14 January 2013
Forecast 2013: The year ahead for workplace relations and workplace safety
With most of us now back at work, we thought we would look at the key developments we can expect this year in workplace relations and workplace safety.
This year will continue to see the development of workplace laws but in the main there is unlikely to be any dramatic changes. Businesses should be focused on auditing compliance with workplace and safety laws, refining policies and procedures, and the retraining of staff. Such actions will allow businesses to be ready to respond to developments.
Amendments to the Fair Work Act
The year commenced with a number of amendments to the Fair Work Act. Notably, unfair dismissal and adverse action claims must be lodged within 21 days of dismissal.
Further amendments to the Act may be made during the year to give effect to the Fair Work Review Panel Report. These could include minor changes to annual leave, public holidays and responding to flexible work requests.
The inevitable Federal election will occur, but we do not predict any dramatic changes to industrial laws if a new Government is elected. There may simply not be time to change the law, even if there is an appetite to do so.
Discrimination laws consolidated?
Expect further debate this year about the Federal Government's proposed Human Rights and Anti-Discrimination Bill which will seek to consolidate Commonwealth discrimination laws. We will still have State and Territory anti-discrimination laws.
The laws will follow the format of the adverse action provisions in the Fair Work Act, with the onus on employers to prove the reason for their action was not because of a protected attribute. The list of protected attributes has been expanded and refined. The inherent requirements of the employment exemption to discrimination will be maintained.
A Senate Inquiry will report on the Bill this year. The Bill provides an opportune time to review existing policies.
A national law dealing specifically with bullying remains unlikely.
However, the long awaited Preventing and Responding to Workplace Bullying Code of Practice is expected to be approved this year under the Work Health and Safety Act 2011. The draft Code was controversial for the potential breadth of what actions may constitute bullying. It will be interesting to see if this controversy is resolved.
Employers need to update their workplace bullying policies to ensure a commonsense but responsible approach to workplace bullying. A proactive approach, through education and training, ought to avoid bullying developing into a problem for businesses.
No more grace
It was speculated that everyone would have a year to get used to the new Workplace Health and Safety Act; that year has expired. Given the duty of due diligence, we recommend commissioning an audit of work health and safety practices to ensure compliance.
Implied term of trust and confidence
The existence of the implied term of mutual trust and confidence is likely to be resolved by the Full Federal Court this year in the hearing of the appeal of the decision of Justice Besanko in Barker v Commonwealth Bank of Australia  FCA 942.
Justice Besanko had found the Bank did not have reasonable and proper cause to not comply with its redundancy and redeployment policy, and that its failure to follow its policy was conduct likely to destroy or seriously damage the mutual trust and confidence of the relationship. The redundant employee, who had not been considered for redeployment, was awarded $317,500 in damages in compensation for breach of the implied term.
With the maintenance of customer and employee connections more important than ever, the increase in disputes about post employment conduct is likely to continue.
A current and tailored restraint clause that is proportionate to the risk a departing employee presents to the business, will increase the prospects of being able to restrain the ex-employee taking advantage of their position. Time to get the contracts updated and re-signed?
With alternative ways in which to engage workers continuing to rise, the importance of ensuring your contractors are truly independent contractors is vitally important.
Regulators will continue to prosecute employers misrepresenting employees as contractors. Displaced contractors will look to claim employee entitlements as a means to seek compensation. The Independent Contractors Act 2006 may provide remedy from unfair or harsh contracts.
Businesses also need to be mindful of deeming provisions. The On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3)  FCA 366 decision is still causing concern for businesses as to its reach in requiring a principal to contribute superannuation for contractors who primarily supply labour only. Hopefully, the decision will be given some judicial consideration this year.
Late last year the were a number of decisions that supported employers being able to take action against misbehaving employees, including being able to rely on conduct discovered after termination.
The Full Bench of Fair Work Australia had in DP World Sydney Limited v Lambley  FWAFB 4810, placed emphasis on the need for there to be significant mitigating circumstances to overturn a dismissal where a valid reason existed and procedural fairness had been afforded. Mr Lambley had assaulted a fellow employee.
On 10 January 2013 the Federal Court was critical of the Full Bench approach. It repeated preference for the High Court's approach in its 1995 decision in Byrne v Australian Airlines Ltd, where personal factors can make a dismissal harsh. Whether there is substance to the divergence of views, will remain to be seen.
The year ahead may not hold a revolution like the commencement of the Fair Work Act but it will not be dull. There are things to do.
Author: James Mattson