Employment and Safety: Reminder of upcoming December 2023 changes and other developments

The latest issues, decisions and proposed changes impacting business and workplace risk 10 min read

Reminder of upcoming December 2023 changes

By Veronica Siow and Eden Sweeney

Employers are reminded that there are a number of upcoming changes to the law coming into effect from December 2023 as a result of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) and the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth). We have previously covered these changes in depth here and here. At a high level the changes are:

• prohibitions on fixed/maximum term contracts – coming into effect on 6 December 2023;
• the Australian Human Rights Commission will have expanded enforcement powers to investigate an employer's compliance with the positive duty in relation to sexual harassment and discrimination – coming into effect on 12 December 2023; and
• certain enterprise agreements made before 2010 that are still in operation will automatically terminate unless an application is made to the Fair Work Commission – coming into effect 7 December 2023.

Changes to unpaid parental leave, deductions and other worker entitlements

By Andrew Wydmanski and Emerald Cornwall-Jones 

The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) (the Act) passed through both houses of Federal parliament on 22 June 2023, introducing changes to matters such as unpaid parental leave, superannuation, authorised deductions and protections for migrant workers.

Key takeaways

Employers should review their policies and HR / payroll systems to ensure they implement the key reforms. For most employers, changes may be required in relation to how they manage unpaid parental leave and authorised deductions. Employers should also be aware of the legal protections that will apply under the Fair Work Act for migrant workers, and in respect of superannuation.

Changes taking effect from 30 December 2023 or 1 January 2024

In addition to the changes that took effect on 1 July 2023, the following changes will take effect in December 2023 and January 2024.

Employee authorised deductions

From 30 December 2023, employees will be able to authorise their employer to make regular, recurring deductions from their pay for amounts that vary from time to time. The deductions must still principally be for the employee's benefit and cannot be for the direct or indirect benefit of the employer.

Superannuation

From 1 January 2024, the right to superannuation contributions will become one of the National Employment Standards (NES). This means unpaid (or underpaid) superannuation will also be enforceable directly under the Act and action could be taken for breaches by employees, unions or the Fair Work Ombudsman. The Australian Tax Office will however continue to be the primary regulator enforcing employer compliance under existing superannuation legislation.

Coal mining long service leave

From 1 January 2024 (or an earlier day fixed by proclamation), the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 (Cth) and the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) will be amended to ensure casual employees are treated no less favourably than permanent employees for the purpose of long service leave entitlements. Casual loadings will be included in 'eligible wages' for the purpose of long service leave calculations, and the determination of 'working hours' for casual employees will be updated for long service leave accruals.

Changes that took effect on 1 July 2023

As a reminder, the Act implemented the following changes which took effect on 1 July this year:

Unpaid parental leave

The Act has strengthened access to unpaid parental leave (UPL) and increased flexibility to encourage parents to share caring responsibilities. These changes include:

• increasing the amount of UPL an employee can take flexibly over 24 months from 30 days to 100 days;
• allowing flexible UPL to be taken before and after a period of continuous UPL is taken;
• allowing employees to take UPL any time in the 24 months following the birth or placement of their child;
• allowing employee couples to take more than 8 weeks of UPL at the same time;
• allowing pregnant employees to access flexible UPL in the six weeks prior to the expected birth of their child; and
• allowing parents to request an extension to their period of UPL, regardless of the amount of leave the other parent has taken.

Workplace determinations

Enterprise agreements cease to apply to employees when replaced by a workplace determination made by the Fair Work Commission.

Protection for migrant workers

Migrant workers are now entitled to the Fair Work Act's protections regardless of their immigration status. This includes in instances where a migrant worker has breached their visa conditions or does not have work rights in Australia.

Record damages awarded in sexual harassment claim

By Veronica Siow, Mikaela Heise and Courtney Ferguson

The Federal Court of Australia has awarded more than $268,000, in a record damages and compensation award for sexual harassment, to an employee who was slapped on the bottom and subjected to 'declarations of feelings' by her manager.

Key takeaways

• The decision illustrates the willingness of the court to award increasingly significant damages to employees and hold perpetrators (and employers alike) accountable for sexual harassment in the workplace.
• Employers should assess the effectiveness of their measures and controls to prevent sexual harassment, to ensure that they can demonstrate compliance with their positive duty to prevent such conduct. A central plank of the control measures would involve training the workforce to raise their awareness of conduct that constitutes sexual harassment.

Background

From January 2018 to April 2022, Fiona Taylor was employed by August and Pemberton Pty Ltd t/as Grew & Co (Grew & Co), a small fine jewellery business. Ms Taylor claimed that she was sexually harassed by the manager and sole director of Grew & Co, Simon Grew, over a period of 22 months.

Ms Taylor alleged, amongst other things, that Mr Grew:

• gave her various unsolicited gifts, including expensive jewellery, a gift card, $2,000 in cash and a massage;
• made a number of comments about her appearance, including that he liked 'petite curvy brunettes', Ms Taylor had a 'beautiful body' and 'bedroom eyes', Ms Taylor was 'perfect' and 'how amazing' Ms Taylor looked;
• slapped Ms Taylor on the bottom in July 2019; and
• declared his feelings for Ms Taylor in January 2020 and again in June 2020.

Mr Grew's revival of the subject of his feelings for Ms Taylor in June 2020 caused her significant distress. From that point, her working relationship with Mr Grew soured and she did not return to work after August 2020.

Through her lawyers, Ms Taylor sent a letter to Mr Grew complaining that he had sexually harassed her and eventually, lodged a complaint with the Australian Human Rights Commission (AHRC) before pursuing proceedings in the Federal Court.

The decision

Justice Katzmann found that Mr Grew (and therefore Grew & Co as the employer) sexually harassed Ms Taylor when Mr Grew:

• slapped her on the bottom;
• declared his feelings for her in January 2020, implicitly inviting Ms Taylor to enter into an intimate personal relationship with him when she did not solicit nor welcome such a relationship; and
• revived the subject of his feelings in June 2020 in spite of knowing that Ms Taylor was not interested in having a relationship with him.

Justice Katzmann also found that Mr Grew had victimised Ms Taylor after she complained of the sexual harassment through a letter he caused to be sent by his lawyers to Ms Taylor and in a response to the AHRC complaint, which (amongst other things) accused Ms Taylor of theft and threatened to report her to the police.

Taking into account that Ms Taylor was a young woman who had developed a chronic psychiatric disorder caused by the conduct, the court ultimately awarded her $180,000 in general damages, including $140,000 for sexual harassment and $40,000 for victimisation. A total of more than $268,000 in damages and compensation was awarded to Ms Taylor.

False reports and complaints – a valid reason for dismissal

By Mikaela Heise and Anya Plummer

The Fair Work Commission (FWC) has upheld the dismissal of an employee by Virgin Australia Airlines Pty Ltd (Virgin Australia), finding that the employee's false reports about other employees created psychosocial safety risks and ultimately provided a valid reason for dismissal.

Key takeaways

This decision indicates support for disciplinary action (including dismissal) against employees for making false reports against other employees that create risks to health and safety, including psychosocial safety.

Background

Mr Remawi was employed by Virgin Australia as a pit crew operator at Sydney Airport. From late 2020, Mr Remawi made increasingly frequent reports of alleged inappropriate conduct and behaviour by other employees towards him. Over time, Mr Remawi's managers became increasingly concerned that Mr Remawi was reporting incidents that were exaggerated or untrue.

After Mr Remawi caused a safety incident and attempted to blame the incident on another employee, Virgin Australia stood Mr Remawi down on full pay to investigate his conduct. Virgin Australia's investigation found, amongst other things, that most of the reports made by Mr Remawi against other employees were false, unjustifiable and not a result of genuine concerns.

Following a show cause process, Virgin Australia summarily dismissed Mr Remawi based on serious misconduct. Mr Remawi subsequently brought an unfair dismissal claim.

The decision

The FWC determined that Mr Remawi had not been unfairly dismissed and that there was a valid reason for his dismissal.

Relevantly, in reaching this conclusion, the FWC found that:

• Mr Remawi had made a number of false and exaggerated reports about other employees, behaviour that was inconsistent with his duty to Virgin Australia to act honestly and to treat others with dignity, courtesy and respect; and
• Mr Remawi's conduct was likely to undermine the trust of other employees and create risks to their psychosocial safety.

The FWC was not satisfied that the dismissal was harsh, or that it was otherwise unjust or unreasonable and ultimately found that the dismissal was a proportionate response to Mr Remawi's wilful and repeated conduct, which made his employment no longer tenable. The FWC was otherwise satisfied that the process leading up to the dismissal was fair.

Queensland decision highlights importance of ensuring management action is reasonable 

By Laura Miller and Emma Gillman

The Industrial Court of Queensland (ICQ) has upheld the Workers' Compensation Regulator's decision to accept an employee's (employee) claim for compensation after he suffered a psychological injury while working for the Queensland Police Service (QPS). The ICQ confirmed that an investigation into an allegation against the employee, which was found to be a major contributing factor to the injury, was not reasonable management action taken in a reasonable way.

Key takeaways

• Employers conducting workplace investigations should be careful to ensure that the evidence of those participating in the investigation is not misrepresented, particularly to respondents who are experiencing significant stress as a result of these processes.
• Employers must ensure that each step of an investigation or disciplinary process is carefully considered and executed, as management action as a whole may be deemed unreasonable if a significant aspect of it is unreasonable or is not reasonably taken.

Background

The employee emailed his supervisors setting out suspicions that an officer (officer) at his station was misusing either elicit or prescription drugs. The matter was referred to the Ethical Standards Command of the QPS where it was investigated and found to be unsubstantiated.

The officer then made a complaint against the employee, alleging that his email to his supervisors was malicious (allegation 1) and also alleging workplace bullying (allegation 2). The QPS investigated the allegations and at a disciplinary hearing, allegation 2 was found to be substantiated.

The employee applied for workers' compensation for a psychological injury that he claimed was caused by the investigation of allegation 1. The claim was accepted and that decision was then appealed by the QPS up to the ICQ.

Decision

A key issue in this matter was whether the investigation into allegation 1 was reasonable management action taken in a reasonable way. This is because the Workers' Compensation and Rehabilitation Act 2003 (Qld) excludes claims if the relevant injury is a psychiatric or psychological disorder arising out of, or in the course of, reasonable management action taken in a reasonable way.

In the primary decision, the Queensland Industrial Relations Commission (QIRC) found that it was reasonable to interview the employee in relation to allegation 1, but that the interview was not conducted in a reasonable way because the evidence of other QPS officers who were interviewed as part of the investigation was misrepresented to the employee. Specifically, the employee was told that no other witnesses corroborated his version of events This was not an accurate representation of those interviews.

The ICQ held on appeal that on the available evidence, the Queensland Industrial Relations Commission (QIRC) was entitled to find that the investigation was not reasonable management action conducted in a reasonable way due to the misrepresentations during the interview. The ICQ also confirmed that although reasonable management action does not have to be taken in a perfect way or be without blemishes, if a significant aspect of the management action is not reasonable and/or reasonably taken and that action was a significant contributor to an employee's suffering of a psychological injury in the course of their employment, that is sufficient for the employee's claim for compensation to succeed.

You can read the decision here.

Federal Court upholds class action claim for authorised overtime

By Tarsha Gavin, Jaime McKenzie, Kelly Roberts, Lara Duggan 

The Federal Court has found in favour of a group of junior doctors in Victoria who commenced class action proceedings against their employer claiming entitlements to unpaid overtime.

Key takeaways

• Employers who are aware of, but do nothing to control or prevent their employees from, working in excess of their ordinary hours may be taken to have impliedly authorised the overtime worked by their employees and be obligated to pay them overtime entitlements.
• This decision has implications for multiple other class action proceedings that are already before the courts given the overlap in the type of claims.
• In our update on class action risk, we noted that the rate of employment class action claims has continued to dwindle, coming off the highs of recent years. This decision might put some wind back in the sails of class action promoters active in the employment class action space, with increased risks to employers who have similar clauses in their enterprise agreements.

Background

A representative proceeding was brought by the Australian Salaried Medical Officers' Federation and a lead applicant, Dr Bolton, on behalf of a group of doctors in training (together, the Applicants) against their employer, Peninsula Health.

The trainee doctors were covered by Victorian public health sector enterprise agreements which relevantly provided for overtime to be payable to the doctors, the hours they worked in excess of those rostered must be 'authorised'.

The Applicants alleged that on a number of occasions the trainee doctors worked in excess of their rostered hours and accordingly were owed payments for overtime. They argued that 'authorised' is a term of wide import, which 'encompasses both an express or an implied sanction of the activity that has been authorised', and was not limited to circumstances where Peninsula Health had approved the overtime before it was worked. Instead, the overtime could be authorised by implication given Peninsula Health's awareness of the multiple tasks the doctors were required to complete and the fact they were working above their rostered hours to complete the tasks.

Peninsula Health contended that on the proper construction of the enterprise agreements there was no scope for authorisation to be implied, or alternatively that a finding of authorisation wasn't available on the facts.

Decision

The court found in favour of the Applicants relevantly deciding that:

• Peninsula Health was aware that junior doctors were working above their rostered hours, and by taking no steps to prevent this from occurring they tacitly accepted and confirmed that overtime was impliedly authorised;
• while Peninsula Health had policies and procedures in place which stipulated the manner in which overtime must be requested and approved before being worked, in some instances staff were not aware of or familiar with the policies, and in any case the policies did not limit the way in which overtime could be authorised; and
• the lead applicant was entitled to payment for approximately 80 hours of overtime.

Peninsula Health is seeking leave to appeal the decision. This decision (and the outcome of any appeal) will have implications for multiple other class action proceedings that are already before the courts due to the overlap in similar types of claims. Evidence, discovery and other pre-trial steps in a number of these proceedings were vacated pending the outcome of this judgment. Those cases were expected to be brought back for case management shortly after the judgment, but it may be that they remain on hold pending the outcome of any appeal.

More broadly, it remains to be seen whether this decision puts some wind back in the sails of class action promoters to bring new employment class action claims. Our analysis of class action filings in 2023 shows that the rate of employment claims has dwindled somewhat from the highs of previous years. Of course, further momentum in this space will likely be influenced by the outcome of any appeal of this decision.