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Fairwork Australia ( FWA ) conciliations

Since the 1/7/2009 FWA has taken over the Australian Industrial Relations Commission one of the major changes is the way unfair dismissal conciliations are conducted. Now some 90% are conducted by phone, with a settlement rate of some 75%.

It appears to be a success, with less cost and the conferences conducted far quicker than they used to be. Many lawyers and industrial relations practioners are complaining about the ''over the phone system'', arguring it''s only by Employers and Employees sitting opporiste each other the truth comes out and right level of payment and justice can be achieved, beit at increased cost. There is an argument for this, particulary if there is alot of documents to be tabled. I think the new system works, the down side is alot more Employees are representing themselves, you can say this is good thing, if the unfair dismissal claim settles for the right amount or reinstatement is achieved. Overall my view is the amount unfair dismissals are settling for has fallen. But what happens when it doesn''t?. FWA do not muck about and the case is then sent to trial. The Employee is then stuck with the cost of this or dropping their claim. So many Employees are now finding themselves on the end of phone with little support and not knowing what to do. Does anyone care?. Certainly the Employer doesn''t, the Goverment doesn''t as it achieved what it always promised, that was unfair dismissal rights for all, at lower cost and payouts, in this regards the Goverment has honoured an election promise. What is not understood by many applicants is that Fairwork Australia is not there to support your claim, but to facilitate your claim and must remain impartial. But in my view unfair dismissals is about the individual, the person who has lost their job. Employees should ring around, get a feel for should they be represented, what is their claim worth, what are the prospects of success.

Unfair Dismissal because of Facebook

Different companies will have different policies on the use of social networking sites. The fact of the matter is, employees ARE being unfairly dismissed for posting certain comments or pictures on social networking sites such as Facebook and MySpace. A recent article in The Age newspapers included the expert opinion of Steven Penning, a partner with the Turner Freedman law firm, who stated that current employment contracts and company policies are unlikely to cover employee use of social networking sites. Penning went on say that because employees were not aware of what they’re not allowed to do, they may be able to say that they shouldn’t be terminated because they were not aware of the workplace conditions.

While employees may argue that what they do outside of work hours is their business, what employees must consider is whether that they have damaged the relationship between themselves and the employer by making public comments on a social networking site such as Facebook. Have you damaged the name or reputation of the company you work for? A duty of trust and courtesy exists between the employer and employee; are you breaching this duty by your use of Facebook?

Another recent issue involving Facebook in the workplace is whether employers should allow their employees to access the social networking site while at work. Employers must decide whether allowing their employees to access Facebook at work leaves the employer open to issues of online harassment and discrimination. For example, if one employee sexually harasses another employee on Facebook in the workplace, is the employer vicariously liable for the sexual harassment of the victim? A number of issues surround Facebook and employees should be aware of their company’s policy on the matter.

Rescue workers'' on unfair AWAs

WORKERS left stranded on unfair individual contracts should be able to be rescued by the industrial umpire, a Senate inquiry has urged.

In a break with Labor''s stance that nothing could be done to help workers ripped off by Australian Workplace Agreements that undercut awards, Government senators have urged a policy rethink.

In a majority report on transition laws to the new workplace system, they want Fair Work Australia to be given the power to rescue workers on AWAs that "significantly disadvantage an employee compared to the award that would otherwise apply".

Unions gave extensive evidence to the inquiry about workers who would be stuck on underpaying contracts for five years after signing "take it or leave it" AWAs under the Coalition''s WorkChoices laws.

The report calls for Fair Work Australia to have the power to either terminate the contract — regardless of whether it had reached its expiry date — or vary the contract to bring its conditions up to par.

The senators have also sought to beef up collective bargaining conditions in the new laws.

They recommend that when a new enterprise agreement is struck, it should automatically replace any AWAs or transitional contracts in that workplace unless the agreement specifically declares otherwise.

But Australian Chamber of Commerce and Industry chief Peter Anderson said it would be wrong for the Government to retrospectively vary contracts that were legal at the time they were signed.

He said employers were already subject to a host of new employment costs because of the raised minimum employment standards under Labor''s laws, which would apply to all workers, including those on low-paid AWAs.

Workplace Minister Julia Gillard said the Government would consider the Senate report but played down expectations of a shift.

"Unfortunately, all of the harm caused by the former Liberal government''s unfair and extreme WorkChoices laws cannot be undone overnight," she said.

Ms Gillard said that workers on existing unfair AWAs would still be protected by Labor''s new National Employment Standards from January 1 next year.

Misha Schubert, May 7, 2009, The Age

Discrimination By Silence

Discrimination comes in all forms.

Sometimes it’s what is not said that can constitute discrimination. Everyone considers repeatedly calling someone a “fat slut” as discrimination on the basis of weight, or calling someone “a black dog” discrimination on the basis of race.

But consider this: if all the other employees in the company receive new uniforms and you don’t because you are overweight, is that discrimination? If a Jewish employee is allowed to take time off for Hanukkah, but a Muslim employee is not allowed to take time off for Ramadan, is that discrimination? If an employer allows employees to go off to the pub on a Friday afternoon, but doesn’t allow you to attend mosque, is that discrimination? If you are Indian and your employer makes a comment about the smell of your Indian food, but makes no comment to any other employer about their food, is that discrimination? The answer to all these questions is YES. Just because your employer doesn’t verbally say anything discriminatory, doesn’t mean they aren’t discriminating against you in some way.

Many employees are treated differently or less favourbly not becaue not what was said but by the Employers actions. Another example, you come back from injury and the boss won''t speak to you, gives you the worst job, or won''t give you anymore overtime. You do have industrial relations and discrimination rights, don''t put up with it.

Earrings / Piercings in the Workplace

At A Whole New Approach we receive a number of phone calls by employees who are unhappy with their employer’s request/demand that they take out an earring or body piercing.

Employees must keep in mind that they have no given right to wear such a piercing to work.

Piercings can be offensive to customers or clients, or tarnish the appearance or reputation of the business in some way. The business is not all about the employee; if the employer does not want an employee to wear a piercing for some reason then they are entitled to request that that piercing be taken out. In general, employers can make reasonable requests in regards to their employee’s appearance.

In the current economic climate, and the new industrial relations landscape, the question remains: Are you willing to lose your job over a piercing? Are you going to stand up to your employer about your choice to wear a piercing and risk losing your job? At the end of the day, it is your choice.

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Discrimination comes in all forms.