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FROM THE DEPUTY'S DESK 
DON'T DRINK IT, EAT IT OR MISTREAT IT
Some of you will have received a visit and/or notification from ACT WorkCover with regards to your obligations under the Dangerous Substances Act 2004.
In the first instance, this has arisen for those members who require licences for dangerous goods but, will eventually relate to all ACT businesses that could or do carry or store dangerous substances. Some members feel that there has been a change in the rules or policy with regard to the above, this is not the case.
The Act relating to these goods and substances has been in place for many years. It is only now after a couple of audits of workshops and businesses that ACT WorkCover has found a general non compliance by industry.
As a result ACT WorkCover has made a conscious decision to audit and improve the level of compliance under the Act. ACT WorkCover is currently developing a number of worksheets that will allow all businesses to improve their understanding of the compliance required and how you can audit yourselves.
Some may see this as invasive, time consuming and possibly draconian in nature but, in reality the control of all these products is required under OH&S guidelines. The motor industry has not been singled out for special treatment, the audit will apply to all businesses from accessory houses right the way through to garden centres. It is in your interest to complete your own audit and become compliant with the Act. Now is probably a good time to revisit your storerooms, cupboards, workshops and clean up.
For a start all identified materials should have the appropriate data sheets and staff should be trained in the required handling and use of same. Staff should know where the sheets are kept and what action should be taken if an incident arises relating to the product.
If you wouldn't DRINK it, EAT it then don't MISTREAT it
ACT WorkCover will provide more information for their working document shortly and will continue to keep industry updated.
EMPLOYMENT RELATIONS UPDATE
2009 Australian Fair Pay Commission Wage Decision for Corporations
The Australian Fair Pay Commission (AFPC) on Wednesday 8 July 2009 announced its fourth and final minimum Wage-Setting Decision (from 2010 this role will be performed by Fair Work Australia (FWA) Minimum Wage Panel). the Commission has decided to leave Australia's Federal Minimum Wage unchanged at $543.78 per week which means that the Australian Pay and Classification Scales will also remain unchanged at their present levels. The Commission has stated that the intention of the decision is to protect jobs and to support a stronger recovery in employment as the economy recovers. This means that rates under all vehicle industry awards and clerical NAPSA for corporations remains as is until the first decision of FWA Minimum Wage Panel expected in mid 2010.
Q & A: Changes to Unfair Dismissal Laws for corporations with less than 100 employees
In last month’s MTA E-News, we covered how the changes to unfair dismissal laws would apply to small business employers. Employers who are unsure as to whether they fall under the definition of a small business employer can refer back to the previous month’s issue for a definition and example. This article will inform employers with over 15 full-time equivalent employees of how to reduce the risk of unfair dismissals.
I have over 15 full-time equivalent employees. Am I still exempt from unfair dismissal laws?
From 1 July 2009, incorporated employers with less than 100 employees are no longer exempt from unfair dismissal laws under the Fair Work Act 2009.
Therefore, it is imperative that employers considering terminating an employee use caution, and are mindful that employees may be eligible to put forward an unfair dismissal claim against the employer. Members are also reminded that no employer is exempt from unlawful dismissal claims and to be mindful of these laws when terminating an employee as well.
Are there any employees that are not eligible to make an unfair dismissal claim?
Yes, the following employees cannot make an eligible unfair dismissal claim against an incorporated employer:
- An employee who has not completed their 6 month qualifying period (i.e. has less than 6 months continuous service with an employer)
- An award-free employee whose remuneration exceeds $108,300 per year is excluded from making application at the Australian Industrial Relations Commission from 1 July, 2009
The conclusion of a fixed term contract or completion of a specified task arrangement is also not seen as a dismissal, and therefore, if this is the reason for the contract terminating, no unfair dismissal can be made.
My employee is not performing up to standard, or has displayed evidence of unsatisfactory conduct. What is the disciplinary procedure?
A common disciplinary procedure involves counselling, a first written warning, a final written warning, and if there is a failure to improve performance or conduct as identified throughout the disciplinary procedure, termination of employment. Following this procedure shows that you have provided the employee with a reasonable opportunity to improve their conduct or performance. It is important that the review periods and dates set are reasonable in relation to the circumstances. The timing of the counselling should occur as soon as possible after the unsatisfactory performance or conduct is apparent, to ensure the events are clear in the mind of those involved.
If I follow this procedure and terminate the employee, can I avoid an unfair dismissal claim?
The development and implementation of a disciplinary policy or procedure will not guarantee protection for an employer against allegations of harsh, unjust or unreasonable dismissal.
It more than likely will assist a company to minimise such allegations and to provide a defence against them when they are made.
If this procedure is developed into a formal written disciplinary policy, it also helps ensure that an impartial, consistent approach will be applied to the counselling and discipline process for all employees. It is also important to ensure that procedural fairness has been used throughout the disciplinary process.
What is procedural fairness? How should procedural fairness be used in the disciplinary process?
Procedural fairness is concerned with ensuring that the procedures used to reach a decision have been conducted fairly and reasonably. In the disciplinary process, this involves:
- Having a meeting with the employee and putting forward the allegations and accusations, as well as the evidence relevant to the matter
- Giving the employee the opportunity to explain and defend himself/herself against the allegations put forward, and considering their reply before making a decision
- Giving the employee the opportunity to have a witness present at the meeting
- Investigating into matters that are in dispute
- Removing bias from the process – this may involve the presence of independent witnesses during the meetings, and ensuring that the investigator has no personal interest in the matter
It should also be noted that every situation is different, and may require the investigator to be flexible during the disciplinary process.
If members would like assistance regarding the disciplinary process or the changes to unfair dismissal laws, you can contact the MTA on 6241 6266.
ERIS subscribers are also reminded that there is a more detailed disciplinary procedure available within the Termination of Employment section.
BACK TO THE FUTURE
Almost daily we hear comments on the shortage of skilled trades people in most industries. The motor industry is no different as I am sure you all know. Comments such as ‘where are we going to get mechanics from’, I can’t get a rego inspector are all too common.
Looking to the future things could be said to be pretty grim but if we take the time to look back we may just see an opportunity for the future. How many members have employees that have a huge amount of industry experience but for one reason or another never ever got that little piece of paper that makes all the difference. In the not too distant future we will be looking for just this type of employee from your shop.
Recognition of Prior Learning (RPL) may just give you and your employee the opportunity you are looking for.
In the near future we will be looking for at least 12 suitable mature aged (25 plus) employees from our industry who would like to formalize all those years of experience into an Australia wide recognized formal qualification.
What will it mean to you as the EMPLOYER ?
Loyalty from your employee, renewed commitment to the job, business growth and that all important Tradesman on the workshop floor.
What will it mean to your EMPLOYEE ?
Recognition of his worth to you, improved self esteem , fulfillment of a life time ambition and a recognized qualification.
You may not have a DeLorean in the shed but now would be a good time to start looking for a Marty McFly
Stay tuned for more BACK TO THE FUTURE
WORKSAFETY UPDATE 
New Legislation 'In Focus': Provision of Amenities in Workplaces
The New Legislation in Focus series will be a regular item in this newsletter. Each month we will focus on a specific aspect of the new legislation - be it from the principal Act, the regulations, or the codes of practice.
This month the focus is on the Work Safety Regulation 2009. In particular, we will take a look at the provisions with regard to Amenities in Part 3, Division 3.1.
The Work Safety Regulation contains a provision that "a person conducting a business or undertaking at a workplace [an employer] commits an offence if the person does not provide adequate amenities for workers while they are at the workplace."
Amenities is defined as "facilities for the welfare or personal hygiene needs of people".
The regulation goes on to provide further detail with respect to the following amenities:
• safety and cleanliness of amenities
• facilities for personal belongings
• facilities for changing clothes
• meal facilities
• combined facilities
• toilet facilities
• washing facilities
• shower facilities
• drinking water
• seating
• working space.
Seating, for example, must be provided if it is reasonable for a worker to perform some tasks while seated. Such seating must be ergonomically sound, provide suitable support and be adeqaute for the type of work.
Toilet facilities must be accessible from the workplace, hygienic, protected from the weather and kept in a clean and hygienic working condition. Failure to comply is a 'strict liability offence' with a maximum penalty of 20 penalty units [$2,000].
For more information go to www.worksafety.act.gov.au and click on New legislation.
BUSINESS FOR SALE
CAR YARD in FYSHWICK
Offered for sale is one of Canberra’s best used car yards.
Located in Newcastle Street for over 20 years specializing in 4x4, performance and unique cars. Fyshwick Auto Sales is a dealer with a difference.
Excellent clientele, good repeat business Canberra’s Herrod dealer, located at one of Fyshwick’s most sort after positions.
Outstanding premises comprising air conditioned showroom, 5 offices and workshop.
Excellent parking and external display area.
Fully negotiated lease with outstanding terms - this business is priced to sell.
A very rare opportunity to purchase this business presents itself due to a genuine reason for selling.
Vendor finance available to approved purchaser.
For more information please contact Rob Montanez on 0411 114 321.
MTAA SUPERANNUATION CONTACT 
Ms Julie French
Industry Fund Financial Planner and Business Development contact
Telephone: 6273 4333
Mobile: 0414 340 149
Email: jfrench@mail.ifs.net.au
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