Paid Parental Leave Set to IncreaseFair Work Changes Checkup Series: Is Your Change Management Plan Ready For 2024?Parliament Passes the Second Half of the Closing Loopholes BillParliament splits the Closing Loopholes Bill and passes the first halfChanges to fixed to fixed-term contract rules starts 6 December 2023Entry to hold discussions includes seeking signatures on a petitionWhat can I do if my employee has been charged or convicted with a crime?High Court Rules that Qantas Did Take Adverse Action in relation to a Future Potential RightProcedural Fairness in Workplace InvestigationsMore Fair Work Act Changes – the Protecting Worker Entitlements Act

Parliament passed the Paid Parental Leave Amendment (More Support for Working Families) Bill 2023 on 18 March 2024, which will increase the amount of paid parental leave parents can access.

 


 

The Bill

The Bill includes various amendments and clarifications, including in relation to when a person is entitled to paid parental leave.  Notably, the amount of paid parental leave is set to increase by two weeks each year until the total entitlement is 26 weeks, as set out below:

  1. for a child born before 1 July 2024—100 days of paid parental leave (equivalent to 20 weeks);
  2. for a child born between 1 July 2024 and 30 June 2025—110 days of paid parental leave (equivalent to 22 weeks);
  3. for a child born between 1 July 2025 and 30 June 2026—120 days of paid parental leave (equivalent to 24 weeks); and
  4. for a child born on or after 1 July 2026—130 days of paid parental leave (equivalent to 26 weeks).

The Bill, as passed by both houses, has been published to Parliament’s website here.

What Does This Mean for Employers?

The amendments are unlikely to significantly impact employers, other than having to make additional payments of the funds to an eligible employee.  Any employers who have policies or similar documents which summarise an employee’s entitlement to the Government’s paid parental leave scheme should review those documents to ensure they are up to date.  The increase does not affect the entitlement to unpaid parental leave under the National Employment Standards.

For more information about the paid parental leave scheme and your obligations as an employer, see the Services Australia website here.

If you have any enterprise agreement or contract terms dealing with employer-provided paid parental leave, these amendments are unlikely to have any effect on those terms unless the term references the government scheme or the Paid Parental Leave Act 2010 (Cth).  If you think the amendments may affect your enterprise agreement or contract terms, we recommend you seek specific advice.

Require further information/assistance?

This EMA Note is not comprehensive advice about your situation and does not cover all your obligations.  If you require further information or advice, please contact your Consultant.

 


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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Experience in operating within the fair work system used to count for a lot, but an overwhelming period of change has occurred – and much of it is complex and has significant business and personal risk.

The ‘closing loopholes’ amendments are the most recent of many changes that have happened over the last 12 months. Leaders relying on their understanding of the Fair Work Act 2009 from before 2023 are very much out of date. This note brings together a catalogue of these changes to help you understand, plan and action them in a simple way. Link below to download your complimentary HR planning map.

We invite you to our Fair work checkup series of face-to-face networking sessions in Adelaide. This is a series of three (3) separate face-to-face sessions where EMA Consulting takes a closer look at specific areas of interest, designed to tell you what you need to know and what to do. These sessions are free to attend.

 


 

Catalogue of changes

The Fair Work Act 2009 has been amended seven times since 1 July 2023 to uplift entitlements and strengthen protections and employer obligations in a number of different areas into 2024 and beyond. These include:

  • the right to disconnect after working hours
  • wage theft
  • new definition of a casual worker
  • wage parity for labour hire workers
  • ensuring enshrining site union rep rights in awards, agreements and the General Protections
  • beefed-up protection for family and domestic violence victims
  • complex new provisions on protected action ballots and intractable bargaining
  • significantly increased flexibility in the taking of parental leave
  • extending wage protection for migrant workers
  • tightening rules on permitted deductions from an employee’s pay
  • putting superannuation obligations in the National Employment Standards
  • significant restrictions on using fixed term contracts

These arise from amendments including the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023Fair Work Legislation Amendment (Closing Loopholes) Act 2023, and most recently the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.  The pace and number of changes can be overwhelming and difficult to manage for busy HR professionals and managers generally.

We have grouped the more significant changes into three separate networking sessions to help with your planning and internal change management processes.

Downloadable HR planning map

Download our template planning map to help you create awareness of these changes with decision-makers, and plan for compliance in 2024 and beyond.

Review the key implications and questions on each topic so that you can identify which ones warrant a deeper dive and priority in your organisation.

Click here to download the planning map. Download expires 31 May 2024.

Session 1: Preventing Wage Theft

Thursday 28 March 2024, 8.30am

A closer look at the new rules impacting wage compliance, with a spotlight on three areas of hidden risk and how to identify them. Morning tea provided for those attending in person.

Read more and register…

Session 2: The New NES

Wednesday 17 April 2024, 8.30am

A closer look at areas of the NES that are significantly changed, including parental leave and the new world of casual employment. We will discuss the key changes to help you plan for what knowledge or processes need to be updated internally. Morning tea provided for those attending in person.

Read more and register…

Session 3: Right to Disconnect and More New Workplace Rights

Wednesday 29 May 2024, 8.30am

A closer look at the new right to disconnect, how it will actually operate and how to prepare.  We will discuss what’s not written in the legislation that has a practical impact on this right and the employer’s obligations. We will also cover more new workplace rights, including changes to union right of entry and delegates rights. Morning tea provided for those attending in person.

Read more and register…

Resources

Fair Work Ombudsman snapshot of changes and timeline (closing loopholes only):
Click here

Fair Work Commission summary of changes and infographic of timeline (closing loopholes only):
Click here

 

Require further information/assistance?

This EMA Note is not intended to be comprehensive advice about your situation and does not cover all your obligations.  If you require further information or advice, please contact your Consultant.

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Following the split of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, which passed both houses late last year (see our EMA Note here), Parliament has now passed the second half of the Bill.

 


 

The Bill

The Bill includes significant amendments to the Fair Work Act 2009 (Cth) (“FW Act”), including changes in response to recent High Court decisions on casual employment and contractors, and a late addition to address employees being contacted outside of their working hours.

We set out below some of the key changes that may have a more notable effect on your organisation.  If you have any questions about any of the upcoming changes, please contact one of our consultants who will be able to assist you.

The Bill, as passed by both houses, has been published to Parliament’s website here.

Casual Employment

The Bill changes the definition of casual employment, effectively seeking to legislate the findings made by the Full Federal Court of Australia in WorkPac v Skene[1] and WorkPac v Rossato[2]  (prior to the High Court’s decision appealing the latter).

A court, in determining whether an employee is a casual employee, will have less regard to the contract of employment and will look to ‘the real substance, practical reality and true nature of the employment relationship’.  Common indicia traditionally used to determine casual employment, including the ability for the employer to offer work and the ability for the employee to accept or reject work, continue to apply—though they will now be applied to the practical nature of the relationship rather than to the employment contract.  While this definition of casual employment has retrospective application, only the conduct of the parties after commencement of the amendments will be taken into account when determining the true nature of the relationship.

For employers with current enterprise agreements, a party to the agreement can apply for the Fair Work Commission to vary the agreement to resolve any ambiguities arising from the interaction between the agreement and the new FW Act definition.

The Bill also removes the current casual conversion provisions, and replaces them with an ability for a casual employee to notify an employer that the employee believes they are a permanent employee, based on the specific criteria introduced into the definition of casual employment.  The employer must respond within 21 days, must consult with the employee, and can only refuse the notification on the following limited grounds (summarised):

  1. that the employer disagrees that the employee meets the legislated indicia of casual employment;
  2. there are fair and reasonable operational grounds for not accepting the notification (including where substantial changes would be needed to the employee’s terms and conditions in order to comply with an award or enterprise agreement, or where there would be significant impacts to the employer’s business); or
  3. if accepting the notification would contravene a state or territory law around recruitment or selection.

The Fair Work Commission may deal with disputes arising from these notifications.

Similarly to the revised definition of casual employment, an employee’s employment before commencement of the amendments is not taken into account when determining the employee’s right to notify in relation to casual conversion.  To account for this, the current ‘residual right to request casual conversion’ will continue to apply to existing casual employees for the first six months after commencement of the amendments (12 months for a small business employer).

Employers must provide casual employees with the Casual Employment Information Statement (as published by the Fair Work Ombudsman) at each of the following times:

  1. before (or as soon as practicable after) commencement of employment;
  2. as soon as practicable after the employee has been employed for 6 months;
  3. as soon as practicable after the employee has been employed for 12 months; and
  4. as soon as practicable after every period of 12 months subsequent to (c) above.

Small business employers are exempt from providing the Casual Employment Information Statement in points (c) and (d) above.

There are various uncertainties in these new provisions, which may make it difficult to interpret and apply them to each individual circumstance.  Employers should seek advice if they are unsure about their obligations for any specific cases.

These amendments will apply from 26 August 2024.

Contractor vs Employee

Similarly to the above-described amendments to casual employees, the Bill changes the definition of an employee to effectively undo the High Court decision in CFMMEU v Personnel Contracting.[3]  Focus will again be on the totality of the relationship, rather than just the terms of a wholly written contract.

Similar to casual employees, these amendments may create some uncertainty in knowing whether an individual is an employee or a contractor; and there are complicated provisions allowing for individuals to opt out of the provisions in limited circumstances.  Employers who engage contractors should seek specialist advice to determine what, if any, actions they need to take.

These amendments will apply on a day to be fixed by proclamation, but no later than 26 August 2024.

Right to Disconnect

The Bill sees new laws which the Greens have been pushing for some years—a ‘right to disconnect’.  Under these provisions, employees will have a right not to answer calls, messages, emails, etc from their employer (or from other parties contacting them in relation to their work) outside of their working hours, subject to a test of reasonableness.

Reasonableness will vary from circumstance to circumstance, but there will be some general instances where it will likely always be reasonable to contact an employee out of hours, including (for example) where the employer is trying to see if the employee will pick up a shift to cover another employee’s illness, or where the employee is paid an allowance for being available to take calls outside of their working hours.

The Bill does not restrict an employer from attempting to contact or otherwise sending communications to employees outside of their working hours.  The main implications from the amendments are:

  1. preventing an employer from taking adverse action against an employee for not answering or responding to those communications (subject to the test of reasonableness); and
  2. permitting the Fair Work Commission to deal with disputes and issuing orders following those disputes. The orders the Commission may make include an order for an employee to stop refusing contact, or an order for an employer to stop taking certain actions.

Contravening an order made by the Commission will incur a maximum penalty of 60 penalty units for an individual or 300 penalty units for a body corporate ($18,780 and $93,900 respectively, as at the time this EMA Note was published).  We note that contravening an order by the Fair Work Commission is currently an offence under the FW Act, for which criminal penalties may apply.  The Commission will publish guidelines in relation to the right to disconnect.  Note: Parliament introduced a bill on 15 February 2024 to exempt contravening an order in relation to the right to disconnect from being a criminal offence.[4]

For a majority of employers and employees, these changes are unlikely to have any practical impact on day-to-day work, but may have some effect in sectors where out-of-hours communication is frequent.  In those sectors, employers and employees will need to determine the reasonableness of their actions in relation to communicating out of hours.

These amendments will apply from 26 August 2024.

Intractable Bargaining Declarations

Last year’s amendments saw the introduction of intractable bargaining workplace declarations, which allows a bargaining representative to apply to the Commission where parties have been bargaining for at least nine months, the Commission has already dealt with a dispute about the agreement, and there is no reasonable prospect of the parties reaching agreement without the Commission making the declaration.

The Bill introduces new provisions, including that where there is a current enterprise agreement, no term of the declaration can be less favourable to an employee or union than a term that currently applies to the employee or union.

The Bill also expands the meaning of an ‘agreed’ term (being a type of term that must be included in a declaration) to include terms that were agreed should be included in an agreement at the time the application for a declaration was made.

These amendments could have a significant impact on employers who are at an impasse with employee and union bargaining representatives in an enterprise agreement.  If you are negotiating an enterprise agreement and are at the stage where no party appears to be budging on their claims, you should seek specialist advice on how these amendments may affect you.

These amendments apply from 27 February 2024.

Other Amendments

Various other amendments are being made, including:

  1. provisions which expand the scope of employers who can make a single-enterprise agreement to include franchisees of the same franchisor;
  2. provisions dealing with when an employer transitions from a single interest employer agreement (one of the types of multi enterprise agreements) to a single-enterprise agreement, the single interest employer enterprise agreement will no longer apply;
  3. removing the current model terms from the Fair Work Regulations 2009 (Cth) and requiring the Fair Work Commission to determine new model terms for flexibility, consultation, and dispute resolution;
  4. an exemption to the prohibition on misrepresenting employment as an independent contracting arrangement where, at the time the representation was made, the employer can prove that they reasonably believed that the contract was for a contractor rather than an employee;
  5. requiring the Fair Work Commission to issue a right of entry exemption certificate (on application by a union) if the Commission is satisfied that the entry relates to suspected contraventions which involve underpayments;
  6. considerable increases to the maximum civil penalties for contraventions (by conduct occurring after commencement of the amendments) including:
    1. contravening the National Employment Standards, a modern award, enterprise agreement, workplace determination, national minimum wage order, or equal remuneration order;
    2. contravening the requirements around payment of wages (including the times when wages must be paid), permitted deductions, and unreasonable requirements to spend or pay amounts;
    3. sham contracting provisions (including making misrepresentations to an employee that they are a contractor);
    4. contravening requirements relating to employee records and pay slips;
    5. advertising employment at a rate that would contravene the FW Act or a modern award/enterprise agreement;
    6. franchisors for certain contraventions by franchisees of their franchise; and
    7. failing to comply with certain requirements from the Fair Work Ombudsman (including compliance notices);
  7. introducing the civil penalty for being associated with an underpayment to be either the maximum penalty for contravening the relevant section or three times the underpayment amount, whichever is greater;
  8. introducing significant new provisions regulating the road transport industry (about which, if you are a potentially affected employer, we recommend you seek specialist advice); and
  9. amendments to coal mining long service leave (about which, if you are a potentially affected employer, we recommend you seek specialist advice).

 

Require further information/assistance?

This EMA Note is not comprehensive advice about your situation and does not cover all your obligations.  If you require further information or advice, please contact your Consultant.

 


[1] [2018] FCAFC 131.

[2] [2020] FCAFC 84.

[3] [2022] HCA 1.

[4] Fair Work Amendment Bill 2024 (Cth).


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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The Senate has agreed to split the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) (“Bill”), passing the first half of the Bill with the less controversial amendments.  This EMA Note sets out what this means for your organisation.

 


 

The Bill

The Bill originally included vast amendments to the Fair Work Act 2009 (Cth) (“FW Act”), including changes in response to recent High Court decisions on casual employment and contractors.

The Senate proposed to separate the Bill into two separate parts, and the House of Representatives has agreed to the first half, which includes the less controversial elements of the Bill such as those regarding small business redundancy exemptions, labour hire, introducing workplace delegate rights into modern awards, strengthening protections against discrimination, wage theft, asbestos safety, post-traumatic stress disorder for first responders, and industrial manslaughter.

We set out below some of the key changes that may have a more notable effect on your organisation.  If you have any questions about any of the upcoming changes, please contact one of our consultants who will be able to assist you.

Labour Hire

Where a host employer has an enterprise agreement, a person may apply to the Fair Work Commission to ensure that any labour-hire worker is paid not less than a ‘protected rate of pay’ determined in the order—which will ordinarily be the same as the rate in the host employer’s enterprise agreement, but may be a different rate if the Commission so orders.

The intention and effect of these amendments is that host employers will be less likely to engage labour hire workers to save on labour costs.  There is still nothing to prevent a host employer engaging labour hire workers, but before doing so, it should seek specific advice on the various implications so it is fully aware of the likely costs of doing so.

Workplace Delegate Rights

The Fair Work Commission will be required to amend modern awards to include provisions on workplace delegate rights, and enterprise agreements must also include such a term.  While the specifics of the standard term that will go into modern awards has not yet been decided by the Commission (and it will require considerable submissions from interested parties before the Commission makes any determination), the rights set out in the Bill are similar to common terms bargained into enterprise agreements at the moment, providing a workplace delegate with reasonable paid time to assist in disputes and to receive training for those disputes.

If you are currently covered by an enterprise agreement with a term dealing with workplace delegate rights, these changes are unlikely to have a significant impact on your business.  If you are covered by a modern award or enterprise agreement without such a term, your union workplace delegates will have some additional rights arising out of these changes; and new enterprise agreements will be required to include a term (or incorporate the model term in the relevant modern award).  Once the standard term has been decided by the Commission, we will send an EMA Note to update you on the specifics of the term.

The amendments proposed by the Senate to the Bill also include a minor change to the right of entry provisions to the FW Act.  The effect of these changes will be that a union official will be permitted to enter premises if they are accompanying a health and safety representative—even if the union official themselves is not a permit holder.  However, if an official enters on this basis, they are doing so for the purpose of assisting the health and safety representative, and the rules around hindrance and obstruction continue to apply.

Wage Theft

A common term used in recent times, and something which has been introduced in various state/territory legislation, ‘wage theft’ will be incorporated into the FW Act, creating an offence if an employer engages in conduct that results in an employee not being paid their correct entitlements under the FW Act or a workplace instrument.  This will include superannuation contributions.

Notably, if an employer enters into a ‘cooperation agreement’ with the Fair Work Ombudsman, the Ombudsman must not refer the matter to either the Director of Public Prosecutions or Federal Police.

Practically speaking, these amendments should have little effect on organisations to the extent that organisations should already be paying all staff members correctly; however, it will now be more important than ever for employers to ensure that their interpretation of their industrial instruments are correct and implemented correctly into their payroll system, noting that a reasonable mistake of fact will not be a valid defence in a wage theft claim.

If your organisation is concerned that it may have underpaid staff members, it will be imperative to seek advice as soon as practicable to confirm whether there has been any such underpayment based on the rules of the applicable workplace instrument, and if so, what steps the organisation should take to correct the underpayment.

Industrial Manslaughter

Another relatively common term in recent times, as it has been introduced in various state/territory work health and safety legislation, the amendments will incorporate industrial manslaughter penalties of up to 25 years imprisonment for an individual and up to $18,000,000 for a corporation.

These amendments emphasise the importance of work health and safety, especially so for higher risk industries.  Organisations should ensure that they have undertaken up-to-date risk assessments and taken all necessary steps to eliminate or minimise those risks so far as reasonably practicable.  Keep in mind that any officer of a company—such as a director of the company—will have due diligence obligations which include staying informed of how the organisation is complying with its safety obligations.  Any identified gaps in health and safety must be addressed as a matter of priority.

Edit: Note that these amendments apply to the Commonwealth (including its agencies).  These amendments do not affect industrial manslaughter provisions in state and territory workplace health and safety legislation.

Require further information/assistance?

This EMA Note is not comprehensive advice about your situation and does not cover all your obligations.  If you require further information or advice, please contact your Consultant.

 


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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The changes to the Fair Work Act 2009 (Cth) (“FW Act”) fixed-term contract rules begin from 6 December 2023.  Is your organisation ready for these changes?

 


 

On 6 December 2022, the Fair Work Amendment (Secure Jobs, Better Pay) Bill 2022 passed both houses of parliament.  Among the long list of amendments to the FW Act were changes to the rules around using fixed-term contracts.  We previously issued a brief EMA Note of those changes which you can read here.

Brief Review of Changes

From 6 December 2023, the maximum cumulative term on a fixed-term contract will be two years—that is, whether it is a single fixed-term contract or consecutive fixed-term contracts, the maximum total duration must be two years.  There are also strict anti-avoidance provisions, including preventing an employer from hiring a different employee in the same job at the end of a contract term to get around the two-year limit.

Penalties apply for breaches of these rules.

There are some exemptions to the two-year limit, including for employees earning above the high-income threshold.

What Should I Be Doing?

Organisations should review what fixed-term contracts they have in place, as well as their current practices around the use of fixed-term contracts.  Anyone wanting to enter into fixed-term contracts from 6 December 2023 should ensure that their use of the contract will be compliant with the new rules.  If you are unsure whether your proposed contract will comply with the new rules, you should seek specific advice.

If you engage anyone on a fixed-term contract from 6 December 2023, you will need to provide them with the Fixed-Term Contract Information Statement, which will be available on the Fair Work Ombudsman’s website from 6 December.  The Fixed-Term Contract Information Statement can be downloaded from the Fair Work Ombudsman’s website here.

Require further information/assistance?

This EMA Note is not comprehensive advice about your situation and does not cover all your obligations.  If you require further information or advice, please contact your Consultant.

 


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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A Federal Court of Australia Full Court has ruled that a union’s right to enter premises to ‘hold discussions’ includes entering to secure signatures on a petition.

This follows an appeal of the first instance Federal Court decision that a union official who entered premises with the intention of getting signatures for a petition was not an entry ‘for the purposes of holding discussions’ and was therefore not permitted under the Fair Work Act 2009 (Cth) (“FW Act”).

 


 

The Full Court of the Federal Court of Australia recently in Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Austal Ships Pty Ltd held that a CEPU official who entered premises for reasons including to secure signatures on a petition for a majority support determination (a process available under the FW Act for employees to make their employer commence bargaining for an enterprise agreement) was validly entering the premises for the purposes of ‘holding discussions’.[1]

What happened?

On four occasions, a CEPU official attempted to enter Austal Ship’s premises to provide updates to members and potential members, speak with members about a majority support determination for an enterprise agreement, invite members and potential members to sign a petition in support of a majority support determination, and persuade those who were unsure or reluctant to support the majority support determination.

The official was refused entry on all four occasions.  Austal Ship’s reason for refusing entry was because seeking people to sign a petition did not (in its opinion) fall within the scope of the right to enter a premises for the purpose of ‘holding discussions with one or more employees’.

First instance decision

In the first instance, Justice Colvin rejected the CEPU’s various arguments, including that obtaining a signature was no different to taking notes of a conversation, or that seeking a signature being only part of the reason for entry did not invalidate the right of entry.

His Honour found that seeking a signature does not fall within the statutory definition of ‘holding discussions’, and that entering for the purpose of securing a petition would invalidate the entry even if discussions were held before the signing of the petition (or seeking people to sign the petition) occurred.

The Appeal

The Full Court quashed the first instance decision, finding that a discussion ‘is a means to an end’ and ‘a medium that is engaged in order to achieve some other objective’.  Given this, in order to secure signatures on a petition was, in effect, a natural extension from holding a discussion.  That is, the CEPU official was entering to hold discussions with employees in order to secure their signature, and this sequence of events was within the statutory definition of ‘holding discussions’.

Key Takeaways

An official who enters premises with an industrial goal or objective in mind will still be holding discussions with employees for the purposes of right of entry, even where the result of that discussion is the securing of the particular goal such as by way of a vote, signing a petition, or some other action (even if it might be contrary to the employer’s interests).  Possible examples might include to:

  • gather support for the pursuit of a protected action ballot to take industrial action against the employer;
  • gather support for the pursuit of a claim or a dispute against the employer;
  • update employees on bargaining and seek approval for negotiating claims; and
  • discuss campaigns for industrial change and seeking the signing of a petition for this.

While this decision should not be read as giving union officials any broader a scope to enter premises, it highlights the complexity around determining whether a union’s request to enter premises will be for a reason permitted by the FW Act.  Employers (or occupiers) who wrongly deny a union the right to enter the premises may expose themselves to significant penalties under the FW Act.

Where a union gives notice that it seeks to enter premises on particular grounds, managers and leaders should promptly seek expert advice (whether internal or external) to confirm whether the notice is for lawful entry to the premises.  If it is, those managers and leaders must not hinder or obstruct the union official entering the premises.

Require further information/assistance?

This EMA Note is not comprehensive advice about your situation and does not cover all your obligations.  If you require further information or advice, please contact your Consultant.

 


[1] [2023] FCAFC 180.


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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A recent Fair Work Commission decision explored the issue of an employee who had been convicted of a crime, failed to declare this crime to his employer, and was terminated as a result.  While not common, we do occasionally get queries in relation to employees who have been charged or convicted with crimes, including pre-employment convictions.

This EMA Note will help guide employers through the various matters that must be considered when making decisions in this area.

 


 

In the recent Fair Work Commission matter of Strangio v Sydney Trains,[1] a Full Bench of the Fair Work Commission dismissed an appeal against a decision by Commissioner McKenna,[2] who found that an employee’s dismissal was reasonable in circumstances where he failed to report a criminal charge/conviction to his employer, as he was required to do under the employer’s code of conduct.  The charges occurred in 2021, and the conviction in 2022, which was during the employee’s 37 years of service with the employer.

We provide guidance below on how employers must approach this area, grouped into the two categories of pre-employment criminal history and criminal charges/convictions during employment.

Pre-employment Criminal History

Determining whether pre-employment criminal history can be considered as grounds for either rejecting a prospective employee or terminating a current employee must begin first with a review of the relevant legislation.

Different states and territories have different laws on discrimination.  For example, in the Northern Territory, there is a general prohibition on discriminating against a person for an ‘irrelevant criminal record’,[3] though with some exemptions.  The states and territories also have laws providing convictions becoming ‘spent’ after a certain period of time.  In South Australia, as an example, there are rules against disclosing spent convictions and those spent convictions are typically required to be disregarded.[4]  Some states go a step further and make it unlawful to discriminate against a person because of a spent conviction.[5]

At a federal level, while not unlawful, the Australian Human Rights Commission can investigate and deal with complaints about discrimination in employment on the ground of an irrelevant criminal record.[6]  Separately to discrimination, a person’s criminal record constitutes ‘sensitive information’ under privacy laws, so an employer can generally only collect that information where the individual consents and the information is reasonably necessary for one or more of the employer’s functions/activities.[7]

It is therefore important for employers to establish, before requesting or requiring information about an employee’s (or prospective employee’s) criminal history, what the rules are in their state/territory and comply with those rules.  This should include confirming whether there are any legislated requirements around the employee’s particular job (for example, if a police record check is required for their role).  Other than this, employers should only seek information about an employee’s criminal record or history if it is relevant or connected to the employee’s job.

Where a refusal or failure to disclose this information would constitute a valid reason for termination will depend both on whether it is reasonable and lawful to require the information and also on the connection between that history and the employee’s job,[8]  which is explored further below in relation to current employees.

Criminal Charges/Convictions During Employment

If an employee engages in a criminal act against their employer or in the course of their employment, this will almost always constitute valid grounds for dismissal.  For example, the Fair Work Regulations 2009 (Cth) expressly lists theft, fraud, and assault as examples of serious misconduct.[9]  However, different considerations apply when the conduct is engaged in outside of work.

Criminal Charges

Queries we receive ordinarily involve instances where an employer is suddenly made aware that an employee has been charged with a crime and wants to know ‘where it stands’ in relation to that employee.  Often when this happens, the employer has little-to-no information other than having been told by someone—often not the employee themselves—that the employee has been charged with an offence.

There are various factors to consider when this occurs.  Information that the employer should seek in the first instance is whether the employee is being restricted from attending the workplace in any way (for example, if they are being held in remand or if a court order is otherwise preventing them from leaving their home for any reason).  If so, the employer should investigate whether the employee has capacity to continue performing their job.

Otherwise, the employer must investigate the matter and satisfy itself, so far as it is reasonably able, whether the employee has engaged in conduct that is inconsistent with the employee’s job, as set out below.   This assessment may need to include whether there are any regulatory requirements around criminal history for the job.

Out of Hours Conduct

If an employee is charged or convicted of a criminal offence, the standard rules of ‘out of hours conduct’ apply to the employer’s assessment of whether the offence may constitute ground for dismissal (assuming the conduct was engaged in outside of work).  That is, there needs to be a sufficient connection to the employee’s job, and the employer must satisfy itself on the balance of probabilities that the employee engaged in the conduct.[10]  This will require the employer to investigate the matter (so far as it is reasonably able) as it would any other allegation of workplace misconduct.

Employers should be aware, from a practical perspective, that notwithstanding an employee’s typical obligation to participate in workplace investigations and be honest and truthful during that investigation, an individual cannot generally be compelled to admit whether they have committed a crime.[11]  In most circumstances, when allegations are put to an employee in relation to suspected criminal conduct, the employee will on advice from their lawyer refuse to answer any questions other than to deny any wrongdoing.  In any event, employers must reach a conclusion based on the evidence they were able to gather through their investigation (provided the investigation was robust and went down all reasonable paths of inquiry).

Employers should seek advice on how best to approach these investigations if they are unsure.

Key Takeaways

For pre-employment conduct:

  1. Employers must first check the rules relevant to their state/territory and business (including any applicable federal laws).
  2. In general, an employer should not ask about an employee’s criminal history unless it may have some genuine connection to the employee’s job.
  3. If an employee fails to disclose criminal history when asked, these rules (and the connection to the job) will be relevant in determining what, if any, outcome is appropriate.

For conduct during employment:

  1. Serious misconduct in the course of work will ordinarily constitute a valid reason for dismissal.
  2. If an employee is charged with an offence, the employer should gather as much information as it can, including in relation to whether the employee is still able to perform their job, whether the alleged conduct is connected to the employee’s work, and whether on the balance of probabilities the employee did engage in the conduct.
  3. Following the employer’s investigation, it will be in a position to determine what, if any, outcome is appropriate.

If you are unsure about your obligations, or need any assistance in investigating such a matter, you should seek advice.

Require further information/assistance?

If you require further information or advice, please contact your Consultant.


[3] Anti-Discrimination Act 1992 (NT) s 19(1)(q).
[4] Spent Convictions Act 2009 (SA) ss 10-12.
[5] See eg Equal Opportunity Act 2010 (Vic) s 6(pb).
[6] See the Australian Human Rights Commission’s commentary here.
[7] Privacy Act 1988 (Cth) s 6 (definition of ‘sensitive information’), sch 1 cl 3.3.  We note that there are various exclusions to this, including where the collection of the information is required/authorised under another law.
[8] See eg Njau v Superior Food Group Pty Ltd [2018] FWC 7626 [11].
[9] Fair Work Regulations 2009 (Cth) reg 1.07(3)(a).
[10] Cooper v Australian Taxation Office [2014] FWC 7551 [41]-[56].
[11] See eg Grant v BHP Coal Pty Ltd [2017] FCAFC 42 [108], which discusses this in an employment setting.

 


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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The High Court today ruled on Qantas’ appeal in relation to a claim by the Transport Workers’ Union (“TWU”) that Qantas engaged in adverse action because of a future workplace right when it decided to outsource ground handling operations.  The High Court dismissed the appeal, finding that Qantas did take adverse action against those employees for a prohibited reason.

The full decision can be read here.[1]


 

The High Court has published its judgment in Qantas Airways Ltd v Transport Workers Union of Australia,[2] in relation to whether Qantas took unlawful adverse action against ground staff workers when it decided to outsource ground staff work in 2020.

This EMA Note provides a brief summary of the High Court’s decision and what it means for employers.

Background

In November 2020, following from the significant impacts of the COVID-19 pandemic, Qantas decided to outsource ground handling work, affecting some 1,700 roles.  In its detailed planning process leading to this decision, there was an annotation in a document stating that, at the end of December 2020, Qantas’ agreement would pass its nominal expiry date, in which case the TWU would be able to bargain and take protected industrial action.

The Federal Court in the first instance, and the Full Federal Court in the second instance, found that the TWU’s ability to take industrial action in the future was in the mind of the decision-maker (that is, he was ‘subjectively conscious’ of it) and therefore formed part of the reason to outsource.  This was held to be a contravention of the general protections provisions of the FW Act, as the ability to take protected industrial action (a protected right) formed part of the reason to make the employees redundant.

High Court Appeal

The FW Act provides various ‘general protections’, including a person taking ‘adverse action’ against another person for certain proscribed reasons.  One such proscribed reason is because the person has a workplace right.

In general, a person must have a workplace right to be protected.  At the time of the outsourcing decision, employees did not have a benefit or entitlement under a workplace law.  However, there is also a protection against action taken if a substantial and operative reason for taking the action ‘is to prevent the exercise of a workplace right’ by a person.[3]  The High Court found that this specific protection includes future workplace rights.[4]

On this basis, the High Court unanimously rejected Qantas’ appeal and upheld the Full Federal Court’s decision, finding that Qantas did take adverse action against the relevant employees because of a workplace right to engage (in the future) in protected industrial action.

What Does This Mean for Employers?

So does this mean that, in making business decisions, employers cannot consider any current or future entitlements or terms and conditions of employment?  To put it simply—no, that is not what the High Court’s decision means.

Adverse action taken with a mere awareness of a workplace right will not offend the FW Act, but action taken because of that right will.[5]  The reason that Qantas’ case failed was because it had to prove, to the satisfaction of the court, that the reasons for its decision to outsource did not include the substantial and operative reason of preventing employees from being able to take protected industrial action in the future.  The court was not satisfied that Qantas proved this.

Justices Gordon and Edelman provide this useful takeaway for employers (emphasis in original, citations omitted):[6]

Nothing in these reasons should be understood as suggesting that employers are prevented from considering the existence and terms of enterprise agreements in making decisions about the future. In fact, to fail to do so might in some circumstances constitute a breach of duty. There is no legal or practical difficulty in allowing such a matter to be considered by a decision maker. However, what is not permissible… is the taking of adverse action to prevent the exercise of a workplace right, whether presently existing or not. If Qantas had established, for example, that its reason for the outsourcing decision was to generate substantial savings in order to address imminent liquidity issues (with the inevitable consequence of that decision being termination of employment of staff), and that its reasons did not include a substantial and operative reason of preventing the employees affected by the outsourcing decision from organising and engaging in protected industrial action, then the outsourcing decision would not have been for a proscribed or prohibited purpose…

It is therefore clear that employers can (and, to some extent, may be required to) consider the existence of current terms, entitlements, and rights when making business decisions.  However, the employer must not make any decisions to the disadvantage of those employees because of those terms, entitlements, and rights—whether currently existing or not.

Require further information/assistance?

If you require further information or advice, please contact your Consultant.

[1] See the High Court’s summary here.

[2] [2023] HCA 27.

[3] Fair Work Act 2009 (Cth) s 340(1)(b).

[4] [2023] HCA 27 [41]–[46], [57]; [64]–[65].

[5] [2023] HCA 27 [41].

[6] [2023] HCA 27 [88].

 


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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A recent Federal Court ordered penalties against an employer for failing to follow the recommendations of the Fair Work Commission and provide an employee a copy of an investigation report and its annexures, consistent with its enterprise agreement obligations, in the course of putting allegations to the employee.

 

This EMA Note discusses and provides guidance to employers to apply procedural fairness to their employees in the course of workplace investigations, including what information should (and needs to) be put to employees to respond to any allegations.

 


 

In Gulliver v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane,[1] the Federal Court discusses a recommendation made by the Fair Work Commission in an enterprise agreement dispute, where the Commission recommended an employer provide the employee with a copy of an investigation report (and its annexures) into alleged misconduct so that the employee could respond to a show cause letter in relation to those allegations.

 

In practice, disputes around what materials should be put to an employee during a disciplinary process are relatively common.  Employees and unions often call for all documents, including witness statements and investigation reports.  Employers often want to withhold witness statements and investigation reports to protect the confidentiality of witnesses or protect other information that may be in the reports.

 

This EMA Note provides some guidance and tips on running a workplace investigation, including ways to help ensure that the investigation is procedurally fair.

 

What is ‘Procedural Fairness’?

 

There are two key definitions of procedural fairness often used in industrial relations.  The first is a phrase commonly used in unfair dismissal proceedings which relates to certain criteria in the Fair Work Act 2009 (Cth) in determining whether a dismissal was harsh, unjust, or unreasonable.  In this sense, procedural fairness typically refers to whether an employee is notified of the reason for termination and given a genuine opportunity to respond to that reason.[2]

 

Outside of unfair dismissal cases, ‘procedural fairness’ is a phrase that can be found in some state legislation, enterprise agreements, contracts of employment, and workplace policies and procedures.  In these cases, the meaning of ‘procedural fairness’ must be determined by applying the general rules of interpretation, but often is found to carry with it a broader meaning than is attached to the term when used specifically in relation to unfair dismissal proceedings.

 

A summary of the concepts of procedural fairness (in its general sense) was set out in ARTBU v Rail Commissioner, including that:[3]

 

… subject naturally to the particular statutory context, procedural fairness does not require that a decisionmaker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party … Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.

 

The specific documents that may need to be provided to an employee responding to allegations will therefore vary depending on the circumstances.[4]  A failure of an employer to follow its internal processes may not necessarily make a termination of employment unfair in unfair dismissal proceedings;[5] however, it could expose the employer to a claim for a breach of an instrument (if the instrument prescribes a particular requirement) and could also be harsh if an inconsistent procedure was applied in the particular investigation.

 

Workplace Investigations – Best Practice Approach

 

There are a few key tips that employers and investigators can follow to assist in running a fair and unbiased workplace investigation.  These tips include the following:

 

  1. Ensure that the investigator and decision maker have no conflict of interest in the matter being investigated, as this could lead to an actual or perceived bias. If the employer has any concerns about a conflict of interest (or perceived conflict of interest), it should consider engaging an external party to do the investigation.

 

  1. Seek all information, including details (such as dates, times, quotes, and witnesses) from the individual making a complaint. Where potential witnesses are identified, those witnesses should also be interviewed to see whether their recollection of events matches or contradicts the original complaint.

 

  1. When interviewing a complainant or witnesses, try to use open ended questions (typically starting with ‘who’, ‘what’, ‘how’, and ‘when’) to avoid leading or putting words in the witnesses’ mouth.

 

  1. Generally, an accused employee should not be interviewed at this preliminary stage.[6] Instead, the investigator should determine whether there is a reasonable basis to put allegations to that employee.  If there is, the employee should be given as much relevant information as they need to genuinely understand and be able to respond to the allegations being put.  This will typically include:

 

    1. clear details of the incident or behaviour being alleged and any relevant internal policies/procedures or contract terms that the employee may have breached;
    2. details about any material being relied upon, so far as is reasonably necessary to provide (for example, witness statements may not be necessary to provide if enough detail is put into the allegation); and
    3. clarity around the potential consequences if the allegation is substantiated—do not overstate this.

 

  1. If there is any documented or similar evidence (for example, relevant emails, policies/procedures, or CCTV footage) depicting the behaviour, the employee should be either provided with this evidence or be given a reasonable opportunity to view the evidence.

 

  1. The employee should be given a reasonable amount of time to be able to consider the allegations prior to being placed in a position to respond. The amount of time necessary may vary depending on the specific allegations.

 

Following these steps should help ensure that an employee accused of misconduct is provided with a fair process and has a reasonable and genuine opportunity to respond to allegations.

 

If you need assistance with an investigation—whether it is running the investigation or assistance in any particular stage of the investigation, please do not hesitate to contact EMA Consulting.  Our consultants are experienced investigators and are licenced to undertake workplace investigations in South Australia.

[1] [2023] FCA 823.

[2] Fair Work Act 2009 (Cth) ss 387(b)–(c).

[3] [2019] FWC 3944 [123], citing Coutts v Close [2014] FCA 19 [114].

[4] For example, in Tucker v State of Victoria [2021] VSCA 120, an employee was not afforded procedural fairness under an enterprise agreement when given a heavily redacted copy of an investigation report into a claim of harassment.  Redactions included certain witness evidence and the investigator’s findings.  By redacting this information, the Victorian Court of Appeal found that the employee was denied the employee to make submissions to the employer challenging the evidence and conclusions in the investigation before the employer made its decision.

[5] See eg Central Queensland Services Pty Ltd v Odgers [2020] FWCFB 304 [33]–[44].

[6] If there is insufficient information to establish a reasonable basis to put allegations, an accused person can instead be interviewed like other witnesses (following tip 3 in our best practice approach guidelines).

Require further information/assistance?

If you require further information or advice, please contact your Consultant.

 


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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Parliament has passed another Bill changing the Fair Work Act 2009 (Cth) (“FW Act”), including by improving protections for temporary visa workers, improving an employee’s accessibility to unpaid parental leave, adding requirements to make superannuation contributions, and providing long service leave to black coal mining casual employees

We have set out in this EMA Note some of the key changes arising from the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth).  This Note does not cover all changes, and for the changes described it only provides a brief summary and therefore should not be relied upon in place of formal advice specific to your business.

 


 

Workers on a Temporary Visa
Summary of Amendments and their Effect

A new provision will be added to the FW Act that a breach of the Migration Act 1958 (Cth) will not affect the validity of a contract of employment for the purposes of the FW Act.  The intention of this is to ensure that migrant workers are entitled to protections under the FW Act regardless of their immigration status.

These amendments started on 1 July 2023.

Unpaid Parental Leave
Summary of Amendments and their Effect

 

There are quite extensive changes to the unpaid parental leave provisions in the FW Act, including to remove gendered language, providing scope for an employee to start their parental leave at a time later than the date of birth of the child, and to remove provisions dealing with members of an employee couple who each take parental leave (which is intended to remove limitations on employee couples each accessing unpaid parental leave).

The amendments permit an employee to start (and finish) parental leave at any time in the 24 months following the date of birth or placement of their child.  The amendments have also changed the date at which an employee must have accrued 12 months’ service with their employer to be eligible for unpaid parental leave.  In some cases these changes will allow the employee to take leave (at a later time) even if they do not have 12 months service by the time the child is born or placed.

 

The amendments also extend the entitlement to flexible unpaid parental leave from 30 days to 100 days (including for a casual and part-time employee) and entitle an employee to begin taking flexible unpaid parental leave starting from 6 weeks before the expected date of birth of the child.

These amendments started on 1 July 2023.

Transitional rules apply for arrangements already made and notices given in relation to births or placements that will occur after 1 July 2023. Employers should take specific advice about any employees planning or currently on parental leave.

 

Superannuation Requirements
Summary of Amendments and their Effect

The obligation to make superannuation contributions has been included in the National Employment Standards.  The intention of these amendments are to allow employees an ability to make a claim in the Federal Court if their employer does not make the correct superannuation contributions, provided the Australian Tax Office has not already commenced proceedings in relation to that employer and employee.  There are some exemptions as to whom these new superannuation provisions apply.

There may be a reduction or limitation in liability in relation to the above NES amendments for employers who pay the superannuation guarantee charge in respect of an employee rather than making contributions at the time.

The introduction of superannuation contributions into the National Employment Standards (and associated terms) are set to start on 1 January 2024, with one amendment (relating to modern awards) having started on 1 July 2023.

Employers should seek advice from their accountants or tax advisors in relation to their superannuation obligations.

 

Employee Authorised Deductions
Summary of Amendments and their Effect

 

The FW Act will now include a provision whose intention is to permit an employee to authorise regular deductions being made that may vary from time to time rather than a specified fixed amount, provided those deductions are principally for the employee’s benefit.  This would permit, for example, an employee to permit union fees to be deducted even if those fees may vary from time to time.

These amendments are set to start 30 December 2023.

Transitional rules apply for the continuing validity of arrangements that were in place immediately before commencement of the amendment, if those arrangements were compliant with the previous rules.

 

Next Steps for Employers

Employers should review their current practices, policies, and procedures against the upcoming amendments to ensure that they are (and will be) compliant with the amendments.

Any enterprise agreements which have specific provisions relating to any of the above should also be reviewed for consistency.  If you are currently negotiating a new enterprise agreement, you should ensure that the terms will be consistent with the new amendments.

Require further information/assistance?

If you require further information or advice, please contact your Consultant.

 


 

EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.

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