The Federal Court has recently handed down a decision which found that a 'serious' breach of a redundancy policy by an employer amounted to a breach of the implied term of mutual trust and confidence, even though the relevant policy was expressly excluded from being incorporated into the contract of employment.

Employers will need to carefully review and consider the interaction between their policies and contracts of employment.

Employers should consider taking advice on steps available to minimise risks in this area, including by careful drafting of relevant policy and contractual documents.

Read the full post here.

The High Court has confirmed that employees who act inappropriately but do so under the guise of union activity are not immune from disciplinary investigation and action.

The High Court unanimously overturned the Full Federal Court decision - a decision of great concern amongst employers.

The High Court decision has brought greater clarity to the breadth of the general protections provisions in the Fair Work Act 2009 (Cth) and has implications well beyond the issue of inappropriate workplace behaviour by employees who are union representatives.

The Board of Bendigo Regional Institute of Technical and Further Education v Barclay - [2012] HCA 32

Read the full post here.

In its recent review of the Fair Work Act 2009 (Cth), the Review Panel considered submissions on the operation of the right to request flexible work arrangements. The Act currently provides that certain employees responsible for the care of a child under school age, or a child with a disability who is under 18, can request a change in working arrangements to assist with their carer responsibilities. Employers can only refuse such a request on reasonable business grounds.

The Review Panel recommended that the right to request flexible work arrangements be extended to allow a wider range of people with caring responsibilities access to the provisions (e.g., for elder care). The Review Panel also recommended amendment so that an employer can only refuse a request for flexible work arrangements after the employer has held at least one meeting with the employee to discuss the request.

While the government has not yet indicated whether it will adopt and implement these recommendations, two recent cases provide some guidance on the considerations that are relevant when a decision to refuse a request for flexible work arrangements is made.

These cases demonstrate that employers have scope to refuse requests for flexible work arrangements where the arrangements conflict with the employer's genuine and reasonable operational needs.

Read the full post here.

Freehills recently held an interactive panel discussion about the evolving impact of social media in the workplace.

Facilitated by former ABC Radio presenter Lisa Leong, the panel - comprising Kate Jenkins and Andrew Pollock from Freehills' Employee Relations group, and Robin Tarr and Stan Gallo from KPMG Forensic - answered questions submitted by attendees around the 'real-world' challenges that social media poses for HR professionals and lawyers.

In this update we take a look at the key questions put to the panel, and touch on some of the issues arising from the session, which we see as pivotal in shaping organisational approaches to social media over the coming years.

Read the full post here.

The last two years have seen some significant changes in the diversity reporting requirements. These have largely, however, been limited to companies listed on the Australian Securities Exchange.

The Equal Opportunity for Women in the Workplace Amendment Bill 2012, recently passed in the House of Representatives, will 'raise the bar' for all employers if it becomes law.

The Bill requires all employers of over 100 employees to report against 'gender equality indicators'. Debate on a number of aspects of the Bill is expected in the Senate.

Now is therefore an ideal time for employers to reassess their current reporting processes, and to consider how to measure their organisation's progress against the new gender equality indicators proposed in the Bill.

Read the full post here.

In this article we examine two recent cases where employers have successfully defended bullying and sexual harassment claims made by former employees. The cases highlight a number of interesting factors, including:

• the high degree of media attention that such cases now attract;
• how media coverage can impact on an employee's claim for damages;
• the level of scrutiny which the courts are prepared to subject a complainant's claims to - in particular, the court's willingness to test an employee's allegations that they have suffered psychological or psychiatric injury as a result workplace bullying or harassment; and
• the costs associated with defending such claims and the courts' willingness to order applicants to pay costs, if their claims are spurious.

Read the full post here.

As we approach the third anniversary of the commencement of the Fair Work Act 2009, Fair Work Australia is continuing to make decisions which either clarify or confuse bargaining processes. 

Will your organisation be bargaining this year? Is the business aligned on what it wants to achieve from negotiations? How can you use the legislation to your advantage in negotiations? In this article, we share our top tips for effective bargaining and provide insight on how you can use the legislation to your advantage.

Read the full post here.

The breadth of the primary duty under new harmonised WHS laws means that it more important than ever for businesses to understand their obligations to contractors and develop and implement sound contractor management strategies.

The recent decisions of the High Court of Australia in Biaida Poultry Pty v The Queen and the Supreme Court of Western Australia in Kirwin v The Pilbara Infrastructure Pty Ltd provide valuable guidance to businesses on what is expected to achieve compliance with work health and safety obligations (both pre- and post-harmonisation), particularly when engaging expert contractors.

This article provides an overview of the key principles that can be drawn from each case along with practical tips on what businesses should be doing with respect to contractor management. Choosing the correct contractor management strategy for each situation is important and doing so is likely to result in improved safety, legal and commercial outcomes.

Read the full post here.

Employers managing ill or injured workers are often faced with medical information (including medical certificates or assessments) that is contradictory or insufficient.

Employers do not in all cases have to take this information at face value.

Recent decisions of Fair Work Australia have confirmed the importance of adequate medical information when determining an employee's ongoing employment.

The decisions illustrate that, where employees have been dishonest or have refused to assist in the provision of medical information, employers can legitimately act. However, where medical information does not clearly show that an employee cannot return to work, other action - such as seeking further medical information or accommodating an employee's incapacity - should be considered before termination.

It also heralds a new era in complaint handling by the Victorian Equal Opportunity and Human Rights Commission by giving the powers to investigate discrimination, sexual harassment and victimisation even without a complaint and to issue compliance notices to employers.

These changes may foreshadow the future trend of legislative changes in other states and territories across Australia.

Read the full post here.

This entry was written by Kate Jenkins and Lisa Croxford.

Read the full post here.

Read the full post here.

This entry was written by Kate Jenkins and Lisa Croxford.

At first instance, Commissioner Smith refused to approve the enterprise agreement as he was not satisfied that it contained a dispute resolution term as required by section 186(6) of the Fair Work Act 2009 (Cth) (Act). That section provides that all enterprise agreements must contain a term that requires or allows FWA or another independent person to 'settle disputes' about matters that arise under the agreement, or that relate to the National Employment Standards (NES).

The proposed enterprise agreement contained a dispute resolution procedure which:

• allowed either party to refer the dispute to FWA for conciliation; and
• allowed the parties to agree to have the matter arbitrated by FWA (that is, FWA could not arbitrate unless both parties agreed with that course).

Commissioner Smith decided that:

• FWA must be satisfied that there is a procedure in an enterprise agreements which 'requires or allows' FWA (or another independent person) to 'settle disputes'. In order to do so, either FWA or the independent person must be able to 'direct' or 'appoint' a final result.
• The provisions in the Act in respect of dispute resolution procedures are different to those which existed in the pre-'Work Choices' Workplace Relations Act 1996 (Cth), which had been interpreted as not requiring disputes to be resolved by arbitration as a last resort.
• The enterprise agreement failed to satisfy section 186(6) of the Act because it did not permit a third party to arbitrate if the dispute could not be resolved by the parties.

Appeal

The Full Bench decision concluded that the Act does not require dispute procedures in agreements to provide for arbitration. This is consistent with the long established principle that a dispute settlement provision in an agreement need only contain a procedure for preventing and settling disputes, not one which guaranteed a settlement in each case.

In its decision, the Full Bench relied upon the decision in Ampol Refineries (NSW Pty Ltd and Australian Institute of Marine and Power Engineers (1998) Print P8620 (Ampol). They concluded that if the Legislature had intended to alter the effect of the decision in Ampol, it could have easily made that intention explicit. Importantly, counsel for the Minister for Workplace Relations also appeared and supported the contention that the legislation did not alter the longstanding practice of voluntary arbitration in this area.

The decision makes it clear that a dispute settlement term in an enterprise agreement is not required to mandate arbitration.

Read full posts here and here.

This entry was written by Chris Barton and Andrew Pollock.

In addition to having significant implications for the conduct of prosecutions in New South Wales, the decision is likely to impact the way in which prosecutions are defended under occupational health and safety legislation in all Australian states and territories.

Kirk, the owner of a farm, was prosecuted by the WorkCover Authority of NSW (WorkCover) in relation to the death of one of his company's employees (Palmer), who died while driving an all terrain vehicle on Kirk's farm. Palmer had driven the vehicle directly down a sharp incline rather than using an available and safe private road.

WorkCover investigated the incident and commenced proceedings alleging that both the employing entity and Kirk (as director) had failed to take reasonably practicable steps to ensure the health and safety of Palmer.

At first instance, both the employing entity and Kirk were found guilty of OHS Act breaches. A series of appeals were brought by Kirk against that conviction, and ultimately the matter was referred to the High Court of Australia.

Outcome of the Decision in the High Court

The High Court of Australia quashed the original conviction and the penalties against Kirk and the employing entity. The High Court of Australia also ordered WorkCover to pay Kirk's legal costs.

Some of the key issues raised in the High Court of Australia's decision are:

• Legislative attempts in the OHS Act and Industrial Relations Act 1997 (NSW) to oust the jurisdiction of the Supreme Court of New South Wales were deemed unconstitutional.
• The obligation is on the prosecutor to sufficiently particularise the charges brought against the defendant.
• Procedural errors in this case undermined the validity of the conviction. Allowing the prosecution to call Kirk as a witness constituted a procedural error and it required that Kirk's conviction be quashed.
• While the duty under occupational health and safety (OHS) legislation to 'supervise' is often a vexed issue, Heydon J held that constant surveillance of employees' work activities is an impossible and unfair obligation on directors and officers.

Implications of the Decision

Significant implications of this decision relate to:

• the way in which charges are drafted by WorkCover and other bodies who have the statutory right to prosecute OHS matters in New South Wales;
• the approach which the Industrial Court of New South Wales must now adopt when adjudicating those charges both in terms of their interpretation of the law and also compliance with legal procedure;
• the way in which prosecutors and the courts administer and interpret similar legislation in other states and territories;
• the question of appeal rights arising from a decision of the Industrial Court of New South Wales; and
• an increased awareness of what matters might offer scope for appeal because of jurisdictional error in courts and tribunals, particularly in New South Wales.

Read full post here.

This entry was written by Chris Barton and Andrew Pollock.

The Report contains 17 recommendations covering areas such as remuneration principles and disclosures, shareholder engagement and conflicts of interest. In the main, these recommendations reflect those contained in the draft report, including the draft recommendations to restrict remuneration report disclosures to key management personnel and to simplify the remuneration report, and the draft recommendation that cessation of employment be removed as a taxing point for deferred equity subject to forfeiture.

Two-strikes plus a resolution to 'spill' the board (recommendation 15) - The Productivity Commission has diluted the draft report's two-strikes proposal under which two consecutive 'no' votes equal to or greater than 25% on a company's remuneration report would trigger an automatic re-election of directors. The final recommendation includes an extra hurdle which means that if two consecutive 'no' votes of 25% or more are received, a separate re-election resolution is activated to the effect that all elected directors who signed the directors' report for that year must stand for re-election at an extraordinary general meeting, which must be held within 90 days.

Declarations of 'no vacancy' must be approved by shareholder (recommendation 1) - The Productivity Commission has also retained its draft recommendation that shareholders must approve a declaration of 'no vacancy' on a company board at a general meeting. This recommendation is a response to criticism that boards use the 'no vacancy' rule to exclude outsiders. However, the recommendation has been criticised by business groups who state that boards are best placed to decided how many members are needed to work efficiently and that resolutions such as these will distract boards from protecting the company's financial health and growth prospects.

Implementation (recommendations 16 and 17) - Recommendations 16 and 17 propose, respectively, that:

• recommendations 2 and 3 on conflict of interest matters, and recommendations 10 and 11 relating to remuneration advisers be implemented by legislation if the ASX and the ASX Corporate Governance Council do not make the requisite changes; and
• the reforms flowing from the Report be reviewed within 5 years.

The full list of final recommendations can be found here (pdf).

Government Reponse to the Report

In April 2010, the Federal Government indicated how it would respond to the Report. While the Government agreed with many of the Report's recommendations (see responses here), it did not support the recommendation that cessation of employment be removed as a trigger for taxation of deferred employee shares. This will significantly affect the structure of such salaries in the future.

Read full post here.

This entry was written by Chris Barton and Andrew Pollock.

Key changes proposed by the Bill include:

• A reduction in the 'cap' on termination payments so that ay payment in excess of one year's average annual base pay will require shareholder approval.
• For listed companies, a person will be captured by the new provisions if, at the time they cease employment, they were included in the company's remuneration report for the previous financial year as:
• one of the 5 most highly remunerated company or group executives; 
• a member of the key management personnel of the company; or
• if they have been so disclosed at any time in the previous 3 years.
• A broader definition of termination 'benefit'

Other notable proposed changes include new restrictions on the timing of shareholder approval, increased obligations and penalties, and a requirement to repay any unauthorised benefit and hold on trust.

This entry was written by Russell Allen.

• establishes a new body called Fair Work Australia to replace the Australian Industrial Relations Commission, the Workplace Authority, the Workplace Ombudsman and the Australian Building and Construction Commission;
• enhances the safety net - the National Employment Standards and modern awards - which will take effect from 1 January 2010;
• introduces new obligations to bargain in good faith, which can be enforced by Fair Work Australia making a bargaining order;
• provides Fair Work Australia with a much greater role in bargaining for enterprise agreements;
• expands the circumstances in which a union has a right of entry on employer's premises;
• limits the circumstances in which protected industrial action can be taken by employers (that is, when employers can implement a lockout);
• consolidates and expands upon the old freedom of association provisions in the new 'general protections' part of the Act, which prohibits a wide range of 'adverse action' against employees on a number of grounds;
• provides more employees with access to Fair Work Australia's unfair dismissal jurisdiction; and
• extends the transfer of business provisions to cover a much wider range of transactions, including insourcings and corporate reorganisations.

This entry was written by Russell Allen.