04 Dec HR LAW NEWSLETTER – NOVEMBER 2023

Welcome to the November 2023 HR Law Newsletter.   This month, we discuss a recent High Court decision, which confirms how employers can require employees to work on public holidays.  We also discuss some potential and upcoming legislation that employers should be aware of.

HIGH COURT CONFIRMS PUBLIC HOLIDAY DECISION

With the Christmas/New Year period fast approaching, employers may already be preparing rosters to cover the upcoming public holidays e.g. Christmas Day, Boxing Day, New Years Day etc.  Employers however need to ensure they request employees to work on the public holidays.

Earlier this month, the High Court rejected BHP’s bid to challenge a full Federal Court ruling clarifying when employees can reasonably refuse requests to work on public holidays.

The consequence of this is that the Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (“OS Case”) decision stands. In this decision, the Full Court of the Federal Court of Australia found that employers must presume all employees will be absent from work on a public holiday.  From there, employers must then actively ask employees to work on a public holiday, rather than simply rostering or expecting them to work on a public holiday.  Only where the employer’s request to work on the public holiday is reasonable, or where the employee’s refusal to work is unreasonable, will the employer then be able to require the employee to work.

For more information, read our article here.

FAIR WORK COMMISSION ISSUES FIRST INTRACTABLE BARGAINING DECLARATION

On 4 October 2023, the Fair Work Commission (“FWC”) issued its first intractable bargaining declaration in United Firefighters’ Union of Australia v Fire Rescue Victoria [2023] FWCFB 180 (4 October 2023).

Intractable bargaining declarations were introduced under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 last year and became law on 6 June 2023. They can be made by the Commission if:

1.      It is after the end of the minimum bargaining period, and

2.      The Commission is satisfied that:

• it has dealt with the dispute about the agreement under section 240 of the Fair Work Act and the applicant participated in this process;

• there is no reasonable prospect of agreement being reached if the Commission does not make the declaration; and

• it is reasonable in all the circumstances to make the declaration, taking into account the views of all of the bargaining representatives.

The FWC will likely arbitrate the bargaining deadlock next year.  This matter is also set for a preliminary hearing on 18 and 19 December 2023.

HR Law will keep you updated.

To click on the Decision, click here.

POTENTIAL CHANGES TO LEGISLATION

Closing Loopholes Legislation Passes House of Representatives

After further negotiations with employer groups, the Albanese Government’s Fair Work Legislation Amendment (Closing Loopholes) legislation has passed the House of Representatives.

The progress follows Workplace Relations Minister Tony Burke introducing amendments that have been agreed to by employer groups regarding casual work, gig economy workers and service contractors. This includes a “clear exclusion” for service contractors from the new labour hire rules.

A Senate inquiry into the legislation is set to produce a report by 1 February 2024 after a public hearing in January 2024.  Accordingly, we will not see this Bill go to the Senate, or the legislation passed until after the report is issued.

HR Law will keep you updated.

To view the Bill, click here.

2023-24 Modern Award Review – More flexibility for workers

As part of the FWC’s 2023-24 Modern Award Review, the FWC will survey employers on potential modern award changes to provide workers with greater flexibility to juggle jobs and care, including working from home.

The FWC is yet to provide details regarding what the amendments to the modern awards may look like, or what the impact on the amendments will be on employers.

HR Law will keep you updated.

To view the Statement, click here.

FIXED TERM CONTRACTS REGULATIONS

On 24 November 2023, the Labor Government made the Fair Work Amendment (Fixed Term Contracts) Regulations 2023 (“Regulations”).

The Regulations provide further exceptions to the limitations on fixed term and maximum term contracts, which take effect on 6 December 2023.

In particular, the Regulations provide additional categories of work that the limitations on fixed term/ maximum term contracts will not apply. These are (as defined by the Regulations):

• Professional and organised sport;
• Live performance;
• Higher education; and
• Philanthropic entities.

To view the Regulations, click here.

WHAT YOU MAY HAVE MISSED

HR Law’s sister company, HR Business Assist recently held its last Webinar for the year on Wednesday, 1 November 2023 at 9:00am.

In this Webinar, HRBA discussed:

• Tips and tricks for a successful staff Christmas party;

• Considerations for staff Christmas parties from an HR perspective; and

• Employer requirements for annual shutdown periods.

To view the recording, click here.

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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.