Insights & News

January 31, 2022

The start of 2022 has felt eerily similar to 2021 with many starting the New Year in self-isolation following the rise of COVID-19 infection due to the Omicron variant. While we anticipate that the next 12 months will be riddled with ongoing COVID-19 response action by employers, we also anticipate that employers will be faced with new challenges and opportunities in a year where industrial relations is likely to become a political hot-potato as we head into the federal election.

We’ve set out some of the key issues that employers will need to stay focused on in 2022.

The primacy of contract for contractors?

Following almost three years of uncertainty caused by the WorkPac saga, 2021 finally provided clarity over the meaning of casual employment. First with the commencement of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Amendment Act) in March and then with the delivery of the High Court’s judgment in WorkPac v Rossato [2021] HCA 23 (Rossato) in August. However, along with providing greater clarity, employers have been hit with further compliance obligations in relation to casual employees.

The Amendment Act introduced changes to the Fair Work Act 2009 (Cth) (FW Act) which have required employers to revise their casual employment contracts, review their enterprise agreements to assess any interpretation issues arising from their interaction with the new laws, and introduce processes to ensure compliance with the casual conversion provisions. The changes also required the Fair Work Commission (FWC) to vary the casual terms in 151 modern awards. These variations took effect on 27 September 2021.

In Rossato, the High Court found that primacy was to be accorded to the various contracts between WorkPac and Mr Rossato in characterising the employment relationship as casual.

Our 2022 insight: Although Rossato only determined the primacy of contract relevant to determining whether the employment relationship was one of casual or permanent, there is a question as to the impact (if any) the ruling will have on the High Court in determining the appeals of the two Federal Court decisions in CFMMEU v Personnel Contracting Pty Ltd[1] and Jamsek v ZG Operations Australia Pty Ltd[2] (Jamsek).

The appeals consider the correctness of the Federal Court’s finding that the relationship between the parties in those cases should be construed as one of principal and independent contractor (as opposed to employment). The appeals were heard consecutively on 31 August 2021 and 1 September 2021.

During the hearing of the Jamsek appeal, Justice Gageler raised the question of how the existing “totality of the relationship” test applied in determining whether a worker is an employee or independent contractor squares with Rossato.[3] In the discussion that ensued, Justices Gageler, Gordon and Edelman all indicated that the contract should be front and centre to the inquiry of the Court in determining the relationship between the parties. This suggests that there could be a shift in the established principles which apply to the employee / independent contractor dichotomy (or at least, a shift in the way the “totality of the relationship” test is applied) in the not too distant future. Keep an eye out for our update once judgment in these appeals have been delivered.

Embracing the RAT race

Except where made clear by public health orders (PHO), governments have largely left it up to employers to decide whether they introduce mandatory COVID-19 vaccination for employees (as well as customers and clients). The question has been difficult for employers to navigate given the competing Work, Health and Safety (WHS) obligations, individual/union claim risks and mixed guidance materials published by authorities.

Despite the confusion, many employers decided to implement, or began to implement, mandatory COVID-19 vaccination last year. Employers who have made this decision to mandate vaccines have done so to ensure compliance with WHS obligations and on the basis that the direction is both lawful and reasonable.

At a minimum, any direction that employees be vaccinated against COVID-19 (including by way of booster shot) must be:

• Based on WHS risk considerations;
• Implemented following consultation and the introduction of a COVID-19 vaccination policy;
• Reasonable in terms of the timeframe by which employees must be compliant; and
• Allow for any medical contraindication.

When requesting proof of vaccination status, employers must ensure compliance with relevant privacy laws, including by ensuring that a person’s vaccination status is treated as sensitive health information in accordance with the Privacy Act 1988 (Cth) and the employer’s privacy policy.

If employees have legitimate medical grounds to refuse vaccination directions, employers may, where possible, offer reasonable alternatives for workers falling within this category.

The Omicron variant has also increased the rate of infection across the community and therefore in the workplace significantly. This has resulted in a shift by Federal and State governments from the reliance on PCR tests to rapid antigen tests (RAT). This has resulted in a RAT race like no other as those who are symptomatic scramble to find a RAT.

Our 2022 insight: Employers will continue to face the conundrum of how to respond when an employee (or prospective employee) without legitimate medical grounds fails or refuses to be vaccinated. It is important that decisions made by employers as to disciplinary outcomes are made having regard to legal advice and on a case-by-case basis. There remains a myriad of legal risks associated with responding to an employee who has refused a vaccination mandate including a dispute application, general protections claim or unfair dismissal.

On the flip side, as employers begin to direct employees to return to the workplace (whether in accordance with a hybrid working system or otherwise), there may be instances where employees refuse to attend the workplace for various reasons. It is lawful and reasonable for employers to direct employees to return to their normal working arrangements. If an employee does not comply with such a lawful and reasonable direction, the employer may consider taking disciplinary action against the employee and/or decide that the employee no longer can fulfil the inherent requirements of their role. Either way, advice should be sought prior to taking the action.

Employers also need to review their COVID Safe Plans and WHS risk assessments as these are living documents which need to be updated to reflect the rapid pace in which PHOs are being varied and implemented.

R-E-S-P-E-C-T

In January 2021, Safe Work Australia published national guidance material on preventing workplace sexual harassment (Guidance Material). The Guidance Material advocates for a more proactive role of persons conducting a business or undertaking (such as employers) (PCBUs) in identifying, assessing and eliminating or minimising the risk of workplace sexual harassment.

In June 2021, the Australian Human Rights Commission (AHRC) published its report, ‘Equality across the board: Investing in workplaces that work for everyone’ (AHRC Report). The AHRC Report focused on the actions required of the most senior leadership of the ASX200 boards and executive management in preventing sexual harassment in the workplace.

On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 ([email protected] Act) passed Parliament.

Our 2022 insight: As more high-profile cases continue to emerge and applicants begin to utilise the new legal avenues available to them in light of last year’s legislative changes, we suspect that sexual harassment in the workplace will remain in the spotlight in 2022. Employers (and PCBUs more broadly) must take proactive steps to prevent and eliminate sexual harassment in the workplace. At a minimum, we recommend that PCBU’s:

• Require that executive teams review and revise current Workplace Behaviour Policies to ensure that they reflect the new legislative changes and focus on prevention of sexual harassment in the workplace;
• Ensure the Board of directors and senior executives implement governance measures to prevent and eliminate sexual harassment in the workplace. The Australian Institute of Company Directors has pointed out that sexual harassment is now recognised (and should be treated as) an important governance issue; and
• Deliver sexual harassment training to all employees and managers that not only focuses on explaining the legal terms but trains employees on how to actively prevent sexual harassment including by using active bystander techniques.

Increases to minimums

Despite the continuing economic uncertainty due to COVID-19, 2021 saw minimum wages under modern awards increase.

In June 2021, following the Annual Wage Review 2021, the FWC announced that it would be increasing the national minimum wage and all award wages by 2.5%. The increase to minimum award wages occurred in three stages, with the last increases coming into effect from 1 November 2021 (for those in aviation, tourism, fitness and a few retail sectors).

Our 2022 insight: although the increase only applies to employees who are paid the national minimum wage or minimum award wages, the increase will have broader ramifications for those employers who employ employees above the minimum wage. The 2.5% increase will become a benchmark for wages growth in enterprise bargaining and individual contract negotiations in the first half of 2022.

It’s all super!

In July 2021, the superannuation rate increased by 0.5% to 10%. The rate is legislated to continue to increase by 0.5% annually until it reaches 12% in 2025.

Our 2022 insight: it is important that employers check employment terms and conditions in place to ensure that there is a basis for reducing the income component of employees’ salaries by 0.5% and redistributing this to their superannuation funds (e.g. through an “all-inclusive salary” or “absorption” clause in the employees’ employment contracts). If not, we recommend that employers develop a plan to manage the introduction of the annual increases through contractual or administrative changes such as building the increase into planned pay rises. It is also important that employers consider any terms in an applicable industrial instrument that may affect its obligations regarding superannuation contributions.

Is compliance still key?

The Fair Work Ombudsman’s commencement of Court proceedings against major employers last year indicates that investigating large corporate underpayments will remain a priority for the regulator in 2022.

Our 2022 insight: check out our recent article on wage compliance and the issues employers need to keep in mind in 2022 here.

Election year

2022 is election year and we all know what that means for industrial relations – change.

Both major parties have hinted at what will form part of their industrial relations agenda if they were to form Federal Government in 2022 and we’ll provide further updates throughout the first quarter as we head into the Federal election.

Our 2022 insight: Last June, the Coalition signalled that it will push for the changes to the lifespan of greenfields agreements it removed from its diminished IR Omnibus Bill (which ultimately passed in the form of the Amendment Act). The changes to greenfields agreement provisions would see the maximum life of a greenfields agreement for a “major project” being extended from four to eight years.

If re-elected, it is likely that the Coalition would also press for the other residual parts of the IR Omnibus Bill that didn’t make the final cut, which include:

• More discretion in the BOOT assessment in approving enterprise agreements;
• Sunsetting of zombie agreements;
• Simplified additional hours for part time employees; and
• Flexible work directions.

If the Morrison Government’s religious discrimination bill does not get voted up (in one form or another) before the next election, this will no doubt also form part of its agenda if elected for another term.

In 2021, the Australian Labor Party (ALP) released its “Secure Jobs Plan” which focuses on a number of key areas, including:

• Job security, including by making job security an object of the FW Act, extending the power of the FWC to make orders for the minimum standards which apply to “employee-like” forms of work (such as gig economy work) and amending the FW Act to limit the number of consecutive fixed-term contracts an employer can offer so that they cannot exceed a period of 24 months (with exceptions in limited circumstances);
• Pay, including by introducing a portable entitlement scheme for workers in insecure work and introducing laws such that workers employed through labour hire companies receive no less minimum pay than workers employed directly;
• Casual employment, including by watering down the current definition of casual employment in the FW Act such that the focus on is on the absence of a firm advance commitment as to the duration of the employee’s employment only;
• Criminalising wage theft, however any law will not undermine existing state and territory wage theft laws (such as those in Queensland and Victoria); and
• Government, including by conducting an audit of employment within the Australian Public Service with a view to promoting more secure employment where temporary forms of work, such as outsourcing, short term contracts or “offshoring” are being used and ensuring that the Federal Government prioritises bids and tenders from companies and organisations that provide secure work for employees when purchasing or seeking goods and services.

The Australian Council of Trade Unions (ACTU) has signed off on a 33-day election strategy in support of the ALP’s Secure Jobs campaign. The strategy emphasises the importance of workplace activity and features the training of organisers and delegates and hundreds of workplace visits both before, and during, the 33-day union campaign.

Our 2022 insight: 2022 is set to be another jam-packed year for industrial relations and safety law. We look forward to keeping you across the key issues over the course of the year. Please reach out to our team if you have any questions.

[1] [2020] FCAFC 122.

[2] [2020] FCAFC 119.

[3] ZG Operations Australia Pty Ltd & Anor v Jamsek & Ors [2021] HCATrans 139.

December 9, 2021

As Australia moves from a position of eliminating COVID-19 to living with COVID-19, governments across the country have implemented vaccination mandates as one of the levers to protect the community from COVID-19 transmission and to minimise the impact of infections that do arise.

These vaccination mandates, and the manner by which they have been implemented and supplemented by employer vaccination policies, have by no means been universally received, and much has been raised in challenge of them.

These challenges are largely resolved on technical points, adding to confusion for organisations attempting to navigate the noise.  This noise has been amplified by the recent decision of a 5-member Full Bench of the Fair Work Commission in the matter of CFMMEU & Anor v Mt Arthur Coal Pty Ltd.

Does the decision in Mt Arthur Coal mean the mandatory vaccination policies are unlawful?

Put simply, no.

In early October, Mt Arthur Coal introduced a policy requirement that all of its workers must be vaccinated against COVID-19 as a condition of entry to the mine.  Workers had until 9 November 2021 to provide evidence that they had received at least one dose of a COVID-19 vaccine.  Fifty workers who did not provide such evidence were stood down.  The Construction, Forestry, Maritime, Mining and Energy Union challenged the mandatory vaccination policy by lodging a dispute under the applicable enterprise agreement.

The question for the Full Bench was whether the mandatory vaccination policy was a lawful and reasonable direction.  The Full Bench determined that it was not in this case, for the reason that Mt Arthur Coal was found to have failed to consult with staff as required under the terms of the applicable enterprise agreement, and in accordance with general consultation obligations operative under workplace health and safety laws.

Notably, the Commission stated that, but for the failure to adequately consult, there were a range of factors in favour of the implementation of a company mandatory vaccination policy; which included:

1. It was directed at ensuring the health and safety of workers of the workplace, had a logical and understandable basis; and was a reasonably proportionate response to the risk created by COVID-19.
2. It was developed having regard to the circumstances at the workplace, including the fact (in that case) that workers could not work from home and came into contact with other workers whilst at work.
3. The timing for its commencement was determined by reference to circumstances pertaining to the local area at the relevant time.
4. It was only implemented after the employer spent a considerable amount of time encouraging vaccination.

Flowing from these observations, it may be taken that employer mandatory vaccination policies will be lawful and enforceable where they are:

1. Tailored to the risk factors and circumstances that operate in the particular workplace in which they will apply; and
2. Critically, subject to consultation before implementation.

In the context of introducing or updating a mandatory vaccination policy, consultation requires a business to provide its workforce with a reasonable opportunity to persuade the decision-maker in relation to the decision to introduce such a policy.  It does not require the workforce to agree to the policy or give the workforce power of veto.

Where these requirements are met, and the terms and implementation of a mandatory vaccination policy, or updated mandatory vaccination policy are lawful and reasonable, they will be legally enforceable.

Can employers collect vaccination information?

A critical requirement of an employer vaccination policy, as well as of public health orders creating mandatory vaccination obligations, is a requirement for affected employees to provide evidence of their vaccination status.

Information about an employee’s vaccination status is defined as ‘sensitive information’ for the purposes of the Privacy Act 1988 (Cth) (Privacy Act) and is accordingly afforded a higher degree of protection.

This higher protection means that an employer can collect evidence of an employee’s vaccination status where the collection is with the employee’s consent, and where the collection is reasonably necessary for one or more of the employer’s functions or activities, such as to ensure the safe performance of work.

The voluntary provision by employees of their vaccination status, provided that employees are notified of the purpose for which the information is collected and the ways in which the information may be used or disclosed, will be regarded as a collection with consent.

That consequences might flow from a refusal to provide consent for the collection of vaccination information will not, by itself, impact upon whether an employee has had a genuine opportunity to consent, or not.

Should employers hold vaccination information?

In another recent headline case, Virgin Australia Airlines undertook to destroy vaccination information that it had collected from its workforce following the commencement of proceedings by the Australian Licensed Aircraft Engineers Association alleging that the collection of individual healthcare identifiers (IHI) from Virgin Australia Airline employees breached the Privacy Act and could be misused by Virgin Airline employees.

In resolving the proceedings, Virgin Australia Airlines undertook that it would delete all proof of COVID-19 vaccination documents provided by employees that they hold and have verified, which was codified in an Order made by the Court.

So, does this mean that the collection of vaccination information is unlawful, and should employers proceed to destroy all vaccination information provided by employees?  No.

The undertaking given by Virgin Australia Airlines was made subject to the operation of requirements imposed by law, with laws varying from State to State and Territory on the extent to which employers are required to collect, record and hold particular vaccination information.

It is also important to be aware that the destruction of the vaccination information was at the undertaking of Virgin Australia Airlines, and not as a result of any decision made by the Court that the collection and holding of vaccination information including IHIs was unlawful.

Organisations would, however, be wise to only view, collect, record and/or hold the least amount of information possible.  A person’s COVID digital certificate, accessible via their Medicare account, does not include their IHI, however their immunisation certificate does. The handling and disclosure of IHIs is regulated in its own right under the Healthcare Identifiers Act 2010 (Cth) (HI Act). This is reflective of the even higher level of protection that is afforded to this information.

Section 26(1)(d) of the HI Act states that the use or disclosure by a person of an IHI, is prohibited unless a relevant exception applies. Where there is no such exemption, a person can be exposed to a criminal penalty – which could lead to fines or even a jail term of up to two years – and a civil penalty where the person uses or discloses information in circumstances that contravene the HI Act, and the person knows or is reckless as to those circumstances.

Given the particular sensitivity of IHIs businesses can and should redact this information at the time they collect a person’s vaccination information, to the extent that this is possible, and where this is not practicable, ensure that information containing a person’s IHI is stored securely.  Redacting may be as simple as asking a person to cover their IHI with a finger when snapping a photo, or it could otherwise be a request for an employee to crop their immunisation certificate to remove their IHI before sending to your business.

What should employers be doing now?

For the majority of staff who are vaccinated, the operation of public health orders and organisation policies requiring vaccination are relatively uncontroversial.  However, to mitigate against claims and challenges from the vocal few, it is important for organisations to turn their minds to the following key considerations:

• The requirement to view, collect, record and / or hold vaccination information varies from State to State and Territory. Ensure that your organisation is viewing, collecting, recording and / or holding vaccination information only as absolutely required;
• If a worker asks to have their IHI removed from any copy of the vaccination information securely held by your organisation, reasonable steps should be taken to do so, and substitute vaccination evidence provided where legally required to be held;
• If your organisation proposes to introduce a new or updated mandatory vaccination policy, ensure that there is consultation prior to implementation and enforcement;
• Don’t forget your COVIDSafe Plan – your organisation’s COVIDSafe Plan should be reviewed and updated to operate effectively alongside any mandatory vaccination public health order or policy, including by setting out any additional safety and hygiene measures for employees holding valid exemptions from vaccination requirements.

In all cases, get advice when situations of uncertainty arise or where your organisation is receiving pushback on its policy.

November 25, 2021

As business returns to a degree of normalcy and COVID recedes as the issue, wage compliance, a hot-button issue in the latter half of 2019, is likely to return to the fore.

Back then, it had become a critical issue for management teams and boards to ensure that they were auditing and assessing their wage and minimum entitlement obligations correctly. A range of prominent businesses and large corporates had been identified as having underpaid workers – in the main not because of any deliberate desire to do the wrong thing but because of inadvertence, a lack of good process or a genuine misunderstanding about the complex system of workplace regulation. Rightfully, no business wanted to be the next front-page story about wage underpayment, especially as the term “wage theft” became a political and public relations lightning rod that threatened brands and reputations – not to mention the potential for significant financial penalties.

Then the COVID crisis arrived, and the focus shifted rapidly. Not just for businesses but also for the Fair Work Ombudsman (FWO), the regulator who has within its remit various compliance activities, including bringing Court proceedings to ensure employers comply with workplace laws. The FWO identified that although it would continue to enforce the law, supporting businesses through the pandemic was its top priority. There was also a limitation on the FWO’s investigative capability because of COVID-induced health and safety risks.

But the issue never went away for the FWO. Recently, the Fair Work Ombudsman, Sandra Parker, identified that the number of large corporations under investigation for underpayments had risen to 70, and additional staff were being assigned to this task. So, with this in mind, employers need to refocus their attention on wage compliance.

The conundrum of compliance

As my colleague Steven Amendola has written in the Australian, if you’d ever harboured dreams of opening your own inner city cocktail bar, “good luck” figuring out under what Award you should pay staff, to say nothing of navigating the pages and pages of terms and conditions (assuming you picked the right Award). Our system of regulation is unbelievably complex and the intersection and overlap of the Award system is but one challenge.

Our system of award regulation was derived from a process in which I was heavily involved from 2008-09. Called “Award Modernisation”, the task was to reduce more than 1500 pre-modern awards down to a more manageable number – we arrived at 121. It was a herculean undertaking, and while it successfully reduced some of the administrative complexity created by the vast number of pre-modernised awards, it created its own new and “improved” complexity by establishing a modern award system that covered employers and employees based on descriptions of industries and occupations. It accepted that this new system would create overlap between awards – and then sought to fashion a solution by requiring employers to assess the “most appropriate” award for an individual employee having regard to the nature of their work and where it was performed.

The result? The determination of Award coverage was not just a problem that confounded smaller employers, but it also has at various times caused complexity for large and well-resourced corporate employers.

Add to that the reality that the Fair Work Commission, the body responsible for maintaining and amending the modern Award system, has been reviewing the system since 2014. This has seen many variations to Awards, including the establishment of detailed reconciliation and drafting obligations for annual salary arrangements in some Awards, and the expansion of the coverage of the “Miscellaneous Award”, an Award that requires an employer to consider and know whether the nature or seniority of the employee’s role, or the work they perform has traditionally been covered by an Award in order to determine its application to any employees.

Today, the window is rapidly closing for employers on this issue. The FWO’s 2020-21 annual report stated that it had issued more than 2000 compliance notices in the past 12 months, up by 113% from 2019-20. [Compliance notices are the administrative mechanism to correct wage and minimum entitlement compliance breaches where there is a reasonable belief of contravention]. The FWO recently started Court action against several major corporations for contraventions where these businesses had voluntarily disclosed. In addition, the criminalisation of deliberate or dishonest underpayment of employees are now features of Victorian and Queensland State laws.

Good Luck or Good Planning?

Ensuring compliance is not just a matter of having the right processes in place to ensure that payroll systems and record-keeping obligations are being met – although these are two critical steps. It is also about having the right guide to shepherd you through the sometimes winding and precarious path of wage compliance to ensure there are no missteps. It is critical to get the right legal advice from experts in the field.

A further option some employers are considering are applications to vary those same Awards that are causing them so much grief, or, alternatively, create new Awards that better meet their needs. The current application for a new Award for the on-demand delivery industry that has been sought by Menulog is a case in point. Additionally, there is the option of exploring whether creative solutions such as exemption rates for some modern awards (which were features of some Awards before 2010) and which would absolve an employer from needing to comply with various provisions within an Award where an employee was paid above a certain salary range, could once again be in-vogue.

Understandably, COVID sidelined many traditional employer-employee issues. But that situation is fast coming to an end, with all the evidence suggesting wage compliance will be back in the industrial relations agenda – and in the news – in 2022. Employers need to be prepared.

Michael Mead
Partner
+61 2 9169 8428
[email protected]

October 7, 2021

September 8, 2021

Are you a Board Director or Senior Executive? Please read on; your governance obligations depend on it.

On 2 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 ([email protected] Act) passed Parliament. The changes will come into effect the day after the [email protected] Act receives royal assent, which is expected to occur momentarily.

In June 2021, even prior to Parliament passing the [email protected] legislation, the Australian Human Rights Commission (AHRC) had published its report, Equality across the board: Investing in workplaces that work for everyone (AHRC Report).

Drawing on guidance from companies, the AHRC Report focused on the actions required of the most senior leadership of the ASX200 boards and executive management in preventing sexual harassment in the workplace. Based on a comprehensive survey of 118 ASX200 companies, as well as in-depth interviews with board members of 16 ASX200 companies, only 19% of participants reported that Board directors undergo training on good governance and sexual harassment.

In the wake of the [email protected] legislative changes, now is the time for Board directors and senior executives to carefully consider their governance obligations in respect of preventing and eliminating sexual harassment in the workplace. Before we get into the details of how you should do this, let’s re-cap the legislative changes.

The key legislative changes

The key legislative changes (and our initial views on them) are:

• a new object clause has been inserted into the Sex Discrimination Act to achieve, so far as practicable, equality of opportunity between men and women;
• similar to the definition of sexual harassment or sex discrimination, a new definition has been inserted which makes it unlawful to ‘harass a person on the ground of their sex’. Sex-based harassment will be defined as unwelcome conduct by reason of the person’s sex of a sufficiently serious nature which meets the threshold of being offensive, humiliating, intimidating, and seriously demeaning. The requirement that the conduct be seriously demeaning indicates that the intention of the provisions are to deal with more egregious forms of sex-based harassment;
• the Sex Discrimination Act now adopts the term “worker” used in WHS laws to ensure that interns, volunteers and self-employed workers are protected. The scope of the Sex Discrimination Act now also extends to members of parliament (and their staff), judges and state public servants;
• the AHRC will have discretion to terminate a complaint relating to the Sex Discrimination Act, where it had been lodged more than 24 months after the alleged acts took place (previously 6 months);
• the Fair Work Act now confirms that sexual harassment is a valid reason for dismissal (it already is but this now has legislative backing); and
• workers can now apply to the Fair Work Commission for an order to stop sexual harassment in the workplace, extending the Commission’s current stop-bullying jurisdiction. The new jurisdiction commences 2 months after the legislative amendments come into operation.

What should Board Directors make of this?

While legislative changes are important as they embed the social standards and norms that are expected from all of us, the research demonstrates that the elimination and prevention of sexual harassment in the workplace has far more to do with the culture and leadership of an organisation than it does with the law. This has been demonstrated by the continuation of high-profile sexual harassment cases, which have occurred despite having laws prohibiting sexual harassment that have existed for many decades. Allowed to fester, these issues can and will become a serious governance risk that increases legal liability and at times irreparably damages personal and organisational reputations.

These issues are sensitive and confidential in nature and therefore many Board Directors may not feel responsible for managing these issues. However, as with other hazards in the workplace, directors must take steps to identify the risks of sexual harassment and put in place control measures to prevent the conduct from occurring.

The AHRC Report found that most Boards consider that the governance and management of sexual harassment in the workplace should be dealt with by the senior management teams including People and Culture Teams.

However, as the Australian Institute of Company Directors has pointed out, sexual harassment is now recognised (and should be treated as) an important governance issue. For example, the ASX Corporate Governance Principles require Boards to instill a culture of acting lawfully, ethically and responsibly which requires companies to instill and continually reinforce a culture across an organisation of acting lawfully, ethically and responsibly.

In light of these responsibilities, our recommended steps for Board directors are as follows:

• Take action now. Deliver sexual harassment training to Board members and senior executives, including a focus on prevention;
• Consider implementing an internal working group or committee to develop a holistic prevention plan to address controls and culture;
• Ensure governance measures are put in place to monitor performance against the agreed prevention plan. Currently 43% of ASX200 Boards have a running board agenda item relating to the reporting of sexual harassment. This should be implemented if you haven’t already done so;
• Require that executive teams review and revise current Workplace Behaviour Policies to ensure that they reflect the new legislative changes and focus on prevention of sexual harassment in the workplace;
• Deliver sexual harassment training to all employees and managers that not only focuses on explaining the legal terms but trains employees on how to actively prevent sexual harassment including by using active bystander techniques.

How should management teams support the Board?

The role the senior management team has in supporting the Board is fundamental. The senior management team should take a proactive approach to preventing sexual harassment in the workplace and be in a position to demonstrate to the Board (but also to employees and other stakeholders) what measures have been put in place to actively prevent and eliminate sexual harassment in the workplace.

The team at Kingston Reid is available to assist in helping you develop your prevention plan, deliver training, whether to Boards, executives or employees, and review and update policies and procedures as well as discuss alternate means of complaint handling, such as Ombpoint. Please reach out if you require any assistance.

August 10, 2021

On 24 June 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) was referred to the Education and Employment Legislation Committee (Committee) for inquiry and report. As part of its inquiry, the Committee received 55 submissions from various stakeholders and individuals. On 6 August 2021, the Committee handed down its report (Committee Report) recommending that the Bill be passed.

Background

The Bill made its way before the Senate as a result of the Federal Government’s Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (Roadmap). The Roadmap endorsed a number of the recommendations made by the Australian Human Rights Commission’s [email protected] Report, including several legislative amendments which the Bill aims to implement.

What are the proposed changes to the Sex Discrimination Act?

The Sex Discrimination Act (SD Act) will significantly expand in terms of the conduct and persons it applies to. The Bill introduces a prohibition against “harassment on the grounds of sex”, in addition to the existing prohibition against sexual harassment. This recognises that harassment, even if it is not “conduct of a sexual nature”, can still be unlawfully engaged in on the grounds of a person’s sex. A new objects clause will also be included to provide that an express aim of the SD Act is to achieve equality of opportunity between men and women.

The Bill also extends the scope of the SD Act to ensure that all “workers” and “workplaces” are protected by adopting terminology used in Work Health and Safety laws. The outcome of these changes is to broaden the scope of the SD Act’s coverage and ensure that interns, volunteers and self-employed workers are protected by the sexual harassment provisions of the SD Act. The scope of the SD Act will also be clarified regarding its coverage of public servants, including but not limited to members of parliament, judges and formerly exempt state public servants in order to align the Act with other federal anti-discrimination laws.

Finally, the Bill, by amending section 46PH(1)(b) of the Australian Human Rights Commission Act, will extend the time period for bringing a complaint from 6 to 24 months (after which time it may be dismissed). The Bill further provides that in addition to making a criminal complaint under the SD Act, complainants may commence civil proceedings regarding to the same conduct.

What are the proposed changes to the Fair Work Act?

The Bill extends the Fair Work Commission’s (FWC) current jurisdiction over workplace bullying matters to also cover workplace sexual harassment matters. In addition to the FWC’s powers to make an order to stop bullying, the FWC will have new powers to make an order to stop sexual harassment in the workplace. These orders are aimed at preventing future sexual harassment and will only be made where there is a risk of harassment occurring again. The FWC will be able to make an order in relation to sexual harassment in accordance with the amendments even where the conduct occurred prior to the amendments being implemented.

A new legislative note will be added into the Fair Work Act (FW Act) to make it clear that sexual harassment in connection with the employee’s employment can be a valid reason for dismissal. As a consequence, the meaning of serious misconduct in the Fair Work Regulations will be modified to include instances of sexual harassment. We note, sexual harassment would already be considered serious misconduct regardless of whether it is added to the definition.

The Bill also extends an employee’s entitlement to two days of compassionate leave to include occasions where the employee, or the employee’s current spouse or de facto partner, has a miscarriage.

While numerous parties submitted to the Committee that there should be a positive duty on employers to take reasonable steps to prevent sexual harassment, this obligation was not endorsed in the Committee Report (noting they already exist as part of any employer’s duty of care).

Where to now?

Recommendations were put forward as part of the Committee Report by three groups; the Committee, the dissenting Labor Senators, and the Australian Greens Senators with the following overall recommendations being made:

1. The Government defer the commencement of the amendments that extend the anti-bullying jurisdiction of the FWC until no earlier than two months after royal assent.
2. The Government make further legislative amendments to clarify that victimisation under the Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth), and the Age Discrimination Act 2004 (Cth), can also form the basis of a civil action for unlawful discrimination.
3. The Committee recommends that the Bill is passed.

On the basis of these recommendations, employers can expect that the Bill will be passed, although it is likely that further minor amendments will be made to the Bill before it receives royal assent.

What does this mean for employers?

While the broadening of the legal definitions and the introduction of a new jurisdiction with the FWC, will increase risk to employers, all employers and workplaces should be taking proactive steps to prevent sexual harassment in the workplace. In addition to having workplace policies and safety management plans and systems, employers should:

• Identify any risk factors in the workplace which may increase physical and psychological risks (including sexual harassment)
• Conduct training including bystander training to help employees understand how to identify sexual harassment or inappropriate conduct that is of a sexual nature or gender based
• Review sexual harassment policies and update them to reflect the broadened definitions

Please reach out if you need assistance undertaking training or reviewing your current policies and procedures.

August 5, 2021

While not all investigation reports into workplace complaints are intended to be protected by legal professional privilege, there are some key criteria to satisfy if that is in fact the intention. A recent case from the Fair Work Commission (FWC) illustrates that there is no issue at all with an external workplace investigation being privileged provided it meets certain tests.

Case facts

In Tainsh and Willner v Co-operative Bulk Handling Ltd [2021] FWC 3381 the FWC examined a claim for privilege over an investigation report into a workplace complaint of bullying undertaken by an external consultant. The findings of that investigation ultimately formed the basis of the reason for the dismissal of the two employees. In a common arrangement, that consultant had been retained by the employer’s external legal advisers to undertake the investigation for the purpose of them providing legal advice to the employer in relation to the complaint.

The employees argued instead that the purpose of the investigation was for the employer to comply with the investigation procedure in the Company’s policies for handling such matters.

The FWC decided that because of the clear terms of reference in the Investigation Protocol provided by the lawyers to the consultant investigator which identified that the dominant purpose of the investigation was to allow the lawyers to provide legal advice and that there had been no departure from those terms in subsequent conduct, the report and ancillary documents were in fact privileged. This decision was consistent with earlier cases.

What are the factors that need to be considered?

It is vitally important to remember that privilege will only attach if the investigation is established correctly.  Further,  just because an investigation starts off as privileged it doesn’t mean that this status cannot be waived by the parties as the process progresses.

Tips for establishing and maintaining privilege

Use a law firm or in-house legal counsel to brief the investigator. Where HR engages an external investigator to undertake an investigation it cannot be privileged unless that investigator is in fact a lawyer and is being retained for the dominant purpose of providing legal advice. The safest means of engaging an investigator is to do so via a lawyer (either internal or external) as the investigation report is then being produced to the lawyer so that the lawyer can provide legal advice to the business.

Be crystal clear on the dominant purpose of the investigation. This should be reflected in all communications including the instructions to the lawyer, the terms of reference or protocol drafted by the lawyer and provided to the investigator.

Terms of reference are key. The terms of reference provided to the investigator by the instructing lawyer have to clearly state that the dominant purpose of the investigation is to allow the lawyer to provide legal advice to the employer about the complaint. The investigation should be limited to findings of fact only as to whether the allegations are in breach of the specified policies or laws.

Once the investigation is underway, the investigator should be communicating through the lawyer only, consistent with the purpose of assisting in the provision of legal advice. There should be no direct liaison between the investigator and the business except for minor logistical matters.

Be careful with communications to employees about the investigation. Ensure that all communication is consistent with the terms of reference of the investigation. Care should be taken with referring to the process as an “independent investigation”. While this may be true, it suggests a dominant purpose other than the provision of legal advice and has been held in the past to be a waiver of privilege.

Always keep processes separate. Ensure that investigation and its findings are separate to any disciplinary procedure which may flow from the advice received about the investigation findings. Remember that the purpose of the investigation is to give the legal adviser information such that they can advise the employer. It is then up to the employer to consider all the factors to come to a decision as to the appropriate action. A decision should not only be based on the investigation findings but the employer’s consideration of those findings when considering the whole picture. This must also be reflected in communications about the decision.

Do not have a policy which dictates how and why an investigation may be conducted. Best practice grievance procedures allow the employer flexibility to choose whether or not to investigate complaints and how those complaints may get investigated.

Do not communicate to employees during an investigation that it is being conducted as part of “company policy” or in accordance with the employee’s wishes. It is acceptable for an investigation to have a dual purpose and still be privileged. For example, the FWC has previously held that an investigation undertaken for the purpose of obtaining legal advice and for the purpose of complying with company policy was still privileged as the former was the dominant, or overriding purpose.

Ensure that the investigation report when provided by the legal adviser is distributed on a “need to know” basis only. It is a confidential document and should be treated as such.

When disclosing the findings of the investigation to the employee involved be careful. Language used should reflect that it must be for the limited purpose of allowing them to respond in relation to the disciplinary process which may result. This should only ever be done by the employer and not the investigator.

Alice DeBoos
Managing Partner
+61 2 9169 8444
[email protected]

August 4, 2021

The High Court of Australia has today unanimously upheld WorkPac’s appeal against a judgment of the Federal Court about the nature of casual employment: WorkPac Pty Ltd v Rossato [2020] FCAFC 84

So what is a casual employee?

With certainty, we can now say that:

• we have a statutory definition of a “casual employee” in the FW Act;
• which has been practically applied by the High Court of Australia.

Crucially, the High Court held that a reasonable expectation of continuing employment is simply not the kind of firm advance commitment to continuing employment the absence of which typifies casual employment.

Was Mr Rossato a casual employee?

The High Court found that Mr Rossato was at all times, a casual employee of WorkPac both under the Fair Work Act 2009 (Cth) (FW Act) and the enterprise agreement that applied during Mr Rossato’s employment because:

• the contractual arrangements between WorkPac and Mr Rossato did not include a mutual commitment to an ongoing working relationship between them after the completion of each assignment;
• the express terms of the relationship between WorkPac and Mr Rossato were distinctly inconsistent with any such commitment; and
• Mr Rossato’s entitlement to remuneration was agreed on that basis.

Here is the clincher: just because Mr Rossato had a roster that exhibited features of regularity and consistency, it did not mean that there was a commitment between the parties to an ongoing working relationship after each assignment was completed.

What about set off?

Given this, it was unnecessary for the High Court to consider WorkPac’s set off and restitution claims.  For now, reliance can be placed on the new provisions in the FW Act which were recently inserted to avoid double-dipping.

What does this all mean?

The decision, which we set out in more detail below, is a stunning decision for practicality, certainty and commerciality. It puts to bed the turbulent history of case law concerning casual employees. The High Court has in effect gone back to the common law approach which was in part departed from by the Federal Court in both WorkPac decisions.

Employers and employees alike can take great comfort from the High Court’s decision and the Federal Government’s statutory definition of casual employee introduced into the FW Act.

The HCA Decision

In determining whether Mr Rossato was a casual employee for the purposes of the FW Act and under the 2012 EA, the HCA considered:

• whether there was a firm advance commitment;
• whether written contractual obligations reflected a firm advance commitment;
• the meaning of patterns of work and rosters made in advance; and
• the expectation of continuing employment as distinct from a firm advance commitment.

The FW Act

Mr Rossato was found to be a casual employee for the purposes of ss 86, 95 and 106 of the FW Act in respect of each of the six assignments with WorkPac between 28 July 2014 and 9 April 2018.

The HCA found that s 65(2)(b)(i) of the FW Act contemplates that a casual employee may hold casual status despite being “a long term casual employee” employed on a “regular and systematic basis”. Further, that s 65(2)(b)(ii) demonstrates that the FW Act does not regard a “reasonable expectation of continuing employment” to be inconsistent with the nature of casual employment.

The High Court acknowledged that while over time, Mr Rossato may have developed an ‘expectation of continuing employment’, this expectation remains a ‘mere expectation’, distinguishable from a ‘firm advance commitment’.

The fact that Mr Rossato’s pattern of work was governed by shifts fixed long in advance was found not to be evidence of any commitment to a continuing employment relationship following the completion of an assignment.

Contractual Obligations

The High Court found that the various contracts between WorkPac and Mr Rossato precluded a ‘mutual commitment to an ongoing working relationship between them after the completion of each assignment’. Further, that Mr Rossato was paid in accordance with this understanding.

The High Court considered that as Mr Rossato’s work was expressly on an ‘assignment-by-assignment basis’, he was able to accept or reject any offer of an assignment and that the Full Court erred in characterising the established shift structure as a future commitment, as it did not promise work beyond the completion of each assignment.

The Court made reference to the binding contractual obligations of the parties to find there was a lack of firm advance commitment in the General Conditions. In fact, they were all consistent with terms and conditions of casual employment, remunerated with a casual loading of 25%.

Because the High Court has found Mr Rossato was at all times a casual employee under both the FW Act and the relevant enterprise agreement, it was unnecessary to consider WorkPac’s submissions in relation to whether it was entitled to set off or seek restitution for the casual loading paid during his employment.

What does this mean for employers?

We now have a definition for “casual employee” in the FW Act in s 15A.

We also now have a practical application to the many facets of casual employment at common law which is consistent with the statutory definition.

When employing a casual employee, it is important to ensure that:

1. The offer is in writing and sets out the basis for the casual employment, consistent with s 15A of the FW Act – remember there can be no firm advanced commitment to continuing and indefinite work according to an agreed pattern of work.
2. The written contract expressly includes the basis for payment, including the fact that a causal loading is being paid.

A reminder to all employers that the Fair Work Commission (FWC) is set to make changes to casual terms in modern awards by 27 September 2021. The review will reconcile relevant terms in modern awards with the definition of casual employment in s 15A of the FW Act and casual conversion arrangements introduced earlier this year.

Kingston Reid will provide you with an update once the FWC has finalised its review.

If you have any questions, do please contact us.

July 21, 2021

On 20 July 2021 new regulations, known as the Occupational Health and Safety Amendment (Infringements and Miscellaneous Matters) Regulations 2021 (Vic), were made to establish a safety infringement notice scheme in Victoria (Scheme).

Under the Scheme, which commences on 31 July 2021, WorkSafe inspectors will have the power to issue “on-the-spot” fines to employers and other duty holders, including workers, who are found to be in breach of particular provisions of the OHS Act and the OHS Regulations.

The Scheme permits WorkSafe inspectors to issue infringement notices in respect of 54 prescribed offences, such as:

• a failure by an employer to allow a health and safety representative(HSR) to have access to information relating to the HSR’s designated work group identified in section 69(1)(a) of the OHS Act;
• an employer allowing an employee to perform high risk work without an appropriate high risk work licence;
• a person (i.e. a worker) who holds a construction induction card not keeping the card available for immediate inspection on request;
• a failure by an employer or self-employed person to keep a copy of a safe work method statement for high risk construction work for the duration of that work;
• a failure by the principal contractor for a construction project to keep, and make available for inspection, a copy of a health and safety co-ordination plan (and any revisions to that plan) for the duration of the project.

For an individual, the fine will be up to $363.48. For a company, the fine can be up to $1,817.40.

The intent behind the Scheme appears to be to use infringement notices to punish offences where the contraventions are clear and do not need to be established through a detailed investigation process.

WorkSafe is not precluded from taking other remedial action against a person simply because an inspector issues them with an infringement notice. For example, it will remain open to the inspector to issue an improvement or prohibition notice to the recipient of an infringement notice. However, the intention appears to be that if an infringement notice is issued, it is unlikely that a prosecution for the same offence will follow.

It will be important for anyone who receives an infringement notice to ensure that it has been validly issued and seek advice about whether it is susceptible to challenge.

If you have any questions about the Scheme, please contact us.