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E-mail and Employees – We Told You So!
The recent decision of Justice Markel in the Federal Court of Australia in Municipal, Administrative, Clerical & Services Union v Ansett Australia (2000) 47 AILR 4-263 (Gencarelli's case) held that Ansett had breached Section 298K(1) of the Workplace Relations Act 1996 (Cth) when it dismissed an employee for distributing an ASU bulletin to 139 Ansett employees via e-mail.
The decision is not however to be interpreted as establishing a general principle as to the right of employees to use their employers' e-mail systems for essentially private (or "union") purposes. Justice Merkel based his decision on the particular circumstances of the case, in which the union delegate was dismissed for distributing a union bulletin in circumstances where such distribution was impliedly authorised by the employer. He does not suggest that union delegates have any general authorisation to distribute union material using their employer's e-mail system. Rather, what is made clear in the decision is that employees should be:
"made aware, in clear terms, of the criteria establishing the circumstances that constitute acceptable and unacceptable use of their employers' e-mail or IT system".
The employer lost this case because the direction prohibiting the use of the e-mail system was not sufficiently comprehensive – it prohibited use of bulletin boards but not other forms of mass distribution e-mail. Readers are referred to our February 2000 Employment Briefly which highlighted the rights associated with the provision of internet and e-mail facilities to employees and recommended that employers develop policies for the use of e-mail and inform employees of those policies. This case reinforces that recommendation demonstrating that if an employer is to be able to control the use of its e-mail system, it bears the responsibility of placing its employees on notice of the circumstances in which the e-mail system may be used for private purposes, and the consequences of non-compliance with established e-mail policies.
If you wish to discuss the development and implementation of e-mail policies please contact Ian Colgrave on 8210 1203 or Celine McInerney on 8210 1206.
Go To The Doctor Before It's Too Late
In Williams v TransAdelaide, Deputy President Judge Parsons of the Workers Compensation Tribunal considered an application by the exempt employer to have Mr Williams submit to a psychiatric examination. Judge Parsons did not follow earlier decisions of the Tribunal in which it had been concluded the Workers Rehabilitation & Compensation Act 1986 contemplated a general power to require workers to submit to medical examinations, such power being conferred by section 53(2) of the Act. Earlier decisions also had concluded the Tribunal had the power to order workers to submit to medical examination through the application of the Supreme Court Rules.
Judge Parsons found that the right to require a worker to submit to medical examination was limited to the investigative stage of the claim prior to determination. Mr Williams' claim had been rejected, so section 53 could not apply. Judge Parsons also found that the rule making power of the Tribunal did not allow the Tribunal to apply a rule which had the effect of extending the power of the Tribunal beyond the terms of the Act.
It can be expected there will be either an appeal to the Full Bench of the Tribunal or a case stated to the Full Supreme Court. In any event, the decision highlights the necessity of ensuring that independent medical examinations are arranged prior to a determination, particularly a rejection of a claim.
If you wish to discuss issues arising out of this decision, please contact John Ward on 8210 1219 or Sandy MacGregor on 8210 1202.
Minister Moves to Outlaw Pattern Bargaining
Our September 1999 Employment Briefly foreshadowed that the Federal Workplace Relations Minister, Mr Peter Reith, was looking to prevent unions engaging in pattern bargaining. True to his word, on 11 May 2000, Minister Reith introduced the Workplace Relations Amendment Bill 2000 into Federal Parliament, the aim of which is to outlaw "pattern bargaining" and related industrial action.
"Pattern bargaining" is essentially a system of collective bargaining, whereby unions use a particular agreement as a model which is agreed to by more than one employer in a particular industry. This system of bargaining is to be contrasted with genuine enterprise bargaining, which requires negotiation by management, employees and their representatives at each enterprise, with outcomes based on local circumstances and mutual interests.
Minister Reith has described pattern bargaining as "a manipulation of the legislative right to enterprise bargaining", and argues that pattern bargaining is contrary to the objective of encouraging genuine enterprise or workplace agreement making. The proposed reforms seek to qualify access to the right to take protected industrial action so that the Australian Industrial Relations Commission can find that a party is engaging in pattern bargaining and thus terminate the bargaining period, rendering industrial action unprotected at law. The Bill also proposes that the Commission will have the power to issue orders, including interim orders, in appropriate circumstances to prevent or stop industrial action.
Supporters of pattern bargaining argue that it ensures a "level playing field" and prevents undercutting from competitors. ACTU President Sharan Burrow argues that the proposed ban on pattern bargaining would unfairly restrict the right of workers to pursue issues of common concern on an industry level.
The proposed amendments in relation to pattern bargaining provide an important determinative role for the Australian Industrial Relations Commission as the independent arbitrator in disputed matters, thus recognizing an enhanced jurisdiction for the Commission.
Pay Rise for Australian Workers Under Federal Awards
On 1 May 2000, the Safety Net Review - Wages Decision 2000 was handed down, which saw the Federal minimum wage increase to $400.40 per week.
The decision has attracted criticism largely from employer groups, in what has been described as a "futile attempt to address the alleged disadvantage suffered by the allegedly low paid". Not surprisingly, the ACTU has welcomed the decision, claiming that it would address the widening gap between award dependent employees and higher paid workers.
The Commission held that the flat $15.00 per week increase in award rates represented an appropriate balance between the requirement to provide fair minimum standards and the relevant economic considerations, including the desirability of a high level of employment. Further, the increase was found to be sustainable in the current "generally positive economic environment".
On 31 May 2000, the Industrial Relations Commission of South Australia in the State Wage Case followed suit, and ordered that the State minimum award wage would also be increased by $15.00 per week to $400.40 per week.
High Court Upholds Award Simplification Under Workplace Relations Act 1996
The recent decision of the majority of the High Court in Re Pacific Coal Pty Ltd Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 saw a majority of the High Court upholding the legislative provisions which deal with what is commonly known as "award simplification". The Court was divided 4:3 in upholding the provisions. The decision upholds, under the conciliation and arbitration power in the Constitution, direct alteration by the Parliament of an existing award, made by the process of conciliation and arbitration in the settlement of an interstate industrial dispute.
The issue before the Court was whether decisions and orders of the Commission that deleted various provisions from the Coal Mining Industry (Production and Engineering) Consolidation Award 1997 were beyond the jurisdiction of the Australian Industrial Relations Commission. The CFMEU challenged the decisions of the Commission on the basis that Section 3 of the Workplace Relations Act 1996, in so far as it purports to provide for award simplification, is not a valid law under Section 51(xxxv) of the Constitution. The CFMEU argued that the legislative provisions did not have a sufficient connection with the conciliation and arbitration power, and the Commission therefore had no jurisdiction to make the order pursuant to those provisions. The majority held that the challenge to the legislation failed. In their view, the effect of the provisions for award simplification found in Section 3 was to confine the legal effect, given by statute, of awards to 20 allowable matters, and they found that the provisions retained the character of being with respect to "conciliation and arbitration for the prevention of industrial disputes". This conclusion was made on the basis that it is the contract of employment, and not the award, that is the relevant source of the rights, duties, powers and privileges of the parties to the employment relationship. The provisions of Section 3, in so far as it deals with the legal effect given to awards, is therefore a law with respect to conciliation and arbitration.
AIRC Applies SAIRC Decision
The decision of the AIRC in The Australian Workers' Union v Rail Services Australia (2000) 48 AILR 4-276, applied the South Australian decision of Advertiser Newspapers v Grivell (1999) 46 AILR 11-137, and held that employees who have had their contracts of employment unilaterally changed may argue that their employment has been effectively terminated, even if they continue to be employed by that employer.
In this case, the applicant had his salary and job title unilaterally changed by the employer as a result of a restructuring process. In adopting Grivell's case, the Commission found that the employer had in fact changed the employee's conditions of employment as provided for in his contract, which had the result of repudiating the contract of employment, and thus terminating the employment relationship. Grivell's case had distinguished the previous decision of the AIRC in Brackenridge v Toyota Motor Corporation Australia Limited (1996) 142 ALR 99, wherein it was held that where an ongoing relationship exists between the employer and employee, a termination of employment cannot be said to have occurred.
New Team Member
We are pleased to announce the recent addition to Norman Waterhouse of Kate Southcott, who has just finished a year as an associate at the District Court. Kate will be working in the Employment and Insurance team. She is contactable on 8210 1278.
Commonwealth Compensation
We will shortly be issuing a dedicated Commonwealth Compensation Newsletter, which will provide details on:
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