employment law webinar series session 1 - key employment law developments and trends - what's...

*This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

Employment Law Webinar SeriesSESSION 1 - Key employment law developments and trends - What's in store for 2013

28 February 2013

WELCOME

CURRENTLY SPEAKING

2

Welcome

You are on mute A link to a recording of the webinar will be

available We can take questions by using the chat function,

we will respond to your questions by email after the webinar

Pattie WalshPartner

EP&B Webinar Series

CURRENTLY SPEAKING

Presenters

EP&B Webinar Series 3

Pattie WalshPartner

Pattie WalshPartner / Head of Employment, Pensions & Benefits, Asia Pacific

Allan Drake-BrockmanPartner Perth

Andrew BallPartner Sydney

Rick CatanzaritiPartner Melbourne

Nick RuskinPartner Melbourne

Murray ProcterPartner Brisbane

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4

Agenda

Adverse Action - The current state of Adverse Actions claims and how to manage them

Protecting Confidential Information - Results from the DLA Piper research into 250 international businesses

Changes to the Fair Work Act - A summary of the key changes including a review of the amendments to unfair dismissals and enterprise agreements

Bullying and Harassment - What are the key elements of Safe Work Australia's draft Bullying Code of Practice

Enterprise Bargaining - Issues, trends and developments

Pattie WalshPartner

EP&B Webinar Series

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What are workplace rights?

SECTION 1

ADVERSE ACTION

Presented by Nick Ruskin, Partner


Nick RuskinPartner

CURRENTLY SPEAKING

How are adverse action provisions breached?


Nick RuskinPartner

Workplace Right Adverse Action

Connection between adverse action and

workplace right

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What are workplace rights?

A role or responsibility under a workplace law or agreement

Entitlements under a workplace law or agreement eg. sick leave

A statement to a workplace safety inspector

Making a workers compensation claim

Having an attribute under discrimination law

Making a complaint or an enquiry about the employee's employment


Nick RuskinPartner

CURRENTLY SPEAKING

What is ‘Adverse Action’

Examples

Reduction of salary

Deprivation of overtime

Diversion to a less congenial

shift

Transfer to lower duties

or suspension from duties

Written warning - may have the effect of

making the employee's continuing

employment less secure, and may

constitute adverse action


Nick RuskinPartner

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Procedure

Dismissal stream: 21 days to make a claim Fair Work Commission conciliates – if not

resolved, 14 days for applicant to go to a Federal Court

Non-dismissal stream: 6 years to make an application

Applicant can seek interim injunctive relief


Nick RuskinPartner

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Procedural Issues

Remedies 'Any order the court considers appropriate‘ Compensation (uncapped) including for

economic loss and hurt and humiliation Interlocutory relief to prevent

dismissal/detriment Orders to reinstate employee Fines - $51,000 for a corporation; $10,200 for

an individual


Nick RuskinPartner

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Protecting Confidential Information


Murray ProcterPartner

SECTION 2

PROTECTING CONFIDENTIAL INFORMATION

Presented by Murray Procter, Partner

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DLA Piper survey 2012 Types of confidential information employers are

most concerned to protect

What makes information confidential?


Murray ProcterPartner Pricing

structures – 55%

Human resources

issues – 50%

Budgets and financial

information – 49%

Customer supplier

details - 46%Business

plans - 43%

Research and development information -

42%

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28% of employers do not take any steps to specify that information is confidential

Only 14% of employers use the contract of employment to spell out the type of information which they deem to be confidential, despite 65% including confidentiality provisions of some sort in the contracts

Restrictive covenants non-compete 19% non-solicitation / non-dealing 59%

25% of employers who include restrictive covenants have no confidence they are enforceable

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Impact of the changing workplace



Challenge 1: Data storage

Challenge 2: Bring your own

deviceChallenge 3: Social media

Challenge 4: Ownership of

contacts

Tech stats 60% of employers either allow or require personal mobile

devices 36% of employers ask employees to store business contact

details on databases that are not within the employer's control

66% of employers are concerned about the threats posed to confidential information by social media BUT

Only 39% have a policy regulating employee behaviour with respect to social media

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Keys steps for protecting confidential information



Contracts

Policies

TrainingMonitoring

Restricting access

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Recent Fair Work Act changes


Rick CatanzaritiPartner

SECTION 3

CHANGES TO THE FAIR WORK ACT

Presented by Rick Catanzariti, Partner

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Recent Fair Work Act changes

Change of Tribunal name

Appointment of senior members

Superannuation

Enterprise Agreements

Unfair Dismissal/General Protection Claims



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Commission

Fair Work Australia changed

its name to Fair Work Commission

Commission now includes two new Vice Presidents (to be

appointed) as well as President and current Deputy Presidents

and Commissioners



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Superannuation

Modern awards are to include terms about default superannuation arrangements

The term must contain an obligation on the employer to pay super into a default complying superannuation fund if none is chosen by employee

Commission will conduct 4 yearly reviews of clause



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Enterprise Agreements

Cannot have EA with only one employee

Deals with problem of two earlier Commission decisions allowing single enterprise EAs

EAs cannot contain a clause allowing an employee to opt out of being covered by the agreement

Union officials cannot be a bargaining representative for an employee unless the union has coverage of that employee type

Now have a notice specified by the Regulations which sets out the content for advising employees of their rights to have a bargaining representative for the negotiation of an EA



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Dismissal claims

14 day time limit to lodge an unfair dismissal claim has now been changed to 21 days

Time limit to lodge a general protections claim in relation to a dismissal of an employee is reduced from 60 days to 21 to coincide with unfair dismissal time frame. The employee still needs to lodge the application in the Commission

Dismissal of unfair dismissal claim by the Commission can also occur if an employee has unreasonably:

failed to attend a hearing or conference

failed to comply with a Commission order or direction

failed to discontinue an application after a settlement agreement is reached



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Costs



Commission can order costs against a party if that party has caused costs to be incurred by an unreasonable act or

omission

Costs can still be awarded against lawyers and paid representatives if they have acted unreasonably or encouraged their client to start or

continue an unmeritorious claim or the lawyer or paid agent has acted

unreasonably

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Bullying and Harassment


Andrew BallPartner

SECTION 4

PREVENTING AND RESPONDING TO WORKPLACE BULLYING DRAFT CODE OF CONDUCT

Presented by Andrew Ball, Partner

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Bullying Draft Code of Practice

No specific bullying legislation Draft "Preventing and Responding

to Workplace Bullying" Code of Practice (Code)

Fair Work Commission – new powers

Finalised Code expected before mid 2013


Andrew BallPartner

CURRENTLY SPEAKING


What is workplace bullying? Workplace bullying is repeated, unreasonable

behaviour directed towards a workers or group of workers, that creates a risk to health and safety

'Repeated behaviour' refers to the persistent nature of the behaviour and can refer to a range of behaviours over time

'Unreasonable behaviour' means behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening

Intentional or unintentional bullying

Direct or indirect bullying


Andrew BallPartner

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What is involved in preventing workplace bullying?

A risk management process which involves the following steps:


Andrew BallPartner

Identification

Assessment

Control

Review

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1. Identifying and Assessing the Risk of Workplace BullyingIdentifying hazards involves finding all of the things and situations that could potentially contribute to bullying in the workplace and cause harm to people. Although there may be no obvious signs of workplace bullying, this does not mean such behaviour or conduct does not exist.

2. Controlling the Risk of Workplace BullyingThe best way to control bullying risks is to eliminate the factors that can cause it. If that is not reasonably practicable, implement measures to minimise the risk.


Andrew BallPartner

CURRENTLY SPEAKING


Treat all matters

seriouslyAct promptly Do not

victimise

Support all parties Be neutral

Communicate processes

and outcomes

Maintain Confidentiality Keep records


Andrew BallPartner

3. Responding to Workplace Bullying

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4. Monitoring and Reviewing Control MeasuresOnce control measures have been implemented, you should be checking and reviewing them to ensure they are effective in preventing and managing bullying behaviour.


Andrew BallPartner

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Enterprise Bargaining


Allan Drake-BrockmanPartner

SECTION 5

ENTERPRISE BARGAINING:Issues, trends and developments

Presented by Allan Drake-Brockman, Partner

CURRENTLY SPEAKING

Enterprise Bargaining

Enterprise bargaining – collective agreement in single enterprise or multi-enterprise between employer and specified employees

Unions involved if union a bargaining representative

Significant number of agreements have union involvement

Enterprise bargaining – Greenfields Agreement between employer and union direct



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The 2013 industrial relations environment…



Agreements – Offshore Diving Agreements – all expire

30 June 2013 Vessel Operator Agreements –

all offshore agreements expire 30/31 July 2013

Helicopter Agreements – have either expired or will expire during 2013

Offshore Mobile Drilling Rig Agreements

Operators all but one expire second half of 2013

Manning Agents – expire second half of 2013 or first half of 2014

ROV – various expiry dates Production Operators –

various

Agreements – Onshore Production Operators – various Dates vary – some are project

specific agreements whilst others are term agreements

A range of agreements expire during 2013

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Productivity



Offshore wage rates 40-50% higher than world rates

Even onshore wage rates 20-30% higher than world rates

The focus of enterprise bargaining to date has simply been wage increases essentially without any productivity offsets

Australia 50th in productivity in the world behind Uganda just in front of Botswana

With worsening economy employers will be looking for productivity gains

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Recent developments



FW Act Amendments… And more?

Challenges by unionsProductivity

http://www.google.com.au/url?sa=i&rct=j&q=victorian+nurses+dispute&source=images&cd=&cad=rja&docid=qspiYHMGtFgO9M&tbnid=ZXpAXIIBZQ3DKM:&ved=0CAUQjRw&url=http://www.vthc.org.au/resources/cover-story-archives/2012-cover-story-archives/victorian-nurses-demand-negotiations-now/index.cfm&ei=nAcsUe_RKYTTkAWt9IHADw&bvm=bv.42965579,d.dGI&psig=AFQjCNE4P_MbInY0xGGnLjB7Z5falRlGdA&ust=1361926409548044

http://www.google.com.au/url?sa=i&rct=j&q=international+transport+federation&source=images&cd=&cad=rja&docid=GFK6QI3SNzoZ-M&tbnid=7vxJVWrEV0ebKM:&ved=0CAUQjRw&url=http://iparw.org/index.php/donors-partners-associates/donors-grantees/international-organisations/&ei=XwgsUcqWEoeikAWSq4HwDA&bvm=bv.42965579,d.dGI&psig=AFQjCNHGXT_Zg0m3T6nHk4mFaGkImKMT8Q&ust=1361926619618358

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Key issues – Greenfields Agreements



Put the unions to bed?

Situations that are not genuinely "Greenfields" and the risks

Outright refusals by unions to enter into Greenfields Agreements

A different approach to bargaining?

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Enterprise bargaining tips



Prepare a draft agreement which forms the basis of negotiations. You need to be in control of the bargaining process.

Appoint a person who can take accurate minutes of the bargaining process

Establish a consistent bargaining team and appoint a lead bargainer

Ensure tight parameters are placed on your bargaining range. Some non-negotiable items may require ‘Board approval’ if the union is fixated on negotiating changes relating to that item

Be wary of the old saying "nothing agreed until everything agreed"

Provide opportunities for lead bargainers to meet informally outside of bargaining table

Legal contingency planning

CURRENTLY SPEAKING

Our Contact Details


Pattie WalshPartner

Pattie WalshPartner / Head of Employment, Pensions & Benefits, Asia Pacific T: +61 2 9286 8197E: [email protected]

Allan Drake-BrockmanPartner PerthT: +61 8 6467 6205 E: [email protected]

Andrew BallPartner SydneyT: +61 2 9286 8449 E: [email protected]

Rick CatanzaritiPartner MelbourneT: +61 3 9274 5810E: [email protected]

Nick RuskinPartner MelbourneT: +61 3 9274 5284 E: [email protected]

Murray ProcterPartner BrisbaneT: +61 7 3246 4062E: [email protected]

employment law webinar series session 1 - key employment law developments and trends - what's...

Documents

workplace law

information confidential

workplace rights

adverse action provisions

speaking4agendaadverse

key changes

fair work act

claimfair work commission