Fair work Australia

Posted on 03-Sep-2010

The Fair Work Ombudsman has launched a prosecution against the operators of a NSW security company over their alleged involvement in underpaying 22 workers almost $75,000. Facing court is Damien Peter Love, the sole director of Drymist Holdings Pty Ltd, and his wife Tammy Leigh Love, a part-owner of the Wollongbar-based company. Drymist Holdings was placed into liquidation in August this year, which prevents the Fair Work Ombudsman from prosecuting the company. Fair work Australia is the national workplace relations tribunal that was established by the Rudd Government under the Fair Work Act 2009. It is an independent body with the power and authority to carry out a range of functions that include:

1. The safety net of minimum wages and employment conditions
2. Enterprise bargaining
3. Industrial action
4. Dispute resolution
5. Termination of employment

The Fair Work Act established a new system of regulation that attempted to create a more national system for regulating industrial relations in Australia. Each state has the discretion to hand over some or all of their industrial relations powers to the Commonwealth, and should a state decide to refer their powers to a centralized and national industrial relations system, all the employees of that state will effectively be covered by the national Fair Work Act. This new national body has taken over the roles of the Australian Industrial Relations Commission (AIRC) in the workplace when dealing with workplace dispute and industrial actions, and in the process determining national industrial relations policies that include setting minimum wages and regulating the award system.

It is alleged that for various periods of time in 2007 and 2008 the security officers were paid according to rates stipulated in Australian Workplace Agreements (AWAs) lodged with the Workplace Authority. The Workplace Authority found that the AWAs failed to pass the ‘fairness test’. The Workplace Authority ordered Drymist Holdings to compensate the security officers for the entitlements they were underpaid but it is alleged that the company repeatedly failed to do so. The biggest alleged underpayment of an individual worker is $10,355. Fair Work Ombudsman NSW Director Mark Davidson says the decision to prosecute Mr. and Mrs. Love was made because of the significant amounts involved and their failure to rectify them.

Fair Work Australia promotes bargaining under ‘good faith’ between employees and employers. Under the Work Choices legislation, the power of trade unions to represent members during contract negotiation periods was weakened, due to laws that prevented union right of entry into the workplace. Collective bargaining regulates the terms under which employers hire employees and the future treatment of future employees. Collective bargaining acts as a voice mechanism, where employees, employers and representation parties can express their objectives surrounding the nature of work. Where an employee has only been employed a short time, there is no entitlement to redundancy pay regardless of whether the redundancy is in the ordinary and customary turnover of labor. Therefore, it is submitted that this exclusion has no effect where it is “ordinary and customary” for an employer to have a high turnover of labor, such as in service industries, or for example, the usual drop off in staff requirement in the tourism and hospitality industry after the Christmas/New Year period. The Bill should contain a specific definition of “ordinary and customary turnover of labor” in order to ensure that where an employee has been employed for a long period of service, their service is recognized for the purposes of redundancy pay if the employer is terminating their service as a consequence of economic belt-tightening. Economic belt-tightening could be “ordinary and customary” for an employer at any time, therefore this exclusion potentially operates broadly enough to entirely avoid operation of these redundancy pay provisions. Case law determining the question of “ordinary and customary” is complex and parties to future arguments on this question would be greatly assisted by such a definition.

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