In 2014, there will be a number of significant changes to laws
that impact on the workplace.
The major change is the commencement of anti-bullying
laws on 1 January 2014. The expected 3500 cases per year
is likely to place further strain on the already tight resources of
the Fair Work Commission (FWC), which recently
reported receiving over 4000 unfair dismissal cases and 800
'general protections' claims in the quarter ending
On 20 November 2013, the FWC published for comment the
procedures it proposes to adopt to deal with applications alleging
bullying. The proposed procedures take full advantage of the
FWC's powers to make inquiries before there is a formal
After the FWC receives a bullying application, it will not only
notify the employer, but also each of the people who are alleged to
have bullied the employee who lodged the claim. The employer and
each of the alleged bullies will have an opportunity to provide
written responses and to be heard, before a formal hearing is
conducted to determine whether bullying orders will be made. After
these steps are completed, the FWC will allocate the case either
for mediation or hearing.
Other changes which will start on 1 January
Employers will have less scope to direct where trade
union officials may exercise their right to hold
discussions at a workplace. The place must be decided by
agreement, otherwise, the official has the right to conduct such
discussions at a place ordinarily provided by the employer for
employees to have meals or other breaks. The employer may still
direct the route which a trade union official may take to the place
where discussions will be held.
Expansion of the ability of the FWC to deal with right
of entry disputes, the main one being to deal with
disputes about the frequency with which a trade union official or
union wishes to hold discussions at a workplace.
New obligations on employers operating in remote
areas to assist trade union officials with transport and
accommodation for gaining access to the workplace.
The FWC will be able to resolve 'adverse
action' claims that have been through a private
conference but have not been resolved, through arbitration when the
parties consent. When this occurs, the claim cannot be made in the
On 15 November 2013, Senator Abetz confirmed that legislation
will be introduced to reverse many of the 'right of entry'
changes due to start in 2014. The Government also intends to
release draft terms of reference for a Productivity Commission
Inquiry into the Fair Work Act 2009 (Cth)
(Act) in March 2014 and to review the handling of
appeals from decisions of the FWC.
The other significant change is the start of new privacy
laws on 12 March 2014. Please see our earlier article
about these changes
Today DibbsBarker has published commentary on several employment
law topics, discussing:
The developing law around adverse action claims and the
expansive way they are being applied. In particular, we look at the
situation where an employer breaches the adverse action provisions
of the Act if adverse action (eg dismissal or prejudicing an
employee) is taken because an employee is able to make a
complaint or inquiry in relation to their
employment. Read more
The potential for employees to challenge a dismissal on the
basis that it was not genuine, in situations where an employer
dismisses due to redundancy. We look at the redeployment
obligations of employers and the level of inquiry that
must be made to ensure a decision is not successfully challenged.
Proposed changes to the way unfair dismissal
cases will be handled. The changes are intended to lead to
a quicker resolution through the FWC, however whether these will
achieve such an aim is uncertain. Read about these changes
Constructive dismissal, or a resignation which
is forced upon an employee, in situations where an employer refuses
an employee's request to move from full-time to part-time
hours. Read more
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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