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Category Archives: unfair dismissal laws

Ewin Hannan | May 19, 2009
Article from: The Australian

A CHAMPION wave rider has caught a break in more ways than one, with the Industrial Relations Commission finding that going surfing while on sick leave is not a sackable offence.

Champion surfer Shane Bevan had an appeal upheld by the IRC after he was sacked for going surfing while on sick leave.

Shane Bevan, a former world championship tour surfer, was sacked from his baggage handler’s job after his then employer discovered he took part in Queensland’s Coolum Classic surf contest while on sick leave with a bad back.

The IRC initially upheld his sacking but, on appeal, a commission full bench last week supported Mr Bevan’s claim that the termination was harsh, unjust and unreasonable and ordered the company to pay compensation.

Mr Bevan injured his back while working for Oceania Aviation Services.

The company has the contract to provide baggage handling services to Virgin Blue at Coolangatta airport.

Mr Bevan saw an osteopath who issued him with a medical certificate covering the period to Sunday, September 16, 2007. While on leave, his grandfather died and he travelled to Sydney to be with relatives before returning home two days later. In memory of his grandfather, he decided to compete in the Coolum Classic – of which he was the reigning champion – scheduled for the next day.

The day he surfed was a rostered day off; his back had improved and he revisited his osteopath, who was happy with his progress. He spoke to his work supervisor to check someone was taking his shift on the Sunday, although this was unnecessary given he had a medical certificate that covered the period to and including the Sunday.

Upon returning to work on the Monday, Mr Bevan was asked what he had been doing. He referred to his grandfather’s death and the visit to Sydney. Asked if he had been surfing, he replied that he had been for a “bit of a paddle”. His employment was terminated.

The commission upheld the sacking, finding Mr Bevan misled the company about his physical capabilities and did not acknowledge he had been in the surfing contest when first asked.

However, a commission full bench overturned the findings, noting Mr Bevan participated in the surfing tournament on his regular rostered day off.

“He went surfing in his own private time and not during a time when he was rostered to attend work,” the full bench said. “It is also important to note that Mr Bevan, after organising a shift swap on the Sunday, (despite being covered by a medical certificate) attended work on the Monday (his next rostered shift) ready and able to perform the full range of his duties.”

After lengthy evidence about which muscles Mr Bevan used at work and which he used surfing, the full bench noted the osteopath did not agree that Mr Bevan had put his injury at risk by surfing.

The osteopath’s evidence did not support a conclusion that Mr Bevan was fit to resume work in light of his participation in a surfing competition. Mr Bevan also did not mislead the company about his fitness to resume normal work, given it involved heavy lifting.

http://www.theaustralian.news.com.au/story/0,25197,25504456-5013404,00.html

By correspondents in Paris
Agence France-Presse
April 10, 2009 12:00am

A SENIOR manager at French auto parts maker Faurecia was being held overnight by workers angry at plans to restructure a factory southwest of Paris, a union official said.
The official in the CFDT union said the boss of a plant in Brieres-les-Scelles, about 45 kilometres (30 miles) from Paris, had been detained by workers in the latest incident of “bossnapping.”

A number of managers in France have been held hostage overnight by workers in recent weeks over planned job cuts. In each case, they have been released unharmed, often after a promise to restart negotiations.

French President Nicolas Sarkozy has vowed to put an end to the practice, saying workers angry over layoffs must nevertheless obey the law and not hold executives captive.

“What is this business of sequestering people? We have the rule of law, and I will not let matters go on like that,” Sarkozy had said in a speech.

“We can understand that people are angry, but this anger will subside with answers and results, not by aggravating matters with actions that are contrary to the law,” he said.

Recent polls show that up to half of French people believe workers are justified in taking executives captive to seek better redundancy packages during the economic crisis.

http://www.news.com.au/business/story/0,27753,25316189-462,00.html

Barry Cohen | March 31, 2009
The Australian

HE was living proof that some mothers do ‘ave ’em. The Frank Spencer of eco-tourism. Everything he touched, walked past or looked at broke, exploded, cracked or gave up the ghost. Accident-prone would not even begin to describe the trail of devastation that followed him around our wildlife sanctuary.

The water pump had to be switched on daily. He burned it out. Every sprinkler he looked at broke. Snakes in his care escaped and scared the wits out of visitors. I won’t even begin to describe his efforts in the kitchen. A delightful young lad, but a one-man wrecking ball.

Did I sack him? No way! With the unfair dismissal law hanging over our heads, I couldn’t afford the thousands of dollars I might have to pay him in “go away” money.

Fortunately I was able to arrange for his departure while he was still in his trial period, avoiding a nervous breakdown and halving my insurance premiums.

Then there was the young guide, unquestionably good at her job but prone to arrive at work the worse for wear, boasting about how she had got smashed the night before. That was her business. Our point of departure occurred when her bacchanalian excesses resulted in her phoning in sick just when we were expecting a large tour group. The background music and raucous laughter gave her away.

Her enforced departure landed us in the Industrial Relations Commission where the beak informed me that “she hadn’t a leg to stand on”, then told me to make her an offer.

Further back, when I was in the fashion business, our ladies’ wear manager took us, in today’s prices, for more than $100,000. When we discovered the shortfall, she stormed out and returned that week to her homeland, South Africa. We were to hear later that three other stores had suffered a similar fate.

I could go on and on and on. During 50 years of running small businesses, the untold stories would fill an encyclopedia. Most employees were honest, loyal and hardworking, and no sane employer would sack them. Then there were the others.

Few will be surprised to learn that I am not an admirer of the unfair dismissal clauses in the recently passed Fair Work Bill. In fact, I detest them. The Government places great stress on the rights of employees while ignoring those of employers.

The Government says the electorate gave it a mandate at the last election to repeal Work Choices legislation and the unfair dismissal clause in particular, which defined a small business as one with fewer than 100 employees. It is now 15.

The Government undoubtedly has a mandate but that is hardly surprising when 85 per cent of the workforce consists of employees.

Being popular, however, doesn’t make it right. No one favours unfair dismissal but fairness is in the eye of the beholder. Show me a sacked employee who believes they were fairly dismissed.

Some will argue that there are provisions in the act for them to be dismissed fairly. That is true, but it is rare because there is no way to legislate for the thousands of incidents in the workplace that can lead to dismissal. It’s like legislating for disputes in marriage. Then try catching a thief. It’s nigh on impossible.

Leaving aside misdemeanours and criminal behaviour, what if you just don’t get on? What if staff members are doing their job but you can find someone who can do it better?

Unfair? Unlucky? Definitely, and it’s difficult for most employers, who hate dismissing anyone, but for a business to survive sometimes it is unavoidable. Provided the person laid off receives their entitlements, the employer has fulfilled their responsibilities to the employee and the business.

Reverse the situation. What happens when an employee of many years, who has been well paid and well treated, gives notice for any number of reasons: better pay, fewer hours, promotion? Should they be stopped and forced to pay the boss for their unfair departure? The idea is absurd.

The depressing part about this debate is that the Coalition, while opposing unfair dismissal, has argued about numbers, not the principle: theright of employers to choose their staff.

What sort of person becomes a small-business person? Usually someone who, after a number of years as an employee, decides to strike out on their own. Making money is important but not the sole factor. They invest their life savings, mortgage their home and double their workload to be their own boss.

What can go wrong usually does: 70 per cent don’t make it through the early years. Forget the 38-hour week, it’s 60, 80 or more.

When the wheels fall off, as they do periodically, it’s sleepless nights trying to work out how to pay the interest, wages and rent, and handle government red tape.

Most wonder what possessed them to leave the safety of permanent employment and the benefits that go with it: regular wages, holidays, sick leave. Those are long gone.

Their leisure time is now taken up filling out forms for the GST or worrying what governments will impose next.

There are 1.88 million small businesses in Australia with 3.75 million employees. They are the backbone of our free enterprise system, which, despite all its failings, is light years ahead of the alternative.

I’m amazed the Government doesn’t recognise the burden it is placing on small business by not allowing them to employ whoever they wish.

It claims unfair dismissal laws will not increase unemployment. It is deluding itself. Any employer with close to 15 employees will think long and hard before employing new staff.

The reason for this blind spot is not difficult to discern.

Increasingly, those who make up the Labor caucus have less and less business experience. Each successive parliament in recent years has Labor members and senators with the same background: teachers, lawyers, public servants, party apparatchiks and trade union officials.

Noble occupations all, but a vastly different mix from when I came to Canberra 40 years ago. We had all the above but we also had farmers, policemen, doctors, chemists, journalists, accountants, small-business people and more. Unfair dismissal legislation would never have passed caucus, let alone cabinet.

It’s never too late for a government to recognise it is in error. Let’s hope it has the courage to do so.

http://www.theaustralian.news.com.au/story/0,25197,25265381-7583,00.html

Dennis Shanahan, Political editor | March 20, 2009
Article from: The Australian

THE essence of the continuing dispute in the Senate over the Rudd Government’s promise to rip up John Howard’s Work Choices legislation is politics pure and simple, and politics will solve the impasse one way or another.

Liberal divisions and delays of leadership have allowed the Rudd Government to build a completely misleading, and completely devastating, portrayal of the Coalition’s policy on industrial relations in an economic atmosphere that should have allowed a politically viable and credible Opposition position.

Instead, the industrial relations debate is now firmly stamped as Senate obstruction and Coalition negativity coupled with the Liberal resurrection of Work Choices.

Dithering and inconsistency on the Liberals’ behalf means the opportunity to galvanise growing industry dissension over the industrial relations laws, after notable silence, has been missed. So, too, has the opportunity to portray the Coalition as taking an unpopular decision to defend jobs, just as Howard did with the Tasmanian logging decision in the 2004 election.

Julia Gillard has won the politics and policy of the industrial relations laws and doesn’t require a double-dissolution trigger or the threat of an early election for that victory.

The Deputy Prime Minister wants to get the industrial relations laws in place and working according to schedule by piling up political pressure on the Coalition and on Family First senator Steve Fielding.

She’s playing it hard, will have an overwhelming policy victory even if she gives more ground and has exploited Malcolm Turnbull’s indecision and discomfort on industrial relations to the hilt.

After months of promises, consultation, draft legislation, public debate, shifting allegiances and positions and Coalition rifts, the final days of negotiation came down to one provision involving the unfair dismissal laws. This is not the resurrection of Work Choices, which Howard himself gutted and diluted when the realisation struck that the laws had gone further than necessary, and far beyond what the Australian people were prepared to accept. Howard genuinely believed his laws would continue to create jobs into the future, but only began to backtrack on contentious issues when it was so late it didn’t matter what he did, he couldn’t get the public to listen.

Nor is the argument tenable that the Government’s mandate on one provision in a raft of legislation is being undemocratically undermined by the Senate.

Labor fought and lost an election on the GST but opposed it tooth and nail in its entirety, and then ran another election promising to roll back the GST. What’s more, the Government has accepted amendments by the barrow load without screaming about its loss of mandate, as is the case with most lengthy, complex bills.

The sticking point in this mandate argument is a provision that at most will affect 46,000 small businesses and 735,00 employees of small business out of a sector where there are 2.4 million small businesses and more than six million employees.

But for Gillard and the Rudd Government the provision defining a small business as one with fewer than 15 employees, for the implementation of unfair dismissal rules, has become a totemic issue and a political vehicle to distort the politics in its favour.

Gillard, as the prosecutor of the Government’s industrial relations proposals, has been able to take advantage of Liberal divisions and the party leader’s vacillation on unfair dismissals to spook Coalition MPs and extend her mandate on union rights of entry. The spectre that has scared the Opposition is the thought of running another election on Work Choices after it was so discredited at the last election. Yet, talk of the Government straining at the leash for an early double-dissolution election to be fought on industrial relations doesn’t bear close scrutiny.

At every opportunity to create a double-dissolution trigger through Senate rejection twice of the same bill, separated by three months, the Rudd Government has baulked. The bills have either been dropped entirely – as was the case with the doomed Fuel Watch scheme – or amendments have been accepted.

As Labor in Queensland faces a huge backlash, as unemployment races towards an annual forecast in just months and as business begins to stir on the job-limiting nature of some of the industrial relations laws, it stretches credulity that the highly political Prime Minister would willingly put his Government at risk.

Yet there are Coalition MPs who still quail at the thought of running on long-held Liberal principles and policy, and facing an election as a result.

Certainly, Brendan Nelson did his best to bury Work Choices during his ill-fated and short-lived leadership after the 2007 election defeat. It was something Nelson had to do, to kill off unpalatable policies and reshape Liberal strategy.

Unfortunately for Nelson, the killing and burying of Work Choices was not followed by the creation of a job-supporting Liberal policy that tapped into the Howard-Costello tradition of looking after blue-collar workers and their families as never before.

Turnbull, as the new leader, was determined to fight the Rudd Government on the issue of economic management and avoid what he saw as the dead weight of Work Choices and the climate-change scepticism of the Howard years.

Last December he publicly ceded the ground on unfair dismissal laws to the Government and handed Gillard her mandate argument on a platter, saying the Opposition would respect the Government’s election promise of restricting the unfair dismissal breaks to small businesses of 15 or fewer employees. Before Work Choices it had been 20 employees and after Work Choices it was 100 employees. Turnbull simply backed Gillard’s plan.

It is that explicit commitment on the 15 employees and unfair dismissals that Gillard has been able to turn into a pressure point for the Senate and a question of character for Turnbull.

The number of employees for a small business has also become totemic within the Liberal Party because of Peter Costello’s advocacy for a return to 20 and the shadow cabinet’s counter-bid of 25.

In the end Labor will get a substantial victory on policy and politics by virtue of business’s silence and the Liberals’ inconsistency.

http://www.theaustralian.news.com.au/story/0,25197,25212483-17301,00.html

Patricia Karvelas, Political correspondent | March 20, 2009
Article from: The Australian

THE Coalition last night adopted Peter Costello’s position on unfair dismissal, shifting closer to Labor – but the Rudd Government’s bill to destroy Work Choices was still destined to fail unless Julia Gillard agreed to a last-minute compromise today.

The federal Liberal and National parties decided at an emergency meeting last night to join independent senators Steve Fielding and Nick Xenophon to fight for an amendment to the bill to increase the definition of a small business from Labor’s position of 15 full-time employees to 20 workers.

While the Coalition’s own amendment was for small business to be classed as 25 workers, the special partyroom meeting decided to ultimately support Senator Xenophon’s changes.

The Coalition backdown on the last sticking point of the proposed laws comes after Mr Costello suggested the definition of 20 at last week’s heated partyroom meeting. The former treasurer argued that the figure should be 20 in line with the definition used by the Australian Bureau of Statistics.

Last night, after its amendment was voted down in the Senate, the Coalition voted for Senator Xenophon’s amendment.

The Coalition’s compromise is a victory for Mr Costello, who had put the definition forward but was told shadow cabinet had decided on the more ambitious target of 25.

Ms Gillard, the Workplace Relations Minister, is now under pressure to compromise on her definition of a small business or risk seeing her entire bill fail.

The Government will today test the resolve of Opposition Leader Malcolm Turnbull to stand firm on his new position on the bill.

The Government will change the definition back to 15 when the Fair Work bill returns to the lower house.

Opposition workplace relations spokesman Michael Keenan said last night the Coalition would fight for its amendment and would not accept Labor’s push to change it back to 15.

“The Coalition parties will not change our minds,” Mr Keenan told The Australian.

If the Coalition votes against the bill after the Government uses its numbers to change it to 15, Ms Gillard will paint Mr Turnbull as being pro-Work Choices and failing to keep his word to kill the workplace laws championed by John Howard.

Senator Xenophon and Senator Fielding, of Family First, were also expected to vote to increase the small business employee threshold definition to 20, making it impossible for the Government to get its laws passed intact.

The last-minute turnaround from the Coalition meant the bill was on track to pass the Senate with the new definition of a small business. But the Government vowed to change the definition back to what it proposed in the federal election, 15 employees, in the lower house, where it has the numbers. The bill will then be returned to the Senate for a second vote.

The Government has extended the parliamentary session to allow it to reintroduce the bill today, and is vowing to have it in place by July 1. The decision not to wait three months to reintroduce the bill means it will not form a trigger for a double dissolution.

Mr Keenan confirmed the Coalition would “insist” on the Senate amendment when the bill returns to the upper house for a second time.

He accused the Government of putting their pride ahead of the successful passage of the bill.

“The idea that the Government will throw away its whole new system over the definition of a small business would be putting the minister’s pride over any sensible outcome,” he said.

The Coalition has essentially also decided not to insist on its other amendments on union right of entry, conceding the proposals did not have a chance at success without the support of the independent senators. The Rudd Government has repeatedly ruled out changes to the provision.

Ms Gillard revealed figures that showed that if the definition of small business was changed from 15 to 20, an extra 485,720 workers would not be offered unfair dismissal protection.

If the Coalition was successful in getting its figure of 25 up, 735,000 workers would lose the protection.

http://www.theaustralian.news.com.au/story/0,25197,25213651-601,00.html