4 th Australian Workplace Relations Summit 2010 Navigating the Industrial Landscape Day Two Wednesday 9 th June am to am 8 th & 9 th June 2010 Harbours Edge Events Centre, Darling Harbour Adverse Action

Presenter Bradley J Beasley, LLM, LLB, Grad Cert Legal Practice Legal Practitioner of the: Supreme Courts ACT, NSW; and High Court of Australia

Overview 1.Understanding the impact ‘adverse actions’ can have on management decisions 2.Defining adverse actions in terms of: (a)Employer protected rights (b)Industrial action 3.Reducing liabilities for adverse actions

Overview cont s336 of the Fair Work Act 2009 (the FWA) address the objects in broad terms, they are to: – Protect workplace rights – Protect freedom of association – Provide protection from workplace discrimination – Provide effective relief for persons who have been: Discriminated against, Victimised; or Adversely affected

Overview cont S341 provides for the meaning of workplace rights and is quite broad. It applies where a person is: Entitled to a benefit or has a recognised role Able to initiate or participate in processes Able to make a complaint Able to seek an inquiry for compliance These rights derive out of a workplace law, industrial instruments or a order made by an industrial body

Overview cont The jurisdiction is quite wide net capturing not only those who are corporations but those dealing in trade and commence and those working in a Territory. See S338 (1) (d), (e) and (f), (2), (3), (4) of the FWA

1. Understanding the impact ‘adverse actions’ can have on management decisions When communicating When employing new staff When dealing with: – Staff – Contractors – Industrial Associations A Dispute Remedies Penalties

When Communicating Communication is essential as perceptions are central to this course of action as the FWA addresses: – Advising – Encouraging – Inciting – Action taken – Action threatened – Action not taken see s338 (c) – Organising Action see s342 (2) (b) Communication can be direct or indirect in effect see s340 (1) and (2)

When employing new staff Prospective Employees Communication is equally important when employing new staff as they are taken to have workplace rights, see s341 (3) and see s342 (1) Item 2. However more so if someone is perceived as coercing another or a third person to employ or not employ a particular person, see s355 (a).

When dealing with: Staff Contractors Industrial Associations S342 provides circumstances when adverse action is taken, in board terms they are:

When dealing with: Staff Item 1 An employer taking action against an employee by: – Dismissing them; or – Injuring their employment; or – Altering their position to their prejudice; or – Discriminating between employees.

When dealing with: Staff cont Caution must be taken when dealing with staff to avoid allegations of: Coercion when it comes to workplace rights or how they may be exercised see s343 Undue influence or pressure with respect to agreement making, guaranteed annual earnings and deductions, see s344 Misrepresentations concerning workplace rights or how they will or may be exercised see s345 Entering into sham arrangements see s357

When dealing with: Prospective Staff Item 2 Where a prospective employer: – Refuses to employ a prospective employee; or – Discriminates against the prospective employee in the terms or conditions of employment.

When dealing with: Contractors Item 3 Where the principal enters into a contract for service with an independent contractor (the contractor) or a person employed or engaged by the contractor. The principal affects the contractor by: – Terminating the contract; or – Injuring the terms and conditions of the contract; or – Alters their position to their prejudice; or – Refuses to make use of, or agree to make use of their services; or – Refuses to supply, or agree to supply, goods or services to them.

When dealing with: Contractors cont Note: also see Item 4 Where the principle enters into arrangements through a second contractor to adversely affect the first contractor. Item 6 Where the contractor takes adverse action against the principle.

When dealing with: Industrial Associations Item 7 Where an Industrial Association, or an officer or member of an Industrial Association, engages in the following against a person: – Organises or takes industrial action; or – Takes direct or indirect action that is prejudicial to the: Employment or prospective employment; or Contractor’s contract for services; or – By imposing a penalty, forfeiture or disability of any kind against a member other than any money legally owed to the association by the member.

A Dispute Division 8 Compliance Subdivision ASubdivision B A person dismissed or their union can bring an action An action must commence within 60 days and may be extended An application fee must be lodged FWA conducts a conference FWA will issue a certificate if the dispute cannot be resolved FWA must advise the parties on reasonable prospects for success An application must then be made to the court within 14 days If a person cannot make an application under Subdivision A, they may make it under this subdivision to FWA An application fee must be lodged FWA must advise the parties on reasonable prospects for success before proceeding to court

A Dispute cont Costs Costs orders may be made against lawyers and paid agents where the other parties has incurred unreasonable costs due to the solicitors or agents conduct of the matter An application for costs orders must be made within 14 days of the matter being finalised by FWA Civil penalties apply for a breach of the costs order

Remedies Remedies may include: Preventative injunction Reinstatement Uncapped compensation Orders as the courts see fit

Penalties Part 3 ‑ 1--General protections Item (1) 340(2) 343(1) (1) (349(1) 350(1) 350(2a) 351(1) (1) 354(1) (1) (a)a person affected by the contra (b)an industrial association (c) An inspector (a)The Federal Court; (b) the Federal Magistrates Court 60 penalty units

2.Defining adverse actions in terms of: (a)employer protected rights Action Conduct Prospective Employees Transfer of Business Standing Down Organisational Change Discrimination Termination of Employment

Action Action can include an omission see s12 of the FWA S338 (1) (b) defines action against a constitutionally ‑ covered entity: “...that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business...”

Conduct Conduct of the action is addressed by s338 (1) (c) to include the following: Advising, encouraging or inciting, or... with intent to coerce, a constitutionally ‑ covered entity: (i)to take, or not take, particular action in relation to another person; or (ii) to threaten to take, or not take, particular action in relation to another person...

Prospective Employees An employer may make a conditional offer subject to ‘guarantee annual earnings’ to a prospective employee. See s341 (4)

Transfer of Business On a transfer of business the employer may refuse to employ a prospective employee if he or she would be entitled to a benefit. See s341 (5) and Part 2-8 Transfer of Business

Standing Down The employer may stand down staff if they are engaging in industrial action or in other circumstances where permitted. See s342 (4)

Organisational Change As long as the employer consults and follows any change management provisions in an industrial instrument there is no impediment for an employer who is genuinely responding to economic, technological, structural or similar nature change. See Part 3-6

Discrimination The employer does not offend the Act if the employee cannot fulfil the inherent requirements of the ‘particular job’ Also on religious grounds if the employer is acting in good faith and to avoid injury related to those teachings. See s351 (2)

Termination of Employment An employer may terminate the employment of an employee on genuine grounds related to: Poor performance Misconduct Serious Misconduct Illness that is not temporary

2.Defining adverse actions in terms of: (b)industrial action Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 (29 April 2010).

3.Reducing liabilities for adverse actions Barclay v The Board of Bendigo Regional Institute of TAFE [2010] FCA 284

Conclusion Employ Competent Staff Communication Consultation Transparency Thoroughness Document Obtain Advice

Thank You