Trade Union Royal Commission continues into 2015

The Royal Commission into Trade Union Governance and Corruption will continue until the end of 2015. Originally expected to produce its findings and recommendations by 31 December 2014, the timeframe and scope of the inquiry was extended in October 2014, following recommendations by Commissioner Dyson Heydon AC QC.

Commissioner Heydon’s Interim Report was tabled in Parliament on 19 December 2014. It identified key concerns about the use and operation of union election slush funds, including that they operate largely in secret, have deficient or non-existent record-keeping and that candidates commonly plead ignorance on how money is raised and spent.

The report also recommended that consideration be given to charging and prosecuting former Australian Workers Union officials, Bruce Wilson and Ralph Blewitt, for fraudulent conduct, and that consideration be given to charging and prosecuting CFMEU state secretary, John Setka for blackmail.

During 2014, the Commission conducted more than 70 public and private hearings involving more than 220 witnesses in Sydney, Melbourne, Perth and Brisbane. Public hearings will resume in 2015 on dates to be announced.

Productivity Commission review of workplace relations framework

In late December 2014, the Federal Government released the terms of reference for the inquiry into Australia’s workplace relations framework, which will be conducted by the Productivity Commission.

The terms of reference are broad and mention job creation, fair and equitable conditions for employees, productivity, competitiveness and business investment and the needs of small business.

The Productivity Commission has been asked to identify potential improvements to workplace laws, having regard for the needs of workers to be protected, and the need for business to be able to grow and employ.

Minister for Employment Senator Eric Abetz said that if the Productivity Commission makes a “good case for sensible and fair changes”, then the government will seek a mandate for those changes at the next election.

The inquiry report is expected to be handed to the Federal Government in November 2015.

A step closer to nationally harmonised workplace safety laws

The Western Australian Government introduced the Work Health Safety Bill 2014 (WA Bill) in the final quarter of 2014, with the period for public comment having closed on 30 January 2015. The WA Bill is the Western Australian version of the Model Work Health Safety Laws developed by Safe Work Australia for implementation by Australian states and territories.

The WHS Bill contains a number of modifications to the model WHS laws, aimed at achieving legislation tailored to the Western Australian working environment. For example, volunteers are excluded from the definition of “worker”, and the WHS Bill does not include the option of enforceable undertakings, or the power for inspectors to issue infringement notices.

The WHS Bill has adopted the model WHS penalty levels, which represents a four-fold increase of the penalties for bodies corporate contained in the current Occupational Safety and Health Act 1984 (WA).

A separate Resources Safety Bill is being developed by the WA government, which will apply to the mining industry.

Bullying and adverse action update

The Fair Work Commission has released its Anti-bullying Report for the first quarter of the 2014/15 financial year.

The Anti-bullying Reports released since the Commission came into effect in January 2014, show that after receiving more than 530 applications for anti-bullying orders in the first nine months of the jurisdiction’s operation, the Fair Work Commission has only issued one order to prevent a worker facing further risks. That order was later revoked, after the applicant submitted that the FWC process had all but eliminated the conflict.

In the three months to September 2014, 163 of the 189 applications made were lodged by employees, and 126 of the 189 were made against managers.

The clerical (28) and health and welfare (21) sectors provided the largest number of applications by industry. Geographically, NSW employees (62) lodged the largest number of applications.

The Fair Work Commission Annual Report, released in October 2014, showed that the 60 applications received per month was much lower than the predicted 70 applications per week. Due to the unique nature of the jurisdiction, the Report said it is “impossible” to predict the future trend of applications but results showed that there was “a gradual increase in applications lodged each month.

Meanwhile, adverse action claims have continued to increase, with 781 lodged in the April to June quarter and a new high of 877 in the three months to September 30 2014.

Entitlement to take and accrue annual leave while receiving workers compensation

The Federal Circuit Court of Australia recently held that a New South Wales employee receiving workers compensation can accrue and take annual leave.1

This interpretation may only stand for a short period of time if the Federal Government’s Fair Work Amendment Bill 2014 passes in the Senate. A proposed amendment to the Fair Work Act 2009 (Cth) in the Bill has the effect that an employee cannot take or accrue any type of leave under the Fair Work Act during a period in which the employee is absent from work and in receipt of workers’ compensation. The Bill proposes to do this by amending the National Employment Standards of the Fair Work Act.

High Court Appointment

The Victorian Court of Appeal’s Justice Geoffrey Nettle has been appointed to the High Court of Australia. Justice Nettle is the first appointment to the High Court by Attorney-General George Brandis and Prime Minister Tony Abbott.

Industrial relations matters that Justice Nettle has ruled on include:

  • the 2014 reduction of a practising ban on a solicitor found guilty of sexual harassment and professional misconduct;
  • the 2011 rejection of John Holland Aviation’s bid to rely on a side deal to extend a three-year enterprise agreement at the former Ansett maintenance base; and
  • the 2007 rejection of anti-logging protesters’ challenge to a finding that the CFMEU (forestry division) and logging workers did not falsely imprison them.

Justice Nettle replaces Susan Crennan, who left the High Court in December 2014.