01 Nov HR LAW NEWSLETTER – OCTOBER 2024

Welcome to the October 2024 HR Law Newsletter.  This month, we discuss some recent court decisions, which present important lessons and best practices tips that employers can implement to navigate their legal responsibilities effectively.

HR LAW ANNOUNCEMENTS

October Webinar – Navigating Enterprise Agreements: Genuine Agreement, Bargaining Implications and Legal Updates

Missed our recent webinar? 

We recently hosted a complimentary webinar focusing on recent changes to the Fair Work Act 2009 (Cth) (“FW Act”) affecting the enterprise bargaining process, including the Fair Work Commission’s (“FWC”) power to make intractable bargaining declarations and determinations.

This webinar provided an overview of key changes and developments in the enterprise bargaining process, including discussion around the Principles of Genuine Agreement, and bargaining implications including industrial action and workplace determinations.  We also discussed the FWC’s first intractable bargaining determination in Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd, key takeaways from this case, and provided some best practice tips. 

If you missed it, we have posted a copy on our website.  You can access the link here.

HR Law’s Coolangatta Office Opening

On 31 October 2024, HR Law held its Gold Coast Office Opening at its new office located in the heart of Coolangatta at Suite 203, Level 2, The Strand, 72-80 Marine Parade, Coolangatta, Queensland. 

It was a great opportunity to connect with local businesses in the area. We are excited for the times ahead as we continue to grow and expand our services in meeting the needs of our clients.
Our Gold Coast Office is managed by Victoria Mitchell, Partner.  If you would like to contact Victoria or schedule a meeting at our Gold Coast Office, please email Victoria at v.mitchell@hrlaw.com.au or call direct on (07) 5619 8153..

“SAME JOB SAME PAY” ORDERS TAKE EFFECT

From 1 November 2024, same-job, same-pay order can take effect.

“Same-job, same pay” laws are intended to ensure that labour hire employers who supply labour to a host employer pay their employees no less than the rate that the employees would be paid if they were directly employed by the host employer. Under section 306F(2) of the FW Act, where a regulated labour hire arrangement order is in force, an employer must pay its regulated employees no less than the ‘protected rate of pay’ for the employee in connection with the work performed by the employee for the regulated host.

To read the Minister for Employment and Workplace Relations’ Media Release, click on the link here.

CASE BRIEF – QANTAS ORDERED TO COMPENSATE DISMISSED GROUND HANDLERS

The Federal Court has ruled that Qantas unlawfully dismissed 1,700 ground handling employees (“Employees”) in November 2020, during the height of the COVID-19 pandemic.

What happened?
Qantas terminated 1,700 of its ground handling employees following the airline’s decision to outsource their roles to contractors.

The Federal Court found that:

• By terminating the Employees’ employment, Qantas had taken adverse action, as the decision was made to prevent Qantas employees who worked in its ground handling business from exercising their workplace rights to participate in a protected action ballot, organise and engage in protected industrial action and participate in enterprise bargaining, which was due to begin in 2021;

• This action was in contravention of s 340(1)(b) of the FW Act, which provides that a person must not take adverse action against another person to prevent the exercise of a workplace right by the other person;

• The relevant “workplace right” was the ability for the employees to organise and engage in protected industrial action and participate in bargaining in 2021.

In the three “test cases” to determine appropriate compensation as a result of Qantas’ contraventions of the FW Act, the Federal Court awarded compensation for non-economic loss ranging from $30,000.00, $40,000.00 and $100,00.00. The Court also awarded compensation for  economic loss (limited to 12 months from the date of termination of each employee’s employment).
These test cases will provide a template to determine compensation for the group of dismissed Employees, as Qantas and the Transport Workers’ Union negotiate the final compensation amounts. Qantas and the Transport Workers Union will appear at an upcoming hearing to determine the final penalties.
To read the decision, click on the link here.

Key recommendations for employers:

For employers, the key takeaways from this case are:

1. If employees are covered by an enterprise agreement or are approaching bargaining negotiations, carefully evaluate any staffing changes that might impact their rights to participate in enterprise bargaining or protected action. Avoid decisions that could be perceived as undermining these rights;
2. Engage with legal advisors early to ensure strategic decisions, such as outsourcing, do not unintentionally infringe upon employees’ workplace rights; and
3. Consider conducting a risk assessment on potential claims that could arise, particularly when handling redundancies.

CASE BRIEF – FAIR WORK COMMISSION STATES “TICK AND FLICK” APPROACH TO POLICIES IS NOT ENOUGH

In the recent case of Ramlan Abdul Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 2868, the FWC highlighted that simply informing employees about company policies in a “tick and flick” manner may not be enough to rely on them in a disciplinary process.
In this case, Christmas Island Phosphates (CIP) dismissed a truck driver with 20 years of service for serious misconduct, citing bullying and breaches of CIP’s Code of Conduct and anti-discrimination policies.
However, the FWC found that the dismissal was harsh, noting:

• The truck driver had limited awareness of the CIP policies cited in his termination letter;

• A brief toolbox meeting where the Code of Conduct was discussed was not sufficient to be considered a ‘policy rollout’, especially considering potential language barriers; and

• Proper training, explaining specifically why certain behaviours are unacceptable, might have prevented the misconduct.

To read the case, click on the link here.

Key recommendations for employers:

For employers, the key takeaways from this case are:

1. Develop comprehensive onboarding and training programs that include clear, interactive sessions on workplace policies. Consider annual or biannual refreshers to reinforce understanding;

• Keep detailed records of policy distribution, training sessions and employee acknowledgments;

• Establish procedures for employees to confirm understanding, rather than mere acknowledgment, of policies.

CASE BRIEF – EMPLOYERS MUST SHOW CLEAR DECISION MAKING PROCESSES

In the recent case of Pilbrow v University of Melbourne [2024] FCA 1140, the Federal Court has emphasised the need for employers to clearly identify decision-makers when defending against adverse action claims.
In this case, Melbourne University dismissed a lecturer in 2020 following a series of disciplinary and other actions, including placing her on a performance improvement plan, selecting her for redundancy, investigating her for serious misconduct and issuing a final written warning. The Lecturer argued that these actions constituted adverse action by the University, and therefore a breach of section 340 of the FW Act.
On appeal, Justice John Snaden noted that there was “insurmountable uncertainty” about who within the University was responsible for making the serious misconduct allegations. He highlighted that this ambiguity prevented the University from rebutting the presumption of adverse action, pursuant to section 361 of the FW Act, which requires a respondent to “establish that it did not do what it did for the reasons that are alleged”.
Justice Snaden further explained that “in assessing the reasons that animated conduct amounting to adverse action, a court must interrogate not merely the state or states of mind of the person or people who engaged in that conduct; but also that of others whose contribution to it rose beyond a threshold level”. The failure to isolate a specific decision-maker meant that the University could not prove its defence.
Justice Snaden has issued orders for a Directions Hearing to determine the future progress of the matter.
To read the case, click on the link here.

Key recommendations for employers:

For employers, the key takeaways from this case are:

1. For each disciplinary action, maintain a well-documented record that details who was involved, their respective roles, and the rationale behind the final decision. This should include any advice sought and actions taken.

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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.