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Interaction of Employment Law and Personal Freedoms Roland Hassall and Ian Bennett ACC Australia In-House Counsel Day 4 July 2019

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Page 1: Interaction of Employment Law and Personal Freedoms of... · Interaction of Employment Law and Personal Freedoms Roland Hassall and Ian Bennett ACC Australia In-House Counsel Day

Interaction of

Employment Law and

Personal FreedomsRoland Hassall and Ian Bennett

ACC Australia In-House Counsel Day

4 July 2019

Page 2: Interaction of Employment Law and Personal Freedoms of... · Interaction of Employment Law and Personal Freedoms Roland Hassall and Ian Bennett ACC Australia In-House Counsel Day

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Agenda

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

Context

Potential Employment Law Claims

Personal Freedoms in Australian Law

Case Examples

Best Practice

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Sources of Obligations

Legislation

Industrial Instruments or Mechanism

(Contracts/ Enterprise Agreement/Modern

Award)

Policies/

Procedures

Industry Specific Organisations and

Publications

Sources

Contract

Enterprise Agreements

Modern Awards

Legislation

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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Risks & Claims

Risks & Claims

Fair Work Commission

Administrative / Judicial Review

Discrimination

Workers Compensation

Competition and

Consumer Law

Work Health and Safety

Common Law

Breach of Contract

Coronial Inquest

Internal Process / Grievance

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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Common Claims

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

Discrimination

Anti-Discrimination Legislation

Protected Attribute

Less Favourable Treatment

Vicarious Liability

General Protections

Part 3-1 Fair Work Act 2009 (Cth)

Workplace Right / Industrial Activity

/ Protected Attribute

Adverse Treatment

Involvement of others

(section 550)

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Personal Freedoms (in Australia)

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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The Israel Folau Case

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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‘Sponsors may pay if Folau wins’

Section 550 of the Fair Work Act 2009 (Cth)

A person who is involved in a contravention of a civil remedy provision

is taken to have contravened that provision.

A person (individual or legal entity)

Aided, abetted, counselled or procured

Induced

Been, directly or indirectly, knowingly concerned

Conspired

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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Other (ongoing) cases

• Employment of University Lecturer terminated.

• Superimposing swastika on an Israeli flag and social media activity.

• Political Opinion & Academic Freedom?

National Tertiary Education Union

& Anor v the University of

Sydney & Anor

• Former One Nation Candidate had employment with renewable energy company (Chinese-owned) terminated.

• Political Opinion & Association?

Cameron v Goldwind

Australia Pty Ltd

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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Other (significant) cases

•Army reservist.

•Homophobic and anti-Islamic comments associated with the Defence Force’s policies (on social media).

•Directed to cease conduct.

•Engagement terminated.

•Political Communication?

Chief of the Defence Force v Gaynor [2017]

FCAFC 41

•Out-of-hours conduct and the necessary connection to the employer.

•Fight with colleague while off-duty on a work trip.

Rose v Telstra Corporation [1998]

AIRC 1592

• Participation in union activity and brandishing a sign with potentially derogatory wording.

•Employment terminated.

•Focus of the subsequent legal challenges was the ‘connection’ with the alleged protected action and the motivating factors.

Construction, Forestry, Mining and Energy

Union v BHP Coal Pty Ltd [2014] HCA 41

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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Proactive Management

Early Intervention & Management

Assessing merits & prospects

Liaising with key personnel

ADR / explore resolution strategies

Transparency & Communication

Articulating requirements &

standards

Policies, Procedures and

Training

Positive Workplace

Culture

Procedural Fairness

Consistency in Management

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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Take-Home Messages

Personal Freedoms are important (but

are not unfettered)

Employers are entitled to

set (reasonable) standards of

conduct

Legal claims can not

always be avoided (but the risks can

be minimised)

What is ‘out-of-work’ is not always clear

© Sparke Helmore Lawyers 2019 | July 2019 | Prepared for training purposes and does not constitute specific legal advice.

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Questions & Contacts

© Sparke Helmore Lawyers 2016 Prepared by Sparke Helmore Lawyers for the purposes of legal advice. Subject to legal professional privilege

Ian BennettSenior Associate | Employment, WHS & Coronial Law

t: +61 2 9373 1445

m: +61 404 106 612

e: [email protected]

Roland HassallPartner | Employment & Industrial Law

t: +61 2 9260 2449

m: +61 404 828 222

e: [email protected]