HR Toolbox Edition 11 – 2018

by | Mar 12, 2018 | Employment Law and Workplace Relations Blog

Employment law and HR news for employers and HR professionals

Latest news

  • The Fair Work Commission has approved the amalgamation of the CFMEU, MUA and TCFUA which will take effect from 27 March 2018. An appeal to this decision has already been lodged by two employer groups. To read the full decision, click here.
  • The McGowan Government has approved the drafting of a modernised workers’ compensation statute. In a media statement released 15 February 2018, the State Government acknowledges that the current Workers’ Compensation and Injury Management Act 1981 is outdated, complicated and fundamentally unclear, and is to be replaced with a modern Act that is clear, accessible and workable. At this stage, we know that the Bill intends to implement lifetime care and support arrangements for catastrophically injured workers similar to that of the WA Catastrophic Injuries Support Scheme introduced for motor vehicle accidents in July 2016. Prior to the introduction of the draft Bill, the State Government confirms that there will be a period of public consultation in order to ensure WorkCover WA’s commitment to open and consultative legislative review. The media statement can be viewed here.
  • The Department of Mines, Industry Regulation and Safety has released for public comment a draft code of practice for mentally healthy workplaces for fly-in fly-out (FIFO) workers in the Western Australia resources and construction sectors. The purpose of the code is to manage exposure, as far as practicable, to psychosocial hazards and factors in workplaces, including the implementation of appropriate controls, strategies and programs for intervention, recovery and promotion of wellbeing. Submissions close Thursday 19 April 2018. For further information click here.

Latest decisions

  • The High Court has accepted a primary judge’s decision to prevent unions from paying penalties imposed on union officials. By majority, the High Court granted leave to appeal a decision of the Full Court of the Federal Court of Australia, regarding whether a judge has power to order either that a union cannot indemnify a union official against a pecuniary penalty, or that a union official cannot seek or accept indemnity or a contribution from the union in respect of an imposed pecuniary penalty. This decision relates to an $18,000 fine paid by the CFMEU on behalf of Mr Joe Myles (Victorian Branch organiser) in 2013 for his unlawful conduct. At the time, the primary judge also made a non-indemnification order. The Australian Building and Construction Commission appealed to the Full Court, which held that the primary judge had no power to make the non-indemnification order. The High Court held that personal payment orders could be made undersection 546 of the Fair Work Act in order to accomplish the effect that the pecuniary penalty is calculated to achieve. The matter was remitted to the Full Court for the imposition of penalties. Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 (14 February 2018).
  • The Federal Circuit Court rules that a worker is a permanent employee despite 15 years of, what appears to be, casual loading payments. The employee was originally engaged in 2000 by the now deceased Director, with no documented terms of engagement. The employee worked full-time hours, as well as substantial overtime hours. It appears than he was never paid annual leave, public holiday leave or sick leave. However, he was paid what may be considered as a loading in excess of Award rates for permanent employees but could not confirm whether the loading was paid at the 20% and 25% loading required (as per the respective Award’s at the time). Despite finding that the employee “probably” believed that he was a casual employee, the judge observed that this was not a determinative factor in the case. The judge considered that the employee satisfied all the elements in the Award’s definition of permanent employee and thus he was entitled to 15 years of unpaid entitlements for annual leave as well as a notice period, to be paid at his ordinary rate of pay at the time of termination. To read the full decision click here.
  • In a recent decision, the FWC has clarified that its rules do not prevent parties from obtaining legal advice in the lead up to a Fair Work Hearing. The FWC was required to clarify its formally ambiguous position on legal representation in response to a matter in which an unrepresented former employee argued that the Fair Work Commission Rules (2013) Rule 12(2) should prevent his former employer from engaging legal representation during the preliminary stages of the matter.  In making his decision, Deputy President Richard Clancy opined that “the power to make a direction in Rule 12(2) is, in my view, limited to the representational activity outlined in Rule 12(1) and that representational activity does not extend to the obtaining of legal advice”. In doing so, the Deputy President followed the 2017 full bench decision of Fitzgerald (to read the Fitzgerlad decision click here). Regardless of whether an application has been made to the Commission, representation for which permission is required pursuant to section 596 of the Fair Work Act, does not extend to the provision of legal advice to a party. To read the full decision click here.
Kate Reynolds

Kate Reynolds