Insights & News

December 17, 2024

The High Court in Elisha v Vision Australia Ltd  [2024] HCA 50  has overturned a century-old body of case law by determining that the Applicant, Mr Elisha, was entitled to claim psychiatric damage for a breach of his employment contract arising from his former employer’s flawed workplace investigation into his conduct.

In doing so, the High Court found the employment contract between the parties incorporated Vision Australia’s disciplinary policy, which contained promissory terms including, where concerns of a serious nature are alleged, specific procedures, including a formal disciplinary meeting and a letter containing a written outline of allegations.

Background

Mr Elisha commenced employment with Vision Australia in 2006 as an adaptive technology consultant. During a work-related hotel stay, Mr Elisha was involved in an incident in 2015 with hotel staff, where he was accused of engaging in aggressive behaviour (Hotel Misconduct).

On 19 May 2015, Mr Elisha met with his manager who told him there was a “serious” complaint against him and gave him a “stand down letter” that required his attendance at a meeting two days later. The letter stated that the meeting would be conducted in accordance with Vision Australia’s enterprise agreement and disciplinary procedure. The allegations in the stand down letter were confined to the Hotel Misconduct.

At the meeting on 21 May 2015, Mr Elisha denied the Hotel Misconduct.

On 22 May 2015, during a meeting of Vision Australia’s management staff, a recommendation to prefer the hotel proprietor’s account of the incident was accepted and this finding was informed by previous allegations of aggressive behaviour by Mr Elisha, which were not put to him during the 19 May meeting.

Based on those findings, Mr Elisha’s employment was then terminated, and he was subsequently diagnosed with major depressive disorder.

What did the High Court consider?

Incorporation of Policies into the Employment Contract

A key issue was whether Vision Australia’s disciplinary policies were incorporated into Mr Elisha’s employment contract.

The employment contract stated that the employment conditions were to be in accordance with Vision Australia’s policies and procedures and that acceptance of the contract by the employee required him to agree that he would comply with those policies and procedures.

The Court found the inclusion of these terms meant that a reasonable person in the position of the parties would have understood these clauses created contractually binding obligations; and rejected Vision Australia’s claims that these obligations were “one-sided” and merely required Mr Elisha to obey lawful direction from it. The majority stated that it would “‘defy both logic and common sense’ to suggest an employer who was subjecting an employee to disciplinary action according to policies would not similarly be bound by those policies.”

Breach of Contract and Psychiatric Injury

The High Court also considered whether Vision Australia’s procedural failures made it liable for Mr Elisha’s psychiatric injury.

Scope of Duty

A clear distinction was made between what was referred to as a ‘scope of duty’ and the remoteness of damages under contract.  Scope of duty refers to a contractual duty imposed on an employer through terms of an employment contract (such as an obligation to conduct a fair and proper investigation) which is generally not ‘inherently designed to prevent psychological injury’.

In contrast, remoteness of damages is the determination of damages that occurred which was in the reasonable contemplation of the parties at the time of entering a contract.

Remoteness of Damage

The psychiatric injury suffered by Mr Elisha arising from the termination of his employment was found by the Court to not be too remote. Although the Court found damages for psychiatric injury upon entering the employment contract would not have been reasonably contemplated by the parties, the Court found that it was reasonable to expect that Mr Elisha would have been so distressed by the manner in which Vision Australia breached the employment contract and the consequences of the breach for him, that there was a serious possibility that Mr Elisha would suffer serious psychiatric harm.

In coming to this conclusion, the Court declined to follow a decision of the House of Lords in Addis v Gramophone [1909] AC 488, concluding that “over the last century, a great deal of water has passed under the bridge of Addis”.

Negligence and Duty of Care

The Court has previously found that there is no general common law duty of care to provide safe systems of work encompassing the provision of a safe system of investigation and decision making.

As the Court upheld Mr Elisha’s breach of contract claim, the majority found it unnecessary to consider this issue further.

Although the Court did not definitively rule on the negligence claim, it noted the significant challenge in establishing a novel duty of care in the context of disciplinary and termination processes.

Takeaways

The conclusion in this case stemmed from the finding that policies and procedures of Vision Australia were incorporated into Mr Elisha’s contract of employment. In not following the disciplinary procedure contain within those policies and procedures, Vision Australia breached the contract of employment.

This conclusion in itself is not novel.

What the decision makes clear is that there is an ability for an employee who suffers a psychological injury arising from the termination of their employment in a manner inconsistent with the contract of employment to seek damages for that injury.

What arises from the decision is the need to ensure that employment contracts are carefully drafted and do not inadvertently incorporate workplace policies that would impose binding obligations on an employer.

Employers should review their employment contracts in view of this decision.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

November 18, 2024

Statistically speaking the deck is stacked against Australian small business, with 60% of new ventures failing in the first three years*. Combined with the challenge of navigating a global pandemic, and specialist workplace law firm Kingston Reid’s 5th birthday seems even more impressive. On 18 November 2019, Kingston Reid opened their doors across Sydney, Melbourne, and Perth with a founding team of 45. The name Kingston Reid might have been new, but the experience and footprint in Australia was anything but: most of the founding team having worked together for many years.

Despite the risks, DeBoos notes that Kingston Reid’s formation was a calculated play “given the gap in the market for a top-quality firm focused solely on workplace issues”. Five years on and there is tangible evidence with respect of this firm’s success: equal footing with ‘top tier’ firms in all legal directories, industry recognition from peers and independent research firms and “legal victories that have made a tangible difference to our client’s organisations and to the development of the law” says DeBoos. Yet none of these outcomes would have possible without the team which now boasts 16 partners (5 promoted internally) an office in Brisbane and a broader team more twice the size of the original 45-person outfit who saw ‘Day 1’. Rather than simply being lucky, DeBoos credits the firm’s focus on fostering a ‘Thrive culture’, where every team member is encouraged to grow personally and professionally. “Our team’s trust and respect for each other have been our greatest strength, and in my view the secret to our success” DeBoos shared.

To those not familiar with Kingston Reid’s expertise, they partner with clients to address their most pressing workplace law concerns – navigating the issues that matter the most. The firm represents employers in all workplace-related jurisdictions across all industries, including government, construction, ports and logistics, manufacturing, utilities, retail, banking and finance, professional services, IT and health. “Our work has impacted our clients in really important ways, from large-scale industrial disputes, sensitive litigation and investigation and incidents to crafting effective employment strategies. We’ve been there in times of crisis, like helping clients navigate tragic workplace events, and in times of growth, helping them protect and build their businesses” says DeBoos.

Obviously the 5-year journey has not been without its challenges, DeBoos revealing that one of the most valuable lessons learned along the way is the importance of flexibility and resilience – ‘rolling with the punches’. “You need to accept that nothing stays the same, and you always need to adapt” DeBoos says. The desire to ‘keep on keeping on’ DeBoos largely credits to the loyalty extended by Kingston Reid’s clients and its people – “we don’t manufacture widgets, we provide insights, expertise and analysis and we’re fortunate to have the best people delivering just that”. On the firm’s future DeBoos unashamedly expects continued growth, explaining that the original vision for Kingston Reid was never just to serve the founding Partners, rather it is “about building a sustainable future and a legacy for our team – and that remains true today”. Congratulations Kingston Reid!

*Source: ABS

November 15, 2024

The Industrial Relations Legislation Amendment Bill 2024 (WA) (Bill) was passed by State Parliament on 6 November 2024 and Royal Assent was given on 13 November 2024.

The Bill aims to modernise Western Australia’s (WA) state employment laws by amending the Industrial Relations Act 1979 (WA) (IR Act) and the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) to more closely align them with standards set out in the Fair Work Act 2009 (Cth) (FW Act).

Most changes introduced by the new legislation will commence on 31 January 2025, with other changes commencing at a later date.

The key reforms that take effect from 31 January 2025 include:

• introducing a new prohibition on sexual harassment in connection with work, consistent with the provisions contained in the FW Act;
• increasing casual loading for casual employees from 20% to 25%;
• introducing a new minimum condition enabling employees with at least 12 months’ service to request a flexible working arrangement in certain circumstances’;
• providing a new objective test for the terms “employee” and “employer” and “casual employee”, which is based on the real substance and practical reality of the relationship rather than strict contractual terms;
• increasing civil penalties for employers who contravene WA State employment laws; and
• establishing a fit and proper person test for a union official to obtain a right of entry permit under the IR Act.

The Bill also provides for the following reforms, which will come into effect at a date to be proclaimed:

• a transfer of jurisdiction to the WA Industrial Relations Commission (WAIRC) to hear industrial matters regarding public sector workers; and
• improved regulation of registered industrial agents.

Further details regarding the reforms are outlined below.

Prohibition on sexual harassment in connection with work
Consistent with the amendments to the FW Act that took effect in March 2023, the Bill amends the IR Act to include a prohibition on sexual harassment in connection with work.

An aggrieved person may make an application to the WAIRC for a stop sexual harassment order, and/or refer the matter to the WAIRC for it to deal with the sexual harassment allegation via its conciliation and arbitration powers.

Employers may be vicariously liable for the acts of their employees or agents unless they can prove they took all reasonable steps to prevent the sexual harassment from occurring.

Compensation awarded for a sexual harassment referral is uncapped and may cover:

• loss or injury;
• medical expenses; and
• damages for hurt, humiliation, and stress.

Amendments to the MCE Act
The key amendments to the MCE Act are as follows:

• The casual loading rate for casual employees will be increased from a 20% loading to a 25% loading of the relevant statutory minimum wage.
• The public holidays provisions will be amended to:
  • provide employees with the right to be absent from work on a public holiday with pay, as if they had worked their ordinary hours;
  • permit employers to request an employee to work on a public holiday if the request is reasonable; and
  • allow employees to refuse a request to work if the request is unreasonable or if the refusal is reasonable.Factors relevant to assessing the reasonableness of a request or refusal include whether the employee is entitled to penalty rates or other compensation for working on the public holiday, and the nature of the employer’s business.
• Introducing a new minimum condition enabling employees with at least 12 months’ service to request a flexible working arrangement in certain circumstances, such as where the employee is returning from parental leave, has a disability or is experiencing family and domestic violence.

Increased penalties
The Bill will increase the maximum penalty for breaches under the IR Act from:

• $65,000 for a body corporate ($650,000 for a serious breach) to $93,000 for a body corporate ($930,000 for a serious breach); and
• $13,000 for an individual ($130,000 for a serious breach) to $18,000 for an individual ($180,000 for a serious breach).

This increase ensures that penalty levels remain closely aligned with those in the FW Act.

Objective test for employees
The Bill will also align the IR Act with the recent changes to the FW Act, by introducing an objective test for determining:

• whether a worker is classified as an employee; and
• whether an employee is considered a casual employee.

The amendments address recent High Court decisions that give primacy to the contractual terms when determining the relationship between the parties. The Bill restores the previous common law approach, which focuses on the reality and substance of the working arrangement rather than strict contractual terms.

This objective test will also apply under the MCE Act and the Long Service Leave Act 1958 (WA) for purposes of determining if a worker is an employee.

Transfer of jurisdiction – public sector workers
The Bill will abolish the Public Service Arbitrator and the Public Service Appeal Board and transfer its jurisdiction to the WAIRC. The WAIRC will have the power to deal with a claim from a person alleging a breach of a public sector standard that relates to one or more of the following:

• employee transfers;
• employee performance management;
• employee redeployment;
• termination of employment; and
• grievance resolution.

The WAIRC will be authorised to both conciliate and arbitrate claims alleging breaches of the public sector standards. However, the WAIRC will not have the authority to award compensation to an employee in cases where it determines a standard has been breached.

Increased regulation of industrial agents
The Bill will strengthen the regulation of registered industrial agents by:

• Establishing a registration scheme for industrial agents, to be prescribed by regulations, which includes minimum qualifications and experience requirements.
• Requiring industrial agents to hold and maintain professional indemnity insurance.
• Empowering the Registrar of the Commission to inquire into the conduct of industrial agents.
• Providing the Full Bench of the Commission with the ability to hear and determine whether grounds exist for disciplinary action against an industrial agent. If such grounds exist, the Commission may issue orders, including suspension or cancellation of the agent’s registration.

Key Takeaways
Given that many of the reforms will take effect from 31 January 2025, employers in WA’s state system must quickly get on top of the impending changes.

Affected employers may wish to:

• take proactive measures to prevent sexual harassment, for example by reviewing and updating policies on anti-harassment and by providing training to workers;
• consider whether any policies and/or contracts require updating to reflect the amendments to the MCE Act; and
• be alive to the changes to the way in which the employment relationship is assessed and consider whether legal advice is required in respect of any arrangements with casuals.

Legal advice should be sought before seeking to vary employees’ terms and conditions of employment. Please reach out to a Partner in Kingston Reid’s WA office if you have any questions on how the new laws may affect your business and how you can best prepare.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

October 31, 2024

Halloween can be a scary time of year … Ghouls, goblins, the potential ban of TikTok and the sequel to the Joker movie top the list of frightening things on this horrifying day. For employers however, the real fear is making it to the end of the year without any significant employment or workplace safety issues arising.

With this in mind, and to guard against the risk of any skeletons coming out of the closet, we have provided a spooky summary of recent workplace decisions and some tips to keep in mind as we head into the festive season.

Don’t always believe the scary stories

In a stark warning to employers who undertake internal workplace investigations, the Fair Work Commission (FWC) recently ordered an employer to pay compensation to an employee who was summarily dismissed, based on “scanty” hearsay and the “sheer number of allegations”.

In Vanitaben Panchal v Bulla Mushrooms (Aust) Pty Ltd[1], a Team Leader faced allegations of bullying and discrimination in 2022 and 2023, including claims of assigning inappropriate tasks (like cleaning toilets), cutting hours, imposing unreasonable deadlines, isolating a worker wearing a burka, and excluding African, Australian, and Filipino workers from a performance scheme that provided bonuses. The employer put these allegations to the Team Leader, who denied them, but the employer substantiated the allegations on the same day and gave the Team Leader 24 hours to respond after denying a request for an extension of time. The Team Leader was summarily dismissed on 7 June 2024.

In support of her unfair dismissal application, the Team Leader submitted that the decision to dismiss was pre-determined and that she believed the employer invented the allegations to find a reasonable excuse for dismissal. In response, the employer tendered evidence from the Chief Executive Officer (CEO) who said that the employer had recruited a new manager in March 2024 who had discovered the “manipulative streak” of the Team Leader and prompted an investigation into allegations involving her inappropriate workplace conduct.

The CEO said the investigation determined that the Team Leader engaged in “years of systemic racism and abuse of power, and that a range of workers had “shared distressing accounts of bullying” by the Team Leader, but were “reluctant to speak up” due to fear of reprisal.

A representative of a labour-hire provider to the employer also gave evidence that 26 workers had made complaints against the Team Leader alleging “sub-human treatment”.  However, there was no evidence of these complaints provided to the FWC.

The FWC considered the evidence and determined that it could not be satisfied that the Team Leader had engaged in bullying or discrimination, because “contrary to the company’s contention, the evidence in this matter is not compelling”. For this reason, the FWC determined that none of the allegations were substantiated and the employer had no valid reason for dismissal, with, Deputy President Coleman making the following comments[2]:

“It is scanty, conclusory, and largely second hand, that is to say, hearsay … it [the employer] appeared to believe that the sheer number of allegations against [the Team Leader] presented a persuasive case of guilt. But not a single one of these allegations has been substantiated. In particular, the allegations that [the Team Leader] discriminated against other employees on the grounds of race or religion rely on mere assertions …”

“When persons with a protected attribute allege that they have been treated less favourably than others because of that attribute, the appropriate response is to investigate the matter and reach a reasoned conclusion as to whether, on the balance of probabilities, the allegation is actually true. It is unreasonable and unfair to presume that it is …”

“The fact that there may be multiple allegations does not lower the standard of proof.”

The Team Leader did not seek reinstatement and the FWC ordered the employer to pay the Team Leader compensation for being unfairly dismissed.

This decision highlights the importance of undertaking a robust investigation that is procedurally fair and adheres to the principles of natural justice. With this in mind, we recommend that employers should ensure that all evidence gathered during an investigation is credible, recorded and appropriately considered before making findings.

Exorcise the ‘Tick and Flick’ Approach: Bring Your Policies and Procedures to Life

In the recent decision of Ramlan Abdul Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates[3] (Phosphate Resources), the FWC considered the importance of effectively communicating and training employees in policies and procedures in the context of the dismissal of a long-serving truck driver for serious misconduct.

In Phosphate Resources, the employer sought to rely on regulation 1.07 of the Fair Work Regulations 2009 (Cth) (Regulations) to characterise the employee’s harassment of a colleague, including frequent inappropriate comments, as serious misconduct.

Deputy President O’Keeffe rejected this argument and distinguished an employee engaging in harassment from sexual harassment, with only the latter being contemplated in the definition of serious misconduct set out in the Regulations. Pursuant to a finding that the employee’s behaviours did not have a sexual undertone and were best described as bullying, the Deputy President considered whether the employee’s bullying behaviours had created a serious and imminent risk to the health and safety of the colleague on the receiving end of this conduct. While accepting that the colleague was upset, unhappy and uncomfortable, the Deputy President found that this did not amount to evidence of a serious and imminent risk to his health and safety and was therefore not serious misconduct within the meaning of the Regulations.

While the Deputy President found that the employee’s behaviour did not amount to serious misconduct, the totality of the employee’s behaviour, including bullying, “victim blaming” his colleague and showing a lack of appropriate remorse for his conduct, amounted to a valid reason for termination of employment. As the employer had written to the employee setting out the allegations against him and invited him to respond, the employer was also found to have afforded the employee procedural fairness in the lead up to dismissal.

However, in exercising his discretion under section 387(h) of the FW Act to consider any other relevant matters, the Deputy President ultimately found that the dismissal was harsh and the employee was entitled to a remedy for unfair dismissal, having regard to the employee’s:

• length of service of approximately 20 years with no disciplinary history of note;
• anticipated difficulties obtaining alternate employment, due to being 62 years of age, having limited English and the limited job prospects available on Christmas Island where the employee lives;
• claim that he was unaware of the policies the employer alleged his conduct contravened.

The final point is an important reminder for employers to consider strategies for effective implementation of policies and procedures. Deputy President O’Keeffe found that the employer’s discussion of its Code of Conduct at a toolbox meeting and providing copies of the presentation for employees to take was insufficient to promote serious workplace behavioural requirements to employees and appeared to be part of a “tick and flick” exercise in ensuring employees were aware of policy requirements.

In light of this decision and particularly coming up to the festive season, we recommend employers consider the following to ensure they are best placed to demonstrate employee awareness of policies and procedures:

• Conduct a review of policies and procedures to ensure they clearly communicate the expectations for employee conduct in a way that is likely to be understood by the specific workforce.
• Provide appropriate and interactive training for employees that is tailored to the demographics of the employer’s workforce, such as by taking into account cultural or language differences.
• Maintain records of employee training in policies and procedures.
• Ensure employees are bound by the terms of their employment contract to comply with policies and procedures.

Also, given the serious nature of the allegations in this decision, the FWC has made clear that any failure to follow proper process and policy can see an employer come unstuck. For this reason, a serious approach needs to be adopted.

[1] [2024] FWC 2784.

[2] [2024] FWC 2784 at [24].

[3] [2024] FWC 2868.

If you require assistance

Don’t be haunted by questions about the above cases. If questions are creeping up on you or if you’re facing any bone-chilling employee issues, contact Kingston Reid for advice before things turn into a fright!

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

October 17, 2024

With the legalisation of medicinal cannabis in Australia, employers are increasingly confronted with complex challenges, particularly in balancing their obligations under Work Health and Safety (WHS) laws and the rights of workers who use prescribed medicines. The evolving regulatory landscape, coupled with uncertainties around the effects of medicinal cannabis impairment, demands careful consideration from employers, especially in sectors where safety-critical roles are involved.

The legislative landscape

The legalisation of medicinal cannabis (at the federal level) began in Australia in February 2016, with subsequent amendments across states and territories allowing access to medicinal cannabis through regulated prescriptions.

While this legislative shift has provided new treatment options for individuals with conditions like chronic pain and anxiety, it also raises significant compliance challenges for employers, who have a duty to ensure, so far as reasonably practicable, a safe working environment for all workers, which includes managing the hazards and risks associated with a worker’s use of medicinal cannabis.

Employers are expected to conduct risk assessments to identify hazards, particularly those related to impairment. However, there remains a grey area as to how to accurately assess impairment caused by medicinal cannabis, making it difficult for employers to define and manage such risks in the workplace.

The impact of impairment

In this regard, the most significant challenge for employers arises from the fact that there is no reliable, objective test to determine the level of impairment caused by medicinal cannabis. This is further complicated by the way cannabis is metabolised by individuals, as the psychoactive component of cannabis, (tetrahydrocannabinol or ‘THC’), affects individuals in varying ways, and the impact of these effects can be difficult to quantify, even with advanced testing methods.

While the primary concern for employers is ensuring that employees are not impaired while performing safety-critical tasks (such as work that is defined as high risk), the absence of a reliable, objective test for impairment complicates this considerably.

Unlike alcohol, where blood alcohol concentration (BAC) can be easily measured to provide a relative indication of impairment, no such standard exists for medicinal cannabis. THC can remain detectable in the body for days or even weeks, long after its impairing effects have subsided. Further to this, the level of THC in medicinal cannabis varies greatly, ranging from a THC concentration of just 2% all the way up to 98%.

Current testing methods, such as urine or oral fluid tests, only detect the presence of the drug, not whether the individual is impaired at the time of testing. This creates a significant problem for employers, as a positive test result for THC does not necessarily mean that the worker is unfit for performing high risk work. While THC can remain detectable in the body for several days, impairment may last for only 8 to 10 hours. As such, an employee may test positive for THC long after the impairing effects have worn off, leading to potential conflicts when applying workplace drug and alcohol policies.

This issue is particularly pressing in safety-critical industries, such as construction, transport, and manufacturing, where even the slightest level of impairment can pose significant health and safety risks. Given that there is currently no universally accepted standard for impairment testing, employers must instead navigate a complex environment where a positive drug test result may not necessarily indicate that an employee is impaired or otherwise unfit for work.

Challenges in developing and applying workplace policies

Employers face challenges in developing clear and fair drug policies that cover and manage workers who use prescribed medicinal cannabis. Key issues that a policy may struggle to address include:

1. Defining Impairment: without a reliable test for impairment, employers often grapple with how to define ‘impairment’ in their policies. Some organisations try to rely on observable signs of impairment, such as difficulty concentrating or changes in behaviour, while others adopt stricter “zero-tolerance” policies that apply to any detectable level of THC in the system.
2. Disclosure Requirements: employers can require employees to disclose their use of prescribed medicinal cannabis, particularly if they are in safety-critical roles. However, consideration must be had to procedural fairness following the disclosure or use of legally prescribed medication. Disclosure accuracy may also be questioned where workers are hesitant in disclosing their use depending on the type of safety-critical or high risk work they are engaged in, when there is a likelihood that in order to perform their work they must return a negative test.
3. Balancing Safety and Fairness: while employers are legally required to maintain a safe workplace, overly harsh workplace policies may lead to unfair treatment of employees who are using prescribed medicinal cannabis to manage serious medical conditions. It is essential to balance the need for safety with the rights of workers who are prescribed cannabis.

A recent case study

A recent unfair dismissal decision[1] serves as an important illustration of the complexities employers face when managing employees prescribed medicinal cannabis. In this case, a stevedore who was prescribed medicinal cannabis failed to disclose his use of medicinal cannabis to his employer and later returned a non-negative result in a random drug test. He was dismissed for breaching the company’s drug and alcohol policy, which had been in place for over a decade.

The employee argued that he was capable of performing his duties safely and without risk, but his application was ultimately rejected by the Fair Work Commission, which found that the stevedore’s failure to declare his prescription and the significant amount of THC detected in his system (42 times the standard cut-off) were valid grounds for dismissal, especially given the safety-critical nature of his role.

The Commission noted that while the employee’s long service may warrant some sympathy, it did not excuse significant breaches of company policy, particularly when those breaches could compromise workplace safety. This case highlights the need for employers to implement clear policies regarding medicinal cannabis use and the importance of communication between employees and employers to ensure compliance with safety protocols.

Moving forward: recommendations for employers

Given the rapid increase in medicinal cannabis prescriptions in Australia—more than 1 million in 2024 so far—employers must be proactive in addressing the challenges associated with its use in the workplace.

Some key steps for employers include:

• Education and Training: employers should ensure that both management and employees are educated on the potential risks associated with medicinal cannabis use and the importance of reporting prescribed drug use, particularly in safety-sensitive workplace environments.
• Policy Development: employers should regularly review and update their drug and alcohol policies to reflect the changing legal and medical landscape of medicinal cannabis. Policies should be flexible enough to accommodate prescribed use while maintaining appropriate safety standards.
• Monitoring Emerging Technologies: as new methods for testing impairment become available, employers should stay informed and consider adopting these technologies to ensure fairer and more accurate assessments of employee fitness for work.

The legalisation of medicinal cannabis in Australia represents both an opportunity and a challenge for employers. While it offers many workers an alternative treatment for chronic conditions, it also presents significant risks, particularly in industries where safety is paramount.

Employers must strike a careful balance between upholding their WHS obligations and supporting workers who are prescribed medicinal cannabis. By developing clear policies, fostering open communication, and staying informed on advancements in impairment testing, employers can navigate this evolving landscape more effectively.

[1] Michael Gauci v DP World Brisbane Pty Limited [2024] FWC 2351

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

October 10, 2024

On Wednesday 18 September 2024, the Industrial Relations Legislation Amendment Bill 2024 (WA) was introduced as part of the West Australian Government’s wider reforms to the State’s employment laws.

The Bill continues the Government’s aim to modernise the State system and includes proposed changes which see minimum conditions brought into line with those of the Federal system.

At this stage, the key reforms contained within the Bill include:

• adopting certain minimum conditions equivalent to the National Employment Standards in the Fair Work Act 2009 (Cth), such as requests for flexible working arrangements and allowing employees to refuse to work public holidays in certain circumstances;
• raising the statutory minimum casual loading for employees from 20% to 25%, which is in line with the casual loading applied in the Federal system;
• expressly prohibiting sexual harassment in connection with work;
• redefining the terms “employee” and “employer”, as well as providing a new objective test to determining who is a casual employee, based on the real substance and practical reality of the working relationship rather than the strict contractual terms;
• increasing civil penalties, which will be more in line with the civil penalties seen in the Federal system. Maximum penalties would increase from $65,000 to $93,000 for a body corporate and $13,000 to $18,000 for an individual, along with higher maximum penalties for serious contraventions;
• abolishing the Public Service Arbitrator (PSA), the Public Service Appeal Board (PSAB) and the redundant Railways Classification Board. The jurisdiction and powers of the PSA and PSAB will be transferred to the general jurisdiction of the West Australian Industrial Relations Commission (Commission);
• establishing a new framework for right of entry permits, including the introduction of a “fit and proper person” test, that requires the Commission to consider a range of criteria, such as whether the person has even been convicted of an industrial law, or has any conviction involving the intentional use of violence or damage to property; and
• improving the regulation of registered industrial agents, including allowing the Regulations to dictate minimum qualifications and experience and allowing the Registrar to inquire into the conduct of an industrial agent.

The Bill is currently being considered by State Parliament and the proposed reforms will only come into effect if the Bill is passed and will apply only to those employees who fall within the State system, such employees of Government departments.

Kingston Reid will keep you updated as the Bill progresses and if it is ultimately passed. In the meantime, do reach out to one of our Perth Partners Duncan Fletcher, Beth Robinson, James Parkinson and Michael Stutley if you have any questions about the proposed new laws and their implications for your organisation.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

With effect from 1 July 2025, Queensland employers will be required to comply with broadened anti-discrimination laws, including new attributes, definitions and an expanded positive duty to eliminate all discrimination, harassment and objectionable conduct.

The Queensland’s Respect at Work and Other Amendment Bill 2024 (Qld) (Respect@Work Bill) adopts a broader approach than the national standards, by introducing a new positive duty to take reasonable and proportionate measures to eliminate discrimination on the basis of all protected attributes, as well as sexual harassment.

Key legislative changes at a glance

The Respect@Work Bill introduces several critical changes to the Anti-Discrimination Act 1991 (Qld) (AD Act) and the manner in which discrimination matters are to be handled. At a glance, the legislative changes include:

• introduction of a broader positive duty, covering all forms of unlawful discrimination, harassment and objectionable conduct;
• introduction of new protected attributes of ‘expunged convictions’, ‘homelessness’, ‘irrelevant criminal record’, ‘irrelevant medical record’, ‘physical appearance’ and ‘subjection to domestic or family violence’;
• modernising existing attributes, such as replacing ‘pregnancy’ to ‘pregnancy and potential pregnancy’;
• protection for a combination of two or more attributes;
• shifts the burden of proof to the respondent in anti-discrimination applications. This means the complainant only needs to establish the asserted discrimination, then the burden shifts to the respondent to prove the reason for the conduct was not because of the attribute;
• introduction of investigative powers to the Queensland Human Rights Commission (QHRC) into systematic issues involving discrimination on the basis of sex and new enforcement powers to ensure employers’ compliance with positive duties;
• redefining ‘direct discrimination’, where the attribute causing discrimination need only be one of the reasons (as opposed to being the substantial reason) for the unfavourable treatment (as opposed to less favourable);
• redefining ‘indirect discrimination’ to imposing a condition, requirement or practice that has, or is likely to have the effect of disadvantaging another person because of the attribute and such imposition is not reasonable. This can include creating an environment in which a person with an attribute is disadvantaged. The considerations of reasonableness have been expanded;
• an aggravating sentencing factor where an adult offender has used violence or caused physical harm to a person in their workplace. This includes sexual assaults;
• extended timeframe to file a complaint regarding harassment and discrimination to two years;
• new prohibitions of harassment based on sex and hostile work environments; and
• permitting representative complaints which will commence on 1 December 2024.

Positive Duty: extending beyond sexual harassment

The Respect@Work Bill adopts the national standard of a positive duty, however expands it to cover all forms of unlawful discrimination, harassment and objectionable conduct. This means employers must take reasonable and proportionate steps to eliminate all unlawful discrimination, including direct and indirect discrimination.

The Explanatory Memorandum provides guidance on how an employer can comply with its positive duties, such as:

• implementing policies that promote respectful workplace behaviour;
• ensuring easily accessible information is available;
• conducting surveys to assess awareness and experiences of discrimination or harassment in the workplace;
• addressing disrespectful or unlawful behaviour through informal or formal disciplinary actions; and
• ensuring leaders regularly communicate and reinforce respectful behaviour expectations.

New QHRC Investigative Powers

Like the Australian Human Rights Commission, the Respect@Work Bill grants the QHRC expanded investigative powers, allowing it to intervene when it suspects non-compliance with positive duty obligations, or where there is, or suspected to be, systematic issues relating to a work-related contravention on the basis of sex.

In circumstances where the QHRC finds non-compliance with positive duties, the QHRC has the powers to:

• enter into enforceable undertakings with the duty holder;
• issue a compliance notice; and
• seek tribunal-ordered compliance.

For investigations into systematic work-related contraventions on the basis of sex, the QHRC may prepare a report to be provided to the Minister to be tabled within six sitting days of receiving it.

Prevention Plan

The new legislative requirements will also interact with the recent amendments to the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation) which requires PCBUs to prepare, consult and implement a sexual harassment prevention plan by 1 March 2025.

The plan must outline and assess the risks related to sexual harassment, control measures to mitigate those risks and clear procedures for reporting and handling harassment incidents. The plan must be accessible to all employees, and reviewed regularly after an incident, requested by a WHS representative, or otherwise every three years.

Failure to comply can result in fines of up to $9,678 for an individual (or $48,390 for corporations).

We consider it possible that the obligation to prepare a prevention plan will be taken into account when considering whether an employer has met the positive duty under the Respect@Work Bill. Employers will need to consider preparing a prevention plan which not only deals with sexual harassment but all forms of unlawful discrimination.

Takeaways for 2025

With the commencement of the new legislative changes approaching, Queensland employers and any organisation that has Queensland operations must take immediate action to ensure compliance with the new laws. This will include:

1. Preparing a Prevention Plan, addressing the risks, control measures and reporting procedures in accordance with the WHS Regulation and regulations. Consider conducting workplace surveys and undertake risk assessment to tailor the plan to the business’ specific risks. This plan must be implemented by March 2025. 
2. Reviewing workplace environments to ensure that employees are not exposed to a hostile work environment on the basis of sex. 
3. Reviewing and updating workplace policies and trainings to ensure it aligns with the new AD Act, incorporating new protected attributes, distribution and training of the prevention plan and positive duties. Managers should actively promote and model respectful behaviour, setting a tone that aligns with the new legislative requirements. 
4. Preparing for QHRC oversight by training relevant employees to cooperate with any QHRC investigations and keep through documentation of preventive actions.

Given Queensland’s broader approach, it is possible that other states may follow suit, adopting similar measures to address discrimination and harassment more comprehensively. Employers across Australia will need to keep an eye on these developments, as the landscape of workplace compliance continues to evolve.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

The past few months have seen significant developments in workplace law, with one of the most notable being the administration of the Construction and General Division of the CFMEU. Mark Irving KC has taken on the formidable task of cleaning up Australia’s most notorious union, amidst shocking allegations of bribery, corruption, and links to outlaw motorcycle gangs.

These revelations have sparked widespread controversy, igniting urgent calls for reform, and exposing a troubling picture of union leadership plagued by criminal influence and self-interest. In response, the government introduced legislation to streamline the path to administration, ultimately resulting in:

1. approximately 280 officials being removed from their union positions;
2. an interim investigation by Geoffrey Watson SC revealing that the Victorian branch has been infiltrated by organised crime and embroiled in a “cycle of lawlessness” where violence has become a part of the culture; and
3. Mr Irving taking several key steps, including:
   • requesting Mr Watson to continue his investigation and submit a final report to Mr Irving by 1 December 2024;
   • establishing an anonymous whistleblower service; and
   • creating an integrity unit to investigate both existing and new allegations against the CFMEU.

These developments raise pressing questions about the state of workplace law in Australia, sparking renewed debate over union oversight and regulation, and reinforcing the need for stronger mechanisms to prevent and address misconduct within unions.

In addition to these headline events, several important legislative changes came into effect on 26 August 2024, including:

1. empowering the Commission to address disputes regarding the right to disconnect;
2. redefining casual employment and establishing a clear conversion pathway;
3. giving the Commission authority over ‘employee-like’ workers in the digital platform space, allowing it to set minimum standards and resolve disputes over unfair deactivation; and
4. expanding the Commission’s jurisdiction to tackle disputes concerning unfair contract terms for independent contractors.

Meanwhile, the Full Bench has initiated work on developing a standard working-from-home clause for the Clerks – Private Sector Award 2020, which will likely serve as a model term for other modern awards.

The Commission has also reviewed its procedures for paid agents, with President Hatcher endorsing all five recommendations from a working group, including a requirement for paid agents (and, oddly, lawyers) to disclose costs upfront before any conciliation or hearing.

Lastly, Professors Mark Bray and Alison Preston have been appointed to lead an independent statutory review of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022. The review, due in January 2025, will assess the effectiveness of the amendments, identify any unintended consequences, and determine whether further legislative change is required.

As we approach the final months of 2024, it’s shaping up to be a busy period in the workplace law landscape. With many other significant developments unfolding, we’ll continue to keep you updated on the key issues impacting workplaces across Australia.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

Spruiked as unlocking a regime historically unused, heralded as creating efficiencies and promoting ease of transferability of skills, criticised as a punitive policy intervention that will make it substantially harder and more costly to do business, and now tested by the Full Bench of the Commission (Commission) in a heavily contested setting, multi-employer bargaining is off and racing.

After a reasonably slow (and mostly, non-adversarial) uptake, the recent decision involving four major black coal industry operators and the Association of Professional Engineers Scientists and Managers Australia (APESMA) has compelled the Commission to put Labor’s multi-employer bargaining provisions under the microscope in the first significant contested application of its kind since the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).

Whilst the battle is not over (noting that three of the four employer respondents to APESMA’s application have lodged judicial review proceedings in the Federal Court on 20 September 2024), the Commission’s consideration and application of the single interest employer authorisation provisions set out in the Fair Work Act 2009 (Cth) (FW Act) gives some present guidance as to how these provisions will likely be applied in practice.

The battlelines are drawn…

The battlelines identified in the Commission’s 148 page decision in APESMA v Great Southern Energy Pty Ltd t/as Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd and Ulan Coal Mines Ltd[1] can best be summarised as a contest as to whether:

• a majority of the employees, who were employed by each of the respondent employers at a time determined by the Commission and who would be covered by the agreement, wanted to bargain for the agreement;
• each of the respondent employers had clearly identifiable common interests;
• it was not contrary to the public interest to make the authorisation;
• the operations and business activities of each of the respondent employers were reasonably comparable with those of the other employers that would be covered by the agreement;
• one of the respondent employers was excluded from the scope of the APESMA application as they had an enterprise agreement that has not yet passed its nominal expiry date.

In short, the Commission was not satisfied that any of these factors warranted a finding that the authorisation sought by APESMA should be dismissed.

Of particular note is the Commission’s consideration of the identifiable common interests and comparable business activities criteria set out in the FW Act.

What are “common interests” for the purposes of multi-employer bargaining?

Without a definition under the FW Act, the Commission found that the term “common interests” should be given its ordinary meaning. That is, “common” means “shared, joint, united” and “shared or joint” consistent with previous decisions. Similarly, “interests” means “concernment”, “business, concerns or cause”, “goals, principles and business concerns” and “characteristics or matters that impact or influence the organisation”.

That is to say that where the employers have shared or joint business, concern, goals or principles (among others), it will be difficult to argue against the common interest.

The Commission also identified that the “common interests” must be clearly identifiable, or plainly discernible or recognisable, however they need not be self-evident.

Despite the extensive evidence led by the respondent’s employers which articulated points of distinction by reference to location, mine life, mining method, equipment, transport considerations, geology, customers, production and conditions of employment, the Commission held that the respondent employers had not drawn the necessary connection between these distinctions and the facilitation of bargaining which would arise under the authorisation. The Commission went on to say that the claimed differences between them, such as conditions of employment, upon closer examination, revealed them to be attributes, rather than interests, and gave rise to interests that were common.

The outlier…

The outlier in this regard was the fourth employer respondent. That employer, by virtue of its sole commercial purpose of covering its costs of providing a reliable supply of thermal coal to one of its related bodies corporate in the generation of electricity, was found to be comprehensibly different to the commercial purpose of the other three employers who undertook their mining activities to make a profit from the sale of coal.

This, in turn, revealed different retention, attraction, price and bargaining priorities which distinguished its interests from the interests of the employers in a bargaining setting.

The reasonable comparability test

In respect of reasonable comparability, the Commission held that test is concerned with the respondent employer entities, and the enquiry is targeted at the ‘operations’ and ‘business activities’ of those specific entities. The Commission did, however, accept that the operational and business activities of the respondent employers may be influenced by their relationship within the broader corporate group structure and this context may have some relevance in understanding what the respondent employers do and why they do it.

Further, the Commission held that greater weight should be given to differences in operations and business activities of the respondent employers to the extent that these relate to the proposed coverage of the authorisation. In other words, greater weight should be attached to the operations and business activities of the respondent employers to the extent that they relate to the work performed by the employees proposed to be covered by the agreement and are connected to bargaining.

Distilling these points down, the interesting feature of the case is that the Commission took steps to anchor the considerations in new provisions to bargaining for the enterprise agreement which would occur under the proposed authorisation and the relevant employees who would be covered by the terms of any agreement which would be a product of that bargaining. As such, broader distinctions were able to be sidelined by the Commission once a focussing on bargaining with a particular group of employees occurred.

It was through this lens that the Commission was able to find that the authorisation by APESMA, in respect of 3 of the 4 employer respondents, should be granted.

Key takeaways for employers

If you are an employer who is faced with an application for a single interest authorisation, understanding the differences and similarities between you and your co-employers is important.

However, the next layer of that analysis needs to be on developing how these matters impact bargaining interests, goals and objectives such that it may be a point of distinction from another entity who may be at the bargaining table.

Through this approach, a more refined defence to an application, which not only goes to distinguish an employer from its counterparts, but also informs how those distinctions will impact an employer’s bargaining stance, interests, goals, objectives and drivers and ultimately militate against a finding that multi-employer bargaining should occur, will be possible.

Whether this line of reasoning prevails before the Federal Court is yet to be seen. However, Kingston Reid will keep you across the latest in this space as it unfolds.

Stay tuned to see whether the Federal Court walks back what some commentators have regarded as a return to centralised wage fixing not seen since the 1980s or whether enterprise level bargaining, focussed on single enterprise agreements as between employers and their employees, will remain as a core, primary objective in Australia’s industrial relation system.

[1] [2024] FWCFB 253

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.