Recent developments in employment law

The latest issues, decisions and proposed changes impacting business and workplace risk 16 min read

First tranche of Closing Loopholes Reforms receives Royal Assent

By Veronica Siow and Eden sweeney

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) has received Royal Assent on 14 December 2023. This means that from 15 December 2023:

• the Fair Work commission has the power to make (same job, same pay) orders requiring 'labour hire' employers to pay their employees no less than the full rate of pay that would be payable to those employees if the 'host' employer's enterprise agreement had applied to them. The earliest effective date for any order will be 1 November 2024;
• a new rights framework for workplace delegates has commenced; and
• there are enhanced protections for employees who have been subjected to family and domestic violence,

among other changes.

Please read our Insights here, here and here for further details on these new laws.

The Federal Government is pursuing further changes to employment laws, which are likely to be passed in early 2024. Stay tuned for further updates on those changes.

Fair Work Commission delivers first decision in light of new flexible working arrangement laws

By Mikaela Heise, Alana Perna, Jack Fagan

The Full Bench of the Fair Work Commission (Commission) has delivered its first judgment since the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs Act) introduced changes regarding requests for flexible working arrangements and gave the Commission new powers to deal with disputes regarding such requests.

Key takeaways

The Commission's decision provides helpful guidance for employers when considering whether a request for flexible working arrangements has been validly made in accordance with the relevant statutory criteria.

Background

The Secure Jobs Act introduced a raft of changes to existing provisions under the Fair Work Act 2009 (Cth) relating to flexible working arrangements, which came into effect on 6 June 2023. Our overview of the amendments is available here. Among other things, the amendments introduced a new dispute mechanism giving the Commission power to deal with a dispute in relation to a flexible working arrangement request.

The first case since the introduction of these laws, Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209, concerned a request made by Jordan Quirke to her employer, BSR Australia Ltd (BSR), to alter her working hours to aid with her anxiety and insomnia.

Ms Quirke requested the changes through separate emails in April and May 2023, and then subsequently requested a discussion with management over Microsoft Teams in August 2023 regarding her request.

After BSR rejected Ms Quirke's request, she filed an application with the Commission to deal with the dispute. The dispute failed to resolve at two conciliation conferences and Ms Quirke subsequently sought for the dispute to be arbitrated by the Commission.

The decision

The primary issue before the Commission was whether Ms Quirke had made a valid request for flexible working arrangements and therefore whether the Commission had jurisdiction to arbitrate the dispute.

The Commission outlined the five requirements for a request to be 'valid':

1. one of the circumstances listed in section 65(1A) must apply, including, circumstances where an employee has a disability;
2. the employee's request for changed working arrangements must be 'because of' the circumstance and the requested change must 'relate to' that circumstance;
3. the employee must have completed 12 months of continuous service immediately before making the request;
4. the request must be in writing; and
5. the request must set out the details of the change and the reasons for the change.

Only Ms Quirke's second request could be considered by the Commission, because (among other things), her first request was made before the amendments took effect on 6 June 2023.

Ms Quirke's second request failed the second and fifth requirements because her communication with management did not detail any specific change nor give reasons why the change was necessary.

The Commission also observed that, based on the evidence before it, Ms Quirke would have, in any event, failed to establish that she had a disability such as to satisfy the first requirement. Although Ms Quirke had a supporting letter and mental health plan from her doctor, it was difficult to conclude that she had a disability in the absence of clear evidence of a medical diagnosis.

The Commission ultimately determined that Ms Quirke's application was not validly made and accordingly, that it had no jurisdiction to arbitrate the dispute.

Respect@Work: lowering the costs barrier in sexual harassment matters

By Tegan Ayling and Courtney Ferguson

The risk of an adverse costs order may soon be less of a barrier for applicants in unlawful discrimination proceedings, including sexual harassment matters, if the final recommendation of the Respect@Work report is implemented by the Federal Government.

Key takeaways

• The 'equal access' model removes a cost barrier for those seeking to access justice in federal unlawful discrimination proceedings, while recognising the relevance of power and resource imbalances in these types of matters.
• The proposed implementation of the Respect@Work report's final recommendation brings the legislation into line with the cost protections that already exist in the FW Act.

Proposed changes

Recommendation 25 of the Respect@Work report proposed that a cost protection provision be inserted in the Australian Human Rights Commission Act 1986 (Cth), consistent with the provision in the Fair Work Act 2009 (Cth) (FW Act). On 15 November 2023, the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 was introduced in Federal Parliament in response to Recommendation 25.

If the Bill is passed, this will mean that:

• Circumstances where the respondent will be liable for costs: if the applicant is successful on one or more grounds the court must order the respondent/s to pay the applicant's costs, except where the court is satisfied that the applicant's unreasonable act or omission caused the applicant to incur costs.
• Circumstances where the applicant will be liable for costs: the court must not order the applicant to pay costs incurred by another party, unless:
  • the applicant instituted proceedings vexatiously or without cause; or
  • the applicant’s unreasonable act or omission caused the other party to incur the costs; or
  • the other party is a respondent who was successful in the proceedings, the respondent does not have a significant power advantage over the applicant and the respondent does not have significant financial or other resources relative to the applicant.

The proposed changes will also apply to representative actions.

You're fired! Resignation or dismissal?

By Chloe Wilton and Lara Duggan 

The Fair Work Commission has determined in two separate decisions (Amey v Organic Life and Cederman v Oleochem Project Management¹) that employees were constructively dismissed by their employers.

Key takeaways

• Employers should ensure managers are trained in appropriate workplace conduct and communication, particularly outside working hours.
• Employers should always act in accordance with an employee's medical evidence and should only require employees to attend medical assessments during working hours.
• Persistent requests for information that has already been provided by an employee (albeit in a slightly different format than requested) is likely to be unreasonable.

Background

In both cases the respective applicants, Mr Amey and Ms Cederman, lodged general protections applications involving dismissal and as a preliminary question, the Fair Work Commission considered whether Mr Amey and Ms Cederman had been dismissed. Mr Amey said that he had been dismissed because of the behaviour of his employer's General Manager, which ensued after Mr Amey lodged a workers' compensation claim. Ms Cederman argued that she was forced to resign from her employment as a result of actions taken by a Director of her employer while she was pregnant and on parental leave.

The employers' conduct

In Amey v Organic Life, the General Manager sent more than 200 Facebook messages to Mr Amey outside working hours about his workers' compensation claim, including one which said 'lawyer up' and some that referred to self-harm.

In Cederman v Oleochem, the Director consistently asked Ms Cederman to attend medical assessments (including when she was on leave or not rostered to work) even though she had already provided a sufficient medical certificate, threatened her with disciplinary action if she did not attend the medical assessments, ignored the medical evidence she had provided and advised her that she was fit to return to her offshore position, unilaterally varied her employment contract by changing her roster, and persistently asked Ms Cederman for her return-to-work date when she had already provided that information.

Decisions 

In Amey v Organic Life, the Commission determined:

• the General Manager's out of hours conduct was sufficiently connected to work because work was the only link between Mr Amey and the General Manager and the messages referred to work-related content, such as Mr Amey's workers' compensation claim; and
• Mr Amey's employment was terminated at the initiative of his employer because the General Manager's behaviour made Mr Amey's continuing employment untenable.

In Cederman v Oleochem, the Commission determined that Ms Cederman did not resign voluntarily but was forced to do so by the cumulative conduct engaged in by the Director, noting that some of the Director's conduct 'bordered on egregious' and 'demonstrated a wilful blindness to [Ms Cederman's] circumstances.'

Employee unable to obtain a stop bullying order but was 'let down' by employer: Kaya v Team Global Express Pty Ltd and others

By Anthony Hallal and Virginia Dore

The Fair Work Commission (FWC) has declined to make a stop bullying order in circumstances where there was no risk of bullying occurring in the future. However, the FWC has emphasised the expectation that employers and employees in leadership positions take action in response to bullying within the workplace.²

How does this affect employers?

• The decision serves as a reminder that employers should act promptly and take appropriate steps in response to identified bullying in the workplace.
• Where there is evidence of bullying in the workplace, the actions taken by an employer should be sufficient to combat and protect employees from these behaviours. In circumstances where there is evidence of serious and repeated bullying, issuing a warning may not be a sufficient response.
• Employers should ensure that the workforce receives workplace behavioural training, including training for senior staff on the expectations of a leader in addressing inappropriate workplace behaviour.

Background

The applicant was employed by Team Global Express Pty Ltd (Employer). In early 2022, the applicant made various reports of bullying and inappropriate behaviour in the workplace by two colleagues.

An investigation conducted by the Employer substantiated a number of the applicant's allegations including inappropriate touching of the applicant by one colleague and numerous instances of the two colleagues swearing at and speaking aggressively toward the applicant. Following the investigation, a written warning was issued to one colleague and a verbal warning was issued to the other colleague. The employer also separated the work station of the applicant from the two colleagues to minimise their interaction.

In June 2022, the applicant informed his supervisor that the bullying behaviour was continuing and lodged a stop bullying application with the FWC. The applicant took a period of leave from June 2022 until May 2023. On the Applicant's return to work in May 2023, the employer undertook a further investigation, which substantiated the applicant's allegations of continued bullying by one of the colleagues. The employer issued a show cause letter indicating that the employer was considering terminating that colleague's employment due to his serious and repeated misconduct. That colleague resigned before the disciplinary process concluded and ceased employment in June 2023.

The employer also found that the applicant's supervisor had not reprimanded the colleague for using inappropriate language and had attempted to dissuade the applicant from filing a complaint against his colleague. The supervisor received a written warning for that behaviour.

In addition to issuing the various warnings, the employer implemented workplace behaviours training, including training on the expectations of supervisors and managers in addressing inappropriate workplace behaviour.

The employer prepared a return to work plan for the applicant, pursuant to which the applicant and the remaining colleague would start work at different times, work in different areas and use different lunch and bathroom facilities to remove the need for contact. The applicant's reporting lines were also changed so that he would no longer report to the supervisor.

Decision

The FWC decided that an order to stop bullying could not be made because there was no risk that the applicant would be bullied in the future. This was due to the resignation of the colleague responsible for the more serious conduct, the fact that the FWC was not satisfied that the supervisor and the remaining colleague had engaged in bullying behaviour, and the measures outlined in the employer’s return to work plan.

Despite being unable to make an order to stop bullying, the FWC noted that the applicant had been 'let down by his employer',³ and that 'there was a failure of the local leadership in the organisation, those who knew what was happening, to do something about it'.⁴ The FWC commented that the employer 'should make clear to all those in leadership positions this is not something that they will accept',⁵ and that the issuing of a written warning to the colleague primarily responsible for the bullying was insufficient to stop the bullying.

Focus on sexually inappropriate behaviour by employees in and outside of the workplace continues 

By Veronica Siow, Eden Sweeney and Leila Zraika 

The trend of cases focused on sexually inappropriate behaviour by employees, both in and outside of the workplace, continues with two recent cases highlighting the importance of training employees in appropriate behaviour and the potential significant financial consequences of sexual harassment for employers and perpetrators.

Key takeaways

• Given the positive duty to prevent sexual harassment in the workplace and hostile work environments has recently become enforceable by the Australian Human Rights Commission, it is crucial that employers:
  • clearly communicate appropriate behaviour expectations to employees;
  • have comprehensive policies that clearly set out their expectations of appropriate behaviour;
  • train employees on those policies (including the disciplinary consequences of breaching the policies).
• Significant damages can be awarded in sexual harassment cases where the injuries sustained as a result of the conduct are long-lasting.

The decision in Ventia Australia Pty Ltd v Martin Pelly [2023] FWCFB 201

Mr Pelly was dismissed from his role at Ventia Australia Pty Ltd for sharing pornographic and racist material in a group chat with colleagues, and for violating workplace policies regarding the sharing of such material. He successfully argued that the dismissal was unfair on the basis that (among others):

• the sharing of the material was not a valid reason for dismissal as his conduct in posting the material in the group chat was not sufficiently connected to work because there was no evidence that the material was viewed in the workplace, was viewed with work devices or had an impact on another employee in a way that would impact them at work. The 'nature of the posts alone' cannot create such a connection. Despite this finding the Commission expressed that the material shared by the respondent 'has no place at or in any workplace' and had the potential to create a hostile work environment; and
• Ventia's policies in relation to this conduct were general and did not address this type of conduct in sufficient detail. Ventia also did not provide any evidence regarding its efforts to make employees aware of its policies or the consequences of breaching its policies. There was also no evidence that Mr Pelly had undertaken training on these policies. This contributed to a finding that Mr Pelly's conduct was not a sufficient breach of these policies warranting dismissal.

The Commission ordered that Mr Pelly be reinstated.

The decision in Leung v Chung (Human Rights) [2023] VCAT 1193

Ms Leung brought a claim in the Victorian Civil and Administrative Tribunal against her colleague, Mr Chung, for breaching the Equal Opportunity Act 2010 (VIC) by sexually harassing her. The employer was in liquidation at the time proceedings were brought.

The Tribunal found that Mr Chung had sexually harassed Ms Leung and ordered him to pay her $10,000 in general damages. Ms Leung appealed to the Victorian Supreme Court on the basis that the assessment of damages was manifestly inadequate. The court upheld her appeal and sent the matter back to the Tribunal to reconsider the amount of compensation awarded. The Tribunal, in its re-assessment, considered the psychological impact of the conduct on Ms Leung and the likely chronic and permanent nature of her injuries. The Tribunal awarded Ms Leung $110,000 in general damages and $29,250 in special damages for lost wages and other amounts. Ms Leung had also sought aggravated damages but this was dismissed as the Tribunal was not satisfied that the conduct went beyond 'ordinary wrong doing' and the wrongfulness of the behaviour was already reflected in the general damages.