Trent Forno

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In Esso Australia Pty Ltd v The Australian Workers' Union [2015] FCA 758, the Federal Court upheld the validity of some, but not all, of orders made by the Fair Work Commission (FWC) against industrial action at Esso's Longford Plant in Victoria.

The Productivity Commission has released its draft report on the Australian workplace relations framework. The report is a broad-ranging assessment of Australia's workplace relations (WR) framework, considering current laws, institutions and practices.

This week, the High Court handed down its decision in Commonwealth Bank of Australia v Barker [2014] HCA 32 – unanimously ruling that the implied term of trust and confidence (Implied Term) is not part of Australian law and overruling the Commonwealth Bank of Australia v Barker [2013] FCAFC 83 (Federal Court Decision).

Last month, the Federal Circuit Court of Australia imposed fines on a company within the Roy Morgan Group - Linkhill Pty Ltd (Linkhill) - totalling $313,500 for sham contracting and related contraventions of the Fair Work Act 2009 (the Act), such as failure to pay wages, annual leave and severance pay.

In a claim for disability discrimination, the Queensland Court of Appeal has confirmed that the ability to work night shift was a genuine occupational requirement for a registered nurse who was engaged in roles that provided 24/7 care. Although the genuine occupational requirements exemption is unique to the Queensland Act, the Chivers decision is relevant in other discrimination jurisdictions at both state and federal level.

Four months after they commenced, the Fair Work Commission has handed down its first substantive decision under the new anti-bullying laws. Commissioner Hampton rejected a claim by a manager that she had been bullied by two subordinates. Importantly, he closely examines the statutory provisions including the reasonable management actions exclusion.

The Federal Circuit Court has found a portrait photography business constructively dismissed an employee, Ms Sagona, for reasons including her pregnancy. The Court awarded compensation of around $174,000 and imposed penalties totaling $61,000 - including fines of $8,000 each against the husband and wife who owned the business. This is one of the higher monetary awards for discrimination in Australian history.

The Coalition have introduced the Fair Work Amendment Bill 2014 into Parliament and it's a mix of different initiatives, some based on Labor's Fair Work Act Review, some unwinding changes made by the former Labor Government in 2013 and some independent Coalition policy initiatives.

On 15 October 2013, a Bill to amend the Workers' Compensation and Rehabilitation Act 2003 (Qld) was introduced into Parliament, outlining significant changes to the current scheme. In particular, the introduction of a threshold of more than a 5 per cent permanent impairment for an injured worker to be able to claim common law damages against their employer.

In this edition we outline the key developments that have occurred since our July Update. Not surprisingly, the bullying reforms have continued to be the most significant WHS issue in the past quarter. We'll cover the bullying reforms plus; the Northern Territory's first sentence under the harmonised legislation, the ongoing debate about insurance for directors in WHS matters, Western Australia's position on harmonisation, the model Construction Code being re-issued for public comment and the progress of mining WHS harmonisation.

The Coalition has won the 2013 election, but not control of the Senate – with the balance of power likely to be held by a range of independents such as Clive Palmer's Palmer United Party, the Liberal Democrats and the Australian Motoring Enthusiast Party. So now is a good time to review the Coalition Industrial Relations Policies.

In this second quarterly WHS Update for 2013, we outline the key developments that have occurred since our previous Update in April. While the bullying reforms remain the most significant WHS development in the past quarter, also worth noting are, Queensland's first sentence under the harmonised legislation, the Queensland Court of Appeal's decision in NK Collins, some interesting comments in a South Australian case that have generated debate about insurance for directors in WHS matters and New South Wales passing the harmonised mining legislation. 

The tumultuous events of the past few days have overshadowed an important event in Australian workplace relations – the passing by the Senate of the Fair Work Amendment Bill 2013 on Thursday night. Amongst other things, the amended Act contains new anti-bullying laws, introduces new family friendly measures, a right for the Fair Work Commission to arbitrate adverse action claims and changes to the right of entry provisions.

On Thursday, the Finance and Administration Parliamentary Committee tabled its report following its inquiry into the operation of the Queensland Workers' Compensation Scheme. This follows the Queensland Government's announcement in June 2012 of an inquiry into the operation of the Queensland Workers' Compensation Scheme. We explain the most significant recommendations including changes to journey claims, psychological injuries, return to work programs, impairment thresholds and self-insurance arrangements.

Yesterday, the Federal Opposition Leader, Tony Abbott, announced the Coalition Industrial Relations Policy – releasing a formal policy document entitled The Coalition's Policy to Improve the Fair Work Laws.

As the first quarter of 2013 comes to a close, we want to inform you about the current state of WHS harmonisation. In this issue we outline proposed changes to workplace bullying and provide you with tips on what to watch out for as the year unfolds.

In the last week, there have been three important developments with the Government's employment legislative program – albeit overshadowed by other more dramatic events in and outside of Parliament.

On Friday, 8 March 2013, the Government has announced further changes to the Fair Work Act 2009 – most notably, giving the Fair Work Commission (FWC) the power to compulsorily arbitrate on deadlocked enterprise bargaining negotiations and changing right of entry laws.

The Federal Government has released an exposure draft of the Human Rights and Anti-Discrimination Bill 2012 (Exposure Draft), which is intended to consolidate and replace five pieces of Commonwealth anti-discrimination legislation (Age Discrimination Act 2004, Disability Discrimination Act 1192, Racial Discrimination Act 1975, Sex Discrimination Act 1984 and Australian Human Rights Commission Act 1986).

Yesterday, the Commonwealth Government introduced the Fair Work Amendment Bill 2012 into Parliament (Bill). The Bill seeks to implement many, but not all, the recommendations of the Fair Work Act Review Panel.  It also addresses the Productivity Commission's Report into Default Superannuation Funds in Modern Awards in changes which could have a wide ranging effect on the superannuation industry.Aside from superannuation, other notable changes include changing the name of Fair Work Australia to the Fair Work Commission (FWC); beefing up FWC's power to award costs and strike out unfair dismissal applications and a prohibition on opt out clauses in enterprise agreements.

This morning, the High Court handed down its decision in Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32 – its first major decision considering the adverse action provisions since the Patricks dispute in 1998.

On 2 August 2012, the Government released the Report of the Fair Work Act Review – the review of the Act after its first two years of operation.

Full Bench significantly extends employers' good faith bargaining obligations.

It can be very difficult for an employer to avoid liability for an employee's breach of anti-discrimination legislation. But a recent case brought before the Anti Discrimination Tribunal shows that proactive employers can effectively manage the risks – and is a timely reminder of the importance of regular and appropriate education and training.

Consider the impact of the new OHS regime on your current policies and procedures – for example, extension of duties, consultation, right of entry, elections of health and safety representatives and training.

Appeal Bench Broadens Industrial Action Order in Victorian Nurses Dispute

On Tuesday, 29 November 2011, as part of its Mid-Year Economic and Fiscal Outlook 2011-12, the Federal Government announced a package of changes intended to raise A$11.5 billion in new revenue and savings.

Federal Government introduces owner driver bill into Parliament

Federal Court decides independent contractors are really employees and are entitled to annual leave and long service leave

Federal Court refuses interlocutory injunction reinstating employee pending final trial

We are moving quickly toward the planned implementation date of OHS harmonisation – 1 January 2012 – when a new OHS Act, Regulations and Codes of Practice will commence in each state, territory and the Commonwealth. Our HR&IR Update of 22 June 2011 set out the substantive changes to OHS harmonisation. In this edition we discuss the subsequent developments - we may be on the home stretch to implementation of OHS harmonisation but there is still much to be done.

New anti-discrimination laws herald further protections for employees

OHS harmonisation 2012 – where things stand and what you need to do now

Are your systems in place?

James Warburton restrained until January 2012 

Workplace Safety

Year in Review 2010

Ulan Full Bench appeal fails: what does reasonable redeployment require?

Protecting your business from departing employees

The transitional arrangements in modern awards, which take effect from today, raise a number of very complex issues for employers.

Fair Work Act - emerging trends and key issues

Landmark decision to pave the way for future OH&S prosecutions

Australian Industrial Relations Commission releases final stage 4 awards

Award modernisation is gathering pace, as the 1 January 2010 deadline draws closer