivity Commission, in its final report on the IR system, says the FWC should be broken up into two bodies, with the
new institution to determine minimum wages and awards.
The PC in its draft report called for the FWC to be divided in two, with one division dealing with minimum wages and awards
and the other continue to perform the remainder of the tribunal’s functions.
But it is now seeking the establishment of an independent Workplace Standards Commission (WSC) to perform the former
tasks, while maintaining the “two-division” model as its fallback position.
It also remains wedded to its proposal for fixed-term rather than tenured appointments to the FWC and WSC, but is now
proposing terms of ten years rather than the five it originally proposed.
The PC now also wants single-term, non-renewable appointments (“to ensure a good stream of new talented people and to
eliminate risk (or perception of risk) that members might alter their decision-making to secure reappointments”.
But it maintains its objective of banning the appointment of people with IR backgrounds.
Appointments would be made by an “expert appointments panel” created by federal, state and territory governments that
would provide the minister with a merit-based shortlist.
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The Fair Work Act’s regime of four-yearly reviews of awards would be abandoned, and the new WSC would revise the
instruments as required to meet the modern awards objective.
The PC says there is scope for immediate action to reform the FWC, without recourse to Parliament.
It says a “change in mindset requires no legislation” and it would constitute a “major step” if the FWC’s president appointed
more experts as advisors to members and took “an activist and evidence-based approach to awards”.
In the same vein, the federal government could be “a catalyst for change”.
It says the Government can use submissions to annual wage and award reviews “to make clear the need for reforms in the
FWC’s processes for minimum wage and award determination along the lines recommended in the report”.
The Productivity Commission’s final report on the IR system has made new recommendations for transfers of business, so that
existing arrangements would not move to new employers.
The PC argues that the Fair Work Commission should have more discretion to order that an arrangement such as an enterprise
agreement does not transfer where that improves the prospects of new employment.
It says it could be achieved by amending section 309 of the Fair Work Act to include the interests of “continuing employment”
for workers at the old concern.
Further, it says, the new employer should be able to make a job offer conditional on the FWC granting an order under section
318 that their previous arrangements would not transfer to the new employer.
Transferring business arrangements would automatically cease after 12 months and employees could also personally opt to be
covered by the terms and conditions of their new employer.
The report says the government should introduce “project proponent Greenfields agreements” which could be initiated by head
contractors on major projects.
Once such an agreement is in place, it could cover subcontractors that subsequently joined the project that did not have an
agreement in place.
The report also argues that it is “too easy” under the current sham contracting tests for an employer to escape from
prosecution for sham contracting.
“Recalibrating the test from one of ‘recklessness’ to ‘reasonableness’ is justified,” according to the PC.
As expected, the report calls for Sunday penalty rates for certain workers — in hospitality, entertainment, retail, restaurants and
cafes — to be brought into line with those paid on Saturdays.
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While the government is playing down possible changes to penalty rates, the PC report recommends replacing the current
modern award objective.
The objective now refers to the need to provide additional remuneration for working overtime; unsocial, irregular or
unpredictable hours; weekends or public holidays; and shifts.
But the suggested modern award objective only refers to the need to increase employment; the needs of employers; the needs
of consumers; and the need to ensure modern awards are easy to understand.
The PC has renewed its call for “enterprise contracts” to fill the gap between individual and collective arrangements, allowing
employers to vary an award for groups of employees with having to negotiate individual flexibility arrangements (IFAs) with
each individual worker.
It has also recommended switching from the current Better Off Overall Test to a no disadvantage test with guidelines.
The PC recommends the introduction of a new fee for the arbitration of unfair dismissal claims, set at the same level as
application fees, while the FWC would gain stronger powers to dismiss applications on the papers.
Compensation would only payable where an employee has been dismissed without reasonable evidence of “persistent
significant underperformance or serious misconduct.”
Alleged adverse action should have a “direct and tangible” bearing on a person’s employment, the PC says. It would costs
against applicants who continue claim against the advice of the FWC.
The PC recommends changes to the Fair Work Act so that restrictions on the use of independent contractors and labour hire
enterprise agreement are unlawful terms in enterprise agreements.
The PC recommends a threefold increase in penalties for unlawful industrial action. Simplified protected action ballots would
ask a single question authorising all forms of industrial action without specifying each type. It would remove the requirement
that industrial action be taken within 30 days (or within 60 days with an extension). Employers would able to deduct pay for
strikes called off at the last minute, or for “micro strikes” of less than 15 minutes. They would able to respond other than by
lockouts, including by imposing bans on overtime and reducing working time.
The PC says the FWC should consider the “cumulative impact” on employers of repeated union site visits; the likely benefit to
workers of further entries; and the reasons for the frequency of the visits.
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Australian Labour Party
The Federal Opposition is proposing substantial increases in penalties for employers who deliberately underpay their workers,
and will consider a new criminal offence for cases involving intentional or reckless behaviour.
The plan for a wide-ranging crackdown on underpayment argues it is too easy for employers to escape prosecution for sham
contracting on the grounds that they did not know a worker was really an employee.
Labor proposes to require that — if a reasonable person would expect someone is an employee — they then must be treated
as an employee, with access to workplace entitlements. On top of introducing this “reasonable person” test, Labor says it will
work with stakeholders to develop a definition of independent contracting to provide “more certainty” than the current common
law test.
The policy was unveiled today by Labor leader Bill Shorten and workplace relations spokesperson Brendan O’Connor, who
cited recent examples such as Myer sub-contractors engaging cleaners on sham contracts, underpayment, exploitation and
intimidation of 7-Eleven workers, sham contracts for Pizza Hut delivery drivers under which they were paid as little as $6 an
hour and the substandard pay and conditions for workers at chicken meat processor, Baiada.
Labor claims these high-profile cases are the tip of the iceberg; with the Fair Work Ombudsman recovering $22 million in back
pay for more than 11,000 workers in 2014-15. It argues that the current penalties are clearly an inadequate deterrent given
the “brazen and systematic” underpayments that have emerged in the past 12 months. An employer who fails to properly pay
workers is now liable for a civil penalty up to $10,800 for an individual or $54,000 for a corporation.
A Labor information sheet says new penalties should be increased to match the penalties for anti-competitive conduct, which
allow a court to impose fines three times the amount of the underpayment or $216,000 for an individual and about $1 million
for a corporation. Labor has also proposed a new criminal offence where an employer intentionally or recklessly underpays
workers, or engages in deliberate sham contracting. The penalty for such as offences could be about $43,200 or two years’ jail
for an individual or $216,000 for a corporation, with the courts also able to disqualify directors.
The plan includes new powers to deal with phoenix contracting, by making company directors personally liable for money owed
to workers or for civil penalties arising from breaches of the Fair Work Act. Labor wants to introduce, after consultation with
employers and unions, a new criminal offence for deliberate exploitation of temporary overseas workers, even if the worker is
employed in accordance with the terms of their visa. Inadvertence or negligence would not constitute an offence.
Illegal workers without a visa are now unable to take action under the Fair Work Act, but Labor wants to give them
recourse to take action to recover underpayments. The FWO would produce a Temporary Overseas Worker Support pack that
employers would be obliged to furnish to visa workers. Failure to provide the pack would carry a civil penalty of up to $10,800
for an individual and $54,000 for corporations
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