In this fortnight’s edition of the KHQ Workplace Watch we cover recent law reform developments including a review of the Secure Jobs, Better Pay reforms and a Victorian inquiry into workplace surveillance, updates from the Fair Work Commission regarding the General Manager’s role in the administration of the CFMEU’s Construction and General Division, the commencement of the review into fixed-term contracts in higher education and the first application for a road transport contractual chain order. We also briefly summarise two recent Federal Court decisions concerning post-employment restraints and the vexed issue of discharging the reverse onus in a general protections case. We also look at a Federal Circuit and Family Court of Australia decision that sets out the evidentiary threshold for establishing a breach of the maximum hours provisions in the Fair Work Act 2009 and a recent Full Bench of the Fair Work Commission decision on genuinely trying to reach agreement.
LAW REFORM
Review time for the Secure Jobs, Better Pay Act
The Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 commenced in December 2022 and introduced a range of reforms. The Secure Jobs Better Pay Act required the Minister to cause a review of these reforms within 2 years which has now commenced. The review will be conducted by Emeritus Professor Mark Bray and Professor Alison Preston.
The review will also consider one of the reforms introduced in the Fair Work Legislation Amendment (Closing Loopholes Act) 2023 which allows union officials to enter a site without an entry permit WHS laws to assist a health and safety representative.
The terms of reference of the Secure Jobs, Better Pay Review require that the review:
- consider whether the operation of the amendments are appropriate and effective
- identify any unintended consequences of the amendments
- consider whether further amendments to the Fair Work Act 2009, or any other legislation, are necessary to improve the operation of the amendments or rectify any unintended consequences that are identified.
The full terms of reference for the Secure Jobs, Better Pay Review are available here .
Inquiry into workplace surveillance
Since May the Victorian Legislative Assembly Economy and Infrastructure Committee has been conducting an inquiry into workplace surveillance to examine the extent to which surveillance data is being collected, shared, stored, disclosed, sold, disposed of and otherwise utilised in Victorian workplaces.
This past fortnight there were two days of public hearings where the inquiry heard evidence in support of law reform to introduce protections for employees that reflect the technological development in the past 25 years since the framework was introduced. This inquiry is happening at the same time that the Commonwealth Government in the process of reviewing the Privacy Act 1998 (Cth), (introducing the Privacy and Other Legislation Amendment Bill 2024 in early September).
More information regarding the inquiry (including submissions and transcripts) is available here.
FAIR WORK COMMISSION UPDATES
General Manager’s statement on the Administration of the CFMEU Construction and General Division
Murray Furlong, the General Manager of the Fair Work Commission, has issued a statement about his role in the administration of the CFMEU’s Construction and General Division (C&G Division). The General Manager appointed Mr Irving KC as the Administrator of the C&G Division on 23 August 2024.
In the statement, the General Manager outlines his role as including:
- certifying that any alteration of the C&G Division rules is in accordance with the administration scheme;
- establishing a procedure for making complaints about officers, employees, delegates and members of the C&G Division;
- investigating and bringing civil proceedings in respect of non-compliance;
- investigating whether the administration scheme is being effectively implemented and working collaboratively with the administrator;
- working with law enforcement agencies and other regulators; and
- working with building and construction industry participants.
A copy of the statement can be found here.
Sexual Harassment Disputes Benchbook published
The Fair Work Commission has published the Sexual Harassment Disputes Benchbook which applies in relation to alleged sexual harassment in connection with work that occurs (or commences) on or after 6 March 2023. It deals with provisions from the Secure Jobs Better Pay reforms which expand the Commission’s sexual harassment jurisdiction.
The Sexual Harassment Disputes Benchbook is designed to help explain the Fair Work legislation regarding sexual harassment disputes, providing information about the Fair Work Commission processes and precedents.
The Sexual Harassment Disputes Benchbook does not replace the Benchbook which applies to alleged sexual harassment prior to 6 March 2023.
Both Benchbooks are available here.
Review of fixed-term contract provisions in Higher Education
The Full Bench of the Fair Work Commission has issued a statement commencing the review of fixed-term contract provisions in the Higher Education Awards following the Secure Jobs, Better Pay reforms which introduced measures that regulated the use, extension and renewal of certain fixed-term contracts with effect from 6 December 2023.
The review will determine if any changes to the Higher Education Awards are necessary and if so, the extent to which the variations (or additional terms) are required and whether there are any other matters that should be considered by the Full Bench.
A copy of the statement is available here.
Transport Workers’ Union lodges first application for a road transport contractual chain order
The TWU has applied for a road transport contractual chain order.
The order sought by the union would contain provisions dealing with:
- minimum 30-day payment terms;
- prohibition on automatic reduction or set-off terms; and
- compulsory rate review provisions.
The application states:
“The proposed order attends to the commercial realities of the industry by ensuring that regulated road transport contractors and road transport businesses are paid in a timely fashion for work performed and any disputes about payment are dealt with by the Commission. The proposed order also addresses the unfair and arbitrary commercial practices which are incongruent with the commercial realities of the industry and the operation of businesses by regulated road transport contractors and road transport businesses.”
The TWU’s application can be viewed here and future updates can be accessed via the Fair Work Commission’s website here.
You can read more about road transport contractual chains here.
Submissions filed in applications minimum standard orders
Parties have now filed submissions in respect of initial three applications for employee-like and road transport minimum standards orders.
These submissions can be accessed via the dedicated Fair Work Commission webpages here and here.
Model terms for enterprise agreements
A public consultation hearing is listed for Tuesday 3 December 2024 in respect of the proceedings concerning the new model flexibility, consultation and dispute procedure terms. Parties are lodge submissions on the proposed model terms by 1 November 2024, and in-reply by 22 November.
The Fair Work Commission now has a dedicated website for these proceedings – see here.
CASE UPDATES
Employer awarded $500,000 in damages for employee’s breach of restraint
The Federal Court awarded damages and costs against a New South Wales account manager of an insurance broker who resigned his employment to work for a competitor. The resignation was accepted on 2 September 2022. The employer learned that the employee had sent an SMS to at least one client by 5 September 2022. By 3 November 2022 the employer had lost 21 clients; proceedings commenced on 8 November 2022.
The employee did not give evidence in the case. The employer encountered “significant challenges in securing certain evidence”. The employee’s work mobile had been reset and water damaged such that no data was recoverable. A second device was run over by a lawn mower, just 5 days after discovery had been ordered. The device discovered was blank.
The Court found that the 12 month restraint was enforceable, recognising that it was the length of time that would facilitate the employer re-establishing the connection which would be lost when the employee ceased employment.
Justice Thawley said at paragraphs [249] and [255]:
“[249] As is addressed further next, the principal interest that AEI sought to protect was its customer connections. Mr Martin used this connection which he had developed for AEI and the information he had obtained (including contact details, policy renewal times and insurance information and needs) to solicit clients, both directly, and by procuring MA Brokers to contact clients which Mr Martin considered were likely to move on account of his knowledge of their needs and his close relationship with them.
[255] AEI is not entitled to be protected against mere competition from Mr Martin. In particular, Mr Martin is entitled to use to the full his personal skill and experience. However, AEI is entitled to be protected against unfair competition based on the use by Mr Martin after his resignation of aspects of the customer connection which he developed for AEI during his employment. The principal interest that AEI sought to protect was its customer connections. This was a legitimate interest for protection.”
AEI Insurance Group Pty Ltd v Martin (No 4) [2024] FCA 1110.
Failure to lead evidence to discharge reverse onus of proof in general protections case
In this general protections matter, the Federal Court allowed an appeal by a lecturer against the judgment of the Federal Circuit and Family Court of Australia (Division 2) which rejected a number of the lecturer’s contentions that she was the subject of misconduct allegations, made redundant and dismissed because she had made various complaints in relation to her employment.
The appeal alleged that the Primary Judge erred in failing to find that there were other people who effected or were involved in the adverse action whose states of mind were not proved.
The judgment considered the “syntactic disagreement that is inherent in the notion that one might “decide” to make a position redundant”, with Justice Snaden stating “Conceptually, redundancy is not something upon which one decides. It is a state that arises in consequence of other circumstances. One can no more decide that a position is redundant than one may decide to feel cold: in either case, the state either exists or it does not exist.”
Justice Snaden summarised the “regrettably nebulous bounds of principle established by authority” concerning decision makers:
[77] For some time, the observations of the High Court in Barclay and BHP Coal were thought to have extinguished the understanding that had previously taken hold in this court that the search for a respondent’s reasons for taking adverse action might require exploration beyond the mental processes of those who visited it. In recent years, however—and at least insofar as concerns the conduct of bodies corporate—this court has breathed life back into the notion that “unconscious” influences might also be relevant in assessing the motivations that actuate corporate decision making…
[78] I have had occasion respectfully to express some doubt about the correctness of those decisions… Whether those doubts are well-founded is irrelevant presently. The principles that emerge from the case law as it currently stands are clear (even if their application occasionally is not): in assessing the reasons that animated conduct amounting to adverse action, a court must interrogate not merely the state or states of mind of the person or people who engaged in that conduct; but also that of others whose contribution to it rose beyond a threshold level. That threshold level has been described as “indispensable”… “material”… and “‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’…”
(emphasis added)
Although the lecturer’s grounds of appeal in respect of the redundancy and her dismissal failed, the lecturer was successful in respect of the serious misconduct allegations.
See Pilbrow v University of Melbourne [2024] FCA 1140.
Establishing a breach of maximum hours
In rejecting an interlocutory application for leave to file an amended points of claim in a breach of maximum hours case in the Federal Circuit and Family Court of Australia (Division 2), Judge Manousaridis has outlined the 5 material facts necessary for employees to establish that the employer unreasonably required the employee to work additional hours.
Judge Manousaridis said at paragraph [14] of the decision:
“There is no difference in principle between an employer who expressly requests or requires an employee to work, say, 70 hours a week, and an employer who requires an employee to perform tasks by certain times which, to the knowledge of the employer, can be performed in compliance with the employer’s request or requirement only if the employee works 70 hours a week. In the latter case, the request or requirement that the employee work 70 hours a week is to be implied from the fact that the employer has requested or required the employee to perform work by certain times which, to the employer’s knowledge, could only have been performed if the employee worked 70 hours a week. Even so, however, an applicant who seeks to rely on such a case must be in a position to identify in some way:
(a) the work the employer requested the employee to perform;
(b) the time by which or the period within which the employer required the employee to complete the work;
(c) the matters on which the applicant relies for alleging that the employee could not complete the work by the time or within the period the employer required or requested it be performed;
(d) the matters on which the employee relies for alleging that the employer knew or (perhaps) ought reasonably to have known that the employee could not complete the work within the time the employer required or requested the employee to complete the work; and
(e) having the knowledge referred to in (d), the employer continued to require or request the employee to perform the work within the time the employer had required or requested the employee to perform the work.”
An employer’s responsibility for managing excessive work hours remains in the spotlight, particularly since the introduction of the right to disconnect.
See Doherty v Prospa Advance Pty Ltd (No 2) [2024] FedCFamC2G 950.
Genuinely trying to reach agreement
The Full Bench of the Fair Work Commission has upheld a decision that a union was “genuinely trying to reach an agreement” despite applying for a protected action ballot order before having attended any bargaining meetings.
The Full Bench said at paragraphs [33] & [34] of the decision:
“[33] The steps that a bargaining representative might be expected to have taken to demonstrate it has been, and is, genuinely trying to reach agreement will depend on the circumstances. Those circumstances are likely to include the stage that the bargaining has reached and the behaviour of the employer and other bargaining representatives. At early stages in bargaining, the claims of a bargaining representative and the agreement it proposes may reasonably be “inchoate” and might consist of no more than issues or topics that have been raised for discussion and not documented in any way. That fact will not necessarily or even commonly be indicative of a bargaining representative not genuinely trying to reach an agreement for the purposes of s 443(1)(b)…
[34] An allegation that an application for a protected action ballot order is premature does not, of itself, provide a basis for concluding that the applicant for the order has not been, or is not, genuinely trying to reach agreement. The Act envisages that protected action might be taken early in bargaining. The Commission must simply consider whether, in light of the circumstances operating at the time of its decision, the applicant has been, and is, genuinely seeking agreement. The reference to “premature applications” in Total Marine Services has been doubted or not followed in subsequent decisions…”
The vast majority of applications for protected action ballot orders are not opposed. This is unlikely to change as a result of this decision. That said, there were some unique factors at play in this particular matter (such as the employer having refused a request to bargain, and the union having a desire to take industrial action prior to the end of the construction phase of the project in order to utilise maximum collective power). The decision is not necessarily a ‘green light’ to the making of protected action ballot orders before bargaining meetings.
Kuiper Australia Pty Ltd v The Australian Workers’ Union [2024] FWCFB 378.
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