2014: The year that was – in workplace relations

Analysis

2014: The year that was – in workplace relations

As we say hello to 2015, it's worth looking back on what the most relevant developments were in 2014.

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By Tim Greenall, Michelle Dawson and Emily Dempster

2014 was rife with changes and developments to the workplace relations landscape. It would be an almost impossible task to comprehensively list all of last year's relevant developments. However, we have chosen some of them to highlight here as we look ahead to all that 2015 may bring. 

Bullying


Possibly the most highly anticipated of new issues to hit the landscape this year was the establishment of the Fair Work Commission's new bullying jurisdiction.

Interestingly, despite the initial "shock, horror" thoughts and responses from employers and employer groups and even the Commission itself, the introduction of the new provisions has essentially resulted in an anti-climax of sorts.

The recent annual report issued by the Fair Work Commission on 15 October 2014 shows that the once anticipated 'tsunami' of complaints was an over-reaction, with just 270 anti-bullying conferences and hearings having taken place nationwide in the period January to June 2014.

Of these matters, only a small minority have resulted in formal decisions (21 of them, in fact) and only one of those decisions resulted in a finding that bullying had occurred and may reoccur. The remaining 20 such applications were dismissed.

The Commission's annual report


More broadly, the Commission's annual report indicates an increase in hearings generally, although the increases were, for the most part, relatively insignificant. The latest statistics as to unfair dismissal cases is that 79% of such applications settled at conciliation.

Pay rates and other monetary changes


From 1 July 2014 minimum rates of pay in Modern Awards increased by 3% following the 2014 annual wage review. A range of expense related allowances under modern awards were also increased in line with percentage increases to the Consumer Price Index. A new national minimum wage was also set. That rate, for a full time adult, is now $640.90 per week or $16.87 per hour.

Also on 1 July 2014, as we have written previously, the transitional provisions under Modern Awards ceased to apply and the full pay rates, casual loadings, shift allowances and penalties in Modern Awards began to apply (with minor exceptions).

Another change from 1 July 2014 was the annual increase to the high income threshold to $133,000.

Significantly, from 1 July 2014 employers became required to contribute 9.5% of an employee's ordinary time earnings into superannuation.

The Budget


The Budget also introduced some key changes for employers to note, including the change to superannuation guarantee contributions which will no longer increase to 12% over the next five years, instead remaining fixed for three years, rising to 10% from 1 July 2018 and then increasing by 0.5% each year until reaching 12%.

Trade Union Royal Commission


2014 has also seen the Honourable Dyson Heydon AC QC appointed to lead a Royal Commission to enquire into the alleged financial irregularities associated with the affairs of trade unions. The Royal Commission began the hearing process on 9 April 2014 and heard evidence from 120 witnesses.

An interim report to the Governor-General is expected to be delivered on 15 December 2014. As to the ultimate conclusions and recommendations, that will be something which 2015 will deliver after the Royal Commission's extended term for hearing evidence.

High court decisions


Significantly in 2014 we have had the High Court deliver decisions in two separate matters relevant to workplace relations.

As we have written previously, in the much anticipated and highly publicised decision of the High Court in Commonwealth Bank of Australia v Barker 2014 HCA 32 (delivered on 10 September 2014) the majority of the High Court held that there was no common law duty of mutual trust and confidence applicable to an employment contract.

The other significant decision of the High Court this year, detailed further in this edition of our Workplace Insights, is a decision in the CFMEU 'scab' case (CFMEU v BHP Coal Pty Ltd [2014] HCA 41), a decision essentially reaffirming the High Court's earlier decision in Barclay (Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Anor (2012) 248 CLR 500) and upholding the notion that it is the subjective view of the decision maker that really matters in adverse action cases.

Enterprise agreements


We have also seen some developments in the area of enterprise agreements, with the Commission:
  • reinforcing its approach that strict compliance with the pre-approval steps is required for an agreement to be approved;
  • settling, perhaps once and for all, the issue of whether or not annual leave can be incorporated into an hourly rate of pay in an enterprise agreement (the answer from the full bench of the Commission has been an emphatic "no"); and
  • confirming that a "no further claims" clause in an enterprise agreement does not prevent an employer from using the provisions of the Fair Work Act 2009 (Cth) to vary an enterprise agreement.

Sexual harassment


2014 has also seen a perpetuation of the trend in increased sexual harassment claim damages. The case of Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 has seen an employee complainant awarded $130,000 in general damages by her employer who was found to have been vicariously liable for the actions of another employee who, it was determined, had sexually harassed the complainant in the workplace over a seven-month period.

Age discrimination


Age discrimination has also experienced some developments. In April 2014 the Fair Work Ombudsman successfully prosecuted its first age discrimination matter (Fair Work Ombudsman v Theravanish Investments Pty Ltd and Others [2014] FCCA 1170 (2 April 2014)).

With the revelation that the retirement age may increase to 70 by 2035, we expect that in 2015 and beyond we may see an increased focus on age discrimination in the workplace, perhaps by the Fair Work Ombudsman in particular.

Victoria-specific developments


In Victoria we have this year also seen developments in:
  • police powers to "move on" disruptive union pickets;
  • occupational health and safety regulations (with amendments commencing, largely to remove certain administrative requirements and with the main amendments being around construction, plant, high risk work licences, hazardous substances, carcinogenetic functions and chemicals, lead, registered plant and design and mines);
  • "Worksafe Victoria" rebranding and returning to its legal name, the Victorian WorkCover Authority; and
  • action around machinery guarding (the County Court in Melbourne has recently fined an employer $375,000 for its failure to install adequate machinery guarding, which contributed to the crushing of employees' hands in two separate incidents). Incidentally, that case represents the 17th prosecution in Victoria in 2014 for guarding related breaches of occupational health and safety laws.

Transport industry


The transport industry has experienced significant change this year. The first Road Safety Remuneration Order handed down by the Road Safety and Remuneration Tribunal took effect on 1 May 2014. Transport providers have consequently spent significant amounts of time reviewing their arrangements and taking the necessary steps to ensure compliance.

In addition, the Heavy Vehicle National Law took effect in most States (Victoria, Queensland, New South Wales, South Australia and Tasmania) on 10 February 2014, establishing a national system through uniform laws administered by a single national regulator - in an effort to assist the transport industry to comply with their obligations across Australia by reducing inconsistencies and duplication across the States and Territories.

Conclusion


That completes our "round up" of 2014. Again, whilst not all inclusive, it can be seen that much has occurred in the workplace relations space in 2014. Hopefully you will all be enjoying a holiday over the Christmas and January period and we hope that your break is both restful and safe.

Looking ahead to 2015, it would seem there are some further changes on the horizon.

To that end, there are currently numerous relevant bills before the Senate.
  • The Fair Work Amendment Bill, if passed, will represent the first significant amendments made by the federal government since its election in September 2013 and will impact issues such as changes to the making of greenfields agreements, right of entry provisions, annual leave loading in the context of termination and transfer of business. .
  • The Fair Work Amendment (Bargaining Processes) Bill (introduced to Parliament on 27 November 2014) will, if passed, make improvements to the processes associated with the bargaining of enterprise agreements with an overall focus upon the delivery of productivity improvements to business.
  • The Building and Construction Industry (Improving Productivity) Bill is also before the Senate. That Bill, if passed, will prohibit certain unlawful industrial action and re-establish the Australian Building and Construction Commission.
  • The Fair Work (Registered Organisations) Bill, also presently before the Senate, will (if passed) establish a new body to be called the Registered Organisations Commission and provide that body with investigation powers to monitor and regulate union activities.
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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

This article first appeared in Workplace Insights, a publication of Madgwicks Lawyers.
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