Welcome to the HR Nicholls Society

Australia is a country in which political life is carried out through debate and argument.
The Society's ambition is to bring about, through the processes of debate and
argument, urgently needed reform in Australia's industrial relations attitudes, law and
institutions, and thus to transform our labour market into a job-creating and wealth-
generating engine of growth and prosperity.
Our aims are:

• To promote discussion about the operation of industrial relations in Australia,

including the system of determining wages and other conditions of employment.

• To support the reform of Australian industrial relations with the aim of promoting
the rule of law in respect of employers and employee organisations alike, the right of
individuals to freely contract for the supply and engagement of their labour by mutual
agreement, and the necessity for labour relations to be conducted in such a way as to
promote economic development in Australia.

PRESS RELEASE:

Is Labor adopting the Greens' authoritarian employment

policies?
1 September 2010

Adam Bisits, President of the HR Nicholls Society

The HR Nicholls Society holds significant concerns about the newly formed alliance
between Labor and the Greens:
'We managed to have an election without any focus on the IR policy of either the
Greens or Labor' said Adam Bisits, President of the Society.
'It is clear that Labor has brought the Greens 'into the tent' and as such, may be taking
on board the 'brown cardigan' IR policies of the Greens.'
The Society notes that the hard left faction of the union movement donated $125 k to
the Greens' Adam Bandt.
'The Greens' IR policies are the wish list of enforcers and dictators. Dean Mighell will be
trying to achieve the policy wins he couldn't get out of the last Prime Minister'.
The Society notes the Greens' retrograde policies:

• forcing employees who don't wish to be in unions pay compulsory 'bargaining fees',
a cost of more than $800.

• stripping the right of employees to make collective agreements with their

employer; instead they believe in union led bargaining and deals signed between unions
and companies.

• removing the democratic rights of employees to have secret ballots before strikes.

• ensuring a return to corruption, violence and thuggery in the construction industry,

with abolition of the ABCC.

• allowing unions to enter workplaces whenever and however they please,

interrupting workflow and speaking to people who do not wish to speak with them.

• capping earnings of employees who fulfil their aspirations in management

positions.
 'The Greens believe in the old story of capital versus labor; that all employers are
bullies and all employees are victims' said Mr Bisits.
'But in this case the world has moved forward. I don't think many people who voted
Green this election were aware their workplace policies are so embarrassingly daggy
and out of date'.
The Society calls on the Prime Minister to provide urgent clarification of whether the
Greens' IR policies have been adopted by Labor.

Fair work isn't working too well

8 July 2010

Grace Collier
The new one-stop shop industrial relations authority is a bureaucratic minefield.
If I hear the word fair one more time, I may suffer a brain fever. A fair system is what
we were promised by Julia Gillard when she redesigned our workplace laws.
Indeed, the legislation is called the Fair Work Act 2010. But what is fair, who
determines what is fair and to whom does fairness apply?
Does our system value fairness towards those convicted of producing and possessing
child pornography above fairness towards their employer and the other employees?
Consider the latest decree from Fair Work Australia; food manufacturer Uncle Toby's
has been ordered to pay 10 days' pay as compensation to its former employee Steve, a
convicted child pornographer who was "unfairly dismissed" after his employer found out
about his convictions.
In March, two union officials visited the company, advising they had received
complaints about Steve, a casual employee of seven years, "harassing and stalking
women in the workplace". Saying "the employees are not prepared to come forward
because they are fearful", the union said: "You can't let him back on site." Steve was a
listed sexual offender with work restrictions and reporting obligations to the police.
Uncle Toby's workforce is one-third female.
In April, the local paper reported Steve had been convicted of eight offences, including
harassment by post, stalking and making, producing and possessing child pornography.
No shifts were offered to Steve after this time. But Fair Work Australia found that for
Steve, Uncle Toby's was a "procedural fairness-free zone". Even though there had been
no contact with Steve since the convictions, the company was found to have dismissed
him because his security access card was cancelled in June.
Fair Work Australia found that although the company had a valid reason for terminating
Steve's employment, the process wasn't fair. The company was told it should have gone
through a proper disciplinary process. It was also suggested the company could have
suspended Steve until the outcome of any appeals Steve may have lodged against the
convictions was known.
Uncle Toby's was ordered to pay 10 days' wages as compensation. Steve may have
trouble spending much of it, because he is in jail.
I wonder if Uncle Toby's and its staff feel our system is fair.
"Big government industrial relations bureaucracy" is how our Prime Minister described
the Workplace Ombudsman in 2007. The ombudsman is now part of Fair Work
Australia. The office functions as the industrial police, mostly checking that employers
are paying workers in accordance with their award and recovering back pay when they
are not. The Howard government established the ombudsman in 2006 and since that
time, the office has gone from strength to strength.
 Since inception, the ombudsman has conducted 83,000 investigations, recovered $107
million in back pay for employees and dished out nearly $5.5 million in fines to
employers. For business owners, not complying with the awards is now very expensive.
An ombudsman spokesman says more than 98 per cent of investigations are resolved
without going to court, because the employer pays the amount the ombudsman says is
owed to employees. Most employers will pretty much pay anything to make the matter
go away. So is this fair or not? Ordinarily I would say let people have what they are
entitled to. If only it were that simple.
The problem is sometimes employers find it difficult to determine what their legal
obligations are with regard to paying staff. Sometimes workers do not neatly fit into an
award's coverage. There can be two or more awards that could apply, or there could be
doubt that any award applies.
In this instance, Fair Work Australia refuses to provide definite advice . It is up to the
employer to guess, but if they get it wrong, look out. Unlike Fair Work Australia, the
ombudsman is happy to form definite opinions about which award should be chosen and
to collect back pay owed as a result of a mistake.
Understandably, employers feel this is unfair. If the ombudsman can form an opinion to
prosecute, why can't this opinion be given up-front so the employer can avoid the
mistake in the first place? After all, the ombudsman is part of Fair Work Australia, the
one-stop shop we were promised by the government.
Fairness is defined in the dictionary as reasonable, unbiased and impartial. I'm just not
feeling the fairness of our new system.

Giudice Must Answer Questions

23 June 2010

Des Moore, Member, HR Nicholls Board

An attempt by the Federal Government to allow Fair Work Australia head Mr Geoffrey
Giudice to avoid questioning at Estimates hearings has been defeated in the Senate,
with Senators Steve Fielding and Nick Xenophon voting with the Coalition.
Workplace Relations Minister Julia Gillard and the Industrial Relations Society of
Australia have both publicly supported Giudice's refusal to answer questions, but the
Opposition and the HR Nicholls Society have opposed that.
Labor chair of the Senate Education, Employment and Workplace Relations Committee,
Senator Gavin Marshall, moved that the Senate modify the order made last year
requiring the President to appear every time the committee meets for Estimates on
FWA.
Liberal Senator Mary Jo Fisher, who developed considerable expertise in workplace
relations while working for former Minister Peter Reith, took the matter to the Senate
after the Labor-dominated committee decided to call FWA general manager Lee rather
than Giudice.
Now the Coalition has opposed Marshall's motion (which would have been inspired by
Minister Gillard) and, with support from Senators Fielding and Xenophon, the vote was
34 against and 32 in favour.
Giudice's excuse was that any requirement to respond to questions would have an
"ongoing risk of significant damage to public confidence in the independence and
impartiality of the tribunal".
The well known reality is of course the FWA's lack of independence and understanding
of the operation of the labour market. It remains to be seen how responsive Giudice is
when he appears at the Estimates Committee.

Guidice Should Attend Senate Estimates Committee

 21 June 2010

Adam Bisits, President of the HR Nicholls Society

"The President of Fair Work Australia, Mr Geoffrey Guidice has a duty to appear before a
Senate estimates committee to provide the basis on which decisions by FWA are made",
Adam Bisits, President of the HR Nicholls Society said today when commenting on his
apparent refusal to attend.
The FWA is making important decisions that affect the livelihood of both businesses and
workers and the continued independence of that body requires it to establish public
confidence by being prepared to fully explain the rationale of those decisions. Failure to
do that will inevitably lead to pressure to change its role.
"Experience to date already suggests such a failure in its decision-making", Mr Bisits
said.
The FWA's Annual Wage Review earlier this month failed to give any substantive
justification for the much higher than inflation 4.8 per cent increase in the minimum
wage to $29,640 a week. Para 333 merely asserts that there "is a strong case for a rise
in minimum wages to provide a fair and relevant safety net, protect the relative living
standards of award-reliant employees and assist the low paid to meet their needs".
But the basis of this assertion is not given and no consideration is given to either the
competitive position of employers in difficult economic times or the employability of
those who do not come in these categories. As pointed out in the Society's press
release of 3 June, the decision will make it harder for low skilled workers to obtain jobs.
Nor is there any basis given for the view that "there is a strong case for a percentage
adjustment to all modern award minimum wages" (para 336).
The minimum wage is of critical importance in determining the capacity of businesses to
employ, particularly those who are unskilled and who can't get a job if the minimum is
too high. Although everyone has a capacity to make submissions to FWA (s 289 of the
FWA Act), the FWA does not hear directly from people in categories that will be
adversely affected.
Yet it would not be hard to interview sample potential workers and employers to assess
likely impacts of minimum wage decisions, and it has a power that covers this (ss 290,
291).
The present request to Justice Giudice is to answer questions about estimates that
provide taxpayer funding to FWA for its operations and decision-making. That in itself
should require his attendance but the Senate has further enquiry powers that could be
used to examine the basis of decisions.
The Clerk of the Senate has clearly shown there is no convention that someone like the
President not attend, that there is no comity that he not be called and that he is an
'officer' who like many others is covered by the Senate order that officers explain
expenditure.
The HR Nicholls Society urges the President of Fair Work Australia to attend the Senate,
respond to the scrutiny under which he will be placed and illuminate the workings of his
policy making tribunal.

Minimum Wage Increase Reduces Employment Prospects

for Low Skilled
3 June 2010

HR Nicholls Board
Today's decision by Fair Work Australia is far from fair. The increase in the minimum
wage of 4.8 per cent or $26 per week to $29,640 per annum adds significantly to the
cost of employment and will make it much harder for low skilled workers to obtain jobs.
The decision exposes the enormous unfair gap in Australia's highly regulated
wage/employment "system". Employers are not legally able to offer employment at a
wage lower than $29,640 pa and the only alternative for low skilled workers is to go on
the dole of around $12,000 pa (for a single person excl any rent assistance).
Particularly when there are labour shortages in some areas employers who can show a
capacity to offer additions to employment at a wage lower than the minimum should be
exempt from the onerous minimum wage restriction.
The decision will severely limit the scope for further reducing unemployment at the
bottom end of the wage scale and add to the already increasing level of long term
unemployed. It will also add further to the already difficult position faced by the more
than 700,000 who, although not working, are not classified by the ABS as unemployed
even though they want to work and are available to start within four weeks.
Nor do current arrangements offer social fairness. More than half of low wage earners
are in the top half of household incomes and they are scarcely "needy". Equally, as ABS
data shows that wages provide only a very small proportion of low income households'
incomes, an increase in the minimum wage is of little benefit to those at the bottom of
the social spectrum.
Australia already has the highest minimum wage (relative to the average) in OECD
countries and this further reduces our international competitiveness.