The Naked Industrial Officer 1d5o51

The

Naked Industrial Officer

STEPHEN W. ROOKE

Copyright © 2019 by Stephen W. Rooke.

Library of Congress Control Number: 2019919349 ISBN: Hardcover 978-1-7960-0793-0 Softcover 978-1-7960-0792-3 eBook 978-1-7960-0791-6

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CONTENTS

Preface

Acknowledgements

Introduction

PART A

Chapter 1 What Is Industrial Relations?

Chapter 2 The Role of the Industrial Officer

Chapter 3 Legislative Background

Chapter 4 The Players

Chapter 5 The Role of Lawyers and the Law in the Conduct of Industrial

Relations

Chapter 6 Some Advice on Giving Advice

PART B

Chapter 7 Investigating Performance Issues and Misconduct

Chapter 8 Other Investigations

Chapter 9 IR Problem-Solving

Chapter 10 Writing

Chapter 11 Communication

Chapter 12 Agreements and Contracts

Chapter 13 Grievance and Dispute Resolution

Chapter 14 Workplace Health and Safety Issues

Chapter 15 Termination of Employment

Chapter 16 Unfair and Unlawful Dismissal and Adverse Action

Chapter 17 ‘The Union Is Coming’—Right of Entry

Chapter 18 Industrial Action

Chapter 19 Advocacy

Chapter 20 Negotiation

PART C

Chapter 21 The Importance of Context

Chapter 22 Industrial Relations Is about People

Chapter 23 The Future

Chapter 24 The Industrial Officer’s Ethos

Appendix

Biography

Preface

I have separated the book into three parts. In Part A, I address common questions that people ask me:

What is industrial relations? What exactly do we do in the industrial officer role? Who are the various players involved?

I also look at the legal background against which industrial relations is played out and canvas the role of lawyers and the law. Finally in Part A, I offer some advice on how to go about preparing and delivering advice, something that you will often have to do. And it can be frustrating for yourself and others if you don’t master this skill. In Part B, we delve more deeply into the world of the industrial officer and the situations that they face on a day-to-day basis, dealing with things like:

grievances and disputes performance issues discipline safety issues

union visits.

We take a serious look into the experience and skills involved in negotiation and advocacy and how to prepare for these activities. Then in Part C, we examine differences in industrial relations practices in different industries and at different times and how the practice of industrial relations in Australia might further respond to economic, technological, and social pressures. And the theme that I will try to develop throughout is what was put most succinctly by Mr Justice Sheldon in In re Loty and Holloway and Australian Workers Union (1971) AR (NSW) 95 when he said, ‘Mr Commissioner Manuel in a recent case put it in a nutshell and in language readily understood in the industrial world when he conceived his duty to be to ensure “a fair go all round”.’ A fair go all round means a fair go for all concerned: certainly the employees and employer but also the broader community who are often impacted by what is done in the name of industrial relations. Impacted also are the organisations that represent employees and employers, the shareholders in companies in which disputes occur, the tribunals whose job is to assist in the resolution of disputes and even governments. The remit of industrial relations tribunals from the earliest times has been to ‘act according to equity and good conscience and the substantial merits of the case, without regard for technicalities or legal forms’ (Commonwealth Conciliation and Arbitration Act 1904 s 25). It is true that in recent decades, there has been less focus on ‘a fair go all round’ and an increased emphasis on procedural compliance. But as High Court Chief Justice Robert French put it in the following age in the case of Alqudsi v. The Queen (2016) HCA 24, ‘[t]he final and paramount purpose of the exercise of federal judicial power is “to do justice”. Sir Isaac Isaacs said so in typically emphatic language in 1923 and added “[a]ll other considerations are means to that end.”’ I attribute much of my success in my long career as an industrial officer to my earnest desire of achieving a fair go all round. To achieving just outcomes.

I’ve tried to write each chapter to stand independently. So you can jump straight to what interests you most without having to read what comes before it. This is not a textbook. I’ve tried to write it in the conversational style I would use if I were sitting with you in an office or a tutorial room. Each page contains only one or two thoughts, so some pages are quite short. That’s to help you think about what I have to say. You will probably disagree with some of it. That’s good. I have made you think. I cannot ask for more than that. The book is what one person has learnt over more than half a century in a range of industries, locations, and roles. It is designed to be read easily by anyone who is interested in a career in industrial relations or maybe is just curious as to what this vaguely understood activity is all about. My way is certainly not the only way. But I have been reasonably successful, so I have lots of ideas to share with you. Nor is it a shortcut to becoming a brilliant operator. But I am confident that it will help those new to the profession to be effective in their industrial officer roles and to avoid many of the pitfalls that they might otherwise stumble into. Where I refer to an industrial officer, I will follow the example of Iain Morley QC in The Devil’s Advocate and use he in one chapter and she in the next and so on in an effort to be gender-neutral.

Acknowledgements

I would have not been able to write this book if not from the influence of a great many people throughout my life. My parents, Sam and Enid Rooke, sacrificed much to ensure that my siblings and I had the best education that they could afford. My teachers, particularly in secondary school, did their best to encourage me to make the most of my abilities. My bosses and mentors in my years working for BHP—John Prescott, John Hayes, John Sullivan, Warwick Jones, and Cec Hall—inspired me to develop the skills and professional discipline that they themselves displayed. The opportunities they provided for me to gain experience and knowledge were invaluable. The many union officials with whom I have had dealings over more than five decades taught me that merit never lies entirely on one side of a dispute and that it is possible for reasonable minds to differ as to the relative merits of different perspectives of a situation. I have been greatly influenced by the writings of many authors, some of which are referenced in this book. They have instilled in me a love of simple and clear written expression, which has been an asset in many ways. I am particularly grateful to my young colleagues Claire Quenby and Madisson Powell for insisting that I knuckle down and write this book and for their enthusiastic reading and comments on the early draft chapters. The interest and encouragement that I received from several other colleagues and friends kept me going when, at times, my level of commitment waned. I am particularly grateful to Dean Brajevic, Stephen Dunstan, and Katherine Neale for the generous gift of their time to read the completed manuscript and provide many thoughtful comments and suggestions.

Introduction

The Industrial Officer Role Stripped Bare

Why is the title The Naked Industrial Officer? I use the name industrial officer even though it is somewhat outdated in many organisations. I use it to cover all positions that fall within the ranks of the industrial relations profession. I have used the word naked in the title as I will be attempting to strip away much of the mystery that surrounds industrial relations in the eyes of other branches of management and for those who are new to the profession.

PART A

Chapter 1

What Is Industrial Relations?

Chaos often breeds life, when order breeds habit. The Education of Henry Adams, H. B. Adams

Sure, it’s an intuitive, somewhat inexact science. There are few absolutes like there are in engineering and ing. But there is an underlying structure, which I will attempt to map out. This reminds me. Much of what I write will be through the eyes of an employer representative. But I hope it will also be relevant to people starting out in union roles. Regardless of which side of the fence we are on, we have a lot in common. The dynamics of industrial relations (let’s use IR from now on as I’m sure you know what this abbreviation stands for) is driven by attitudes and behaviours of individuals and groups who have some common interests that bring them together, but these may also be competing, sometimes strongly competing, interests. Add to that mix personalities and egos that sometimes dominate situations, and you see why the role of the industrial officer, whichever side he is on, is a challenging one. Superimpose over this the activities of governments at state and federal levels, and it is understandable that some people find IR incomprehensible and even daunting. It is an aim of this book to make it less so.

Merit rarely resides all on one side of a disagreement. The industrial officer must be prepared to assess the merits of the other side’s argument to make a judgement as to what would be a fair outcome. The focus in an industrial dispute too often seems to be concentrated on competing interests. But there are also always common interests. Always. If there weren’t common interests, there would be no need for us to engage with each other. Please keep that in mind as you read this book.

Chapter 2

The Role of the Industrial Officer

You’ve got to think about big things while you’re doing small things, so that all the small things go in the right direction. Alvin Toffler

I entered the industrial relations world almost by accident. In high school, my serious ambition was to be a teacher. Vocational guidance counselling suggested other possibilities, including law and public relations. But it was my mother who came across the ment in the Newcastle Morning Herald calling for applicants for traineeships in industrial relations at the Broken Hill Proprietary Company Limited’s Newcastle steelworks. A discussion with my maths and economics teachers led to me applying and being accepted. On reflection, aptitude for careers in law and public relations was probably a good match for what was to come. If you don’t already have a basic understanding of legal processes, you’ll soon need it. The first federal industrial relations legislation, the Commonwealth Conciliation and Arbitration Act 1904, comprised ninety-two sections and was a mere twenty-two pages. It was once described by Professor Ron McCallum as ‘a nice little act’. Almost every federal government since then has added to the volume of this legislation. The fair work legislation textbook that I keep on my desk is over 2,000 pages in length. But that’s not all. Industrial officers now have to be able to understand and deal with laws in areas of health and safety, worker’s compensation and rehabilitation, contract, competition, environment, crime, road traffic, and so on. Familiarity with the Commonwealth of Australia Constitution Act will also come in handy.

Public relations involves representing your employer or client to the public at large and often to specific sectors of that public. Industrial relations involves similar activity but is directed to more specialist groups. The industrial officer who works for an employer is directly involved in relations with employees, their unions, and sometimes with tribunals and government regulators. If she works for a union, she will engage with employers and their associations, of her union, and also those same tribunals and regulators. These interactions will rarely be one-off. It is in the context of those ongoing, relatively long-term relationships that the industrial officer goes about her day-to-day work. And that requires her to balance short- and long-term objectives. A no-holds-barred, winner-take-all approach might provide her with success today, but at what long-term cost? There is a saying, old but true, that she ‘who lives by the sword, dies by the sword’. Please take this on board. The person whom you treat mercilessly today might be someone whom you need to ask a favour of in the future. If you work in the public sector, the union official you are dealing with today could some day be your minister! Also heed the advice in Sun Tzu’s The Art of War, ‘when you surround an army, leave an outlet free. Do not press a desperate opponent too hard.’

What is IR strategy? It’s an integral part of an organisation’s overall business strategy. It follows therefore that for the industrial officer to develop IR strategy, she must first understand that business strategy. To put it in practical , the industrial officer should ensure that everything she does in the management of IR should be done with that in mind. She must try to never overlook the big picture and the real priorities of her organisation. That sometimes means making minor concessions in dispute situations: sort of like losing a battle in order to win the war. Let me give an example.

Hammer Drills I was once called upon to advise an organisation that was having difficulty ge

Chapter 3

Legislative Background

The more things change, the more they are the same. Alphonse Karr

The primary legislation that the industrial officer needs to be familiar with is the IR legislation enacted by the federal parliament, currently titled the Fair Work Act 2009. Don’t expect it to be an easy read. Get an annotated copy that summarises the relevant case law and includes other commentary in relation to each section of the act. Good ones include:

• Fair Work Legislation published by Thomson Reuter • Australian Fair Work Act 2009 with Regulations and Rules published by Wolters Kluwer.

Without a volume such as one of these, you will struggle to find and apply the legislation and the voluminous case law relevant to your day-to-day issues. If your organisation is covered by one of the state systems, you will of course need to be aware of the IR legislation that applies in that state. But that is not all the law that you will need to be aware of. There is a collection of laws aimed at, amongst other things, protecting employees from injury,

unlawful discrimination (including sexual harassment and bullying), and other forms of adverse action, assistance to employees injured at work, superannuation, long service leave, taxation, and privacy. Trade practice legislation has, on occasions, been relied on by parties to industrial disputes as has criminal law. If you have employees who operate vehicles on public roads, you may need to access the relevant state legislation covering this activity. On one occasion, I even found it necessary to study the Northern Territory law governing the possession and lighting of fireworks! I have found that the best place to access commonwealth and state legislation and the decisions of the many courts and tribunals whose job is to interpret and apply the legislation is the website of the Australasian Legal Information Institute (AustLII). That’s at www.austlii.edu.au. Have a look there. It’s free. You can spend hours there reading lots of interesting stuff. Keep abreast of cases in which the legislation is interpreted and applied. Read the decisions of the commission and judges. I repeat, read the decisions, not just somebody else’s summaries. If the decision is well-written, and unfortunately not all of them are, you will not only gain an understanding of the thinking that went into a decision but also benefit from seeing how good writing makes easy reading. Good writing is a skill that you should strive to develop. How do you know when the commission or a court has handed down a decision that you ought to read? There are online resources that do this for you. One that I like is Workplace Express, but you have to pay for it. A number of law firms publish articles that you can subscribe to for free. Check them out. If you are interested in the history of Australian industrial relations legislation, there is a short paper on the subject in Appendix 1 at the end of this book.

Chapter 4

The Players

All the world’s a stage, and all the men and women merely players: they have their exits and their entrances; and one man in his time plays many parts. As You Like It, William Shakespeare

On the IR stage, there are many players with diverse objectives, needs, and wants. That inevitably creates tensions and sometimes leads to conflict. It is worth identifying the various players and their different interests.

• There are employers and their associations and peak bodies. • Employees and their job representatives and unions (if they belong) and union peak bodies. • Political parties and their branches. • Governments both state and federal. • The Fair Work Commission and its , the general manager of the Fair Work Commission, and the Fair Work ombudsman. • The Australian Building and Construction Commission.

• State IR tribunals. • Courts. • The media. • The general public.

Employers

Employers of most of the Australian workforce are small businesses employing a dozen or so people. They have no dedicated HR or IR professionals. Employment arrangements are mostly governed by awards rather than enterprise agreements. Their owners rely upon industry associations or government departments for advice on employment matters. Their main objective is to earn a profit by employing workers to produce goods and services for sale to the public or to other businesses. Medium-sized businesses, those employing fewer than, say, 1,000 employees, make HR part of somebody’s job within management. They may or may not have an enterprise agreement. They could be a private family-owned company, a public company listed on the stock exchange, or a local government instrumentality. Most are of industry associations, which they use for advice on employment matters, and they may also use lawyers specialising in employment law. Many small- to medium-sized enterprises operate in highly competitive marketplaces. They rely heavily upon employees’ commitment to the success of their businesses. Large enterprises, employing a thousand or more people, often find it necessary to have people with IR expertise in their management teams. Many operate under enterprise agreements negotiated by their in-house IR people or by staff from an industry association.

Employees and Unions

Employees may be hired directly by the enterprise for which they are performing work or by a contractor to that enterprise or, increasingly, by a labour hire business. They may or may not be union . At the time of writing, union hip in the private sector workforce was believed to be at less than 10 per cent. It is higher in some industries such as construction and mining; lower in others such as small business and high-tech and professional services. Traditionally, most employees were employed on what we know as ‘permanent’ status, being either full-time or part-time. However, in recent times, more employees are being engaged as so-called casuals, although there is growing confusion as to what constitutes genuine casual employment. There has also been an increase in the numbers of workers employed for a specified period of time or for a specified task or for the duration of a specified season. This trend has led to the phenomenon labelled the ‘gig’ economy, an environment in which temporary positions are common and businesses contract with workers for short-term engagements. The trend away from ‘permanent’ to other forms of employment relationship has presented challenges for unions in recruiting and organising activity. This has contributed to the decline in union hip amongst Australian workers. The need to reduce costs and achieve efficiencies has led to a reduction in the number of unions through amalgamations, although in many cases, the amalgamating unions have ed together because of common ideologies rather than for more strategic reasons. Union often elect workplace delegates who can perform an important role in maintaining constructive relationships at the workplace. I have had close dealings with countless union delegates during my career and have found many of them to be positively motivated, highly principled, and deserving of respect. But not all of them have come into the role with the experience and skill level that it demands. At times, my patience has been tested when dealing with some

of these individuals, especially those who come into the role believing that their job is to attack the employer at every opportunity and to take up every issue brought to them by regardless of whether it has any merit. I have to keep in mind the following advice: ‘Never get angry. Never make a threat. Reason with people.’ That’s from Mario Puzo’s The Godfather. So patient I have always tried to be. By continuing to behave reasonably, I have usually been able to assist a newly appointed union delegate to adopt a more objective and constructive approach, often assisted by other more experienced delegates.

Political Parties

The original intention of the writers of the Australian Constitution was to confine the commonwealth’s power to legislate in the industrial relations area to that of making laws for ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state’ (Commonwealth of Australia Constitution Act s 51(xxxv)). But the creative interpretations of other constitutional powers by governments of both persuasions, aided by an increasingly centralist High Court, have enabled the commonwealth’s industrial relations lawmaking to extend well beyond that original intention. As mentioned previously, the first commonwealth industrial relations legislation, ed in 1904, consisted of ninety-two sections contained in twenty-two pages. The current legislation contains more than 800 sections. The 1904 Act had been amended forty-two times by the time I first encountered it in 1965 when I ed BHP’s industrial relations department in Newcastle. Since then, whenever there has been a change in government in the federal parliament, the new government has almost invariably pushed to amend industrial relations legislation.

Governments

State parliaments already had IR legislation in place at the time of federation. New South Wales for instance had the Industrial Arbitration Act. It also was a nice little act, consisting of only forty-seven sections contained in seventeen pages. The New South Wales legislation has since expanded to more than 400 sections. An exception to governments clinging to their power to legislate in the IR area is the decision by Victoria in the 1990s to hand over to the commonwealth its general industrial relations powers. Governments of both persuasions have stuck with the independent tribunal model for dealing with industrial disputes. But whilst they seek to maintain a semblance of an independent body, they do at the same time provide guidance by specifying the objects of the legislation, and quite often, they set restrictions on what the industrial relations tribunals are allowed to do. For example, at the time of writing, the Fair Work Commission cannot arbitrate a dispute unless this is authorised in an enterprise agreement and one of the parties has requested it (Fair Work Act 2009 s 739). Governments also mandate things that a tribunal must do in certain circumstances. For example, currently, the Fair Work Commission must revoke or suspend a union official’s entry permit in certain circumstances (Fair Work Act 2009 s 510). Governments are also, of course, large employers. Therefore, through managers of the various government departments, they have dealings with unions on an ongoing basis.

Fair Work Commission and State Tribunals

of industrial tribunals come from a range of backgrounds: trade unions, employers and employer organisations, the public service, and the law. However, regardless of background, most, in my experience, take seriously the role of honest broker, working constructively with both sides of a dispute and genuinely trying to help them reach an agreement that both can live with. Obviously, being only human, some are better at it than others. The approaches taken by tribunal and judges vary when it comes to applying legislation or the provisions of enterprise agreements and awards. As pointed out by Scalia and Garner in Making Your Case: The Art of Persuading Judges (Thomson/West, 2008), the approach of some is ‘simply to give the text its most natural meaning’, whereas at the other extreme, there are those ‘who believe it their duty to give the text whatever permissible meaning will produce the most desirable results’. Most sit somewhere between these two extremes. The attributes that make a commission member particularly good at conciliation activities are different from the attributes that make for well-reasoned and clearly expressed arbitrated decisions. Some who are particularly good in one area tend not to be so good at the other, in my experience. Many specialise in one or more industries and so, over time, build up knowledge of those industries. It is usually beneficial when the member allocated to assist in a dispute has a good knowledge of the industry in which the dispute has arisen.

The Fair Work Ombudsman

The Fair Work Ombudsman is a federal government agency established to provide free advice and information to workers and employers and to investigate

workplace complaints. The Fair Work Ombudsman can institute proceedings to enforce compliance with legislation, awards, and enterprise agreements.

The Australian Building and Construction Commission

The Australian Building and Construction Commission is an independent statutory authority of the Australian government. Its role is to promote understanding and enforce workplace relations compliance in the Australian building and construction industry.

The Courts

In recent decades, the federal legislation has been amended to provide for greater involvement of the Federal Circuit Court and the Federal Court in industrial relations matters. Not infrequently, issues concerning employment and industrial law are referred to the High Court. This is, I suggest, an inevitable consequence of the codification of industrial relations concepts and procedures that were once left to the broad discretion given to tribunal . An unsatisfactory consequence is that matters that were once disposed of within a few weeks often now take months or even years before they are conclusively determined. Not only does this take up the time of people who would probably be better engaged in more productive pursuits but the necessary involvement of lawyers also comes at significant cost to the parties. The time and cost involved in litigation often lead to compromises being reached. Whilst compromise is not always a bad thing, I don’t think it is a good thing that an employee who has been seriously wronged should have to accept

less than a just settlement. Nor is it a good thing that employers adopt the practice of paying ‘go away money’ to ex-employees whose dismissals were justified and are deserving of nothing. That is not a fair go all around.

The Media

To many journalists:

o all brides are ‘radiant’ o all safety and health incidents are ‘life threatening’ o all industrial disputes are ‘crippling’.

Their aim is to sell newspapers or improve ratings, not to resolve disputes. In fact, they thrive on conflict and controversy. So don’t expect the media to help you resolve a dispute. It is far more likely that they’ll add fuel to the fire.

The General Public

The general public can become a player in industrial relations in a couple of ways. They can be directly affected, for instance, if an industrial dispute affects the supply of fuel for their cars or their beer at Christmas. They can also become interested in an industrial dispute even if not directly affected. When this happens, it is usually not helpful to the employer involved. The majority of the Australian public tends to the side that it perceives to be the underdog, and the degree of increases with the level of impact the dispute is having on themselves directly. If their supply of petrol or beer is threatened, they’ll expect someone to fix it—the employer, more often than not.

Chapter 5

The Role of Lawyers and the Law in the Conduct of Industrial Relations

Don’t misinform your doctor nor your lawyer. Benjamin Franklin

Like it or not, an industrial officer is unlikely to go through her career without ever having to resort to using a lawyer or lawyers. Even if she is herself legally qualified and may even be ed to practice law, she often enlists the services of an external law firm. This may be because:

• she is too busy and does not have time to do the work herself • lawyering is not her full-time job; she might not do it well enough • she does not have the resources to do it.

Legal services mainly take two forms. One is providing advice. The other is representing the client in both formal and informal legal proceedings. Legal advice usually occurs in the context of a question or problem that requires an answer or solution. Usually, the advice is provided in writing and would be in the following format:

• What are the relevant facts? • What are the legal issues that need to be addressed? • What are the laws that are relevant to the legal issues? • How do you apply the laws to the facts? • What are the options? • What are the risks, if any?

The relevant facts? The industrial officer will have responsibility for ensuring that the lawyer is fully apprised of the facts of the situation in respect to which legal advice is being sought. By facts, I mean what is actually known as distinct from what people might believe. Either she will already have gathered the facts or will have other of the organisation provide them to the lawyer. that lawyers usually charge on the basis of the amount of time they spend working on your matter. So it helps to keep the cost down if the industrial officer is proactive in ensuring that she does as much of the legwork as she can. It is better to err on the side of providing more information than is strictly relevant rather than risking omitting to tell the lawyer something important. I recall an occasion when a manager came to me with written advice that had been obtained from a legal firm and asked my view of the advice. A quick perusal revealed that the advice overlooked the existence of a federal award that applied to the situation being considered. It seemed that the person briefing the lawyer decided that the fact of the federal award was not relevant and so did not include it in his brief. As a result, the advice was wrong and thus worthless. Sometimes, facts relevant to the case in question may not be known to the industrial officer or others involved in briefing the lawyer. It may not even be immediately apparent that facts are missing. Hopefully, discussions that take place between the lawyer and client identify aspects of the case in respect of which further factual information is required. If it is still not possible to ascertain those facts, at least the lawyer can qualify their advice by referencing to the possibility that further facts could emerge that affect the validity of the advice.

The legal issues that need to be addressed? It is the lawyer’s responsibility to identify the legal issues that relate to the factual situation presented by the industrial officer. An experienced industrial officer will often have a good grasp of the legal issues, but she wants confirmation. If our industrial officer has maintained a close interest in the decisions of tribunals and courts, she will be able to assist the lawyer to narrow down the legal issues. The laws that are relevant to the legal issues? As we discussed in Chapter 3, employment in Australia is highly regulated. Legal requirements are to be found in legislation, regulations, industrial awards, enterprise agreements, and codes of practice. Then there are decisions of tribunals and courts that explain how legal requirements apply in practice. The lawyer should be across all this. That means that our industrial officer needs to take care in selecting the lawyer from whom they seek advice. Lawyers charge according to the amount of time that they spend on the client’s work. But choosing the lawyer with the lowest hourly rate may not be a good idea if they are going to have to spend time researching legislation and cases that the more expensive lawyer is fully acquainted with. Application of the laws to the facts? This may not be as simple as it sounds. For example:

• Legislation, although relevant, may not directly cover the circumstances under consideration. • Relevant legislation may be ambiguous. • Decided cases, although dealing with circumstances similar to those under consideration, may on closer examination be distinguishable because they are not exactly the same. • There are conflicting decisions from courts or tribunals in relation to apparently similar factual situations.

The risks. Legal advice should highlight any adverse consequences apart from the obvious result of an unfavourable decision from a court or tribunal. I have seen instances in which a union, for example, has won a case involving the

interpretation of a provision in an enterprise agreement in which the reasoning by which the decision was arrived at disadvantaged the union in a subsequent case. So be careful what you wish for! Although our industrial officer is entitled to expect the legal advice received to arrive at a conclusion, she should not be surprised if it comes with some qualifications. Legal advice is an input to business decision-making. But it is the industrial officer and other of her management who ultimately decide what they do with that advice. That leads me to the matter of legal professional privilege. This is a longstanding feature of most jurisdictions that protects communications between client and lawyer for the purpose of seeking and giving legal advice. It is a complex area and should not be thought of as a complete shield to disclosure. The effect, where it applies, is that neither the lawyer nor the client can be compelled to disclose the contents of those communications to another party or a court. The purpose is to protect an individual’s or organisation’s ability to access legal advice without prejudicing them in the future. So the written brief that our industrial officer provides to her lawyer and the legal advice received usually cannot be used against her, provided she keeps the advice confidential to herself and others within management who need to be acquainted with that advice in order to make business decisions. If the advice is shared beyond that small group, it is likely that it will no longer be privileged, and therefore, she can be required to disclose it in the course of legal proceedings. That can be a problem if, for example, management decided not to follow a legal opinion that advised in favour of what the other party to a dispute is claiming.

The other role that lawyers perform in industrial relations is representation of clients before the Fair Work Commission and courts. There is an automatic right to be represented by a lawyer in the courts but not so in the commission. In the commission, a lawyer (other than an in-house lawyer) must seek the commission’s permission to appear (Fair Work Act 2009 s 596). Permission is not automatically granted, and therefore, an industrial officer or HR officer may have to present the employer’s case. We shall discuss this further in the chapter on advocacy.

I have noted earlier the frequency in which governments of both persuasions have varied and added to the industrial relations legislation. Then decisions of the Fair Work Commission and the courts regularly add to the body of case law. If the industrial officer, when preparing an IR strategy, starts building that strategy based on the then existing law, she ends up with a strategy that has a very shaky foundation. Legislation changes with governments. How that legislation is interpreted and applied changes even more frequently with decisions of courts and tribunals. A better starting point for the development of an IR strategy is the organisation’s business strategy. As I said back in Chapter 2, the industrial officer must keep in the forefront of her mind the big picture and the real priorities of her organisation. The purpose of her IR strategy is to ensure that industrial relations management focuses on achievement of her organisation’s business objectives. Those are unlikely to change with a change in government. Actions outlined in the strategy must then be tailored to comply with the laws in force from time to time. Let me give an example.

Individual Employment Agreements Back in the mid-1990s, I ed a WA government-own

So the details of the strategy may be subject to change, but the basis of the strategy and its objectives do not necessarily change with changes to legislation.

Chapter 6

Some Advice on Giving Advice

Advice is seldom welcome; and those who want it the most always like it the least. Lord Chesterfield

An industrial officer has a duty to his organisation to provide the best advice he can and to ensure that his advice is understood. I must it to having sometimes not done the second part well enough. It can be difficult, especially if those you are advising don’t like what you are telling them. One thing is for sure: ‘You can’t do that’ is never good enough to be regarded as advice. The purpose of communication is to do more than just inform. Usually, you want somebody to:

• do something • not do something • do it differently.

The purpose of the industrial officer’s advice is to influence the decisions and

actions of his management. He does that by giving good advice that is understood and persuasive. He will be more likely to be understood if he has made an effort to understand management’s issues and priorities.

Let’s consider what constitutes good advice.

1. It addresses a real concern or issue. 2. The advice is ed by relevant facts and authorities. 3. It acknowledges other opposing views. 4. It is honest. 5. It is objective. 6. It considers what would be the view of the relevant court or tribunal. 7. It is easy to understand. 8. It is practical.

Your advice addresses a real concern or issue.

Sometimes, the hardest part of making a decision or giving advice is working out what has to be decided or advised about. For example, you might be asked to give advice on the appropriate disciplinary action to be taken against an employee who is misbehaving when in fact the real issue is the employee’s frustration over lack of clarity in what is required of them, inadequate tools or equipment, lack of training, mixed messages from management as to what is acceptable and unacceptable behaviour, or some other factor largely outside of the employee’s control. Dismissing the employee or taking some other form of disciplinary action will not resolve any of those issues.

The advice is ed by relevant facts and authorities.

Start with the facts. Always. Advice based on erroneous facts is usually worthless. Don’t just accept what somebody else thinks or believes happened. Interview people, inspect the scene, and consider alternative explanations. Our advice often has the potential to affect people’s livelihoods and reputations. This is serious stuff. Once satisfied that you have the relevant facts, you then need to refer to the relevant authorities. These can be in the form of legislation, tribunal or court decisions, company policy, work instructions, safe work method statements, or custom and practice. You will often hear it said that a particular act by an employee is in breach of company policy. You need to test this. Firstly, what policy? Does the policy apply? What does it say? What does it not say? Is the policy defensible at law? Is it clear, or is it ambiguous?

It acknowledges other opposing views.

The fact that you have to prepare advice usually means that there is no single obvious answer to the question you are asked to address. Consider the possible different approaches to the issue and explain why one is better than the others. Don’t just focus on the approach that you favour!

It is honest.

Never ever say something you know not to be true in order to gain for your view. Never. I repeat, never. You should also acknowledge the risks, if any, that might be involved if your advice is found to be wrong. , you are in the role of an adviser, not that of a court or tribunal making a final determination. So you often may not have the final say.

It is objective.

Follow the promise that High Court judges make when taking office: ‘To act without fear or favour, affection, or ill will’. It is far more important for the industrial officer to be respected by management for the honesty of his advice than it is for him to be liked because he tells them what they like to hear.

It considers what would be the view of the relevant court or tribunal.

Often, there will be court and commission decisions covering similar issues to the one you are dealing with. Read them. And I’ve said it before, read the actual decisions, not just someone else’s summaries. You don’t have to blindly follow them, especially those of a single judge or tribunal member. But if you decide not to apply the ruling in what looks like a similar matter to yours, explain what distinguishes your matter from the one decided, or explain the other authorities on which you prefer to rely.

The advice is easy to understand.

You need to explain your ideas in that everyone can understand; if you can’t do that, then maybe you haven’t thought it through properly. Another possibility is that if you are feeling difficulty in explaining your view, it is probably wrong. Need I say more?

The advice is practical.

It should go without saying that your advice must be able to be applied or implemented. But you can only be certain of that if you have thoroughly understood all the operating circumstances that are relevant to the issue on which you are providing advice. It is also important to check that the person you are advising has the authority to implement your advice. If they don’t, your advice is of little value.

That being said, the industrial officer should not assume that if he does what I have suggested, his advice will always be readily accepted. There are several reasons for this. Management may not like the advice because it conflicts with what they had already decided they were going to do. Or they might prefer an easier option or one that is less expensive, at least in the short term, or one that presents them in a better light. In the volatile atmosphere of an industrial dispute, management may not initially be interested in the industrial officer’s rational, objective approach to an issue. Thomas Paine is quoted as saying, ‘Time makes more converts than reason.’ Sometimes, it is best to plant a seed and wait for it to grow.

Sunday Overtime I recall an occasion when union delegates agitating for a particular outcom

I know IR practitioners whose first response when approached by a manager about something they want to do is to consider why they should not do it, quoting relevant law or other authority or warning of likely union or workforce reaction. A better approach, in my experience, is to explore with the manager the circumstances that have led them to want to take the proposed action and to arrive at a course of action that does not involve an unacceptable risk. Sometimes, the outcome will be an agreement to leave things as they are: but at least it will be an outcome arrived at collaboratively rather than a grudging acceptance by the manager of something imposed upon them.

There is a practice amongst a section of the mostly older of the IR community of avoiding, if possible, putting advice in writing. I make no comment on this except to say that it is not a practice to which I subscribe. There are several reasons for my inclination to put advice down on paper. There is a discipline involved in committing thoughts to writing that does not apply to nearly the same extent if I don’t do it. It enables me to critically review my argument, which is much more difficult to do when it is all still in my head. It means that I can have a permanent record of the thinking that went into a particular decision so that the decision can be understood and perhaps reviewed by myself or others when confronted with a similar issue in the future. It does of course impose some ability, but I see that as a positive. One has to be cautious about whom one allows to see what one has written. Do not distribute it to others who do not need to see it just to show them how clever you are.

He that wrestles with us strengthens our nerves and sharpens our skill. Our antagonist is our helper. Edmund Burke

Do not give up because your advice is rejected the first time around. As Desmond Tutu once said, ‘Don’t raise your voice. Improve your argument.’ I have never yet completed a piece of work and have been totally satisfied with it. Each time I read something that I have written, I see something that can be improved. That is happening constantly during the writing of this book. But there is usually a deadline to meet. So I have to accept that this is the best that I can do in the time available. If your advice has been rejected the first time around but you are confident that you are right, critically review the advice. Test it against the eight criteria that I have set out above. Also ask others who are not part of the discussion to critically review it. The result will be a better piece of work. Always. And perhaps you will be successful when your advice is presented a second time. Of course, we may not always be right. When we get it wrong, it is best to own up, share the learning from our mistake, and move on.

There are two final points that I wish to make about giving advice to management. The first is that the industrial officer’s duty is to give the best advice possible and to ensure that his advice is understood and then to own the outcome even if it is not exactly what he recommended. The second point is a qualification to the first. If the outcome of the discussion is action that involves a contravention of a provision of the Fair Work Act, the industrial officer must do all within his power to correct the situation. Section 550 of the act makes him an accessory to the contravention if he engages in conduct that in any way implicates or involves him in the commission of an offence. Standing silently by whilst an offence is committed could make him an accessory. If, for example, a manager denies an employee a payment to which they are entitled under an award or enterprise agreement, the industrial officer must inform the manager, preferably in writing, that what they are doing is an offence. And, if necessary, he must inform the manager’s superior.

PART B

Chapter 7

Investigating Performance Issues and Misconduct

Human blunders, usually, do more to shape history than humid wickedness. The Origins of the Second World War, A. J. P. Taylor

Let’s first of all consider instances of alleged misconduct. Ideally, disciplinary investigations ought to be conducted by someone from line management, not the industrial officer. My main reason for saying this is that the management of employee performance and conduct is an integral part of line management’s role. It is not, in my view, something that they should be allowed to hand-ball to the industrial officer. A secondary and practical reason is that if the industrial officer is required to defend an unfair dismissal claim in the Fair Work Commission, it can be awkward if she is the person who conducted the investigation and made the decision to dismiss. She can, and of course should, advise and the line manager who conducts the investigation. I’ll begin this chapter with twenty of the questions that I have most often been asked about disciplinary investigations.

1. In what circumstances should a formal investigation be conducted?

Management should conduct a formal investigation whenever they have a concrete allegation or other reason to believe that misconduct may have occurred. If they do not have a concrete allegation but enough of a suspicion to warrant making enquiries, they can start an informal enquiry. That might include an informal discussion with the person suspected of misconduct to obtain their explanation or reaction to what management have heard or seen. If management’s suspicion is reinforced as a result of this conversation, it would be appropriate at this time to advise the employee that a formal investigation will commence and the time and place of the investigation and the allegation will be investigated.

2. Does the employee whose conduct is being investigated have to provide a written statement?

A written statement from the employee is a reasonable requirement in most circumstances, but insisting that an employee should provide a written statement when they are reluctant to do so will probably not result in a statement that is very useful. Whilst the employee may decline your request to provide a written statement, they have no right to refuse to attend an investigation during normal working hours (see Mr Christopher Gunning v. Cetnaj Queensland Pty Ltd (2012) FWA 6627 at (68)–(69)). If an employee is reluctant to provide a written statement, the manager should get the employee to verbally provide the information that they want by asking them questions. The manager will need to take down their answers, show them what they have written so that the employee can confirm, correct, or add to it. The manager should invite them to confirm what is written in the final document by g it. Do not be too concerned if they refuse to sign. So long as the manager signs and dates the document, it is valid as the manager’s report of the conversation.

3. What if an employee refuses to provide information or answer questions?

Management have a right to ask them about relevant matters, and employees are required to assist an investigation by answering relevant questions truthfully (see Telstra Corporation v. Streeter (2008) AIRCFB 15 at (23) and Grant v BHP Coal Pty Ltd (No 2) (2015) FCA 1374 at (138)–(156)). If they refuse to answer questions, the manager should advise the employee that they intend to continue the investigation and that it may not be in the employee’s best interest to withhold information. The manager should advise the employee that they will make their decision based on the information that they have available to them. The manager still must present them with the allegations and any other information that will be considered in deciding an outcome so that the employee has an opportunity to respond. If the employee does not wish to produce other information or witnesses, the manager is free to proceed to the decision-making stage.

4. Does the employee have a right to have another person with them during an investigation?

If the employee requests the presence of a person, the manager should not unreasonably refuse the request (see Fair Work Act 2009 s 387 (d)). A refusal to allow an accused employee to have another person present may compromise your position if any disciplinary action you take is challenged before a court or tribunal. The manager should also check any policies that the employer has that relate to disciplinary investigations. If an employer has a procedure for dealing with disciplinary matters, the manager must ensure that it is followed.

5. What is the person’s role?

The role of a person is to witness what takes place and to offer assistance to the investigation. They are not there to speak on the employee’s behalf (see Victorian Association for the Teaching of English Inc. v. Debra de Laps (2014) FWCFB 613 at (52)). They are not to interfere with the manager’s interviewing of the employee. This should be made clear to the employee and the person prior to the commencement of the interview.

6. Who can be a person? Do I have to agree to whomever the employee wants there?

Anybody can be a person if they are reasonably available. It does not have to be a union representative. If the person that the employee wants as a person is not reasonably available, you can require them to nominate someone else. ‘Reasonably available’ will depend on the circumstances. If the employee insists on a particular person who is not available on the day and there is another person available whom it would be reasonable for them to use (that is, they have no reasonable objection to that person performing the role), you can insist that they use the other person. Alternatively, you can give them the option to delay the investigation, but if you do not want them on the job in the meantime, you must ensure that they understand and accept that they will not be paid whilst waiting for the person that they insist on using.

7. Should I also have a witness present?

It is advisable that the manager have someone else present to observe the process and to take notes. That will often be the industrial officer. But it is preferable that only one of them addresses questions to the employee. Plan the interview. Agree on who will do the questioning. If more than one person is questioning the employee, they could potentially claim that they were confused by the questions from two different people or even that they felt intimidated. Include in the interview plan an opportunity for the person doing the note-taking to clarify any issues that are not clear to them. Perhaps have the note-taker read back to the employee what they have written and get them to agree that it is an accurate record.

8. Can I ask a complainant, accused person, or witness to provide additional information to that contained in a written statement that they have prepared?

Yes. It is unlikely that a first written statement would provide all the information that the manager would want. The manager may also want to observe the other person’s demeanour during questioning to help determine the veracity of what they are saying. Procedural fairness requires that the employee be given adequate opportunity to answer any allegations against them. Their original written statement will often not include everything they wish to present in their defence. The manager should make a written record of the additional information and, ideally, have the person confirm what they have said by g the written record.

9. Can I suspend someone whilst the investigation is being carried out?

If it would be inappropriate for an accused person to remain in the workplace, the manager can instruct them to leave the workplace until requested to return. An example is where an employee is accused of assaulting or threatening a supervisor or other employee. However, if you do suspend them from working, you would normally have to pay them what they would have earned had they been allowed to continue working (see Downe v. Sydney West Area Health Service (no 2) (2008) NSWSC 159 at (414)). An exception is where an employment contract, legislation, award, or enterprise agreement provides for suspension without pay in these circumstances.

10. If the matter is one that warrants the involvement of the police, how should I proceed?

In most cases, it is best that management carry out its own investigation and draw its conclusions independently of any police enquiries. There are several reasons for this. First, conduct that is not a crime under the criminal law may nevertheless be misconduct in the employment context, justifying dismissal or other disciplinary action. For instance, the possession of a small amount of marijuana is treated as a misdemeanour rather than a crime in most Australian jurisdictions, whereas the use of such a drug in a high-risk work environment is generally regarded very seriously. Second, the police might decide not to prosecute because of technical reasons, making the prospect of a conviction unlikely. A prosecutor is required by the criminal standard to prove guilt ‘beyond reasonable doubt’ in order to achieve a conviction. The test that management are required to apply is the lesser civil standard of ‘on the balance of probabilities’. So in the employment context, you may have some doubt as to what occurred, but you are satisfied that it is more likely than not that the employee has committed misconduct. I discuss this in more depth in the chapter on termination of employment. However, there will be occasions when an employee acting on legal advice will refuse to answer your questions because of pending legal proceedings. It would usually be impractical to delay dealing with a misconduct issue whilst criminal proceedings, sometimes taking years, are completed. There does not appear to be any case law ruling against an employer’s right to complete its investigation and draw conclusions from the evidence available to it.

11. Do I have to provide the employee whose conduct is under investigation with copies of statements provided by others?

Not unless your discipline policy requires this. But management does have to advise the accused employee of details of the complaint and any information adverse to them that will be taken into by the decision maker. They must be informed of the allegations against them and given an opportunity to refute those allegations and produce witnesses and any other relevant evidence in their defence. Sometimes, the best way of ensuring this is to allow them access to statements given by others.

12. Do I have to tell the accused employee who has made allegations against them?

Not necessarily. They only have to be informed as to what the specific allegations are. Withholding the names of informants is sometimes appropriate to protect them from retribution. An example is where an employee has witnessed sexual harassment or bullying in the workplace. It will probably be necessary to advise the alleged perpetrator of the name or names of the alleged victims. But if the informant is not an alleged victim, it may be preferable that their identity not be revealed. Balanced against this is a concern that refusal to disclose the identities of persons making allegations might compromise procedural fairness. For instance, it might deny an employee the opportunity to present evidence or argument, casting doubt on the reliability of allegations made by a particular individual. This is a situation where the manager has to balance competing considerations.

13. Is it true that an employee has to be given three chances before they can be dismissed?

No, not unless your policy stipulates this. At most, it is a guide that often doesn’t apply. For instance, an employee does not get three opportunities to assault someone in the workplace before they can be dismissed. Similarly, in a workplace where mandatory drug testing is carried out, an employee who refuses to undergo a drug test would not normally get off with a warning that if they refuse on two more occasions, they’ll be dismissed. On the other hand, three instances of arriving late for work over a two-year period would not normally justify termination of employment.

14. Do verbal warnings count when reviewing an employee’s work history?

Yes, they do, so long as they can be substantiated (which is usually by reference to notes made at the time). But a written warning, that is, one committed to writing and given to the employee, will be better evidence that an employee should have been aware that their employment was in jeopardy. Keep in mind that a recent warning about similar conduct will carry greater weight than a warning given in the distant past or a recent warning about a totally different conduct.

15. What should I do if an employee is refusing duty? Do I give them a warning for a first offence?

No. Refusal of duty without a reasonable excuse is a breach of a fundamental term of the employment contract. Management must first confirm that the refusal is not reasonable: it is not a genuine safety issue; it is within the employee’s competence and training. They understand what it is that they are being asked to do, and there is no other reasonable excuse for the refusal. Once management have established that the employee does not have a valid reason for their refusal, they should explain to the employee that the refusal is unacceptable; that whilst they continue to refuse duty, they are not being paid; that this is the work they are required to do; and that they are not to do any other work. If the employee maintains their refusal, management have two options. The first option is to allow a cooling-off period by sending the employee away from the workplace without pay and an instruction to report for work on their next scheduled workday, when they will again be directed to do the work subject of the refusal. If they again refuse to do the work when they return, management have little choice but to summarily dismiss. The other option is to skip the cooling-off period, issue a clear direction to do the work in question, and summarily dismiss them when they refuse. I’ll discuss management responses to union bans in the chapter on industrial action.

16. What do I do if I have conflicting evidence about a critical fact?

This is not unusual. If, after diligent enquiry and reviewing all the relevant material that has been gathered, the manager believes with good reason that an alleged fact is more likely than not to be true, then they are entitled to act on that belief. A belief is more than just a suspicion, but it does not require absolute proof. If, on the other hand, the manager suspects that an alleged fact might be true but would not go so far as to say that is what they firmly believe, then they must not rely on this in making their decision about the employee’s conduct. The authority commonly relied upon in applying the ‘balance of probabilities’ concept is Briginshaw v. Briginshaw (1938) HCA 34; (1938) 60 CLR 336 in which Justice Dixon said:

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

This is also where Chief Justice Latham quoted from a text on the subject of evidence that ‘[m]en will pronounce without hesitation that a person owes another a hundred pounds on evidence on which they certainly would not hang him, and yet all the rules of law applying to one case apply to the other and the processes are the same.’ Keep in mind that the manager may be called upon to explain how they formed a belief. So they need to be able to convince a tribunal or court that they considered the whole of the evidence, not just those individual pieces of

evidence that ed a particular conclusion.

17. What is ‘unfair dismissal’?

The Fair Work Act 2009 defines an unfair dismissal as a dismissal that is ‘harsh’, ‘unjust’, or ‘unreasonable’. A dismissal is ‘harsh’ if its consequences for the employee are disproportionate to the gravity of the offence, all relevant factors considered. It is ‘unjust’ if, on the balance of probabilities, the employee did not do what was alleged. It is ‘unreasonable’ if the evidence does not the alleged facts upon which the decision to dismiss was based. In Byrne & Frew v. Australian Airlines Ltd [1995] HCA 24, 185 CLR 410, Justices McHugh and Gummow explained at [128]:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

18. What are the pitfalls that I must avoid?

The main pitfalls that managers must avoid are:

• not seeking out all relevant information • ignoring relevant information or attaching weight to evidence that is irrelevant • basing their decision on information that is unreliable • treating opinion as though it were fact • failing to present to the accused employee all relevant information • failing to allow the employee an opportunity to present their own information or to refute information alleged against them • refusing to allow the presence of a person

19. If I do all that is suggested above and avoid the pitfalls you have referred to, will I be successful in defending an unfair dismissal claim?

Sorry, but no, not necessarily. For instance, the dismissal might have been fair based on the information that was available to the manager at the time of the decision to dismiss, but then information comes to light afterwards that could not have been known at the time, showing that the employee was not guilty of the alleged misconduct. Cases are not decided entirely on their merits. How a case is presented to a tribunal or court can affect the outcome one way or the other. A thoroughly prepared, logically organised, and competently presented case will have a better chance of success than one that lacks these characteristics. Also, commission and judges are human beings. It has often been said that ‘reasonable minds may differ’ as to the appropriate inferences to be drawn from established facts or the seriousness to be attached to misconduct in the context of the circumstances of a particular case. If you do the best you can and heed the above advice, you should not take to heart an adverse result in an unfair dismissal case.

20. Is there anywhere I can go for advice and ?

Yes. Your organisation may belong to an employer association that provides this type of . Otherwise, there are law firms that practise in the employment law area. Just bear in mind that this is a specialist area and that it is a constant state of flux. So when you need advice, make sure you get it from people who have current knowledge and proven expertise in employment law. It also helps if they demonstrate a degree of practicality rather than a strictly legal approach.

Unsatisfactory Performance

In the case of unsatisfactory performance, again it is the line manager’s responsibility to address it. But the industrial officer will often be called on for advice. She should not hesitate to provide that as, if the matter is not addressed or is managed badly, there will likely be IR consequences. She should emphasise to the manager how important it is to find out why the employee is not doing what the manager wants them to do. Let’s consider why employees don’t always do as they are supposed to do and how to deal with them. Some of the reasons were identified in research conducted by Ferdinand Fournies and described in Why Employees Don’t Do What They’re Supposed To Do (New York: McGraw-Hill, 2007).

1. They don’t know what they are supposed to do.

Employees are not mind readers. They only know what they know, which is probably a lot less than what the manager knows about the job. If an employee is new to a job, they will need to have it explained to them. This is where accurate job descriptions can be important. As the manager explains the job to the employee, they should also have them state it back to the manager in the employee’s own words to confirm that the communication between them has been effective. Questions should be encouraged. The manager should monitor the new employee’s performance and give .

2. They think they are doing it.

I have known cases where employees have been in a job for years, doing it badly but totally unaware that their performance is less than satisfactory. That’s because nobody in management has spoken to them about it. That’s not only mismanagement of staff. It’s also disrespectful. Where the employee is mistaken as to what they are supposed to do, the manager needs to explain to the employee the difference between what they are doing and what they should be doing. Make sure they understand the difference. Monitor their performance and give .

3. They don’t know how to do it.

It’s very easy for a manager who is totally across all the activities being performed by employees under their control to assume that those employees have the knowledge and experience required for them to do their jobs. They forget what it was like the first time they were asked to perform a new task. The manager must explain or show the employee how to do it. Teach, don’t tell. Get the employee to show them that they know what to do and that they can do it. Maybe training is required.

4. They think they can’t do it.

Sometimes the employee is unable to do what’s required of them due to incomplete information, lack of resources, need for training, or inadequate coordination of activities. The manager needs to identify what the issue is and address it. It helps if employees know they can go to the manager at any time with questions.

5. They think their way is better.

In this case, discussion is required. Explain logically why management have decided to do it the way they want. Listen to what the employee has to say. Maybe they know something that management were not aware of. It happens, you know. Decide how it is to be done and make it clear to the employee. Get their agreement if possible. If necessary, insist.

6. They don’t know when to start or finish doing it.

Often employees have more than one task on their plate. But they may be only able to tackle one task at a time. The manager may need to prioritise for them. Tell the employee when they want each job started. If there are deadlines to be met, the employee needs to be told. They also need to listen to any reasons why the employee thinks they cannot start a job at a particular time. Communication is required. Do you see a common theme emerging?

7. They don’t know why they should do it.

People are unlikely to approach a task with enthusiasm if they don’t know why it is required. The manager must explain why the task is important and how it fits into the big picture and how the performance of the task will benefit the organisation and them.

8. They get rewarded for not doing it.

Ever heard of attention-seeking behaviour? Maybe they are getting what they seek by not doing what they are supposed to do. If the employee is not doing what is required, the manager needs to make sure that the attention they give to the employee is not experienced as a reward.

9. They get punished for doing it.

You will probably have heard of the motto ‘If you want something done urgently, give it to a busy person.’ The motivation of even the most conscientious employee will be affected if they feel that they are being unfairly burdened with additional work whilst other employees can get away with doing less than a fair day’s work. The manager must give immediate . Even a simple verbal acknowledgement that their effort is appreciated helps maintain morale and motivation.

10. They just don’t want to do it.

Where this is the cause of the behaviour, the manager must first confirm that the refusal is not reasonable. That is, there is no genuine safety issue; it is within the employee’s competence and training; they understand what it is that they are being asked to do; and there is no other reasonable excuse for the refusal. The manager must clearly explain what is required and confirm that the employee understands what they are being asked to do. Inform the employee of the consequences of not doing it. And be prepared to act.

The Role of Performance Plans and Performance Appraisal

During my working life, I have encountered and experienced first-hand a dozen or more performance development and appraisal systems. Each one was introduced with much fanfare and promises of benefit for both the organisation and its employees. None, in my view, achieved its lofty aims. A formal performance management system is no substitute for ongoing dialogue between the leader and team . That being said, it is important that we all have targets that we expect to achieve. Ideally, these targets should be agreed between team and their leader. Putting them in writing is a good idea in order to reduce potential for confusion. But what if a team member and the leader disagree on a target? In the event of this occurring, the leader needs to explore with the team member why they are unwilling to agree. It’s likely to come down to one or more of the ten reasons outlined above. After the necessary discussion, the team leader (possibly in consultation with his or her manager) must decide what the target will be and inform the team member. The target should be put in writing along with any undertakings the leader has given about assistance to the team member to achieve the target. It may be necessary to refer to this document at a later date as evidence of what the team member was expected to achieve. For this reason, it may be useful to ask the employee to sign an acknowledgement that they have received the document.

Chapter 8

Other Investigations

Every art and every investigation, and likewise every practical pursuit or undertaking, seems to aim at some good: hence it has been well said that the good is that at which all things aim. Nicomachean Ethics, Aristotle

A major part of the industrial officer’s role is the investigation of matters. The aim of any investigation should be to discover the objective truth. Invariably, an investigation will require the industrial officer to interview individuals. How he goes about this can significantly influence the objectivity and hence the validity of any findings he comes up with. I cannot stress enough the importance of beginning an interview with open questions:

What did you see? What did you hear? What did you do? What did others do?

Why open questions? If the interviewer begins asking closed questions too early in the interview, there is a strong possibility that the interviewee will filter the information that they know so as to only answer the specific question that the questioner has asked. A potential result is that important facts will not be disclosed. There is also a potential argument that the interviewer put words into the mouth of the interviewee. Let’s look at an example of the difference in the two approaches. Let’s imagine that someone has reported to you that Fred has been talking about a recent incident involving John and Mary in which Mary allegedly said to John that she might prefer his kisses to those of her boyfriend and then she hit John in the face. Fred had then apparently intervened, and there was a brief conversation between him and John. You decide to interview Fred first using closed questions.

You: Did you hear Mary say that she might prefer John’s kisses to those of her boyfriend? Fred: Yes. You: Did you see Mary hit John? Fred: Yes. You: Did you approach John and tell him that Mary should not have hit him? Fred: Yes. You: Did you threaten to punch John’s head in, or words to that effect? Fred: Yes.

Now let’s see if we get a different result by asking open questions about the same incident.

You: What did you see? Fred: I saw Mary and John arguing, and John tried to kiss Mary and then Mary slapped him across the face. You: What did you hear? Fred: I heard Mary say to John, ‘I don’t appreciate your constant attention. You know that I have a boyfriend,’ and John replied, ‘You would like my kisses better than his.’ Mary replied, ‘I might like your kisses better than Fred’s, but I’m not interested.’ You: What did you do? Fred: I called out to John to stop harassing Mary. He told me to mind my own business, or he would belt me up. I told him that I would punch his head in if he tried anything. You: What did others do? Fred: There were several people who witnessed what happened. Jenny and Ron could see that Mary was upset and went to comfort her. Mike walked up to John and said Mary should not have slapped him but that he should accept that she is not interested in him.

By beginning with open questions, we gain a much better picture of what occurred. But the interview process does not end when the interviewer has run out of openended questions. Having established the general scenario, it is now time for him or her to home in on areas of specific interest.

You: Have you seen John and Mary together on other occasions?

Fred: Yes. You: When? Fred: They are often together when we all go for drinks after work. You: And what would you say about how they get along on those occasions? Fred: Mary flirts with John. Nothing too serious, but I think John interprets it as encouragement. A couple of times, he has tried to hug her or kiss her, and she has quickly backed off. I have told John that he needs to be careful as she is just teasing him. You: How has John responded to your advice? Fred: He doesn’t want to hear it.

So by beginning with very open questions and gradually shifting to a mix of closed and open questions, we gain a much fuller picture than if we ask only closed questions.

Some other tips about interviewing.

• Prepare. Don’t try to wing it. • Keep your questions short. • Ask only one question at a time. • Follow a chronology. • Before closing the interview, go back over what you have noted with your interviewee, giving them the opportunity to correct and add to it.

What if you feel that your interviewee is withholding information or is not telling the truth? This is the time for asking very direct questions leading the interviewee to either agree with or dispute what you suspect is the case. Let us assume that you suspect that Fred does not like Mary and would be happy to see her blamed for what happened. Asking an open question like ‘How do you get along with Mary?’ is likely to result in an answer of something like, ‘We get along fine.’ A better approach is to put the question in the form of an assertion like ‘You don’t like Mary, do you?’ Fred might still respond with ‘We get along fine,’ but the interviewer can follow that up with, ‘You get along fine, but you don’t actually like her, do you?’ Just keep in mind that although it may be necessary to be quite assertive in some of your questions, you must always be polite and never get personal.

During the fact-gathering phase of his investigation, the industrial officer must keep an open mind. That means resisting the temptation to jump to conclusions, refusing to accept others’ theories without thoroughly testing them, and taking the time to explore each possible explanation before discarding those that are least probable.

It’s raining in construction. I an evening in late March on a power station construc

There are two things that management could have done differently in order to avoid embarrassment. First, given that ‘bluey jackets’ were required to be issued in a week’s time and were available on-site, they could have given more consideration to the requests to issue them early. Second, rather than assert that the shed was not padlocked when they clearly did not know whether this was in fact true, they could have simply undertaken to ensure that employees would be able to enter the shed to shelter from the weather. That would thus have avoided much embarrassment. The issue should never have got to the stage that it did. It takes a long time for management to recover from such an event.

When writing a report on his research, the industrial officer must observe the following rules:

• Begin with a clear and precise statement of what has been alleged. • Write soon after the event. • Cover relevant times and places. • Identify relevant individuals. • Report events in chronological order. • Relate conversations in direct speech and as near as possible to the actual words used. Don’t sanitise the actual language used in order to avoid offending sensitivities. • Opinion, speculation, and hearsay, if included, are clearly distinguished from what was actually witnessed by the writer.

Chapter 9

IR Problem-Solving

Research is always incomplete. Isaac Casaubon, Mark Pattison

Problem-solving is a daily activity for the industrial officer. It usually begins with the gathering of facts, which we have dealt with in the preceding two chapters. The next step is for the industrial officer to identify any statutory provisions or commission or court decisions, any award or enterprise agreement provisions, any contractual provisions, or any policies or customs that are relevant to the problem. How does she do this? Let’s first of all set out the list of authorities in hierarchical order. These are:

1. The Commonwealth of Australia Constitution Act. 2. Legislation of the Australian Parliament, comprised of acts, regulations, statutory rules, by-laws, statutory instruments, and so on. Note that federal awards and enterprise agreements fall into this category. 3. Legislation and regulations of state and territory parliaments (provided it is not inconsistent with that of the Australian Parliament). 4. Any contractual arrangements that bind the parties, including both written and

unwritten. 5. Relevant decisions of courts or tribunals. 6. Any relevant policies, customs, or practices.

Whilst industrial relations issues have several times over the last 100 or so years been the subject of proceedings before the High Court, it is unlikely that our industrial officer will have need to refer to the Australian Constitution during her IR problem-solving. So we shall move on to look at the other areas of statute law that will be more relevant to her day-to-day work. She will need to be aware of federal legislation in several areas and more than just a little familiar with legislation that is directed at regulating workplace activity. The main federal legislation that she will be familiar with is that currently titled the Fair Work Act 2009 along with the regulations made under that act. If she works in the construction industry, she will need to be familiar with the Fair Work (Building Industry) Act 2012 and accompanying regulations and the building industry code of practice. Those working for governments need a working knowledge of legislation and regulations governing the employment of public servants. If she works for a government instrumentality (such as the Water Corporation of Western Australia, where I worked for a number of years), she will be bound by provisions of the legislation that established that instrumentality. She may also have to refer to the federal legislation dealing with independent contractors, paid parental leave, equal opportunity, and work health and safety. As I mentioned back in Chapter 3, the industrial officer should not expect legislation to be an easy read and that she should get an annotated copy that summarises the relevant case law and includes other commentary in relation to each section of the act. Good ones include:

• Fair Work Legislation 2019–20 published by Thomson Reuter • Australian Fair Work Act 2009 with Regulations and Rules published by Wolters Kluwer

As I said back in Chapter 3, without a volume such as one of these, the industrial officer will struggle to find and apply the legislation and the voluminous case law relevant to her day-to-day issues. Other texts that she should consider acquiring are:

• Sappideen, C., O’Grady, P., Riley, J., Warburton G., and Smith, B. (2011), Macken’s Law of Employment 7th edn (Sydney: Thomson Reuters). • Stewart, A., Forsyth, A., Irving, M., Johnstone, R., and McCrystak, S. (2016), Creighton & Stewart’s Labour Law 6th edn (Sydney: The Federation Press). • Stewart, A. (2018), Stewart’s Guide to Employment Law 6th edn (Sydney: The Federation Press).

As you will read in Chapter 14, industrial officers often get called upon to assist in relation to safety and health issues in the workplace. Work led by the federal government commencing in 2008 resulted in what has been labelled the harmonisation of occupational health and safety laws across Australia. This was not an instance of the states relinquishing power to the commonwealth but rather a rare case of them working together with the commonwealth to standardise as far as practicable state health and safety laws application in workplaces.

Federal awards and ed enterprise agreements are instruments made under the authority of the Fair Work Act 2009 and regulations. So the industrial officer must ensure that these are complied with if her organisation is covered by the federal system. If her workplace is not covered by the federal IR system, the industrial officer will need to be familiar with the IR legislation in her state. Since state laws apply where there is no valid federal law, she will need to be aware of certain state laws even if covered by the federal industrial relations legislation. That includes mainly legislation dealing with workplace health and safety, anti-discrimination, long service leave, compensation and rehabilitation for injured workers, public holidays, jury and emergency service duties, and business trading hours. She will need to review provisions in the relevant award or enterprise agreement. Then she will have to consider the provisions, both express and implied, of the employment contracts between her organisation and its employees. And finally, she may have to take of any policies or customs that are relevant to the problem she is required to solve. So having established the relevant facts; researched the provisions of relevant legislation, the applicable award, or enterprise agreement; and looked at the employment contracts between her organisation and its employees, how does she use this information to solve her IR problem? I think I can best explain this with a real example.

R&R Departure Times Upon taking up a role on a construction site near Darwin in the North

In summary, in order to arrive at a solution, it was necessary for me to review relevant sections of the Fair Work Act 2009 and also review work health and safety legislation and codes of practice, both federal and in the Northern Territory. I also looked for guidance from codes of practice applied under other state legislation. This was because part of the unions’ argument was that employees arriving at their destination airports late at night would be too fatigued to drive to their homes. I had already addressed this issue by advising employees that management would provide accommodation in the cities that they flew to if they needed to rest before driving to their final destinations.

Chapter 10

Writing

Hard writing makes easy reading. An Open Go, Sir Paul Hasluck

You may have detected from some of the earlier chapters that I attach a lot of importance to good writing, almost to the point of an obsession. The point of the above quotation from a speech given by a former governor general of Australia is that the more effort you put into your written communications, the more likely it is that others will want to read it. Isn’t that a good thing? Robert Gunning, in The Technique of Clear Writing (McGraw-Hill, 1968), offers the following advice based on extensive research into the readability of the works of a range of writers:

1. Keep sentences short. 2. Prefer the simple to the complex. 3. Prefer the familiar word. 4. Avoid unnecessary words. 5. Put action in your words. 6. Write like you talk.

7. Use words your reader can picture. 8. Tie in with your reader’s experience. 9. Make full use of variety. 10. Write to express, not to impress.

A habit that I have and would recommend to you is, after I have written something, I read back over it carefully to find ways to make it shorter. Mark Twain in a letter to a friend once wrote, ‘I didn’t have time to write a short letter, so I wrote a long one instead.’ The point was an acknowledgement that it is easier to write a lengthy version quickly than it is to write one that is briefer, more focused, and with clearer meaning. Which version would you to prefer to read? Which version would your readers prefer? Take special note of Gunning’s point number 10, ‘Write to express, not to impress.’ Avoid using a big or unusual word when a littler or more familiar word will do the job just as well. Avoid jargon and the unnecessary use of technical . Other books that I have found helpful include:

• Asprey, M. M. (2010), Plain Language for Lawyers, 4th edn (Sydney: The Federation Press). • Gowers, E. A. (2004), The Complete Plain Words, 3rd edn (United Kingdom: Penguin). • Horner, F. and Horner, P. (1980), When Words Fail (Melbourne: Sun Books). • Scalia, S. and Garner B. (2008), Making Your Case: The Art of Persuading Judges (Saint Paul: Thomson/West).

• Wydick, R. C. (2005), Plain English for Lawyers, 5th edn (Durham, North Carolina: Carolina Academic Press).

A further point I must make about writing is the importance of structuring. I have often read submissions that consist of a number of thoughts that appear to have been written down in the sequence in which they occurred to the writer. Sometimes, that’s the easiest way to get started on a piece of writing, but you must not leave it like that. Structure is what enables you to lead your reader to your conclusion. Using headings to indicate to your reader that you are moving from one point to the next point often helps. Your conclusion should not come out of the blue, as a surprise to your reader. If you follow Gunning’s ten rules for clear writing and heed what I have said about structuring what you write, you will find that you are able to write stuff that people will want to read. Get someone whose opinion you respect to review what you have written and provide . Good writing doesn’t require special talent. But it is hard work! Two pieces of advice I have heeded for developing good writing are:

1. Spend time reading good writing, and you don’t have to stick to reading textbooks; in fact, you must not just read textbooks as a lot of them do not contain very good writing. 2. Write as often as you can; the industrial officer who writes infrequently writes badly on the rare occasion that he is forced to write.

Chapter 11

Communication

To do good and communicate forget not. Hebrews 13:16

Good oral and written communication skills are essential attributes of an industrial officer. Daily, he will communicate with other of management and supervision, colleagues in HR and payroll and so on, employees and their union delegates, and union officials. Forms of communication will include face-to-face discussions, telephone conversations, text messages, email, and formal letters. Knowing which form to use in a situation is part of the art of communication. Marshall McLuhan coined the phrase ‘The medium is the message.’ What I take this to mean is that the way we send and receive information is just as important as the information itself and often even more so. Let’s look at some examples.

Communications with Other of Management and Colleagues

Often, this will occur in the form of face-to-face communication either one-onone or in a meeting of several people. The outcome of the communication, if recorded, will be contained in an email, file note, meeting minutes, an in-house newsletter, or amendment of a corporate policy or procedure. Which is the most appropriate form will depend upon the complexity of the issue and the significance of any change that has been decided. Incidentally, be mindful of the fact that whilst it is okay to form friendships with other of management, you must not let such friendships compromise your objectivity in dealings with them in your role in the organisation.

Communications with the Workforce or a Section of the Workforce

Employees like to see of management out in the workplace. Generally, they’d much prefer a face-to-face discussion to a written communication. The industrial officer needs to spend as much time as possible out of the office and in the workplace where employees are carrying out the core functions of the organisation’s business. On a construction project where I once worked, one of my KPIs was to wear out a pair of boots every six months. Being available to employees provides the opportunity for two-way communication. Employees can provide opinions and information to the industrial officer that he would not otherwise get. He, in turn, gets the opportunity to provide employees with information and management’s attitudes on issues. But you are a member of management, and you must never pretend to be on the side of the workforce in order to get them to talk to you. In the construction industry where I spent most of the last decade, it is customary for work crews to meet with their respective supervisors prior to the commencement of work. Each day, I would attend one of those meetings. I would also aim to spend up to three hours each day walking the site and engaging with employees. Try to avoid mass meetings, especially in venues such as meal rooms where employees can sit comfortably and remain almost anonymous. Better to address smaller groups, standing, out in the workplace. That way improves your chances of engaging with everyone, not just the more outspoken of the workforce. It’s also easier to bring the meeting to a conclusion.

Employee Concerns over Fumes from Welding A union official exercised right of entry to ho

When it comes to communicating important information to the workforce, which is the most appropriate form will depend upon how complex the issue is, how widespread will the impact of what is being communicated be, and whether that impact will be positive or negative. Only twice during the last ten years have I arranged for individual letters to employees. The first was to communicate a management decision to reduce working hours from 11 1/2 hours per day to 10 1/2 hours. The reason for this was evidence that workforce fatigue may have been contributing to an increase in the occurrence of minor injuries. The thrust of the message in the letter sent to employees at their homes was that the additional one hour’s payment per day was not worth the risk of more employees being injured. The reduction in hours was implemented with very little complaint.

The other occasion was when my company was hoping to gain additional scope of work on a project in which it had over a thousand employees working for several years. The client was nervous about the possibility of industrial disruption because of a campaign initiated by a small group of employees seeking a change to the roster. The letter from my company’s project director, emailed to each employee, highlighted the imminent completion of the existing scope of work, the possibility of additional scope, and the client’s fear of potential industrial unrest over the roster issue. But we knew that the letter alone was not enough. The project director and I addressed every work crew over the next two weeks, reinforcing the message and finishing with a plea to those who were union that they ask their unions to help them to help management to win more work. This bold move was met with no resistance from employees or unions. The industrial campaign ceased, and the agitators were shunned by most of the workforce. Sadly, we were not awarded more work; the damage had been done. I suspect in retrospect that we may have achieved a better result if we had taken a firm stand at an earlier stage. But as is sometimes said, hindsight is a wonderful thing. Managers sometimes try to cover too much in a letter to employees. Ideally, you should try to make only one point, and everything you say in the letter should address that point. Limit the length of the letter to one page. That will improve your chances of employees reading it.

Probably the most important subject of communication with employees, at least in the employees’ opinion, is their pay. This is recognised in regulations under the Fair Work Act 2009 where it spells out what information must be provided on pay slips (Regs 3.45 and 3.46). I once arrived on a job site where employees were constantly raising grievances about their pay. A little investigation revealed that in very few instances were there errors, the main problem being that employees could not understand the information on their payslips. All the details that the employer is required to provide were there, but the way it was presented made it almost incomprehensible to the average person. The people responsible for the design of the payroll system weren’t interested. They could not see the problem. To them, the payslips told employees everything they needed to know. To change them, they said, would be expensive and would take considerable time. What to do? A recent graduate who was working with me at the time said, ‘Why don’t we give them a booklet that explains to them how to read their payslips?’ And that’s just what we did. Payroll grievances reduced to almost zero. The number of other grievances also diminished, and the workforce seemed noticeably happier. Funny that!

Communications with Unions

These communications will range from face-to-face discussions, phone conversations and emails, all the way up to service of copies of applications to the commission or a court. What is most important is always for the industrial officer to keep the lines of communication open. At the same time, he must be careful when agreeing to a meeting, for example, that he does not inadvertently give the impression that he is willing to concede something that he will not or cannot. I’ll give an example of a time when the way I responded to an invitation to meet with unions sent a clear message.

Negotiating Standard Working Hours I was leading a team negotiating with a group of union

Had I taken my team with me to the meeting, the union team would have immediately assumed that we were ready to discuss the claim for a thirty-sixhour week. My attendance without my team laid the groundwork for what I was about to say to them. When responding in writing to union claims, I always begin by stating my understanding of the claim and the justification. Only then do I state my response and the reasons for that response. I’ll give you an example.

Response to Union Claim regarding R&R Departure Time Your claim is that the company sh

This format has three advantages. First, it shows that I have listened to the union. Second, it enables the union to confirm or correct my understanding of what they are claiming. Third, it enables anyone else reading the response, at the time or at some future time, to understand the issues and the reasoning behind management’s response.

Chapter 12

Agreements and Contracts

I shall discuss the negotiation of agreements and contracts in some detail in a later chapter. This chapter is about the content of such documents and their application. Let’s look first at enterprise agreements.

Enterprise agreements

If there’s no meaning in it’, said the King, ‘that saves a world of trouble, you know, as we needn’t try to find any. And yet I don’t know’, he went on ‘I seem to see some meaning in it after all.

Alice in Wonderland, Lewis Carroll

There are clauses to be found in most enterprise agreements covering such basic things as:

• the parties to the agreement • the employees covered by the agreement and where it applies • the duration of the agreement • types of employment (full-time, part-time, casual, and so on) • the rates of pay and allowances payable to employees covered by the agreement • standard hours of work and payments for overtime.

There are also clauses included in agreements by legislation. The Fair Work Act 2009 mandates that every enterprise agreement must include a flexibility term (s 202) and a consultation term (s 205) and that where such are missing from an enterprise agreement, the model set out in the regulations are deemed to be included in the enterprise agreement. The Fair Work Act 2009 also deems certain types of that are unlawful and, if included in enterprise agreements, are invalid (see ss 194 and 195). When interpreting an enterprise agreement, the industrial officer must review it to ensure that she is aware of any mandated that do not appear in the document and any unlawful which, if included, will have no force.

Courts and tribunals have often acknowledged that awards and enterprise agreements are usually written by non-lawyers and so should not be construed as though they were written ‘with that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament … therefore in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly … giving consideration and weight to every part of the award’ (Geo. A Bond & Co. Ltd v. McKenzie (1929) AR (NSW) 498 at 503). But they will often be guided by the reasoning behind many of the rules of interpretation. In Kucks v. CSR Limited (1996) 66 IR 182 at 184, Madgwick, J. explained that the framers of industrial awards ‘were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon’. The industrial officer must read the agreement as a whole and not just the specific provision that seems to be the most relevant to an issue. She must be alert to such as ‘subject to’ and ‘notwithstanding’ as they can significantly alter the meaning of a provision. Let’s look at an example.

In the above example, the operation of Clause 12 is modified by subclause c of Clause 15. In this instance, the industrial officer will be alerted to the qualification of the operation of Clause 12 by the words subject to Clause 15. But what if those words were not there? Subclause 15c would still operate to prevent the employer from issuing a notice of termination of employment to an employee when on R&R, but she would not know that from reading Clause 12 in isolation of the rest of the document. That is why each particular provision must be read in the context of the whole document. But that’s not all. In the above example, the industrial officer will also open the Fair Work Act 2009 and refer to the National Employment Standards in Part 2.2. There she will discover that in addition to the notice periods prescribed in the enterprise agreement, she must give an additional week’s notice or payment in lieu if the employee is over forty-five years of age and has completed at least two years of continuous service. Many enterprise agreements also include that expand upon statutory provisions covering matters such as annual leave, personal leave, payments for public holidays, and notice periods for termination of employment. But the industrial officer must ensure that employees receive the benefits of statutory entitlements even if the enterprise agreement appears to provide an inferior benefit.

Difficulties sometimes arise when an enterprise agreement attempts to prescribe local arrangements specific to the industry or enterprise in question, usually because those writing these provisions have taken insufficient care to ensure that their intentions will be clear to those who were not involved in the writing of the enterprise agreement but who nevertheless must interpret and apply it. The industrial officer does not have the option to ignore a provision in an enterprise agreement because she thinks it’s ambiguous or unclear. Using her best endeavours, she must reach a decision as to what the provision means and act accordingly. Note that her task is to decide what the provision means, not what she thinks it ought to be.

Disputes over the intention of provisions in enterprise agreements often end up before the commission and courts for determination. Whilst not strictly bound by the normal rules of legal interpretation, the commission nevertheless takes some guidance where it considers such rules to be applicable. If you are interested in learning more about these rules, an excellent text is:

Pearce, D. C. and Geddes, R. S. (2014), Statutory Interpretation in Australia 8th edn (Sydney: Butterworths).

Where there is a dispute about the meaning of a provision in an award or enterprise agreement and the commission or a court is asked to arbitrate the matter, again the task is to determine what the provision means. Its task is to apply the existing provision. Whether it believes the provision is appropriate is irrelevant.

Contracts

Until the contract is signed, nothing is real. Glenn Danzig

The relationship between employer and employee is a contractual one. The contract can be either written or oral or part written and part oral. Many written employment contracts are incomplete. The contracts contain both express (those specifically agreed between the parties) and implied ( that were not specifically agreed between the parties but that are necessary to make the contract workable). For example, the written contract might not specify that in order for the employee to be entitled to wages, they must perform work as directed by the employer, provided such work is within the scope of the contract of employment. It also goes without saying that the employee cannot expect to be paid wages for time that they are engaging in industrial action or unauthorised absence from work. There is a considerable amount of law pertaining to employment contracts. A leading text on the subject is:

Neil, I. and Chin, D. (2017), The Modern Contract of Employment 2nd edn (Sydney: Thomson Reuters).

The industrial officer will sometimes have to examine contracts of employment whilst dealing with issues arising in the workplace. An employer cannot insist that an employee do something that is outside of the of the contract of employment. The employer and employee however can agree on a change to the contract. A common example is where a contract provides for a probationary period of three months, and because during that period the employer has some concerns about the employee’s suitability, they agree to extend the probationary period by an agreed length of time. But note that an employer and employee cannot contract out of statutory provisions that give the employee access to unfair dismissal remedies. So if the employee is still entitled to access these statutory remedies after having served six months (i.e. the employer is not a small business), the extension of a probationary period beyond six months does not affect that statutory entitlement (Fair Work Act 2009 s 383). It is also not uncommon for an employer to ask an employee to accept a change in the range of duties they are performing. It is generally accepted that an employer can implement a change in duties so long as the new duties fall within the employee’s skill, qualifications, and experience. But if the contract of employment is to perform the work of a specific classification of employee and the employer wants the employee to perform the work of a different classification, then a new contract is required. Nor can the employer and employee make a contract that excludes the employee from receiving benefits contained in an award or enterprise agreement that covers them, unless the award or enterprise agreement expressly permits this.

Chapter 13

Grievance and Dispute Resolution

Do not kid yourself, a conflict is never about the surface issue, It’s about one’s unsaid, untreated and unhealed wounds. Anon

Most grievances and disputes fall into one of two categories: they are about employees’ entitlements or about the way employees are being treated. Issues about entitlements are usually progressed by referring to relevant legislation or the provisions within an award or enterprise agreement or a contract of employment. Awards and enterprise agreements all must include procedures for settling disputes about matters arising under the award or agreement or in relation to the National Employment Standards (see Fair Work Act 2009 ss 146 and 186(6)). They include provision for the Fair Work Commission or another independent person to settle such disputes. It is permissible for a dispute settlement procedure in an enterprise agreement or award to be drafted more broadly so as to cover matters beyond application of the award, agreement, or National Employment Standards, so long as they pertain to the employment relationships covered by the agreement or award. When faced with a grievance, the industrial officer must assess whether it is covered by a procedure in the enterprise agreement or award. If it is covered, then he can insist that the procedure be followed.

But not all disputes are about entitlements under the relevant awards or enterprise agreements or the National Employment Standards. For example, some disputes about the treatment of employees by their employer fall outside the scope of the dispute settlement procedure mandated for awards and enterprise agreements. The commission cannot assist in the resolution of these disputes unless all parties agree. So if the grievance is not covered by the procedure, the industrial officer has the option to object to the grievance being referred to the Fair Work Commission because the commission would lack jurisdiction to deal with it. An important thing to about grievance and dispute resolution is that if you have a procedure for this in an award, an enterprise agreement, or an inhouse policy or procedure, then you must follow it.

Chapter 14

Workplace Health and Safety Issues

The industrial officer will inevitably, from time to time, be drawn into safety matters, whether it be because employees or their representatives are dissatisfied with management’s response to an alleged safety issue or because her knowledge and skill is required in the investigation of a safety incident and the determination of any action required arising out of that investigation. But in most organisations, workplace health and safety is managed separately from industrial relations. I believe that is a good thing. It is a specialist area of management that warrants more than just the part-time involvement of the industrial relations specialist. A useful text covering this area of law is:

Tooma, M. (2012), Tooma’s Annotated Work Health and Safety Act 2011 (Sydney: Thomson Reuters).

In 2017, 190 Australian workers died as a result of injuries suffered whilst at work. Whilst no death is acceptable, the 2017 statistics is a reduction of nearly 40 per cent on the 310 fatalities ten years earlier in 2007. But it should be noted that many more workers suffered injuries that did not cause death although in many cases resulted in months of pain and disruption to normal life, not to mention the negative effects on productivity. Employers spend much time and money in their efforts to maintain safe workplaces. Unions too have over time given greater emphasis to safety and health issues than was the case when I first entered the workforce. I dare to suggest that the reduction in workplace deaths and serious injuries that we have seen over many decades would not have occurred to the same extent had it not been for the efforts of both employers and unions in addressing workplace health and safety issues.

Having said that, it would be naive of me to suggest that some union officials do not use alleged safety issues as a lever to promote other agendas. Whilst I have sometimes believed that a union official was disingenuous in raising a complaint under the guise of a safety issue, this is usually difficult to prove. And the manager who impedes a union official endeavouring to investigate a genuine safety concern runs the risk of prosecution (we’ll deal in more detail with the rights of union officials to enter premises in Chapter 17). So even on occasions when I have been far from convinced that a safety complaint is genuine, I have found it prudent to listen to what the employee or union representative has had to say, investigate the complaint, and where satisfied that it has no substance, explain why the complaint has not been accepted.

On the other hand, there have been many occasions where employees and union representatives have pointed out how things could be done more safely. Where this has occurred, rather than begrudgingly acknowledge that they are correct, I have thanked them for their contribution to improving workplace safety. I have experienced many instances where a small change to the way work was being performed potentially saved someone from injury, even though the way it was being done did not breach any law or code of practice.

The industrial officer will often get called upon to advise in relation to the appropriate disciplinary action to be taken against an employee who has committed an unsafe act. These matters should be approached in the same way as other disciplinary decisions. Organisations often publish rules or standards that they say all employees must comply with or risk termination of the employment. They sometimes go so far as to say that the breach of a so-called golden rule will result in automatic dismissal. The industrial officer must caution her management that no policy that they have in place can vary a legislated requirement that an employee should not be unfairly dismissed. As an appeal bench, the Federal Court once observed:

Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.

Bostik (Australia) Pty Ltd v. Gorgevski (1992) FCA 209; (1992) 36 FCR 20 (14 May 1992)

In the next chapter, we shall look more closely into the minefield that employers face when they consider terminating the employment of an employee because of alleged misconduct.

Chapter 15

Termination of Employment

Good-bye, proud world! I’m going home: thou are not my friend, and I’m not thine. Good-bye, Ralph Waldo Emerson

For a termination of employment to occur, there first has to have been a contract of employment between an employer and an employee. When discussing unfair dismissal, we are concerned only with permanent employees (full-time and parttime) and not casuals, independent contractors, or labour hire workers. So maintaining the distinction between employee and independent contractor is important but can become difficult if care is not taken in how the arrangement is set up and managed. An arrangement dressed up as client and contractor can, when examined objectively, turn out to be that of employer and employee. Whilst the method of termination of employment most spoken about is that initiated by an employer, there are in fact quite a few other ways that employment can come to an end. A full list includes:

1. by the employer giving notice or making payment in lieu of notice 2. summary dismissal 3. constructive dismissal 4. termination by effluxion of the contract period

5. resignation or retirement by the employee (other than a ‘constructive’ dismissal) 6. termination by mutual agreement 7. frustration 8. repudiation 9. abandonment.

The first three can be open to an unfair dismissal claim. The others do not involve ‘dismissal’.

When the Employer Gives Notice

Minimum notice requirements are set out in the Fair Work Act at s 117. Longer notice periods may be prescribed in an award or agreement or in a contract of employment. An employer must give the appropriate notice or payment in lieu of notice. Failure to do so is a breach of the National Employment Standards. Section 117(1) prevents an employer from terminating the employment of an employee unless the employer ‘has given the employee written notice of the day of the termination [which cannot be before the day the notice is given]’. The rules around giving of written notice allow it to be in effect by:

(a) delivering it personally (b) leaving it at the employee’s last known address (c) sending it by prepaid post to the employee’s last known address.

When the postal method is used, notice is not ‘given’ until the employee actually receives it or is deemed to have received it (which is at the time at which the letter would be delivered in the ordinary course of post). Be aware that an employer’s notice of termination to an employee cannot run concurrently with annual leave as the entitlement to notice is separate from the entitlement to annual leave.

When the Employer Makes Payment in Lieu of Notice

Termination of employment by payment ‘in lieu of notice’ means just that. The termination is in effect when the employee has been given written advice of the termination and the payment has been made. The payment must be the total amount the employee would have received if they had worked the notice period, including any overtime, allowances, bonuses, and any other separately identifiable amounts.

Written Notice

When preparing termination letters, care needs to be taken to ensure that the advice to the employee is clear and unambiguous. One view is that a short letter is better than a long one. This reduces the likelihood of an error occurring under pressure to complete the process quickly. The other popular view is that the background to the termination should be set out and the justification explained. If time permits, a full explanation of the circumstances leading up to the termination of employment and the factors considered in the decision to terminate can be a useful weapon in a defence against a potential unfair dismissal claim. But a failure to mention in such a letter a factor that the employer subsequently seeks to raise as significant may pose difficulties. On the other hand, the inclusion of assertions that cannot be substantiated will likely weaken an employer’s defence against an unfair dismissal claim. Whichever approach is taken, the industrial officer must be conscious of the fact that his letter may be produced in evidence in an unfair dismissal case.

Summary Dismissal

Notice requirements do not apply where the employee has been guilty of ‘serious misconduct’. But to be characterised as ‘serious’, the misconduct must be such that it would be unreasonable to require the employer to permit the employee to work the relevant notice period. The regulations to the Fair Work Act 2009 describe ‘serious misconduct’ as: Reg 1.07 (2)

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; (b) conduct that causes serious and imminent risk to: (i) the health or safety of a person; or (ii) the reputation, viability or profitability of the employer’s business.

Such conduct includes: Reg 107 (3)

(a) the employee, in the course of the employee’s employment, engaging in: (i) theft; or (ii) fraud; or (iii) assault;

(b) the employee being intoxicated at work; (c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

‘Serious misconduct’ has been held to include:

• refusal of duty (where the employer’s request is reasonable and lawful) (Darvel v. Australia Postal Corp (2010) FWAFB 4082) • offensive or insulting language directed at the employee’s manager, other employees, or other stakeholders or customers (Randall v. Australian Taxation Office (2010) FWAFB 5626) • accessing, displaying, or disseminating offensive material (Than Vu v. Commonwealth of Australia as represented by the Australian Taxation Office (2014) FWC 755) • breach of alcohol or other drug policies (Toms v. Harbour City Ferries Pty Limited (2015) FCAFC) • serious breach of other safety procedures (BlueScope Steel T/A BlueScope Steel Limited Springhill Works v. Mr Zaki Habak (2019) FWCFB 5702) • assault of another person in the workplace (Kleidon v. Toyota Motor Corp Australia Ltd (2009) 187 IR 234) • stealing from their employer or other employees or customers (Qantas Airways Limited v. David Dawson (2017) FWCFB 41). • criminal or other dishonest conduct in the course of their employment (Griffin v. London Bank of Australia Ltd (1919) 19 SR (NSW) 154). • misbehaviour outside of work that is incompatible with the employee’s

employment (William James Sandilands v. Industrial Relations Secretary on behalf of Legal Aid NSW (2016) NSWIRC 1051).

It is not essential that the employer has spelt out in advance what constitutes serious misconduct. Tribunals have confirmed that there are some things that employees should not need to be told (for example, that distribution of pornographic material is serious misconduct) (Darrel Batterham v. Dairy Farmers Limited T/A Dairy Farmers (2011) FWA 1230). But if an employer decides to define ‘serious misconduct’, they need to take care, lest they unwittingly omit something important. If they have adopted a restricted definition, they will likely be held to it.

Constructive Dismissal

This terminology appears to have originated in legislation relating to unfair dismissal in the United Kingdom. It enables a tribunal to ‘construct’ a dismissal from the circumstances that led up to an employee’s resignation. A form of constructive dismissal is now recognised in the Fair Work Act at s386(1)(b), which says that an employee has been dismissed if their resignation was forced upon them ‘because of conduct, or a course of conduct, engaged in by his or her employer’. Such conduct might take the form of imposing more onerous obligations on the employee or depriving them of benefits or telling the employee that if they do not resign, they will be dismissed. But to have a resignation characterised as a constructive dismissal is not the end of the matter. That is, it does not necessarily mean that the dismissal was unfair. The tribunal still has to be persuaded that there was no valid reason for the dismissal and that the termination was harsh, unjust, or unreasonable. In a case in which the employer has offered or encouraged resignation or even threatened dismissal if the employee did not resign, a tribunal might still be persuaded that such treatment was more beneficial to the employee than if the employee had been dismissed.

Contract Period Comes to an End

Where the employment is expressed in the contract as being for a fixed period of time, a specified task, or for the duration of a specified season, the employment comes to an end when that point in time is reached, without the employer needing to do anything. However, two cautions are necessary. First, if the contract includes a provision permitting termination by notice during the contract period (such as in so-called maximum-term contracts), then it probably does not fulfil the characteristics of a contract for a fixed period. The other caution is that if the end of the contract period comes and goes and the employee continues working without a new fixed-term contract being entered into, the employee will usually be regarded as now being employed on an indefinite-term contract.

Employee Resigns

There is no legislated minimum period of notice for an employee to give when terminating employment. However, employee notice periods are often prescribed in awards and agreements and in employment contracts. Where a minimum period of employee notice of termination is prescribed, there is sometimes an option for the employee to forfeit wages in lieu of working out the notice period. And sometimes, in practice, the employer will find it convenient to waive their right to notice or forfeiture of wages. Employment cannot be terminated twice. If an employee has been summarily dismissed, they cannot respond by tendering their resignation. Resignation, however, remains an option for an employee who is serving out a notice period initiated by the employer, provided the employee’s notice period expires before the termination date set out in the employer’s notice. An employee is not prevented from tendering their resignation whilst on annual leave unless the award, enterprise agreement, or employment contract specifies otherwise.

Termination by Mutual Consent

It is not uncommon for employment to be ended by mutual consent. For instance, an employee who is required under their contract of employment to give a certain period of notice may obtain agreement from their employer to terminate the employment with less or no notice and without penalty. Similarly, an employer who has given an employee the requisite notice may be approached by the employee requesting to leave before the expiry of the notice period. Or where both parties to an employment contract know that the arrangement has to come to a conclusion due, for example, to a decline in the need for the employee’s services, they will often negotiate a mutually convenient termination date on agreed .

Frustration of Contract

Frustration arises when circumstances change to the extent that performance of the contract becomes impossible or one party is deprived of the benefit of the other’s performance. In the event of this happening, the contract is automatically brought to an end, that is, without action by either party. Examples include the death of the employee or employer (where the employer is a natural person), the employee being prevented from attending for work due to being sentenced to a significant term of imprisonment or suffering a long illness with no prospect of the employee ever being able to return to work or some intervention by a third party to prevent the employee working (for example, where the owner of the premises where the work is being carried out refuses the employee entry to those premises). The qualifier to this is where employees are unable to perform work because of an event that was a foreseeable possibility (e.g. fire or flood, industrial action, or a decline in business). In such cases, the contract has not been frustrated. But it may be permissible under the relevant award or enterprise agreement for the employer to stand employees down due to lack of work. It is important that the employer not pre-empt frustration. It has been held that the action of an employer notifying an employee of termination of employment due to the employee’s impending imprisonment made void the defence of ‘frustration’. The employer should have waited until the employee was actually incarcerated as, until that occurred, there was no frustrating event.

Repudiation of Contract

Repudiation occurs when a party to a contract seriously breaches an obligation to perform part of the contract or indicates by either their words or actions that they intend to no longer be bound by the contract. An employee’s refusal of duty or other similar misconduct, if maintained after being informed of the seriousness of their action and potential consequences, will often amount to repudiation. It is generally considered that an employer has the option to accept or ignore an employee’s repudiation. An employer seeking to use an employee’s repudiation to end the employment should inform the employee that their repudiation is accepted and their employment is thus ended. The employer needs to act as soon as practicable after the repudiation becomes apparent. Otherwise, the employer may be presumed to have ignored the repudiation and allowed the employment to continue.

Abandonment of Employment

Abandonment of employment has sometimes been regarded as repudiation. Awards and enterprise agreements sometimes set out in specific that certain conduct will be deemed to constitute abandonment of employment. In the absence of such specific , it is advisable that an employer make some enquiries of the employee, for example, by attempting to them at their last known address, before treating their absence from work as abandonment of employment or repudiation. To accept abandonment of employment as repudiation, the employer should advise the employee of such, usually by writing to them at their last known address. Something like the following will suffice.

SUBJECT: ABANDONMENT OF EMPLOYMENT

You have been absent without leave for in excess of [number of days] without having ed us. You are therefore deemed to have repudiated your contract of employment. We accept your repudiation and consider your employment to have terminated as at the date of this letter.

Any payments due to you will be deposited into your bank .

Effect of Termination of Employment

It can sometimes be important to maintain a distinction between the employment and the contract of employment, for example, where the contract includes obligations on the employee that remain in force after the employment is ended (such as non-disclosure of trade secrets and undertakings not to enter into competition). In such cases, the employer may want to terminate the employment but not the contract. All you need to do is refer to termination of employment rather than termination of contract of employment.

Tactics Employers Have Used to Avoid Unfair Dismissal Claims

It is possible for employers to use aspects of employment law in tactics to minimise their exposure to unfair dismissal claims. The following discussion is about these tactics, some of which are fair and above board whilst others are, in my view, more dubious. Judge for yourself! Try to achieve a resignation as an alternative to dismissal. This happens probably more often than most people think. There is a good reason why an employee might be amenable to this course. If they know that they have done something incompatible with their obligations as an employee or their performance is unsatisfactory and they believe that dismissal is a likely outcome, they may prefer to have their employment history record a resignation rather than a dismissal. The resignation might be tendered by the employee before a formal investigation has commenced or whilst it is in progress. An employee’s resignation cannot be rejected by the employer, but the employee is still required to work out any prescribed notice period unless the employer excuses the employee from this obligation, which is what often happens. Once an employer has completed its enquiries and advised the employee that they are summarily dismissed, it is too late for the now ex-employee to tender their resignation. However, in order to reduce the likelihood of an unfair dismissal claim, the employer might enter into an agreement with the employee to treat dismissal as a resignation as far as any third party is concerned. If the contract is frustrated due to a change in circumstances, the employer needs to let the employment come to an end without taking any positive action of its own. This requires care as it is not always clear when the frustration is effective from. For example, I mentioned earlier a case in which an employer notified an employee who was due to commence a prison sentence that it regarded the employment as frustrated, and the employment thus ended. A tribunal held that the employer had acted prematurely in that the employee was still at liberty. It found the termination to be a dismissal. If possible, an employer faced with a potential frustration should do nothing until it has been clearly

demonstrated that the employee cannot perform their part of the contract. Even then, there is no need to write to the employee, and I advise against doing so. In any with the employee, the employer should be careful not to indicate that it is taking any action to terminate the contract or the employment. The termination occurs automatically by force of law. Absence due to illness will often not result in frustration as contracts of employment usually contemplate the possibility of illness or injury. But longterm disabling illness is capable of causing frustration. Bear in mind that the Fair Work Act prohibits termination of employment because of absence from work due to illness or injury that is for a continuous period of not more than three months or a series of absences totalling not more than three months within a twelve-month period.

Deal with abandonment or other repudiation appropriately (i.e. don’t dismiss). Similarly, in the case of abandonment or other repudiation, although it will generally be necessary for the employer to the former employee for the purpose of notifying acceptance of the employee’s ‘repudiation’, it is important that the employer does no more than that. Acceptance of repudiation is a ive act in that it requires the employer to do no more than notify the employee of its acceptance. Unlike the scenario of frustration where the employment automatically comes to an end, the employer must elect to accept or not accept the employee’s repudiation. Failure to indicate in some way acceptance of the repudiation may be interpreted as a decision to continue the contract.

Make use of redundancy to get rid of employees you don’t want. An employee dismissed due to a ‘genuine redundancy’ cannot access the unfair dismissal provisions of the Fair Work Act 2009 (s 385 (d)). It is worth noting that concepts such as ‘seniority’ have no application in determining who is to be displaced when workforce numbers are required to be reduced, unless contained in an award, enterprise agreement, or contract. Thus, an employer is often free to select for termination those employees in a particular job category whose services are the least valued compared to other employees in the same job category.

Don’t take on employees if you don’t have to. Unfair dismissal remedies are available to employees against their employers. So if you have no true employees of your own, there is no one to make an unfair dismissal claim against you. Alternatives to employing people directly include contractors and labour hire. However, it is not enough to label someone as a contractor. A court or tribunal will examine the nature of the relationship rather than just the words in a contract. Some of the factors which have been used to determine the nature of an employment relationship are:

• the extent of control that the principal has over the manner in which work is performed, place of work, hours of work, and so on • whether the worker performs work for others or is entitled to do so • whether the worker has a separate place of work and s his or services to the world at large • whether the worker uses his or her own tools or equipment • whether the worker can delegate work to a subcontractor • whether income tax is deducted from remuneration paid to the worker • whether remuneration is paid by periodic wage and salary or by reference to completion of tasks • whether the work involves a profession or trade • whether the worker is provided with paid holidays or sick leave • whether the worker spends a significant portion of his or her remuneration on business expenses.

The services of a true contractor can be dispensed with without notice unless the

contract requires notice to be given. But it is very easy to slip into the practice of treating a contractor as though they are another employee. Similarly, with labour hire workers, it is important to deal with the supplier, not the workers, when it comes to matters such as work performance, discipline, and payment of wages.

Keep the workforce at fewer than fifteen and comply with the Small Business Fair Dismissal Code. As noted earlier, if the number of employees of the employer at the time of a dismissal is fewer than fifteen, the dismissed employee needs to have been employed for at least twelve months before they can prosecute an unfair dismissal claim. If they have had twelve months or more service, then they can make such a claim. But in the case of a small business employer, its defence will be based mainly around whether it has complied with the Small Business Fair Dismissal Code (which you can view on the Fair Work Commission website).

Use short fixed-term contracts or casuals if that suits your type of business. Employees on true fixed-term contracts have no access to unfair dismissal laws if the termination of their employment occurs due to the expiry of a specified period of time, a specified task, or a specified season. But there is a catch if it can be shown that the use of a fixed-term contract is largely for the purpose of avoiding the application of unfair dismissal laws. So for this to be an effective tactic, there need to be other substantial reasons why a fixed-term contract is an appropriate form of employment. Service as a casual employee does not count as continuous service when calculating the six-month or twelve-month period for access to unfair dismissal laws (Fair Work Act 2009 s 384(2)). But that is only if the employment has not been on a regular and systematic basis and the employee has no reasonable expectation of ongoing employment. So an employer who takes on what in fact amount to full-time permanent employees, but simply prefers to pay them as casuals, is not protected from unfair dismissal claims.

Terminate employment before employees have completed six months’ service (twelve months if a small business). I have never understood why it is acceptable that a person can be unfairly dismissed within their first six months of employment and have no access to remedy or why small businesses have twelve months in which they can unfairly dismiss an employee. But that is the current position under the Australian federal employment law. There are small business employers who routinely terminate the services of employees when they are approaching twelve months’ service. This may be a practical approach for certain types of businesses but probably not for most.

Avoid being covered by an award or agreement and pay above the high-income threshold. This approach is most applicable to professional and other skilled employees and to senior managers. To access the unfair dismissal laws, an employee needs to be:

• covered by a modern award, • covered by an enterprise agreement or • earning less than the high-income threshold.

The high-income threshold is set annually from 1 July. You will find the current level on the Fair Work Commission website. Annual income includes not just salary or wages. Guaranteed overtime and other benefits, both monetary and nonmonetary, that the employee is entitled to receive can be included. To avoid potential argument, it is worth considering including in employment contracts a nominal value for specified nonmonetary entitlements.

Or you could just treat your employees fairly. Recruiting an employee and properly inducting them into an organisation and getting them up to speed can be expensive in of both time and money. So terminating their employment takes away the opportunity to get a full return on that investment. Balanced against that is the consideration of cutting one’s losses when it is concluded that the employment is just not going to work out. When misconduct or poor performance is perceived to have occurred, how it is addressed, or not addressed, will attract the attention of the broader organisation and, sometimes, even beyond the organisation. A reputation for treating employees fairly can have a beneficial effect on workforce morale and productivity and in the labour market. Fairness does not equate to weakness.

Chapter 16

Unfair and Unlawful Dismissal and Adverse Action

Being good is easy, what’s difficult is being just. Victor Hugo

Most unfair dismissal cases essentially get determined on their own facts. Conduct that might justify dismissal in one set of circumstances may be excusable in different circumstances. Factors that can make a difference include how well a policy or rule has been communicated (Selak v. Woolworths Ltd (2008) 171 IR 267 at (26)), whether it has been consistently applied (B, C, and D v. Australia Postal Corporation T/A Australia Post (2013) FWCFB 6191 at (67) and (68)), the employee’s explanation, and their work record. So it may be fair to dismiss a relatively new employee who has been recently warned that certain behaviour is unacceptable and who nevertheless engages in that behaviour and is considered likely to reoffend. But the dismissal of an employee of ten years’ service with an unblemished record who commits the same misconduct and expresses genuine remorse may be considered ‘harsh’, which would make it ‘unfair’.

Organisations often establish sets of rules that are given titles such as ‘golden rules’ or other labels that suggest a zero tolerance of breaches. Labelling certain offences in such a way does not in itself protect the employer from an unfair dismissal claim. The rule still has to be reasonable, and the circumstances of the breach have to be such as to make dismissal appropriate when tested against the criteria of

‘harsh, unjust, or unreasonable’.

An employee can be summarily dismissed whilst working out their notice period. For example, where notice of termination has been given because of a decline in business or a need to restructure or a deterioration in the employee’s performance, summary dismissal can result from serious misconduct occurring or being discovered during the notice period. Similarly, an employee who gives notice of termination can be summarily dismissed if they commit serious misconduct during the notice period. If the misconduct falls short of ‘serious’, the employer can terminate the employment by making payment in lieu of notice. The payment would only be for the balance of the employee’s notice period that has not yet expired.

What a Manager Needs to Do to Ensure ‘a Fair Go All Round’

1. First, the manager must conduct a thorough enquiry into all relevant matters. That can take time, but you rush it at your peril. 2. They must tell the person concerned what has been alleged and why it is a concern. That means letting them know about anything that will be taken into when making a decision about their employment. And the employer must give them the opportunity to respond before any decision is taken. 3. If they want to have a person present to assist in discussions, the manager must allow it. But the person is not there as their advocate to speak on their behalf. The employee concerned has to speak for themself. 4. If the concern is related to unsatisfactory performance rather than misconduct, the manager must give the employee specific advice as to what they need to do differently and give them an opportunity to improve. 5. If the manager is contemplating dismissing someone, they need to think about how they will explain a valid reason as to why termination of employment is appropriate.

Elements of an Unfair Dismissal Claim Under the Fair Work Act 2009

Before considering an unfair dismissal claim, the Fair Work Commission must satisfy itself as to:

1. whether the application was lodged within twenty-one days 2. whether the person had been employed for at least six months 3. whether one or more of the following apply: a. a modern award covers the employee b. an enterprise agreement applies to the employee c. the employee’s annual rate of earnings does not exceed the high-income threshold.

4. whether the dismissal was consistent with the Small Business Dismissal Code (if the employer is a small business, i.e. fewer than fifteen employees) 5. whether the dismissal was a case of genuine redundancy.

For an unfair dismissal claim to succeed, the commission needs to be satisfied that:

1. there was an employer–employee relationship 2. the employer is a constitutional corporation 3. the employee has been dismissed 4. the dismissal was harsh, unjust, or unreasonable.

The remedy that can be ordered by the commission for unfair dismissal is reinstatement or payment of compensation of up to six months’ pay or half the annual high-income threshold, whichever is the lesser. Most successful unfair dismissal claims result in compensation being awarded rather than reinstatement. That is largely because that is the outcome generally preferred by dismissed employees. However, that may be a function of several decades of low unemployment. If the unemployment level increases significantly, more dismissed employees might seek reinstatement rather than compensation.

Section 387 Criteria for Considering Harshness

So after the commission has made findings as to any disputed facts, it must then determine whether a dismissal was harsh, unjust, or unreasonable. Matters that the commission might consider relevant include:

• the amount of any termination payment • the employee’s age • the employee’s length of service and work record • the employee’s cooperation or otherwise during any investigation and level of remorse if relevant • the extent to which the conduct of other people may have contributed to the employee’s misconduct or unsatisfactory performance (for example, provocation).

It is for the commission to attach such weight as it deems appropriate to each of the above considerations.

Adverse Action

A dismissed employee who does not have access to an unfair dismissal remedy might be able to prosecute a claim that the employer has taken adverse action against them for a prohibited reason. And forms of prohibited employer adverse action extend well beyond dismissal. They include any action that ‘injures the employee in his or her employment’, ‘alters the position of the employee to his or her prejudice’, or ‘discriminates between the employee and other employees of the employer’. Where the alleged adverse action involves the denial of a benefit, it is not necessary that the benefit be a legally enforceable entitlement. That is, it is not restricted to entitlements under an award or enterprise agreement or legislation and extends, for example, to benefits that an employer provides to staff as a matter of policy. Examples include bonus payments, access to additional leave, and use of the employer’s property (such as a motor vehicle, computer, or mobile telephone).

Managing Unfair Dismissal Claims

To prosecute an unfair dismissal claim, an employee who has been dismissed must lodge an application with the Fair Work Commission within twenty-one days of the dismissal taking effect. A copy of the application, along with the Fair Work Commission’s form for the employer’s response, is then served on the employer who then records their response and provides copies to the commission and the applicant. If the employer raises an objection based on lateness in filing the application or other question about the applicant’s entitlement to prosecute a claim of unfair dismissal, the commission must first deal with this objection. Such objections involve disputes about whether the applicant was an employee, whether they were covered by an award or enterprise agreement, whether they were being paid below the high-income threshold, whether the applicant had completed the minimum employment period, or when the employer claims not to be a corporation and thus does not come under the commission’s jurisdiction. The commission can sometimes decide these matters on the information contained in the papers that have been filed. If not, it will conduct a formal hearing to allow evidence and argument to be presented on such preliminary matters. The commission then s the parties and organises a conciliation conference, which may be done by telephone. The conciliator has no power other than to try to get the parties to reach a settlement. If that does not result in resolution, there may be a further conference or hearing if facts are in dispute. If facts are in dispute, witness statements will be required, and the witnesses will need to be available for cross-examination if requested. A large majority of cases are settled without going to arbitration, usually by the employer making a payment to the applicant, colloquially referred to as ‘go away money’. In many cases, the employer makes such a payment in order to avoid the time commitment and expense involved in fighting the claim, not because they feel the claim has merit.

The prospect of the commission refusing legal representation to defend the claim may also be a factor in an employer’s decision to try to settle a claim.

Managing Unlawful Termination Claims

The Fair Work Act also deals with what is termed unlawful termination as a totally different subject from unfair dismissal. A termination is ‘unlawful’ if a reason for the termination is:

• temporary absence of less than three months in a twelve-month period • trade union hip or non-hip or lawful trade union activity • filing a complaint about an employer • race, colour, and so on • absence on parental leave • temporary absence on voluntary emergency service.

The employee has sixty days to apply to the Fair Work Commission. Onus is on the employer to prove that the termination was not motivated by a proscribed reason. The employee can seek damages. There is no prescribed limit on how much can be awarded. This action is not available to employees who are eligible to access the adverse action provisions.

Managing Adverse Action Claims

The procedure for lodging and responding to an adverse action claim is similar to that for an unfair dismissal claim. However, there are differences in the elements that have to be addressed and who can apply. As mentioned earlier, prospective employees and independent contractors cannot prosecute unfair dismissal claims. But they can make adverse action claims against employers and clients. In considering a dismissal in the context of an adverse action claim, the court will rule irrelevant any submissions as to the fairness or otherwise of the dismissal. The court is only interested in the motive for taking the adverse action. The onus is on the employer to satisfy the court that a proscribed reason was not the reason or one of the reasons for taking the adverse action. It is very difficult to prove that without calling the decision maker to give evidence and to be available to be cross-examined. The commission and the Federal Circuit Court can order reinstatement and compensation for lost wages, hurt, humiliation, and distress. There are no upper limits on the amounts they can order. These features of the legislation pertaining to adverse action, which are not features of the laws governing unfair dismissal, make adverse action a more attractive course for dismissed employees in some circumstances. The reasoning that an employer might use to justify in its own mind a decision to offer ‘go away money’ in an adverse action case is more problematic than it is for an employer facing an unfair dismissal claim. Reasonable minds might differ on the question of whether an employer’s action in a particular set of circumstances was ‘harsh, unjust, or unreasonable’. The uncertainty about the potential result of an arbitration is an understandable factor in an employer’s decision to avoid that course. But in an adverse action case, the central issue is the employer’s motive for the action that it has taken. Did the employer do as it did for a prohibited reason or for reasons that included a prohibited reason? It either did or did not; it seems to me that there can be no middle ground. If the adverse action were not taken for a prohibited reason, it can be difficult for the industrial officer to justify in his own mind the payment of any money to have

the matter settled.

Chapter 17

‘The Union Is Coming’—Right of Entry

Conflict is inevitable, but combat is optional. Max Lucado

Let’s face it, without unions, there would be no need for the role of industrial officer as we know it. Unions are part of a system that allows the owners of labour (employees) to act collectively just as the owners of capital (investors) act collectively through companies. Unions want to get the best deal they can for their ; companies want to ensure that shareholders are satisfied with the value of their shares and with the dividends they receive. These are conflicting objectives. Or are they? Employees need businesses to be successful so that their employment will be secure. Businesses need workforces that are satisfied with their employment conditions and motivated to work productively. Fortunately, most of the time, employers and employees work together in relative harmony. Relationships can become a little tense when enterprise agreements have to be renegotiated, when management feels the need to make changes that impact upon employees, and when employees or their unions object to the way one or more of them has been treated. During such times, the skills of the industrial officer and her union counterpart are put to the test.

But there will also be other occasions when union officials visit worksites. It’s a mistake to think they are always coming to make trouble. Often, the main purpose of the visit is to recruit or collect union dues. If, during such a visit, employees raise issues with them, then they will need to be seen to be doing their job. And for a union official to do their job well is not easy! Their can be demanding, and often, their demands are unreasonable. My advice to the industrial officer is not to make the union official’s job more difficult than it needs to be. She should listen to what the union official has to say, ask questions to clarify what the issues are, and try not to be defensive. She shouldn’t allow herself to be rushed into giving answers. If she needs time to confirm the facts in what the union official is alleging or to review relevant law or to consult with others, she should take that time. If this is the case, the union official will usually want to know when they can expect answers. That’s reasonable. How the industrial officer responds to this is important. She cannot always know how long it is going to take to check facts, review the law, consult with other of management, and compose an answer. So giving an undertaking to provide an answer by a particular time is dangerous. She can avoid this danger by responses such as:

• ‘I’m not sure how long this will take, but I’ll get back to you in the next day or so and let you know progress.’ • ‘I’ll need to check with other people about some aspects of this, but I hope I’ll be able to get back to you early next week.’ • ‘You have raised an interesting issue. It warrants careful consideration. I’ll probably not be able to get back to you until late next week.’

These are all reasonable responses. They help to convey to the union official that

she has listened to what they have said and intends to treat it seriously. But at the same time, she has not allowed herself to be pressured into giving a response which has not been properly considered because of a deadline she has set herself. Nor has she risked failing to give a response at a time she has promised. And the union official can go back to the union and tell them that the industrial officer wouldn’t give a specific time for a response to their issues but that she appears to be taking them seriously.

Union ‘Right of Entry’ and Access to Information

At the time of writing, the Fair Work Act 2009 made provision for union officials to enter premises where are employed for the following purposes:

1. to investigate suspected breaches of the act or an enterprise agreement or award 2. to hold discussions with employees who are or are eligible to be of the union that the official represents 3. to exercise rights set out in applicable state or territory occupational health and safety (OHS) legislation.

However, to exercise such right of entry, a union official must hold a permit issued by the Fair Work Commission. And to exercise rights under state or territory OHS legislation, the union official must also hold a permit issued by the relevant state or territory authority. Parts 3–4 of the Fair Work Act 2009 set out in considerable detail the extent, limitations, and conditions applying to a union official exercising right of entry to premises. It covers matters such as:

• requirement to give notice of intention to exercise right of entry • times when right of entry may be exercised • what the union official may and may not do whilst on premises • suspension or revocation of entry permits.

It also makes clear that the employer or the owner or occupier of the premises must not refuse, unduly delay, hinder, or obstruct a union official lawfully exercising right of entry. Most times, the union official exercising right of entry will provide plenty of notice and will not seek to do more than they are entitled to do. If your company takes seriously its responsibilities for the safety and health of its employees, it has little to fear from union visits. But sometimes, they will try to push the envelope, making it necessary for management to challenge them. Some have also been known to use their rights under state or territory OHS laws to further other agendas not strictly related to workplace health and safety. These situations can be very difficult to manage and almost impossible if management are not familiar with the extent and limits that apply to union officials exercising right of entry. The industrial officer needs to be familiar with this contentious area of legislation and keep up to date with the relevant case law.

Chapter 18

Industrial Action

He will win who knows when to fight and when not to fight. Sun Tzu

For most of Australia’s history, all forms of industrial action were unlawful and subject to penalties. But with the shift towards decentralised enterprise bargaining during the 1990s, it was necessary for the law to recognise the right of employees to withdraw their labour and engage in other forms of industrial action in order to further their bargaining interests. But there were still limits imposed as to how and when industrial action would be lawful. This led to the concept of ‘protected’ industrial action. Employees can be successfully sued for damages if they engage in unprotected industrial action. If their industrial action qualifies as ‘protected’, they cannot be successfully sued for damages. Protected industrial action and the rules governing it are dealt with extensively in Part 3 of Chapter 3 of the Fair Work Act 2009. The industrial officer must be fully acquainted with this legislation when preparing to engage in enterprise bargaining. There is a series of steps that unions and employees must go through before they can take protected industrial action with the result that an employer will rarely be taken by surprise when it occurs. Unprotected industrial action on the other hand can occur with little or no warning to the employer.

Industrial action by employees can take a variety of forms (see the definition in Section 19 of the Fair Work Act 2009). It includes:

• a refusal to attend work or cessation of work (a strike) • a ban, limitation or restriction on the performance of work (refusal to work as directed) • a ban, limitation, or restriction on the acceptance or offering for work (for example, a refusal or restriction on the working of overtime) • a change in the manner in which work is performed, resulting in a restriction or limitation or delay in the performance of work (for example, the taking of excessive rest breaks).

However, none of the above actions by employees amount to industrial action if their employer has authorised them. Managers must be careful; simply standing by and taking no action might be interpreted as authorisation.

Another important thing to note is that action by employees that is not motivated by some aspect of disputation or bargaining with the employer falls outside the definition of ‘industrial action’. See Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v. The Age Company Limited, PR 946290 [2004] AIRC 445, 11 May 2004. So when employees are absent from work as a gesture of sympathy for the family of a colleague who has died, it is probably not industrial action. Conduct that is not industrial action may nevertheless be misconduct and thus warrant some form of disciplinary action.

Refusals or restrictions on work are not industrial action if they are ‘based on a reasonable concern … about an imminent risk’ to the employees’ health or safety and the employees have complied with the employer’s request to perform alternative work that is safe and appropriate for them to perform (Fair Work Act 2009 s 19(2)). Note that the concern must be ‘reasonable’, not fanciful or unrealistic. And the risk must be ‘imminent’, not remote or distant. And they must comply with the employer’s request to perform any alternative work that does not pose such risk. Employees are not entitled to receive payment for any time they engage in industrial action, whether it be protected or unprotected. The calculation of the deduction of payment in the case of a partial work ban is explained in Section 471 of the Fair Work Act 2009. At the time of writing, employers are prohibited from paying employees for any time they engage in unprotected industrial action (s 474). If they do, they can have a fine imposed on them by the Federal Court or the Federal Circuit Court on application by the Fair Work Ombudsman’s office or the Fair Work Building Industry Inspectorate.

If a manager believes employees have imposed an overtime ban and wants something done about it, they need to ask the employees to work overtime. If they believe the employees have imposed a ban on doing certain work, to prove it, they need to direct them to do that work. But management might not always want to do something about a suspected decision by employees to impose a ban or limitation. For example, if a suspected overtime ban imposes little or no inconvenience for the employer but deprives employees the opportunity to increase their earnings by working overtime, the industrial officer might suggest to management that they take no action and allow dissention amongst employees to grow and so weaken the position of those who are advocating industrial action. Another example of where management might not want to inflame a situation is where some on the employees’ side have misled employees by fearmongering to have them refuse to perform particular work because of bogus safety or health concerns. It might be better to delay issuing an instruction to do the work until expert evidence can be presented to employees showing that their fears are groundless and that they have been misled. Reminds me of the following quote attributed to ancient Chinese general Sun Tzu, ‘The supreme art of war is to subdue the enemy without fighting.’

I’ve often heard managers speak of something that employees have done or are doing and the manager deeming it to be industrial action. Managers will also sometimes threaten employees that if they do not comply with the managers’ directions, the employees will be deemed to be on strike. Such statements disclose a misunderstanding of the law pertaining to industrial action. Whether the behaviour of employees constitutes industrial action is a question of fact. If it is in fact industrial action, whether the manager thinks it is or isn’t is irrelevant. If it is not in fact industrial action, the manager cannot deem that it is.

The prudent industrial officer prepares a file for ready access in the event he is faced with unprotected industrial action. So what should he include in his industrial action response file? The main objective of an industrial action response would usually be the cessation of unprotected industrial action in as short a time as possible. The usual means of the employer achieving that is by seeking intervention by the Fair Work Commission.

When unprotected industrial action occurs, the industrial officer will need to communicate with other of management and perhaps externally with clients or customers. He will also probably need to his firm’s lawyers or industry association. His response file should include all their up-to-date details.

Given the likely urgency to get a hearing before the Fair Work Commission, it will be useful to have in the file a copy of the Commission’s Form F14 (application for an order to stop (unprotected) industrial action) and a draft of the order that will be sought, both populated with the standard information that will be included, such as the employer’s identity and details, the nature of the employer’s business and the location where work is being carried out, the correct names of all unions to which employees are entitled to belong, and the unions’ addresses.

When hearing an application for an order to stop industrial action, the commission will usually want to be apprised of any relevant background information. With this in mind, the industrial officer might consider including in his industrial action response file:

• a description of the employer’s business and current activities on which employees are engaged • templates for witness statements • a history of industrial disputes experienced by the business • a chronology of union visits to hold discussions with employees and matters raised during those visits • a chronology of union visits to investigate workplace health and safety matters • access to minutes of safety committee meetings as well as notes of matters raised by safety representatives and union delegates • access to details of any agreements or undertakings entered into with employees or unions • employee induction materials • standard letters of offer of employment • policies covering employee behaviour and work performance • workplace health and safety policies.

Having this information assembled in one place or readily available will save time if there occurs an urgent need to file in the Fair Work Commission an application for an order.

If the commission grants the order, the employer will usually have the responsibility for serving the order on the relevant employees and unions. To do this, the industrial officer will need up-to-date details of all employees and relevant unions. Only after the order has been served on employees are they required to comply with it. Service might entail personal delivery to each employee! But what if they are served with the order and don’t comply? The employer’s next step is to apply to the Federal Court for an injunction requiring compliance with the order. Continuation of industrial action after the issue of an injunction exposes the employees to the possibility of actions against them as individuals for damages suffered by the employer as well as penalties imposed by the court. In practice, matters rarely get to this stage. Unions and employers both understand the damage to relationships in the workplace when individuals suffer financial penalties for engaging in industrial action.

Chapter 19

Advocacy

Advocacy is a skill. It is an art, not a science. And like any skill, advocacy can be learnt. Up to a point. The Devil’s Advocate, Iain Morley QC

An employer wishing to be represented by a lawyer or paid agent in proceedings before the Fair Work Commission needs to be aware that the commission’s permission is required and that such permission will not be automatically granted (Fair Work Act 2009 s 596). Note that permission is not required where the lawyer or paid agent is an employee or officer of that employer or of an employers’ association. Permission can only be granted where it can be shown that

a) the complexity of the matter would justify representation by a lawyer or paid agent b) it would be unfair not to allow representation because the employer is unable to represent themself effectively c) it would be unfair given the difference in workplace relations advocacy experience between the parties.

One consequence of this is that an industrial officer faced with, for example, an unfair dismissal claim may have to present the defence herself rather than through a lawyer or an agent experienced in appearing before the commission. This restriction only applies to actual representation in a conference or hearing. It doesn’t prevent the use of a lawyer or paid agent in preparing documents (s 596(3)) and planning the presentation of a case. The restriction also does not apply to representation in proceedings before the Federal Court or the Federal Circuit Court in adverse action cases. I have represented my employer on many occasions in conferences in the federal commission and some state tribunals. I have also occasionally represented applicants and defendants in hearings. I would say that my performance has generally been adequate but certainly not brilliant. It is difficult to become really good at advocacy if you are not doing it regularly.

So how does the industrial officer prepare herself for the possibility of representing her employer in proceedings in the Fair Work Commission? There are several things she can do. She can pay a visit to the Fair Work Commission. It has offices in all capital cities and in some regional centres. Have a look around. Maybe sit in on a hearing to see first-hand how the process works. Observe where the advocates are seated and how they address the commission member and each other. She may not be able to attend a conference as these tend to be closed to the public. Conference proceedings are far less formal than hearings, although it is normal for those attending to stand when the commission member enters and leaves the conference room. information from the commission’s website. The Unfair Dismissals Benchbook is a must-read for the industrial officer tasked with defending an unfair dismissal application. Other bench books cover the topics of anti-bullying, enterprise agreements, and industrial action. As part of the process, the parties to proceedings may be required to provide written outlines of their arguments. They may also be required to provide written statements from any witnesses they propose to use. Written submissions and witness statements often assist in the efficient hearing of matters by the commission. But the industrial officer must exercise care in preparing these. Once filed in the commission, they are available to the other party to the proceedings. Often the witnesses are still required to be available for cross-examination on what they have written in their witness statements. Make sure the witness confirms everything in their witness statement before you file it. Use their language. Do not use words that are unfamiliar to them. Books on advocacy that I recommend the industrial officer read include:

• Du Cann, R. (1993), The Art of the Advocate Rev. ed (Harmondsworth: Penguin Books).

• Morley, I. (2015), The Devil’s Advocate 3rd edn (London: Sweet & Maxwell). • Scalia, S. and Garner B. (2008), Making Your Case: The Art of Persuading Judges (Saint Paul: Thomson/West).

There are plenty of others. But these three are particularly good. I won’t attempt to summarise what’s in these books. You need to read one or two of them. But I will offer some words of encouragement.

1. Expect to be nervous when you are going into a conference or hearing. I still am after countless times. If you aren’t nervous, maybe you are overconfident. 2. Take time to think before you answer any questions put to you. 3. It’s OK to say you don’t know the answer to a question you have been asked. In fact, you must say you don’t know. Never give a categorical answer that you are unsure of. Offer to find out the answer. 4. If a proposal for settlement is put to you by the commission member or the other side, write it down and read back to them what you have written. Make sure you all have the same understanding. 5. Don’t be afraid to ask for an adjournment whilst you confer with colleagues or obtain instructions from your management. 6. If it appears that a settlement has been reached, consider insisting that final agreement be subject to the settlement being incorporated in a deed or memorandum. 7. Stay cool. 8. Be polite. 9. Act confident. 10. Above all, be professional.

But what if you are asked to advocate a position that you don’t believe in? Lawyers encounter this all the time. Du Cann explains the position with the following quote from one of the cases that he deals with in his book:

An argument which does not convince yourself may convince the judge to whom you argue it: and if it does convince him, why Sir, then you are wrong and he is right. It is his business to judge; and you are not to be confident in your opinion that a cause is bad but to say all that you can for your client, and then hear the judge’s opinion.

The duty of the industrial officer representing her employer in a matter before the Fair Work Commission is to present the relevant facts and, where there are legal issues to be considered, direct the commission’s attention to what she believes to be the relevant law. She should never state to the commission her personal view as to the validity of her employer’s position, and if she does, the commission should pay no heed to it.

Finally, on the subject of advocacy before the Fair Work Commission, be aware that some will take a more strict approach than others when it comes to applying the rules of evidence, which Section 591 of the Fair Work Act 2009 clearly states do not bind the commission. In a matter in which I appeared before the Western Australian Industrial Relations Commission because the commissioner had impressed upon the advocates that he wished the hearing to be completed promptly, I made the fatal error of not presenting to my opponent’s witness in cross-examination evidence that I would be calling contradicting that witness’s evidence (thus breaching the rule in Browne v. Dunn). No objection was taken by my opponent during the hearing, and no application was made to recall this witness after I had completed evidence from my witnesses. The matter was merely touched on in my opponent’s closing submission. However, the commissioner, who came from a legal background, referred to my error in his Reasons for Decision in determining the matter in favour of my opponent. The lesson for me from this experience was to be aware of the style and attitudes of the commission member that I am appearing before and, if in any doubt, request the indulgence of the commission and my opponent if I intend to disregard a technical requirement in the interests of expediency.

Chapter 20

Negotiation

Let us never negotiate out of fear. But let us never fear to negotiate. Inaugural address, 20 January 1961, J. F. Kennedy

There are many good books from which you can learn techniques of negotiation. So I’ll confine what I have to say on the subject to some ideas gleaned from my own experience. But first I have a quiz for you that I have prepared from research reported in The Behaviour of Successful Negotiators, Huthwaite Research Group (1978), Situation Management Systems Inc. Mass, USFRED. The questionnaire is designed to gauge your current understanding of the negotiating processes. Please note the answer that you think is the correct one. There is only one correct answer to each question.

1. The amount of time spent on planning by the skilled negotiator is a. about three times that

2. The ratio of comments by the skilled negotiator relating to common ground as opposed to

3. The number of comments by the skilled negotiator regarding long-term considerations is a

4. The skilled negotiator a. sets fixed points to aim for in an agreement b. predetermines the a

5. The skilled negotiator does things that irritate the other party a. to about the same extent as

6. The skilled negotiator makes immediate counterproposals a. more than three times as often

7. The skilled negotiator makes defending or attacking statements a. about three times as ofte

8. The skilled negotiator prefaces statements with an explanation of the point about to be mad

9. The skilled negotiator checks understanding and summarises a. more than twice as often a

10. The skilled negotiator asks a. about the same number of questions as the average negotiat

11. The skilled negotiator describes how he or she feels a. to about the same extent as the ave

12. The skilled negotiator gives a. about three times as many reasons in of arguments

Now before I reveal to you the expert answers, I must emphasise that this quiz is based on research that involved observation of real negotiations and comparisons of the behaviours of acknowledged skilled negotiators with the behaviours of average negotiators. This method has significant advantages over:

• theoretical models, which tend to be complex and lacking in reality • laboratory studies, which are necessarily short-term and also are somewhat artificial • ‘how to do it’ exposés by people like me, which may or may not suit your style.

Now let’s see how you scored!

1. The amount of time spent on planning by the skilled negotiator is c. about the same as that

The researchers observed no significant difference between the skilled and average negotiators in the amount of time they spend on planning. Nor did they comment on any differences in the quality of the planning.

2. The ratio of comments by the skilled negotiator relating to common ground as opposed to

The researchers noted that the skilled negotiators contemplated a wider spectrum of potential outcomes. The average negotiators considered fewer options and, in particular, did not consider options that might be raised by the other party.

3. The number of comments by the skilled negotiator regarding long-term considerations is c

In an early study, the researchers noted that the skilled negotiators commented more often about long-term considerations, but in a more recent study, both groups focused mostly on short-term aspects.

4. The skilled negotiator b. predetermines the ambit within which agreement would be viable

Skilled negotiators set themselves upper and lower limits, whereas average negotiators aimed for a single fixed point

5. The skilled negotiator does things which irritate the other party e. less than a third as often

Skilled negotiators understand that certain words have negligible value and cause irritation (for example, ‘generous offer’). They avoid that the other side may find insulting or irritating.

6. The skilled negotiator makes immediate counterproposals e. not at all

The skilled negotiators recognise that when the other party tables a proposal, it is unproductive to immediately respond with a counterproposal. The other party perceives it as blocking or disagreeing and as dismissive of what they have proposed.

7. The skilled negotiator makes defending or attacking statements e. about a third as often

The skilled negotiator knows that attacking by one side results in defending by the other side and can start a spiral of increasing intensity. They are particularly careful to avoid any personal comments.

8. The skilled negotiator prefaces statements with an explanation of the point about to be mad

A skilled negotiator knows the importance of ensuring that the other side understands the point that they are making. They take the time to lead up to the point they want to make so that it doesn’t come as a surprise.

9. The skilled negotiator checks understanding and summarises a. more than twice as often a

This is similar to question 8.

10. The skilled negotiator asks d. about twice as many questions as the average negotiator

The researchers found that the skilled negotiators on average spent 21.3 per cent of their negotiating time on questions they had for the other side. That compared to 9.6 per cent for the average negotiators. Questions serve a number of useful purposes. They indicate to the other side that you are listening and are interested in understanding their position. They also sometimes draw attention to weaknesses in the other side’s argument but in a gentler and less antagonistic way than directly pointing out those weaknesses.

11. The skilled negotiator describes how he or she feels e. about twice as often as the average

It is sometimes useful to indicate to the other side, indirectly if necessary, that you could not agree to what they’re asking even if you wanted to. It’s a reminder to the other side that there are more stakeholders than just the two parties directly involved in negotiations or that some things are illegal! Also, acknowledging the emotional aspects of the negotiation relationship or the human aspects attached to a matter being negotiated can often take some of the heat out of a highly charged situation.

12. The skilled negotiator gives e. less than a third the number of reasons in of argum

The average negotiator will list as many reasons they can think of in of their argument. The problem with this is that as the list gets longer, the reasons listed are less and less convincing. The other side, if they are smart, will focus attention on the weaker arguments. Better to settle for a smaller number of sound reasons why you have adopted the position that you have. Every argument that doesn’t strengthen your case weakens it by creating distraction!

So there you have it. These are the behaviours that distinguish the skilled negotiator from the average negotiator. I mentioned earlier that there are many books whose aim is to teach negotiation, and I have no doubt that they are useful. They mainly explain various theories about negotiation. But negotiation is more art than it is science. And you cannot be a great artist unless you have natural talent. But even the industrial officer who is not gifted with great negotiating talent can learn to be at least competent, although he won’t achieve that from reading books about negotiation theory. There are however some books that demonstrate the art of negotiation. Two of my favourites are:

• Shōgun by James Clavell (published by Atheneum, New York) • The Godfather by Mario Puzo (published by Heinemann, London).

You should be able to pick up second-hand copies quite cheaply. Study the main characters. In Shōgun, Lord Toranaga demonstrates the importance of having many plans but only settling on a particular plan when the time is right. He is skilled in influencing the attitudes and behaviours of his opponents by the careful release of information designed to conceal his true intentions until it is too late for them to retaliate. Don Corleone, in The Godfather, is the head of a New York mafia family. Observe how he conducts business with the other families and his relationships with his own family and close associates. Take the following age:

‘Never get angry,’ the Don had instructed. ‘Never make a threat. Reason with people.’ The art of this was to ignore all insults, or threats; to turn the other cheek. Hagen had seen the Don sit at a negotiating table for eight hours, swallowing insults, trying to persuade a notorious and megalomaniac strong-arm man to mend his ways. At the end of the eight hours Don Corleone had thrown

up his hands in a helpless gesture and said to the other men at the table, ‘but no one can reason with this fellow,’ and had stalked out of the meeting room. Emissaries were sent to bring the Don back into the room. An agreement was reached.

I too have walked out of meetings where someone on the other side has been persistently offensive or unreasonably stubborn. But not until I was certain that the other party would ask me to return. It would be terribly humiliating to walk out of a meeting and be the one to request that discussions be resumed.

But the best way to develop the art of negotiation is to watch other negotiators, not just the really good ones whose brilliance you will ire and envy. Also take the time to study what average negotiators do. That’s easier because there are more of them than there are brilliant negotiators. Note what they do that negatively impacts their effectiveness and why. See what works for them and think about how you might do the same.

I have a few other ideas for you to consider when preparing for and engaging in negotiations.

1. Keep things as flexible as possible for as long as possible. Be unwilling to accept deadlines that others seek to impose. Don’t respond to offers or proposals until you’ve had the opportunity to think them through. Allow the other side time to think about your proposals before they respond. 2. Make sure you have the other side’s whole list of claims before you start negotiating. Do not negotiate settlement one claim at a time. Say ‘We might be able to do something there as part of a package,’ not ‘We agree to that.’ 3. Emphasise to the other side that ‘nothing is agreed until everything is agreed’. When you table a proposal, make it clear that it is intended to be in full settlement of all the claims of the other side and that if they do not accept your proposal on that basis, it will be withdrawn. 4. Take control of the process by doing most of the hard work. Take detailed notes. Do the drafting of proposals. 5. If part of a negotiating team, make sure that everyone on the team has a job to do and sticks to doing only that job. Roles include leader, deputy, subject matter specialist/researcher, observer/s, recorder, and so on. 6. Only one person does the talking, usually the leader, unless he or she asks for another team member to comment on something. 7. When forming a negotiating team, look for the mixture of experience, knowledge, skills, personalities, and other attributes that will enable the team to effectively respond to all the challenges it is likely to meet. 8. During breaks in negotiating sessions, of which there will often be many, use the time to have each team member share their observations about what appears to be happening on the other side. Often the other team will not be as disciplined as your team and will inadvertently disclose information that will help you gauge the levels of importance that they attached to individual items subject of negotiation.

9. Take great care when committing an agreement to writing. that it will be read and interpreted by others who were not present during negotiations and so will not have the advantage of knowing the discussion that led to the final result. Make sure that the other side take the time to carefully read what you have written. Try to remove any potential for future argument about what was agreed. 10. Read point number 9 again. Of all the advice that I can offer, this is the most important.

PART C

Chapter 21

The Importance of Context

For me context is the key—from that comes the understanding of everything. Kenneth Noland

Whilst the basic skills remain the same, how they are applied varies amongst industries. The industrial officer needs to adapt her style to match the culture of her organisation and the industry in which it operates. In the construction industry, thinking tends to be relatively short-term. That’s the nature of the industry. The company gets in, gets the job built, then packs up and leaves. The industrial officer has to live with her mistakes only until the end of the job. Each new construction job is a fresh start, sometimes even with a different workforce. The itinerant nature of the workforce, with moving from job to job and from one company to another, does not encourage employee loyalty to any one employer. However, strong bonds do develop amongst employees due to their dependence on each other to find employment and the frequent need to form new teams in which they depend on each other for their safety and welfare. Employers put in best practice procedures for the safe performance of work but have to rely on each individual to adhere to those procedures. Of all industries, the impact of technology has probably been the smallest and, unlike many other industries, appears to have contributed little to reducing injuries and other serious incidents. When it comes to a stoush with their employer, they will stick together even in the face of evidence that they are fighting a lost cause. Dependence on and

respect for industrial relations tribunals and government bodies established to oversee industrial relations in the industry is not great. To be effective, the industrial officer in construction, perhaps more so than in any other industry, must know how the work is done and the jargon that is widely used. She must be able to engage with of the workforce both individually and collectively in order to be able to gauge the mood and anticipate issues before they develop into full-blown disputes. Her personal reputation is more likely to influence events in the construction industry than in most other industries.

In mining and manufacturing, thinking tends to be longer-term. A mine will often have a life of several decades. How to best exploit the resource requires planning that extends over that time. The industrial officer, too, needs to be thinking longer-term. Not only does she have to live with her mistakes for the duration of her time in the role, but others may have to live with them for a much longer time. Mining in particular has a long and colourful industrial relations history in Australia. In 1980, when my employer transferred me from the relative stability of the iron and steel industry to the infant Pilbara iron ore industry, the contrast was dramatic. The workforce was young, as were the communities where they lived. The absence of the stabilising effect that older people have in more normal communities was noticeable in the spontaneous and unpredictable behaviours of the workforce. Whilst a number of unions were actively involved in the industry, they were often impotent when there came a need for leadership and wise counsel. The relative youth and lack of industrial relations experience in the management of the iron ore companies also added to the volatility. Technological advances in the mining industry over the last few decades have, however, had major impacts on how work is performed and organised and contributed significantly to improvements in safety and productivity. The mining industry workforce is now smaller and more highly skilled as a result of technology, making redundant many traditional occupations. The same is true in many parts of the manufacturing industry.

A manufacturing company is likely to be making the same or similar products for an extended period, often with a highly stable workforce. The mistakes the industrial officer makes early in her time with a manufacturing company are the worst. They cause her to get off on the wrong foot with the workforce. Sometimes they are irretrievable. Newcastle Steelworks, when I began my career there, was celebrating fifty years of continuous operation. It had a large, relatively stable workforce, a strong union influence, and a culture of dependence on and respect for the New South Wales Industrial Relations Commission’s role in the resolution of issues. In IR decision-making, close attention was given to the avoidance of creating precedents that would bind management into the future. Communications to unions often concluded with the words, ‘This offer is presented on a withoutprejudice basis and is not to be taken as a precedent to be relied upon in any future matter.’ This was usually accepted by the unions.

Next, the size of an organisation can affect the way in which the industrial officer must perform her role. The larger the organisation, the more bureaucratic it is likely to be. There are exceptions, but generally, decision-making processes in larger organisations tend to be slower than in smaller ones. The industrial officer working for a multinational company or a large government department must anticipate developments well in advance and prepare her management for the decisions that they are going to have to make. The slower-paced, contemplative role of the industrial officer in such an organisation is very different from that of her counterpart in the fast-paced, short-term thinking culture of the construction industry, for example. Enterprise agreement negotiations in large public sector departments and agencies can often extend over a year or more. The slow pace is largely accepted by the unions involved as a fact of life. They usually seek compensation for this in the form of retrospective operation of wage increases as a condition of agreement.

Chapter 22

Industrial Relations Is about People

Where there is officialism every human relationship suffers. A age to India, E. M. Forster

There are many theories about industrial relations focusing on areas such as approaches to management, union structure, negotiation, arbitration, and industrial conflict. But as Norm Dufty and Ray Fells point out in their paper, published by Barbash, J. and Meltz, M. M., eds, in Theorising in Industrial Relations: Approaches and Applications (ACIRT, Sydney, 1997), ‘Industrial relations is about people and institutions, about order and disorder.’ Much of what you will read about industrial relations focuses mainly on structures and processes and the outcomes of cases. But in real life, these have far less impact upon the day-to-day experience of people within industries than in the quality of the relationships established and maintained amongst those people. On countless occasions when a manager has sought my advice about the aberrant behaviour of an employee, I have asked the question ‘Do you think there’s something else going on in his life?’ More often than not, behind the change in behaviour is a relationship breakdown, personal illness or that of a loved one, a bereavement, or a child’s involvement in activities that are of concern to the employee. On other occasions, it’s because the employee is feeling stressed about a change in their work environment or because they feel trapped in a job where they really do not want to be.

Case of a Square Peg in a Round Hole Pete (not his real name) was employed on an iron ore

Problems can arise when people are thrown together to get a task completed under pressure.

Commissioning the Fire Water System On a construction project where I once worked, we w

Chapter 23

The Future

The illiterate of the 21st Century are not those who cannot read and write but those who cannot learn, unlearn and relearn.

Powershift: Knowledge, Wealth, and Violence at the Edge of the 21st Century, Alvin Toffler

During my time in the Australian workforce, many jobs have disappeared. A few examples are:

• stenographer • telegram deliverer • petrol bowser attendant • night soil carter • hangman • elevator operator.

Australians are now performing roles that were unheard of when I first entered the workforce. These include:

• barista • astronaut • Uber driver • ultrasound operator • computer engineer • wedding celebrant.

Many other things have changed during the same period.

• Until 1969, women were required to resign from public service jobs when they married. • Hotel bars closed at 6 p.m. so that men would supposedly go home to have tea with their families. • You could only be legally served alcohol on a Sunday if you had travelled at least thirty miles to the venue. • Retail trading hours were much more restricted than they are today. • There were no seat belts in cars. • The idea of a separate bin for recyclables was unheard of. • Wages and salaries were paid in cash. • Very few people had superannuation.

• Pay and conditions for most of the workforce were covered by awards. • The majority of employees were covered by state IR systems.

So change, almost constant change, is not a new phenomenon. And we should expect that this will continue. The ing of the Commonwealth Conciliation and Arbitration Act 1904 led to the creation of the Court of Conciliation and Arbitration and the setting of the minimum wage at a level such as would enable a male worker to ‘live as a human being in a civilised community’ and to keep his family in ‘frugal comfort’. Awards were made setting up minimum wages and conditions. In due course, awards were updated either through arbitrated or consent variations. The end of the twentieth century saw the emergence of statutory individual employment contracts, first in Western Australia and later in commonwealth legislation. This development depended upon the dominance of non-labour governments and so was short-lived. Enterprise-based bargaining led to the breaking down of the notion that employees doing the same work for different employers should be paid the same. This is seen as unsatisfactory in some sectors, and there is a push emerging amongst unions for industry-based bargaining and a return to the concept of ‘comparative wage justice’. At the same time, employer for enterprise bargaining is waning, and is growing amongst them for a return to awards as the principal means of setting pay and conditions. Unions want awards that provide better safety net conditions for . The content of awards and agreements has expanded over time to include provision such as parental leave and, more recently, leave to deal with the consequences of domestic violence. Prior to the industrial revolution, many workers did not have jobs as we have come to know them. They got ‘gigs’. Under that system, and we are seeing a return to it, the employer provides work to employees only as needed. Casual employment, labour hire, and contract employment are becoming increasingly prevalent arrangements. Matching people to gigs will be made faster and easier by technology that is already in use by some employers. These developments present major challenges for unions, who are suffering declining hip

levels. But the further blurring of the definition of employee, which has always suffered from lack of precision, will also inevitably lead to greater uncertainty for employers and lawmakers. ‘Nothing in progression can rest on its original plan. We might as well think of rocking a grown man in the cradle of an infant,’ stated Edmund Burke.

Chapter 24

The Industrial Officer’s Ethos

Next is patience. Patience is very important. Patience means holding back your inclination to the seven emotions: hate, adoration, joy, anxiety, anger, grief and fear. If you don’t give way to the seven, you’re patient, then you’ll understand all manner of things.

Shōgun, James Clavell

I began by outlining my belief that the ultimate aim of industrial relations is to achieve a fair go all round. The rest of this book has largely been about the dayto-day issues that confront the industrial officer and some advice that he or she might consider when addressing these challenges. I conclude with my ten golden rules for success.

Rule 1: Be trustworthy. Rule 2: Be trustworthy. Rule 3: Be trustworthy. Rule 4: Don’t rely on information that you have not confirmed. Rule 5: Mix with other people in the IR business on all sides.

Rule 6: Tell the boss when you think they are wrong. Rule 7: Study the arts of strategy and tactics. Rule 8: Know the difference between your organisation’s real needs and what seems important at the time. Rule 9: Get to know the people on the shop floor; it’s what they do that results in money in the bank. Rule 10: The aim is to achieve what is fair for all concerned in the long term.

I know a few industrial officers who have the reputation as arseholes (please excuse the colloquialism, but I cannot think of a better description) and seem proud of it. At the other extreme, there are those whom others would colloquially describe as a ‘good bloke’ or a ‘really nice woman’ and are content with the thought that that’s really all they need to aspire to. Both are misguided: the first group because they are greatly disliked and therefore unlikely to be listened to; the second group because their inability to be firm and so risk unpopularity makes them relatively ineffective. As I have stressed in rules 1, 2, and 3, the reputation you must strive for is that you can be trusted. If you inspire trust and you treat people with politeness and courtesy; if you do not engage in cheap point scoring; and if you stay cool and, at all times, behave professionally, you will find that those around you and with whom you have dealings will respect you and maybe even find you likeable. And if they like you, they are more likely to be persuaded by you. There you have it. I’ll leave you with the following words of inspiration:

Whatever you can do or dream you can, begin it. Boldness has genius, power and magic in it.

J. W. von Goethe

Appendix

Legislative Background

Federal Industrial Relations Legislation

The first Australian federal legislation dealing with industrial relations was the Conciliation and Arbitration Act 1904, which received royal assent on 15 December 1904. It is a mere thirty-five pages in length and contains only ninetytwo sections and described by one commentator as ‘a nice little act’.¹ Number 1 in the list of objects of the act was ‘to prevent lockouts and strikes in relation to industrial disputes’.² The main impetus for the enactment of this legislation was the disruption to the Australian economy caused by significant industrial disputes during the 1890s, particularly in the maritime and pastoral industries and in the mines at Broken Hill. The power that enabled the federal parliament to make this legislation was in Section 51 paragraph (xxxv) of the newly created Australia Constitution, which empowered the Commonwealth Parliament ‘to make laws for the peace, order and good government of the Commonwealth with respect to … conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’. This remained the principle power relied upon by successive federal governments to change industrial relations legislation for almost 100 years. And change it they did, each time adding to the volume of legislation. It was not until 2009 with the enactment of the Fair Work Act 2009 that for the first time since 1904 there emerged a less voluminous piece of legislation than that which it replaced. That said, the Fair Work Act 2009 was 454 pages in length and contained more than 800 sections. A major expansion to the federal parliament’s power to legislate in the industrial relations arena occurred when the then liberal government used the ‘corporations

power’ (Section 51(xx) of the Australian Constitution) to the Workplace Relations Act 1996. A High Court challenge³ to this legislation by a number of states was unsuccessful. The 1904 act stated quite simply that ‘[n]o person or organisation shall, on of any industrial dispute, do anything in the nature of a lockout or strike, or continue any lockout or strike. Penalty: One thousand pounds’.⁴ And until relatively recently, there has continued to be no legal right under commonwealth law to take industrial action. But strikes and other disruptive manifestations of industrial conflict have been features of Australian life throughout most of our history. During most of the last century, resort by employers to legal action against striking employees and their unions has been the exception rather than the rule. That has been in spite of strike prohibitions in legislation, clauses in awards banning strikes, employer access to common law actions, and statutory provisions for deregistration of unions. The Commonwealth Court of Conciliation and Arbitration, created by the 1904 legislation, was required ‘to make all such suggestions and do all such things as appear to it to be right and proper for reconciling the parties and for inducing the settlement of the dispute by amicable agreement’.⁵ The court also had the power to settle disputes by arbitration ‘[i]f no agreement between the parties is arrived at within a reasonable time’. The creation of this system of compulsory conciliation and arbitration was heralded by the second president of the court as ‘a new province for law and order’.⁷ Compulsory arbitration, always of secondary status to conciliation in theory at least but nevertheless there to be availed of even if only as a last resort, was removed from the industrial relations scene as part of a move towards a statutory system of enterprise bargaining beginning in the 1980s. This shift was encouraged by the Australian Industrial Relations Commission through principles developed in several prominent cases, commencing in the March 1987 National Wage Case in which a principle was announced permitting wage increases at an enterprise level if they could be justified as a result of efficiency improvement measures introduced.⁸ In its October 1991 National Wage Case Decision, the commission formally recognised ‘enterprise bargaining’ in a new wage-fixing principle. The process accelerated when the then Labour government enacted legislation to further facilitate the making of enterprisebased collective agreements in 1992 and 1993.¹ Compulsory arbitration of the content of industrial instruments is now limited to circumstances where

industrial action is terminated by the minister or by the tribunal because of the occurrence of safety or economic harm or where bargaining orders have been disobeyed or in cases involving so-called low-paid workers. Despite calls by both employers and unions for arbitration to be made more readily available when a party to a dispute requests it, the 2012 Fair Work Act Post Implementation Review recommended against such a change.¹¹ The concept of industrial action in collective bargaining, protected from common lawsuits or statutory penalties, first emerged in the 1993 legislation. Although the jurisdiction of courts to deal with industrial torts such as obstruction by picketing had been confirmed in the Dollar Sweets case in 1986,¹² employers for a long time showed little appetite for suing employees or unions. An interesting development since 1993 has been the increased incidence of employers initiating legal proceedings against employees and unions involved in ‘unprotected’ industrial action. But where such suits are commenced, they are often settled without employees having to pay compensation to their employers. A much publicised instance of this was in relation to a 2009 dispute on a natural gas project in the north of Western Australia over the employer decision to introduce what is termed motelling for employee accommodation. Significant fines were imposed but suspended on the basis that the employees were restrained from engaging in industrial action on that project and a related project for a period of seven years.¹³

Minimum Standards

Over the more than 100 years since the birth of Australia’s national industrial relations system, standards have been established and amended in areas such as pay relativities between men and women, rates of pay for apprentices and other junior workers, hours of work, annual leave, sick leave, carers leave and parental leave entitlements, payments for overtime, weekends and public holidays, and protections against unfair or unlawful dismissal. On the other hand, it was not until November 1966 that the Australian Public Service Act was amended to remove the prohibition on women retaining

permanent positions in government departments once they married. Some states were even later in making this change.

State Industrial Relations Systems

Some of the states had their own forms of statutory industrial relations regulation prior to 1904,¹⁴ and all states eventually enacted such legislation. From time to time, some state parliaments demonstrated an inclination to do their own thing,¹⁵ although the state tribunals tended to follow the lead set by the commonwealth tribunal in many important matters.¹ But there were also occasions when a new standard was set by a state and the commonwealth followed. For instance, the New South Wales Parliament led the way in prescribing two weeks of paid annual leave in 1944¹⁷ and three weeks in 1958.¹⁸ The federal commission followed this lead by progressively including the new standards in awards. This phenomenon of a state setting new standards ahead of the commonwealth was in part due to the fact that the states were able to legislate directly to set conditions such as public holidays, annual leave, and long service leave. The federal parliament, using Section 51 (xxxv) of the Constitution, could not directly legislate in these areas, and so new standards had to emerge progressively through the award-making process. Pace setting by states was not limited to government initiatives. For example, in 1974, the NSW Industrial Commission increased the standard annual leave provision in that state to four weeks,¹ following which federal awards began to provide this new standard.

Union Rights

The right of union officials to enter premises to investigate breaches of awards and to hold discussions with employees during meal and rest breaks was commonly expressed in awards and agreements and accepted as a fundamental

feature of the industrial relations systems in existence at state and federal levels. The Fair Work Act 2009 preserves the right of union officials to enter premises where work is occurring and sets out detailed procedures as to how the right is to be exercised.² For a long time, awards also provided for ‘preference to unionists’ in employment, although such provisions are now long gone.

Minimum Wage Rates

The concept of a minimum wage that an employee could be paid has existed in various forms during the period since 1904, commencing with the Harvester case in which the president of the court fixed a minimum wage of seven shillings per day being the minimum required to enable a male worker to live as a human being in a civilised community and to keep his family in frugal comfort.²¹ Wages for women at this time were much less. In 1912, the wage for women engaged in fruit packing was increased to 75 percent of the male wage!²² Not until 1972 in the National Wage and Equal Pay Case did the distinction between male and female award wage rates disappear.²³ The concept of minimum entitlements has expanded to include minimum wages set by the federal and state tribunals in annual wage reviews along with what is now termed the National Employment Standards enshrined in the Federal Act.²⁴

Related Legislation

Finally, to complete this brief outline of the development of the legislated framework in which Australian employees, employers, and their organisations have related to one another, there has evolved in parallel with the legislation referred to above a collection of laws aimed at, amongst other things, protecting employees from injury, unlawful discrimination (including sexual harassment and bullying), unfair dismissal, and most recently, adverse action.²⁵ Trade

practice legislation has, on occasions, been relied on by parties to industrial disputes, as has criminal law.

Biography

Stephen Rooke was born in 1947 in Newcastle, New South Wales, and grew up in the lakeside suburb of Belmont. On the completion of secondary school, he was fortunate to gain a traineeship with the Broken Hill Proprietary Company Limited (BHP), which enabled him to commence a commerce degree at Newcastle University and complete a major in industrial relations at the University of New South Wales. At BHP’s Newcastle steelworks, he rose to the rank of assistant superintendent of industrial relations by his late twenties and, in his early thirties, transferred to the head office in Melbourne. Less than two years later, he was asked to take on the role of employee relations manager at Mount Newman Mining Company, a t venture iron ore project in the Pilbara region of Western Australia. Stephen parted company with BHP in 1987 and took on several consulting projects and contracts over a number of years. One of the most interesting of those contracts was as chair of the Western Australian Police Force Promotions Appeals Tribunal. In this position, he played a key role in the police service transition from seniority to merit-based promotion and earned the respect of both management and the police union for his even-handedness and his fearless approach to ensuring fairness. In 1996, Stephen accepted a position with the Water Corporation of Western Australia as strategy manager of industrial relations and human resources where he remained for twelve years, during which time he negotiated a number of enterprise agreements that assisted with the cultural change necessary for the workforce to move away from a public service mentality to one more appropriate for a semi-independent corporation. Stephen left the Water Corporation in 2008 to try his hand in the construction industry. He worked on major engineering construction projects in Western Australia, Queensland, and the Northern Territory. Stephen has three sons, a stepdaughter and stepson, and four grandchildren.

Endnotes

1 Professor R. McCallum, unpublished address to the Centenary Convention, 2004. 2 CC&A Act 1904 s 2(i). 3 Victoria v. The Commonwealth(Industrial Relations Act Case (1996) 187 CLR 416. 4 CC&A Act 1904 s 6(1). 5 CC&A Act 1904 s 23(2). 6 CC&A Act 1904 s 24(2). 7 Higgins, H. B. (1922), A New Province for Law and Order (London: Constable). 8 Print G6800. 9 Print K0300. 10 See especially the Industrial Relations Reform Act 1993 [CWTH]. 11 Towards More Productive and Equitable Workplaces: An Evaluation of the Fair Work Legislation, p. 148, hhtp://www.deewr.gov.au/WorkplaceRelations/Policies/FairWorkActReview, accessed 18 August 2012. 12 Dollar Sweets Pty Ltd v. Federated Confectioners Association of Australia [1986] VR 383 (12 December 1985). 13 United Group Resources Pty Ltd v. Calabro (No 7) [2012] FCA 432 (2 May 2012).

14 E.g. Master and Servants Act 1828, NSW; Factories and Shops Act 1873, Vic; Trade Union Act 1881, NSW; Trade Disputes Conciliation and Arbitration Act 1892, NSW; Councils of Conciliation Act 1891, NSW. 15 For instance, the Western Australian Government’s introduction of statutory individual agreements in the late 1980s, a lead subsequently followed by a liberal federal government. 16 E.g. annual wage reviews, standard hours of work, employment protections, and other standards set by Australia’s ratification of ILO conventions. 17 Annual Holidays Act 1944 [NSW]. 18 Annual Holidays (Amendment) Act 1958 [NSW]. 19 Annual Holiday Test Case (1974) AILR 477. 20 Fair Work Act 2009 ss 478–521. 21 1907 2 CAR 2–3. 22 ‘The Fruit Pickers Case’ (1912) 6 CAR 61. 23 (1972) 147 CAR 172. 24 For the National Employment Standards, see Australian Fair Work Act 2009, ss 59–131. 25 For details of the workplace rights in respect of which it is illegal for someone take adverse action against another, see Fair Work Act 2009 ss 340– 356.