30 Sep HR LAW NEWSLETTER

Welcome to the September Newsletter.

Welcome to the HR Law September newsletter.  September has been a busy month for employers, with employers (other than small business employers) being required to assess by 27 September 2021 whether their casuals who were employed before 27 March 2021, are eligible to be offered permanent employment.

We have also seen a number of significant changes and developments to employment and industrial relations laws which we discuss below.  If you would like advice on any of the topics discussed in this newsletter or any matter affecting your workplace, please contact the team at HR Law.

Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021

In response to the Respect@Work Report published by the Sex Discrimination Commissioner, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (“Bill”), with the purpose of protecting against sexual harassment in the workplace. You can read our previous article on this topic here: https://www.hrlaw.com.au/hr-law-newsletter/ 

The Federal Government has since passed this Bill and the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (“the Act”) will become law once it receives Royal Assent, which is expected to be received soon. The Act amends the Fair Work Act 2009 (Cth) (“FW Act”), the Sex Discrimination Act 1984 (Cth) (“SDA”) and the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”). 

What does the Act do?

The key changes to the FW Act include that:

• the Fair Work Commission (“FWC”) can make a “stop sexual harassment” order if the FWC is satisfied sexual harassment has occurred and there is a risk it will occur again (similar to current anti-bullying powers);

• sexual harassment is conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable (section 387); and

• the existing entitlement to compassionate leave is broadened enabling an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or the employee’s current spouse or de facto partner, has a miscarriage (section 104).

Amendments to the SDA include implementing the concept of ‘worker’ and ‘person conducting a business or undertaking’ in line with model workplace health and safety laws and ancillary or accessorial liability for a person that ‘causes, instructs, induces, aids or permits’ sexual harassment and sex-based harassment.

The AHRC Act has seen amendments which include the option for the complainant to initiate proceedings for unlawful discrimination in the Federal Court or Federal Circuit Court should the President of the Australian Human Rights Commission terminate a complaint.

Practical implications

Sexual harassment is a risk to the health and safety of workers and employers have a legal obligation to manage that risk.  Employers need to check any policies they have regarding  sexual harassment are consistent with these legislative changes.  If changes are required to be made, then such changes need to be communicated and explained to all employees and others covered by the policies to ensure that they are aware and understand the changes. 

If you require any assistance with reviewing your current sexual harassment policy or would like assistance drafting a sexual harassment policy, please contact HR Law.  Having current and compliant policies can assist in helping you to avoid breaching your legal obligations and facing potential penalties.

Casual Conversion

By 27 September 2021, employers (other than small business employers) should have made an assessment of whether their casuals who were employed before 27 March 2021, are eligible to be offered permanent employment.

From 27 September 2021, such employers, are required to make a written offer to eligible causal employees for conversion to permanent employment (within 21 days after making the assessment).

If an employer decides not to offer an employee casual conversion (including if they do not meet the requirements because they have not been employed for 12 months), the employer needs to tell the employee that in writing within 21 days of making the assessment but by no later than 27 September 2021.

Employees need to respond in writing within 21 days after receiving an offer to convert to accept the offer.  If the employee does not respond, employers can assume that the employee has declined the offer.

Workplace Training

With so many changes happening in workplace law, it can be challenging for employers to keep up to date with their workplace obligations.  Ensuring your managers and staff understand their workplace obligations is essential for managing any risks to your business. Take a moment to reflect on what skills and knowledge your managers and supervisors have. Could they manage difficult workplace situations such as bullying allegations, misconduct or a potential breach of a workplace contract?  What about your other employees?  Do they know what their legal obligations are in the workplace and the consequences of any breaches?  Did you know that it may be possible for an employee to successfully argue that they were not aware that what they were doing was wrong because the employer never told them?  

HR Law can help you to prepare training programs on all areas of employment and industrial relations law and will work with you to create a unique training program designed to meet the needs of your business.  We can assist with creating training manuals and questionnaires as well as the preparation of training presentations.  Please contact the team at HR Law if you would like to discuss your training needs and how we can assist you.

Case Brief

A binding settlement has been reached and the matter will be finalised.  Are you sure?

It is common for parties to reach a settlement agreement during a dispute and to formalise the terms of the settlement in the form of a Deed.  Parties agree on the terms of settlement, these terms are drafted in a Deed and the matter is settled upon execution of the Deed by all parties. 

However, what happens when one party thinks a settlement agreement has been reached but the other party does not?  This situation arose in the decision of Toby Tucker v State of Victoria (State Revenue Office) [2020] FWC 5252). 

In this case, Deputy President Young found that a binding settlement had been reached between the parties and accordingly dismissed Mr Tucker’s application for an unfair dismissal remedy.

On appeal in Toby Tucker v State of Victoria (State Revenue Office) [2021] FWCFB 6004, the Full Bench of the FWC found that a binding settlement agreement had not been made, consequently allowing Mr Tucker’s appeal and quashing the decision of Deputy President Young.  The Full Bench noted at paragraph [69] that “Deputy President Young had committed a significant error of law in finding that an agreement was reached between the parties”. 

The background to this case is set out below.

Background

Mr Tucker was employed by the State of Victoria (State Revenue Office) (“SRO”) until 19 July 2019, when his employment was terminated by reason of serious misconduct. Mr Tucker filed an application to the FWC for an unfair dismissal remedy.  During the proceedings, the parties participated in a FWC member assisted conciliation on 8 November 2019, however, a settlement was not reached.  On 13 November 2019, five days after the unsuccessful member assisted conciliation, Mr Tucker’s lawyer wrote to the FWC advising that the parties had reached an in-principle settlement of the matter pending execution of a Deed and requested that the FWC telephone mention on the following day be cancelled.  The telephone mention was cancelled as well as the arbitration hearing.

On 10 June 2020, the SRO applied to the FWC to have Mr Tucker’s unfair dismissal application dismissed due to:

• Mr Tucker unreasonably failing to discontinue the matter after a settlement agreement had been concluded; or in the alternative,

• the fact that the parties had reached an agreement to settle the matter and consequently, the application had no reasonable prospects of success.  

Mr Tucker opposed this application on the basis that no binding settlement agreement had been reached.

It is important to note that Mr Tucker did not execute the Deed, file a Notice of Discontinuance nor have any settlement monies paid to him.

Deputy President Young considered written and oral evidence of the parties, which consisted of letters between the parties regarding the terms of settlement and oral evidence of SRO’s lawyer regarding a telephone call made on the afternoon of 13 November 2019 between herself and Mr Tucker’s lawyer. Deputy President Young found that a settlement agreement had been reached between the parties, placing great weight on oral evidence (despite not seeing any contemporaneous file note to support a settlement agreement had been reached as legal professional privilege was being claimed).  Deputy President Young found that the Application had no reasonable prospects of success and dismissed the Application.

The Appeal Decision

The appeal was conducted on the basis of written submissions.  Fresh evidence submitted on appeal included a file note dated 14 November 2019, a redacted invoice of SRO’s lawyer and various emails. The Full Bench did not consider the file note was evidence that the settlement was accepted by Mr Tucker but instead indicated outstanding issues between the parties needed to be resolved.

Their Honours noted at paragraph [64] that SRO had, “quite firmly and contrary to usual practice, demanded that the unfair dismissal matter be settled by way of consent orders”, however the usual practice is “by way of notice on discontinuance”.  Amongst other considerations, their Honours found that the strong push for a settlement term, being that the matter be discontinued by consent orders, demonstrated there were still doubts that the matter had been settled.  The appeal was upheld and the decision of Deputy President Young was quashed.

Practical implications

This decision shows that caution should be taken when determining that a settlement agreement has been reached.  The Court will consider all circumstances of the matter including the use of the word “in-principle”, “pending execution of the Deed” as well as post agreement conduct of the parties and any contemporaneous file notes and documentation. 

The team at HR Law can assist you in creating binding settlement agreements and having that agreement finalised, to ensure your matter is settled.

The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.