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

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Presentation on theme: "*This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter. Employment Law Webinar."— Presentation transcript:

1 *This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter. Employment Law Webinar Series SESSION 1 - Key employment law developments and trends - What's in store for 2013 28 February 2013 WELCOME

2 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 Walsh Partner EP&B Webinar Series

3 CURRENTLY SPEAKING Presenters EP&B Webinar Series 3 Pattie Walsh Partner Pattie Walsh Partner / Head of Employment, Pensions & Benefits, Asia Pacific Allan Drake-Brockman Partner Perth Andrew Ball Partner Sydney Rick Catanzariti Partner Melbourne Nick Ruskin Partner Melbourne Murray Procter Partner Brisbane

4 CURRENTLY SPEAKING 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 Walsh Partner EP&B Webinar Series

5 CURRENTLY SPEAKING What are workplace rights? SECTION 1 ADVERSE ACTION Presented by Nick Ruskin, Partner EP&B Webinar Series 5 Nick Ruskin Partner

6 CURRENTLY SPEAKING How are adverse action provisions breached? EP&B Webinar Series 6 Nick Ruskin Partner Workplace Right Adverse Action Connection between adverse action and workplace right

7 CURRENTLY SPEAKING 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 EP&B Webinar Series 7 Nick Ruskin Partner

8 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 EP&B Webinar Series 8 Nick Ruskin Partner

9 CURRENTLY SPEAKING 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 EP&B Webinar Series 9 Nick Ruskin Partner

10 CURRENTLY SPEAKING 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 EP&B Webinar Series 10 Nick Ruskin Partner

11 CURRENTLY SPEAKING Protecting Confidential Information EP&B Webinar Series 11 Murray Procter Partner SECTION 2 PROTECTING CONFIDENTIAL INFORMATION Presented by Murray Procter, Partner

12 CURRENTLY SPEAKING Protecting Confidential Information DLA Piper survey 2012  Types of confidential information employers are most concerned to protect  What makes information confidential? EP&B Webinar Series 12 Murray Procter Partner Pricing structures – 55% Human resources issues – 50% Budgets and financial information – 49% Customer supplier details - 46% Business plans - 43% Research and development information - 42%

13 CURRENTLY SPEAKING Protecting Confidential Information EP&B Webinar Series 13 Murray Procter Partner  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

14 CURRENTLY SPEAKING Protecting Confidential Information Impact of the changing workplace EP&B Webinar Series 14 Murray Procter Partner Challenge 1: Data storage Challenge 2: Bring your own device Challenge 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

15 CURRENTLY SPEAKING Protecting Confidential Information Keys steps for protecting confidential information EP&B Webinar Series 15 Murray Procter Partner Contracts Policies Training Monitoring Restricting access

16 CURRENTLY SPEAKING Recent Fair Work Act changes EP&B Webinar Series 16 Rick Catanzariti Partner SECTION 3 CHANGES TO THE FAIR WORK ACT Presented by Rick Catanzariti, Partner

17 CURRENTLY SPEAKING Recent Fair Work Act changes  Change of Tribunal name  Appointment of senior members  Superannuation  Enterprise Agreements  Unfair Dismissal/General Protection Claims EP&B Webinar Series 17 Rick Catanzariti Partner

18 CURRENTLY SPEAKING 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 EP&B Webinar Series 18 Rick Catanzariti Partner

19 CURRENTLY SPEAKING 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 EP&B Webinar Series 19 Rick Catanzariti Partner

20 CURRENTLY SPEAKING 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 EP&B Webinar Series 20 Rick Catanzariti Partner

21 CURRENTLY SPEAKING 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 EP&B Webinar Series 21 Rick Catanzariti Partner

22 CURRENTLY SPEAKING Costs EP&B Webinar Series 22 Rick Catanzariti Partner 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

23 CURRENTLY SPEAKING Bullying and Harassment EP&B Webinar Series 23 Andrew Ball Partner SECTION 4 PREVENTING AND RESPONDING TO WORKPLACE BULLYING DRAFT CODE OF CONDUCT Presented by Andrew Ball, Partner

24 CURRENTLY SPEAKING 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 EP&B Webinar Series 24 Andrew Ball Partner

25 CURRENTLY SPEAKING Bullying Draft Code of Practice 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 EP&B Webinar Series 25 Andrew Ball Partner

26 CURRENTLY SPEAKING Bullying Draft Code of Practice What is involved in preventing workplace bullying?  A risk management process which involves the following steps: EP&B Webinar Series 26 Andrew Ball Partner Identification Assessment Control Review

27 CURRENTLY SPEAKING Bullying Draft Code of Practice 1. Identifying and Assessing the Risk of Workplace Bullying Identifying 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 Bullying The 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. EP&B Webinar Series 27 Andrew Ball Partner

28 CURRENTLY SPEAKING Bullying Draft Code of Practice Treat all matters seriously Act promptly Do not victimise Support all parties Be neutral Communicate processes and outcomes Maintain Confidentiality Keep records EP&B Webinar Series 28 Andrew Ball Partner 3. Responding to Workplace Bullying

29 CURRENTLY SPEAKING Bullying Draft Code of Practice 4. Monitoring and Reviewing Control Measures Once control measures have been implemented, you should be checking and reviewing them to ensure they are effective in preventing and managing bullying behaviour. EP&B Webinar Series 29 Andrew Ball Partner

30 CURRENTLY SPEAKING Enterprise Bargaining EP&B Webinar Series 30 Allan Drake- Brockman Partner SECTION 5 ENTERPRISE BARGAINING: Issues, trends and developments Presented by Allan Drake-Brockman, Partner

31 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 EP&B Webinar Series 31 Allan Drake- Brockman Partner

32 CURRENTLY SPEAKING The 2013 industrial relations environment… EP&B Webinar Series 32 Allan Drake- Brockman Partner 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

33 CURRENTLY SPEAKING Productivity EP&B Webinar Series 33 Allan Drake- Brockman Partner  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

34 CURRENTLY SPEAKING Recent developments EP&B Webinar Series 34 Allan Drake- Brockman Partner FW Act Amendments… And more? Challenges by unions Productivity

35 CURRENTLY SPEAKING Key issues – Greenfields Agreements EP&B Webinar Series 35 Allan Drake- Brockman Partner  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?

36 CURRENTLY SPEAKING Enterprise bargaining tips EP&B Webinar Series 36 Allan Drake- Brockman Partner  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

37 CURRENTLY SPEAKING Our Contact Details EP&B Webinar Series 37 Pattie Walsh Partner Pattie Walsh Partner / Head of Employment, Pensions & Benefits, Asia Pacific T: +61 2 9286 8197 E: Allan Drake-Brockman Partner Perth T: +61 8 6467 6205 E: Andrew Ball Partner Sydney T: +61 2 9286 8449 E: Rick Catanzariti Partner Melbourne T: +61 3 9274 5810 E: Nick Ruskin Partner Melbourne T: +61 3 9274 5284 E: Murray Procter Partner Brisbane T: +61 7 3246 4062 E:

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