18025 , Friday 2 December 2011Click here to view printer friendly PDF
In this issue
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IRC to decide on 'no new claims' clause
The NSW Industrial Relations Commission has questioned whether a proposed 'no new claims' clause in the teachers' salaries award contradicts the IR Act 1996. Justice Tricia Kavanagh is expected to hand down her decision at 4:15pm this afternoon relating to the Department of Education's (DoE) latest award proposal following report-backs on negotiations this week (WFNSW18015). According to NSW Teachers Federation president Bob Lipscombe, Justice Kavanagh questioned the validity of the DoE's 'no new claims' clause during appearances in the cmn on Wednesday (Nov 30). While 'no extra claims' clauses have been standard in awards, Lipscombe toldWFNSW this clause went much further because it arguably prevented negotiations for a new award until after the previous award expired. That could also contradict the govt's wages policy, which requires negotiation three months prior to an award's expiry. In Wed's hearing, Justice Kavanagh suggested the parties consider the consequences of creating an interim award or varying the current award. A variation provided an increase while allowing for further negotiations on more increases. An interim award provided an increase but would open up all the current award conditions when it concluded.
Savings in professional development
In a "without prejudice" offer to the Fed last week, the DoE proposed changes to professional development that would see about $24.7m in employee-related savings. However, the Fed warned members that would come from the $34m currently provided to schools for professional development and could potentially see teachers' workloads increase. Lipscombe claimed the DoE had refused to present the offer in writing to the Fed yet sent it to members this week while allegedly omitting key details. "It raises real questions about the department's capacity to negotiate in good faith," he said. The DoE did not return requests for comment before presstime.
Orders sought against police action
The NSW Police Commissioner has sought orders from the Industrial Relations Commission to stop police taking industrial action and respond to a union membership vote on views about escalating the action (WFNSW 18015). The parties were before the IRC at presstime over the application, following the Police Association's refusal to provide NSW Police with seven days' notice if it decides to escalate industrial action. The union has been holding an online vote over the last week about whether its members wish to go to Stage 4 industrial action in response to changes to the death and disability scheme. Following concerns expressed by IRC judges on Wed (Nov 29), the Assoc yesterday stopped the vote so as "not to put the progress of the case at risk". However, it slammed the Police Cmr's application as "unprecedented and hypocritical" given the government had opposed the IRC's involvement in handling death and disability and as the online vote was a democratic right. The union met with Police Cmr reps earlier this week to discuss "localised" concerns about current action.Meanwhile, the long-running wage case for NSW police resumed on November 28, with three days set aside for final oral submissions.
NSW tops the country for days lost
ABS statistics released this week show NSW accounted for more than half of working days lost to industrial disputation in the last quarter, the highest in the state for more than eight years. NSW accounted for 52,900 (52%) of the country's 101,300 days lost in the September quarter - a huge jump from the previous 2,300 days and the highest since mid-2004 (113,300 days). The figures largely reflect the 24-hour strike action taken by about 30,000 public sector servants on September 8 against the state government's wages policy and amendments to the IR Act 1996. NSW also accounted for the highest number of working days lost per thousand employees (16.8) for the quarter, up from 0.7 in the June quarter.
Policy v Award in TfNSW talks
Unions are facing tough resistance from the State Government over negotiations for the new Transport for NSW award, with the govt seeking to include workers' conditions in agency policy rather than the industrial instrument (WFNSW 17885). Unions NSW deputy assistant secretary Mark Morey told WFNSW four unions - the Rail Tram and Bus Union, the Australian Services Union, the Public Service Association and the Association of Professional Engineers, Scientists and Managers Australia -lodged an award in mid-November with more than 100 clauses to retain current conditions (based on the Crown Employees Award), plus prescriptive dispute settlement procedures and consultation provisions. The govt has lodged a counter award with about 26 clauses, referring most entitlements to policy. "You'd say it was more a statement of intent than an industrial award," Morey said. "The award might say people are entitled to 'xyz' types of leave. But to then go and see how that kind of leave would operate in the workplace, you have to go to policy. So then it's left up to interpretation and management prerogative to change things." Morey said transport workers, particularly in the federal arena, had a history of having entitlements contained in the award. "I think that's the difficulty the Federal Government's facing. A lot of these people are in the federal jurisdiction and they're being transferred to the states. Their position is they want to know what their conditions are and are they protected in the workplace." The parties will meet again on December 5 before conciliation with Industrial Relations Commission Vice President Justice Michael Walton on Dec 7. But an IRC full bench is likely to decide what goes into policy or award, with arbitration set down for Dec 12 and 14 and from April next year.
Award limit and classification issues
There are also concerns over re-classification of workers, with some senior staff no longer award covered. The TfNSW award has an income limit of about $128,000. That represents a $60,000 drop from awards covering some transferring workers, Morey said. The unions are seeking to increase the cut-off to retain those workers - including senior contract staff - on the award. The unions are also concerned about grading with the govt refusing their subpoena for classification information, claiming commercial-in-confidence. The transport department did not return requests for comment before presstime.
PSA: IRC should be 'one stop shop'
Unions and IR groups have pushed strongly for the Industrial Relations Commission to have extended jurisdiction rather than be consolidated into a 'super tribunal'. In its submission to the inquiry into consolidation of NSW tribunals, the Public Service Association argued the govt should amalgamate all employment jurisdictions under the IRC, including breach of employment contract claims currently covered by common law courts; discrimination and harassment functions; wage underpayments and breach of industrial instruments covered by the Chief Industrial Magistrate's Court; as well as vocational training complaints and professional disciplinary functions. The union also proposed the IRC take on compulsory mediation and conciliation of all employment disputes in the NSW jurisdiction. The NSW IR Society's submission said if the IRC was to be part of a super-tribunal, it should be as a 'point of contact' and retain its existing structure. If consolidation excluded the Industrial Court, judicial members should be appointed to the Supreme Court and seconded to the tribunal.
Worker's criminal past exposed
A RailCorp signals mechanic who failed to disclose his criminal history because he was depressed was not unfairly dismissed. Following an anonymous complaint, RailCorp discovered Shayne Thompson had been convicted for drug possession and driving while disqualified. It dismissed him after finding he had used RailCorp vehicles 349 times during the disqualification period. Thompson argued his depression had caused him not to disclose his convictions. Transport Appeals Board Commissioner Alistair Macdonald upheld the dismissal after finding Thompson's medical condition did not mean he lacked understanding about his conduct. However, after noting Thompson had "come clean" in 2008, he ordered RailCorp return his rail safety and competency certificates to allow him to keep working in the industry. (Thompson v RailCorp [2011],NSWTAB 22, 25/11/11)
Editorial Team
Editor: David Marin-Guzman. Managing Editor: Peter Schwab.Contact: ph 8587 7682 email: david.marin-guzman@thomsonreuters.comProduct Code: 3140418025
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