The latest issues, decisions and proposed changes impacting business and workplace risk
By Tarsha Gavin, Kathleen Weston and Katherine Polazzon
Key discussion points and actions
On the first two days of September, the Federal Government held its Jobs and Skills Summit (the Summit), an event bringing together unions, employers, civil society and government to discuss key issues in the employment space.
So who attended, what was discussed and what changes will we see as a result of the Summit?
The key agenda items included:
- maintaining full employment and growing productivity;
- equal opportunities and pay for women;
- sustainable wage growth and the future of bargaining; and
- future and current skills and training needs, including skilled migration in resolving current skills and labour shortage issues and considering a migration system for Australia's future.
Attendees included state premiers and chief ministers of all states and territories, various industry bodies including the Australian Banking Association and Australian Industry Group, corporate businesses, community representatives, academics and numerous unions.
Notably absent was opposition leader Peter Dutton, who declined an invitation and the four major banks, who were not extended invitations.
The government has committed to a number of 'immediate' changes to the Fair Work Act 2009 (Cth) (Fair Work Act), which the Department of Employment and Workplace Relations will commence consulting on this week. The immediate changes include updating the Fair Work Act to create a framework to:
- ensure all workers and businesses can negotiate in good faith for enterprise agreements;
- remove 'unnecessary' limitations on accessing single and multi-employer agreements;
- make the better off overall test (BOOT) 'simple, flexible and fair';
- ensure the agreement termination process is 'fit for purpose' including by sunsetting 'zombie agreements';
- strengthen protections against adverse action, discrimination and harassment; and
- provide greater access to flexible working arrangements and unpaid parental leave.
The government also committed to some gender-equity related actions, which formed part of Labor's pre-election proposed reforms. These changes include:
- amendments to reporting such as requiring employers with 500 or more employees to commit to measurable targets and improve gender equity in their workplaces; and
- requiring businesses with 100 or more employees to publicly report their gender pay gap to the Workplace Gender Equity Agency.
Areas to watch
The government additionally confirmed it remained committed to a series of other employment-related reforms, many of which we discussed previously here.
These reforms include:
- enshrining gender pay equity and job security as objects of the Fair Work Act;
- criminalising wage theft;
- legislating same job, same pay for labour hire workers;
- various reforms aimed at increasing gender pay equity such as addressing the progress of pay equity claims under the Fair Work Act through legislating a statutory equal remuneration principle and prohibiting pay secrecy clauses;
- amending the definition of 'casual' in the Fair Work Act;
- extending the powers of the Fair Work Commission to include 'employee-like' forms of work and allowing the FWC to make orders for minimum standards for 'new forms of work';
- limiting the use of fixed-term employment contracts; and
- amending the National Employment Standards to include a right to superannuation.
By Sam Betzien, Alana Perna, Hannah Jorgensen
Education and Employment Legislation Committee finalises its inquiry
We are one step closer to the introduction of the entitlement to paid family and domestic violence (FDV) leave. On 4 August 2022, the Senate referred the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (Bill) to the Education and Employment Legislation Committee (Committee) for inquiry and report. The Committee has now finalised its inquiry and tabled the report for parliamentary discussion. The Committee report outlines the submissions received, practical implications for employers and key recommendations for the Senate.
The Committee has recommended that:
- the Senate pass the Bill (visit our earlier Insight for a discussion of what is contained in the Bill);
- the Australian Government commission an independent review of the provisions of the Bill to be undertaken 18 months after commencement; and
- the independent review assess the adequacy of support and guidance available to businesses to assist with implementation of the Bill.
The majority of evidence submitted to the Committee expressed support for the general intent of the Bill. Many submissions expressed support for the Bill in its entirety and urged Parliament to pass the Bill without delay. However, the submissions received also raised the following practical considerations for employers:
- Financial impact: various employer representatives expressed concern about the cost implications for businesses, particularly small businesses. However, other submissions provided evidence that the annual cost to employers was unlikely to be substantial for individual businesses. Further submissions indicated that the entitlement to paid FDV leave had the potential to benefit the broader economy as it would reduce employer costs relating to absenteeism, lost productivity and diminished performance.
- Government funding: a number of submissions proposed that the entitlement to paid FDV leave should be funded by the Australian Government. However, the Australian Council of Trade Unions told the Committee that such a scheme was likely to be counterproductive as it would introduce another layer of complexity for victims of FDV that would not be in the best interests of the employee.
- Accessibility to perpetrators: several submissions questioned whether perpetrators should have access to a paid FDV leave entitlement. Relationships Australia submitted that the Bill should be amended to explicitly allow perpetrators to access the entitlement. The Greens proposed the provision be amended to provide employers with the discretion to accept a leave request for employees to attend behaviour changing programs. The Coalition was clear that it did not support paid FDV leave for perpetrators.
- Accessibility to casuals: some employer groups expressed reservations about the availability of a paid leave entitlement for casual employees. However, other submissions identified that the cost of providing paid FDV leave to casuals would be balanced against the need to hire new employees.
- Pay rate: a number of submissions expressed concerns about FDV leave being paid at an employee's actual rate of pay, as opposed to their base rate of pay, and the potential complexities for employers in calculating what an employee was owed. Groups like the CFMMEU and Gateway Family Services stressed the importance of ensuring that employees did not lose pay as a result of taking leave.
- Privacy and confidentiality obligations: most submissions indicated that privacy and confidentiality impacts were a significant point of concern. However, employers who had already implemented paid FDV leave models within their workplace submitted that they had found the administration aspect to be manageable with appropriate systems in place. As an example, Canva provided a list of specific measures it had implemented, including the use of a privacy and consent statement, restricting employee files and the use of generic labels on payslips.
- Training and other resources: various submissions highlighted the importance of receiving guidance and resources to assist employers in navigating disclosure requirements and ensuring employee safety.
- Review of the Bill: most submissions received supported a review of the Bill. The Department of Employment and Workplace Relations confirmed that it intended to review the impact and operation of the Bill after its implementation.
Overall, the Committee found there was broad support for the Bill from various stakeholders and considered the Bill to be a substantial step forwards in providing support for individuals affected by FDV.
The Greens expressed general support for the Bill, but made a number of recommendations regarding government-funded financial support, wording of the provision, specific items to be further reviewed, development of resources for employers and the right to access unpaid FDV leave where the paid entitlement is exhausted.
The Coalition expressed support for the introduction of paid FDV leave but raised a number of concerns with its drafting, particularly in relation to the provision of paid FDV leave for casual workers. The Coalition also made recommendations regarding clearer reporting obligations, excluding perpetrators from accessing the entitlement and further review of the impact on small or sole businesses.
We will continue monitoring the Bill's movement through parliament and provide further updates as they arise.
By Tarsha Gavin, Eden Sweeney and Maddie Toohey
The Fair Work Ombudsman (FWO) is focusing its attention on wage underpayments within Australian universities, in light of the many reports it has received of significant and long-running underpayments within this sector.
Underpayment trends in the university sector
According to a report released in March 2022 by the Federal Senate Economics References Committee (the Federal Report), approximately half of Australia's universities have underpaid their staff members. The Federal Report identified some key contributing factors to the underpayments which include insecure work arrangements, large casual workforces and funding cuts across the sector.
In the last two years, wage underpayment issues in a number of universities have been made public, and several universities have self-disclosed underpayments to the Fair Work Ombudsman (FWO). The National Tertiary Education Union has also launched a campaign to investigate and take action against universities in relation to wage theft and underpayment matters.
More broadly, TEQSA, Australia's quality assurance and regulatory agency for higher education, also released a report (the TEQSA Report) outlining their involvement with the FWO and impacted universities in relation to wage underpayments. Since August 2020, TEQSA has engaged with 15 universities seeking to understand and address identified underpayment issues.
Fair Work Ombudsman zooms in on universities
In response to the regular self-reporting of non-compliance across the sector, in June 2022, the FWO announced a focus on underpayments in the university sector as one of its new compliance and enforcement priorities for 2022-2023
In line with these priorities, in August 2022 the FWO commenced legal action against the University of Melbourne, alleging that it coerced and took adverse action against two casual academics to stop them from claiming payment for work performed outside of their contracted hours. The FWO is also conducting a separate investigation into alleged underpayments by the University of Melbourne, as well as a number of other universities.
Key takeaways: practical steps for universities to follow
The TESQA Report outlines a number of expectations of higher education providers in relation to wage underpayment matters. These expectations broadly align with the expectations of the FWO in respect of such matters, and include taking steps to:
- undertake comprehensive reviews of their payroll, time and record-keeping practices;
- implement measures to mitigate the risk of underpayments;
- rectify any known instances of underpayments and address root causes;
- continuously monitor compliance with workplace laws;
- where applicable, cooperate fully with the FWO in its investigations; and
- notify TEQSA under their material change obligations of any material issues that arise.
Universities should be taking proactive steps to understand the extent of, and rectify, any underpayments in accordance with these recommendations. Taking these steps will help universities to prepare for potential investigation by, and enforcement action from, regulators.
By Veronica Siow, Mikaela Heise and Brigid Nelmes
Evaluate and enhance your measures
Employers should evaluate and enhance their measures and controls for preventing sexual harassment in anticipation of the imminent introduction of a positive duty to eliminate workplace sexual harassment.
You can read more about developments relating to the Respect@Work report in our other article, WA Government to overhaul anti-discrimination laws.
Revisiting the Respect@Work Report
The Australian Human Rights Commission's (Commission) 2020 Respect@Work Report (Respect@Work Report) laid bare the pervasiveness of sexual harassment in Australian workplaces and the shortcomings of the existing legal framework tasked with addressing it.
The Respect@Work Report made 55 recommendations across the anti-discrimination, employment and work health and safety regimes, including 12 recommendations for federal legislative amendments.
The central recommendation of the Respect@Work Report is an amendment to the Sex Discrimination Act 1984 (Cth) (SDA) to introduce a positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment (as well as sex discrimination and victimisation), as far as possible.
The introduction of the standalone obligation would place a greater onus on employers to prevent sexual harassment occurring in their workplace.
What came of the Respect@Work Report recommendations?
In June 2020, we reported on the Coalition Government's proposed implementation of some of the Respect@Work Report's recommendations, including the introduction of stop sexual harassment orders, the inclusion of sexual harassment as a valid reason for dismissal in the unfair dismissal provisions and a prohibition on sex-based harassment. Only six of the Respect@Work Report recommendations have been implemented into legislation. Notably, the positive duty recommendation was not amongst those implemented.
Since forming government in May 2022, Labor has vowed to commit $35 million over four years towards the implementation of all 55 recommendations of the Respect@Work Report, as a matter of priority, including the introduction of a positive duty on employers to take reasonable and proportionate measures to eliminate workplace sexual harassment.
Employers already have a duty under work health and safety laws to eliminate or minimise so far as reasonably practicable health and safety risks in the workplace but a positive duty under the SDA will require additional proactivity from employers to stamp out sexual harassment.
Although the precise scope of the duty remains to be seen, 'reasonable' and 'proportionate' measures will be assessed in light of the nature and circumstances of the employer's business and resources and the practicability and cost of the measures.
The positive duty will be supported by other recommendations slated for implementation by the government, including:
- the granting of enforcement powers to the Commission to assess an employer's compliance with the positive duty, including by issuing notices for non-compliance, entering into agreements and enforceable undertakings with employers and applying to the court for an order requiring compliance with the duty;
- the conferral of inquiry powers on the Commission to investigate systemic sexual harassment; and
- the introduction of cost protections for complainants who bring claims of sexual harassment.
Employers should assess the risks of sexual harassment in their workplace, and review their current measures and controls in place to ensure they are effective in preventing that conduct in the workplace.
No longer will employers be able to simply point to workplace policies to demonstrate they have complied with their legal duty. The positive duty will require employers to take pre-emptive action and continuously assess their measures for preventing workplace sexual harassment, including:
- assessing and managing risk factors for sexual harassment in the workplace, including continuously evaluating work arrangements, conditions and culture;
- delivering effective and targeted sexual harassment training to staff at all levels of the organisation; and
- maintaining effective grievance and whistleblower mechanisms and processes.
By Stephanie Paolino and Emma Gillman
Bradley John Dean v Regional Express Holdings Ltd  FWC 1448
Fair Work Commission orders pilot to be reinstated
The Fair Work Commission (the Commission) has ordered the reinstatement of a pilot who failed to meet vaccination requirements, finding that the employer did not afford the pilot procedural fairness and reinstatement was appropriate in the circumstances given the pilot was fully vaccinated post-dismissal.
How does this affect you?
- Employers should take care to ensure that procedural fairness is afforded to employees during the disciplinary process, including meeting with the employee and considering any alternative options put forward before a final decision in respect of disciplinary action is made.
- The Commission may order the reinstatement of an employee who has been dismissed for failing to meet a lawful and reasonable direction if the employee is willing and able to comply with the direction post-dismissal.
The applicant, a pilot with Regional Express Holdings Ltd (REX), lodged an unfair dismissal application after he was dismissed for failing to be vaccinated against COVID-19 in accordance with REX's COVID-19 Mandatory Vaccination Policy (the Policy).
The Policy relevantly provided that:
- all frontline customer-facing employees were to be fully vaccinated against COVID-19 and could not delay their vaccination in order to obtain their preferred vaccination type;
- a frontline customer-facing employee could be terminated if they did not submit an objection form or provide evidence of vaccination without a valid reason; and
- if a frontline customer-facing employee could not or did not wish to be vaccinated, REX would assess the employee's situation to determine whether there were any redeployment options.
In this case, the applicant submitted an objection form which provided that he was undecided about whether to get the vaccine. The applicant then engaged in lengthy correspondence with REX in which he explained the reasons for his vaccine-hesitancy, and put forward various temporary solutions such as taking on non customer-facing roles and taking his accrued annual leave.
Ultimately, the applicant was dismissed from his employment on the basis that he was unable to perform the inherent requirements of his role as a frontline employee due to his vaccination status. Following his dismissal, the applicant was fully vaccinated with the Novavax vaccine.
Valid reason for dismissal, but failure to discuss options harsh in the circumstances
Although the Commission was satisfied that the Policy was lawful and reasonable in the circumstances and that the applicant's failure to comply with the requirements of the Policy constituted a valid reason for dismissal, the Commission found that the dismissal was affected by substantive procedural unfairness and was therefore harsh in the circumstances.
The key procedural issue was that REX did not meet with the applicant to discuss matters relating to the proposed dismissal, including the various proposals advanced by the applicant.
As there was no evidence of a loss of trust or confidence between the parties, and the applicant was at the time of the proceedings vaccinated in accordance with the Policy, the Commission ordered that the applicant be reinstated to his former position and that his continuity of service be preserved.
By Stephanie Paolino
The Western Australian Government has 'broadly accepted' the 163 recommendations made by the Law Reform Commission of WA (LRCWA) in its report Review of the Equal Opportunity Act 1984 (WA) which was tabled in Parliament on 16 August 2022 (Report). Drafting of new legislation is set to follow.
The Report can be accessed in full here.
New legislation to be modern, effective and fair
- The proposed new laws will seek to modernise WA's discrimination protections and bring WA into line with other Australian jurisdictions.
- The WA Government will further consider the extent to which the Report's 163 recommendations will be implemented, but has confirmed that several key reforms are expected to be included in the new laws, including in relation to sexual harassment, vilification and victimisation.
The key reforms that are likely to be enacted from the Report include:
- amending the definition of sexual harassment to remove the requirement that the conduct results in disadvantage to the complainant. This amendment is in line with the recommendations of the Community Development and Justice Standing Committee in its report into sexual harassment against women in the FIFO mining industry, and brings the laws in line with New South Wales, South Australia, Tasmania and Victoria;
- strengthening equal opportunity protections for LGBTIQA+ staff and students in religious schools, for example, by making it unlawful for schools to discriminate in the evaluation of student applications, and requiring schools to prove religious belief is an inherent requirement of the role;
- extending the prohibition against sexual and racial harassment to members of Parliament and Parliament staff, judicial officers and court staff, local government councillors and staff, and unpaid or volunteer workers;
- including a new protected attribute of subjection to domestic or family violence, so that victims are expressly protected from discrimination on this basis;
- introducing anti-vilification laws which cover employment relationships and prohibit conduct that is likely to create, promote or increase animosity towards, threaten, seriously abuse or severely ridicule a group or a person on the grounds of disability, gender identity, sex, sex characteristics, race, religious conviction and sexual orientation; and
- strengthening victimisation provisions by specifying that it is not necessary for a complainant to prove that the dominant or substantial reason for the alleged victimiser doing the relevant act was to victimise that person, bringing the laws in line with Victoria.
In 2019, the LRCWA was asked to provide advice and recommendations to the WA Government on possible amendments to enhance and update the Equal Opportunity Act 1984 (WA). The LRCWA received 995 written submissions and undertook several public consultation sessions in preparing the Report.
In addition to the recommendations set out above, LRCWA recommended the imposition of a positive duty on employers to prevent harassment at work, consistent with the recommendation of Sex Discrimination Commissioner Kate Jenkins in her Respect@Work report. The WA Government has not signalled whether a positive duty will be included in the new laws.
By Courtney Logue, Chloe Wilton
Secretary, Attorney-General's Department v Warren  FCAFC 118
Employers should review their employment contracts to ensure:
- any set off clauses clearly identify which entitlements may be set off against over-award payments; and
- any casual loading is clearly identified and the entitlements the casual loading is paid in respect of are clearly specified.
Mr Warren was employed on a casual basis in the coal mining industry and was dismissed due to his employer's insolvency. He subsequently applied for financial assistance under the Fair Entitlements Guarantee Act 2012 (Cth) (FEG Act), including with respect to unpaid annual leave and redundancy pay.
The parties agreed that Mr Warren could not be employed on a casual basis under the Black Coal Mining Industry Award 2010 (Award) and on that basis was entitled to paid annual leave and redundancy pay under the Fair Work Act 2009 (Cth) (FW Act) and applicable Award. Mr Warren's employment contract provided that he would be paid a casual loading of 25% as compensation for, amongst other things, annual leave and severance pay. The key question for the court was whether Mr Warren had already been paid amounts that were 'attributable' to his unpaid entitlement to annual leave and severance pay, which would reduce his entitlement to financial assistance under the FEG Act.
The court determined that Mr Warren's entitlement to annual leave and redundancy pay under the FW Act and Award were not discharged by the payment of the loading, despite what his employment contract said.
However, the court determined that the loading was 'attributable' to his unpaid entitlement to annual leave and redundancy pay because:
- the question of whether the employer's obligations to pay annual leave and redundancy pay were discharged by payment of the loaded rate is distinct from whether the payment of the loaded rate was attributable to those entitlements;
- a payment can be attributable to an entitlement even if the payment is not made in accordance with the FW Act or Award; and
- by the employment contract, Mr Warren and his employer agreed that he would be paid a loading to compensate him for various benefits, including annual leave and severance pay.
The court briefly considered whether the loadings paid to Mr Warren could have been set off against his entitlements to annual leave and redundancy pay. The court did not make a decision on this issue, but noted that the FW Act provides that any identifiable casual loading paid as compensation for permanent employee entitlements to an employee mistakenly treated as a casual must be taken into account when determining whether the employee is entitled to payment for those entitlements.