What’s heating up in workplace relations and safety?

Superannuation  guarantee

From 1 July 2014, employers are required to contribute 9.5% of an employee’s ordinary time earnings in superannuation.

The Minerals Resource Rent Tax   Repeal and Other Measures Act 2014 amends the superannuation guarantee charge percentages, so that the superannuation guarantee will remain   at 9.5% until 30 June 2021, before increasing it by 0.5% annually until it reaches 12% on 1 July 2025.  This is seven years later than under the current legislation, which was introduced by the Labour government.

Workplace relations bills before Parliament

The Fair Work Amendment Bill 2014 (Cth) was introduced into the Senate   on 27 August 2014.  If passed, the Bill would amend the Fair Work Act 2009 (Cth) (FW Act) to allow the Fair Work Commission (Commission) to dismiss an unfair dismissal application without holding a hearing or conference where the application has no reasonable prospects of success, or where the employee fails to attend a hearing, fails to comply with directions or fails to discontinue his or her application where the application has been settled.

Among other proposed changes, the Bill extends good faith bargaining to  the negotiation of greenfields enterprise agreements.  The Bill also removes a union’s right to hold discussions in the employer’s lunch room.  Instead, a union must comply with a reasonable request by an employer to conduct an interview or hold discussions in a particular room.

The Building and Construction Industry (Improving Productivity) Bill 2013 is also before the Senate.  The Bill prohibits certain unlawful industrial action and re-establishes the Australian Building and Construction Commission with its former powers, (including enforcement powers and powers to order penalties in relation to unlawful industrial action) and increased powers in respect to picketing.

Finally, the Fair Work (Registered Organisations) Bill 2014 is also before the Senate.  If passed, it would amend the FW Act and the Fair Work (Registered Organisations) Act 2009 to establish the Registered Organisations Commission and provide it with investigation powers to monitor and regulate union activities.

No extras claims clauses in enterprise agreements

The Full Court of the Federal Court has overturned Justice Bromberg’s decision that the No Extra Claims Clause in Toyota’s enterprise agreement operated to prevent Toyota from asking its employees whether they supported proposed changes to the enterprise agreement.  The Full Federal Court found that the clause operated to prevent Toyota and its employees from making further claims to change the enterprise agreement during the life of the enterprise agreement. On this basis, it found the clause was invalid because it was inconsistent with the variations provisions in the FW Act.

Where there is a no extra claims clause in an enterprise agreement, employers should be aware that it may be invalid and is unlikely to operate to prevent the parties to an enterprise agreement from varying its terms prior to its nominal expiry date.

Terminating or suspending industrial action

Under section 424 of the FW Act, the Commission must suspend or terminate protected industrial action for a proposed enterprise agreement if it is satisfied that the protected industrial action would in any way threaten to endanger the life, personal safety or health, or welfare of all or some of Australia’s population, or where it would cause significant damage to the Australian economy or an important part of it.

From 1 July 2014, the Western Australian Workplace Relations Minister and an organisation or other person directly affected by industrial action (other than an employee who will be covered by the enterprise agreement) will be able to apply to the Commission to make an order under section 424 of the FW Act.

High Court rejects implied duty of trust and confidence

On 10 September 2014, the High Court handed down its decision in Commonwealth Bank of Australia v Barker. The central question on appeal was whether under the common law of Australia there is a term of mutual trust and confidence to be implied by law in all employment contracts. All five High Court Justices who heard the appeal rejected the existence of such a term. We discuss this further in our article on page 6.

Distributing porn not unfair dismissal

The decision of the Full Bench of the Commission that the dismissal of two (of three) employees who distributed pornographic images through their work email was unfair has been upheld by the Full Court of the Federal Court.

The Full Bench of the Commission found that although the distribution of the pornographic images constituted misconduct, the dismissal was unfair when taking into account Australia Post’s culture of tolerance and failure to enforce its own policies, the employees’ lengths of service, and the employees’ unblemished records.  This decision highlights the importance of having  clear email and internet policies and adopting a consistent approach to the enforcement of all workplace policies. We look at this decision and its implications more fully on page 12.

Timely reminder for checking your machine guarding

The County Court in Melbourne recently fined Dotmar EPP Pty Ltd $375,000 for its failure to install adequate guarding, which contributed to the crushing of employees’ fingers in two separate incidents.

The Court held that the safety interlock had been bypassed at the plastics manufacturer for over five years and permitted the machine to be operated without adequate guarding in place. This case represents the 17th prosecution in Victoria this year for guarding-related breaches of OHS laws. Plant risk assessments that work through the hierarchy of risk controls, including isolation using guarding, represent the key method your company can adopt to minimise plant risks and avoid prosecution.

Western Australia announces its refined version of the “model” Work Health and Safety laws

WA’s Minister for Commerce, Michal Mischin, recently announced that his government will soon introduce a Work Health and Safety Bill for consultation that represents WA’s response to the national harmonisation project. The Minister has indicated that the version will be tailored to WA’s particular needs.

He criticised the harmonisation process for becoming more about consistency across jurisdictions rather than rationalisation or reform, and does not support entering into uniform schemes for their own sake. Once the Bill is released, stakeholders will have a three-month period in which to submit comment on WA’s version of the model laws.

FWC closed loophole in Fair Work Act

On 2 October a Full Bench of the FWC handed down its decision in the Ioannou v Northern Belting Services Case confirming that an unfair dismissal application cannot be converted into a general protections application. The Full Bench has closed off a loophole in the Fair Work Act that would have allowed an ex-employee  to pursue an unfair dismissal claim  and then convert it into a general protections claim part way through  the proceedings to bypass the 21 day deadline and the prescribed fee for filing each claim.