Potential expansion of Comcare scheme & WHS Bill for WA

If passed, the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (Cth) will make it easier for employers who operate in two or more States or Territories to join the Comcare scheme, by replacing the existing competition test with a “national employer” test.

Importantly, it will also extend the coverage of the Work Health and Safety Act 2011 to all self-insured corporations which will then avoid the application of numerous, and often more onerous, State and Territory work health and safety laws.

At this stage, the passing of the Bill is uncertain.

In Western Australia, the Work Health and Safety Bill 2014 (WA), or the “Green Bill”, based on the national legislation developed  by SafeWork Australia, closed for public comment on 30 January 2015. The Green Bill incorporates most of the core model WHS provisions, but also contains some specific provisions tailored to the State’s particular industry and business operations, such as the exclusion of volunteers in the definition of “worker”.

Like the Safety, Rehabilitation and Compensation Legislation Amendment Bill, it is unclear as yet whether the Green Bill will become law.

Federal Court decides deliberate dishonesty enough for instant dismissal

The Full Federal Court has ruled that the deliberate dishonesty of an employee resulted in the destruction of the relationship between him and his employer and justified summary dismissal.

Mr Sautner was Director, Commercial Business of Melbourne Stadiums Ltd (MSL). On 3 June 2013, MSL had advised Mr Sautner that his employment contract was terminated immediately and that it intended to pay him six months’ salary in lieu of notice and a redundancy payment. MSL provided a deed of release, however this was never signed. No payment was made.

Subsequently, MSL discovered that Mr Sautner had been involved  in multiple incidents where he had used his position to obtain goods and services for his personal benefit, including flight upgrades, tickets to concerts and flowers for his girlfriend. Additionally, he had made disparaging, disrespectful and derogatory comments about the CEO of MSL to a fellow employee and a senior employee of the stadium’s main sponsor. MSL then made the decision to terminate Mr Sautner’s employment contract immediately on the basis of serious misconduct.

The Full Court held that, had Mr Sautner’s employment been lawfully terminated on 3 June 2013, MSL would not have been able to change its mind and later exercise its right to summarily dismiss him. However, as no payment in lieu of notice had been made as permitted by the contract, the purported termination on 3 June 2013 was ineffective. The Court held that the employment contract was still in operation and therefore MSL was able to dismiss Mr Sautner summarily.

The Full Court agreed that as the misconduct was deliberate and involved elements of dishonesty, it constituted serious misconduct which justified summary dismissal.

The case deals with a number of interesting employment law issues but the key take-out is that, if a contract permits a payment in lieu of notice on termination, the termination does not become effective until the payment is made.

SA Penalty rate reductions

The recent “template” agreement struck between the South Australian Shop Distributive and Allied Employees’ Association (SDA) and Business SA has been touted as the first step to abolish penalty rates - but at what cost?

Analysis by The Australian Financial Review1 revealed that whilst permanent employees working before 6 pm Saturdays or 5 pm Sundays will have penalty rates reduced, “these workers (would be) compensated through an upfront 8 per cent increase in their base pay rate and guaranteed annual 3 per cent pay rises over the life of the agreement.”

SDA National Secretary, Greg Dwyer, was under no illusions, claiming “workers would get pay increases totalling 14.5 per cent by July next year.”

Master Grocers Australia and Liquor Retailers Australia Chief Executive, Jos de Bruin, also gave a sobering review of the agreement, commenting that they didn’t see the template providing any advantages to their members, and that it would end up costing their members and retailers more if they used it.

Going forward, the measure of the agreement’s impact will be whether it remains just a template or it becomes the platform upon which the SDA and Business SA do business in the future.

Submissions made to Fair Work Commission Workplace Relations Inquiry

Business organisations and unions have made submissions to the Productivity Commission’s inquiry into workplace relations, with a draft report due to be released in June/July 2015.

Commenting on the Inquiry, BHP Billiton’s President of Coal, Mike Henry, said new limits should be put on unions taking industrial action “to restore balance to the workplace relations system.”

In Mr Henry’s view, the current industrial action provisions undermine Australia’s competitiveness by exacerbating the impact of industrial conflict and change is imperative in order to ensure that the resources sector is competitive.

At the outset, the Australian Services Union submitted that the Productivity Commission should have the review of minimum wages removed from its terms of reference. The review should remain with an Expert Panel of the Fair Work Commission, as should the determination of penalty rates.

The Union sought changes to the unfair dismissal procedures and the “sham contracting”’ clause definition of “a genuine independent contracting arrangement”, as well as the transfer of business rules test. Matters of family friendly work arrangements, domestic and family violence and equal remuneration for women were also raised.