As the Christmas festivities begin, the year 2012 comes to a close. It has been an interesting year in labour and employment, with laws being clarified in some areas but many questions for employers remaining in others.


Bullying in the workplace has been a much talked-about issue in 2012 and the federal government and state bodies have made progress in addressing it. In November, we reported that the federal opposition had criticised the heavy burden the draft Preventing and Responding to Bullying Code imposed on employers. Despite that, a parliamentary committee has since recommended that the federal government encourage the Code to be adopted in all jurisdictions. The committee also recommended that the federal government implement workplace health and safety regulations that impose minimum requirements for managing the risk of workplace bullying.


In occupational health and safety news, the federal government has continued to promote harmonised legislation across the land. So far, eight jurisdictions have signed up, the Victorian government has declined andWestern Australia’s position remains uncertain because, despite a government announcement in May that a bill would be released to implement the model Work Health and Safety Act (subject to some reservations), no such bill has been seen.

Adverse action

On the employment front, employers everywhere breathed a sigh of relief in September when the High Court delivered a landmark decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 3. The Full Federal Court’s onerous approach to determining whether a decision maker has taken adverse action because of a ‘prohibited reason’ was rejected and the High Court unanimously ruled that the test to be applied was whether, on the balance of probabilities, a prohibited reason was a ‘substantial or operative factor’ for the adverse action to be taken.

Social media

Social media in the workplace has been a subject impossible for employers to ignore in 2012. Fair Work Australia (FWA) upheld a spate of unfair dismissal claims where employees had posted derogatory or offensive remarks on Facebook about their employers. In October, the Full Bench of FWA held that the posting of derogatory or offensive statements about managers or other employees on Facebook ‘might’ provide a valid reason for termination, however, in each case the enquiry will relate to the ‘ nature of the comments and statements made and the width of their publication’. This approach highlighted the need for all employers to implement comprehensive social media policies clearly outlining the employer’s expectations, directions on what is and is not appropriate use, and the consequences of a breach.

Drug testing

Another area of focus in 2012 has been the most appropriate method of drug testing in the workplace, with FWA ruling that saliva testing is the most reliable in some cases and urine testing in others. Given this uncertainty, we reported in August that fact-specific inquiries into the most appropriate method must be conducted in each case.

Mental health claims

2012 has seen a continued rise in mental health claims in workplaces across Australia with many employees seeking workers’ compensation for stress or other psychological injuries arising out of administrative action taken against them by employers. The employers who have been able to successfully defend such claims are those who have been able to demonstrate that they had acted reasonably by having established processes in place which they followed fairly.