4 th australian workplace relations summit 2010 navigating the industrial landscape
DESCRIPTION
4 th Australian Workplace Relations Summit 2010 Navigating the Industrial Landscape. Day Two Wednesday 9 th June 2010 11.15 am to 11.50 am 8 th & 9 th June 2010 Harbours Edge Events Centre, Darling Harbour. Adverse Action. Presenter. - PowerPoint PPT PresentationTRANSCRIPT
Adverse Action
4th Australian Workplace RelationsSummit 2010 Navigating the Industrial LandscapeDay Two Wednesday 9th June 201011.15 am to 11.50 am
8th & 9th June 2010Harbours Edge Events Centre,Darling Harbour
Adverse ActionPresenterBradley J Beasley, LLM, LLB, Grad Cert Legal Practice
Legal Practitioner of the:
Supreme Courts ACT, NSW; and
High Court of Australia
Overview1.Understanding the impact adverse actions can have on management decisions
2.Defining adverse actions in terms of:
(a)Employer protected rights
(b)Industrial action
3.Reducing liabilities for adverse actions
Overview conts336 of the Fair Work Act 2009 (the FWA) address the objects in broad terms, they are to:
Protect workplace rights
Protect freedom of association
Provide protection from workplace discrimination
Provide effective relief for persons who have been:
Discriminated against,
Victimised; or
Adversely affected
Overview contS341 provides for the meaning of workplace rights and is quite broad. It applies where a person is:
Entitled to a benefit or has a recognised role
Able to initiate or participate in processes
Able to make a complaint
Able to seek an inquiry for compliance
These rights derive out of a workplace law, industrial instruments or a order made by an industrial body
Overview contThe jurisdiction is quite wide net capturing not only those who are corporations but those dealing in trade and commence and those working in a Territory.
See S338 (1) (d), (e) and (f), (2), (3), (4) of the FWA
1. Understanding the impact adverse actions can have on management decisionsWhen communicating
When employing new staff
When dealing with:
Staff
Contractors
Industrial Associations
A Dispute
Remedies
Penalties
When Communicating
Communication is essential as perceptions are central to this course of action as the FWA addresses:
Advising
Encouraging
Inciting
Action taken
Action threatened
Action not taken see s338 (c)
Organising Action see s342 (2) (b)
Communication can be direct or indirect in effect see s340 (1) and (2)
When employing new staff
Prospective Employees
Communication is equally important when employing new staff as they are taken to have workplace rights, see s341 (3) and see s342 (1) Item 2.
However more so if someone is perceived as coercing another or a third person to employ or not employ a particular person, see s355 (a).
When dealing with:StaffContractorsIndustrial Associations
S342 provides circumstances when adverse action is taken, in board terms they are:
When dealing with:
Staff
Item 1
An employer taking action against an employee by:
Dismissing them; or
Injuring their employment; or
Altering their position to their prejudice; or
Discriminating between employees.
When dealing with:
Staff cont
Caution must be taken when dealing with staff to avoid allegations of:
Coercion when it comes to workplace rights or how they may be exercised see s343
Undue influence or pressure with respect to agreement making, guaranteed annual earnings and deductions, see s344
Misrepresentations concerning workplace rights or how they will or may be exercised see s345
Entering into sham arrangements see s357
When dealing with:
Prospective Staff
Item 2 Where a prospective employer:
Refuses to employ a prospective employee; or
Discriminates against the prospective employee in the terms or conditions of employment.
When dealing with:
Contractors
Item 3
Where the principal enters into a contract for service with an independent contractor (the contractor) or a person employed or engaged by the contractor.
The principal affects the contractor by:
Terminating the contract; or
Injuring the terms and conditions of the contract; or
Alters their position to their prejudice; or
Refuses to make use of, or agree to make use of their services; or
Refuses to supply, or agree to supply, goods or services to them.
When dealing with:
Contractors cont
Note: also see
Item 4
Where the principle enters into arrangements through a second contractor to adversely affect the first contractor.
Item 6
Where the contractor takes adverse action against the principle.
When dealing with:
Industrial Associations
Item 7
Where an Industrial Association, or an officer or member of an Industrial Association, engages in the following against a person:
Organises or takes industrial action; or
Takes direct or indirect action that is prejudicial to the:
Employment or prospective employment; or
Contractors contract for services; or
By imposing a penalty, forfeiture or disability of any kind against a member other than any money legally owed to the association by the member.
A Dispute
Division 8 Compliance
Subdivision ASubdivision BA person dismissed or their union can bring an action
An action must commence within 60 days and may be extended
An application fee must be lodged
FWA conducts a conference
FWA will issue a certificate if the dispute cannot be resolved
FWA must advise the parties on reasonable prospects for success
An application must then be made to the court within 14 days
If a person cannot make an application under Subdivision A, they may make it under this subdivision to FWA
An application fee must be lodged
FWA must advise the parties on reasonable prospects for success before proceeding to court
A Dispute contCosts
Costs orders may be made against lawyers and paid agents where the other parties has incurred unreasonable costs due to the solicitors or agents conduct of the matter
An application for costs orders must be made within 14 days of the matter being finalised by FWA
Civil penalties apply for a breach of the costs order
Remedies
Remedies may include:
Preventative injunction
Reinstatement
Uncapped compensation
Orders as the courts see fit
Penalties
Part31--General protections Item 11
340(1) 340(2) 343(1) 344 345(1) 346 348 (349(1) 350(1)
350(2a)351(1) 352 353(1) 354(1) 355 357(1) 358 359
a person affected by the contra
an industrial association
(c) An inspectorThe Federal Court;
(b) the Federal Magistrates Court
60 penalty units
2.Defining adverse actions in terms of:(a)employer protected rightsAction
Conduct
Prospective Employees
Transfer of Business
Standing Down
Organisational Change
Discrimination
Termination of Employment
ActionAction can include an omission see s12 of the FWA
S338 (1) (b) defines action against a constitutionallycovered entity:
...that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business...
ConductConduct of the action is addressed by s338 (1) (c) to include the following:
Advising, encouraging or inciting, or ... with intent to coerce, a constitutionallycovered entity:
(i)to take, or not take, particular action in relation to another person; or
(ii)to threaten to take, or not take, particular action in relation to another person...
Prospective EmployeesAn employer may make a conditional offer subject to guarantee annual earnings to a prospective employee.
See s341 (4)
Transfer of BusinessOn a transfer of business the employer may refuse to employ a prospective employee if he or she would be entitled to a benefit.
See s341 (5) and Part 2-8 Transfer of Business
Standing DownThe employer may stand down staff if they are engaging in industrial action or in other circumstances where permitted.
See s342 (4)
Organisational ChangeAs long as the employer consults and follows any change management provisions in an industrial instrument there is no impediment for an employer who is genuinely responding to economic, technological, structural or similar nature change.
See Part 3-6
DiscriminationThe employer does not offend the Act if the employee cannot fulfil the inherent requirements of the particular job
Also on religious grounds if the employer is acting in good faith and to avoid injury related to those teachings.
See s351 (2)
Termination of EmploymentAn employer may terminate the employment of an employee on genuine grounds related to:
Poor performanceMisconductSerious MisconductIllness that is not temporary
2.Defining adverse actions in terms of:(b)industrial actionJones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 (29 April 2010).
3.Reducing liabilities for adverse actionsBarclay v The Board of Bendigo Regional Institute of TAFE [2010] FCA 284
ConclusionEmploy Competent StaffCommunicationConsultationTransparencyThoroughnessDocumentObtain Advice
Thank You