Employment law and industrial relations - Shapers and shifters in 2015

19/03/2015

                 Employment law and
                 industrial relations –
                 Shapers and shifters in
                 2015

                                                      Brett Feltham
                                                         DLA Piper
                                                    19 March 2015

Summary of Issues

 Federal Government's proposed legislative changes

 Productivity Commission Inquiry into Workplace Relations
    Framework

 Royal Commission into Trade Union Governance and
    Corruption

 Fair Work Ombudsman campaigns/prosecutions

 Case law: Implications of important 2014 cases

 Federal Government's proposed Paid Parental Leave Scheme
    abandoned
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Summary of Issues (cont)

 Anti-bullying regime update

 Enterprise agreements

 Short term mobility visa proposal

 Gender reporting requirements

 Increased use of competition law in an industrial context?

 Occupational health and safety in Western Australia and the
    harmonisation process

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Federal Government Proposed
Legislative Changes

Employment law bills currently before Federal parliament:

1. Building and Construction Industry (Improving Productivity)
       Bill 2013

2. Fair Entitlements Guarantee Amendment Bill 2014

3. Fair Work Amendment Bill 2014

4. Fair Work Amendment (Bargaining Processes) Bill 2014

5. Fair Work (Registered Organisations) Amendment Bill 2014

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Fair Work Act Amendment Bill 2014

 Greenfields agreements

 Right of entry

 Individual flexibility arrangements (IFA)

 Transfer of business

 Meetings for extensions of unpaid parental leave

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But when?

 Given current
   composition and
   approach of the Senate,
   significant changes seem
   unlikely this term of the
   Federal Government

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Productivity Commission Inquiry into
Workplace Relations Framework

 Productivity Commission has released five Issues Papers to
     assist with making submissions (deadline was 13 March 2015)

 Inquiry scope broadly considers:

        performance of the workplace relations framework

        capacity of the workplace relations framework to adapt

        the minimum wage

        penalty rates - how they should be determined, their economic
            effects and consequences of the deregulation of penalty rates

The Federal Government has stated that it will not make changes to
penalty rates or minimum wage regardless of the outcome of the inquiry
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Productivity Commission Inquiry into
Workplace Relations Framework (cont)

 Bargaining:

      joint agreements between labour hire and host business?

      aspects of employer/employee relationship as permitted matters

      effective operation of good faith bargaining arrangements?

 Industrial disputes:

      appropriate changes to protected industrial action?

      options beyond lock-outs?

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Productivity Commission Inquiry into
Workplace Relations Framework (cont)

 Termination of employment:

      do unfair dismissal processes achieve their purpose?

      current compensation payment caps

      effect of unfair dismissal on firm costs, productivity and recruitment

      unintended consequences of anti-bullying provisions?

 Institutions and compliance costs:

      changes to functions, responsibility and jurisdiction?

      compliance costs

      secondary boycotts
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Royal Commission into Trade Union
Governance and Corruption

 The Royal Commission released its interim report on 15
   December 2014

 It is to report by 31 December 2015

 Public hearing are expected to resume in April 2015

 The interim report made the recommendation that the
   Commonwealth DPP consider criminal charges against a
   range of union officials

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Royal Commission into Trade Union
Governance and Corruption (cont)

 Eric Abetz's (Minister for Employment) response to interim
   report:

     "No objective reader of this interim report can be in any doubt
     about the urgent need to strengthen the governance of unions
     and other registered organisations through the introduction of
     a Registered Organisations Commission"

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Fair Work Ombudsman
Campaigns/Prosecutions

 The Fair Work Ombudsman (FWO) for some
   time has focused on young and foreign born
   worker's complaints, especially in relation to
   underpayment

 Of the 2013-2014 litigation outcomes
   publicised by the FWO, 75 per cent of
   prosecutions related to underpayments

 The future focus of the FWO will be especially
   concerned with the use of accessorial liability
   provisions in the Fair Work Act (s.550)
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Case law: Implications of Important
2014 Cases

 Adverse action claims are a growing area of
     employment law jurisprudence and are one
     area where unions will continue to litigate

 Other important decisions:

        CFMEU v BHP Coal Pty Ltd [2014] HCA 41

        Commonwealth Bank of Australia v Barker
            [2014] HCA 32

        Shea v TRUEnergy Services Pty Ltd (No 6)
            [2014] FCA 271

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Proposed Paid Parental Leave Abandoned
& Four-Yearly Awards Review

 Federal Government's proposed Paid Parental Leave
     Scheme abandoned - existing scheme of minimum pay
     continues

 Four yearly review of Modern Awards - this process is being
     undertaken in 2015

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Anti-Bullying Regime Update

 "At Work" defined by the Full Bench

 Anti-Bullying orders can be lifted
   upon resolution of conflict

 Dismissed employee's bullying claims
   remain alive

 Anti-bullying figures - the number of
   bullying claims remain less than had
   been anticipated when the jurisdiction
   came into force on 1 January 2014

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Enterprise Agreements

 Protected industrial action:

      bargaining in "good faith" - even
        though the bargaining process has
        included claims for matters which are
        not permitted in the agreement

      Esso Australia Pty Ltd v AMWU and
        AMU [2015] FWCFB 210

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Enterprise Agreements (cont)

 CFMEU v John Holland Pty Ltd [2015] FCAFC 16 (24 February
   2015):

      "fairly chosen" test

      capacity to make enterprise agreements at an early stage in a
        project

      site-specific agreements

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Short-Term Mobility Visa Proposal

 Foreign workers to enter Australia for up to twelve months

 The visa's purpose is to allow entry to complete specialised
     work, including intra-company transfers

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Change to Gender Reporting Requirements

 Federal Government in February 2015 announced it will
     lessen gender reporting requirements

 Do not take effect until 2015-2016 reporting period

 Reporting requirements for 2014-2015 do not change

 From 2016, employers will not be required to report on:

        remuneration of CEOs or equivalents, or casual managers

        workers engaged on a contract for services

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Increased Use of Competition Law in
Industrial Context?

 Competition Review (Harper Review):

        first comprehensive review of Australia's competition laws and
            policy for 20 years

        draft report released September 2014, final expected in March
            2015

 Secondary boycotts:

        draft report does not recommend change to secondary boycott
            provisions

 Panel states:
        timely and effective enforcement needs to exist
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 Increased Use of Competition Law in
 Industrial Context? (cont)

 Panel states:

     appropriate for the ACCC to establish enforcement/investigation
         protocols

     consideration should be given to conferring jurisdiction on
         State/Territory Courts

 Litigation by ACCC:

     against the CFMEU in the Federal Court

     dispute between the CFMEU and Grocon building sites in Melbourne

     using secondary boycott provisions of the Competition and Consumer
         Act 2010 (Cth)
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 OHS: Proposed Legislation in WA

  Occupational Health and Safety Harmonisation in WA?

         in October 2014, the WA State Government introduced the Work
             Health and Safety Bill 2014, with a three month public comment
             period.

         "The tabling of this bill…should not be construed as locking in a
             transition from the WA OSH Act to a WA version of the model
             WHS laws" - Minister for Commerce Michael Mischin

  Watch this space

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Key Contacts

                   Brett Feltham                      Andrew Ball
                   Partner                            Partner
                   T: +61 2 9286 8257                 T: +61 2 9286 8449
                   E: Brett.Feltham@dlapiper.com      E: Andrew.Ball@dlapiper.com

                   Rick Catanzariti                   Allan Drake-Brockman
                   Partner                            Partner
                   T: +61 3 9274 5810                 T: +61 8 6467 6205
                   E: Rick.Catanzariti@dlapiper.com   E: Allan.DrakeBrockman@dlapiper.com

                   Murray Procter
                   Partner
                   T: +61 7 3246 4062
                   E: Murray.Procter@dlapiper.com

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