2014 has been rife with changes and developments to the workplace relations landscape. It would be an

almost impossible task to comprehensively list all of

the year's relevant developments. However, we have chosen some of them to highlight here as we say farewell to 2014 and look ahead to all that 2015

may bring.

Bullying

Possibly the most highly anticipated of new issues to hit the landscape this year was the establishment of the Fair Work Commission’s new bullying jurisdiction.

Interestingly, despite the initial “shock, horror” thoughts and responses from employers and employer groups and even the Commission itself, the introduction of the new provisions has essentially resulted in an anti-climax of sorts.

The recent Annual Report issued by the Fair Work Commission (Commission) on 15 October 2014 shows that the once anticipated ‘tsunami’ of complaints was an over-reaction, with just 270

anti-bullying conferences and hearings having taken place nationwide in the period January to June 2014. Of these matters, only a small minority have resulted in formal decisions (21 of them, in fact) and only one of those decisions resulted in a finding that bullying had occurred and may reoccur. The remaining 20 such applications were dismissed.

The Commission’s Annual Report

More broadly, the Commission’s Annual Report indicates an increase in hearings generally, although the increases were, for the most part, relatively insignificant. The latest statistics as to unfair dismissal cases is that 79% of such applications settled at conciliation.

A decline in the use of enterprise agreements by employers was indicated (for the second consecutive year) and there has also been a reduction in industrial action.

Pay rates and other monetary changes

From 1 July 2014 minimum rates of pay in Modern Awards increased by 3% following the 2014 annual wage review. A range of expense related allowances under Modern Awards were also increased in line with percentage increases to the Consumer Price Index. A new national minimum wage was also set. That rate, for a full time adult, is now $640.90 per week or $16.87 per hour.

Also on 1 July 2014, as we have written previously, the transitional provisions under Modern Awards ceased to apply and the full pay rates, casual loadings, shift allowances and penalties in Modern Awards began to apply (with minor exceptions).

Another change from 1 July 2014 was the annual increase to the high income threshold to $133,000.

Significantly, from 1 July 2014 employers became required to contribute 9.5% of an employee's ordinary time earnings into superannuation.

also in this issue

`       Did you know - compulsory retirement at 65 is unlawful

`       High Court has final word on real reason for adverse action

The Budget

The Budget also introduced some key changes for employers to note, including the change to superannuation guarantee contributions which will

no longer increase to 12% over the next five years, instead remaining fixed for three years, rising to 10% from 1 July 2018 and then increasing by 0.5% each year until reaching 12%.

Trade Union Royal Commission 2014 has also seen the Honourable Dyson Heydon AC QC appointed to lead a Royal Commission

to enquire into the alleged financial irregularities

associated with the affairs of trade unions. The Royal Commission began the hearing process on 9 April 2014 and heard evidence from 120 witnesses.

An interim report to the Governor General is expected to be delivered on 15 December 2014. As to the ultimate conclusions and recommendations, that will be something which 2015 will deliver after the Royal Commission's extended term for hearing evidence.

High court decisions

Significantly in 2014 we have had the High Court deliver decisions in two separate matters relevant to workplace relations.

As we have written previously, in the much anticipated and highly publicised decision of the High Court in Commonwealth Bank of Australia v Barker 2014 HCA 32 (delivered on 10 September 2014)

the majority of the High Court held that there was no common law duty of mutual trust and confidence applicable to an employment contract.

The other significant decision of the High Court this year, detailed further in this edition of our Workplace Insights, is a decision in the CFMEU ‘scab’ case (CFMEU v BHP Coal Pty Ltd [2014] HCA 41), a decision essentially reaffirming the High Court's earlier decision in Barclay (Board of

Bendigo Regional Institute of Technical and Further Education v Barclay and Anor (2012) 248 CLR 500) and upholding the notion that it is the subjective view of the decision maker that really matters in adverse action cases.

Enterprise Agreements

We have also seen some developments in the area of enterprise agreements, with the Commission:

reinforcing its approach that strict compliance

with the pre-approval steps is required for an agreement to be approved;

settling, perhaps once and for all, the issue of

whether or not annual leave can be incorporated into an hourly rate of pay in an enterprise agreement (the answer from the Full Bench of the Commission has been an emphatic “no”); and

confirming that a "no further claims" clause in

an enterprise agreement does not prevent an employer from using the provisions of the Fair Work Act 2009 (Cth) to vary an enterprise agreement.

Sexual harassment

2014 has also seen a perpetuation of the trend in increased sexual harassment claim damages. The case of Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 has seen an employee

complainant awarded $130,000 in general damages by her employer who was found to have been vicariously liable for the actions of another employee who, it was determined, had sexually harassed the complainant in the workplace over a seven month period.

Age discrimination

Age discrimination has also experienced some developments. In April 2014 the Fair Work Ombudsman successfully prosecuted its first age discrimination matter (Fair Work Ombudsman v Theravanish Investments Pty Ltd and Others [2014] FCCA (2 April 2014)).

That case is outlined later on in this edition of our Workplace Insights. With the revelation that the retirement age may increase to 70 by 2035, we expect that in 2015 and beyond we may see an increased focus on age discrimination in the

workplace, perhaps by the Fair Work Ombudsman in particular.

Victoria-specific developments In Victoria we have this year also seen developments in:

police powers to "move on" disruptive

union pickets;

occupational health and safety regulations (with amendments commencing, largely to remove certain administrative requirements and with the main amendments being around construction, plant, high risk work licences, hazardous substances, carcinogenetic functions and chemicals, lead, registered plant and design and mines); “Worksafe Victoria” rebranding and returning

to its legal name, the Victorian WorkCover Authority; and

action around machinery guarding (the County

Court in Melbourne has recently fined an employer $375,000 for its failure to install adequate machinery guarding, which contributed to the crushing of employees’ hands in two separate incidents). Incidentally, that case represents the 17th prosecution in Victoria

in 2014 for guarding related breaches of occupational health and safety laws.

Transport industry

The transport industry has experienced significant change this year. The first Road Safety Remuneration Order handed down by the Road

Safety and Remuneration Tribunal took effect on 1 May 2014. Transport providers have consequently spent significant amounts of time reviewing their arrangements and taking the necessary steps to ensure compliance.

In addition, the Heavy Vehicle National Law took effect in most States (Victoria, Queensland, New South Wales, South Australia and Tasmania) on 10 February 2014, establishing a national system through uniform laws administered by a single

national regulator - in an effort to assist the transport industry to comply with their obligations across Australia by reducing inconsistencies and duplication across the States and Territories.

Conclusion

That completes our “round up” of 2014. Again, whilst not all inclusive, it can be seen that much has occurred in the workplace relations space this year. Hopefully you will all be enjoying a holiday over the Christmas and January period and we hope that your break is both restful and safe. But, if you are not lucky enough to be taking a break, fear not, for  a change is (proverbially!) as good as a holiday, and looking forward to 2015 it would seem that there are some further changes on the horizon.

To that end, there are currently numerous relevant Bills before the Senate.

The Fair Work Amendment Bill, if passed, will represent the first significant amendments made by the Federal Government since its election in September 2013 and will impact issues such as changes to the making of greenfields agreements, right of entry provisions, annual leave loading in the context of termination and transfer of business. See our March 2014 issue of Workplace Insights (Volume 2 Number 1) for more information about these proposed amendments.

The Fair Work Amendment (Bargaining Processes) Bill (introduced to Parliament on 27 November 2014) will, if passed, make

improvements to the processes associated with the bargaining of enterprise agreements with an overall focus upon the delivery of productivity improvements to business.

The Building and Construction Industry (Improving Productivity) Bill is also before the Senate. That Bill, if passed, will prohibit certain unlawful industrial action and re-establish the Australian Building and Construction Commission.

The Fair Work (Registered Organisations) Bill, also presently before the Senate, will (if passed) establish a new body to be called the Registered Organisations Commission and provide that body with investigation powers to monitor and regulate union activities.

Did you know - compulsory retirement at 65 is unlawful The Fair Work Ombudsman has successfully

prosecuted a Thai restaurant business on the Gold

Coast for terminating an employee upon attaining the age of 65 years of age.

The employee had been working for about 15 years and brought complaints about underpayment of wages which were disputed by the business.

As the issues were unresolved the employee sought a redundancy and severance payment. The employer refused and stated that it was company policy not to employ any staff that attain the retirement age of 65 years of age.

The Federal Circuit Court held that this was a breach of the General Protections provisions under Part

3.1 of the Fair Work Act 2009 (Cth) which prohibit adverse action based on age. The Federal Circuit Court ordered the company to pay the employee

$10,000 for loss suffered plus $20,790 in fines. The company's joint directors were fined a further

$4,180 each.

This was despite the Court's acknowledgment that there is a general misunderstanding within the community about retirement and the retirement age, and the reliance by the directors upon advice provided by their long-standing trusted accountant that it was lawful to establish a compulsory retirement age of 65 years of age. The Court held that the accountant had failed his clients and they must pay the price.

Employers should be aware that retirement ages are not compulsory and that workers may elect to work beyond 65 as a legally protected right. It may be possible to discriminate against a person based

on their age if the employee cannot fulfil the inherent requirements of the role but this requires considered legal advice and should be approached with caution.

Case note:  Fair Work Ombudsman v Theravanish Investments Pty Ltd [2014] FCCA 1170 (2 April 2014)

High Court has final word on real reason for adverse action The majority of the High Court has ruled in favour

of BHP Coal and held that the employer did not

take adverse action for a prohibited reason when it dismissed an employee union delegate over allegedly intimidating other workers by displaying a sign supplied by the CFMEU at a union protest which read "No Principles SCABS No Guts".

The Full Federal Court had found in favour of BHP Coal and reversed an earlier Federal Court ruling in favour of the CFMEU and the union delegate who had been terminated.

The CFMEU argued that the termination was due to the employee/union delegate's participation in lawful industrial activity - which is protected under the Fair Work Act 2009 (Cth).

The General Manager of BHP contended that the reasons for the termination were the content of the union delegate's communications with his

fellow employees, the way in which he made those communications and what that had conveyed about him as an employee.

The High Court minority judgments held that it was impossible to divorce the lawful industrial activity from the circumstances in which it was used. Accordingly, it was possible to contradict BHP Coal's General Manager's assertion that he did not take adverse action for any prohibited reason or for reasons including the prohibited reason.

The majority of the High Court disagreed and in so doing left very little scope to second guess the reasons provided by a decision-maker as to why adverse action had been taken against an

employee otherwise in contravention of the General Protections provisions in Part 3.1 of the Fair Work Act 2009 (Cth).

The decision is good news for employers and human resources managers giving evidence as to their reasons for making a decision adversely affecting an employee. This is because that once the evidence

of the reasoning of a decision-maker is accepted with no qualification, that should be the end of the matter even if the circumstances objectively lead to an inference being drawn contrary to that evidence.

This is all the more important for employers and human resources managers who are subject to a reverse onus of proof in defending adverse action claims.

We recommend that employers seek legal advice prior to terminating employment in circumstances which may give rise to a claim under the General Protections provisions of Part 3.1 of the Fair Work Act 2009 (Cth).