Employment

On 1 September 2016, the Palaszczuk Government introduced the long awaited Industrial Relations Bill 2016 to the Queensland Parliament.  The Bill adopts almost all of the recommendations contained in the Industrial Relations Legislative Reform Reference Group Report, which recommended the introduction of a new Act to replace the current Industrial Relations Act 1999 (Qld).

Last week, a Full Bench of the Fair Work Commission held that permanent employees are entitled to have any previous service as a casual counted for the purpose of calculating notice and redundancy pay under the National Employment Standards (NES) and the enterprise agreement in question – providing the service is continuous, regular and systematic. This is despite the fact that casual employees are not entitled to redundancy pay or termination notice and typically receive a casual loading which compensates for these.

In this edition of Workplace Health & Safety Update:

• Ignore your WHS duty and you might end up in jail
• First conviction for failure to comply with consultation obligations under harmonised WHS regime
• Out of sight and out of mind - can you pass your WHS obligations on to someone else?
• Summary of interesting WHS developments across Australia

Last week, a Victorian employer was convicted of a criminal offence under WHS laws over the persistent serious bullying of an apprentice. This conviction is one of just a handful of criminal convictions in Australia under WHS laws for bullying at the workplace.

In this edition of Workplace Health & Safety Update:

• Failure to comply with Code of Practice results in officer conviction
• Volunteer not a worker
• Personal liability in relation to WHS breaches continues after resignation
• Other interesting WHS developments across Australia

In this edition we look back at some of the key WHS decisions and trends in 2015, and the impact they will have on you in 2016.

• First case to offer guidance about who is an 'officer'
• Requests for WHS information provided to your Board
• What's Ahead? Trends in 2015 that will impact you in 2016

Last week, Parliament finally passed the Fair Work Amendment Bill 2014 – originally introduced nearly 2 years ago in February 2014, but not without some significant amendments from the Senate cross benchers. In fact, only three main areas of the original Bill survive – changes to break deadlocks in negotiations for a greenfields agreements, changes to prevent unions taking protected industrial action to force an employer to agree to enterprise bargaining and a new requirement for an employer to discuss a refusal to extend parental leave. Even the changes to greenfields agreements have come at a price, and the amendments will be reviewed after two years. Other changes did not get through – such as tweaking of unfair dismissal and transfer of business laws, as well as changes relating to annual leave loading and Individual Flexibility Agreements.

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.

On 18 March 2015, the Australian Government announced it will support most of the recommendations in the Independent Review Report Robust New Foundations - A Streamlined, Transparent and Responsive System for the 457 Programme. The recommendations are designed to strengthen the integrity of the Subclass 457 visa program while being responsive to the needs of the business community.

This decision of the Full Court of the Federal Court is another sharp reminder to employers about the need to ensure their policies do not inadvertently become contractual.

Every week, around 12 million Australians go to work in about 2 million workplaces.

2015 is shaping up to be a big year for employers and HR professionals. The first thing that should be on your radar this year is the Fair Work Commission's review of the modern awards. You may want to be involved in this process, or at least keep on top of the developments, as there could be significant changes made to the awards which could impact your business (for example, changes to penalty rates).

2014 was not a year for legislative reform in employment law, but it was a very big year for case law.

The Australian Government announced an independent review of the integrity of the Subclass 457 programme on 25 February, 2014. The review report, 'Robust New Foundations – A Streamlined, Transparent and Responsive System for the 457 Programme' was released in September 2014 with 22 recommendations. On 14 October 2014 the government further announced that the following reforms will be adopted from the review.

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).

Employers are generally aware of the risk that a dismissed employee may file an adverse action claim against them. But how would an organisation handle the reinstatement of a dismissed employee while the matter is being heard? This article outlines the primary issues to consider when faced with an application for an interlocutory injunction.

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 new privacy regime is in full swing, with the pressure on organisations to demonstrate substantial compliance with the new laws. The handling of 'employee records' and information is now receiving considerable attention. OUr privacy team takes a look at the key issues to consider when managing employee information and how organisations and their employees can work together to minimise the risks.

In addition to the 191 Minter Ellison lawyers named in 2014 Best Lawyers Australia list, 23 of our partners have been singled out for an additional accolade – awarded the title of "Lawyer of the Year".

Changes to gender reporting requirements under the new Workplace Gender Equality Act 2014 (Cth) will see tighter requirements placed on universities, the first of which is a submission to the Workplace Gender Equality Agency by 31 May 2014. The new Act replaces the Equal Opportunity for Women in the Workplace Act 1999 (Cth) to more accurately reflect and promote the issues of men and women in the workplace, and universities will be expected to transition to the new reporting and compliance framework over the next two years.

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.

Labour market testing was introduced on 23 November 2013 by the Department of Immigration and Border Protection as a mandatory requirement for all standard business sponsors who wish to nominate a position under the 457 visa program. Nominations that do not supply evidence of LMT and are not exempt from LMT will not be approved by the DIBP.

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.

With the campaign dust now settling, the business community is on standby for a raft of policy changes and refinements raised in the lead-up to poling day. In a series of articles Minter Ellison partners distinguish hard policy from the promises in industrial relations, and consider how the new government might tackle the proposed amendments to FOFA legislation and reframe Australia's climate change policy.

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.

The government has released a discussion paper concerning the employee share scheme administrative and tax arrangements for start-up companies. This is the first major tax policy announcement for the ESS since the 2009 reforms and reflects the government's commitment to growing a robust start-up sector through a review of the regulatory regime.

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. 

On 20 June 2013, the Ministry of Human Resources and Social Security issued Implementing Measures for Administrative License for Labour Dispatch to standardise and formalise the labour dispatch licensing regime in China. The measures came into effect on 1 July 2013 following a discussion draft issued on 19 May 2013.

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.

The Migration Amendment (Reforms of Employer Sanctions) Act 2013 took effect on 1 June 2013. It tightens the criminal offence and civil penalty provisions of the Migration Act 1954 that apply to Australian employers who employ overseas nationals in Australia without a visa or working in breach of their visa conditions.

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.

The PRC Supreme Court recently issued its Interpretation on several issues related to labour dispute cases effective from 1 February 2013. The Interpretation clarified several matters relating to labour law such as service year calculations for employees transferred from one entity to another one, non-compete restrictions, notification requirements of trade unions for early termination of employment, employment of foreign nationals and the validity of change of labour contracts orally.

On Tuesday 12 February 2013, the Minister for Immigration, Brendan O'Connor, announced changes to Australia's visitor visas as part of the federal government's commitment to reducing the number of visa subclasses in Australia's migration program. The changes, which take effect from 23 March 2013, will reduce the number of visitor visa subclasses from nine to five, in addition to other minor changes.

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.

On 4 March 2013, the Queensland Government released Draft Implementation Guidelines for the Queensland Building and Construction Industry Code of Practice. The Draft Guidelines set requirements which building and construction industry participants must adhere to if they are to engage in Queensland Government funded work. They are set to start operating from 1 July 2013. We explain why this announcement is important and what employers should do. Consultation closes on 21 March 2013.

The Minister for Immigration, Brendan O'Connor announced proposed changes to the Subclass 457 temporary work visa program. The changes will require employers to demonstrate that genuine skills shortages exist before they employ 457 visa holders and will 'tighten' the scheme to ensure local workers are getting a 'fair go'.

On 22 January 2013, the PRC Supreme Court issued a judicial interpretation for criminal cases related to the non-payment of employees' remuneration. The Interpretation has clarified certain aspects of the criminal sanctions that may apply for the non-payment of employees' remuneration, increasing the risk of prosecution for non-compliance.

A report commissioned by the Fair Work Ombudsman (FWO) has found that a significant number of workers in Australia, particularly young and migrant workers - are performing unpaid work, often in breach of employment and migration laws.

On 25 January 2013, Federal Minister for Employment and Workplace Relation, Bill Shorten, issued the Building Code 2013 (Federal Code) under the Fair Work (Building Industry) Act 2012 (Cth).

On Saturday 24 November, the highly anticipated Significant Investor visa opened for business. The Significant Investor visa is a new stream of the existing Subclass 188 (provisional) and Subclass 888 (permanent) business visas. It is available to individuals who are prepared to invest AUD5 million into 'complying investments' in Australia and is designed to encourage more genuine and higher quality investments into business and innovation in Australia.

From Saturday 24 November 2012, a number of Australian visa subclasses will be closed to new applicants, three new visa subclasses will be introduced, and there will be changes to operation of the Entertainment (Subclass 420) and Business (Long Stay) (Subclass 457) visas. These changes are part of the Australian Government's long-term plan to simplify Australia's visa program by reducing the number of visa subclasses.

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).

The Federal Government has introduced new eligibility criteria for the APEC Business Travel Card (ABTC) scheme that broaden the range of eligible organisations.

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.

On 16 July 2009, the Australian and New Zealand Governments entered into the Trans-Tasman Retirement Savings Portability Arrangement (Arrangement).

The Arrangement was stated as having the intention of enhancing a seamless trans-Tasman labour market by providing the ability for retirement savings to be transferred between an Australian complying superannuation fund and a New Zealand KiwiSaver scheme, with minimal compliance and administration costs. The Arrangement is subject to a number of restrictions, as outlined in the Arrangement document.

On 19 September 2012, the Federal Government introduced the Migration Amendment (Reform of Employer Sanctions) Bill into Parliament. The Bill targets employers who knowingly or unknowingly employ illegal workers, and implements the Government's response to the 2010 Howells Review into the effectiveness of the existing employer sanctions regime.

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.

With a view to improve the protection of workers' rights and interests and better regulate the labour dispatch regime, on 6 July 2012, the Standing Committee of the National People's Congress of China released the Draft Amendments to PRC Labour Contract Law. This Alert outlines the five primary modifications to the labour dispatch regime contained in the draft amendments.

On Friday 25 May 2012, Immigration Minister Chris Bowen announced the approval of the first Enterprise Migration Agreement (EMA) for Hancock Prospecting’s Roy Hill Project in the Pilbara region of Western Australia.

This alert explains the implications for project owners, prime contractors and subcontractors of major resource projects, and how to obtain approval for an EMA or a template labour agreement.

On 28 April 2012, the China State Council released the Special Provisions on Labour Protection for Female Employees ('the New Provisions'). The New Provisions came into force on that same date, and superseded the Provisions on Labour Protection for Female Employees promulgated on 21 July 1988.

The New Provisions provide better protection to female employees and cover prohibited work, maternity leave, maternity insurance and sexual harassment.

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.

This Alert considers two recent cases that raise important issues for professionals in the health sector. The first case considers when the private conduct of a professional is incompatible with membership of a profession. The second examines the grounds for granting a stay of proceedings when allegations of misconduct are made years, or decades, after the alleged events took place.

2011 was a landmark year for listed companies, with the 1 July 2011 commencement of the Corporations Amendment (Improving Accountability on Director and Executive Remuneration) Act 2011 triggering changes in the way that AGMs are conducted.

In this article, we review the 2011 season and discuss practical steps you can take for your company's AGM in 2012. (For detailed discussion of the impact of the 'two strikes' rule, please see our article 'Did you receive a strike, or comments, on your remuneration report in 2011?', also in this issue).

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

Immigration Minister Introduces New Sponsorship Accreditation System

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?

The Corporations Amendment (Improving Accountability on Director and Executive Remuneration) Bill 2011 (Cth) passed through the House of Representatives on 12 May 2011, and will now progress to the Senate. There were two developments worthy of note during the passage of the Bill through the House.

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