eBulletin

23 May 2023

WORKCOVER CHANGES ANNOUNCED BY STATE GOVERNMENT

Last week the Victorian Government announced that the WorkCover scheme is fundamentally broken. The Government sites an increasing number of mental health claims. Interestingly, the ABC reports that 34% of mental injury claims come from the public sector and yet the public sector accounts for only 10% of the workforce. Is this a reflection on the government as an employer?

The main changes announced include the removal of burnout and stress as compensable workplace injuries. This will adversely affect many in the AV workplace. AV has freely admitted that post VEOHRC, the toxic workplace is likely to get worse before it gets better. Where does this leave our members?

The many unions affiliated with the Victorian Trades Hall (VTH) (of which the UWU is one) have unanimously condemned this announcement. The Government had intended to exclude bullying, harassment, and related injuries from the scheme. The VTH have lobbied to have some of the exclusions re-included, however burnout and stress remain excluded.

In a workplace that is chronically understaffed as compared to demand and a broken health system, burnout and stress are a natural consequence, rather than an ounce of prevention by staffing appropriately, the Government chooses to ignore the genesis of the problem and instead close their eyes and claim that the problem does not exist.

We are asking all members who have had a WorkCover experience to share it with us via this survey.

FLEXIBLE WORK ARRANGEMENTS – KNOW YOUR RIGHTS!

There are certain categories of employees that have the right to request an FWA (EA clause 23.3 contains the full list). Note, a right to request does not equate to automatic acceptance of a request by the employer.

When requesting an FWA an employee must:

1. Make the request in writing
2. Set out the details of the changes sort, and
3. Set out the reasons for the required change. E.g caring responsibilities, disability, being 55 years or older, or experiencing family violence. Be brief. Do not add any unsolicited information.

If you are 55 years or older, that is enough reason to request an FWA. Please do not add any unsolicited information about your health at this point. It is enough to say I am XX years old and therefore am requesting an FWA. Members are providing unsolicited details that confuse the process and make negotiation difficult.

The Fair Work Act imposes obligations on the employer when considering any request for an FWA. The Fair Work Ombudsman provides the below best practice for the employer

What employers should do with a request?

Employers covered by an award need to discuss the request with their employee first. This is to try to reach an agreement about changes to the employee’s working conditions and take into consideration:

• the needs of the employee
• consequences for the employee if changes in working arrangements aren’t made
• any reasonable business grounds for refusing the employee’s request.

All employers who receive a request need to provide a written response within 21 days. The response has to outline whether the request is approved or refused.

Employers can only refuse a request on reasonable business grounds. If a request is refused, the written response needs to include the reasons for the refusal.

An email stating that a request has been refused with no discussion with the employee does not satisfy AV’s legal obligations.

If you are considering requesting an FWA, talk to the UWU first to receive individual advice about your circumstances.

WORKING ON LONG SERVICE LEAVE

The UWU has received several enquiries from members about whether they can work in paid employment whilst on Long Service Leave (LSL). The short answer is NO! If you are a Victorian fulltime employee and you take LSL it is illegal (yes, there is a law) to take paid employment when on LSL. See below:

In relation to the general prohibition on working during long service leave in the Long Service Leave Act 2018 (Vic), this prohibits employees who are on long service leave from working for hire or reward in relation to the hours during which the employee is taking long service leave. This is an offence that is subject to 12 penalty units (at the time of writing, this would amount to $2,219.04). 

This union has additionally represented an employee who was asked to show cause why their employment should not be terminated because they breach the above condition.

I am part time or on an FWA – is this different?

The following example is provided:

The Victorian Government, gave an example of where the prohibition would not apply in their Guide to the Victorian LSL Act 2018, where they stated that:

 “where an employee has more than one job (for example, two part-time jobs), the situation may differ. If an employee takes long service leave from one of their part-time jobs (Job A), they may continue to work in the other part time job (Job B). This is because the restriction on working while on long service leave only applies in relation to those hours during which the employee is taking long service leave. So while on long service leave from Job A, the employee must not work at Job B during the hours they would normally work at Job A”.

The UWU strongly urges any employee who is thinking of taking up paid employment (with another employer) while on long service leave with their current employer should seek individual advice as the advice may differ depending on their situation.

Our Member Rights Team should be able to assist with these kinds of individual queries as well on 03 8627 6200 or email [email protected].

HSR TRAINING

Did you know that having Union members in the workplace increases health and safety awareness by up to 70%?

Health and safety laws give HSRs significant powers to report and challenge management to ensure work and workplace health and safety.

UWU Member Power Team is offering training sessions in June for HSRs. The course runs for three days and is paid release.

Registration closes 29 May 2023. If you are interested contact Jules on 0422682622.

USING RECORDING DEVICES IN MEETINGS

Members have raised their concerns regarding the use of recording devices without consent.

We advise that if members are called into meetings with no notice – they should state clearly that they cannot attend until their union rep or support person is present. Members should call (03) 92871713 – if they get a voicemail, they should contact (03) 8627 6200 and ask for an official to attend.

Members should not consent to or use a recording device in any meeting which is has been deemed private. Whilst it may not be illegal, confidentiality obligations may be breached. Additionally, it may be used as evidence of a breaking down of trust between the employee and the employer. We, therefore, recommend that comprehensive notes are taken instead. If you must use a recording device, you must clearly identify that you are doing so and seek permission to continue. If the other party does not consent, you may not use the recording device. In this instance cease the conversation and request an industrial support person.

Recording devices do not substitute for adequate representation.

If members find themselves in meetings, members should be clear about what is the reason for the meeting. If the member is happy to proceed then they can do so provided that management does not go off-topic and begins to discuss employment suitability, disciplinary issues, fitness for work etc. If such topics are raised, the member has the right to cease the conversation and state that they wish for union rep to attend.

If workers think that their privacy is being violated, they should contact the union immediately.

TM AND STM SINGLE RESPONDING – BREACH OF THE AVEA2020

The UWU has written to AV on several occasions expressing our concerns surrounding TMs and STMs participating in the Single Responder Trial with no real acknowledgement of the concerns we have raised on behalf of our affected members.

In short, our concerns are

• The lack of single responder training that usually mandated before you can be endorsed to single respond, and
• The lack of adequate vehicles and equipment for this new cohort to utilise while single responding, and
• The use of these staff to cynically stop the click because resourcing in these areas is inadequate leading to poor KPI performance.
• The AVEA2020 makes it truly clear that if required to single respond you must have completed the necessary training and required endorsement.

The UWU maintains that the TM/STM single responder trial adversely affects these Managers workplace safety and prioritises KPIs over staff welfare. This makes a mockery of AV’s constant mantra that their priority is to look after staff and their welfare. This is another example of AV talking the talk but not willing to walk the walk on prioritising staff welfare. Again, KPIs rule over all the land.

KEEP IN TOUCH

As always, if you have any issues, questions or queries, get in touch by leaving a message on 9287 1713 or email [email protected]

And most importantly, please stay safe out there.

In solidarity,

Your AEAV team