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Federal

Feb 24, 2016

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Australia’s data retention laws, ostensibly justified only for serious crimes, could be used to pursue unionists for swearing or flying the Eureka flag — even though the construction industry watchdog admits it doesn’t handle criminal prosecution.

In a document obtained by Labor senator Doug Cameron under freedom of information laws, the office of the Fair Work Building Industry Inspectorate last June urged the Attorney-General’s Department to add it to the list of “enforcement agencies” that would have access to data retained under the Abbott government’s data retention laws. In a token effort to curtail the vast number of Commonwealth, state and local agencies that could access metadata, the government limited access to retained metadata to a number of security agencies but left the way open for other “criminal law enforcement agencies” and “enforcement agencies” to apply to be added to that list.

In defending what amounted to Australia’s biggest ever government mass surveillance scheme, Attorney-General Brandis — famous for not actually understanding what metadata is — insisted the data retained would only be accessed by security agencies for “the most serious crime”. He told the ABC’s Q&A it would only apply “to terrorism, to international and transnational organised crime, to paedophilia, where the use of metadata has been particularly useful as an investigative tool”.

The Australian Federal Police, which enthusiastically backed the laws, agreed. AFP Assistant Commissioner Tim Morris nominated terrorism as the priority for data retention, saying “metadata and telecommunications data is a vital aspect of all serious crime investigations, whether it’s child exploitation, serious and organised crime, cyber crimes, but yes, terrorism absolutely”.

But contrary to the statements of both Brandis and Morris at the time, the data retention legislation does not limit access to metadata to terrorism, paedophilia or organised crime. Instead, the criteria to be added to the list of enforcement agencies by ministerial declaration (which requires parliamentary approval, although agencies can be given temporary access) is the same as that applying before the data retention legislation was introduced. More than 60 agencies and government bodies have applied to be declared under the act, including the Fair Work Building Industry Inspectorate, known as Fair Work Building and Construction. It should be noted, though, that when the list of 61 agencies was first released (including FWB), AGD said no agency had been granted temporary access. Parliament also needs to approve any permanent additions to the list of agencies given access to metadata.

In its application letter to the Attorney-General’s Department, which has badly bungled the implementation of data retention, FWBC acknowledged not merely did it not have responsibility for “the most serious crime”, but it had no responsibility for crime at all. “FWBC does not contend that its functions extend to ‘the enforcement of the criminal law’,” it admitted. Instead, FWBC claims that it needs metadata for “serious breaches of civil penalty provisions”.

In fact FWBC and its predecessor, the Australian Building and Construction Commission, have a history of pursuing offences so trivial as to be vexatious. Unionists have been pursued for swearing, for flying the Eureka flag (or flags that look like the Eureka flag, even if it’s for a cancer fund) or having political bumper stickers such as anti-WorkChoices stickers. Cameron, who has long scrutinised FWBC and the ABCC, told Crikey: “FWBC has a track record of putting aside civil liberties, privacy, natural justice and procedural fairness in pursuit of its political objective as a taxpayer-funded union buster. If the Attorney-General doesn’t want FWBC to make a mockery of the intent of the data retention laws, then he must refuse FWBC’s request.”

Moreover, FWBC went on to justify its need to access metadata on the basis that judges would not automatically grant subpoenas enabling it to seize documents. “The cases on contested subpoena application,” FWBC told the department, “show that the court will consider whether the applicant has demonstrated that the subpoena for the production of documents has a legitimate forensic purpose… the issuing of subpoenas is discretionary and may require an ‘exercise of judgment’.”

Yes, you read that right — FWBC wants to be able to automatically access metadata because judges might decide that its subpoenas have no legitimate forensic purpose. Cameron accuses the FWBC of preferring to operate “in a secretive and opaque fashion,” even to parliamentary scrutiny. “Its view that judges are too unreliable to scrutinise whose metadata should be accessed by FWBC is consistent with its contempt for accountability to the Parliament.”

Has FWBC been successful in its application to get access to metadata for sticker hunts and flag investigations? The Attorney-General’s Department refused to answer Crikey’s queries, so we don’t know if it’s been given either temporary access or will be given proper approval under a legislative instrument. FWBC isn’t the only one that likes to operate in a secretive and opaque fashion.

Business

Sep 2, 2015

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By now you almost certainly would have heard about the dramas surrounding 7-Eleven Australia’s alleged systematic underpayment of employers and franchisees. The alleged underpayment was first exposed over the weekend by Adele Ferguson in a joint investigation with ABC’s Four Corners program and her Fairfax colleagues Sarah Danckert and Klaus Toft, with thousands of workers said to have been underpaid, and up to 60% of franchisees knowingly underpaying workers, with wages as low as $12 per hour.

A website has been created to put together a class action lawsuit against the company. But what is a class action, exactly? And how does it work?

What exactly is a class action?

According to the  Federal Court of Australia Act 1976, a class action is a legal proceeding in which:

  • seven or more persons have claims against the same person;
  • the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
  • the claims of all those persons give rise to at least one substantial common issue of law or fact.

In this case, the claimants would be employees or former employees, with 7-Eleven the accused.

Why is there a class action against 7-Eleven?

Over the past year, Fair Work Australia has been investigating allegations of 7-Eleven employees being underpaid by franchisees, and by extension, the company. The allegations are staggering — according to allegations, 60% of franchisees (there are more than 620 stores in Australia) knowingly underpay their workers, with the investigation alleging wages of $12 per hour are being paid to workers who are often at risk of store robberies. This is illegal, as the minimum wage in Australia is $17.29 an hour.

Who is running the class action?

It’s a two-pronged attack. The action has been organised by The Arbitrator, a business led by Michael Fraser. The Arbitrator has been assisting Fair Work Australia in its investigations before the story hit the headlines.

On the legal side of things, Levitt Robinson Solicitors are representing some franchisees and employees.

Is only 7-Eleven Australia in trouble?

The short answer is no. This could go all the way to the company’s headquarters in Dallas, Texas. As one half of Levitt Robinson, Stewart Levitt, who is heading the class action, explains, the parent company has “ultimate authority over all matters including staffing, firing and payroll”. The Australian branch of 7-Eleven and guilty franchisees are also in the firing line.

Who is eligible to sign up for the action, and how long do they have to do it?

Any employee who has worked for the company in the past six years who thinks they might have been underpaid can sign up, even if they no longer live in Australia (many are believed to have left). Additionally, those store owners who did the right thing are also able to apply because they’ve been made to look like bad eggs.

The target number for the class action is 1000, and over 50 people have come forward already.

How much money could store owners/employees be owed?

The aim of the action is to provide workers with compensation relating to the alleged widespread underpayment within the company. Levitt claims each worker could have “been underpaid by $20,000 to $30,000” — a significant sum in itself, but even more so when you consider the number of workers. He claims that it could be “enough to bring the company to its knees”. Innocent franchisees that paid their workers fairly could also be due compensation for being “caught in the crossfire”, but the potential figures remain unclear.

Is any potential class action likely to be successful?

According to Levitt, it’s as likely as the sun is to rise tomorrow. “I think it’s bound to be successful,” he said. “The case has already been proven to a criminal standard in the US.”

Levitt adds that in each of the three times in which his firm had organised a class action, the result had been positive, with the accused company agreeing to a payout before the matter went to court.

What precedents are there for class actions like this one in Australia?

Not many. Class actions have only been a thing in our country for about 12 years, and many are settled before court. There hasn’t really been one similar to this. There have been other companies found to be underpaying employees, and some class actions still active, but there has been nothing on this scale.

Companies

Feb 5, 2014

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Gary Morgan sensationally claims the Fair Work Building and Construction agency threatened and intimidated witnesses to secure a judgment against the pollster’s family trust. Morgan, chairman of research company Roy Morgan, made the allegations in complaints to the Victoria Police and the Commonwealth Ombudsman.

The claims of witness intimidation involve a recent Federal Court case — as Crikey first reported yesterday — which found Morgan’s family trust, Linkhill, underpaid 10 employees who it had maintained were contractors. The court ordered Linkhill pay its workers $178,941 in unpaid wages and entitlements.

But Ryan Lowery, one of the workers named in the case, says he was served with a notice by FWBC (formerly the Australian Building and Construction Commission) on March 31, 2010 requiring him to produce documents.

Lowery claims after receiving the notice an FWBC inspector contacted him directly and told him the effect of the notice was that refusal to attend for an interview and to give a statement to FWBC was a serious offence for which he could be imprisoned. But the notice had no such effect and Lowery was entitled to refuse to assist FWBC with its enquiry.

Lowery said in a sworn affidavit provided to the Victoria Police and the Commonwealth Ombudsman:

“I did not provide the information contained in my statement freely and voluntarily. I was intimidated and therefore compliant with every request [the inspector] made of me in relation to the contents of my statement.”

In his complaint to the Victoria Police, Morgan claims Lowery made a statement to the FWBC “against his will, and under the belief of a possible risk of imprisonment”:

 “It is Linkhill’s view that [the inspector’s] conduct was unlawful, and constituted an attempt to pervert the course of justice, and/or threaten a witness.”

Morgan told Crikey sister publication SmartCompany he intends to appeal the judgment to the Federal Court and potentially the High Court. “It was intimidating to the contractors working for us, they were all very frightened once they read that letter,” Morgan said.

Both the Victoria Police and the Commonwealth Ombudsman have refused to investigate the allegations as the police claim it is a matter for the Ombudsman and the Ombudsman cannot investigate matters which are being dealt with by a court unless there are special reasons.

Sarah Mennie, spokesperson for the FWBC, says FWBC is also unable to comment while the matter is before the court.

*This article was originally published at SmartCompany

Federal

May 10, 2013

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Crikey is rolling out PromiseWatch series in conjunction with the Centre for Policy Development. Today, the topical field of industrial relations.

The mild industrial relations promises laid down by Tony Abbott and Eric Abetz yesterday may have drawn a collective yawn from the gallery and old school IR warriors like Nick Minchin, Peter Reith and the Business Council, but there is little doubt workplace policy remains a key — perhaps the key — point of difference between the major parties.

Ironically, both sides don’t have much wriggle room when it comes to new policies and promises.

Labor is cleaving tight to the Fair Work Act — forged in the fury over WorkChoices six years ago, while the Coalition and Tony Abbott are locked into a “dead, buried, cremated” promise on WorkChoices famously signed on Neil Mitchell’s 3AW morning show in July 2010.

So where do the parties currently stand on IR?

Labor

The original Fair Work Act, legislated in 2009, attempted to shift the focus back to collective bargaining and reintroduce robust minimum standards. Crucially, it circumscribed the ability of employers to force bare bones individual contracts (Australian Workplace Agreements) onto junior and mid-ranking employees — the major bone of WorkChoices contention.

The industrial wing of the ALP lauded:

  • An end to AWAs;
  • A new safety net of ‘National Employment Standards’;
  • More collective bargaining rights, including a requirement to bargain in good faith;
  • More rights to union membership and representation;
  • Stronger protection from unfair dismissal; and
  • A genuine independent umpire to resolve disputes.

Labor said it would review Fair Work after two years. The committee’s report was handed down last year, making 51 recommendations. After taking three months to mull it over, Industrial Relations Minister Bill Shorten announced that he would initially only adopt 17 (about a third).

The first tranche of alterations, most tinkering around unfair dismissal and general law provisions, were passed by parliament in November (click here for a good summary from the employer perspective).

Then, in February, Shorten announced further amendments to the act that aimed to improve flexibility for workers in specific categories — like carers, the disabled, parents, mature-age workers and workers suffering from family violence. The legislation was also designed to:

  • Require for employers to genuinely consult with employees about changes to rosters and working hours, including the impact on their family life;
  • Improve entitlements for workers who are pregnant, including changes to special maternity leave and the right to transfer to a safe job;
  • Extend the time parents can take unpaid parental leave together from three weeks to eight weeks, and providing greater flexibility in when the leave can be taken; and
  • Entrench a right to request a return-to-work on a part-time basis after taking unpaid parental leave.

Labor’s national platform, updated in December 2011, contains a whole chapter of mostly motherhood statements on “opportunity and fairness for working families”, However, reflecting the party’s origins and major source of funding, it states “that employees are best represented in their workplace through membership of their relevant trade union.”

The Coalition

The Coalition’s “Policy to Improve the Fair Work Laws” looks to be a transitional document before real reform can be pursued towards the end of Abbott’s first term in office. Politically, it aims to neutralise a feared return to WorkChoices in an election year while appeasing concerns from the business lobby over right of entry and expensive Greenfields agreements. As Bernard Keane outlined yesterday, cautious changes to Fair Work flexibility provisions will enable workers to trade off penalty rates and leave, as long as they’re not worse off overall. And in a predictable smack down to the Construction, Forestry, Mining and Energy Union, the Coalition will make good on its previous promise to reinstate building site cop the Australian Building and Construction Commission.

The Coalition approach was predicted months ago by the labour movement, who view a re-fanged ABCC and the creation of a registered organisations authority as a ruse to slowly bleed left-wing unions like the CFMEU, the Australian Manufacturing Workers Union and the Maritime Union of Australia dry by snagging them in costly investigations and court action. As Ben Schneiders explained, a three-month time limit on Greenfields negotiations and a good faith clause has been promised to place to prevent “another Wonthaggi”, where unions were able to double down on dialogue and delay to extract world-beating agreements to the chagrin of contractors and the state government.

In its vague official release, the Coalition pledged to:

  • Keep and improve the Fair Work laws — including the independent umpire;
  • Re-establish the Australian Building and Construction Commission;
  • Provide better protection for members of Registered Organisations;
  • Provide practical help to small business workplaces;
  • Guarantee workers the right to access fair flexibility;
  • Create realistic timeframes for Greenfield agreements;
  • Ensure union right of entry provisions are sensible and fair;
  • Promote harmonious, sensible and productive enterprise bargaining;
  • Ensure the laws work for everyone and an independent review by the respected Productivity Commission will be undertaken;
  • Deliver a genuine paid parental leave scheme and lift female participation rates in Australian workplaces;
  • Ensure workplace bullying is comprehensively addressed;
  • Urgently review the Remuneration Tribunal for the trucking industry;
  • Implement many recommendations from the Fair Work Review Panel report; and
  • Give underpaid workers a better deal.

The Greens

Perhaps surprising for a party that sprung from the environmental movement, the Greens appear to boast the most progressive approach — on paper at least — to workplace relations. The principles and aims run to 39 bullet points and cover the full gamut from right of entry to industrial manslaughter provisions. Melbourne MP Adam Bandt is the party’s IR spokesman and boasts years of experience at labour law firm Slater and Gordon, where he tilled a very similar field to Julia Gillard. Interestingly, the Greens specifically put the onus on an employer to enter into collective bargaining unless it can prove a majority of workers are “demonstrably opposed” to it.

Last year, Bandt introduced a private members bill to protect casual workers in insecure employment arrangements by providing a process for casuals to apply to move to ongoing part-time or full-time work.

Australia

Oct 24, 2012

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This morning’s dawn raid on Craig Thomson’s home while his young family slept — pre-leaked by police to the media who wet themselves over pictures beamed to breakfast television — is highly unlikely to have any implications for the longevity of the Gillard government.

They are essentially the same credit card claims, stemming from Thomson’s five-year term as Health Services Union national secretary from 2002-2007, first raised by Mark Davis on the front page of The Sydney Morning Herald way back in April 2009.

Outside his house, Thomson told journos he had “done nothing wrong”, was “fully co-operating with the police” and that he was very much looking forward to concluding the matter “before the end of the year”. His lawyer then took to Sky News to issue grave warnings about defamation.

Despite this morning’s action being executed by NSW Police on behalf of their Victorian fraud squad counterparts, Thomson was repeatedly badgered by the Bateau Bay press pack over why he had refused to sit down with the NSW Force as part of their investigation. NSW’s Strike Force Carnarvon is actually focused predominantly on the NSW branch and the merged HSUEast branch when it was under the control of Michael Williamson. It is also investigating, at a lower level, allegations of malfeasance in the NSW branch of the HSU when Thomson was assistant secretary from 1999 until 2002.

Victoria Police are trained on Thomson’s period as National Secretary, as well as other claims around the Victorian No 1 and No 3 branches controlled at the time by Kathy and Jeff Jackson. There were suggestions today they were keen to get hold of Thomson’s signature to compare with old-style credit card receipts used in various brothels. Thomson has maintained in federal Parliament he was set up by union rivals.

The road from the raid to a premature Tony Abbott government is a long and torturous one, and almost certainly won’t be resolved before the next federal election. It requires the opposition to jump through at least five flaming hoops.

The constitution mandates that an MP is banned if they are convicted of a crime that carries a penalty of over a year, regardless of how much time they are actually sentenced to. So, for example, if Thomson was ever convicted of fraud or theft under the Victorian Crimes Act he would be banned from federal Parliament because that crime is “punishable” by up to 10 years in prison.

But an early exit from parliament would mean a subsequent trial and all appeals would have to be exhausted before mid-July at the latest.

The other option is bankruptcy stemming from Fair Work Australia’s civil claims lodged last week that could potentially (although probably won’t) attract penalties of up to $450,000. But as Thomson lawyer Chris McArdle and Industrial Relations academic Andrew Stewart explained last week, those could well fail on a two-year statute of limitations provision, pending the outcome of an appeal in the Toyota Materials Case currently before the Federal Court.

Assuming one or both of those bans eventuated, a byelection in Dobell would then need to be won by the Liberals’ preselected candidate Karen McNamara (held by Thomson by 5.1%).

Then, assuming Peter Slipper continues to vote with the government, Julia Gillard would still hold a 76-74 advantage in the House before the exclusion of the speaker, or 75-74 with Anna Burke in the chair.

If Slipper votes with the Coalition in a motion of no-confidence we’re getting closer to a new poll, although all indications are he won’t act to bring down the government. Andrew Wilkie has already said he probably won’t back any no-confidence motion unless it relates to a proven instance of sleaze.

Amusingly, Liberal MPs Ross Vasta, Andrew Laming and Gary Hardgrave all had their offices raided by police before the 2007 poll but none ended up facing charges.

There may well be a lot of damage to HSU finances, but it seems the worst of it occurred during post-Thomson era. Twelve days ago, Crikey revealed a $7 million hole in HSUEast’s finances — a legacy of the disastrous 2010 merger between the NSW/ACT branch and the Victorian No. 1 and No. 3 branches. The No 3 branch controlled by forces loyal to Kathy Jackson was “apparently insolvent”.

In an interview with the local Central Coast Express Advocate last week, Thomson claimed he wanted to be judged on his record with constituents and not on the media storm. Despite his suspension from Labor, he is still close to local party figures and appeared not to rule out another run next year as an endorsed candidate. While he doesn’t sit in the federal Labor caucus, Thomson is believed to have recently been invited by the Dobell Federal Electorate Council to address them. However, NSW general secretary Sam Dastyari is unlikely to countenance that possibility and has instead called for a preselection ballot to be held early next year.

The heat has also gone out of the allegations from other angles. The HSU has disaffiliated with Labor in Victoria, a move that sapped the vigor out of the feverish battle for control of the union to gain delegates at ALP state conference and in turn influence state and federal preselections.

Meanwhile, also in Victoria, the lower-level saga of the de-merged Victorian No. 1 branch elections will kick off in the Federal Court tomorrow before Justice Treacy. As first revealed by Crikey last week, secretary hopeful Diana Asmar is fighting to get her name on the ballot paper and has accused her rivals of repeatedly ignoring her membership payments in order to deny her the ability to run under internal union rules.

Federal

Oct 16, 2012

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As Craig Thomson prepares to fight civil action brought by Fair Work Australia, local ALP members in his NSW Central Coast seat of Dobell will have to wait until 2013 to discover who will fight the Liberals at the next federal election.

NSW ALP General Secretary and right-wing powerbroker Sam Dastyari told Crikey that a pre-selection vote would now be held in “February or March” for the seat, despite media reports earlier in the year it would happen this year.

Thomson is formally suspended from the NSW Labor Party, even though one source said he was technically still a member because the state’s powerful Administrative Committee had only “noted” rather than “passed” his suspension request. But Fair Work’s looming Federal Court action means the Thomson case is unlikely to be resolved any time soon, meaning he would be ineligible to stand for Labor under party rules.

Dastyari has previously said he expected the Thomson actions to drag on for “years”. That puts him at odds with his struggling MP, who said this morning that he expected the FWA actions to be imminently “thrown out”.

The Liberals have already picked public servant Karen McNamara, the wife of former Dobell candidate John McNamara, to run in Dobell despite initial grassroots protestations.

At the 2010 election, Thomson, who now sits as an independent, extended his margin by 1.1 percentage points to 5.1% — even though the brothel allegations had been raised over a year earlier on the front page of the Sydney Morning Herald by then-journo (now Greg Combet adviser) Mark Davis.

In early 2010, popular local LUCRF super fund manager Dave Mehan, who ran unsuccessfully for Dobell in 2004 and The Entrance at last year’s NSW state election, challenged Thomson but dipped out 66 votes to 21.

This time around, Dobell Federal Electorate Council watchers say that the contest will boil down to a “battle of the Daves”. The other Dave is former Wyong MP-turned local Point Clare Public School principal David Harris, who did not return calls.

Multiple local sources said today that Emma McBride — the daughter of former Entrance MP Grant McBride — was out of the race and was concentrating instead on greener pastures after recently deciding not to stand for another term as a Wyong councillor (McBride declined to comment this morning). McBride Jr previously had her state political ambitions cut short when her dad realised his seat, which he planned to keep in the family, had become unwinnable as the Labor brand turned toxic.

Mehan, who put his hand up again for Dobell back in March, told Crikey today he was still interested in another tilt and believed that “the seat is winnable … Labor is turning it around federally and this will flow through to the Central Coast”.

But feisty local Labor identity Norman Hanscombe, a former president of Mehan’s Ourimbah-Narara branch, told Crikey that the retiree-strip had become a poisoned chalice. “The only two are the two Davids … and both of them couldn’t cope with Goliath,” Hanscombe quipped. “You can say with safety that the only value from someone running is to use the money from the public purse to raise their profile as someone who tried courageously against the odds.”

Hanscombe slammed any suggestion that a candidate would end up being imposed from above via the controversial “N40” rule and that it would be decided by a democratic vote of members. “The NSW Labor party wouldn’t be sufficiently stupid, despite their strengths in that area, to interfere again,” he said.

Mehan was recently elected as a delegate to NSW state conference — a move that Hanscombe told Crikey was deliberately engineered by Suss-x Street forces to shut him out.

Hanscombe said Mehan would need to gather support from a motley bunch of local branches, while Harris would have to rely on backing from the 30-member The Entrance branch that previously backed Thomson. The Entrance is believed to take its direction predominantly from NSW HQ.

Australia

May 28, 2012

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At a hastily convened presser last week, Craig Thomson made the observation that the number of simultaneous investigations into his credit card usage could be getting a bit out of hand. No kidding.

Thomson reckoned there were nine relating directly to him, as did some weekend news reports. But just how many probes into the Health Services Union are there?

Crikey trawled through the mire to record the total number of magnifying glasses dedicated to the smouldering remains of a one-time pillar of the labour movement. Probes, probes into probes and probes into probes into probes are plentiful indeed …

HSU investigations:

  • Pitcher Partners’ report into the Victorian No. 1 branch. The April 2009 report found that the chief of the HSU’s Victorian No. 1 branch Jeff Jackson didn’t require written approval for expenses and that he liked to sign blank cheques which would be filled in at a later date without authorisation.
  • The 2009 Slater & Gordon and BDO Kendall report on suspected irregularities in the expenditure of the HSU National office that piqued the interest of the Sydney Morning Herald. It alleged that Thomson’s credit card had been used inappropriately for “adult services”.
  • The 1100-page March 2012 Fair Work Australia report by FWA investigator Terry Nassios concluded that Thomson used HSU credit cards to pay for escorts while he was national secretary.
  • The Fair Work Australia report into the Victorian No. 1 branch. Last December, Nassios produced another FWA report detailing damning findings against Jeff Jackson.
  • The Temby and Robertson investigation. Ian Temby, QC, and accountant Dennis Robertson conducted an internal review of the HSU’s expenditure processes, and the use of HSU credit cards. Temby found that “an interim report into the troubled East branch of the Health Services Union says the union has no credit card policy or formal purchase order system despite millions of dollars of expenditure each year”.
  • NSW Police criminal investigation. The first criminal investigation, launched as part of Strikeforce Carnavon to probe claims commissions were given to Thomson when he was national secretary, as well as to national president Michael Williamson.
  • Victoria Police criminal investigation. Victorian Fraud Squad offices have travelled to Sydney to gather more evidence in its separate criminal investigation into HSUEast.

Court cases:

  • Federal Court case 1: Fair Work Australia has launched civil action against Thomson, to test his claims the FWA report was biased and flawed.
  • Federal Court case 2. Fair Work Australia has also launched civil action in Victoria against three former officers of the HSU’s Victoria No. 1 branch — Pauline Fegan, Jeff Jackson and Shaun Hudson — in relation to 26 alleged contraventions of workplace laws and union rules.

Probes into other probes:

  • The Education, Employment and Workplace Relations Legislation Committee is meeting today to to examine Thomson’s speech to parliament as well as the process that led to the FWA report.
  • The Joint Standing Committee on Public Accounts: Rob Oakeshott has proposed an inquiry into FWA’s three-year investigation and to debate the Coalition’s bid to suspend Thomson from Parliament.
  • The House of Representatives Privileges Committee, chaired by ALP MP Yvette D’Ath, is examining the Thomson case and has asked leader of opposition business Christopher Pyne to outline specifically how he believes Thomson has mislead the House of Representatives.
  • The Workplace Relations Consultative Committee. Bill Shorten has asked the committee to draft legislation to improve the transparency of registered organisations and Fair Work Australia’s investigation processes.
  • The Australian Electoral Commission’s analysis of the FWA report. The AEC analysed Terry Nassios’ national report and found that Thomson had correctly declared spending on his election campaign in accordance with the Electoral Act.

Probes into probes into probes:

  • The Privileges Committee is probing its own probe after details of discussions about Thomson were leaked to the media.

Tabloid TV probes:

  • A Current Affair’s Craig Thomson investigation. Channel Nine’s finest, accused by Thomson of “grubby journalism”, is contacting pr-stitutes to tell their side of the story. Last Thursday reporter Justin Armsden brought viewers up-to-date with its ongoing investigation.

Federal

May 24, 2012

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“Productivity” is starting to sound a little “gourmet” — a word that means very different things to different people. But unlike the spiced-up kitchen combat of master chefs, the productivity battleground has assumed a predictable flavour, and seems to serve up the same old meal.

This week saw two new entries into the debate — Fair Work Australia’s vice-president Graeme Watson, and celebrity unionist Paul Howes. While Watson directed his attention to the “adversarial relations architecture” of Fair Work Australia, which he claimed was propped up by too many union appointments to that body, Howes urged big business to end their fantasies about a “peasant workforce” of cheap, disposable labour. While Watson sees the productivity problem as structural, Howes settles on ideology.

It is true, as Watson suggests, that the contested terrain of industrial relations can distract industrial parties (and policy makers) from the sort of mature discussions about productivity that Howes is keen to kick-start. As well, limiting the workplace relations to a focus on preventing violations and providing remedies can have the perverse effect of allowing companies to overlook their responsibility to contribute to a positive environment for workers and communities. This can inhibit the sort of best-practice approach that Watson espouses.

But the real point of ideological contention is not just the form of the industrial relations system, but the unwillingness to accept a legitimate place for unions within it.

Past productivity reforms reflected a shared understanding about the need to respond collegiately to structural challenges in the national economy, not just by affording unions a role, but by prescribing them an equal place in shaping a shared system. Significantly, these reforms took place against the backdrop of a strong industrial relations framework and were supported by public policy that backed industry reform and provided assistance when needed.

It might be a little disingenuous to suggest that a collegiate approach is totally non-existent today — in some sectors some of that former maturity (or at least recollections of it) remain. Still there appears to be much more appetite for the oft-repeated critique of productivity that just blames unions and wages policy straight up.

This is curious in light of a recent World Bank report that showed that respect for workers’ rights, supported by high rates of unionisation is conducive to business in general and to the profits, income and productivity of individual companies in particular.

Howes’ big-picture productivity plea may be a little nostalgic, but what’s the alternative? It’s certainly true that back then — as now, there were economic winners and losers (just ask a textile worker). But if past approaches taught us anything, it was about the need for creative and integrated policy responses. To date, many productivity-related issues have been dealt with in a very fragmented way — a bit of assistance here, a package there and some skills funding to the side.

There are also issues that are yet to appear on the productivity horizon and where the right policy response today may well fuel the productivity boom of the future — things like decent work, pay equity, labour standards and job security. A renewed focus on skills, training, technology and infrastructure is important but arguably these matters should be part of a modern economy and not allowed to lapse to the point of dragging productive capacity down.

Australia should also look further afield and see what new policy approaches are delivering overseas: there is after all a global contest for manufacturing business around the world and overseas responses are instructive. In Ontario, the government recently invested $80 million to create and retain jobs, innovate and diversify the economy. It has also developed an $8 billion CleanTech sector that continued to grow during the worst recession the country has experienced, and is now contributing $1 billion in exports.

Likewise in Brazil — a country that shares many of our problems like a strong currency and growth in commodities — has found some policy space to abolish the 20% payroll tax for manufacturers in four labour intensive industries, replacing it with a turnover tax of 1.5 to 2.5%. To supplement these measures, the Brazilian government took quick action on dumping and introduced public procurement rules that allow the government to pay up to a quarter more than the lowest price to secure a local supplier. France has opted for a sovereign wealth fund to invest in industry, while the UK has rolled out a renewable energy program along its coastlines.

Such policies do need to be integrated across the economy: a world-class manufacturing sector, for example, needs a world-class education and training system right alongside it. Likewise, the central place of manufacturing in contributing to science, technology and innovation needs to be better understood — especially the link to growth sectors such as health which, after all, is the biggest sector in our economy.  Worker health is also important — a global survey of manufacturing leaders placed health care No.10 on the list of factors that inform where global manufacturing businesses locate their firms.

And if industry assistance is on the cards, then taxpayer handouts should come with a guarantee that recipient businesses behave in environmentally and socially responsible ways by signing to global standards and publicly disclosing their approach to labour and environmental management.

While these topics are yet to find their way into contemporary productivity debates in this country, they certainly give us something to chew over and might provide a pleasant reprieve from what’s typically served up.

Companies

May 16, 2012

5 comments

It’s been a difficult couple of days at The Australian. First there was the unfortunate Newspoll “bounce” for Labor after the paper had infamously shrieked about class war the day after the budget. The movement in Labor’s favour was barely out of the margin of error but, stuck with its own logic, the paper’s spinners had to admit class warfare had been rewarded.

It was also, we were told, “the first major poll conducted entirely after last Tuesday’s budget”, a claim derided by Fairfax’s Phil Coorey, who pointed out the Nielsen poll run on Saturday had been conducted before Newspoll and entirely after the budget. For that matter, Monday’s Essential poll was conducted entirely after the budget as well. Still, who cares, it’s only opinion polls, and as we know, The Oz is the in-house journal for the assertion-based community.

It was also intriguing to see Annabel Hepworth today covering business reactions to the cash handouts in the budget. Was The Oz standing up for fiscal responsibility? Taking a welcome line against middle-class welfare? Joining those of us who have long campaigned against what Joe Hockey calls “the Age of Entitlement”? No, it was because the budget cash handouts “have put wage rises in jeopardy, as employers launch a new assault against significant increases for workers on the minimum wage”.

I confess confusion, because I thought the main narrative coming from government critics was that its industrial relations system was causing wage pressures and driving up business costs, making Australia an Expensive Place To Do Business™, not reducing pressure for wage increases via the transfer payments system. Hepworth has been a loyal footsoldier in The Australian’s various wars on things Labor, but in this case her actual article focused on business submissions to the forthcoming minimum wage case; it was her editors and sub-editors who, typically, made the leap to the lurid “ambush” of the headline.

It raises a fair point, however, and businesses, while not exactly coming to the debate with honest intentions, have a point: surely all changes in the incomes of the lowest paid workers, the ones most likely to benefit from increases in the minimum wage, should be considered when determining whether they merit an increase?

This, after all, was the basis for the Hawke government’s remarkably successful Accords with the union movement, in which unions agreed to support economic reform and wage restraint in return for “social wage” reforms like Medicare and, later, tax cuts. It transformed the hostile 70s and early 80s battleground of industrial relations, in which the Fraser government lost all control of wage outcomes, into a partnership that played a crucial role in establishing a reformed economy and the growth in real incomes that flowed from it (indeed, some would say, it created the aspirational Australia that turned on Labor with such fury in 1996).

One of the curious results of this achievement was that the rhetoric from conservatives about the labour movement changed through the 80s and early 90s. With the traditional criticism of union irresponsibility undermined by the success of the Accords, hardline IR reformers began complaining that the problem wasn’t that the labour movement put too much pressure on wages, but that it stopped Australians from enjoying higher wages because of its inflexibility.

Putting aside that the only flexibility IR reformers wanted was the downward variety, this moving of the goalposts, one suspects, might be due for another go as wages data stubbornly shows that the Fair Work framework is not producing any of the wage pressures claimed by business.

But it also puts the onus on the union movement to explain why employers should be paying more when the government itself has boosted real incomes for low income earners. It certainly removes the case for any unions tempted to campaign for higher wages based on the (tiny) cost of living impact of the carbon price.

The Accords were at a time of high inflation, which they helped bring under control, although not to levels we currently enjoy. There’s no pressing inflation case for wage restraint at the moment, but in transferring a corporate tax cut into cash handouts, the government might yet be providing the case for wage cost outcomes even lower than they otherwise would have been — an outcome that is also good for business. Perhaps losing the tax cut will, depending on the outcome of the minimum wage case, prove not to be an unmitigated disaster for business after all.

Federal

May 14, 2012

5 comments