Focus: Changes to employment laws in 2014 and commentary on employment law topics
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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 September 2013.

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 hearing.

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 2014 are:

  • 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 court.

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 here.

Comment

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 here.
  • 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. Read more here.
  • 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 here.
  • 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 here.

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.