Summary

There is always a lot happening in the workplace relations and safety sphere, and 2015 looks likely to be no exception.

In this eBulletin, we look at what are likely to be the key workplace relations and safety issues and developments in 2015, and what they mean for employers.

Productivity Commission review of the workplace relations framework

The terms of reference for the Productivity Commission's inquiry into Australia's workplace relations framework were released on 19 December 2014.

The review will examine the current Fair Work regime's impact on issues including:

  • pay and conditions for employees;
  • employers' ability to flexibly manage and engage with employees and to respond to changing economic conditions;
  • barriers to bargaining between employers and others;
  • red tape and the compliance burden faced by employers;
  • industrial conflict and days lost to industrial action; and
  • the appropriate scope for independent contracting.

The Productivity Commission recently released five issues papers to assist individuals and organisations to prepare submissions to the inquiry.

The review offers employers a valuable opportunity to express what is and isn't working under the current regime. Any employer submissions are due by Friday, 13 March 2015. Employers are also able to register their interest with the Productivity Commission here.

Continued modern award review 

In 2015, the Fair Work Commission will continue its four-yearly review of modern awards.

Interested parties can make a submission or attend the associated hearings and conferences. A full timetable of the review can be found at the Fair Work Commission's website.

The current review is set to be completed in mid-2015.

As part of the modern award review, a specially constituted Full Bench of the Fair Work Commission will separately consider proposals to alter penalty rates in a number of modern awards under review. The proposals affect significant awards, such as the Fast Food Industry Award 2010, the General Retail Industry Award 2010, and the Hospital Industry (General) Award 2010. Evidence is scheduled to be heard from July to late September 2015, followed by submissions and final hearings in December 2015.

First "officer" prosecution under harmonised WHS laws

The first prosecution of an officer under the harmonised work health and safety laws will continue in 2015 in the ACT.

The proceedings are against a former officer of Kenoss Contractors Pty Ltd (in liquidation), following a fatality in 2012. It has been reported that an employee of Kenoss, Michael Booth, was electrocuted when the tipping trailer of the truck he was driving touched a power line.

The officer is charged with offences under the Work Health and Safety Act 2011 (ACT). The Act, among other things, requires officers to exercise due diligence to ensure their company complies with its work health and safety obligations.

This case should offer useful guidance to employers regarding who will be considered an officer under the work health and safety laws, as well as how alleged breaches of officers' due diligence obligations will be treated by the courts.

The matter is listed for hearing in late February 2015. We will keep you updated regarding any significant developments.

The Fair Work Amendment Bill 2014 and Fair Work Amendment (Bargaining Processes) Bill 2014

The Fair Work Amendment Bill 2014 (Cth) (Amendment Bill) will continue to be considered in the Senate in 2015. The Amendment Bill responds to a number of measures recommended in the Fair Work Review Panel's June 2012 review of the operation of the Fair Work Act 2009 (Cth) (FW Act). The Amendment Bill seeks to amend the FW Act to, among other things:

  • repeal previous changes, which expanded the right of union representatives to enter a workplace to hold discussion with employees;
  • clarify that annual leave loading is payable on the termination of employment only when expressly required under a modern award, agreement or employment contract;
  • change the transfer of business rules so that employees who seek employment with a new business owner at their own initiative will be covered by their new employer's terms and conditions of employment, not their old employer's; and
  • provide that good faith bargaining requirements apply to the negotiation of single-enterprise greenfields agreements.

On 4 December 2014, the Senate referred the Fair Work Amendment (Bargaining Processes) Bill 2014 (Cth) (Bargaining Processes Bill) to the Senate Education and Employment Legislation Committee for inquiry and report.

The Bargaining Processes Bill seeks to amend the FW Act to:

  • provide for an additional approval requirement for enterprise agreements (excluding greenfields agreements);
  • require the Fair Work Commission to consider a range of non-exhaustive factors when assessing whether an applicant for a protected action ballot order is genuinely trying to reach an agreement; and
  • prohibit the Commission from making a protected action ballot order when it is satisfied that the claims of an applicant are manifestly excessive, or would have a significant adverse impact on workplace productivity.

Submissions to the Senate Education and Employment Legislation Committee on the Bargaining Process Bill closed on 23 January 2015, and the Committee is scheduled to release its report on 25 March 2015.

Queensland and Federal elections

Queensland's state election is set to take place on 31 January 2015. The incumbent Liberal National Party has reinforced its commitment to harmonising workplace health and safety laws across Australia. Labor has said that, if elected, it will restore conditions and rights stripped away as a result of the Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Act 2013 (QLD) and has promised a comprehensive review of the state's industrial laws and tribunals.

With the next Federal election to be held between August 2016 and January 2017, we are likely to see an increase in campaigning at the Federal level during 2015, as both major parties try to position themselves ahead of the next election.

Industrial action and the tort of intimidation ­ is it part of Australian law?

This year, the High Court of Australia will consider a special leave application by the CFMEU to challenge a Victorian Supreme Court ruling that the tort of intimidation forms part of Australia's common law. The tort of intimidation consists of three elements:

  • the defendant makes a demand coupled with a threat;
  • the threat is to commit an unlawful act; and
  • the person threatened complies with the demand, and in doing so causes loss to the plaintiff.

Boral Resources (Vic) Pty Ltd and various associated entities sought damages from the CFMEU on the basis that the CFMEU caused them damage by, among other things, imposing an industrial ban on concrete and other building products which Boral supplies to Victorian construction projects. The bans initially formed part of the CFMEU's blockade of Grocon's Myer Emporium project in 2012.

Boral argued that the CFMEU committed the tort of intimidation by demanding that Victorian construction principals and subcontractors not use Boral products in certain Victorian construction projects. That demand was alleged to have been accompanied by a threat that the CFMEU would direct workers employed at the construction project sites to refuse to work on those sites using Boral products.

A full bench of the Victorian Supreme Court found that the tort did form part of Australian law.1 The High Court will now consider whether the CFMEU should be granted special leave to appeal this decision.