*This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter. Employment Law Webinar Series SESSION 1 - Key employment law developments and trends - What's in store for 2013 28 February 2013 WELCOME
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Employment Law Webinar Series SESSION 1 - Key employment law developments and trends - What's in store for 2013
WELCOME. Employment Law Webinar Series SESSION 1 - Key employment law developments and trends - What's in store for 2013. 28 February 2013. *This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter. Welcome. - PowerPoint PPT Presentation
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*This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter.
Employment Law Webinar SeriesSESSION 1 - Key employment law developments and trends - What's in store for 2013
28 February 2013
WELCOME
CURRENTLY SPEAKING
2
Welcome
You are on mute A link to a recording of the webinar will be
available We can take questions by using the chat function,
we will respond to your questions by email after the webinar
Pattie WalshPartner
EP&B Webinar Series
CURRENTLY SPEAKING
Presenters
EP&B Webinar Series 3
Pattie WalshPartner
Pattie WalshPartner / Head of Employment, Pensions & Benefits, Asia Pacific
Allan Drake-BrockmanPartner Perth
Andrew BallPartner Sydney
Rick CatanzaritiPartner Melbourne
Nick RuskinPartner Melbourne
Murray ProcterPartner Brisbane
CURRENTLY SPEAKING
4
Agenda
Adverse Action - The current state of Adverse Actions claims and how to manage them
Protecting Confidential Information - Results from the DLA Piper research into 250 international businesses
Changes to the Fair Work Act - A summary of the key changes including a review of the amendments to unfair dismissals and enterprise agreements
Bullying and Harassment - What are the key elements of Safe Work Australia's draft Bullying Code of Practice
Enterprise Bargaining - Issues, trends and developments
Pattie WalshPartner
EP&B Webinar Series
CURRENTLY SPEAKING
What are workplace rights?
SECTION 1
ADVERSE ACTION
Presented by Nick Ruskin, Partner
EP&B Webinar Series 5
Nick RuskinPartner
CURRENTLY SPEAKING
How are adverse action provisions breached?
EP&B Webinar Series 6
Nick RuskinPartner
Workplace Right Adverse Action
Connection between adverse action and
workplace right
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What are workplace rights?
A role or responsibility under a workplace law or agreement
Entitlements under a workplace law or agreement eg. sick leave
A statement to a workplace safety inspector
Making a workers compensation claim
Having an attribute under discrimination law
Making a complaint or an enquiry about the employee's employment
EP&B Webinar Series 7
Nick RuskinPartner
CURRENTLY SPEAKING
What is ‘Adverse Action’
Examples
Reduction of salary
Deprivation of overtime
Diversion to a less congenial
shift
Transfer to lower duties
or suspension from duties
Written warning - may have the effect of
making the employee's continuing
employment less secure, and may
constitute adverse action
EP&B Webinar Series 8
Nick RuskinPartner
CURRENTLY SPEAKING
Procedure
Dismissal stream: 21 days to make a claim Fair Work Commission conciliates – if not
resolved, 14 days for applicant to go to a Federal Court
Non-dismissal stream: 6 years to make an application
Applicant can seek interim injunctive relief
EP&B Webinar Series 9
Nick RuskinPartner
CURRENTLY SPEAKING
Procedural Issues
Remedies 'Any order the court considers appropriate‘ Compensation (uncapped) including for
economic loss and hurt and humiliation Interlocutory relief to prevent
dismissal/detriment Orders to reinstate employee Fines - $51,000 for a corporation; $10,200 for
an individual
EP&B Webinar Series 10
Nick RuskinPartner
CURRENTLY SPEAKING
Protecting Confidential Information
EP&B Webinar Series 11
Murray ProcterPartner
SECTION 2
PROTECTING CONFIDENTIAL INFORMATION
Presented by Murray Procter, Partner
CURRENTLY SPEAKING
Protecting Confidential Information
DLA Piper survey 2012 Types of confidential information employers are
most concerned to protect
What makes information confidential?
EP&B Webinar Series 12
Murray ProcterPartner Pricing
structures – 55%
Human resources
issues – 50%
Budgets and financial
information – 49%
Customer supplier
details - 46%Business
plans - 43%
Research and development information -
42%
CURRENTLY SPEAKING
Protecting Confidential Information
EP&B Webinar Series 13
Murray ProcterPartner
28% of employers do not take any steps to specify that information is confidential
Only 14% of employers use the contract of employment to spell out the type of information which they deem to be confidential, despite 65% including confidentiality provisions of some sort in the contracts
25% of employers who include restrictive covenants have no confidence they are enforceable
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Protecting Confidential Information
Impact of the changing workplace
EP&B Webinar Series 14
Murray ProcterPartner
Challenge 1: Data storage
Challenge 2: Bring your own
deviceChallenge 3: Social media
Challenge 4: Ownership of
contacts
Tech stats 60% of employers either allow or require personal mobile
devices 36% of employers ask employees to store business contact
details on databases that are not within the employer's control
66% of employers are concerned about the threats posed to confidential information by social media BUT
Only 39% have a policy regulating employee behaviour with respect to social media
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Protecting Confidential Information
Keys steps for protecting confidential information
EP&B Webinar Series 15
Murray ProcterPartner
Contracts
Policies
TrainingMonitoring
Restricting access
CURRENTLY SPEAKING
Recent Fair Work Act changes
EP&B Webinar Series 16
Rick CatanzaritiPartner
SECTION 3
CHANGES TO THE FAIR WORK ACT
Presented by Rick Catanzariti, Partner
CURRENTLY SPEAKING
Recent Fair Work Act changes
Change of Tribunal name
Appointment of senior members
Superannuation
Enterprise Agreements
Unfair Dismissal/General Protection Claims
EP&B Webinar Series 17
Rick CatanzaritiPartner
CURRENTLY SPEAKING
Commission
Fair Work Australia changed
its name to Fair Work Commission
Commission now includes two new Vice Presidents (to be
appointed) as well as President and current Deputy Presidents
and Commissioners
EP&B Webinar Series 18
Rick CatanzaritiPartner
CURRENTLY SPEAKING
Superannuation
Modern awards are to include terms about default superannuation arrangements
The term must contain an obligation on the employer to pay super into a default complying superannuation fund if none is chosen by employee
Commission will conduct 4 yearly reviews of clause
EP&B Webinar Series 19
Rick CatanzaritiPartner
CURRENTLY SPEAKING
Enterprise Agreements
Cannot have EA with only one employee
Deals with problem of two earlier Commission decisions allowing single enterprise EAs
EAs cannot contain a clause allowing an employee to opt out of being covered by the agreement
Union officials cannot be a bargaining representative for an employee unless the union has coverage of that employee type
Now have a notice specified by the Regulations which sets out the content for advising employees of their rights to have a bargaining representative for the negotiation of an EA
EP&B Webinar Series 20
Rick CatanzaritiPartner
CURRENTLY SPEAKING
Dismissal claims
14 day time limit to lodge an unfair dismissal claim has now been changed to 21 days
Time limit to lodge a general protections claim in relation to a dismissal of an employee is reduced from 60 days to 21 to coincide with unfair dismissal time frame. The employee still needs to lodge the application in the Commission
Dismissal of unfair dismissal claim by the Commission can also occur if an employee has unreasonably:
failed to attend a hearing or conference
failed to comply with a Commission order or direction
failed to discontinue an application after a settlement agreement is reached
EP&B Webinar Series 21
Rick CatanzaritiPartner
CURRENTLY SPEAKING
Costs
EP&B Webinar Series 22
Rick CatanzaritiPartner
Commission can order costs against a party if that party has caused costs to be incurred by an unreasonable act or
omission
Costs can still be awarded against lawyers and paid representatives if they have acted unreasonably or encouraged their client to start or
continue an unmeritorious claim or the lawyer or paid agent has acted
unreasonably
CURRENTLY SPEAKING
Bullying and Harassment
EP&B Webinar Series 23
Andrew BallPartner
SECTION 4
PREVENTING AND RESPONDING TO WORKPLACE BULLYING DRAFT CODE OF CONDUCT
Presented by Andrew Ball, Partner
CURRENTLY SPEAKING
Bullying Draft Code of Practice
No specific bullying legislation Draft "Preventing and Responding
to Workplace Bullying" Code of Practice (Code)
Fair Work Commission – new powers
Finalised Code expected before mid 2013
EP&B Webinar Series 24
Andrew BallPartner
CURRENTLY SPEAKING
Bullying Draft Code of Practice
What is workplace bullying? Workplace bullying is repeated, unreasonable
behaviour directed towards a workers or group of workers, that creates a risk to health and safety
'Repeated behaviour' refers to the persistent nature of the behaviour and can refer to a range of behaviours over time
'Unreasonable behaviour' means behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening
Intentional or unintentional bullying
Direct or indirect bullying
EP&B Webinar Series 25
Andrew BallPartner
CURRENTLY SPEAKING
Bullying Draft Code of Practice
What is involved in preventing workplace bullying?
A risk management process which involves the following steps:
EP&B Webinar Series 26
Andrew BallPartner
Identification
Assessment
Control
Review
CURRENTLY SPEAKING
Bullying Draft Code of Practice
1. Identifying and Assessing the Risk of Workplace BullyingIdentifying hazards involves finding all of the things and situations that could potentially contribute to bullying in the workplace and cause harm to people. Although there may be no obvious signs of workplace bullying, this does not mean such behaviour or conduct does not exist.
2. Controlling the Risk of Workplace BullyingThe best way to control bullying risks is to eliminate the factors that can cause it. If that is not reasonably practicable, implement measures to minimise the risk.
EP&B Webinar Series 27
Andrew BallPartner
CURRENTLY SPEAKING
Bullying Draft Code of Practice
Treat all matters
seriouslyAct promptly Do not
victimise
Support all parties Be neutral
Communicate processes
and outcomes
Maintain Confidentiality Keep records
EP&B Webinar Series 28
Andrew BallPartner
3. Responding to Workplace Bullying
CURRENTLY SPEAKING
Bullying Draft Code of Practice
4. Monitoring and Reviewing Control MeasuresOnce control measures have been implemented, you should be checking and reviewing them to ensure they are effective in preventing and managing bullying behaviour.
EP&B Webinar Series 29
Andrew BallPartner
CURRENTLY SPEAKING
Enterprise Bargaining
EP&B Webinar Series 30
Allan Drake-BrockmanPartner
SECTION 5
ENTERPRISE BARGAINING:Issues, trends and developments
Presented by Allan Drake-Brockman, Partner
CURRENTLY SPEAKING
Enterprise Bargaining
Enterprise bargaining – collective agreement in single enterprise or multi-enterprise between employer and specified employees
Unions involved if union a bargaining representative
Significant number of agreements have union involvement
Enterprise bargaining – Greenfields Agreement between employer and union direct
EP&B Webinar Series 31
Allan Drake-BrockmanPartner
CURRENTLY SPEAKING
The 2013 industrial relations environment…
EP&B Webinar Series 32
Allan Drake-BrockmanPartner
Agreements – Offshore Diving Agreements – all expire
30 June 2013 Vessel Operator Agreements –
all offshore agreements expire 30/31 July 2013
Helicopter Agreements – have either expired or will expire during 2013
Offshore Mobile Drilling Rig Agreements
Operators all but one expire second half of 2013
Manning Agents – expire second half of 2013 or first half of 2014
ROV – various expiry dates Production Operators –
various
Agreements – Onshore Production Operators – various Dates vary – some are project
specific agreements whilst others are term agreements
A range of agreements expire during 2013
CURRENTLY SPEAKING
Productivity
EP&B Webinar Series 33
Allan Drake-BrockmanPartner
Offshore wage rates 40-50% higher than world rates
Even onshore wage rates 20-30% higher than world rates
The focus of enterprise bargaining to date has simply been wage increases essentially without any productivity offsets
Australia 50th in productivity in the world behind Uganda just in front of Botswana
With worsening economy employers will be looking for productivity gains
Situations that are not genuinely "Greenfields" and the risks
Outright refusals by unions to enter into Greenfields Agreements
A different approach to bargaining?
CURRENTLY SPEAKING
Enterprise bargaining tips
EP&B Webinar Series 36
Allan Drake-BrockmanPartner
Prepare a draft agreement which forms the basis of negotiations. You need to be in control of the bargaining process.
Appoint a person who can take accurate minutes of the bargaining process
Establish a consistent bargaining team and appoint a lead bargainer
Ensure tight parameters are placed on your bargaining range. Some non-negotiable items may require ‘Board approval’ if the union is fixated on negotiating changes relating to that item
Be wary of the old saying "nothing agreed until everything agreed"
Provide opportunities for lead bargainers to meet informally outside of bargaining table
Legal contingency planning
CURRENTLY SPEAKING
Our Contact Details
EP&B Webinar Series 37
Pattie WalshPartner
Pattie WalshPartner / Head of Employment, Pensions & Benefits, Asia Pacific T: +61 2 9286 8197E: [email protected]
Allan Drake-BrockmanPartner PerthT: +61 8 6467 6205 E: [email protected]