Workplace Flashcards
(9 cards)
Covid reforms
FWC made determinations to 99 awards to improve flexibility: flexible work arrangements, unpaid pandemic leave, greater flexibility in accessing annual leave
- e.g. can access 8 weeks of annual leave at half pay
MANDATORY VACCINATIONS: increased safety concerns
- Mandatory vaccinations for childcare and disability care workers
- “no jab, no job rule” - ABC, 2021
Bou Jamie Barber v Goodstart Early LEarning FWC 2021 and Maria Glover v Ozcare FWC 2021
- Both ruled in favour of the company dismissing an employee for refusing to get the vaccine
Coronavirus Economic Package (Payments and Benefits) Act 2020
- Transport Workers Union of Australia v Qantas Airlines
- Union won: Qantas trying to outsource 2,000 workers, saving $20 million
Sexual harassment
Sex Discrimination Act 1984 (Cth) - prohibits sexual harassment
- no explicit protection under the Fair Work Act 2009 but comes under a “general protections” claim
INCREASING STATS:
- one in 3 workers experienced sexual harassment in 2018 - AHRC
- Brittany Higgins - sexual assault in parliament 2021
Richardson v Oracle FWC 2014
- Increased damages from $18,000 to $130 000 (increased compliance)
Reem Yelda v Sydney Water & Anor NCAT 2021
- Awarded $200 000 in damages - effectiveness of both state and federal level mechanisms
AHRC: Respect@Work Inquiry 2020
- 55 recommendations for sexual harassment changes to workplace law
- Sex Discrimination Amendment (Prohibiting all sexual harassment) Bill 2020 –> includes politicians and judges, who are currently exempt
Fair Work Amendment (Respect at Work) Act (2021)
- extends “stop bullying” orders to sexual harassment orders
- sex-based harassment is now an explicit form of unlawful conduct
2021-22 Australian budget: more money for fighting sexual harassment
However, AHRC 2020: only 17% of people who reported experiencing sexual harassment made a complaint
- system places the onus on the victim to come forward
- MeToo movement in 2017
Casual workers (good)
Increasing casualisation of the workforce
- ABS 2020 reported over 25% of employed Australians are casual workers
- flexibility, 25% casual loading
Ongoing debate concerning gig economy workers
- various court cases have provided different definitions
Workpac Pty Ltd v Skene 2018 FWC and Workpac Pty Ltd v Rossato 2020 FWC
- Both ruled that a casual labour-hire worker was an employee and entitled to leave benefits
- double dipping
Workpac Pty Ltd v Rossato 2021 HCA
- Overturned the previous rulings - a worker is defined by their contract
- provides clarity
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021
- Established definition of casual workers as “without firm advancement commitment”
- Introduced a new NES for casual conversion - employers must offer workers permanent employment after 12 months
Mental health safety (bad)
Work Health and Safety Act 2011 (NSW)
- defines health as physical and psychological
Safe Work Australia Act 2008 (Cth)
- responsible for developing and implementing model WHS laws
National Mental Health Commission Submission 2018: “the model laws…make psychological health feel like an afterthought”
“We need to talk about mental health in the workplace” - SMH, 2021
- 71% of employers believed they were committed to promoting mental health in the workplace, while only 37% of employees agreed
“Union calls for recognition of systematic bullying and harassment in the workforce” - ABC 2021
- one in 3 women and one in 5 men report bullying in the Australian workforce (beyond Blue 2020)
Gaydon v Castlereagh Hotel 2020 NSWCC
- employee died from heart attack after stressful questioning by employer –> ordered to pay $490,000 in compensation
Safe Work Australia - People At Work online risk assessment tool
- identify and manage work-related psychological risks
- compare workplaces
Negotiations - FWC
FWC - Australia’s national workplace relations tribunal set up and regulated by the Fair Work Act 2009
- can conciliate, arbitrate or hear cases before the commission
- 2020: 82% of unfair dismissal claims were resolved through conciliation (resource efficiency, less money, time, less formal, less stress)
- can order compensation and reinstatement –> legally enforceable and can create precedent
- Rachel Freebairn v Dandiie 2020 FWC and Stephen Ross v Star Track (unfair dismissal)
New Approaches program, introduced in 2017 in response to the 2013 amendment to the Fair Work Act 2009
- shifts the commission’s focus from resolving disputes to promoting collaboration and productive workplaces through interest-based bargaining
- can provide training in interest-based bargaining, dispute resolution consultative committees
- can help with enterprise bargaining and how to implement them
News Corp Australia and AMWU Printing Division (2017)
- went from “toxic” to “collaborative”, “flexible”, “responding to individual needs”
Domestic violence leave
State:
10 days paid domestic and family violence leave introduced in the NSW Treasury Section 52 (1) Determination No. 3 2018
Federal:
2017: FWC rejected ACTU’s claim for 10 days paid domestic and family violence leave
Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020
- Following NSW
- The Guardian 2020: “NSW Government urges coalition to double paid domestic violence leave”
Australian Law Commission: recommends the government amend NES to introduce additional paid family violence leave
- exacerbated by COVID ABC 2021 –> more than 1 in 2 recorded assaults were related to family or domestic violence
HOWEVER: ACTU research shows it costs around $18,000 to leave an abusive relationship (moving, accommodation, counselling, medical costs)
- 10 days paid leave = $3,500 based on the national average wage (ABS 2020)
Federal vs state dispute resolution mechanisms
FEDERAL:
FWC - Australia’s national workplace relations tribunal regulated by the Fair Work Act 2009 (Cth)
- can conciliate, arbitrate or hear matters before the commission
- 82% of unfair dismissal claims resolved by conciliation in 2020
- can order reinstatement or compensation –> legally enforceable and create precedent
- Rachel Freebairn v Dandiie Pty Ltd 2020 FWC and Stephen Ross v Star Track 2020 FWC (unfair dismissal)
2017 introduction of the FWC’s New Approaches program in response to the 2013 amendment to the Fair Work Act - shifts the Commission’s focus from resolving disputes to promoting cooperation and productive work environments through interest-based bargaining
- can provide training in interest-based bargaining, help set up dispute resolution consultative committees and help with creating and implementing enterprise agreements
- News Corp Australia and AMWU Printing Divison - from “toxic” to “productive” and “collaborative” and responding to individuals’ needs (FWC, 2017)
STATE: (bad)
Industrial Relations Amendment (Industrial Court) Act 2016 (NSW)
- abolished the Industrial Court –> court matters transferred to SC, DC and NSW Industrial Relations Commission (lack of specialised judges)
- Workload overload: “it will be more costly, unwieldy and slower” - ABC 2016
- Less accessible –> More formalistic, legal procedures, costly, time-consuming
Industrial action
Industrial action defined under Fair Work Act 2009: action taken to inhibit standard productivity to bargain for improved conditions or protest unjust workplace policies
PROTECTED:
- Offshore Alliance enterprise bargaining agreement (2021): Australian Workers Union and Maritime Union of Australia in Western Australia
- after over 12 months of protected industrial action - wages increases totalling 17% over 3 years, offers of permanent employment to 44 casuals and increase in permanent pay rate
Recognising workers rights to bargain in good faith, resulting in fairer work conditions and increased pay
UNPROTECTED:
In 2011, the FWC terminated Qantas’ workforce lockout under sections 406-469 of the Fair Work Act 2009 (causing significant harm to the aviation and tourism industry)
- creates more problems rather than resolving disputes
MORE CASES
- Coles v National Union of Workers 2018 FWC
- BlueScope Steel Limited v Australian Workers Union 2019 FCA
Australian Human Rights Commission
Substantially effective in achieving justice in the workforce, with both dispute resolution and prevention strategies
- Investigates and conciliates discrimination complaints
- 2020: 1,432 conciliation processes - 70% resolved
- meeting individual needs
- 85% resolved within the first 6 months –> resource efficiency
Focus on dispute presentation –> ensures discriminatory employer practices arent repeated
- conciliation processes prescribe anti-discrimination and Equal Employment Opportunities training
- Monetary compensation
Respect@Work Inquiry 2020 - addressing Australia’s failure to respond to sexual harassment in the workforce
- 55 recommendations to strengthen legislation, with 12 recommendations for legislative reform at a federal level
Fair Work Amendment (Respect At Work) Act 2021 Cth
- Addresses 6 of the legislative recommendations
- expands the definition of sexual harassment and extends protection to paid and unpaid workers
- Central in “shifting the culture to presentation” (ABC, 2021) –> previous legislation only responded when complaints were brought forward
- Expands jurisdiction of “stop bullying” orders so the FWC can make orders to “Stop Sexual Harassment”
