RELATIONS CONFERENCE KEYNOTE SPEAKER: ATTORNEY-GENERAL AND MINISTER - - PowerPoint PPT Presentation

20th ANNUAL EMPLOYMENT RELATIONS CONFERENCE

FRIDAY 30 AUG 19

KEYNOTE SPEAKER: ATTORNEY-GENERAL AND MINISTER FOR INDUSTRIAL RELATIONS, THE HON CHRISTIAN PORTER MP

Lydia Daly Special Counsel 30 August 2019 Nicola McMahon Senior Associate

20th Annual Employment Relations Conference

Managing Ill and Injured Employees

Employer’s obligations

WH&S Reasonable Adjustments RTW / Suitable alternate duties Medical evidence Procedural fairness / support / confidentiality

Relevant Legislation

Work Health and Safety Act 2011 (Qld) and (NSW)

Anti-Discrimination Act 1991 (Qld) Anti-Discrimination Act 1977 (NSW) Disability Discrimination Act 1992 (Cth) Workers’ Compensation and Rehabilitation Act 2003 (Qld) Workers’ Compensation Act 1987 (NSW)

Federal

Fair Work Act 2009 (Cth) Privacy Act 1988 (Cth)

State

Public Service Act 2008 (Qld) Industrial Relations Act 2016 (Qld) Industrial Relations Act 1996 (NSW) Information Privacy Act 2009 (Qld)

The need to consider psychological conditions

■ 20% of Australians experience a mental illness in any year

□The most common are depression, anxiety and substance use disorders

■ 45% of Australians will experience a mental illness in their lifetime ■ 54% of people do not access treatment for mental illness

□Source: Black Dog Institute

■ Psychological and psychiatric claims currently represent 6.3% of total statutory

payments ($59.0 million for 2017-18)

■ The rate of rejection for psychological workers’ compensation claims is 62.4%

□Source: Queensland workers’ compensation scheme statistics 2017-2018

Reasonable management action

■ Read v Workers Compensation Regulator [2017] QIRC 072

□ Organising a disciplinary meeting in relation to performance issues

■ Allen v Workers’ Compensation Regulator [2018] QIRC 41

□ Meeting to advise employees of reduction in working hours

■ Allwood v Workers’ Compensation Regulator [2017] QIRC 088

□ Psychological injury as a result of a number of events at work and comments

concerning bereavement leave

Legal approach to gathering and using medical information

■ It is essential for compliance with WHS duties that an employer can require

□ an employee to provide particulars and or medical evidence affirming fitness for

work

□ an employee, on reasonable terms, attend a medical examination

■ What is reasonable

□ turns on facts □ depends on employer’s policies and employee’s contract terms □ requires a sensitive approach and respect for privacy

■ Factors to consider

□ is there a genuine indication of the need for the examination such as prolonged

absences from work or absences without explanation or evidence of an illness which relate to capacity to perform the inherent requirements of the job

□ has the employee provided adequate medical information which explains absences and

demonstrates fitness to perform duties

□ is the industry or workplace particularly dangerous or risky □ are there legitimate concerns that the employee’s illness would impact on others in the

workplace

□ did the employee agree to the assessment by the practitioner selected by the employer □ was the employee advised of the details of the behaviour which led to the concerns

that they were not fit for duty

□ was the medical practitioner advised of the issues of concern and were those matters

focused on the inherent requirements of the job

□ was the medical assessment truly aimed at determining, independently, whether the

employee was fit for work in their substantive role

Medical examinations when considering mental health

■ Yan v Spotless Facility Services Pty Ltd [2017] FWC 922

□ medical evidence did not say employee incapable to perform inherent

requirements

■ Boag and Son Brewing Pty Ltd v Button [2010] FWAFB 4022

□ Inherent requirements of substantive role must be considered and not

modified, restricted or a temporary alternate position

■ Fia v Jeld Wen [2013] FWC 2694

□ medical evidence at the time of decision certified not fit for pre-injury duties

Reliance on medical evidence

■ Robinson v Western Union Business Solutions

(Australia) Pty Ltd [2018] FCA 1913

□ Employee had been away from work for seven

months with a mental illness

□ Employer requested the employee attend IME

to ‘assist the business in gaining a clear understanding of a possible return date’ and the employee refused

□ The employee eventually agreed to an IME after

numerous requests were made. The employer did not arrange the IME

□ Two months later, the employer terminated the

employee on the basis he could not give an indication of a return date and unreasonably failed to cooperate with the employer

Reliance on medical evidence cont’d

Held: the dismissal was because of the employee’s mental disability. Any lack

• f ‘capacity’ to return to

work was but a ‘manifestation’ of the employee’s mental disability and a ‘manifestation’ that could not be severed from that disability.

Investigations

■ Duty of care owed to prevent psychiatric injury ■ Hayes v State of Queensland [2017] 1 Qd. R 337

□ Duty to take reasonable care to support an employee, where to the knowledge of

the employer, the employee is a risk of harm while their conduct is being investigated

■ Robinson v State of Queensland [2017] QSC 165

□ Plaintiff alleged manager bullied her and failed to properly act on workplace

complaints

□ Held employer liable for the manager’s failure to properly address complaints and

the foreseeable risk of psychiatric harm due to the breach of duty

□ Awarded $1.4 million as plaintiff unlikely to ever return to work

■ Eggins v State of Queensland (DJAG/QCS) [2015] QIRC

203

□ direction given three months after doctor certified unfit

to participate in process and one month after taking personal leave

■ Daniel Krcho [2019] FWC 5278

□ Employee denied stop-bullying orders to block IME

■ Mocanu v Kone Elevators Pty Ltd [2018] FWC 1335

□ Employee was able to use a computer to send an email

while on leave and therefore able to participate in the workplace investigation while on sick leave

Investigations and reasonable directions

Illness does not have to frustrate the process

■ Swanson v Monash Health [2018] FCCA 538

□ Being on personal leave does not absolve an employee’s obligation to follow

the lawful and reasonable directions of their employer

□ The employee is still bound by the employment contract during period of

paid personal leave

■ Laviano v Fair Work Ombudsman [2017] FCCA 19

□ Despite being on personal leave, the employee was subject to an implied

duty to communicate with the FWO. Illness did not prevent employee attending IME

■ Bletas v The Star Entertainment Qld Limited [2019] FWC 2792

□ Authority to doctor not a fishing expedition by employer □ Certificate of capacity from own treating doctor of 34 years not sufficient

Investigations and reasonable directions cont’d

■ Must be a genuine need for information ■ Information sought and circumstances must be reasonable ■ Provide doctor with information about role and work environment ■ Take care to ask the right questions ■ Seek opinion on fitness to participate in the process ■ Reasonable alternatives to facilitate participation

Direction to provide medical evidence / attend IME

■ Once you know about a worker’s medical/injury history, you will owe them a

higher duty of care

■ Treat employees fairly during and after any psychological conditions are raised ■ In the context of an investigation, consider medical evidence provided. Consider

seeking additional information/directing the employee to attend an IME

■ Reasons for any disciplinary action

□ failure to meet inherent requirements of role □ failure to follow lawful and reasonable direction

Points to note as an employer

Contact

Lydia Daly Special Counsel T +61 412 423 432 E ldaly@mccullough.com.au Nicola McMahon Senior Associate T +61 435 557 269 E nmcmahon@mccullough.com.au

Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this presentation.

20th Annual Employment Relations Conference

Enterprise Bargaining Update

Michael Moy Partner 30 August 2019 Liam Fraser Senior Associate

What we will cover today

■ Recent statistics on enterprise bargaining ■ Legislative assistance ■ Notice of employee representational rights issues ■ Explaining terms and their effect ■ Lodging enterprise agreements – updated forms ■ Emerging issues in bargaining

Recent statistics on enterprise bargaining

Recent statistics on enterprise bargaining

500 1000 1500 2000 2500 3000 5000 10000 15000 20000 25000 30000 Sep-10 Dec-10 Mar-11 Jun-11 Sep-11 Dec-11 Mar-12 Jun-12 Sep-12 Dec-12 Mar-13 Jun-13 Sep-13 Dec-13 Mar-14 Jun-14 Sep-14 Dec-14 Mar-15 Jun-15 Sep-15 Dec-15 Mar-16 Jun-16 Sep-16 Dec-16 Mar-17 Jun-17 Sep-17 Dec-17 Mar-18 Jun-18 Sep-18 Dec-18

Agreements Current at end Quarter (Sep ’10 – Dec ’18)

Agreements Employees

Number of Agreements Current at end Quarter Number of Employees covered (‘000s)

Union/non-union agreements approved and union density, 1992–93 to 2018–19*

5 10 15 20 25 30 35 40 45 1000 2000 3000 4000 5000 6000 7000 8000

1992–93 1994–95 1996–97 1998–99 2000–01 2002–03 2004–05 2006–07 2008–09 2010–11 2012–13 2014–15 2016–17 2018–19*

Number Per cent

Union agreement Non-union agreement Union density (including OMIEs) (RHS) Union density (excluding OMIEs) (RHS) IR Act Workplace Relations Act

WorkChoices

Fair Work Act

*Data available for only three quarters of the year. Source: Department of Jobs and Small Business, Workplace Agreements Database; Department of Jobs and Small Business, Trends in Federal Enterprise Bargaining, March quarter 2019; ABS, Employee Earnings, Benefits and Trade Union Membership, Australia, various, Catalogue No. 6310.0; ABS, Characteristics of Employment, Australia, various, Catalogue No. 6333.0. ^Owner managers of incorporated enterprises

Recent statistics on enterprise bargaining

■ Why the drop?

□ Triage process for approval applications □ Strict application of BOOT to every employee on every possible roster □ Unions utilising those issues to oppose applications for EAs which they have not

been involved in

□ FWC allowing non-bargaining representative Unions to be heavily involved in the

approval process and to oppose approval

Legislative assistance

Legislative assistance

■ Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act

2018 – 12 Dec 2018

■ If FWC satisfied

□ an EA (not a greenfield EA) would have been genuinely agreed but for minor

procedural or technical errors re a number of procedural issues and

□ Employees not likely to have been disadvantaged by errors

FWC can still find genuinely agreed

Agreement approval outcomes

Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018

■ s180(2) – given (or access to) text of EA and incorporated materials during

access period

■ s180(3) – all reasonable steps to notify of time, place and method of vote,

prior to start of access period

■ s180(5)(a) - all reasonable steps to explain terms and their effect ■ s180(5)(b) - all reasonable steps to ensure explanation in an appropriate

manner

■ s181(2) – employees not requested to approve EA until 21 days after last

NERR given

Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018

■ s173(1) - all reasonable steps to give NERR to each employee who will be

covered and is employed at the notification time

■ s173(3) – issue NERR ASAP

, no later than 14 days after notification time

■ s174(1A)(a) – NERR contains prescribed content ■ s174(1A)(b) – NERR not contain any other content ■ s174(1A)(c) – NERR must be in form prescribed

Notice of employee representational right issues

Notice of employee representational rights issues

■ Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular

Plastics [2019] FWCFB 318

□ Core Toughened Pty Ltd

– Old NERR given to employees – minor technical error and employees not likely

to be disadvantaged

□ Kew Swimming Pools

– Omitted from NERR the paragraph relating to the union’s role in bargaining – Unlikely a minor technical error

□ Royal Automobile Club of Victoria (RACV) Limited

– Replaced ‘speak to your employer’ with ‘speak to your Manager: Brad or

Damien’

– In this instance, minor technical error, but may not be trivial if effect is to restrict

avenues for Qs to employer

– NERR used ‘RACV’, rather than full employer name – minor technical error

Notice of employee representational rights issues

■ Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid

Cellular Plastics [2019] FWCFB 318

□ Axis Plumbing Services WA Pty Ltd

– On company letterhead – triviality and a minor technical error

□ NT Seaman t/a United Wolves

– Employer – Trevor Seaman; United Wolves is the trading name – First paragraph of NERR included trading name - minor technical error

Notice of employee representational rights issues

■ Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid

Cellular Plastics [2019] FWCFB 318

□ CMTP Pty Ltd

– First paragraph of NERR did not identify name of employer, name of

proposed EA or its proposed coverage

– Unlikely that such errors would be minor or not likely to have

disadvantaged employees

□ Huntsman Chemical Company

– 6 (rather than 7) clear days notice given of time, place and method of

voting

– 10 employees covered, 8 cast valid vote – Procedural error minor and employees not likely to have been

disadvantaged

Notice of employee representational rights issues

■ Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid

Cellular Plastics [2019] FWCFB 318

□ Core Toughened

– Some employees received only 5 clear days’ notice before they voted but

vote open for 3 days

– Proposed EA covered 39 employees; 38 cast valid vote – Because of voter turnout and voting process open over days, employees

not likely to have been disadvantaged

□ NT Seaman t/a United Wolves

– Last NERR issued 8/8/18 and vote 29/8/18 – failed to meet 21 day time

frame – unintentional (must be 21 CLEAR days)

– Minor procedural error

Notice of employee representational rights issues

■ Learnings

□ Do not change the NERR □ Do not put it on letterhead □ Do not sign the NERR □ Ensure scope described in NERR does not change during bargaining, or, if it

does, consider issuing new NERR

□ Do not rely on s188(2) to save your NERR

Explaining terms and their effect

Explaining terms and their effect

■ AWU v Professional Traffic Solutions Pty Ltd [2018] FWCFB 6333

□ History of being covered by EAs □ No Union members amongst workforce □ Form F17 said EA contained no terms less favourable than Award, but there

were a number

□ FWC found – if

– fail to identify any terms less beneficial in the EA than the Award and – F17 states there are no less beneficial terms,

• nly inference that can be drawn is that explanation of terms not sufficient

Explaining terms and their effect

■ CFMMEU v Ditchfield Mining Services Pty Limited [2019] FWCFB 4022

□ Explanation with reference to reference Award not always required (esp if it

doesn’t apply at that time)

□ Purpose of explanation – enable employees to understand how wages and

conditions might be affected

□ Compared EA terms to terms of another EA which did not apply □ Were terms in EA less beneficial than Award

– Not explained in F17 declaration – Not explained to employees

□ Explanation not sufficient

Explaining terms and their effect

■ Learnings ■ The following list may be more than what you strictly need to do, but the

inconsistency of the decisions means that explaining the terms too much is much safer than the alternative

□ Explain every single term □ Explain difference between those terms and the underlying Award(s) □ Explain difference between those terms and existing EA □ Explain in writing and in person □ Retain evidence of

– employees receiving written explanation (email read receipts, responses) – verbal explanation (file notes, recordings, etc.)

□ If any employees are from non-English speaking backgrounds, have the

explanation translated

Lodging enterprise agreements – updated forms

■ Be aware that Form F17 (Employer stat dec in support of application) has

changed significantly

□ More onerous in terms of description necessary of clauses which are

– Not in relevant Award/s – Same as relevant Award/s – More beneficial than relevant Award/s – Less beneficial than relevant Award/s

□ Cases have highlighted that swearing a false F17 is a crime □ Cases have relied on statements in F17 to make conclusions about sufficiency of

explanation of terms

– Ensure that you explain the terms which you describe in the F17

Emerging trends

Emerging trends in bargaining

■ Applying to terminate old agreement to break bargaining deadlock

□ More appealing since 2015 Full Bench decision in Aurizon

■ Rolling over notionally expired agreements with wage increases

□ Risk of protected industrial action vs prospects of not passing the BOOT

■ Non-union bargaining reps

□ United Firefighters’ Union of Australia, Union of Employees, Queensland v

Queensland Auxiliary Firefighters Association Inc. [2018] QIRC 66

Take home points

■ NERR learnings

□ Do not change the NERR □ Do not put it on letterhead □ Do not sign the NERR □ Ensure scope described in NERR does not change during bargaining, or, if it

does, consider issuing new NERR

■ Explanation learnings

□ Explain every single term □ Explain difference between those terms and the underlying Award(s) / existing EA □ Explain in writing and in person □ Retain evidence of explanations

■ Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures)

Act 2018 may save your EA, but don’t rely on it!

Contact

Michael Moy Partner T +61 439 060 343 E mmoy@mccullough.com.au Liam Fraser Senior Associate T +61 488 765 409 E lfraser@mccullough.com.au

Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this presentation.

20th Annual Employment Relations Conference

Dismissal and adverse action update

Tim Longwill Partner 30 August 2019 Mahalia Munro Lawyer

Unfair dismissals

Biometric technology and boozy nights out – what do they have in common?

■ Technology in the workplace

□ biometric technology – Jeremy Lee v Superior Wood

Pty Ltd [2019] FWCFB 2946

■ Out of hours conduct

□ boozy nights out - Luke Urso v QF Cabin Crew

Australia Pty Limited t/a QCCA [2019] FWCFB 1322

Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946 ■ Employee failed to comply with a policy requiring fingerprint scanning ■ Employee claimed ownership of the biometric data in fingerprint and sensitive

personal information under the Privacy Act 1988 (Cth)

■ Verbal and written warnings issued, warned that failure to comply with policy

could result in dismissal

■ Held

□ procedurally fair but no valid reason □ not a lawful direction and so worker was entitled to refuse to follow it □ contravention of privacy laws □ not genuine consent □ fingerprint scanning was not reasonably necessary for employer’s functions

• r activities

Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946 ■ Employee privacy needs to be balanced

against competing interests of the employer

■ What employers need to do:

□ ensure wording of employment contracts

requires compliance with all policies

□ keep workplace policies up to date □ implement a privacy policy that complies

with the Privacy Act 1988 (Cth)

□ give employees proper notice of intention

to collect data

□ obtain express consent from the employee

■ Employee went out to a bar in between shifts ■ Employee was taken to hospital with a BAC of 0.205% (approx. 14 drinks) ■ Employee was discharged from hospital but unable to complete return flight ■ Employee’s response to allegations

□ no intention to consume the amounts of alcohol □ he only consumed five drinks □ his drinks were spiked

■ Held

□ appeal dismissed □ failure to attend work was as a result of excessive alcohol consumption therefore

this was a valid reason for dismissal

Urso v QF Cabin Crew Australia Pty Limited t/as QCCA [2019] FWCFB 1322

■ Full Bench did not accept that intention was a necessary element of misconduct ■ Some forms of misconduct involve a positive intention on the part of the employee such

as workplace theft or fraud

■ Other forms of misconduct, such as breaches of safety policies and procedures, may be

the result of recklessness, negligence or misjudgement

■ There must be a connection between the employment and the out of hours conduct ■ Employees can be validly dismissed where conduct is inconsistent with work policies,

particularly where safety is critical component of employment

■ What employers need to do

□

maintain clear policies setting out expectations for employee conduct

□

follow a consistent and fair investigation and disciplinary process

Urso v QF Cabin Crew Australia Pty Limited t/as QCCA [2019] FWCFB 1322

■ Employees on fixed term contracts are excluded from unfair dismissal protection

□ s 315(1) Industrial Relations Act 2016 (Qld) □ s 386(2)(a) Fair Work Act 2009 (Cth)

■ May amount to termination at the initiative of the employer ■ Maximum term contracts are different from genuine ‘fixed term’ contracts ■ An employer may lawfully terminate a maximum term contract before the specified

end date with notice

■ Historically, QIRC and the FWC held that if maximum term contract or fixed term

contract reach the agreed expiry date, the employment and the contract will have ended by effluxion of time, rather than at initiative of employer

■ However, consider Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 and

Lindquist v Redland City Council [2018] QIRC 141

Expiry of contracts for a specified term – risk of unfair dismissal

■ Employee employed on a temporary basis to replace an employee taking

parental leave

■ Employee employed under two contracts with specified end dates, with

subsequent extensions providing for part-time arrangements and varying hours

■ Employer did not renew employee’s final contract when the substantive

position holder returned to full-time hours

■ QIRC found the employee’s employment had been contingent on the other

employee continuing in a part-time capacity until such time as she resumed full-time employment, or the creation of a new position

■ Employment arrangement was not one of continuous employment, the

contract ended on the basis of employee being engaged for a specific period

■ There was no unfair dismissal at expiry of agreed term Lindquist v Redland City Council [2018] QIRC 141

■ Contract must be appropriately worded and reflects a genuine agreement for

the employment relationship to end at a particular date

■ No ongoing expectation of employment ■ Check the terms of the award of certified agreement about fixed term

employment - the award or agreement will prevail

■ Correspondence to the employee must clearly provide for the employee’s

employment as well as their contract to end at the expiry of the term, rather than just their contract

■ The whole employment relationship will be examined, not just the

employment contract

Expiry of contracts for a specified term – Tips for employers

General protections

Adverse action Because of Workplace right, industrial activity

• r discriminatory

reasons

CFMEU v Goondiwindi Regional Council & anor [2018] QIRC 128 ■ Two employees claimed their safety complaints made to WHSQ and CFMEU were

‘workplace rights’

■ Issued with warnings for poor performance = adverse action ■ CFMEU claimed adverse action taken because of workplace rights ■ Council defended on basis that warning was poor performance ■ Eight Council witnesses – group decision making meant multiple persons in

decision making chain

■ CEO ultimate decision maker – CFMEU claimed his decision was infected by

subordinates’ prohibited reasons (i.e. safety complaints)

■ QIRC rejected the application – found that warnings were issued for poor

performance

QNMU v West Moreton Hospital and Health Service [2019] QIRC 072

■ 19 instances of alleged adverse action, broadly characterised as

□ suspension and direction to perform alternative duties □ requirement to show cause why she should not be disciplined □ requirement to participate in a workplace investigation

■ Employee argued adverse action was taken because she exercised a

workplace right or engaged in industrial activity

■ Injunction sought to restrain employer from continuing investigation into the

allegations against the employee and from temporarily transferring the employee to an alternative position

QNMU v West Moreton Hospital and Health Service [2019] QIRC 072 ■ Employer argued employee was prevented from alleging decisions could be

considered adverse action because of s 282(6) of the IR Act

Adverse action does not include action that is authorised under – (a) this Act or any other law of the State; or (b) a law of the Commonwealth

■ Express powers in the Public Service Act 2008 (Qld) authorised employer to act as

it did and therefore the actions were incapable of being defined as ‘adverse action’

■ QIRC rejected this argument at [56]:

In my view, while s 26(3) of the PS Act requires a public service manager to take prompt and appropriate action to address unacceptable work performance, the section is premised on the basis that a correct finding has been made that unacceptable work performance has in fact occurred and that the remedy proposed by the decision maker is lawful. In a context where these issues are in dispute, I don’t accept that s 282(6) can have effect.

When can you rely on the exception?

■ Cannot rely on s 26(3) of the PS Act ■ Limited case law in the QIRC ■ Have to look to case law considering similar provision in the FW Act (s

342(3))

■ CFMEU v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462

□ Rio argued payments to the CFMEU members were made in accordance with the

enterprise agreement

□ ordinary meaning of ‘authorise’ is to give authority or legal power or to empower □ if the ordinary meaning was to be applied, the success of Rio Tinto’s primary

submission depended upon the identification of some provision of the FW Act which gave ‘authority or legal power’ or which ‘empowered’ Rio Tinto to make discriminatory payments

■ Recent cases

□ The Environmental Group Ltd v Bowd [2019] FCA 951 □ Keenan v Cummins South Pacific Pty Ltd (No. 2) [2019] FCCA 523

■ Courts will order reinstatement ■ Damages can be significant ■ Seek independent legal advice as the individuals who would normally

manage complaints can be the subject of the allegations themselves

Senior executives making general protections claims

■ Employee reported irregularities to the board,

made a complaint to ASIC, Police and AFP and took personal leave

■ Adverse action – investigation, suspension

and dismissal

■ Workplace right – taking personal leave, it did

not include making a complaint to ASIC as the complaint was not made in ‘good faith’

■ Not dismissed because he took personal

leave

■ Held – not adverse action, actual reason for

dismissal was overall poor performance

Whistleblowing CEO The Environmental Group Ltd v Peter Bowd [2019] FCA 951

■ Correspondence established that employee was aware of performance concerns ■ Evidence did not establish that the employee had any foundation for his concerns about

irregularities

■ Records of meetings and contemporaneous correspondence between the parties showed

the relationship break down at the time the employee chose to lodge concerns with ASIC and the AFP

■ Takeaways

□ Corporations Act 2001 (Cth) provisions cannot be described as a ‘workplace law’, a

complaint to ASIC may fall within s 341 only if it is made in good faith

□ good faith requirement for a complaint under s 341(c)(ii) □ ‘workplace complaints’ in the case of a CEO, ‘the complaint must be one directed at or

concerned with that person’s employment in a substantive way’

□ keep clear contemporaneous notes of meetings and any correspondence to and from

the employee

The Environmental Group Ltd v Peter Bowd [2019] FCA 951

■ Employee was a senior leader with 34 years service. Employee made

complaints about the human resources leader

■ Employee was dismissed for performance issues ■ Employer strongly argued against reinstatement ■ Held

□ workplace rights – making complaints about how he was treated, taking

paid personal leave and initiating a proceeding

□ adverse action – ethics investigation, performance improvement plan,

suspension and dismissal

□ court rejected employer’s arguments against reinstatement

From senior executive to Uber driver Keenan v Cummins South Pacific Pty Ltd (No. 2) [2019] FCCA 523

■ Inappropriate behaviour following the

decision can have serious consequences

■ Act appropriately and impartially on receipt

• f employee complaints. Be aware of bias

■ Ensure performance management processes

are transparent

■ Reinstatement is not impossible just because

there is a difficult relationship

■ Getting it wrong can be costly

From senior executive to Uber driver – Key lessons

Contact

Mahalia Munro Lawyer T +61 7 3233 8934 E mmunro@mccullough.com.au

Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific

• cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further advice should be
• btained before taking action on any issue dealt with in this presentation.

Tim Longwill Partner T +61 412 064 507 E tlongwill@mccullough.com.au

Scarlet Reid Partner 30 August 2019 Nathan Roberts Senior Associate

20th Annual Employment Relations Conference

White Collar Crime in the Workplace

Agenda ■ Context ■ Offences under the Fair Work Act 2009 ■ Wage Theft ■ The Queensland Public Sector regime ■ Industrial Manslaughter ■ Other offences in the workplace

Context to White Collar Crime in the Workplace

Context – Increasing Penalties and Enforcement

■Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth)

□Liability for franchisors and holdings companies □Prohibition on cashback schemes □Increased penalties for ‘serious contraventions’ □Reverse onus for breaches of record-keeping and pay slip obligations □Ability to apply to the AAT for an ‘FWO Notice’

Context – Increasing Penalties and Enforcement

■Banking Royal Commission

□ASIC: ‘Why not litigate?’

■Fair Work Ombudsman

□2019/20 Federal Budget: Extra $9.2m over 4 years ($2.3 per year) for a ‘Sham

Contracting Unit’

Offences under the Fair Work Act 2009

FW Act Offences

■Very limited criminal offences under the Fair Work Act 2009 ■Corrupting Benefits Offence– new Part 3-7

□Took effect on 11 September 2017 □Response to the Royal Commission into Trade Union Governance and Corruption

FW Act Offences

■ Section 536D in a nutshell. It is an offence to (or to cause someone else to): ■ An employer cannot offer to make a payment to a union official on the proviso that the union will

attempt to convince their members to accept lesser terms and conditions of employment in an enterprise agreement that the union would otherwise have advocated for

■ A union official cannot request a payment to a union official on the proviso that the union will

attempt to convince their members to accept lesser terms and conditions of employment in an enterprise agreement that the union would otherwise have advocated for

Give or

• ffer a

benefit

dishonestly to another person Intending that an

• fficer or

employee

• f a

registered

• rganisation

will be influenced

FW Act Offences ■ Section 536F offence:

□ Employers cannot make payments to a union, their officers and employees (and their

spouses)

□ Except deductions for membership fees agreed in writing, or goods/services at not more

than market value, etc.

■ Section 536G offence:

□ Unions, their officers and employees (and their spouses), cannot receive payments from

employers

□ Except deductions for membership fees agreed in writing, or goods/services at not more

than market value, etc.

■ Penalties:

□ Individual: imprisonment for 2 years or 500 penalty units ($105,000); □ Body Corporate: 2,500 penalty units ($525,000)

Wage Theft

Wage Theft – What is it? ■ Underpaying wages ■ Unpermitted deductions (including at end of employment) ■ Entitlements withheld ■ Off-the-clock variations ■ Unpaid superannuation ■ Unpaid overtime ■ Unpaid penalty rates ■ Unpaid trials ■ Requiring the repayment of money earnt

Wage Theft – What causes it? ■ Intention ■ Sham contracting (paying as a contractor when are an employee) ■ Cash-in-hand / tax avoidance ■ Application of the incorrect Award ■ Paying flat rates ■ Phoenix activity ■ Vulnerability:

□ international students; □ temporary migrant workers □ young workers

Wage Theft – The Numbers – FWO Audits

Industry Year Audits Percent wage theft Average recovered Building & construction 2014/15 610 24.6% $1,289 Retail 2010/11 1866 16.7% $775 Pharmacy 2012/13 523 21.4% $469 Hospitality (Accom, pubs, bars) 2012/13 750 19.6% $584 Hospitality (Restaurants, cafes, catering) 2012/13 1066 46.3% $442 Hospitality (Takeaway foods) 2012/13 565 47.1% $627 Children’s services 2013/14 420 24.3% $751 Health care and social assistance 2014/15 696 15.2% $566 Hair and beauty 2012/13 838 40.0% $538 Apprenticeship 2014/16 822 32.1% $1,051

Wage Theft – More Numbers

■Superannuation:

□Australian Tax Office (ATO) estimates a

‘super gap’ of $2.79b in 2015-16

□Industry Super Australia (ISA)

estimates super theft cost $5.9b , affecting 2.98m Australians or 1 in 3 workers in 2015-16

■PAYG Withholding

□ATO estimates $3.356b shortfall in

tax in 2015-16

Wage Theft – More Examples

Wage Theft – the case for criminalisation

■Migrant Worker Taskforce (2019):

□Recommendation 6 It is recommended that for the most serious forms of

exploitative conduct, such as where that conduct is clear, deliberate and systemic, criminal sanctions be introduced in the most appropriate legislative vehicle.

■Federal Coalition has shown support for criminalisation of wage theft ■What threshold: Intentional? Reckless? Negligence? ■Introduce criminal offences in the Fair Work Act 2009? ■Treat wage theft as anti-competitive conduct under the Australian

Consumer Law?

Wage Theft – Criminalisation Models

Where? Minnesota Colorado United Kingdom When? 1 August 2019 1 January 2020 1 April 2016 What? Jobs and Economic Development Omnibus Bill The Human Right to Work With Dignity Act (HB-1267) National Minimum Wage Act 1998 How? ‘Wage theft occurs when an employer with intent to defraud: (i) fails to pay an employee all wages, salary, gratuities…’ An employer that ‘wilfully refuses to pay wages or compensation’, or ‘falsely denies the amount of a wage claim’… with ‘intent to annoy harass, oppress, hinder, coerce, delay or defraud the person to whom such indebtedness if due’ commits theft. If the employer of a worker who qualifies for the national minimum wage refuses or wilfully neglects to remunerate the worker for any pay reference period at a rate which is at least equal to the national minimum wage, that employer is guilty of an

• ffence

Penalty Imprisonment for not more than 20 years or to payment

• f a fine of not more than

$100,000, or both, if the property is a firearm, or the value of the property or services stolen is more than $35,000 Less than $2,000 is a misdemeanour. $2,000 or more is a felony with penalties of $50 to $1,000,000 depending on circumstances. 200% of the total arrears

• wed to workers, subject to a

maximum of £20,000 per underpaid worker.

Wage Theft – alternatives to criminalisation

■Superannuation

□Create rights under the Fair Work Act (instead of the Superannuation Guarantee

(Administration) Act 1992)

□Create a personal right of recovery (instead of action through ATO) □Require monthly payment like wages (instead of quarterly)

Wage Theft – What if I have a problem ■ Rectify the payments ■ Cooperation and remorse are relevant ■ Fair Work Ombudsman v Transpetrol TM AS (No

2) [2019] FCA 608

□ Norwegian corporation underpaid 57 crew members of

the oil and chemical tanker MT Turmoil a total of $255,000 over 2013-15

□ Transpetrol was unaware of contraventions. They were

due to a complex application of maritime law, industrial instruments and temporary shipping licenses issued to sub-charterers Caltex and BP .

□ Subsequently repaid the workers and fully cooperated

with the FWO investigation

□ FWO sought $87,975 penalty (approx. 60% of

maximum)

□ Federal Court rejected penalties given cooperation.

Wage Theft – What if I have a problem

■Cannot settle with a deed (unless resolving a genuine controversy)

□Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 □Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty

Ltd [2003] FCAFC 18 at [17]

■Even if the FWO commences proceedings, the individual can commence

separate proceedings

□Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28

The Queensland Public Sector regime

Legislative Framework

■Crime and Corruption Act 2001 (Qld)

□Crime and Corruption Commission □Corrupt conduct (s 15). Must be:

– a criminal offence; or – a disciplinary breach providing reasonable grounds for terminating the

person’s services, if the person is or were the holder of an appointment

■Criminal Code Act 1899 (Qld) ■Industrial Relations Act 2016 (Qld)

Misconduct: what are we talking about?

■Inappropriate conduct – section 187(1) Public Service Act

□(c) been absent from duty without approved leave and without reasonable

excuse

□(d) contravened a lawful and reasonable direction □(e) used a substance that has adversely affected the competent performance of

employee’s duties

□(ea) contravened the requirement to disclose prior ‘serious disciplinary action’

• r gives false or misleading information

□(f) contravened

– the Public Service Act e.g. section 26 – Code of Conduct – Department’s Standard of Practice

Misconduct: what are we talking about?

■Misconduct – section 187(1)(b) and 187(4) Public Service Act

□inappropriate or improper conduct in an official capacity □inappropriate or improper conduct in a private capacity that reflects seriously

and adversely on the public service

■Examples

□criminal offence □corrupt conduct under section 15 Crime and Corruption Act 2001

– fraud, theft, forgery, assault – dishonesty, misuse of information – gaining a benefit for themselves or someone else

Misconduct: case examples ■ Lamb v Redland City Council [2014] QIRC 041 ■ Donnelly v State of Queensland (Department of Transport and Main Roads) [2015]

QIRC 014

■ Cronin v Department of Agriculture, Fishers and Farming [2015] QIRC 178

Other Regulators in the Workplace

Other criminal regulators in the workplace - ASIC

■ The Australian Securities and Investments Commission – offences against the Corporations Act 2001

(Cth)

■ Section 184

(1) A director or other officer of a corporation commits an offence if they: (a) are reckless; or (b) are intentionally dishonest; and fail to exercise their powers and discharge their duties: (c) in good faith in the best interests of the corporation; or (d) for a proper purpose. (2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. (3) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.

Other criminal regulators in the workplace ■ Fair Work Ombudsman - referral mechanisms for criminal activity to the

Australian Federal Police (AFP) e.g. human trafficking and corrupting benefits

■ Department of Home Affairs e.g. rights to work

□ Migration Act 1959 (Cth) Div 12, Subdiv C ‘Offences and civil penalties in relation to work

by non-citizens’

– Employer must take ‘reasonable steps’ to verify a worker that is a ‘lawful non-citizen’ is

not in breach of conditions

– Criminal and civil penalties (of up to 2 years imprisonment, and 5 years if ‘reckless’ and

‘exploitation’)

■ Registered Organisations Committee (ROC)

□ Offences under the Fair Work (Registered Organisations) Act 2009 (Cth), for example:

– union ballot issues; – reprisal action for whistleblowing.

Other criminal regulators in the workplace ■ Comcare / WorkSafe Qld / DNRME / AMSA / NHVR / ONRSR / CASA - safety ■ Australian Federal Police – fraud and bribery (including bribery of foreign public

• fficials)

■ Australian Tax Office – tax evasion, fraud, illegal phoenix activity ■ ACCC – cartel conduct can be criminal

Industrial Manslaughter

Industrial Manslaughter I ■ Boland Review - Recommendation 23b: Industrial manslaughter ■ Amend the model WHS Act to provide for a new offence of industrial

• manslaughter. The offence should provide for gross negligence causing death

and include the following:

□ The offence can be committed by a PCBU and an officer as defined under s 4 of the

model WHS Act

□ The conduct engaged in on behalf of a body corporate is taken to be conduct engaged in

by the body corporate

□ A body corporate’s conduct includes the conduct of the body corporate when viewed as a

whole by aggregating the conduct of its employees, agents or officers

□ The offence covers the death of an individual to whom a duty is owed

■ Safe Work Australia should work with legal experts to draft the offence and

include consideration of recommendations to increase penalty levels (Recommendation 22) and develop sentencing guidelines (Recommendation 25)

Industrial Manslaughter II

Jurisdiction Industrial Manslaughter Provision Commonwealth Not in model WHS Act. Supported by Parliamentary Committee. ACT Part 2A inserted into Crimes Act 1900 in 2004 – No prosecutions. Have used mainstream manslaughter. NSW Not in model WHS Act. Labor has said would introduce if elected – up to 25 years jail. Queensland New section 34C/D inserted into WHS Act in 2017. Penalties of up to $10,000,000 or 20 years in jail. SA Not in model WHS Act. (But, trucking company manager rec’d 12 years jail for failing to fix brakes that resulted in driver’s death under existing laws.) NT / TAS Not in model WHS Act. No express intention. Victoria Not in current OHS Act. Labor re-elected on platform to introduce– up to 20 yrs jail. WA Not in current OHS Act. Current Labor Government policy to introduce in first term ending March 2021. Model Law Review Recommended industrial manslaughter offence based on ‘gross negligence causing death’ by PCBU or officer.

Increasing WHS Penalties

■Maria Jackson (Vic)

□6 months jail

■Gary Lavin (Qld)

□12 months jail, 4 months non-parole □Set aside on appeal

■William McDonald (Qld)

□18 months jail, 6 months non-parole

Disclaimer: This presentation covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. This presentation is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this presentation.

T +61 E T +61 E

Scarlet Reid Partner

416 147 544 sreid@mccullough.com.au

Nathan Roberts Senior Associate

402 773 008 nroberts@mccullough.com.au

Contacts