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In a significant development within the union movement, Diana Asmar, the Secretary of the Victorian Health Workers Union (HWU), has been temporarily suspended from her national duties pending a thorough investigation into serious allegations concerning the misuse of union members' funds. This action, taken by the Health Services Union (HSU) national executive, underscores the gravity of the situation and the union's commitment to maintaining the integrity of its operations. The suspension of Ms Asmar from her role as National Senior Vice President was decided unanimously by the HSU national executive. This decision comes in the wake of reports that raised serious concerns about the financial management within the Victorian branch of the union, which Ms Asmar leads. The national leadership has not only suspended Ms Asmar but has also called upon the state branch's committee of management to consider more extensive measures. These include the appointment of an administrator to oversee the HWU's operations and the consent to a comprehensive audit of the branch’s financial dealings. Allegations have surfaced involving over $3 million in union funds, reportedly paid to printing firms for services that were either non-existent or fraudulent. The Fair Work Commission, in collaboration with Victoria Police, is conducting a multi-agency investigation into these claims. This investigation aims to uncover the truth behind the alleged misuse of funds, which, if proven, could have serious legal and ethical ramifications for those involved. The HSU national executive had initially requested that Ms Asmar voluntarily step down from her union roles while the investigation was ongoing. However, this request was not met with compliance, leading to the executive’s decision to suspend her from her national position. The national executive has also expressed its intention to advocate for similar actions within the Victorian branch to ensure that the interests of union members are safeguarded. Lloyd Williams, the National Secretary of the HSU, highlighted the seriousness with which the union is treating these allegations. He emphasised the union's zero-tolerance stance on the misuse of funds, stating that the primary concern is the protection of its members' interests. The union’s leadership is now awaiting the outcome of the Fair Work Commission’s investigation, which will be crucial in determining the next steps. Ms Asmar has strongly denied the allegations, maintaining her innocence throughout the proceedings. However, documents have surfaced, suggesting that significant sums of money were transferred from the HWU to certain printing firms under dubious circumstances. These transactions are now under the microscope, as investigators seek to unravel the extent and nature of the alleged financial misconduct. One of the key areas of investigation revolves around the operations of a firm called Southern Publishing. This firm, among others, allegedly received large payments from the HWU and other unions without providing corresponding services. The circumstances surrounding these transactions are being carefully examined, particularly the absence of documentation to support the payments made. In addition to these concerns, there are also allegations that Ms Asmar used union funds for personal expenses, including luxury items such as Gold Class movie tickets at a casino. These expenditures are being questioned as they may not align with the union's intended business purposes. As the investigation progresses, the focus remains on ensuring transparency and accountability within the union’s financial management. The outcome of this case will likely have significant implications for the HWU and potentially set a precedent for how such matters are handled within the broader union movement. The 1800ADVOCATES team will continue to monitor this situation closely, as it highlights critical issues regarding the governance and stewardship of union resources. This case serves as a stark reminder of the importance of integrity and ethical conduct in leadership roles, particularly in organisations entrusted with the welfare of workers. Conclusion The unfolding events surrounding the Victorian Health Workers Union and its leadership bring to the fore important questions about financial accountability within unions. As the investigation continues, 1800ADVOCATES remains committed to providing insights and support to those affected by these developments. The integrity of union leadership is paramount, and it is essential that these matters are addressed with the seriousness they deserve to maintain the trust and confidence of union members.

Genuine redundancy is a crucial concept in Australian employment law, particularly under the Fair Work Act 2009 (Cth). It is essential for both employers and employees to understand what constitutes a genuine redundancy to avoid disputes, particularly concerning unfair dismissal claims. This post delves into the criteria for genuine redundancy and examines relevant case law to highlight the difference between genuine and non-genuine redundancy. What is Genuine Redundancy? Under section 389 of the Fair Work Act 2009, a redundancy is considered genuine if three key conditions are satisfied: 1. Operational Requirements: The employer no longer needs the employee's job to be performed by anyone due to changes in the operational requirements of the business. 2. Consultation: The employer has fulfilled any obligation in a modern award or enterprise agreement to consult about the redundancy. 3. Redeployment: It was not reasonable to redeploy the employee within the employer's enterprise or an associated entity of the employer. Meeting these criteria ensures that the redundancy is genuine, protecting the employer from unfair dismissal claims under section 385 of the Act. Case Law: Examples of Genuine and Non-Genuine Redundancy To illustrate the difference between genuine and non-genuine redundancy, it is helpful to explore how these principles have been applied in specific cases. Below are summaries of key cases that provide insights into the Fair Work Commission's approach to redundancy. Case 1: Kekeris v A Hartrodt Australia Pty Ltd [2014] FWC 115 1 In this case, the Fair Work Commission determined that the redundancy of Mr. Kekeris was genuine. The employer, A Hartrodt Australia Pty Ltd, had restructured its operations due to economic pressures, leading to the redundancy of several positions, including Mr. Kekeris's role. The Commission found that the employer had complied with its consultation obligations under the relevant enterprise agreement and had thoroughly explored potential redeployment options. However, no suitable alternative positions were available. Consequently, the redundancy was deemed genuine, and Mr. Kekeris’s claim for unfair dismissal was dismissed. Case 2: Ulan Coal Mines Ltd v Honeysett [2010] FCAFC 75 In contrast, the case of Ulan Coal Mines Ltd v Honeysett highlights a situation where the redundancy was found to be non-genuine. The Federal Court ruled that Ulan Coal Mines Ltd had failed to consult with the employees as required by the applicable enterprise agreement. Moreover, the Court determined that the company did not adequately explore redeployment opportunities for the affected employees. The lack of genuine consultation and the failure to consider reasonable redeployment rendered the redundancy non-genuine, leading to a successful unfair dismissal claim by the employees. Case 3: AMWU v Visy Packaging Pty Ltd [2013] FWC 6975 In AMWU v Visy Packaging Pty Ltd, the Fair Work Commission upheld the employer’s decision, finding that the redundancy was genuine. Visy Packaging had implemented significant technological advancements that automated many of the functions previously performed by workers, including those in the roles made redundant. The Commission found that the company had not only complied with its consultation obligations but had also made considerable efforts to redeploy affected employees to other parts of the business. The case highlighted the importance of documenting the decision-making process and ensuring compliance with all relevant legal obligations. Key Differences Between Genuine and Non-Genuine Redundancy The distinction between a genuine and non-genuine redundancy often hinges on the procedural aspects of the redundancy process and the employer's adherence to legislative requirements. Key factors include: - Operational Requirements: A redundancy will only be genuine if there is a clear and demonstrable change in the business's operational needs. This could include technological changes, restructuring, or a downturn in business. Redundancies that lack such substantive reasons are likely to be scrutinised and potentially found to be non-genuine. - Consultation Obligations: The failure to consult with employees or their representatives, as required by the applicable award or enterprise agreement, can invalidate the redundancy, rendering it non-genuine. - Redeployment: Employers must take reasonable steps to explore redeployment opportunities for affected employees. If an employer dismisses an employee without considering redeployment within the organisation or its associated entities, the redundancy may be deemed non-genuine. Conclusion The distinction between genuine and non-genuine redundancy is pivotal in Australian employment law. Employers must meticulously follow the criteria set out in section 389 of the Fair Work Act 2009 to avoid potential legal disputes. Employees, on the other hand, should be aware of their rights and the circumstances under which they can challenge a redundancy. If you believe your redundancy is not genuine, or if you are an employer seeking to ensure compliance with redundancy laws, 1800ADVOCATES can assist. We provide expert advice and representation to help you navigate these complex issues and achieve the best possible outcome. For further assistance, please contact 1800ADVOCATES today.

Ageism is a form of discrimination and prejudice against individuals based on their age. This can manifest in various settings, including the workplace, healthcare, and social interactions. Ageism typically affects older adults, but it can also impact younger people in certain contexts. Key Aspects of Ageism: 1. Stereotyping: Ageism often involves the application of negative stereotypes, such as kassuming that older individuals are less capable, inflexible, or resistant to change. Conversely, younger individuals might be stereotyped as inexperienced, irresponsible, or unreliable. 2. Discrimination: In the workplace, ageism may result in unequal treatment, such as older workers being passed over for promotions, forced into early retirement, or subjected to unfavourable employment conditions. Similarly, younger workers might be denied opportunities based on the assumption that they lack experience or maturity. 3. Exclusion: Ageism can lead to social exclusion, where individuals are marginalised or ignored due to their age. This can occur in both professional and personal settings, leading to isolation and a lack of engagement in various activities. 4. Impact on Health and Wellbeing: Ageism can have significant psychological and physical effects on those subjected to it. It can lead to reduced self-esteem, increased stress, and even poorer health outcomes due to a lack of adequate care or attention in healthcare settings. 5. Legislative Framework: In many jurisdictions, including Australia, age discrimination is prohibited under laws such as the Age Discrimination Act 2004 (Cth). This legislation aims to protect individuals from discrimination in areas like employment, education, and access to goods and services, based on their age. Theoretical Perspectives on Ageism: 1. Social Identity Theory: This theory suggests that ageism arises from a natural human tendency to categorise people into groups, leading to an "us vs. them" mentality. As individuals age, they may be seen as part of an out-group, leading to discriminatory attitudes and behaviours from those in the in-group (typically younger people). 2. Life Course Perspective: This perspective views ageism as part of a broader societal pattern where individuals' value and capabilities are assessed differently at various stages of life. It highlights the dynamic nature of age-related discrimination, recognising that societal norms and expectations change over time. 3. Structural Ageism: This concept refers to the institutional and societal structures that perpetuate age discrimination. This includes workplace policies that favour younger employees, healthcare practices that marginalise older patients, and media representations that stereotype individuals based on age. Overall, the theory of ageism underscores the importance of recognising and challenging the biases and structures that lead to discrimination based on age, advocating for a more inclusive society where individuals of all ages are valued equally.

In the realm of workplace justice, few stories capture the essence of integrity and perseverance as profoundly as the recent triumph of Clinton Purdie. This case, brimming with dramatic twists and turns, serves as a powerful reminder of the importance of fair treatment and the unwavering pursuit of truth. Join us as we delve into the riveting tale of Clinton Purdie's fight against the dishonest and unscrupulous practices of his employer, Goodview Stud Pty Ltd, trading as A List Stud. Our story begins with Clinton Purdie, a diligent and devoted clerical and administrative officer at A List Stud. Clinton commenced his employment on the 13th of February, 2020, and quickly established himself as a reliable and hardworking employee. His role encompassed a range of administrative duties, from managing correspondence to organising schedules, all performed with a steadfast commitment to excellence. Yet, despite his dedication, Clinton found himself facing an unjust and sudden dismissal on the 3rd of April, 2024. The events leading to Clinton's dismissal unfolded in a manner akin to a suspenseful drama. On the evening of the 28th of March, 2024, Clinton anticipated the arrival of several horses and, in preparation, left the front gates of the stud open. Later that night, he noticed unusual activity near the gates. Alarmed by the potential threat, Clinton promptly called the police to ensure the property’s security. Enter Mr. Paramjit Singh, a newly appointed security manager, who arrived on the scene with a letter from Mr. Siu Yee (Chris) Lee, the company's Director and Chief Executive Officer. This letter, laden with ominous overtones, stated that urgent maintenance works were to commence on the 1st of April, 2024, and mandated that Clinton vacate his accommodation and relocate to the Executive Highway Hotel in Benalla. The following day, Clinton left the property to run errands. Upon his return, he was confronted with padlocked gates, effectively barring his entry. Determined to access his residence and comply with the directive to vacate, Clinton used a key from the staff room. It was at this juncture that Mr. Singh, noticing the open gate, confronted Clinton, later accusing him of theft and neglect—an accusation that would precipitate Clinton's immediate dismissal. As the case proceeded to the Fair Work Commission, the hearing before Deputy President Millhouse on the 21st of June, 2024, revealed the depths of the employer's deceit. Clinton, representing himself with admirable resolve, presented evidence and testimony, bolstered by the support of Codie O'Neill, the former Stud Manager. In stark contrast, the respondent, represented by Mr. Lee, offered a narrative fraught with contradictions and falsehoods. The respondent's claims bordered on the absurd. Mr. Singh’s testimony was a tapestry of inconsistencies, while Mr. Lee’s assertions were nothing short of speculative fiction. The baseless allegation that Clinton intended to release the horses by stealing the gate key was both malicious and unfounded. Equally ludicrous was the claim that Clinton neglected to provide water to the horses—a duty entirely outside the scope of his clerical and administrative role. Deputy President Millhouse, in a scathing assessment, found Clinton's evidence to be not only consistent but also compelling. It became unequivocally clear that Clinton had used the key to access his residence solely to comply with the employer’s directive to vacate. Furthermore, the accusation of neglecting the horses was thoroughly discredited, underscoring the employer’s desperate attempt to fabricate grounds for dismissal. The decision was resounding: Clinton Purdie’s dismissal was harsh, unjust, and unreasonable. The employer’s actions were a glaring example of unethical behaviour and deceit. This outcome had profound personal and economic repercussions for Clinton, who not only lost his job but also his home in one fell swoop. This victory is more than a personal triumph for Clinton; it is a testament to the principles of justice and fairness in the workplace. It serves as a potent reminder that employers must be held accountable for their actions and that dishonesty has no place in employment practices. As we celebrate this victory, it is essential to reflect on the broader implications of this case. It calls into question the integrity of those who wield power in the workplace and highlights the necessity for vigilance and accountability. Employers must recognise that their actions have real and lasting impacts on the lives of their employees. Deceptive practices, like those exhibited by Goodview Stud Pty Ltd, undermine the very foundation of trust and respect that should underpin any employment relationship. The next chapter in Clinton's journey will see the Fair Work Commission determining the appropriate remedy for his unfair dismissal. This forthcoming session promises to further reinforce the principles of justice that have been so decisively upheld in this case. At 1800ADVOCATES, we take immense pride in standing by Clinton Purdie, ensuring that his rights were protected and justice was served. This case is a beacon of hope for all who face unjust and dishonest practices in their employment. It is a clarion call for fairness, integrity, and accountability in the workplace. Thank you for joining us in celebrating this significant victory. We remain steadfast in our commitment to advocating for the rights of individuals and holding employers to account. Together, we can continue to champion the cause of justice and ensure that fairness prevails in every corner of the workplace. Read the full decision Listen Now: "The Story of Clinton Purdie and the Unmasking of Employer Deceit"

Jurisdiction: Fair Work Australia Date: 1 July 2010 Presiding Member: Commissioner Stanton Parties: - Applicant: Phillip Rollason - Respondent: Austar Coal Mine Pty Limited Unfair dismissal is a critical issue in employment law, and the case of Rollason v Austar Coal Mine Pty Limited [2010] FWA 4863 provides significant insights into how Fair Work Australia assesses claims of unfair dismissal. Phillip Rollason was employed by Austar Coal Mine Pty Limited (Austar) as a coal mine worker. His employment was terminated due to alleged misconduct, specifically a breach of safety protocols. Rollason contested the dismissal, arguing that it was an unfair dismissal, harsh, unjust, and unreasonable. The primary question before Fair Work Australia was whether the termination of Phillip Rollason constituted an unfair dismissal under the Fair Work Act 2009. Applicant's Argument: Rollason contended that his dismissal was a disproportionate response to the alleged misconduct. He argued that his actions did not amount to serious misconduct and that his employment record, marked by dedication and good performance, should have been considered. He claimed that the dismissal was an unfair dismissal due to the excessive severity of the penalty. Respondent's Argument: Austar defended its decision, asserting that Rollason’s actions represented a serious breach of safety protocols, which justified his summary dismissal. They emphasised the importance of maintaining strict safety standards in the mining industry and argued that this justified the termination. Permission Granted for Representation: During the proceedings, Commissioner Stanton addressed the matter of representation. Permission for legal representation was granted, taking into account the complexity of the case and the principle of fairness. The issues involved were intricate, relating to the interpretation of safety regulations and employment law, making professional legal assistance necessary to ensure the proceedings were conducted fairly. Decision: Commissioner Stanton ruled in favour of Phillip Rollason, finding that his dismissal was indeed an unfair dismissal. The decision hinged on several key points: 1. Proportionality of Misconduct: While acknowledging that Rollason had breached safety protocols, Commissioner Stanton concluded that the actions did not amount to serious misconduct justifying summary dismissal. The response was deemed excessive, and the dismissal was thus an unfair dismissal. 2. Employment Record: Rollason’s previous good employment history was considered. The Commissioner highlighted that an employee’s overall work record is essential in determining whether a dismissal is fair. In this case, the dismissal was found to be an unfair dismissal considering Rollason’s past performance and dedication. 3. Mitigating Circumstances: The Commissioner identified mitigating factors that Austar should have considered before deciding on termination. These factors suggested that alternative disciplinary measures could have been more appropriate, rendering the summary dismissal as an unfair dismissal. 4. Procedural Fairness: The decision also focused on procedural fairness. Rollason was not given a sufficient opportunity to respond to the allegations against him. The lack of a fair process contributed to the finding of unfair dismissal. Outcome: Phillip Rollason was reinstated to his former position at Austar Coal Mine Pty Limited. This outcome underscores the necessity for employers to consider the proportionality of their response to employee misconduct, the employee's work history, and procedural fairness to avoid instances of unfair dismissal. The case of Rollason v Austar Coal Mine Pty Limited is a landmark example of how claims of unfair dismissal are evaluated. Employers must ensure that their actions are not disproportionate to the misconduct and that they maintain procedural fairness to prevent claims of unfair dismissal. Employees should be aware of their rights and the importance of their employment history in defending against unfair dismissal. At 1800ADVOCATES, we specialise in representing individuals in unfair dismissal cases. If you believe you have been unfairly dismissed, contact us for expert advice and representation. We are committed to ensuring that your rights are protected and that you receive fair treatment in the workplace. Understanding the intricacies of unfair dismissal claims is crucial for both employers and employees, and cases like Rollason v Austar Coal Mine Pty Limited provide valuable insights into the application of employment law. Listen to our audio narration of this case

Recent developments have seen Rex Airlines' administrators retrenching nearly 600 employees, placing them as priority creditors. This situation has highlighted the challenges many workers face when a company is unable to immediately repay entitlements, including payments in lieu of notice. For these workers, understanding their rights under the Fair Work Act 2009 (Cth) and the Fair Entitlements Guarantee (FEG) Scheme is crucial. Immediate Impact on Rex Employees The administrators have communicated that the company's financial position does not allow for the immediate repayment of entitlements. While Rex's regional service will continue, its capital city flights have ceased. A letter from the administrators reassured continuing employees that their terms and conditions would remain unchanged, and a preliminary calculation of entitlements will be provided soon. However, for the 594 redundant employees, the reality is stark. They have become priority creditors and must wait for their entitlements to be resolved either through a deed of company arrangement or the FEG Scheme if the company is wound up. Understanding the Fair Entitlements Guarantee (FEG) Scheme The FEG Scheme provides a safety net for employees who lose their jobs due to their employer’s liquidation or bankruptcy. It covers up to 13 weeks’ wages, annual leave, long service leave, payment in lieu of notice (up to five weeks), and redundancy pay (up to four weeks per year of service). However, it does not cover unpaid superannuation, which employees must pursue as creditors. The Department of Employment and Workplace Relations (DEWR) has noted an increase in FEG applications due to rising corporate insolvencies. Consequently, processing times have extended beyond the average of 14 weeks, with 2023-24 seeing an average processing time of 17.3 weeks. The Role of the Fair Work Commission The Fair Work Commission (FWC) is the body responsible for dealing with disputes arising under the Fair Work Act. It assists in resolving general protections disputes through conciliation, conferences, and hearings. The FWC can also issue orders to enforce compliance with the Act. Conciliation and Hearings: In general protections disputes, conciliation is the first step. If conciliation fails, the matter may proceed to a formal hearing where the Commission will examine evidence, consider submissions, and make a legally binding decision. What Can Retrenched Rex Workers Do? For the retrenched Rex workers, the immediate steps involve understanding and applying for their entitlements under the FEG Scheme. Given the extended processing times, it is advisable to apply promptly and use the DEWR’s online portal for efficiency. Additionally, retrenched workers should be aware of their rights under the Fair Work Act and consider seeking professional advice if they believe their termination involved a breach of these rights. The Fair Work Commission’s General Protections Benchbook can be a valuable resource in understanding these protections and preparing for any potential claims. Conclusion The situation faced by Rex Airlines' retrenched workers is a reminder of the importance of understanding workplace rights and entitlements. The Fair Work Act provides significant protections, and the FEG Scheme offers a crucial safety net. However, the process can be lengthy and complex, making it essential for affected workers to stay informed and proactive in securing their entitlements. At 1800ADVOCATES, we are committed to assisting employees in navigating these challenges and ensuring their rights are upheld. Need to know your rights in an employment or human rights matter? Call us for a FREE consultation today. Play Audio File

In a recent development, the Fair Work Commission (FWC) has recommended that Woolworths take all necessary actions to ensure it pays affected distribution centre workers their owed backpay by the end of this month. This decision comes after repeated delays by the supermarket giant in addressing underpayments to its employees. The issue traces back to a calculation error by Woolworths, which underpaid distribution workers entitled to an exemption rate from February 2017 to November last year. The company mistakenly calculated the hourly rate for exempt workers by dividing the weekly rate by 40 hours instead of the correct 38 hours. Woolworths identified and corrected this error in November of the previous year, ensuring proper payments since then. However, despite acknowledging the mistake, Woolworths has lagged in compensating the workers for the underpayments. In response to a query from the Shop, Distributive and Allied Employees Association (SDA) last year, Woolworths projected that it would complete the backpay process, including interest and superannuation payments, between April and June of this year. Frustrated by the delays, the SDA filed a dispute with the FWC in May, citing underpayment under section 739 of the Fair Work Act. This dispute involved members covered by the Woolworths Group Limited Brisbane Regional Distribution Centre Enterprise Agreement 2021. Woolworths informed the Commission in early June that it intended to address the underpayments for the Brisbane Regional Distribution Centre workers first, among its 20 distribution centres. Woolworths indicated it could commence backpayments from August 12. However, Commissioner Jennifer Hunt warned that if Woolworths failed to act promptly, she might issue a formal recommendation. By late July, Woolworths and the SDA agreed on a deadline of the end of August for the backpayments, leading the SDA to request a formal recommendation from the FWC to reinforce this commitment. Commissioner Hunt issued a recommendation on August 2, advising Woolworths to ensure the payments to affected members at the Brisbane Regional Distribution Centre by August 31. She noted the prolonged delays by Woolworths and emphasised the need for prioritising the payments to the affected employees. “Whilst the remediation project is, no doubt, a large one, employees ought not be left waiting any longer for money that is owed to them,” Commissioner Hunt stated. “If Woolworths needs to prioritise the payment to affected members employed at the BRDC on account of this dispute being before the Commission, it ought to do so.” A Woolworths Group spokesperson confirmed that the company expects to complete the backpayments, including interest, superannuation, and any other entitlements, by the end of the month. The spokesperson explained that Woolworths discovered the underpayments during a comprehensive payroll review that began in 2019. However, the current dispute specifically concerns the underpayments at the Brisbane distribution centre. An SDA representative disclosed that the underpayments affected 40 to 50 employees at the Brisbane distribution centre, with amounts owed ranging from a few hundred dollars to over $10,000, cumulatively exceeding $100,000. SDA Queensland branch secretary Justin Power expressed disappointment over the lengthy resolution process but acknowledged Woolworths' commitment to rectifying the issue with interest. “We are disappointed with the amount of time it has taken to get this backpay issue resolved, but appreciate that at no stage did the company argue against making good backpay with interest,” Power said. “The important thing is that our members will get the benefit of this and get paid what they deserve.” This situation underscores the critical importance of accurate payroll calculations and timely rectification of errors to ensure that employees receive their rightful entitlements without unnecessary delays. For more information or to discuss any employment or human rights matters, please call for a FREE consultation on 1800 238 622. Play Audio File

The Fair Work Commission (FWC) has recently mandated the United Workers Union (UWU) to submit video and audio recordings used in the dismissal of a senior employee for alleged drug use. This decision highlights the complexities of privacy and employment laws across Australia. Background of the Case In May, the UWU dismissed their political coordinator for conduct involving alleged drug use at the Brisbane office in October of the previous year. The union supported their decision with CCTV footage, presenting both video and audio recordings during the disciplinary proceedings. In preliminary unfair dismissal hearings, the political coordinator requested the Commission to order the UWU to produce policy documents related to drug testing and the circumstances requiring an independent medical examination. Additionally, he sought video and audio recordings from October 2 to 6 and documents referring to him post-incident. Union's Objections and Commission's Findings The union's legal representative argued against the production of audio recordings, claiming they were "not sufficiently relevant" and stating that the political coordinator had already admitted to the conduct. Despite these objections, Vice President Mark Gibian found the audio recordings "at least apparently relevant." He asserted that these recordings could help assess the severity of the conduct and any mitigating circumstances. Vice President Gibian also noted the political coordinator's intention to use the union's presentation of the recordings as evidence of harshness in the disciplinary process and to illustrate his poor health, which he claimed affected his memory. Privacy Concerns and Legal Implications The political coordinator raised concerns about whether the recordings breached Section 43 of the Queensland Invasion of Privacy Act 1971, which prohibits using devices to overhear, record, monitor, or listen to private conversations. However, Vice President Gibian ruled that this did not justify a production order at this stage. The UWU also objected on the grounds that producing the recordings could violate Section 44 of the Invasion of Privacy Act, which prohibits communicating or publishing a private conversation procured via a listening device. Vice President Gibian acknowledged these concerns but pointed out that the lack of evidence regarding the recording circumstances made it difficult to assess a breach. The Commission's Decision Using the Fair Work Act's Section 590(2)(c) powers, Vice President Gibian ordered the UWU to produce the requested video and audio recordings, along with the relevant policies and documents. He emphasised that the Commission would not review the recordings unless a party proposed to introduce them into evidence, at which point submissions on their admissibility could be made. State and Territory Privacy Laws This case brings to light the differing privacy laws across Australian states and territories. For example: - Victoria: The Surveillance Devices Act 1999 regulates the use of listening and optical surveillance devices. - New South Wales: The Surveillance Devices Act 2007 governs the use of listening, tracking, and optical surveillance devices. - Western Australia: The Surveillance Devices Act 1998 controls the use of listening devices, optical surveillance devices, and tracking devices. - South Australia: The Listening and Surveillance Devices Act 1972 regulates the use of listening devices and surveillance devices. Employers must be cautious in handling recordings to ensure compliance with these varying legal requirements. The decision in this case underscores the importance of understanding and adhering to both state and federal laws regarding surveillance and privacy in the workplace. Conclusion The FWC's order for the UWU to produce potentially unlawful audio recordings underscores the significant legal and ethical considerations involved in workplace surveillance and privacy. As employment and human rights advocates, 1800ADVOCATES emphasises the need for employers to navigate these complexities carefully, ensuring compliance with all relevant laws to protect the rights and privacy of employees. For further information or assistance with employment-related legal matters, please contact us for a FREE consultation.

In a significant move to address allegations of corruption and criminality within the CFMEU's construction and general division branches, Workplace Relations Minister Tony Burke has announced support for a Federal Court application by Fair Work Commission (FWC) general manager, Murray Furlong. The application seeks to place these branches under administration, underscoring the government's commitment to maintaining integrity in the construction industry. Minister Burke emphasised the government's determination to see this action through, acknowledging the legal complexities involved. He stated that if the application is challenged and unresolved before Parliament resumes on August 12, the government will introduce specific legislation to ensure the successful appointment of an administrator. Broad Scope of Administration Burke clarified that Furlong's authority to appoint administrators will not be confined to the Victorian branch of the CFMEU's construction and general division. This comes in the wake of the resignation of Victorian State secretary John Setka. The scope includes other branches facing similar accusations, indicating a comprehensive approach to tackling corruption within the union. Actions in New South Wales In New South Wales, the Minns Labor Government has taken decisive action by suspending the CFMEU from the state Labor Party. Additionally, they have requested the party's general secretary to halt any donations from the union. This follows serious bribery allegations against NSW construction and general division secretary Darren Greenfield. Protecting Union Members Minister Burke reiterated that the primary role of any union is to safeguard its members. He condemned the reported behaviour within the CFMEU's construction division, labelling it as "abhorrent" and "intolerable". Burke assured that the government's actions aim to protect members and ensure that their terms and conditions of employment are not jeopardised by the union's misconduct. Government's Regulatory Measures To further strengthen oversight, Burke has directed the Fair Work Ombudsman to conduct a targeted review of all enterprise agreements made by the Victorian branch of the CFMEU. This review focuses on Victoria's Big Build infrastructure projects, aiming to identify and address any coercive behaviour. The government also intends to use its procurement powers to ensure that enterprise agreements on government-funded projects are genuinely agreed upon and free from coercion and intimidation. This move underscores the government's commitment to fostering fair and transparent workplace practices. Request for Federal Investigation In response to recent reports by Nine newspapers and the 60 Minutes program, Burke has requested the Australian Federal Police (AFP) Commissioner to investigate the allegations. He urged the AFP to collaborate with State police to thoroughly investigate and prosecute any criminal activities. Deregistration Not the Solution While discussing potential sanctions, Burke highlighted that deregistration is not a viable solution under current laws. He noted that deregistering the union could allow it to operate without the regulatory oversight applicable to registered organisations. This could exacerbate the issues rather than resolve them. Historical Context: BLF and CFMEU The Builders Labourers Federation (BLF), a precursor to the CFMEU, was a prominent union in the construction industry during the 20th century. The BLF was known for its militant activism and significant influence on construction sites. However, the union faced deregistration in the 1980s due to allegations of corruption and unlawful activities. Deregistration was then the strongest sanction available to address such issues within a registered organisation. The BLF's deregistration led to the establishment of the Construction, Forestry, Mining and Energy Union (CFMEU), which absorbed many former BLF members and continued its legacy in the construction sector. Over the years, the CFMEU has grown into one of Australia's most powerful unions, representing workers across various industries. However, the CFMEU has also faced its share of controversies, echoing the issues that plagued its predecessor. Labor Party's Response Addressing the CFMEU's affiliation with the Labor Party, Burke indicated that the ALP national executive is expected to make strong decisions. He refrained from providing specifics but acknowledged the need for a measured response, considering the ALP national president, Wayne Swan, also chairs CBUS, the construction industry superannuation fund with CFMEU representatives. Conclusion The government's proactive measures against the CFMEU's construction and general division branches demonstrate a robust commitment to eradicating corruption and criminality in the construction industry. These actions aim to protect union members, ensure fair workplace practices, and uphold the integrity of Australia's construction sector. The historical context of the BLF and CFMEU underscores the ongoing challenges and the need for stringent oversight to maintain the trust and welfare of union members.

Grooming is a manipulative process employed by perpetrators of sexual harassment and abuse to gain the trust of potential victims and prepare them for exploitation. It often involves a series of calculated actions that gradually build a relationship with the target, creating an environment where the victim feels comfortable, dependent, and less likely to report the inappropriate behaviour. Key Characteristics of Grooming 1. Building Trust: The perpetrator may present themselves as a trustworthy and caring individual. They often invest significant time and effort into creating a bond with the victim, sometimes posing as a mentor, friend, or confidant. 2. Isolation: The perpetrator may try to isolate the victim from their support networks, such as friends, family, or colleagues. This isolation can make the victim more reliant on the perpetrator and less likely to seek help or disclose the harassment. 3. Gradual Desensitisation: Grooming often involves a gradual escalation of inappropriate behaviour. This can start with seemingly innocent actions, such as giving gifts, offering compliments, or engaging in non-sexual physical contact. Over time, these actions can become more explicit and sexual in nature. 4. Testing Boundaries: The perpetrator may test the victim's boundaries to see how they respond to certain behaviours. This can involve making inappropriate comments or jokes to gauge the victim's reaction. If the victim does not resist or report the behaviour, the perpetrator may escalate their actions. 5. Manipulation and Control: Groomers often use psychological manipulation to control their victims. This can include making the victim feel special, needed, or loved, while simultaneously instilling fear, shame, or guilt to prevent them from speaking out. 6. Exploitation: Once the perpetrator has established control over the victim, they may begin to exploit them sexually. This can involve coercion, threats, or outright abuse. The victim may feel trapped, powerless, or afraid to report the abuse due to the manipulative tactics used by the perpetrator. Recognising Grooming in the Workplace In the context of employment, grooming can be particularly insidious because it can be masked as mentorship or professional guidance. Employees may feel flattered by the attention and opportunities provided by the perpetrator, making it difficult to recognise the inappropriate nature of the behaviour until it escalates. Responding to Grooming 1. Awareness and Education: Organisations should educate employees about the signs of grooming and sexual harassment. Awareness can empower individuals to recognise and report inappropriate behaviour early on. 2. Clear Policies and Reporting Mechanisms: Having clear policies against sexual harassment and providing confidential reporting mechanisms can help victims come forward without fear of retaliation. 3. Support Systems: Offering support through counselling services, employee assistance programs, and legal advice can assist victims in navigating the complexities of grooming and harassment. 4. Prompt Action: Employers should take immediate and appropriate action when grooming or harassment is reported. This can include conducting thorough investigations, taking disciplinary measures against perpetrators, and ensuring the safety and well-being of the victim. By understanding the dynamics of grooming, organisations and individuals can better identify, prevent, and respond to this form of sexual harassment, creating safer and more respectful workplaces.

A recent Fair Work Commission (FWC) decision highlights the complexities surrounding representation rights in employment disputes. PHI (International) Australia Pty Ltd, trading as HNZ Australia, sought to delay an underpayments case by requesting legal representation, which the FWC ultimately denied. Background of the Case PHI aimed to secure representation ahead of a hearing regarding a jurisdictional objection to a casual entitlements dispute initiated by three pilots supported by the Australian Federation of Air Pilots (AFAP). The employer argued that the FWC lacked jurisdiction as the pilots had not adhered to the dispute resolution procedures outlined in the 2017 Karratha Helicopter Pilots MPT Operations Agreement. Representation Rights and Dispute Resolution Clause 22.1.4 of the agreement specifies that a person "initiating a dispute may appoint and be accompanied and represented at any stage by another person, organisation or association, including a union representative or company association in relation to the dispute." This clause does not explicitly extend representation rights to other parties involved in the dispute. Initially, Deputy President Peter O'Keeffe was inclined to grant PHI's representation request, acknowledging AFAP's opposition. However, after further deliberation, Deputy President O'Keeffe denied PHI's request, citing the specific terms of the dispute resolution procedure and previous case findings as the basis for his decision. Appeal and Balance of Convenience PHI argued that Deputy President O'Keeffe erred in law by not granting representation rights under section 596 of the Fair Work Act. Vice President Mark Gibian acknowledged PHI's "sufficiently arguable case on appeal" but emphasised that the clause's primary focus is to ensure the pilot's right to representation, not to exclude other parties from being represented. Despite this, Vice President Gibian noted that the broader question of balance of convenience did not favour granting a stay of Deputy President O'Keeffe's decision. The stay would not automatically allow PHI representation but would only enable PHI to reapply for such permission. Procedural Objections and Industry Impact The ruling underscores the procedural intricacies and the importance of adhering to specific terms outlined in workplace agreements. An AFAP spokesperson remarked on the increasing procedural objections from aviation industry employers, suggesting these tactics serve to delay dispute resolution. This case, PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Mr Martin Nash & Mr Paul Micheletti and Another [2024] FWC 1735, illustrates the FWC's approach to balancing procedural fairness and the specific terms of employment agreements in determining representation rights. Employers and employees alike must carefully consider these provisions to navigate disputes effectively within the framework of the Fair Work Act. For more insights on employment disputes and representation rights, visit 1800ADVOCATES for expert guidance and support. This blog post is an interpretation of recent FWC proceedings and does not constitute legal advice. For specific legal concerns, please consult a qualified professional.

The High Court is currently deliberating a case that could significantly redefine employers' duty of care in relation to the disciplining and dismissal of workers. This case arises from the appeal by a former consultant for Vision Australia, who is challenging a Victorian Supreme Court of Appeal judgment concerning his dismissal and subsequent psychiatric injury. Background of the Case The consultant, who worked in adaptive technology for Vision Australia, developed a major depressive disorder after his dismissal in 2015. His termination followed an incident with a hotel owner during a work trip. Initially, the Supreme Court found no breach of duty of care by Vision Australia but awarded $1.44 million in damages for lost earnings and pain and suffering due to the organisation's failure to adhere to its own disciplinary processes. Challenging Historical Precedents The legal team for the consultant, led by Perry Herzfeld SC, Eitan Makowski, and Stephen Puttick of Eleven Wentworth, is challenging the applicability of the 1909 House of Lords' Addis ruling. This ruling has historically prevented Australian courts from awarding damages for psychiatric injury resulting from wrongful dismissal. Vision Australia contends that overturning this precedent would disrupt contractual certainty and business operations. However, the consultant's lawyers argue that the Addis ruling should not preclude the recovery of damages for psychiatric injury caused by wrongful dismissal. They emphasise that the case is as much about contractual breach leading to psychiatric injury as it is about compensation for the manner of dismissal. Legal and Societal Implications The consultant's legal team asserts that the correct approach should be based on ordinary contractual principles, as seen in the High Court's 1993 decision in Baltic Shipping Co v Dillon. They argue that the law must evolve in line with changing societal expectations, a concept supported by cases such as Johnson v Unisys. The lawyers also rebut Vision Australia's claim that this appeal only concerns compensation for the manner of dismissal, stating that it also addresses the broader issue of recovering damages for psychiatric injury due to contractual breach. Modernising the Definition of Work A key point of contention is the definition of a 'system of work.' Vision Australia has argued for a narrow definition, limited to the performance of workplace tasks. In contrast, the consultant's legal team argues that this narrow approach is outdated and fails to reflect the realities of the modern workplace. They contend that employers' duty to provide a safe system of work should logically extend to disciplinary and termination processes. Limiting this duty is seen as arbitrary and incoherent, neglecting the comprehensive nature of workplace health and safety. Potential Outcomes and Impact If the High Court decides to overturn the Addis precedent, it could pave the way for employees to seek damages for psychiatric injuries resulting from wrongful dismissals. This would represent a significant shift in the legal landscape, aligning with modern expectations of workplace safety and mental health considerations. Employers may need to reconsider their contractual terms and disciplinary procedures to mitigate potential liabilities. While some argue this could introduce uncertainty, the consultant's legal team maintains that clear, express terms in contracts can address these concerns. Conclusion The High Court's decision in this case has the potential to reshape the understanding of employers' duty of care in Australia. By expanding the definition of a safe system of work to include disciplinary and termination processes, the court could enhance protections for workers' mental health, reflecting contemporary workplace standards. As this case progresses, it will be crucial for employers and employees alike to stay informed about the implications for employment contracts and workplace practices. Stay tuned to 1800ADVOCATES for further updates on this landmark case and its impact on employment law in Australia.