United States: Monthly Update—Australian Labour & Employment - August 2014

Last Updated: September 10 2014
Article by Adam Salter
Most Read Contributor in United States, September 2019

ECONOMIC DEVELOPMENTS

Visa Grants Decrease: Is the Two-Speed Economy Shifting Gear?

The latest Department of Immigration statistics have revealed a 25 percent decrease in the number of 457 visas granted in FY2013. In particular, the number of 457 visas granted in the mining and construction sectors declined by 42 percent and 40 percent respectively, but 69 percent of 457 visa recipients took up work as managers and professionals. The redistribution of 457 visas across the economy suggests a declining growth in the mining states, and the geographic distribution of those visas supports this. 

Seventeen percent of all 457 visa recipients took up work in Western Australia, but 62 percent commenced employment in New South Wales and Victoria. As to the nations from which 457 visa holders come, 23 percent arrived from India, 18 percent from the United Kingdom and 6.5 percent from China. The redistribution of 457 visas may reflect a growth in the professional services distributed across the east coast of Australia and a commensurate decline in mining and construction works taking place in Western Australia and Queensland.

The same statistics have revealed that the mining sector still pays the highest base salary, $138,700, to its 457 workers. The financial services sector follows, paying $117,000 and the utilities sector pays $116,100 as its average base rate. Western Australia, however, is no longer paying the highest rates. That honour belongs to New South Wales, followed by the Northern Territory, Queensland and Victoria. Employers should be aware that the Federal Government may, in light of these statistics, consider decreasing the number of 457 visas in the coming financial year. 

IN THE PIPELINE—HIGHLIGHTING CHANGES OF INTEREST TO EMPLOYERS IN AUSTRALIA

Fair Work (Amendment) Bill Passed by House of Representatives

The Fair Work (Amendment) Bill 2014 (Cth), which we have previously reported on, has been passed by the House of Representatives. The Bill now awaits approval by the Senate. In July, we reported that the Senate Standing Committee on Education and Employment recommended to the Senate that it pass the Bill without any amendments. Accordingly, it is almost certain that the Bill will be passed on the next Senate sitting date. 

The Bill, in the words of the Attorney-General, "protects and restores" the rights of the individual in the workplace. As discussed in our March and May Updates, the Bill prevents unions from taking greenfields agreements to the Fair Work Commission unless they have negotiated with an employer for three months. It also prohibits unions from entering workplaces unless they are covered by an enterprise agreement or are invited onto the premises by a member. It also expands the matters to which an IFA applies and dilutes the power of unions to limit their application. The Bill is expected to become law before the end of the year. 

HOT OFF THE BENCH—DECISIONS OF INTEREST FROM THE AUSTRALIAN COURTS

Fivefold Increase in Damages for Sexual Harassment: Full Federal Court of Australia

In the most significant decision for employers this year, the Full Federal Court has increased the damages available for pain and suffering in a sexual harassment claim by a factor of five.

In Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, a female manager employed by Oracle, Rebecca Richardson, was found to have been sexually harassed by a male sales consultant based in Melbourne for six months in 2008. The harassment ceased only when Richardson reported the conduct to her manager. Both the trial judge and the Full Court were critical of Oracle's investigation in four key respects. Firstly, Oracle permitted contact between Tucker and Richardson during the investigation. Secondly, Tucker was required only to give a written, evasive apology. Thirdly, Tucker was not dismissed but given a first and final warning. Finally, Oracle representatives encouraged Richardson not to visit its Melbourne offices again. Richardson resigned and took up elsewhere shortly after the completion of the investigation. 

The trial judge found that Oracle was vicariously liable because it had not done everything reasonable to prevent the harassment of the sales manager. Accordingly, the trial judge awarded her $18,000 in damages for pain and suffering. The trial judge noted that he would have awarded her $30,000 for economic loss caused by taking up a lower paid position if the evidence proved a link between that decision and the harassment.

Richardson appealed many aspects of the decision but succeeded upon two, namely that damages for pain and suffering were inadequate and that there was evidence establishing economic loss such that she should have been awarded the $30,000. As to pain and suffering, Justice Kenny of the Full Court held that the award did fall within the range of damages available for pain and suffering. However, that range was now inadequate. Community standards now placed a higher value on quality of life than when the range was first set down. Furthermore, a restrictive approach to damages is inconsistent with the beneficial intent of the Sex Discrimination Act under which the claim was made. 

Accordingly, it was found that the pain and suffering Richardson endured merited an award under this head of $100,000 instead of $18,000. As to there being no evidence of the harassment causing economic loss, Justices Besanko and Perram found that statements made by Richardson to others at the time of the investigation—that she had lost confidence in Oracle and her acceptance, soon after, of lower paid employment—established the necessary link.

Key Takeaway

The key takeaway for employers is that there are two points at which they may mitigate their exposure to a sexual harassment claim. The first is at the stage of establishing vicarious liability, and the second is in the damages calculation. To prevent a finding of vicarious liability, employers should demonstrate that they have done everything reasonable to prevent the sexual harassment. To do this, employers should hold sexual harassment seminars regularly to warn employees of the seriousness of that conduct. 

Furthermore, the contract of employment should provide that proven sexual harassment will justify summary dismissal. As to minimizing damages, employers should prevent the subjects of investigations from contacting complainants. Those complainants, whether or not their claims are substantiated, should be given counseling at the employer's expense. Implementation of these strategies should help employers to avoid sharing the fate of Oracle. 

Supreme Court Takes Dim View of Employee Disloyalty

Justice Kelly of the South Australian Supreme Court has awarded at least half a million dollars to Artcraft Pty Ltd, whose production manager was found to have breached his contract, his fiduciary duties and wrongfully converted his employer's property by selling it to a recycling firm for his personal profit. 

Artcraft produces road signs and employed Benjamin Dickson in its Adelaide branch to manage the production of those signs. Dickson decided to sell the scrap metal by-products found at Artcraft's premises to Ferris Metal Recyclers and pocketed the proceeds for four years, which Artcraft was able to prove at trial. Justice Kelly found for Artcraft on all three claims against Dickson. Notably, Justice Kelly awarded exemplary damages in respect of the claim for conversion, calling it a "fraud of the most egregious kind". Justice Kelly also held that Dickson's wife had been an accessory to the fraud and was also ordered to pay $59, 800 to Artcraft.

Key Takeaway 

The key takeaway for employers is that they should have confidence that courts will appropriately compensate employers for claims of dishonest conduct on the part of their employees, provided that sufficient evidence is gathered in respect of such misconduct.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions