Government wants wide-ranging review of apprentice/trainee wages

Chef fails in adverse action bid

Unions hit out against proposed Queensland IR changes

No comment on Thomson statement: FWA

Government wants wide-ranging review of apprentices wages

The Federal Government has asked Fair Work Australia to consider whether apprentice and trainee wages are appropriate in light of changing demographics and whether they contribute to low retention and completion rates.

Workplace Relations Minister Bill Shorten made the request in a letter to Fair Work Australia President Justice Iain Ross after the tribunal head last month announced an examination of apprentice and trainee rates as part of its two-year review of modern awards.

The Government had last year flagged its intention to contribute to the FWA review following the release in February of the Apprenticeships for the 21st Century expert panel report on the Australian apprenticeship and trainee system. In his letter to Justice Ross, released today, the Minister encourages the tribunal to define the scope of the review more broadly to consider the panel's recommendations and the issues it raised.

A scoping paper prepared by DEEWR, in consultation with the Education Department, that was released along with the Minister's letter identifies what the Government envisages in the review. This includes "decision points" that the tribunal and other participants "may wish to consider to assist the review and Fair Work Australia's deliberations".

On removing barriers to competency-based wage progression, the Government wants the tribunal to look at whether progression provisions in modern awards and other workplace instruments would be of benefit.

On pay rates, it wants the tribunal to consider the relativities between apprentice and trainee wages, the NTW schedule, junior rates of pay and the national minimum wage and whether they are appropriate, given the productivity of apprentices and trainees.

Other issues the Government has asked the tribunal to consider include:

• Whether the rates of pay/wages continue to be appropriate in light of the changing demographics and circumstances of modern-day apprentices and trainees;
• Whether there is a need to address modern award variations in providing allowances for apprentices and trainees to complement and support the Vocational Education and Training system;
• The effect of the opportunity costs for apprentices/trainees and their employers of taking part in the system, and the possible impact of wages contributing to the low retention and completion rates of apprentices and trainees;
• Whether the minimum number of hours a part-time apprentice should be performing work each week and the minimum rates of pay for school-based and part-time apprentices and trainees are appropriate; and
• Whether it would be appropriate for all modern awards to have consistent provisions recognising pre-apprenticship and pre-vocational training , particularly for wage setting purposes.

The paper also includes as an attachment principles for competency-based wage progression for Australian apprentices developed by Government officials in collaboration with the ACTU, the ACCI and the AiG.

Justice Ross asked the Government to provide the scoping paper ahead of a stakeholder conference on the apprentice/trainee rates review on Wednesday (May 30).

Minister's letter and scoping paper, May 2012

Court rejects adverse action complaint, but finds dismissal unfair

A former nursing home chef has successfully argued that he was not consulted before his working hours were cut and then unfairly dismissed without notice. However, he has failed in his adverse action claim that the dismissal resulted from his exercising his right to complain about the change in working hours.

Federal Magistrate Heather Riley found that management of the Greenwood Manor aged care facility failed to consult with the chef prior to reducing his hours from 40 to 25 per week.

This failure, she said, contravened the Greenwood Manor Pty Ltd, ANF and HSU enterprise agreement of 2009 and s50 of the Fair Work Act.

Federal Magistrate Riley said she did not accept the evidence of either of two managers who attended an August 12 meeting with the chef that a reduction of hours letter had not been prepared prior to the meeting and read out to him at that meeting.

She said the chef was presented with a “fait accompli”, with no prior discussions raising the possibility of a restructure of his position or hours.

“There was no attempt, not even an artificial attempt, to consult with the applicant prior to the restructure decision being taken and announced,” she said.

After the meeting, the chef reacted strongly to his hours being cut and he accused one manager of being “a liar” and “racist”.

After taking stress-based sick leave following the meeting, the chef received written notification that he was being stood down on pay while an investigation was held into allegations of bullying staff and insubordination towards management.

On August 25, he was told his employment was being terminated without notice for several reasons, including that he had acted aggressively to other kitchen staff and had abused his manager by calling him racist and a liar.

However, Federal Magistrate Riley said she could not give “significant weight” to the bullying allegations as they were hearsay, with no witnesses called to give evidence in the hearing.

She said she had accepted that the chef had made the comments to his manager in the August 12 meeting, but on no other occasions, and that calling the manager “a racist and a liar was insulting and intemperate”.

However, she said the comments were made at a time when the chef was “being told, without warning, and in breach of the consultation provisions in the enterprise agreement, that his hours were being reduced from 40 hours per week to 25. It is not surprising that the applicant reacted badly."

She said the nursing home management had “created a situation in which matters were likely to take a turn for the worse. Indeed, the applicant could have reasonably formed the view that the meeting on 12 August 2011 was a set up or a deliberate provocation."

She said in all the circumstances, she did not consider that the employer had proved that the chef has engaged in serious misconduct which warranted summary dismissal.

On the adverse action claim, Federal Magistrate Riley said she accepted the company’s evidence that any complaint made by the chef against the reduced hours had been “completely overshadowed” by his behaviour in the August 12 meeting, management concerns about reports of his behaviour to other staff and some performance issues.

She said she did not believe that the chef’s complaint was “even a minor, subsidiary or subconscious reason” for the termination and, as a result, the adverse action claim had to be dismissed.

Federal Magistrate Riley said she would hold a further hearing to determine the penalties to result from the company’s failure to consult with the chef and his summary dismissal.

Ratnayake v Greenwood Manor Pty Ltd [2012] FMCA 350 (15 May 2012)

Unions hit out against proposed Queensland IR changes

Queensland unions are seeking the same power to brief the State IRC on the economy as the Government will have under planned changes to Queensland IR laws.

And law firm Slater & Gordon has warned that the Queensland government risks “politicising" the state tribunal by requiring it to consider the Government’s fiscal strategy when determining public sector wages.

The Newman Government last week introduced its planned amendments to the state Industrial Relations Act 1999, which included the QIRC having to take economic conditions and the Government’s fiscal position into account when setting public sector wages (see Related Article).

The Industrial Relations (Fair Work Act Harmonisation) and Other Legislation Amendment Bill will also give the Attorney-General the power to terminate industrial action if it is deemed to be a threat to public safety or the economy.

In introducing the bill, Attorney-General and Minister for Justice, Jarrod Bleijie, said it was not an attempt by the Queensland Government to take the same approach as the O’Farrell Government in NSW on public sector wage capping.

However, Slater & Gordon lawyer, Andrew Rich, said unions and the public sector were right to be worried.

“Requiring the QIRC to consider the state’s financial position and fiscal strategy risks making the wages of public sector workers subject to political views such as the importance of achieving a budget surplus," he said.

“The new requirement also risks politicising the Commission as it may have to assess the Government’s fiscal strategy against any submission the Government might make about the wages it can afford.”

Rich said there were already sufficient protections under current Queensland Industrial laws, which require the Commission to consider the potential effects of wage rises on the “economy, community, and the particular enterprise or industry concerned”.

He said the QIRC also already had the power to step in to assist the resolution of significant industrial disputes.

“There are already processes in place for industrial matters to be dealt with, without having any political intervention,” he said.

The Queensland Council of Unions (QCU) says that the proposed amendments will cause further uncertainty for Queensland’s 245,000 public sector workers who are already facing job cuts.

President John Battams says the peak body will make a submission to the Finance and Administration Committee which is currently examining the bill.

However, the Government is expected to pass the amendments during Parliamentary hearings later next week.

"It's a political intrusion into the Industrial Relations Commission if the government treasury gets the rails run to present its own point of view on funding without the opportunity for workers to directly respond,” he says.

He says the the government could misuse its ability to terminate industrial action to shut down lawful employee action during legitimate bargaining negotiations.

"This will tip the balance in negotiations heavily towards the government no matter how valid the arguments of workers like our ambulance officers, nurses and teachers for fair pay."

The former secretary of the AMWU's Queensland branch, now acting national president, Andrew Dettmar (see Related Article), told Workplace Express that the bill was "emblematic of this government's approach to consultation".

He said the Government had introduced the bill on Friday, and unions had until tomorrow to respond to it.

No comment on Thomson statement: FWA

FWA says it won't be responding to comments made about its HSU investigation by the union's former national secretary and now member for Dobell, Craig Thomson, in his address to federal parliament on Monday.

General manager, Bernadette O’Neill, said today it would be "inappropriate" for her to do so, and the report "speaks for itself".

"These matters will be the subject of legal proceedings in the Federal Court of Australia and that is the appropriate forum in which to test the evidence and findings set out in the investigation report," she said.

Thomson in his address said that the FWA's Terry Nassios, who prepared the report, was "selective and biased" and he'd asked for him to be removed from the investigation (see Related Article).