AREAS OF PRACTICE

Industrial Law

UNFAIR DISMISSAL    SEXUAL HARASSMENT

WORK CHOICES

UNFAIR DISMISSAL
New legislation on industrial relations. The new Work Choices legislation makes a number of significant changes to employment and industrial law across the country.
One of the most publicised aspects of the new legislation is the increased restriction on making a claim for unfair dismissal.
First, there can be no unfair dismissal claim if the employee was employed by an employer that employed 100 or fewer employees. ‘Related bodies corporate’ will be interpreted as one entity for the purpose of determining the number of employees, to ensure that corporate restructuring cannot be used to exploit the 100-employee threshold.
Second, a person will no longer be able to claim that they were unfairly dismissed if the reasons for dismissal include ‘genuine operational reasons’.
Third, the qualifying period, which is currently three months, will be increased to six months, so that no employee engaged for less than six months will be able to make an unfair dismissal claim.
Lastly, seasonal employees will also be unable to claim that they have been unfairly dismissed.
It is likely that the number of claims through alternative channels, including unlawful termination claims, actions for breach of contract and claims based on anti-discrimination and trade practices law, will increase.
Another significant change is the introduction of a fair pay and conditions standard. This is a set of absolute guarantees of five minimum conditions that cannot be overridden. It includes basic rates of pay and casual loadings, a maximum of 38 ordinary hours per week plus ‘reasonable additional hours’, four weeks paid annual leave per year (plus an extra week for shift workers), ten days paid personal/carer’s leave after 12 months of service, with a further two days of unpaid carer’s leave if paid leave has been exhausted, and two days of compassionate leave for each ‘permissible occasion’, and 52 weeks unpaid parental leave at the time of birth or adoption of a child.
Awards will no longer be the safety net for workers, as the standard will outline minimum entitlements. And while certain terms in awards, relating to such things as annual leave and superannuation will be preserved, entitling employees to benefits they received previously where those benefits are more generous than the minimum conditions imposed by the standard, workplace agreements can override the operation of a preserved award term.
There are also a number of ‘non-allowable matters’ that can no longer be included in an award. These include provisions for automatic union representation in the dispute resolution process and restrictions on the engagement of independent contractors.
A range of provisions will make it harder for employees to engage in protected industrial action. To be protected, action must take place in a bargaining period, and be approved by a majority of employees voting in a secret ballot. No action will be permitted during the life of a workplace agreement, even if the action relates to issues that are not covered by the agreement.
A limited right to a day off on public holidays was added to the reforms. Employees may be asked to work on public holidays, but they can refuse if they have reasonable grounds for doing so.
The reasonableness of any refusal will be determined by a range of factors, including the nature of their job, the operational requirements of the employer, the amount of notice given, and whether the employee could have been expected to be requested to work on a public holiday.
Employers risk a fine of up to $33,000 if they dismiss or alter the employment of employees who have reasonably refused to work on a public holiday.
While the reforms have come into force, a constitutional challenge launched by the states may result in a lingering uncertainty over the legislation for some time.

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SEXUAL HARASSMENT
Where does the workplace end?
A recent case which found an employer liable for acts of sexual harassment by one employee against another when both were off duty and in a location away from the actual workplace shows how far employer responsibility stretches.
he harassment occurred when both employees were living in staff accommodation provided by the employer as part of its hotel complex. One of the issues considered by the courts was whether there was sufficient connection between the acts of the harasser and his employment in order to make the employer liable.
An employee was asleep in her room. At about 3:00 a.m. another employee entered uninvited and woke her, talking to her for more than half an hour. Six days later the female employee found the same person lying uninvited on her bed.
The court found that she had been sexually harassed and that the degree of control exercised by the employer in relation to the staff accommodation and to staff behaviour on its property was a key part of the employment relationship.
It placed particular emphasis on the fact that failure to comply with these conditions had led to instant dismissal of the intruding employee. The court dismissed an appeal by the employer on the basis that it was only by virtue of being staff that the two people were in the premises where the sexual harassment occurred.
The case points out how vigilant employers must be about the possibility of such practices in the workplace.

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