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PSA challenge to pay cap
The transcript of the High Court of Australia proceedings where the PSA challenges the constitutional validity of NSW legislation is linked below. The PSA is challenging the 2.5% pay cap introduced last year on the grounds it overrules the independence of the NSW industrial court. There is no decision from the Full Bench as yet.

Read the High Court of Australia transcript, 5 September 2012: "The Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment & Ors [2012] HCATrans 207 (5 September 2012) "

Read the Herald Sun report, 5 September 2012: "NSW wage cap goes to High Court"

Our rights at work: "O’Farrell’s hidden agenda on HSU administrator bill
“Legislation introduced into NSW Parliament today to allow the HSU to be put into administration has a hidden agenda which may have wide ramifications, according to Greens NSW Industrial Relations spokesperson David Shoebridge.
“The Government professes to be sorting out a legal technicality in the HSU case but is in fact introducing a bill that has much greater powers than are required to address this problem,” Mr Shoebridge said."

Read the NSW Greens Media Release, 8 May 2012 "O’Farrell’s hidden agenda on HSU administrator bill"

Read the Sydney Morning Herald report, 9 May 2012 "Labor and Greens concerned NSW govt minister will have power to put any union into administration"

Employers are using Award review to bring back the worst of Workchoices
"A major business group has today confirmed that the goal of a new push by employers is to cut wages and conditions in Awards.
Interviewed on ABC radio in Melbourne this morning, the Executive Director of the National Retail Association, Gary Black, confirmed that employers were using the current review of the Award system to seek a “radical overhaul” of wages, hours of work, penalty rates and other conditions." ACTU media release, 10 April 2012.

Read the ACTU media release with a link to further analysis of employer claims.

Next round of O'Farrell attacks: the legislation
The Public Sector Employment and Management Amendment Bill 2012: Objects of the Bill (summarised):

  • to revise the circumstances in which the services of excess officers may be dispensed with, and
  • to exclude the unfair contracts jurisdiction of the Industrial Relations, and
  • to implement performance management systems.
    Read "The Amendment Bill" here.

    The Industrial Relations Amendment (Dispute Orders) Bill 2012.
    The object of this Bill (summarised):

  • to increase the maximum monetary penalties for a contravention of a dispute order,
  • to enable costs to be awarded for a contravention of a dispute order,
  • to enable appeals to be made to the Court of Appeal on a question of law
  • to provide for the making of any necessary regulations
    Read the "Industrial Relations Amendment (Dispute Orders) Bill 2012".

    The Industrial Relations Amendment(Industrial Representation) Bill 2012.
    Object of this Bill (summarised):

  • to enable industrial representation of the same classes or groups of employees by one or more industrial organisations or associations.
    Read the "Industrial Relations Amendment(Industrial Representation) Bill 2012".

    Barry attacks TAFE
    The TAFE Commission Amendment Bill was dropped, unannounced, into Parliament late on Tuesday 11 October, 2011.

  • The TAFE Commission will be the employer of current TAFE employees. Employees will come under the Federal Fair Work Australia industrial jurisdiction.
  • There will be a 12 month transition period during which only a few 'core' conditions will be maintained.
  • No consultation has been undertaken with the unions involved. As a result not all the implications of this legislation are clear.
  • The TAFE Commission Act amendment has the declared purpose of increasing “flexibility to secure more business and create more employment opportunities for its staff.” At the same time one type of "flexibility" the union has been fighting is the spread of imposed part-year (36 or 42 week) employment.
    For more information click here: "Save TAFE"

    Public Sector (Conditions of Employment) Regulation 2011
    Read a Unions NSW Outline Paper on the Wages Policy. In part it points out "The regulation, due to its drafting, seems to be a one-sided mechanism constraining unions, but not the employer, from detrimentally affecting the working arrangements and conditions of employees during the life of an award." Industrial Implications of the Public Sector (Conditions of Employment) Regulation 2011
    Read the "Industrial Relations (Public Sector Conditions of Employment) Regulation 2011", here.

    Fair Work Australia or WorkChoices lite?
    "Fair Work Australia is the national workplace relations tribunal. It is an independent body with power to carry out a range of functions relating to:

  • the safety net of minimum wages and employment conditions
  • enterprise bargaining
  • industrial action
  • dispute resolution
  • termination of employment
  • other workplace matters." See the fair Work Australia web site here.

    See below for a reminder of life under the Coalition WorkChoices.
    WorkChoices was the supposedly "dead, buried and cremated" Industrial Relations policy of the discredited Howard government. The Tony Abbott led federal Opposition is being strongly pushed to implement a similar policy should it win the next federal election.

    ACTU Congress adopts policy on WorkChoices
    The last ten years of the Howard Government will go down in Australia’s history as the wasted years says ACTU Secretary Greg Combet. In his address to ACTU Congress Combet argued that the Coalition squandered the opportunity to use billions of dollars of additional revenue generated by a 40% increase in Australia’s terms of trade since they were elected in March 1996. Instead we have been saddled with a chronic underinvestment in health, education, training and infrastructure plus growing inequality in incomes.

    ACTU Congress has adopted an Industrial Relations Policy which it hopes can be implemented if the Coalition Government is removed at the next election. It calls for the introduction of 'good faith bargaining' and restoration of powers to the Industrial Relations System.

    High Court upholds validity of IR legislation
    As expected the High Court has upheld the validity of the Commonwealth Government's use of the Corporations Power to takeover state industrial relations. In a 5-2 decision the Court rejected the state governments challenges to both the central features and particular provisions of the Work Choices Act. "WorkChoices was never going to be defeated on legal grounds alone" said Paul Petersen, PSA Vice President. "It will be defeated politically at the ballot box and industrially through increased union member activity in the workplace. We have to make Labor publicly commit to a program that guarantees employees the right to take industrial action and the right to collective agreements."

    What the decision means
    The decision is not a verdict on WorkChoices but rather a ruling on the extent to which the Commonwealth may use the corporations power of the constitution. The decision indicates there is no limit on the use of the corporations power in governing the affairs of incorporated bodies. It means that the Commonwealth, if it chooses, could legislate in many areas previously thought to be the domain of the states - some of them covered by the PSA. Its conceivable that the Commonwealth could increase its involvement in, or take full legislative responsibility for, Universities, schools, hospitals, transport, energy, environmental protection, disability and aged services, agriculture, gaols, and possibly indigenous affairs amongst others. This isn't innately a bad thing. The states are colonial constructs that duplicate regulation of many areas of life. They are also played off against one another for subsidies and favourable treatment by major corporations. Unions shouldn't be jumping on a reactionary 'state rights' bandwagon in some short term attempt to shore up our numbers. The labour movement should be at the forefront of demands for constitutional change. Key among our demands should be a republic where employees have the right to withdraw their labour and act collectively. We must ensure that state employees are protected and properly redeployed when the Commonwealth takes over functions currently governed by the states.

    More changes to IR laws
    The Commonwealth Government will give employers a new and extensive right to stand down workers without pay and impose a cap on employee entitlements reducing sick leave and annual leave payments for large numbers of workers. The changes do nothing to prevent businesses setting low conditions in 'greenfield' businesses or following the takeover and transfer of ownership of an existing business. The changes are:

  • REDUNDANCY PAY - The Government's changes fail don't close the loophole that allows carpet manufacturer Godfrey Hirst to substantially cut the redundancy pay and other entitlements to 320 workers as it takes over the operations of its former competitor.
  • LEAVE ENTITLEMENTS - A new cap that prevents the inclusion of overtime in calculating annual leave, sick leave and carers' leave will reduce the rate at which these entitlements accrue each year. Personal leave payments will also only be paid at a basic rate of pay, minus overtime and penalty rates.
  • STAND DOWNS - The Government is providing employers with an extensive right to stand down workers at any time there is a downturn in business or during industrial action. This could lead to many workers being stood down without pay during the Christmas period. It will also strengthen the hand of employers during industrial disputes.
  • CASH OUT LEAVE - The ability to cash out personal leave will help relatively few workers and although it needs the consent of the employee it may disadvantage workers who subsequently end up with carer duties.
  • RECORD KEEPING - The Government has reduced the requirements on employers to keep adequate records of the hours that employees work and in the event there is a dispute, this will make it harder for workers to argue that they have been underpaid.

    'Fair Pay' Commission decision
    The Commonwealth's Fair Pay Commission will raise the minimum wage by $27.36 from 1 December. The problem with the decision is not the amount (its pretty close to the ACTUs claim for $30) it is the logic used to derive the figure. The Commission asserts there is a relationship between increased wages and increases in unemployment. If this logic is followed then the Commission will deliver harsh decisions during times of economic downturn. The decision does not directly impact PSA members as most of us are on state awards. However, national pay decisions have historically been mirrored by state tribunals and have put a floor beneath wage outcomes negotiated by unions. You can check the decision on the Commission's website.

    NSW public sector 'insulated' from WorkChoices
    March 2006: The NSW Government has introduced legislation to transfer the employment of most statutory corporations to the Crown. This will take these employees out of reach of most of the Commonwealth Government's WorkChoices legislation. You can check whether your agency is affected by viewing this list of agencies & employees affected. The legislation does not apply to State Owned Corporations (SOCs). However, another Bill, the Industrial Relations Amendment Bill, will allow SOCs to convert Awards to 'state agreements' to escape the reach of WorkChoices.

    NSW accepts new IR conditions for TAFE
    TAFE must now offer staff Australian Workplace Agreements (AWAs) in return for Commonwealth funding. The condition was agreed to by NSW Education Minister Carmel Tebbutt. This makes a joke of PSA General Secretary John Cahill's claim that 'a vote for Carmel Tebbutt ... is a vote to maintain your rights at work'. Never mind that PSA Rule 3 reads "The Association shall be non-sectarian and shall not take part in or identify itself in any way with party politics". Never mind that Rule 4(a) reads "The funds of the Association shall not be used for the purpose of canvassing for the support of any political party". Never mind that the only party supporting the Commonwealth's IR agenda wasn't fielding a candidate and never mind that the only other candidate with a chance of winning the seat is on the executive of a public sector union (CPSU) and is also solidly opposed to the Commonwealth Government's IR agenda.

    ACTU: Long term IR campaign
    The Commonwealth's IR legislation was passed at the beginning of December 2005. We now move into the next phase of our campaign, targeting Coalition MPs in marginal seats and attempting to get the ALP to improve its IR policy. The ACTU will spend several million dollars on TV and radio advertisements over the next two years. While we have secured the support of our employer in maintaining existing entitlements, we also need an industrial, political and media strategy that is independent of the NSW Government and which doesn't put all our eggs in the 're-elect Labor' basket.

    Gov't makes last minute changes to IR Bill
    The Commonwealth Government was forced to admit changes were needed to its legislation in order to get it past the Senate. Check this article from The Age for more info.

    Video of Burrow's Speech
    Click here to see ACTU President Sharran Burrows' address to the National Day of Action prior to the legislation being passed. Please note that some agencies prohibit viewing streamed video and audio at work. You may need to view the link from home or an Internet cafe.
    Sharan Burrow ACTU President

    Pictures from the National Day of Action
    Check the photos from the National Day of Action against the Commonwealth's IR changes.

    PSA Vice-President Paul Petersen said "If the Coalition gets away with these changes they will gain confidence to continue the attacks. Just look at what the Prime Minister is saying". John Howard says "It's like participating in a race towards an ever-receding finishing line. You have to keep going, not because you think you will ever reach that finishing line - frustratingly you won't - but if you don't keep going the other people in the race … will run past you." However Petersen says "Don't be disheartened. We have overcome great odds before and we will not stop campaigning until we see justice."

    Academics Condemn IR changes
    151 Academics from fields including economics, management, business, law, psychology and industrial relations have attacked the Commonwealth's IR laws. Sydney Uni's Professor McCallum slammed provisions allowing employers to refuse to negotiate with unions even where a majority of workers voted for union representation. Workers have this right in the US, Britain, Europe, Japan and New Zealand. Professor McCallum also said that clauses allowing a new business to agree on wages and conditions with itself before it takes on staff were "absurd". "You can't get married with yourself, you can't make an agreement with yourself," he said. Read more from the Sydney Morning Herald. See also The Age.

    ACTU WorkChoices Fact Sheet
    Read the ACTU's view of the Government's proposed changes to industrial relations. Click on the heading to download the ACTU's fact sheet.

    Workers in IR Advertisements got $13
    While the actors pretending to be happy workers received $5,000 the real workers in the background received just $13 after tax. Cameron Meadows received $13, or two hours' overtime, for appearing in one of the WorkChoices ads. He said he was misled into believing the ads were about health and safety.

    ACTU's new IR Ads
    The ACTU has launched a second round of television advertisements showing the impact the Commonwealth Government's proposed IR changes. Click on the heading to view the ads.

    300 RTA jobs threatened as NSW caves in on Auslink funding
    In October 2005 the NSW government caved in and signed the Commonwealth's AusLink roads and rail program despite the funding being linked to the Commonwealth's industrial relations changes. It directly jeopardises around 300 RTA jobs through a reduction in funds and agreement to adhere to the construction code will undermine workers' conditions and attack their unions. Roads Minister Joe Tripodi said he was forced to sign as NSW would have been $940 million worse off if he had not agreed.

    ACTU loses case on technicality
    The High Court has dismissed the ACTU and ALP's special case questioning the legality of using taxpayer money to fund the Fed Government's $20m industrial relations ad campaign. The ACTU and the Federal Opposition wanted the Liberal party to repay $5 million already used but instead had costs awarded against it. Shadow Attorney-General Nicola Roxon said "The court decided that it was ‘not appropriate’ to answer the central question – whether parliament has authorised the expenditure of this money. Instead, the case seems to have been decided on the technical question of release." "It is still not clear if this expenditure was properly authorised." Full reasons for the Court's decision will be published by the end of October.

    IR changes suffer from 'short termism'
    The proponents of change to Commonwealth industrial relations say it will result in increased productivity, more flexibility and improved competitiveness. In fact the changes are amongst the worst examples of "short termism" witnessed in this country for many years. The business community want complete managerial prerogative and control over the lives of working people. They have abandoned any pretence to a sophisticated high skill, high wage agenda, argues Doug Cameron.

    Costello: 'Abolish all unfair dismissal laws'
    The Treasurer has indicated that the Commonwealth's proposed changes to IR laws are not the limit of their ambitions. Peter Costello says that if the abolition of unfair dismissal laws for employers of less than 100 people 'work' then he would extend it to all employers.

    Pictures from 1st SkyChannel meetings and rallies
    An estimated 100,000 people attended meetings across NSW to hear how the Coalition's IR changes will affect work, wages and family time. Protests were held in many regional centres and in Sydney people marched down the 'hungry mile' to the Harbour Bridge. View the pictures from 1 July.

    Carr pledges to retain state IR system

    The Premier flanked by members of the firefighting and nursing unions
    The Herald reports that the NSW Premier has pledged to retain a NSW industrial relations system if the Federal Government succeeds in using the Corporations power of the Constitution to take greater control over state industrial relations. The announcement was made at a meeting of unions representing police, nurses, teachers, fire fighters and ambulance officers. The irony is that the announcement is more likely to benefit most PSA members. This is because the Corporations power will not give the Commonwealth control of most of the estimated 2/3rds of our members who work in public service departments (most departments are not 'constitutinal corporations'. The Premier's announcement is a welcome turn around from his silence after public reports that he intended to cede IR powers to the Commonwealth.

    The State government will not be able to protect the remainder of our membership. Most statutory authorities and state owned corporations are likely to be consitutional coporations and a number of public service departments may also be constitutional corporations if they have a 'significant' trading function (the trading activity doesn't need to be the dominant function).

    WA Gov't joins IR fight
    The WA Government allowed public servants to attend IR meetings in paid time and has launched its own advertisements and website.

    Greg Combet
    ACTU Secretary
    Andrews breaches his own Act
    ACTU Secretary Greg Combet says that if the Minister for Industrial Relations is pressuring staff in his own department to sign individual contracts then we can't trust that his changes to industrial laws are in the interests of working people and their families. Employees in the Department of Employment and Workplace Relations, were given a document which had a tick in a box next to a statement saying, 'I acknowledge my commitment to sign an Australian workplace agreement'. Later it had to be withdrawn because the document breaches Kevin Andrews' own Workplace Relations Act.

    Combet said "Now, what a hypocrite this fellow is. To be criticising the ACTU ads, when at the same time, Kevin Andrews has got people under pressure to sign individual contracts in his own department, and indeed, giving some of those staff a piece of paper, pre-ticked to indicate their preparedness to enter into an individual contract." Read the full story.

    ALP say no contracts for employers using AWAs - Bob says yes
    A resolution of 2005 ALP state conference called on the NSW Goverment to only grant projects to contractors that exclude the use of AWAs. The resolution calls for the procurement policy to cover all government departments, state-owned corporations (SOCs) statutory authorities, and government trading enterprises plus public private partnerships (PPPs). On 29 June Bob Carr ruled out adhering to the resolution. A similar resolution came out of 2003 Conference and has not been implemented by the NSW Government. In October 2005 an inquiry was held into the use of private operators in public projects. The inquiry received little publicity and only a handfull of submissions.

    ACTU Advertisement
    Unions launch $8 million media campaign
    This is a link to the ACTU's first TV advertisements in its $8 million media campaign. You can read the scripts or view the adds at the ACTU's website.

    Beazley: I'll roll back IR changes
    Opposition leader Kim Beazley says Labor will 'roll back' changes being made by the Coalition. He says labor will re-establish the 20 allowable matters in awards (ie not unlimited matters) and would re-establish the role of the Australian Industrial Relations Commission in setting minimum award wages and settling disputes. He has ruled out removing AWAs. In essence it means Labor now supports most of the 1996 Workplace relations Act changes introduced by the Coalition.

    Unis in frontline of Government offensive
    PSA/CPSU members are already in the Commonwealth system and their treatment shows what the Government has in mind for other workers. On 29 April, Workplace Relations Minister Kevin Andrews announced that, effective immediately, Universities must ensure the following if they want to receive Commonwealth funds:
    • all new employees to be offered AWAs (individual contracts) and by 31 August 2006 all other employees must be offered an AWA.
    • every new certified agreement must contain a clause allowing AWAs to operate to the exclusion of the certified agreement. This is a trick that has been used by other Commonwealth employers to overcome the 'first in time' principle. Under this principle, if a certified agreement is made before an AWA is signed then it prevails over the AWA to the extent that there is any inconsistency.
    • unions to be bypassed in any consultation unless the affected member requests union representation.
    • certified agreements and policies not limit the number or proportion of staff that are fixed term, part time or casual, nor limit in any way university decisions about course offerings.
    This is the Commonwealth Government's second attempt to force Universities to adopt anti-worker arrangements. Its first attempt was rebuffed after CPSU and NTEU members (and Vice Chancellors) took on the Commonwealth Government.

    What are the Commonwealth's proposed changes?
    The Commonwealth Government intends to:
    * Shift employees from the state industrial system to the inferior Commonwealth system
    * Increase the number of workers on individual contracts
    * Hand the Industrial Relations Commission's minimum wage setting role to a new 'Fair Pay Commission' that will not receive input from unions.
    * Make it easier to dismiss workers by exempting any employer with less than 100 employees from the unfair dismissal laws
    * Restrict the capacity of union officials to enter workplaces
    * Reduce even further the number of allowable matters in awards
    * Reduce or eliminate weekend penalty rates.

    "The commonwealth's proposal for a unitary system is not about simplification of industrial relations. It is about removing legal protections and reducing the ability of workers to collectively represent themselves" says Paul Petersen, PSA Vice-President. "This is an attack on working people and their families.

    "There are 3 phases to our campaign:
    1) Educating and mobilising members between now and the passing of legislation (There are six bills that will mostly be dealt with in August)
    2) Members and their unions learning how to operate in the new environment
    3) Pre-Federal election education (and state).

    "The new environment will be challenging but not terminal for the PSA. It presents us with important opportunities. We need to go beyond the defensive measure of shifting members from payroll deduction to direct debit. Our union has yet to fully embrace the 'organising' culture. It is clear that the 'service model' of unionism will fail in the new environment. Any retreat towards service unionism will exacerbate member passivity and dependence. Members and delegates who have a genuine stake in running their union will be its best defenders.

    "ACTU polling indicates that a significant minority of union members voted for the Coalition yet a majority of people, including non-members, reconise the importance of unions in working for just pay and conditions. Education is critical. Your help in educating other people in and outside the workplace is needed. The PSA will assist by producing education materials."

    The Progressive PSA will be publishing updates and other information on an ongoing basis.

    If you wish to make a comment about the campaign please feel free to contact us at: Leave your number and we will call you back.

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