16 December 2013
Alison Spivey, Senior Associate
As 2013 draws to a close, we review the signi cant legal developments in employment law and workplace relations over the previous 12 months.
There have been a number of significant developments in and touching on employment law and workplace relations in the previous 12 months. These developments include further legislative change (introducing unprecedented anti- bullying laws), a change in the Federal Government, together with landmark judicial decisions and further initiatives to prevent and manage workplace issues such as harassment and discrimination.
In this article we summarise and review these developments and their potential impact for your organisation.
2013 saw a significant development in relation to workplace bullying, with changes to the FW Act establishing a new anti-bullying jurisdiction from 1 January 2014, which is to be overseen by the Commission. The new laws will provide workers who reasonably believe that they are being bullied at work with a further avenue of redress, by applying to the Commission for orders to stop that bullying.
The new anti-bullying laws, (including the guidance material recently published by the Commission about the management of anti-bullying applications), are the subject of a separate article in this edition of Strategy-Eyes.
Change in government
The Coalition Government was elected into power in September 2013. In terms of the potential impact of the change in government from an employment law and workplace relations perspective:
- the Coalition’s workplace relations policy platform heading into the election was reflected in the “The Coalition’s Policy to Improve the Fair Work Laws” released in May 2013 (“Policy”);
- the Policy reflected an intention not to enact wholesale changes to the current legislative framework, but instead retain the changes made by the Labor Government except as otherwise set out in the Policy; and
- the primary areas in which amendments will be sought to be made will be paid parental leave, reestablishing the Australian Building and Construction Commission (“ABCC”), and the rules relating to nancial disclosure and conduct of registered organisations and of cials (including the introduction of the Registered Organisations Commission to oversee these matters).
The Coalition also agged its intention to have the Productivity Commission undertake a review of the operation of the FW Act in the Policy.
The Coalition Government tabled legislation seeking to reinstate the ABCC and to enact the changes in relation to registered organisations in the rst sitting of the new Parliament in November 2013.
Implied duty of trust and confidence: Barker v Commonwealth Bank of Australia  FCAFC 83
The landmark decision of the Full Federal Court in Barker involved the employer’s failure to consult over the redundancy of a longstanding employee’s position in accordance with the terms of the employee’s employment contract and the employer’s policies and procedures.
- confirmed the implied duty of trust and confidence forms part of Australian law. (The basic premise of this duty is that an employer, will not, without reasonable cause, conduct itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee);
- serves as a timely reminder not only of the need to comply with the obligations imposed on your organisation when entering into contracts of employment, but also, particularly in larger organisations, to ensure that your processes are as seamless and coordinated as possible, or you may otherwise face significant consequences.
Throughout 2013 the number of unfair dismissal claims continued to grow, and a large proportion of those claims (approximately 80% in FY2012/13) were settled before or at the conciliation stage.
Where matters have proceeded to hearing, the key cases have continued to be in areas such as employee misconduct, out of hours conduct, use of social media, performance management and drug and alcohol testing, with the Commission continuing to focus on ensuring that employers have complied with their legislative obligations, including having a valid reason for termination and affording an employee procedural fairness.
The decision in Thomas v Newland Food Company Pty Ltd  FWC 8220 demonstrates there may be other areas of an employee’s conduct that were not relied on in making the termination decision that will impact on the remedial action taken where a dismissal is found to have been unfair.
In this matter, the employee secretly recorded discussions at meetings between himself and representatives of his employer regarding his workers’ compensation claim. Despite numerous failures of the employer in the termination process, the Commission determined that the employee’s actions had “destroyed” the trust and confidence in the employment relationship, and ordered compensation in place of reinstatement.
General protections claims
Similar to unfair dismissal claims, general protections claims under the FW Act have also continued to increase year on year, with in excess of 2,800 general protections applications made in FY2012-13.
2013 has seen the further development of precedent in the general protections space, and in particular an increasing understanding of what does, or does not, constitute a “workplace right”.
A number of cases during this period have also attracted significant penalties of up to hundreds of thousands of dollars in the most serious of matters.
Further, cases such as United Motor Search & Anor v Hanson Construction Materials & Anor  FCA 1104 serve as a timely reminder of:
- the scope of the general protections provisions (that is, that they are not con ned only to the employer-employee relationship, but also extend to contractors and prospective employees); and
- the availability of alternative remedies such as injunctive relief, and the potential impact that these alternative remedies can have pending resolution of the claim.
Discrimination and harassment
Developments in discrimination and harassment in 2013 included:
- the referral of the Human Rights and Anti-Discrimination Bill 2012 (the legislation which was intended to consolidate federal anti-discrimination legislation) back to the Attorney-General’s Department in February 2013 following parliamentary review;
- changes to the SD Act to outlaw discrimination on the basis of sexual orientation, gender identity and intersex status. These changes came into effect on 1 August 2013; and
- the Federal Government announcing in June 2013 an enquiry into the prevalence of discrimination in the workplace of women who are pregnant or who are returning to work after a period of parental leave. Consultation closes shortly, and the nal report from the enquiry is due to be released in June 2014.
In addition, a significant development from the courts in the area of discrimination and harassment was the decision in Richardson v Oracle Corporation Australia Pty Ltd  FCA 102. In that matter, the employer was found to be vicariously liable for sexual harassment by one of its employees after the Court found that the employer’s policy was “inadequate” because it did not state that sexual harassment was against the law.
The decision demonstrates the importance of ensuring the terms of your organisation’s policies and procedures are appropriate and reflect the potential consequences for an employee of any improper conduct on their part, so that your organisation can defend itself in the face of unlawful conduct, such as sexual harassment, by its employees.
Common time limits
1 January 2013 saw the commencement of a common time limit of 21 days from the date of dismissal for the making of unfair dismissal claims and general protections claims involving dismissal under the FW Act. Previously, eligible employees had 14 days from the date of dismissal to make an unfair dismissal claim, and 60 days from the date of dismissal to make a general protections claim involving dismissal.
Requests for flexible working arrangements
From 1 July 2013, amendments to the FW Act extended the right to request exible working arrangements to employees:
- with caring responsibilities (including those with school age children);
- who are 55-plus years old; or
- who are experiencing, or supporting a member of their household
or immediately family who is experiencing, domestic violence.
The amendments to the FW Act also clarify “reasonable business grounds” upon which an employer may refuse a request for exible working arrangements.
From 1 July 2013, the minimum superannuation guarantee increased to 9.25%, and is set to increase incrementally to 12% by 2019.