The year in review: Industrial Relations in 2015

As the year comes to an end we review the big wins from Hall Payne Lawyers, as well as key legal developments in Industrial Relations in 2015.

Trade unions from across the industrial landscape remained under attack politically in 2015, yet the actions of employers have shown that they’ve never been more essential. This year saw some landmark judicial decisions, with HPL consolidating our reputation in running, and winning, substantial and strategic litigation for unions and their members.

In April, the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11 was heard in the original jurisdiction of the High Court, who handed down a decision in favour of our clients. Acting for five rail unions – the ETU, ASU, AMWU, AFULE and RTBU – the decision was made against the Newman Government’s attempt to exempt Queensland Rail from the federal Fair Work Act 2009. Examining the meaning of corporation in the context of a “trading and financial corporation”, the court unanimously found that the Newman Government’s attack on workers’ rights, conditions and bargaining power was unconstitutional, ruling that the newly created Queensland Rail Transit Authority was a corporation formed within the limits of the Commonwealth, such that the Fair Work Act applied.

This decision was backed up by another big win in the High Court in the case of CFMEU v Director, Fair Work Building Industry Inspectorate [2015] HCA 46. Here the High Court unanimously set aside a Federal Court decision which incorrectly applied criminal precedent to the determination of civil penalties. As a result of this decision, parties in civil proceedings are now able to make joint submissions to the court about the penalties to be imposed.

Throughout the year we repeatedly saw employers trying to limit the role unions play in the workplace, and were proud to work with them to ensure the rights of workers were protected. A series of Right of Entry decisions this year demonstrated the importance in exercising these rights, whether it be under the Fair Work Act or the Work Health and Safety Act, or defending unsubstantiated allegations of trespass. When it came to Right of Entry, decisions handed down consistently confirmed the value in challenging overreach by the Director of the Fair Work Building Industry Inspectorate, with a series of wins asserting the rights of officials to exercise their duties, see:
• CFMEU retain Right of Entry Permit;
• Hall Payne and the Electrical Division of the CEPU win on Entry Permits;
• Right of Entry Granted despite opposition

In discussing right of entry, the decisions of Director of the Fair Work Building Industry Inspectorate v CFMEU [2015] FWC 2158 and, on appeal to the full bench, Director of the Fair Work Building Industry Inspectorate v CFMEU [2015] FWCFB 6035, confirmed that the statutory test for holding a right of entry permit was about personal fitness and as such the record of the Union was not relevant to the Secretary’s permit. In a situation where there is no question on personal fitness, imposing conditions on a permit was found to not be appropriate or useful.

Further successes included ensuring employers adhered to their Enterprise Agreements in the face of an organisational restructure, and that members were reinstated to their positions following unfair dismissal (also, here).

When it came to health at work, we got confirmation on the way that health assessments are to be conducted under the Coal Mining Safety and Health Regulation 2001 (Qld) and with it, a better deal for coal mine workers. HPL also secured countless lucrative settlements compensating our clients for the loss of income, pain and suffering, superannuation losses and medical expenses that resulted from injury at work. In many of these cases, compensation settlements also saw the integration of policies with the intention of reducing injury risk for workers.

These successes put the rights of workers – both currently and into the future – at the core of our work supporting unions. This extended to ensuring enterprise agreements were made and followed in the best interests of union members. Decisions ensuring agreements can be assessed to determine whether they pass the Better Off Over All Test (BOOT), that United Voice members got the back pay they were entitled to, and that actual entitlements matched those provided for in the agreement all demonstrated the role that a well constructed and enforced enterprise agreement can play in improving the day to day lives of individual workers.

When it came to making agreements we fought for the rights of workers to do so without employers seeking to influence the vote, and were successful in obtaining a scope order preventing three enterprise agreements being merged into a single state-wide enterprise agreement, which would have ignored the regional relevance of the separate agreements. In seeking protected action ballots, we had success in obtaining orders despite opposition, receiving an incredibly rare decision ordering costs against the employer from the Commission.

We also worked with unions to empower workers through their involvement in industrial activity. This included seeing an order to stop industrial action quashed, and our IR team working to ensure rights to freedom of association are upheld.

While pursuing permanent reinstatement for a union member and Lodge President of the CFMEU at the Dawson Mine, we supported the Union in an application for an interlocutory order reinstating the member, pending the trial of his case. The court reinstated the member for a range of reasons, citing the social and psychological benefits associated with returning to employment, importantly rejecting an offer by the employer to pay wages as it lacked these benefits.

The above decisions highlight a small range of the protections unions provide to their members, and the work we do to assist them in ensuring better pay and conditions, support and that their rights are enforced. This was all in a year where some very conservative decisions were made by the Commission, emphasising the importance of asserting the rights of unions and their members.

One such decision shifted how we perceive industrial relations operating in this country – an application by Aurizon ([2015] FWCFB 540), where we represented the CEPU, the Queensland Services Union, AFULE and the AMWU. While bargaining for a new agreement the recently privatised Aurizon (formerly Queensland Rail National) sought to terminate the enterprise bargaining agreements that, while having reached their nominal expiration date, continued to apply. The court permitted the termination, departing from earlier interpretations of the Fair Work Act’s objectives. This decision had the effect of ruling that terms and conditions of an agreement do not continue unaltered, in perpetuity.

The Aurizon decision departs with the way collective bargaining has been understood for the last 15 years. Across that time there has generally been the understanding that enterprise bargaining agreements exist in a context where they advance conditions and productivity progressively. The Full Bench held that those gains aren’t guaranteed, and that parties are entitled to go back to scratch and begin again with the modern award as starting point.

The result of an incredibly conservative approach, these two decisions demonstrate the constantly changing dynamic of industrial relations in Australia. It is the sorts of challenges listed above that provide all the more reason to engage with us.

2015 saw some changes from the legislature, too. The Fair Work Amendment Bill 2014 (Cth) came into force late this year, making significant changes to the Fair Work Act 2009 (Cth) in the area of greenfields agreements and protected action ballot orders. These changes give employers the ability to apply to the Fair Work Commission to have their greenfields agreements approved if negotiations remain unsuccessful after a set negotiation period of six months. Amendments to protected action ballot orders mean that unions may be required to demonstrate majority support for bargaining before they will be able to take protected action. As industrial relations remains subject to changes from both the Courts and Parliament, we are committed to working with unions to achieve the very best results for the union and their members, whatever the situation.

Hall Payne Lawyers are experts in the area of Industrial Relations. If you require assistance with any associated IR issue and want to achieve the best possible outcome, we can help. Please contact HPL Principal Luke Tiley (Brisbane), HPL Associate Joseph Kennedy (Sydney) or HPL Associate William Ash (Hobart), all available on 1800 659 114.