Articles of Interest

Articles of Interest

No. 1

State-based star chambers reined in by High Court of Australia in Kirk v Industrial Relations Commission of NSW

In a landmark judgement with far reaching implications, the High Court of Australia struck a hefty blow for fairness and the rule of law. In a unanimous decision overturning the conviction of an employer by the NSW Industrial Relations Commission in 2006, it has guaranteed that victims of state-based tribunals exceeding their power will now enjoy stronger rights of appeal. As Australia moves towards a national system of workplace health and safety, the decision is very timely.

From the standpoint of common sense and decency, the facts in this case illustrate why the High Court was correct. In 2006 the NSW IRC found Mr Graeme Kirk guilty of failing to provide a safe workplace after a part-time farm manager was killed while moving heavy steel using an all-terrain vehicle in 2001. Mr Kirk argued in his submission that he had no farming experience and took no part in running the farm due to his ill health. Among the facts not contested were that the farm manager hitched the steek vehicle incorrectly and “cut the corner of the read”.

The High Court quashed fines totaling $121,000 and concluded that Mr Kirk had been “treated very unjustly and in a manner” causing “much harm” and that the prosecution was absurd.

The NSW laws, the most punitive in Australia, impose an absolute duty of care on employers to provide a safe workplace.

I mentioned above the pending new national workplace health and safety laws; unlike state laws, which are based around the employer-employee relationship, the draft federal laws focus on who has “control” of a business or undertaking when an accident occurs.

Beyond the issue of productivity, the High Court decision is likely to curb the power of “privative clauses”, which restrict appeals to the mainstream courts, from thousands of state-based bodies.

For more information on this topic or any other please contact Kenneth J. Law

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No. 2

Deliberately Dishonest Employee’s Dismissal Ruled Inevitable but Unreasonable by Fair Work Australia in G. Bermingham v Kings Transport and Logistics

A deliberately dishonest manager sacked after colluding with his colleagues to defraud his employer has had the manner of his dismissal ruled unreasonable by Fair Work Australia. In the latest decision to concern employers, the tribunal found that the employee’s admission that he had taken money from his employer warranted his termination. The tribunal found the applicant and two other work colleagues misappropriated funds many times over a number of months. It said the applicants actions were “deliberately dishonest” and he had conducted himself in a manner fundamentally inconsistent with the basic expectations of an employee”.

But while the tribunal found the reason for the sacking was valid, and that it was not harsh nor unjust; it ruled it was unreasonable because of the way the company had investigated the allegations. It said two other employees involved in the conduct were only warned, and one was subsequently promoted.

FWA stated that “the employer has demonstrated an entirely inconsistent approach to the employees involved in this behaviour”. It could only be described as managerial incompetence.

FWA went on to say that “while there was a valid reason for the dismissal, its existence did not establish that his dismissal was treated fairly in the context of a fair go all round.” The decision was heavily reliant on limited information from other employees (also involved in the misappropriation) of the employer and was made without a comprehensive investigation of what occurred.

FWA further stated “the termination was inevitable but the manner in which it occurred was unreasonable” and “it was not appropriate to reinstate the employee, as he had destroyed the trust required for any employment relationship”.

For more information on this topic or any other please contact Kenneth J. Law

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No. 3

Parental Leave

The Coalition has launched a $2.7 billion tax on big companies to fund a universal paid parental leave scheme for all Australian, including public servants. The Coalition has also vowed to scrap Labor’s $150,000 a-year income limit on the $5185 Baby Bonus. There is substantial opposition to the scheme from the nations major business lobby groups and the Australian Council of Trade Unions (ACTU) on behalf of its member unions.

The Governments proposed paid parental scheme was due to commence on 1 January 2011.

The differences in these schemes are as follows:

RUDD’S PLAN:

  • $260 million a-year scheme funded from the Budget
  • Federal minimum award wage of about $544 a week for 18 weeks, but will be taxed
  • Means-tested at $150,000 on income of primary carer and does not take into account the other parent’s income
  • Primary carer only needs to have worked one day a week over 10 of the previous 13 months to qualify, but loses the baby Bonus
  • Stay-at-home mothers continue to receive the Baby Bonus of $5185 (all up, $10,000 in government assistance in the first year after baby born)
  • Starts 1 January 2011.

ABBOTT’S PLAN:

  • 26 weeks of universal paid parental leave at an annual income of up to $150,000 (that is, six months at full replacement pay to a maximum payment of $75,000)
  • To be funded by $2.7 billion fund raised through a 1.7 per cent levy on company tax
  • Tax to be paid by larger businesses on any taxable income over $5 million a year (3200 companies nationally)
  • Baby Bonus will be rolled in to supplement the funding
  • Offsets for businesses already paying maternity leave
  • Baby Bonus continues for stay-home mothers, with means test removed.

HOW WE RATE GLOBALLY ON MATERNITY PAY ENTITLEMENTS:

AUSTRALIA – No maternity pay

BRITAIN – 90% of income for 6 weeks with no cap, plus 33 weeks on a low flat rate

CANADA – 55% of income for 15weeks, capped

IRELAND – 80% of income for 26 weeks, capped

JAPAN – 60% of income for 14 weeks, payment reduced if mother receives a private benefit

NETHERLANDS – 100% of income for 16 weeks

GERMANY – 100% of pay for 14 weeks, flat rate for two years

SWEDEN – 80% of income for 390 days, capped, plus 90 additional days on flat rate benefit

UNITED STATES – No maternity pay.

For more information on “Parental Leave” please contact Kenneth J. Law

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No. 4

Absenteeism and Presenteeism

Absenteeism has long been a thorn in the side of employers, but a new workplace scourge is threatening to be an even greater problem – presenteeism.

“Absenteeism is where people don’t turn up for work or they have a sick day and take it off,” says psychiatrist, researcher and University of Queensland Professor Harvey Whiteford.

“Presenteeism is when they feel obligated to turn up for work or they have run out of sick leave or they are highly driven and feel guilty for not going to work. What you see with presenteeism is a decline in the person’s work performance. The quality of the work product declines, there’s mistakes in it and it takes them longer to do it.

Medibank Private estimates presenteeism cost Australian employers more than $17 billion a year.

Last year was pretty intensive and it was clear that stress levels in the workplace climbed.

Redundancies, organisational changes, concern over job stability and increasing work loads meant that employees were struggling to cope.

But those who continue to turn up for work, even when they are unwell, are probably costing their employers, much more in lost productivity.

Symptoms such as fatigue, impaired attention, decreased concentration and poor memory can severely affect the performance of employees. Indecisiveness, physical ailments, weight gain or loss, irritability and insomnia are also symptoms of depression and anxiety which can severely hamper a person’s ability to function at work.

Extracts from the Courier Mail 27-28 March 2010.
For more information on “presenteeism and absenteeism” please contact Kenneth J. Law

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No 5. 7 May 2010

Sexual Harassment and Bullying in the Workplace – How far should an employer go?

An employee approaches their employer and says that they have been sexually harassed or bullied in the workplace. They also tell their employer that the don’t want the matter to go beyond this, only that the employee “wanted to know”. How far should an employer go with this complaint?

Is it the duty of the employer to act against the wishes of the employee and take the complaint further? Or, should the employer respect the wishes of their employee and leave it at that? This is a question discussed in a recent case in the New South wales Industrial Relations Commission.

In AWU NSW (on behalf of Grahovac) v BlueScope Steel [2009] NSWIRC 86 an employee was dismissed for sexual harassment after being at the centre of allegations made by a fellow employee.

The employee, a pump hose attendant, was alleged to have hugged and kissed a fellow employee on the neck and was dismissed after an investigation found that the acts were in serious breach of company policy.

The key issue that arose, was that after telling her supervisor of the sexual harassment, the claimant expressed the wish that the information be kept private and that he not pursue any sort of inquiry outside of their discussion. Despite this, the manager took the information to a senior authority that ultimately resulted in the employee being dismissed.

So the dilemma arises, does the duty of the employer lie with satisfying the wish of the employee to keep the matter quiet? Or does the greater duty lie with the overall welfare of the company and their employees. Further, should the interests of the employee even be considered? In this instance, the court held that the employer was correct in taking the matter further stating:

“Employers must act to ensure a safe workplace – free from intimidation and harassment. A failure to do so might well be held to be in breach of the Occupational Health and Safety Act for which there are substantial penalties.”

With sexual harassment claims on the rise and employee rights growing in importance, the question remains, how far should an employer go? The answer will always depend on the facts, and issue of degree of seriousness will need to be considered and weighed.

The message from this decision is that no complaint should be taken lightly, even if the employee does not want you to do anything about it. We recommend your workplace policies should mention this so your employees understand that sometimes it may not be possible to”do nothing” with their complaint.

If you have a policy that says you strive for a workplace free from sexual harassment or bullying, then this may have the added effect of placing an employer in a position where the duty to act is even greater.

Any questions on this article please email Kenneth J. Law.

Footnote: IRSQ – August 2008 – The IR Advocate

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No. 6 – 10 June 2010

Think about displaying ink – Tattoo’s

The increasing popularity of body art is providing challenges for employers in every industry and profession.

A recent US poll reported that 36% of 18-25-year-olds and 40% of 26-40-year-olds have at least one tattoo.

Australia has no recent research on the prevalence of body art but the figures are likely to be similar to those in the US.

The National Drug Strategy household survey in 1998 found about 10% of the total population in Australia had tattoos and that was more than 10 years ago.

Body art has gone mainstream. Some employers, particularly in traditionally creative fields, encourage employee display of body art as a form of expression, but many others worry that their employees’ visible body piercings and tattoos may be off-putting or even offensive to customers, investors and the public at large.

One recruitment company says that legal, accounting and professional services industries are sensitive to tattoos and piercings. Even blue-collar industries may want workers to cover them up.

Many employers have responded by implementing dress and grooming policies seeking to limit or prohibit employees’ open display of tattoos and piercings while at work.

Footnote: Courier Mail 15-16 May 2010

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No. 7 – 18 October 2010

IMPLEMENTING THE PAID PARENTAL LEAVE SCHEME

Understanding how the Paid Parental Leave Scheme (PPL) interacts with employer-provided paid parental leave and the unpaid parental leave requirements of the National Employment Standards (NES), will allow employers to develop standardised policies which will ensure equity and consistency for all staff from 1 January 2011.

The scheme funded by the Australian government, will allow Employers to provide 18 weeks paid parental leave to mothers and adoptive parents.

ELIGIBILITY

In order to be eligible, parents must;

  • Give birth or adopt a child on or after 1 January 2011
  • Meet the PPL work test (even for casual or part-time workers)
  • Meet an income test and residency requirements.

INTERACTION WITH EXISTING ARRANGEMENTS

Eligible employees will receive the PPL in conjunction with employer-provided paid and unpaid parental leave. This means that any existing parental leave arrangements will remain the same and PPL entitlements will apply in addition to existing entitlements.

The PPL can be received before, during or after employer-provided leave but must be received in a continuous 18 week block within 12 months of the birth or adoption of the child.

The PPL pay rate will be in accordance with the National Minimum Wage, which is currently $543.78 per week before tax.

LEAVE ENTITLEMENTS

PPL does not give eligible employees actual leave entitlements (these are provided under the NES) but rather provides payment during such periods.

Employees will need to arrange taking leave with their employer. Employees will also need to consider whether they receive employer-provided paid parental leave and PPL simultaneously or consecutively, as some arrangements will attract higher tax liabilities.

IMPLEMENTATION PHASE

Employers should be aware of their obligations surrounding the delivery, taxing and record keeping of PPL scheme payments.

Employer obligations will be phased-in over six months. During this transition period, payments will come directly from the  Family Assistance Office (FAO) to eligible parents. Employers will have the option to pay the entitlement from the date of commencement 1 January 2011. The FAO will notify the employer and relevant employee if the employer is required to pay the employee paid parental leave. In other cases, the FAO will make a direct payment to the parents.

For more information on this subject, please contact Kenneth J Law.

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NO. 8 – 28 June 2011

Superannuation

The Australian Taxation Office is looking at implementing a package called SuperStream which is designed to improve the administration side of super for employers. The package will come in as of 1 July 2011, idea of the package is to improve the productivity of the super system making the system easier to use. The ATO is also introducing a simpler approach to lower cost default super product called MySuper, which will be more transparent and simpler product compared to other super products and become available to business from 1 July 2011.

For more information please visit www.ato.gov.au .

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No. 9 – 1 July 2011

Comp Ruling angers bosses*

Courier Mail 25-26 June 2011

Employer groups are outraged by a legal decsion that makes employers responsible for injuries suffered by staff working from home.

Telstra will be made to pay legal and medical costs in a multimillion-dollar ruling that the Administrative Appeals Tribunal after one of its workers, Dale Hargreaves, said she slipped down the stairs twice in two months while working on marketing campaigns from her Brisbane townhouse.

The Queensland Chamber of Commerce and Industry said that would be a bad outcome for everyone concerned. An employer has no capacity whatsoever to determine and influence workplace health and safety arrangements at a person’s home office.

 

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No.10- October 2012

Fair Work Australia Clarifies the Meaning of “Continuous Service”
&
Fair Work Australia Awards Compensation for Childcare Costs

In this article I will be providing commentary on two (2) recent decisions from Fair Work Australia.

NO. 1  – The Meaning of Continuous Service

Fair Work Australia (FWA) has rejected on appeal by WorkPac Pty Ltd and employer groups arguments that workers compensation absences should not count as continuous service towards the six-month qualifying period for protection from unfair dismissal.

A Fair Work Australia Full Bench comprising of Justice Ross, Deputy President Sams and Commissioner Booth on 31 May 2012 delivered its decision in the appeal by a labour hire company WorkPac Pty Ltd with employer peak bodies intervening against a decision of Fair Work Australia Commissioner Macdonald that a period on workers compensation counted toward the six-month qualifying period for protection from unfair dismissal.

The Full Bench ruled that because the injured worker was receiving workers compensation payments “pursuant to a legal obligation upon the employer” the employee [Mr. Bambach] was not taking an unpaid authorized absence and as a result, his employment was continuous for the purpose of calculating the qualifying period.

The Full Bench observed that the word unpaid” presents insurmountable problem for the appellant in this case. The period during which Mr. Bambach’s absence was absent was due to his work related injury and was not “unpaid”..the fact that [workers’ compensation] payments were made pursuant to a legal obligation upon the employer is the critical consideration. The Tribunal concluded that an “absence on workers compensation is not an excluded period with the meaning of the Fair Work Act 2009.

In doing so the Full bench rejected a number of submissions advanced by the appellant and intervening parties including implications such as the calculating of entitlements for superannuation and should the Commissioner’s decision be allowed to stand, employers would be reluctant to continue to employ long-term injured workers and gives employers a significant disincentive to continue to employ workers who are absent from work for extended periods as a result of workplace injuries is inconsistent with the objects of the Act and is not sensible.

The Full Bench also rejected the argument that employers would not be able to assess the capacity and conduct of a new employee if their period of absence counted as continuous service for the purposes of the unfair dismissal qualifying period.

The Full Bench said this would depend on the length of the absence and whether the employee could return on modified duties until fully fit.

Employee absences while on jury service or community service activities counted towards the minimum employment period, the bench ruled, yet both do not allow the employer to assess the capacity and conduct of the employee.

Contrary to the appellant’s submission, the fact that WorkPac chose to insure against such liabilities, and hence the payments were actually made by WorkPac’s insurer, is irrelevant.

The Construction Forestry Mining Engineering Union, who ran the original case and defended the appeal for the employee, said the union welcomed this good common sense decision. They said the decision is important because the employers said there has been confusion and that some employers had not recognized this right in the past.

This should now mean that workers on workers compensation have this benefit flow naturally to them.

The meaning of the term “continuous service” is critical in determining entitlements when an employee is on a wide range of different types of leave and when absent from work in a wide range of different circumstances. These are issues of relevance to all employers and all employees.

*Bambach v WorkPac Pty Ltd [2012] FWA 670 (9 March 2012),  &
WorkPac Pty Ltd v M Bamback [2012] FWAFB 3206 (31 Mau 2012)

NO. 2 – Compensation for Childcare Costs Whilst Looking for Work

In the second matter of interest Fair Work Australia has awarded a woman unfairly sacked from a Victorian gym compensation for her childcare costs while looking for a new job.

Fair Work Australian Deputy President G. Smith found childcare costs incurred while looking for a new job were “relevant” in determining compensation orders.

The employer Nitro Gym in Kilsyth, Victoria, terminated the employment of a part-time club manager Ms. Grace Wong after 10 months work in a manner the Deputy President found to be unfair and not for valid reason.

But it was her successful claim for child care costs while she sought a new job that opened up the avenue for compensation.

In this decision Deputy President Smith stated,

“In the circumstances I have decided to include in an order payment of compensation of the amount actually lost by Ms Wong during her period of unemployment which totals $6,522.14. I have reflected upon s.392(2)(g) of the Fair Work Act but have reached the conclusion that I will not take into account what is said to be an underpayment of annual leave entitlement. I am prepared to take into account some of the additional child care costs. This is a cost incurred directly as a result of the termination of employment.

Ms Wong has estimated the cost over six months to equal $5,976.62. Whilst I understand that the loss of employment which suited her family commitments is important, it is difficult to assess the personal decisions which will be taken and which may impact upon child care costs. It appears to me that working patterns matters are also relevant. Of course this may, in some circumstances, be a two edged sword. In the same way as it may be relevant to consider circumstances where an employee succeeds in obtaining further employment with lesser or greater security and conditions. In these circumstances there needs to be an exercise in judgement to ensure fairness as between the employer and the employee. I shall add to the compensation an amount of child care costs equal to the period of unemployment which is $1,379.22. I do not propose to discount the total amount of compensation for any other reason.

Ms Grace Wong v Nytro Pty Ltd trading as Nitro Gym [2012] FWA 1927

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No 11 – October 2012

FATHERS AND PARTNERS ARE NOW ELIGIBLE TO APPLY FOR TWO WEEKS’ PAID PARENTAL LEAVE.


Fathers are now eligible to apply for two weeks’ paid parental leave, under a Gillard government scheme that kicks in on January 1, and aims to give dads more time off to care for their new baby.
All fathers, as well as same-sex partners, will be eligible to receive the new payments, which will be at the rate of the national minimum wage, $606 before tax.
The new leave scheme also meant fathers now had the right to ask for time off work when their new baby was born, without having to justify the request or fear its rejection.
Here is some more info about the scheme.

Who is eligible for the scheme?
You may be eligible if you are the:
•    biological father of the child
•    partner of the birth mother
•    adopting parent
•    partner of the adopting parent
•    parent in a surrogacy arrangement
•    partner of a parent in a surrogacy arrangement, or
•    same-sex partner of the birth mother, biological father or the adopting parent.

And, you:
•    provide care for a child born or adopted from 1 January 2013
•    are an Australian resident
•    meet the work test, which requires you to have worked for:
– at least 10 of the 13 months before the date your Dad and Partner Pay period starts, and
– at least 330 hours in that 10 month period (just over a day a week), with no more than an eight week gap between two consecutive working days
•    had an individual adjusted taxable income of $150 000 or less in the financial year either before the date of your claim or the date your Dad and Partner Pay period starts (whichever is earlier), and
•    are on unpaid leave or not working during your Dad and Partner Pay period.
Your Dad and Partner Pay period is the time that you take off work and get Dad and Partner Pay for (up to two weeks). Dad and Partner

Pay can’t be transferred to another person.

If you’re a birth mother, you are not eligible for Dad and Partner Pay but you may be eligible for Parental Leave Pay or Baby Bonus. The birth mother does not need to receive Parental Leave Pay for the father or partner to get Dad and Partner Pay.

What about unpaid leave?
Dad and Partner Pay doesn’t change your workplace leave entitlements.
If you’ve worked continuously for your employer for 12 months or more, you may be entitled to 12 months unpaid parental leave under the National Employment Standards in the Fair Work Act 2009. You may also be able to extend that time by up to 12 months if your employer agrees.

If you’re part of a couple and you’re both entitled to unpaid parental leave, there are some other minimum entitlements you should be aware of. For instance, you and your partner are able to take three weeks of your unpaid leave at the same time either immediately after the birth or adoption or, if your employer agrees, at any time in the first six weeks after your child’s birth or adoption. Also, you’re entitled to 24 months unpaid parental leave between the two of you.

Visit Fairwork – Leave on the Ombudsman website to learn more about taking unpaid parental leave and talk to your employer.
If you’ve worked for your employer for less than 12 months, consider speaking with them to negotiate unpaid leave.
When can you receive the payment?
You can choose when your Dad and Partner Pay period will start. It can start from the day your child is born or adopted, or it can start later. If you’d like to receive the full two weeks pay, your start date needs to be within 50 weeks of your child’s birth or adoption.

How is it paid?
The Department of Human Services will pay you after your child is born or adopted and your claim is finalised.
If your claim is finalised before your Dad and Partner Pay period starts, they will pay you on the first day of the period. You should be able to access the money in two business days.

The government pays the money into your bank account in one instalment. Your employer will not play a role in providing Dad and Partner Pay.

Will dad and partner pay affect other payments?
Dad and Partner Pay is taxable income and may affect other family assistance.
Your family can still be eligible for Family Tax Benefit Part A and Part B if you get Dad and Partner Pay, but the government will include Dad and Partner Pay in your family assistance income tests.
They don’t treat Dad and Partner Pay as income for Parenting Payment or other income support payments, such as Disability Support Pension or Newstart Allowance.

If eligible, your family can receive Baby Bonus or Parental Leave Pay for the same child you receive Dad and Partner Pay for.
As an individual, you may be able to receive both Dad and Partner Pay and Parental Leave Pay. For example, this could happen if your partner transfers some of their Parental Leave Pay to you. You can only receive a maximum of 18 weeks pay under the Paid Parental Leave scheme as an individual. So, you could take two weeks Dad and Partner Pay and any Parental Leave Pay transferred from your partner as long as it isn’t more than 16 weeks.

How to claim dad and partner pay
If you’re already registered for Centrelink’s Online Services, you can log on and choose ‘parent or guardian’ to start your claim. If you’re not registered, you can register before you start your claim.

Alternatively, you can fill out and lodge a paper form. You can print the Claim for Dad and Partner Pay form from the Human Services, pick one up at your nearest DHS Service Centre or call Human Services on 136 150 and ask them to send you one.

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No. 12 – November 2012

Four important changes to unfair dismissal laws: how they impact you

In October, the Workplace Relations Minister Bill Shorten announced that parliament will implement numerous important changes to the Fair Work Act this year, following an independent review of the Act in June 2012. Chief among these changes are those concerning complaints brought about by employees upon termination of their employment. Here is a summary of the four key changes that we believe will impact positively on businesses and workplace relations.

1) Time limits for bringing unfair dismissal and general protections claims will be aligned at 21 days. Currently, employees have 14 days from the date of termination to bring a claim for unfair dismissal, while they have 60 days to apply for a general protections claim. Unlike unfair dismissal applications, which are capped at 26 weeks’ pay (or half of the high income threshold – currently $61,650), compensation for general protections claim is not restricted.

Currently there is some overlap between the two types of claim, as a general protection claim may also be brought against an employer in relation to a dismissal. The difference in time limits has sometimes impacted on an aggrieved employee’s choice as to which claim to pursue. Technically, the difference also allows an employee who fails in an unfair dismissal application to bring another application under general protections, potentially creating confusion and a protracted process.

This loophole will be closed with the proposed changes to the legislation. It will also provide employees with more time to prepare their applications.

2) Unfair dismissal applications will be required to contain more details about the circumstances of the dismissal. Although Mr Shorten said this would not necessitate any legislative amendment, we expect that there will be a change to the FWA application forms and the amount of detail and time required to complete them.

3) Fair Work Australia will have the discretionary power to dismiss unfair dismissal applications where they believe the claim to be vexatious, frivolous or without merit. This power will be utilised, along with the requirement for more details in the application, to weed out baseless claims.

4) Fair Work Australia will be able to order costs against a party that acts unreasonably in a proceeding. While currently this is a ‘no-cost jurisdiction’, these changes will mean that parties will need to act more responsibly and that there is a greater incentive to reach a settlement.

The Minister’s announcement contained a raft of other future changes relating to processes for negotiating and varying awards, enterprise bargaining, and an opt-out clause in enterprise agreements. Another interesting amendment will come in a name change for Fair Work Australia. The review panel has recommended a new title should contain the word ‘Commission’ and reflect its functions more appropriately.

These changes represent more than a third of those recommended in the independent review of the operation of the Fair Work Act, which was finalised in June 2012.

Further changes to the legislation are expected next year as the government implements more recommendations from the independent review panel.

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No. 13 – November 2012

General Protections and Adverse Action

Given the increasing number of claims brought under the general protection provisions, set out in the Fair Work Act, it is beneficial for employers to have a basic understanding of what is meant by ‘general protections’ or ‘adverse action’.

Put simply, the general protection provisions mean that a person may not take adverse action against another person for exercising a workplace right. The two critical terms to understand here are ‘adverse action’ and ‘workplace right.’ Adverse action includes, but is not limited to, dismissal, discriminatory treatment and a refusal to offer employment. ‘Workplace rights’ is an umbrella term that encompasses rights deriving from awards, agreements, legislation and so forth.

In practice these provisions provide very broad protection and potential recourse to employees and employers in a number of situations. Adverse action claims may be brought against an employer where an employee is denied a promotion, or a prospective employee is not offered a job, based on their sex or race or because they are pregnant or because they have joined a union. A different, but not uncommon scenario, includes an employee being dismissed while temporarily absent from work due to illness or injury.

As demonstrated by these examples, there are many different types of adverse action claims. Good workplace policies and procedures will help to ensure both employers and employees understand their rights and responsibilities. They may also help prevent potential adverse action claims, or at least provide evidence of correct process and procedure in the event that an adverse action claim is brought.

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