HR UPDATE. Refusal to work over me leads to adverse ac on claim. December VTA HR Network. for 2013

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1 Inside this newsle er Page No. 2 Na onal focus on bullying 3 In the spotlight: cases on redundancy 4 Fair Work Australia s new tool to search for Agreements 5 Fair Work amendments pass the Senate 5 Christmas party reminders VTA HR Network Mee ngs for February 10 April 30 May 18 July 19 September 21 November 10am 1.00pm VTA offices Refusal to work over me leads to adverse ac on claim Under sec on 62(2) of the Fair Work Act 2009 (the Act), an employee must not request or require a full me employee to work more than 38 hours in a week unless the addi onal hours are reasonable. If an employee is dismissed for refusing to work those addi onal hours, the employee may challenge the dismissal as a contraven on of the general protec ons provisions (s 340) in the FW Act, as happened in a recent case before the Federal Magistrates Court of Australia (FMCA). Mr Brown worked as a full me fish keeper in a Brisbane fish store. Premier Pet offered voluntary over me to employees to undertake rou ne maintenance work on nontrading days, including Saturday, Sunday and public holidays. However Premier Pet gave Mr Brown 14 days' no ce that the over me would become mandatory and Mr Brown would be required to work 3 addi onal hours on a non trading day once every seven to 10 non trading days. Mr Brown objected and proposed that he be granted me in lieu during the working week. Premier Pet refused to discuss the requirement and threatened him with dismissal. Mr Brown a empted to refer the dispute to Fair Work Australia but Premier Pet dismissed Mr Brown. The reason given by Premier Pet for dismissal was that Mr Brown refused a proper direc on to work reasonable addi onal hours. Mr Brown stated that by refusing to par cipate in the involuntary non trading day roster, he had exercised a workplace right, namely, his en tlement to refuse to work unreasonable hours, pursuant to s 62(2) of the Act. Further to that, as Premier Pet had dismissed him for that reason, they had taken adverse ac on against him for a prohibited reason. In determining the ma er, the Court had to consider whether Premier Pet had demonstrated that the addi onal hours it required Mr Brown to work were not unreasonable. Ul mately the Court determined that Premier Pet had not discharged the onus on it to demonstrate that the requirement to work the addi onal hours was reasonable. Therefore it failed to establish that it did not terminate employment for exercising his en tlement to refuse to work unreasonable hours. When determining what is reasonable in terms of addi onal hours, the Court relied upon the factors set out in s62(3) of the Act, more specifically employee's personal circumstances, including his family responsibili es. In this case, Mr Brown lived with his mother who required his assistance with some things. The Court also took into considera on, the lack of discussion that occurred with Mr Brown about the proposed involuntary roster. Con nue next page... Victorian TAFE Association Level 3/478 Albert Street, East Melbourne VIC 3002 Ph: (03) , Fax: (03) Reg. No. A37584B

2 However the primary reason why the Court considered that Premier Pet had failed to establish that the requirement of further over me on an involuntary basis was not unreasonable was because it failed provide evidence about how much over me Mr Brown had worked from me to me, either specifically or on an average. The Court stated that Premier Pet needed to produce this evidence to demonstrate that, given the total amount of over me worked by Mr Brown, the obliga on of addi onal involuntary over me was not unreasonable. Premier Pet was ordered to reinstate Mr Brown. Brown v Premier Pet t/a Bay Fish [2012] FMCA 1089 Lesson for Ins tutes Before an employee is disciplined or dismissed for refusing to work over me, it is vital that Ins tutes verify they can establish that the requirement to work those hours is not unreasonable. Sec on 62(3) of the Act sets out some of the factors that should be taken into considera on. These factors are similar to clause of the MBA (Excess Teaching Duty Hours). Ins tutes need to be prepared to consult with an employee and listen to their objec ons about an over me requirement before seeking to discipline an employee for not mee ng it. Na onal focus on bullying The House of Representa ves Standing Commi ee on Educa on and Employment has tabled its report into workplace bullying, "Workplace bullying: we just want it to stop". A feature of the report's focus is the recommended new defini on of workplace bullying "repeated, unreasonable behaviour directed towards a worker or group of workers, that creates a risk to health and safety". This shi s the focus of workplace bullying from being a HR issue and places it squarely in the work health and safety category. Meaning that Ins tute s must then apply standard work health and safety risk management principles (just as they do to other hazards in the workplace) in managing workplace bullying, as well as being able to manage complaints of bullying with the robust tools that health and safety provides. Other recommenda ons on workplace bullying include: implementa on of a na onal resolu on service; and a na onal approach to adop ng the Victorian legisla ve changes under Brodie's Law. Brodie's Law amended the offence of "stalking" in the Victorian Crimes Act 1958 to "expressly include making threats, using abusive or threatening words, performing abusive or offensive acts, or ac ng in a way that could reasonably be expected to cause the vic m harm or self harm". While these proposals may take some me to result in legisla ve changes, it is clear that bullying and harassment is a significant issue that are no longer seen as a just a behavioural/hr problem. All Ins tutes should ensure that they have a clear and defini ve approach to managing workplace bullying, focussing their efforts and processes within their work health and safety management systems as well as their HR func on. Bullying is a clear and present workplace hazard that should be managed as such. 2

3 Workplace Seminars VicSuper can host seminars at your Ins tute to help you, or your staff feel more confident about making decisions about super and re rement planning. Workplace seminars are provided at no charge and are available throughout metropolitan Melbourne and regional Victoria. To arrange a workplace seminar, please contact Sue Seabrook on or your local VicSuper representa ve. In the spotlight: cases on redundancy If a dismissal is a 'genuine redundancy' it cannot be an unfair dismissal. Sec on 389(1) states that a dismissal will be a genuine redundancy when: The job must no longer be required to be done by anyone because of opera onal changes Consulta on obliga ons contained in an applicable modern award or enterprise agreement must be complied with It must not have been reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated en ty. Obliga on to consult The failure to comply with consulta on obliga ons in an applicable modern award or enterprise agreement will mean that the redundancy is not a 'genuine redundancy', even though the redundancy may be based on a valid reason. In Ball v Metro Trains Melbourne T/A Metro Trains[2012] FWA 8384), Mr Ball was awarded payment of $38, a er it was found that his employer unreasonably failed to consult with him about his redundancy, therefore making his dismissal unfair notwithstanding that his posi on was redundant. Commissioner Roe described 'consulta on' as being 'a genuine opportunity to influence the decision maker' and was not sa sfied that the employee had been afforded such an opportunity consistent with the applicable enterprise agreement. Obliga on to comply with redundancy policies and procedures Breach of a company redeployment policy may be a breach of the implied term of mutual trust and confidence. In Barker v CBA [2012] FCA 942, the Federal Court awarded a former Commonwealth Bank of Australia (CBA) execu ve $317,500 in damages for CBA's breach of the implied duty of mutual trust and confidence for failing to comply with its detailed redeployment policy. Although the policy did not become part of the execu ve's contract of employment, the Court found that a 'serious breach' of the policy was a breach of the implied term of mutual trust and confidence. CBA was found to have failed to consult or discuss retraining, consider redeployment op ons and develop a redeployment plan contrary to its policy. The fact that the execu ve would only have had a 25% chance of being redeployed if the policy had been followed was not found to be relevant. CBA has appealed the decision, and the appeal is yet to be heard. Con nue next page 3

4 Obliga on to offer redeployment and reasonable training The obliga on to offer redeployment may extend to exploring opportuni es interstate. In Aldred v J Hutchinson Pty Ltd [2012] FWA 8289, it was found that a Melbourne based construc on worker was not genuinely redundant because his employer, a na onal company, could have redeployed him interstate. Commissioner Lewin said J Hutchinson was a na onal company employing over 1,100 people and engaging 2,500 subcontractors with a turnover of $1.2 billion and had vacancies in its Queensland opera ons, which the worker could have been engaged to fill. According to FWA, it would not have been unreasonably burdensome for the company to have explored interstate opportuni es. The obliga on to redeploy may extend to providing a reasonable period of re training. In Crema and others v Abigroup Contractors Pty Ltd [2012] FWA5322, Abigroup argued that the workers weren't trained or experienced in civil construc on work and were not suitable for redeployment on a new project. However, Commissioner Cribb held that it was unreasonable for four current employees to have been dismissed when four new employees were offered employment and a 10 week training course with support and supervision. On this basis, it was determined that it would have been 'reasonable in all of the circumstances' for the applicants to have been redeployed and found that they had been unfairly dismissed. This case was appealed by Abigroup (Abigroup Contractors Pty Ltd v Crema and others [2012] FWAFB845) for the reason of procedural fairness. The appeal related to a ruling of Commissioner Cribb that Abigroup not be permi ed the opportunity to call a par cular witness to give evidence regarding possible redeployment. The Full Bench was sa sfied that the Commissioner had erred in denying Abigroup the opportunity to lead evidence on the issue of redeployment. The case has been remi ed back to Commissioner Cribb, as agreed by the par es, to determine the ma er further. It should be noted that the Full Bench in its closing remarked that from their conclusion, the unfair dismissal applica on should not have necessarily been determined differently. Lesson for Ins tutes These cases highlight that in order to avoid the risk of a finding that the redundancy was not in fact a 'genuine redundancy', consulta on obliga ons in the MBA or enterprise agreement must be complied with and redeployment opportuni es must be properly explored (including in other divisions or interstate opera ons if reasonable under the circumstances). FWA have emphasised that it is not the employee's responsibility to iden fy redeployment opportuni es, although the employee may do so during the consulta on process. Fair Work Australia s new tool to search for Agreements FWA has introduced a new web tool to assist in searching the content of enterprise agreements approved by FWA. The previous web tool only enabled users to search for enterprise agreements, not the content of enterprise agreements. The enhanced search engine will be a valuable resource for Ins tutes when nego a ng new agreements as it will enable Ins tute to research par cular clauses of interest. To search the content of enterprise agreements approved by FWA, or enterprise agreement decisions, use the search func on in the Resources box. h p:// 4

5 The Fair Work Amendment Bill 2012 (Bill) has passed the Senate and now awaits royal assent, coming into force from 1 January A number of amendments to the Fair Work Act 2009 will have various implica ons for Ins tutes. Some of the key amendments to be aware of include: Fair Work Amendments pass the Senate Fair Work Australia (FWA) will become the Fair Work Commission (FWC). This will be perhaps one of the most visible changes resul ng from the Bill. The me limits for lodging unfair dismissal claims and adverse ac ons claims in FWA were previously 14 and 60 days respec vely they are now both 21 days in FWC. FWC will have broader powers to dismiss unfair dismissal cases, and to award costs against par es, lawyers and other agents. Amendments to costs provisions signal a move towards restoring similar provisions previously contained in the Workplace Rela ons Act Opt out clauses in enterprise agreements will be expressly prohibited, as will be collec ve agreements with only one employee. There will be an introduc on of default superannua on funds in modern awards. The uniform me limits for unfair and adverse ac on claims should prevent employees from lodging unfair dismissal claims and withdrawing their claim to lodge an adverse ac on claim in the event that they do not Christmas party reminders for employer sponsored events Managers should ensure that they do not become intoxicated so that they can keep an eye on other staff members; All staff should be reminded that it is a work func on and that the same standard of behaviour expected in the workplace is expected at the func on, in par cular, that discrimina on, sexual harassment and breaches of work health and safety obliga ons will not be tolerated; Ins tutes should ensure that any employees younger than 18 years of age are not provided with alcoholic beverages; Ins tutes should ensure that staff who have been issued with an Ins tute vehicle do not drive the vehicle home if they have been drinking at the func on; Ins tutes should ensure that food is available to offset alcohol consump on; Ins tutes should supply a large variety of low alcohol and non alcoholic beverages as alterna ves; Ins tutes should ensure that employees arrive safely home. This may mean that CabCharge vouchers or other transport should be arranged, par cularly for those employees who live a long distance from work or the venue of the func on; and Ins tutes should specify a concluding me. This does not mean that a Christmas party can t be fun just be aware of the poten al risks and plan accordingly. 5

6 2013 HR Network Mee ngs Thursday 21 February Wednesday 10 April Thursday 30 May Thursday 18 July Thursday 19 September Thursday 21 November 10am 12.30pm VTA offices Some special topics may result in a ernoon sessions on occasions. For further information concerning this Update contact: Leanne Sumpter, Workforce Services Consultant Victorian TAFE Association Level 3, 478 Albert Street, East Melbourne 3002 Ph: (03) , Fax: (03) lsumpter@vta.vic.edu.au Note that this HR Update is prepared by the VTA for the general information of member organisations. While it provides general background on the selected topic, advice should be sought in the first instance from the VTA office before acting on the material contained herein.