MASON SIER TURNBULL Rudd’s March 2008 Reforms Katrina Sweatman Lawyer Recent Case Studies Charles Cody Principal Unlawful Termination - The New Unfair

MASON SIER TURNBULL

Rudd’s March 2008 Reforms

Katrina SweatmanLawyerRecent Case Studies

Charles CodyPrincipal Unlawful Termination - The New Unfair Dismissal

MASON SIER TURNBULLLAWYERS

Herbert FischbacherPrincipalThe death of AWAs, but is it the death of WorkChoices

MASON SIER TURNBULL

The death of AWAs, but is it the death of WorkChoices?

Presented by:

Herb FischbacherPrincipal


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Introduction

• The Rudd Government has completed its first phase of IR Reforms with the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008

• These reforms became operative on 28 March 2008 – 2 years to the day after the introduction of WorkChoices

Touted as the death of WorkChoices

More like a black eye

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The changes at a glance

1. AWAs abolished

2. Existing AWAs will remain in place

3. Employers who had at least one employee on an AWA as at 1 December 2007 can use Individual Transition Employment Agreements (‘ITEAs’) for the period 28 March 2008 to 31 December 2009

4. Replacement of the Fairness Test with the No Disadvantage Test (‘NDT’) for ITEAs and collective agreements

ITEAs – only way moving forward for individual registered workplace agreement making

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What is an ITEA?

• An individual employment agreement registered with the Workplace Authority and assessed against the NDT

• ITEAs replace awards and other industrial instruments that may otherwise apply to the employee

• An ITEA will operate:

– in the case of a new employee, upon lodgement

– in the case of an existing employee, once the Workplace Authority is satisfied that the NDT is met

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Expiry / Termination of ITEAs

• ITEAs will operate beyond nominal expiry date, however, can be terminated on notice by either the employer or the employee

• Once terminated, employees minimum conditions of employment will be set by an applicable award, industrial agreement or the Australian Fair Pay and Conditions Standard (‘AFPCS’)

Same as existing AWAs

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What elements of WorkChoices continue?1. Award system continues to underpin minimum

terms and conditions of employment

2. The Workplace Authority and the Ombudsmen remain in place – watchdogs of WorkChoices

3. Unfair dismissal law exemptions continue

• 101 or less employees• Genuine operational requirements

4. Ability to contract out of award conditions remain

• Individually by the use of ITEAs• Collectively by the use of a collective

agreement

Collective Agreements – endorsed by both political parties – simplest way moving forward for registered workplace agreement making

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Next Wave of Reforms

1. Award Modernisation

• Currently well in excess of 4,500 Federal awards and notionally expired State awards

• High degree of complexity, ambiguity and overlap

• On 28 March 2008 the AIRC was empowered to complete an award modernisation process

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• Must be simple to understand and easy to apply

• Must be of a safety net character

• Must promote flexible modern workplace practices

• Must be in a form that promotes collective bargaining

This process requires that awards:

Award modernisation (cont.)

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• Must promote the creation of jobs and high levels of productivity

• Must protect the needs of the lower paid

• Must assist employees to balance their work and family responsibilities effectively

• Must reflect current minimum rates of pay under AFPCS and minimum wage decisions of the Australian Fair Pay Commission (‘AFPC’)

This process requires that awards:


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• The AIRC has confirmed that the new modern awards will interact with proposed National Employment Standards (see below) and will be industry based rather than employer specific

• Modern awards may, in some cases, group several industries together with significant common features

• Modern awards likely to number less than 1,000 but will ‘cover the field’

New modern awards will be ‘super’ awards covering most Australian staff up to $100,000 p.a.


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Next Wave of Reforms (cont.)

2. Introduction of a new body called Fair Work Australia to replace the Workplace Authority and the Workplace Ombudsman

3. Scrapping of the unfair dismissal law exemptions, including the 101 employee exemption

4. Requirement for an employer to bargain collectively when a majority of staff wish to

5. Introduction of new National Employment Standards to replace AFPCS

Greater complexity and regulation

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Conclusion – Key Points

• The quantity of new employment legislation has made it almost impossible for employers to keep up – set to continue with further reforms

• Award coverage – will continue to set minimum terms and conditions of employment

• Individual workplace agreements – have a limited shelf life and represent only an interim solution

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Conclusion – Key Points (cont.)

• Co-existence of AWAs and ITEAs with nominal expiry dates – confusing and administratively costly Window of opportunity prior to 31

December 2009 Introduce an underpinning collective

agreement Minimise voting numbers (pre nominal

expiry date staff cannot vote) Establish simple and tailored underpinning

minimum conditions as AWAs and ITEAs expire

Exclude award coverage in the short and long term

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Conclusion – Key Points (cont.)

• Collective agreements remain the lynch pin of Australia’s IR system

• Collective Agreements – the only real solution now and in the long term to set minimum terms and conditions of employment and exclude award coverage

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Unlawful Termination – The New Unfair Dismissal

Presented by:

Charles CodyPrincipal


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Agenda

Termination of employment

Invalid terminations

What is unlawful termination?

Absence due to injury/illness

Stress in the workplace

Case study

Tips to avoid unlawful termination

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Termination of Employment

Unfair Dismissal Valid reason & fair process > 100 employees

Unlawful Termination Discriminatory reason

Wrongful Dismissal Breach of contract - notice

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Unfair Dismissal

2010 (?) >100 employees exemption removed

Unfair dismissal for employees of employers employing: > 15 + employees – 6 months

qualifying period < 15 employees – 12 months

qualifying period

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Unlawful Termination

WRA s659(2) – reasons including any one or more of the following reasons:

Temporary absence due to injury/illness

Trade union membership/non membership or activity

Seeking office or acting as employee representative

Complaints to courts or competent administrative authorities – union?

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Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin

Refusing to negotiate ITEA Absence - parental leave Absence – voluntary activity

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Employee establishes attribute Onus on Employer to prove not a

reason Conciliation in Commission – Federal

or Federal Magistrates Court Generally no cost – unless

without reasonable cause – bound to fail

unreasonable conduct in relation to the proceedings – reject generous offer

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Temporary Absence

Medical certificate within 24 hrs OR

Compliance with CA, AWA, ITEA On unpaid sick leave for < 3 months

in 12 month period Workcover = paid leave Interpreted strictly Inherent requirements defence not

available

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Stress

Rapidly growing reason for temporary absence

Certificate – “medical condition” Often results from

warnings/poor performance Workplace culture – bullying Workloads

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Gordon v Express Gas Operations

Long history of absenteeism Poor performer Took week off due to workplace

injury Employer aware of reason for

absence Terminated employment upon

return

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Gordon v Express Gas Operations

Maximum 6 months compensation

Plus $8000 penalty

Employer ignorant of applicable law

Did not discharge onus to establish that the temporary absence was not a reason

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Tips – Risk Protection

Keep friendly contact with absent employees

Do not terminate during absence if position genuinely redundant – wait for return and justify grounds

Be aware of genuine stress in workplace eg bullying

Distribute workloads so that too much or too little work does not create stress

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Tips – Risk Protection

Give written non-offending reasons for termination

Have a CA with appropriate medical certificate requirements for absence due to illness/injury

Understand the reverse onus Ring MST before terminating

employee

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Recent Case Studies: New Twists on familiar

Workplace Issues

Presented by:

Katrina SweatmanLawyer


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Tan v Xenos

• Dr Tan a registrar in her third year of training in neurosurgery at Monash Medical Centre

• Mr Xenos a neurosurgeon working at Monash Medical and private consulting rooms

• 15 Feb 05 – alleged sexual harassment

• Mar – Sept 05 – Tan notifies superiors of incident and asks it be considered when assessing her performance

• 2 Feb 06 – formal complaint made by Tan

• Alleged that Tan fabricated claim as her performance had been unsatisfactory and she was concerned she would fail her traineeship

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• Head of Neurosurgery – “What do you expect when you dress the way you do?”

• Senior Neurosurgeon – “What do you want me to do about it?”

• Tan not provided with warnings about performance

• Tan rated provisional (probationary) into her third year

• No written complaint from Xenos about Tan’s performance until after formal complaint made

Tan v Xenos

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Standard of proof

Is it more probable than not that the harassment occurred as

described by the Complainant?

Tan v Xenos

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• Xenos was in a position of power over Tan• Xenos attempted to “completely smear”

Tan’s character• Judge Harbison held that she should mirror

the approach that would be taken if this case were to be heard in a Court rather than VCAT

• Apology not appropriate• Tan’s enjoyment of her profession

significantly tarnished• General damages of $100,000.00 awarded

Tan v Xenos

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Selak v Woolworths Limited

• Store Manager of Safeway Southland with approximately 20 years service

• 2 May 2007 – Selak takes Department Manager, Mr T, to the Sandbelt Hotel for lunch

• Selak and Mr T have two pots of full strength beer each

• Selak suspended upon return to work

• 3 May 2007 – Selak summarily terminated

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Code of Conduct:

• Unacceptable conduction includes, but is not limited to:

– Possessing or consuming alcohol or illegal drugs during working hours

– Working under the influence of illegal drugs or alcohol

Staff Handbook:

As a general rule, alcohol is not to be consumed on the premises except on a special occasion with approval from your Regional Manager

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Intranet Drugs and Alcohol Policy:

Woolworths has a zero tolerance for the consumption of unauthorised alcohol or illegal drugs in the workplace or on company property.

Contract of Employment:

No alcohol is to be consumed by employees during their working hours, including meal breaks.

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Was Selak’s termination harsh, unjust or unreasonable?

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• Code of Conduct, Staff Handbook and Drug & Alcohol Policy all differed – may justify doubt in minds of employees as to scope and detail

– No breach justifying dismissal

• Contract clear

– Breach justifying dismissal

• Selak in breach of his contract of employment and manifestly allowed subordinate to do so as well

– Serious misconduct


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Lesson:Ensure your policies and

employment contracts are clear, consistent and understood!

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Anderson v Crown Melb. Ltd

• Early Aug – Anderson purchases tickets to attend Kevin Sheedy’s last match as coach

• 27 Aug 07 – Anderson attends doctors appointment, receives forward-dated medical certificate

• 29 Aug 07 – Anderson’s manager warns Anderson about misusing sick leave

• 1 Sept 07 – Anderson attends football match (sadly, Essendon defeated by 8 points)

• 2 Sept 07 – Anderson returns to work, claims Crown cannot question medical certificate

• 5 Sept 07 – Anderson terminated

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Section 659(2)(a)

An employer must not terminate an employee’s employment for … temporary absence from work because of illness or injury within the meaning of the regulations


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Regulation 2.12.8

Temporary absence because of illness or injury

1. … an employee’s absence from work because of illness or injury is a temporary absence if:

a) the employee provides a medical certificate for the illness or injury within:

i. 24 hours after the commencement of the absence; or

ii. such longer period as is reasonable in the circumstances…


Section 240

medical certificate means a certificate signed by a registered health practitioner

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Was Anderson unlawfully terminated?


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• Medical certificate from a qualified medical practitioner within the practitioner’s area of expertise is prima facie to be accepted

• Question not whether medical certificate was appropriate, but whether Anderson’s temporary absence was caused by illness or injury

• Uncontested that Anderson was at all times in excellent physical health

• Termination was not unlawful

MASON SIER TURNBULL

315 Ferntree Gully Road, Mount Waverley, Victoria 3149Telephone 8540 0200 Facsimile 8540 0202

Website www.mst.com.au


Documents

MASON SIER TURNBULL Rudd’s March 2008 Reforms Katrina Sweatman Lawyer Recent Case Studies Charles Cody Principal Unlawful Termination - The New Unfair