relations conference · the need to consider psychological conditions 20% of australians experience...
TRANSCRIPT
20th ANNUAL EMPLOYMENT
RELATIONS CONFERENCE
FRIDAY 30 AUG 19
KEYNOTE SPEAKER: ATTORNEY-GENERAL AND MINISTER FOR INDUSTRIAL RELATIONS, THE HON CHRISTIAN PORTER MP
Lydia Daly
Special Counsel
30 August 2019
Nicola McMahon
Senior Associate
20th Annual Employment Relations
Conference
Managing Ill and Injured
Employees
Employer’s obligations
WH&S
Reasonable
Adjustments
RTW / Suitable
alternate
duties
Medical
evidence
Procedural
fairness
/ support /
confidentiality
Relevant Legislation
Work Health and Safety Act 2011
(Qld) and (NSW)
Anti-Discrimination Act 1991 (Qld)
Anti-Discrimination Act 1977 (NSW)
Disability Discrimination Act 1992 (Cth)
Workers’ Compensation and Rehabilitation Act 2003 (Qld)
Workers’ Compensation Act 1987 (NSW)
Federal
Fair Work Act 2009 (Cth)
Privacy Act 1988 (Cth)
State
Public Service Act 2008 (Qld)
Industrial Relations Act 2016 (Qld)
Industrial Relations Act 1996 (NSW)
Information Privacy Act 2009 (Qld)
The need to consider psychological conditions
■ 20% of Australians experience a mental illness in any year
□The most common are depression, anxiety and substance use disorders
■ 45% of Australians will experience a mental illness in their lifetime
■ 54% of people do not access treatment for mental illness
□Source: Black Dog Institute
■ Psychological and psychiatric claims currently represent 6.3% of total statutory
payments ($59.0 million for 2017-18)
■ The rate of rejection for psychological workers’ compensation claims is 62.4%
□Source: Queensland workers’ compensation scheme statistics 2017-2018
Reasonable management action
■ Read v Workers Compensation Regulator [2017] QIRC 072
□ Organising a disciplinary meeting in relation to performance issues
■ Allen v Workers’ Compensation Regulator [2018] QIRC 41
□ Meeting to advise employees of reduction in working hours
■ Allwood v Workers’ Compensation Regulator [2017] QIRC 088
□ Psychological injury as a result of a number of events at work and comments
concerning bereavement leave
Legal approach to gathering and using medical
information
■ It is essential for compliance with WHS duties that an employer can require
□ an employee to provide particulars and or medical evidence affirming fitness for
work
□ an employee, on reasonable terms, attend a medical examination
■ What is reasonable
□ turns on facts
□ depends on employer’s policies and employee’s contract terms
□ requires a sensitive approach and respect for privacy
■ Factors to consider
□ is there a genuine indication of the need for the examination such as prolonged absences from work or absences without explanation or evidence of an illness which relate to capacity to perform the inherent requirements of the job
□ has the employee provided adequate medical information which explains absences and demonstrates fitness to perform duties
□ is the industry or workplace particularly dangerous or risky
□ are there legitimate concerns that the employee’s illness would impact on others in the workplace
□ did the employee agree to the assessment by the practitioner selected by the employer
□ was the employee advised of the details of the behaviour which led to the concerns that they were not fit for duty
□ was the medical practitioner advised of the issues of concern and were those matters focused on the inherent requirements of the job
□ was the medical assessment truly aimed at determining, independently, whether the employee was fit for work in their substantive role
Medical examinations when considering mental
health
■ Yan v Spotless Facility Services Pty Ltd [2017] FWC 922
□ medical evidence did not say employee incapable to perform inherent
requirements
■ Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022
□ Inherent requirements of substantive role must be considered and not
modified, restricted or a temporary alternate position
■ Fia v Jeld Wen [2013] FWC 2694
□ medical evidence at the time of decision certified not fit for pre-injury duties
Reliance on medical evidence
■ Robinson v Western Union Business Solutions
(Australia) Pty Ltd [2018] FCA 1913
□ Employee had been away from work for seven
months with a mental illness
□ Employer requested the employee attend IME
to ‘assist the business in gaining a clear
understanding of a possible return date’ and the
employee refused
□ The employee eventually agreed to an IME after
numerous requests were made. The employer
did not arrange the IME
□ Two months later, the employer terminated the
employee on the basis he could not give an
indication of a return date and unreasonably
failed to cooperate with the employer
Reliance on medical evidence cont’d
Held: the dismissal was
because of the employee’s
mental disability. Any lack
of ‘capacity’ to return to
work was but a
‘manifestation’ of the
employee’s mental
disability and a
‘manifestation’ that could
not be severed from that
disability.
Investigations
■ Duty of care owed to prevent psychiatric injury
■ Hayes v State of Queensland [2017] 1 Qd. R 337
□ Duty to take reasonable care to support an employee, where to the knowledge of
the employer, the employee is a risk of harm while their conduct is being
investigated
■ Robinson v State of Queensland [2017] QSC 165
□ Plaintiff alleged manager bullied her and failed to properly act on workplace
complaints
□ Held employer liable for the manager’s failure to properly address complaints and
the foreseeable risk of psychiatric harm due to the breach of duty
□ Awarded $1.4 million as plaintiff unlikely to ever return to work
■ Eggins v State of Queensland (DJAG/QCS) [2015] QIRC
203
□ direction given three months after doctor certified unfit
to participate in process and one month after taking
personal leave
■ Daniel Krcho [2019] FWC 5278
□ Employee denied stop-bullying orders to block IME
■ Mocanu v Kone Elevators Pty Ltd [2018] FWC 1335
□ Employee was able to use a computer to send an email
while on leave and therefore able to participate in the
workplace investigation while on sick leave
Investigations and reasonable directions
Illness does not
have to
frustrate the
process
■ Swanson v Monash Health [2018] FCCA 538
□ Being on personal leave does not absolve an employee’s obligation to follow the lawful and reasonable directions of their employer
□ The employee is still bound by the employment contract during period of paid personal leave
■ Laviano v Fair Work Ombudsman [2017] FCCA 19
□ Despite being on personal leave, the employee was subject to an implied duty to communicate with the FWO. Illness did not prevent employee attending IME
■ Bletas v The Star Entertainment Qld Limited [2019] FWC 2792
□ Authority to doctor not a fishing expedition by employer
□ Certificate of capacity from own treating doctor of 34 years not sufficient
Investigations and reasonable directions cont’d
■ Must be a genuine need for information
■ Information sought and circumstances must be reasonable
■ Provide doctor with information about role and work environment
■ Take care to ask the right questions
■ Seek opinion on fitness to participate in the process
■ Reasonable alternatives to facilitate participation
Direction to provide medical evidence / attend IME
■ Once you know about a worker’s medical/injury history, you will owe them a higher duty of care
■ Treat employees fairly during and after any psychological conditions are raised
■ In the context of an investigation, consider medical evidence provided. Consider seeking additional information/directing the employee to attend an IME
■ Reasons for any disciplinary action
□ failure to meet inherent requirements of role
□ failure to follow lawful and reasonable direction
Points to note as an employer
Contact
Lydia Daly
Special Counsel
T +61 412 423 432
Nicola McMahon
Senior Associate
T +61 435 557 269
Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on
specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further
advice should be obtained before taking action on any issue dealt with in this presentation.
20th Annual Employment Relations
Conference
Enterprise Bargaining Update
Michael Moy
Partner
30 August 2019
Liam Fraser
Senior Associate
What we will cover today
■ Recent statistics on enterprise bargaining
■ Legislative assistance
■ Notice of employee representational rights issues
■ Explaining terms and their effect
■ Lodging enterprise agreements – updated forms
■ Emerging issues in bargaining
Recent statistics on enterprise bargaining
Recent statistics on enterprise bargaining
0
500
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30000
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-10
Dec-
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Mar-
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Jun
-11
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Dec-
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Mar-
12
Jun
-12
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-12
Dec-
12
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Mar-
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Jun
-17
Sep
-17
Dec-
17
Mar-
18
Jun
-18
Sep
-18
Dec-
18
Agreements Current at end Quarter (Sep ’10 – Dec ’18)
Agreements Employees
Number of Agreements Current at
end Quarter
Number of Employees
covered (‘000s)
Union/non-union agreements approved and union
density, 1992–93 to 2018–19*
0
5
10
15
20
25
30
35
40
45
0
1000
2000
3000
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5000
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7000
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1992–93 1994–95 1996–97 1998–99 2000–01 2002–03 2004–05 2006–07 2008–09 2010–11 2012–13 2014–15 2016–17 2018–19*
Number Per cent
Union agreement Non-union agreement
Union density (including OMIEs) (RHS) Union density (excluding OMIEs) (RHS)
IR Act Workplace Relations Act WorkChoices Fair Work Act
*Data available for only three quarters of the year.
Source: Department of Jobs and Small Business, Workplace Agreements Database; Department of Jobs and Small Business, Trends in
Federal Enterprise Bargaining, March quarter 2019; ABS, Employee Earnings, Benefits and Trade Union Membership, Australia, various,
Catalogue No. 6310.0; ABS, Characteristics of Employment, Australia, various, Catalogue No. 6333.0.
^Owner managers of incorporated enterprises
Recent statistics on enterprise bargaining
■ Why the drop?
□ Triage process for approval applications
□ Strict application of BOOT to every employee on every possible roster
□ Unions utilising those issues to oppose applications for EAs which they have not
been involved in
□ FWC allowing non-bargaining representative Unions to be heavily involved in the
approval process and to oppose approval
Legislative assistance
Legislative assistance
■ Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act
2018 – 12 Dec 2018
■ If FWC satisfied
□ an EA (not a greenfield EA) would have been genuinely agreed but for minor
procedural or technical errors re a number of procedural issues and
□ Employees not likely to have been disadvantaged by errors
FWC can still find genuinely agreed
Agreement approval outcomes
Fair Work Amendment (Repeal of 4 Yearly Reviews
and Other Measures) Act 2018
■ s180(2) – given (or access to) text of EA and incorporated materials during
access period
■ s180(3) – all reasonable steps to notify of time, place and method of vote,
prior to start of access period
■ s180(5)(a) - all reasonable steps to explain terms and their effect
■ s180(5)(b) - all reasonable steps to ensure explanation in an appropriate
manner
■ s181(2) – employees not requested to approve EA until 21 days after last
NERR given
Fair Work Amendment (Repeal of 4 Yearly Reviews
and Other Measures) Act 2018
■ s173(1) - all reasonable steps to give NERR to each employee who will be
covered and is employed at the notification time
■ s173(3) – issue NERR ASAP, no later than 14 days after notification time
■ s174(1A)(a) – NERR contains prescribed content
■ s174(1A)(b) – NERR not contain any other content
■ s174(1A)(c) – NERR must be in form prescribed
Notice of employee representational right issues
Notice of employee representational rights issues
■ Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics [2019] FWCFB 318
□ Core Toughened Pty Ltd
– Old NERR given to employees – minor technical error and employees not likely to be disadvantaged
□ Kew Swimming Pools
– Omitted from NERR the paragraph relating to the union’s role in bargaining
– Unlikely a minor technical error
□ Royal Automobile Club of Victoria (RACV) Limited
– Replaced ‘speak to your employer’ with ‘speak to your Manager: Brad or Damien’
– In this instance, minor technical error, but may not be trivial if effect is to restrict avenues for Qs to employer
– NERR used ‘RACV’, rather than full employer name – minor technical error
Notice of employee representational rights issues
■ Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid
Cellular Plastics [2019] FWCFB 318
□ Axis Plumbing Services WA Pty Ltd
– On company letterhead – triviality and a minor technical error
□ NT Seaman t/a United Wolves
– Employer – Trevor Seaman; United Wolves is the trading name
– First paragraph of NERR included trading name - minor technical error
Notice of employee representational rights issues
■ Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid
Cellular Plastics [2019] FWCFB 318
□ CMTP Pty Ltd
– First paragraph of NERR did not identify name of employer, name of
proposed EA or its proposed coverage
– Unlikely that such errors would be minor or not likely to have
disadvantaged employees
□ Huntsman Chemical Company
– 6 (rather than 7) clear days notice given of time, place and method of
voting
– 10 employees covered, 8 cast valid vote
– Procedural error minor and employees not likely to have been
disadvantaged
Notice of employee representational rights issues
■ Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid
Cellular Plastics [2019] FWCFB 318
□ Core Toughened
– Some employees received only 5 clear days’ notice before they voted but
vote open for 3 days
– Proposed EA covered 39 employees; 38 cast valid vote
– Because of voter turnout and voting process open over days, employees
not likely to have been disadvantaged
□ NT Seaman t/a United Wolves
– Last NERR issued 8/8/18 and vote 29/8/18 – failed to meet 21 day time
frame – unintentional (must be 21 CLEAR days)
– Minor procedural error
Notice of employee representational rights issues
■ Learnings
□ Do not change the NERR
□ Do not put it on letterhead
□ Do not sign the NERR
□ Ensure scope described in NERR does not change during bargaining, or, if it
does, consider issuing new NERR
□ Do not rely on s188(2) to save your NERR
Explaining terms and their effect
Explaining terms and their effect
■ AWU v Professional Traffic Solutions Pty Ltd [2018] FWCFB 6333
□ History of being covered by EAs
□ No Union members amongst workforce
□ Form F17 said EA contained no terms less favourable than Award, but there
were a number
□ FWC found – if
– fail to identify any terms less beneficial in the EA than the Award and
– F17 states there are no less beneficial terms,
only inference that can be drawn is that explanation of terms not sufficient
Explaining terms and their effect
■ CFMMEU v Ditchfield Mining Services Pty Limited [2019] FWCFB 4022
□ Explanation with reference to reference Award not always required (esp if it
doesn’t apply at that time)
□ Purpose of explanation – enable employees to understand how wages and
conditions might be affected
□ Compared EA terms to terms of another EA which did not apply
□ Were terms in EA less beneficial than Award
– Not explained in F17 declaration
– Not explained to employees
□ Explanation not sufficient
Explaining terms and their effect
■ Learnings
■ The following list may be more than what you strictly need to do, but the
inconsistency of the decisions means that explaining the terms too
much is much safer than the alternative
□ Explain every single term
□ Explain difference between those terms and the underlying Award(s)
□ Explain difference between those terms and existing EA
□ Explain in writing and in person
□ Retain evidence of
– employees receiving written explanation (email read receipts, responses)
– verbal explanation (file notes, recordings, etc.)
□ If any employees are from non-English speaking backgrounds, have the
explanation translated
Lodging enterprise agreements – updated forms
■ Be aware that Form F17 (Employer stat dec in support of application) has
changed significantly
□ More onerous in terms of description necessary of clauses which are
– Not in relevant Award/s
– Same as relevant Award/s
– More beneficial than relevant Award/s
– Less beneficial than relevant Award/s
□ Cases have highlighted that swearing a false F17 is a crime
□ Cases have relied on statements in F17 to make conclusions about sufficiency of
explanation of terms
– Ensure that you explain the terms which you describe in the F17
Emerging trends
Emerging trends in bargaining
■ Applying to terminate old agreement to break bargaining deadlock
□ More appealing since 2015 Full Bench decision in Aurizon
■ Rolling over notionally expired agreements with wage increases
□ Risk of protected industrial action vs prospects of not passing the BOOT
■ Non-union bargaining reps
□ United Firefighters’ Union of Australia, Union of Employees, Queensland v
Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 66
Take home points
■ NERR learnings
□ Do not change the NERR
□ Do not put it on letterhead
□ Do not sign the NERR
□ Ensure scope described in NERR does not change during bargaining, or, if it
does, consider issuing new NERR
■ Explanation learnings
□ Explain every single term
□ Explain difference between those terms and the underlying Award(s) / existing EA
□ Explain in writing and in person
□ Retain evidence of explanations
■ Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures)
Act 2018 may save your EA, but don’t rely on it!
Contact
Michael Moy
Partner
T +61 439 060 343
Liam Fraser
Senior Associate
T +61 488 765 409
Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on
specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further
advice should be obtained before taking action on any issue dealt with in this presentation.
20th Annual Employment Relations
Conference
Dismissal and adverse action
update
Tim Longwill
Partner
30 August 2019
Mahalia Munro
Lawyer
Unfair dismissals
Biometric technology and boozy nights out – what
do they have in common?
■ Technology in the workplace
□ biometric technology – Jeremy Lee v Superior Wood
Pty Ltd [2019] FWCFB 2946
■ Out of hours conduct
□ boozy nights out - Luke Urso v QF Cabin Crew
Australia Pty Limited t/a QCCA [2019] FWCFB 1322
Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB
2946
■ Employee failed to comply with a policy requiring fingerprint scanning
■ Employee claimed ownership of the biometric data in fingerprint and sensitive
personal information under the Privacy Act 1988 (Cth)
■ Verbal and written warnings issued, warned that failure to comply with policy
could result in dismissal
■ Held
□ procedurally fair but no valid reason
□ not a lawful direction and so worker was entitled to refuse to follow it
□ contravention of privacy laws
□ not genuine consent
□ fingerprint scanning was not reasonably necessary for employer’s functions
or activities
Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB
2946
■ Employee privacy needs to be balanced
against competing interests of the
employer
■ What employers need to do:
□ ensure wording of employment contracts
requires compliance with all policies
□ keep workplace policies up to date
□ implement a privacy policy that complies
with the Privacy Act 1988 (Cth)
□ give employees proper notice of intention
to collect data
□ obtain express consent from the employee
■ Employee went out to a bar in between shifts
■ Employee was taken to hospital with a BAC of 0.205% (approx. 14 drinks)
■ Employee was discharged from hospital but unable to complete return flight
■ Employee’s response to allegations
□ no intention to consume the amounts of alcohol
□ he only consumed five drinks
□ his drinks were spiked
■ Held
□ appeal dismissed
□ failure to attend work was as a result of excessive alcohol consumption therefore
this was a valid reason for dismissal
Urso v QF Cabin Crew Australia Pty Limited t/as
QCCA [2019] FWCFB 1322
■ Full Bench did not accept that intention was a necessary element of misconduct
■ Some forms of misconduct involve a positive intention on the part of the employee such
as workplace theft or fraud
■ Other forms of misconduct, such as breaches of safety policies and procedures, may be
the result of recklessness, negligence or misjudgement
■ There must be a connection between the employment and the out of hours conduct
■ Employees can be validly dismissed where conduct is inconsistent with work policies,
particularly where safety is critical component of employment
■ What employers need to do
□ maintain clear policies setting out expectations for employee conduct
□ follow a consistent and fair investigation and disciplinary process
Urso v QF Cabin Crew Australia Pty Limited t/as
QCCA [2019] FWCFB 1322
■ Employees on fixed term contracts are excluded from unfair dismissal protection
□ s 315(1) Industrial Relations Act 2016 (Qld)
□ s 386(2)(a) Fair Work Act 2009 (Cth)
■ May amount to termination at the initiative of the employer
■ Maximum term contracts are different from genuine ‘fixed term’ contracts
■ An employer may lawfully terminate a maximum term contract before the specified
end date with notice
■ Historically, QIRC and the FWC held that if maximum term contract or fixed term
contract reach the agreed expiry date, the employment and the contract will have
ended by effluxion of time, rather than at initiative of employer
■ However, consider Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 and
Lindquist v Redland City Council [2018] QIRC 141
Expiry of contracts for a specified term – risk of
unfair dismissal
■ Employee employed on a temporary basis to replace an employee taking
parental leave
■ Employee employed under two contracts with specified end dates, with
subsequent extensions providing for part-time arrangements and varying
hours
■ Employer did not renew employee’s final contract when the substantive
position holder returned to full-time hours
■ QIRC found the employee’s employment had been contingent on the other
employee continuing in a part-time capacity until such time as she resumed
full-time employment, or the creation of a new position
■ Employment arrangement was not one of continuous employment, the
contract ended on the basis of employee being engaged for a specific period
■ There was no unfair dismissal at expiry of agreed term
Lindquist v Redland City Council [2018] QIRC 141
■ Contract must be appropriately worded and reflects a genuine agreement for
the employment relationship to end at a particular date
■ No ongoing expectation of employment
■ Check the terms of the award of certified agreement about fixed term
employment - the award or agreement will prevail
■ Correspondence to the employee must clearly provide for the employee’s
employment as well as their contract to end at the expiry of the term, rather
than just their contract
■ The whole employment relationship will be examined, not just the
employment contract
Expiry of contracts for a specified term – Tips for
employers
General protections
Adverse action Because of
Workplace right,
industrial activity
or discriminatory
reasons
CFMEU v Goondiwindi Regional Council & anor
[2018] QIRC 128
■ Two employees claimed their safety complaints made to WHSQ and CFMEU were ‘workplace rights’
■ Issued with warnings for poor performance = adverse action
■ CFMEU claimed adverse action taken because of workplace rights
■ Council defended on basis that warning was poor performance
■ Eight Council witnesses – group decision making meant multiple persons in decision making chain
■ CEO ultimate decision maker – CFMEU claimed his decision was infected by subordinates’ prohibited reasons (i.e. safety complaints)
■ QIRC rejected the application – found that warnings were issued for poor performance
QNMU v West Moreton Hospital and Health Service
[2019] QIRC 072
■ 19 instances of alleged adverse action, broadly characterised as
□ suspension and direction to perform alternative duties
□ requirement to show cause why she should not be disciplined
□ requirement to participate in a workplace investigation
■ Employee argued adverse action was taken because she exercised a
workplace right or engaged in industrial activity
■ Injunction sought to restrain employer from continuing investigation into the
allegations against the employee and from temporarily transferring the
employee to an alternative position
QNMU v West Moreton Hospital and Health Service
[2019] QIRC 072
■ Employer argued employee was prevented from alleging decisions could be
considered adverse action because of s 282(6) of the IR Act
Adverse action does not include action that is authorised under –
(a) this Act or any other law of the State; or
(b) a law of the Commonwealth
■ Express powers in the Public Service Act 2008 (Qld) authorised employer to act as
it did and therefore the actions were incapable of being defined as ‘adverse
action’
■ QIRC rejected this argument at [56]:
In my view, while s 26(3) of the PS Act requires a public service manager to take
prompt and appropriate action to address unacceptable work performance, the section
is premised on the basis that a correct finding has been made that unacceptable work
performance has in fact occurred and that the remedy proposed by the decision maker
is lawful. In a context where these issues are in dispute, I don’t accept that s 282(6) can
have effect.
When can you rely on the exception?
■ Cannot rely on s 26(3) of the PS Act
■ Limited case law in the QIRC
■ Have to look to case law considering similar provision in the FW Act (s 342(3))
■ CFMEU v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462
□ Rio argued payments to the CFMEU members were made in accordance with the enterprise agreement
□ ordinary meaning of ‘authorise’ is to give authority or legal power or to empower
□ if the ordinary meaning was to be applied, the success of Rio Tinto’s primary submission depended upon the identification of some provision of the FW Act which gave ‘authority or legal power’ or which ‘empowered’ Rio Tinto to make discriminatory payments
■ Recent cases
□ The Environmental Group Ltd v Bowd [2019] FCA 951
□ Keenan v Cummins South Pacific Pty Ltd (No. 2) [2019] FCCA 523
■ Courts will order reinstatement
■ Damages can be significant
■ Seek independent legal advice as the individuals who would normally
manage complaints can be the subject of the allegations themselves
Senior executives making general protections
claims
■ Employee reported irregularities to the board, made a complaint to ASIC, Police and AFP and took personal leave
■ Adverse action – investigation, suspension and dismissal
■ Workplace right – taking personal leave, it did not include making a complaint to ASIC as the complaint was not made in ‘good faith’
■ Not dismissed because he took personal leave
■ Held – not adverse action, actual reason for dismissal was overall poor performance
Whistleblowing CEO
The Environmental Group Ltd v Peter Bowd [2019]
FCA 951
■ Correspondence established that employee was aware of performance concerns
■ Evidence did not establish that the employee had any foundation for his concerns about
irregularities
■ Records of meetings and contemporaneous correspondence between the parties showed
the relationship break down at the time the employee chose to lodge concerns with ASIC
and the AFP
■ Takeaways
□ Corporations Act 2001 (Cth) provisions cannot be described as a ‘workplace law’, a
complaint to ASIC may fall within s 341 only if it is made in good faith
□ good faith requirement for a complaint under s 341(c)(ii)
□ ‘workplace complaints’ in the case of a CEO, ‘the complaint must be one directed at or
concerned with that person’s employment in a substantive way’
□ keep clear contemporaneous notes of meetings and any correspondence to and from
the employee
The Environmental Group Ltd v Peter Bowd [2019]
FCA 951
■ Employee was a senior leader with 34 years service. Employee made
complaints about the human resources leader
■ Employee was dismissed for performance issues
■ Employer strongly argued against reinstatement
■ Held
□ workplace rights – making complaints about how he was treated, taking
paid personal leave and initiating a proceeding
□ adverse action – ethics investigation, performance improvement plan,
suspension and dismissal
□ court rejected employer’s arguments against reinstatement
From senior executive to Uber driver
Keenan v Cummins South Pacific Pty Ltd (No. 2)
[2019] FCCA 523
■ Inappropriate behaviour following the
decision can have serious consequences
■ Act appropriately and impartially on receipt
of employee complaints. Be aware of bias
■ Ensure performance management processes
are transparent
■ Reinstatement is not impossible just because
there is a difficult relationship
■ Getting it wrong can be costly
From senior executive to Uber driver – Key lessons
Contact
Mahalia Munro
Lawyer
T +61 7 3233 8934
Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific
cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further advice should be
obtained before taking action on any issue dealt with in this presentation.
Tim Longwill
Partner
T +61 412 064 507
Scarlet Reid
Partner
30 August 2019
Nathan Roberts
Senior Associate
20th Annual Employment Relations
Conference
White Collar Crime in the
Workplace
Agenda
■Context
■Offences under the Fair Work Act 2009
■Wage Theft
■ The Queensland Public Sector regime
■ Industrial Manslaughter
■Other offences in the workplace
Context to White Collar Crime in the Workplace
Context – Increasing Penalties and Enforcement
■Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth)
□Liability for franchisors and holdings companies
□Prohibition on cashback schemes
□Increased penalties for ‘serious contraventions’
□Reverse onus for breaches of record-keeping and pay slip obligations
□Ability to apply to the AAT for an ‘FWO Notice’
Context – Increasing Penalties and Enforcement
■Banking Royal Commission
□ASIC: ‘Why not litigate?’
■Fair Work Ombudsman
□2019/20 Federal Budget: Extra $9.2m over 4 years ($2.3 per year) for a ‘Sham
Contracting Unit’
Offences under the Fair Work Act 2009
FW Act Offences
■Very limited criminal offences under the Fair Work Act 2009
■Corrupting Benefits Offence– new Part 3-7
□Took effect on 11 September 2017
□Response to the Royal Commission into Trade Union Governance and Corruption
FW Act Offences
■ Section 536D in a nutshell. It is an offence to (or to cause someone else to):
■ An employer cannot offer to make a payment to a union official on the proviso that the union will
attempt to convince their members to accept lesser terms and conditions of employment in an
enterprise agreement that the union would otherwise have advocated for
■ A union official cannot request a payment to a union official on the proviso that the union will
attempt to convince their members to accept lesser terms and conditions of employment in an
enterprise agreement that the union would otherwise have advocated for
Give or
offer a
benefit
dishonestlyto another
person
Intending
that an
officer or
employee
of a
registered
organisation
will be
influenced
FW Act Offences
■Section 536F offence:
□Employers cannot make payments to a union, their officers and employees (and their
spouses)
□ Except deductions for membership fees agreed in writing, or goods/services at not more
than market value, etc.
■Section 536G offence:
□Unions, their officers and employees (and their spouses), cannot receive payments from
employers
□ Except deductions for membership fees agreed in writing, or goods/services at not more
than market value, etc.
■Penalties:
□ Individual: imprisonment for 2 years or 500 penalty units ($105,000);
□Body Corporate: 2,500 penalty units ($525,000)
Wage Theft
Wage Theft – What is it?
■Underpaying wages
■Unpermitted deductions (including at end of employment)
■ Entitlements withheld
■Off-the-clock variations
■Unpaid superannuation
■Unpaid overtime
■Unpaid penalty rates
■Unpaid trials
■Requiring the repayment of money earnt
Wage Theft – What causes it?
■ Intention
■ Sham contracting (paying as a contractor when are an employee)
■Cash-in-hand / tax avoidance
■Application of the incorrect Award
■Paying flat rates
■Phoenix activity
■Vulnerability:
□ international students;
□ temporary migrant workers
□ young workers
Wage Theft – The Numbers – FWO Audits
Industry Year Audits Percent wage theft Average recovered
Building & construction 2014/15 610 24.6% $1,289
Retail 2010/11 1866 16.7% $775
Pharmacy 2012/13 523 21.4% $469
Hospitality (Accom, pubs, bars) 2012/13 750 19.6% $584
Hospitality (Restaurants, cafes, catering) 2012/13 1066 46.3% $442
Hospitality (Takeaway foods) 2012/13 565 47.1% $627
Children’s services 2013/14 420 24.3% $751
Health care and social assistance 2014/15 696 15.2% $566
Hair and beauty 2012/13 838 40.0% $538
Apprenticeship 2014/16 822 32.1% $1,051
Wage Theft – More Numbers
■Superannuation:
□Australian Tax Office (ATO) estimates a
‘super gap’ of $2.79b in 2015-16
□Industry Super Australia (ISA)
estimates super theft cost $5.9b ,
affecting 2.98m Australians or 1 in 3
workers in 2015-16
■PAYG Withholding
□ATO estimates $3.356b shortfall in
tax in 2015-16
Wage Theft – More Examples
Wage Theft – the case for criminalisation
■Migrant Worker Taskforce (2019):
□Recommendation 6 It is recommended that for the most serious forms of
exploitative conduct, such as where that conduct is clear, deliberate and
systemic, criminal sanctions be introduced in the most appropriate
legislative vehicle.
■Federal Coalition has shown support for criminalisation of wage theft
■What threshold: Intentional? Reckless? Negligence?
■Introduce criminal offences in the Fair Work Act 2009?
■Treat wage theft as anti-competitive conduct under the Australian
Consumer Law?
Wage Theft – Criminalisation Models
Where? Minnesota Colorado United Kingdom
When? 1 August 2019 1 January 2020 1 April 2016
What? Jobs and Economic
Development Omnibus Bill
The Human Right to Work
With Dignity Act (HB-1267)
National Minimum Wage Act
1998
How? ‘Wage theft occurs when an
employer with intent to
defraud: (i) fails to pay an
employee all wages, salary,
gratuities…’
An employer that ‘wilfully
refuses to pay wages or
compensation’, or ‘falsely
denies the amount of a wage
claim’… with ‘intent to annoy
harass, oppress, hinder,
coerce, delay or defraud the
person to whom such
indebtedness if due’
commits theft.
If the employer of a worker
who qualifies for the national
minimum wage refuses or
wilfully neglects to
remunerate the worker for any
pay reference period at a rate
which is at least equal to the
national minimum wage, that
employer is guilty of an
offence
Penalty Imprisonment for not more
than 20 years or to payment
of a fine of not more than
$100,000, or both, if the
property is a firearm, or the
value of the property or
services stolen is more
than $35,000
Less than $2,000 is a
misdemeanour.
$2,000 or more is a felony
with penalties of $50 to
$1,000,000 depending on
circumstances.
200% of the total arrears
owed to workers, subject to a
maximum of £20,000 per
underpaid worker.
Wage Theft – alternatives to criminalisation
■Superannuation
□Create rights under the Fair Work Act (instead of the Superannuation Guarantee
(Administration) Act 1992)
□Create a personal right of recovery (instead of action through ATO)
□Require monthly payment like wages (instead of quarterly)
Wage Theft – What if I have a problem
■Rectify the payments
■Cooperation and remorse are relevant
■ Fair Work Ombudsman v Transpetrol TM AS (No
2) [2019] FCA 608
□Norwegian corporation underpaid 57 crew members of
the oil and chemical tanker MT Turmoil a total of
$255,000 over 2013-15
□Transpetrol was unaware of contraventions. They were
due to a complex application of maritime law, industrial
instruments and temporary shipping licenses issued to
sub-charterers Caltex and BP.
□Subsequently repaid the workers and fully cooperated
with the FWO investigation
□ FWO sought $87,975 penalty (approx. 60% of
maximum)
□ Federal Court rejected penalties given cooperation.
Wage Theft – What if I have a problem
■Cannot settle with a deed (unless resolving a genuine controversy)
□Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134
□Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty
Ltd [2003] FCAFC 18 at [17]
■Even if the FWO commences proceedings, the individual can commence
separate proceedings
□Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
The Queensland Public Sector regime
Legislative Framework
■Crime and Corruption Act 2001 (Qld)
□Crime and Corruption Commission
□Corrupt conduct (s 15). Must be:
– a criminal offence; or
– a disciplinary breach providing reasonable grounds for terminating the
person’s services, if the person is or were the holder of an appointment
■Criminal Code Act 1899 (Qld)
■Industrial Relations Act 2016 (Qld)
Misconduct: what are we talking about?
■Inappropriate conduct – section 187(1) Public Service Act
□(c) been absent from duty without approved leave and without reasonable
excuse
□(d) contravened a lawful and reasonable direction
□(e) used a substance that has adversely affected the competent performance of
employee’s duties
□(ea) contravened the requirement to disclose prior ‘serious disciplinary action’
or gives false or misleading information
□(f) contravened
– the Public Service Act e.g. section 26
– Code of Conduct
– Department’s Standard of Practice
Misconduct: what are we talking about?
■Misconduct – section 187(1)(b) and 187(4) Public Service Act
□inappropriate or improper conduct in an official capacity
□inappropriate or improper conduct in a private capacity that reflects seriously
and adversely on the public service
■Examples
□criminal offence
□corrupt conduct under section 15 Crime and Corruption Act 2001
– fraud, theft, forgery, assault
– dishonesty, misuse of information
– gaining a benefit for themselves or someone else
Misconduct: case examples
■ Lamb v Redland City Council [2014] QIRC 041
■Donnelly v State of Queensland (Department of Transport and Main Roads) [2015]
QIRC 014
■Cronin v Department of Agriculture, Fishers and Farming [2015] QIRC 178
Other Regulators in the Workplace
Other criminal regulators in the workplace - ASIC
■ The Australian Securities and Investments Commission – offences against the Corporations Act 2001
(Cth)
■ Section 184
(1) A director or other officer of a corporation commits an offence if they:
(a) are reckless; or
(b) are intentionally dishonest;
and fail to exercise their powers and discharge their duties:
(c) in good faith in the best interests of the corporation; or
(d) for a proper purpose.
(2) A director, other officer or employee of a corporation commits an offence if they use their position
dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or
causing detriment to the corporation; or
(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly
gaining an advantage, or in causing detriment to the corporation.
(3) A person who obtains information because they are, or have been, a director or other officer or
employee of a corporation commits an offence if they use the information dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or
causing detriment to the corporation; or
(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly
gaining an advantage, or in causing detriment to the corporation.
Other criminal regulators in the workplace
■ Fair Work Ombudsman - referral mechanisms for criminal activity to the
Australian Federal Police (AFP) e.g. human trafficking and corrupting benefits
■Department of Home Affairs e.g. rights to work
□Migration Act 1959 (Cth) Div 12, Subdiv C ‘Offences and civil penalties in relation to work
by non-citizens’
– Employer must take ‘reasonable steps’ to verify a worker that is a ‘lawful non-citizen’ is
not in breach of conditions
– Criminal and civil penalties (of up to 2 years imprisonment, and 5 years if ‘reckless’ and
‘exploitation’)
■Registered Organisations Committee (ROC)
□Offences under the Fair Work (Registered Organisations) Act 2009 (Cth), for example:
– union ballot issues;
– reprisal action for whistleblowing.
Other criminal regulators in the workplace
■Comcare / WorkSafe Qld / DNRME / AMSA / NHVR / ONRSR / CASA - safety
■Australian Federal Police – fraud and bribery (including bribery of foreign public
officials)
■Australian Tax Office – tax evasion, fraud, illegal phoenix activity
■ACCC – cartel conduct can be criminal
Industrial Manslaughter
Industrial Manslaughter I
■Boland Review - Recommendation 23b: Industrial manslaughter
■Amend the model WHS Act to provide for a new offence of industrial
manslaughter. The offence should provide for gross negligence causing death
and include the following:
□The offence can be committed by a PCBU and an officer as defined under s 4 of the
model WHS Act
□The conduct engaged in on behalf of a body corporate is taken to be conduct engaged in
by the body corporate
□A body corporate’s conduct includes the conduct of the body corporate when viewed as a
whole by aggregating the conduct of its employees, agents or officers
□The offence covers the death of an individual to whom a duty is owed
■ Safe Work Australia should work with legal experts to draft the offence and
include consideration of recommendations to increase penalty levels
(Recommendation 22) and develop sentencing guidelines (Recommendation 25)
Industrial Manslaughter II
Jurisdiction Industrial Manslaughter Provision
Commonwealth Not in model WHS Act. Supported by Parliamentary Committee.
ACT Part 2A inserted into Crimes Act 1900 in 2004 – No prosecutions.
Have used mainstream manslaughter.
NSW Not in model WHS Act.
Labor has said would introduce if elected – up to 25 years jail.
Queensland New section 34C/D inserted into WHS Act in 2017. Penalties of up
to $10,000,000 or 20 years in jail.
SA Not in model WHS Act.
(But, trucking company manager rec’d 12 years jail for failing to fix
brakes that resulted in driver’s death under existing laws.)
NT / TAS Not in model WHS Act.
No express intention.
Victoria Not in current OHS Act.
Labor re-elected on platform to introduce– up to 20 yrs jail.
WA Not in current OHS Act. Current Labor Government policy to introduce in
first term ending March 2021.
Model Law Review Recommended industrial manslaughter offence based on ‘gross
negligence causing death’ by PCBU or officer.
Increasing WHS Penalties
■Maria Jackson (Vic)
□6 months jail
■Gary Lavin (Qld)
□12 months jail, 4 months non-parole
□Set aside on appeal
■William McDonald (Qld)
□18 months jail, 6 months non-parole
Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This presentation is intended for
information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this presentation.
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Scarlet Reid
Partner
416 147 544
Nathan Roberts
Senior Associate
402 773 008
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