WELCOME
Employment Law Webinar Series
SESSION 1 - Key employment law developments and trends - What's
in store for 2013
28 February 2013
*This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter.
Welcome
CURRENTLY SPEAKING

Pattie Walsh
Partner
EP&B Webinar Series
You are on mute
 A link to a recording of the webinar will be
available
 We can take questions by using the chat function,
we will respond to your questions by email after
the webinar
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Presenters
CURRENTLY SPEAKING
Pattie Walsh
Partner / Head of Employment,
Pensions & Benefits, Asia Pacific
Andrew Ball
Partner
Sydney
Pattie Walsh
Partner
EP&B Webinar Series
Rick Catanzariti
Allan Drake-Brockman
Partner
Melbourne
Partner
Perth
Murray Procter
Nick Ruskin
Partner
Brisbane
Partner
Melbourne
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Agenda
CURRENTLY SPEAKING


Pattie Walsh
Partner



EP&B Webinar Series
Adverse Action - The current state of Adverse
Actions claims and how to manage them
Protecting Confidential Information - Results
from the DLA Piper research into 250 international
businesses
Changes to the Fair Work Act - A summary of
the key changes including a review of the
amendments to unfair dismissals and enterprise
agreements
Bullying and Harassment - What are the key
elements of Safe Work Australia's draft Bullying
Code of Practice
Enterprise Bargaining - Issues, trends and
developments
4
What are workplace rights?
CURRENTLY SPEAKING
SECTION 1
Nick Ruskin
Partner
ADVERSE ACTION
Presented by Nick Ruskin, Partner
EP&B Webinar Series
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How are adverse action provisions breached?
CURRENTLY SPEAKING
Workplace Right
Adverse Action
Nick Ruskin
Partner
Connection between
adverse action and
workplace right
EP&B Webinar Series
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What are workplace rights?
CURRENTLY SPEAKING

A role or responsibility under a workplace law or
agreement

Entitlements under a workplace law or agreement
eg. sick leave

A statement to a workplace safety inspector

Making a workers compensation claim

Having an attribute under discrimination law

Making a complaint or an enquiry about the
employee's employment
Nick Ruskin
Partner
EP&B Webinar Series
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What is ‘Adverse Action’
CURRENTLY SPEAKING
Examples
Nick Ruskin
Partner
Reduction Deprivation
of salary of overtime
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Diversion to a
less congenial
shift
Written warning - may
have the effect of
Transfer to
making the
lower duties
employee's continuing
or
employment less
suspension
secure, and may
from duties
constitute adverse
action
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Procedure
CURRENTLY SPEAKING
Dismissal stream:

21 days to make a claim

Fair Work Commission conciliates – if not
resolved, 14 days for applicant to go to a
Federal Court
Nick Ruskin
Partner
Non-dismissal stream:
EP&B Webinar Series

6 years to make an application

Applicant can seek interim injunctive relief
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Procedural Issues
CURRENTLY SPEAKING
Remedies

'Any order the court considers appropriate‘
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Compensation (uncapped) including for
economic loss and hurt and humiliation

Interlocutory relief to prevent
dismissal/detriment

Orders to reinstate employee

Fines - $51,000 for a corporation; $10,200 for
an individual
Nick Ruskin
Partner
EP&B Webinar Series
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Protecting Confidential Information
CURRENTLY SPEAKING
SECTION 2
Murray Procter
Partner
PROTECTING CONFIDENTIAL
INFORMATION
Presented by Murray Procter, Partner
EP&B Webinar Series
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Protecting Confidential Information
CURRENTLY SPEAKING
DLA Piper survey 2012

Types of confidential information employers are
most concerned to protect
Murray Procter
Partner
Pricing
structures –
55%
Customer
supplier details
- 46%

EP&B Webinar Series
Human
resources
issues – 50%
Budgets and
financial
information –
49%
Business plans
- 43%
Research and
development
information 42%
What makes information confidential?
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Protecting Confidential Information
CURRENTLY SPEAKING

28% of employers do not take any steps to
specify that information is confidential

Only 14% of employers use the contract of
employment to spell out the type of information
which they deem to be confidential, despite 65%
including confidentiality provisions of some sort in
the contracts

Restrictive covenants
Murray Procter
Partner

non-compete 19%
 non-solicitation / non-dealing 59%

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25% of employers who include restrictive
covenants have no confidence they are
enforceable
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Protecting Confidential Information
CURRENTLY SPEAKING
Impact of the changing workplace
Challenge 1:
Data storage
Challenge 2:
Bring your own
device
Challenge 3:
Social media
Challenge 4:
Ownership of
contacts
Murray Procter
Partner
EP&B Webinar Series
Tech stats

60% of employers either allow or require personal mobile
devices

36% of employers ask employees to store business contact
details on databases that are not within the employer's
control

66% of employers are concerned about the threats posed to
confidential information by social media BUT

Only 39% have a policy regulating employee behaviour with
respect to social media
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Protecting Confidential Information
CURRENTLY SPEAKING
Keys steps for protecting confidential information
Contracts
Murray Procter
Partner
Restricting
access
Monitoring
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Policies
Training
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Recent Fair Work Act changes
CURRENTLY SPEAKING
SECTION 3
Rick Catanzariti
Partner
CHANGES TO THE FAIR
WORK ACT
Presented by Rick Catanzariti, Partner
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Recent Fair Work Act changes
CURRENTLY SPEAKING
Rick Catanzariti
Partner
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
Change of Tribunal name

Appointment of senior members

Superannuation

Enterprise Agreements

Unfair Dismissal/General Protection
Claims
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Commission
CURRENTLY SPEAKING
Fair Work Australia
changed its name
to Fair Work
Commission
Rick Catanzariti
Partner
Commission now includes two
new Vice Presidents (to be
appointed) as well as President
and current Deputy Presidents
and Commissioners
EP&B Webinar Series
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Superannuation
CURRENTLY SPEAKING
Rick Catanzariti
Partner
EP&B Webinar Series

Modern awards are to include terms
about default superannuation
arrangements

The term must contain an obligation on
the employer to pay super into a default
complying superannuation fund if none
is chosen by employee

Commission will conduct 4 yearly
reviews of clause
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Enterprise Agreements
CURRENTLY SPEAKING
Rick Catanzariti

Cannot have EA with only one employee

Deals with problem of two earlier Commission decisions
allowing single enterprise EAs
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EAs cannot contain a clause allowing an employee to
opt out of being covered by the agreement
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Union officials cannot be a bargaining representative for
an employee unless the union has coverage of that
employee type

Now have a notice specified by the Regulations which
sets out the content for advising employees of their
rights to have a bargaining representative for the
negotiation of an EA
Partner
EP&B Webinar Series
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Dismissal claims
CURRENTLY SPEAKING

14 day time limit to lodge an unfair dismissal claim has
now been changed to 21 days

Time limit to lodge a general protections claim in
relation to a dismissal of an employee is reduced from
60 days to 21 to coincide with unfair dismissal time
frame. The employee still needs to lodge the
application in the Commission

Dismissal of unfair dismissal claim by the Commission
can also occur if an employee has unreasonably:
Rick Catanzariti
Partner
EP&B Webinar Series

failed to attend a hearing or conference

failed to comply with a Commission order or direction

failed to discontinue an application after a settlement
agreement is reached
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Costs
CURRENTLY SPEAKING
Rick Catanzariti
Commission can order costs against a
party if that party has caused costs to
be incurred by an unreasonable act or
omission
Partner
Costs can still be awarded against
lawyers and paid representatives if
they have acted unreasonably or
encouraged their client to start or
continue an unmeritorious claim or the
lawyer or paid agent has acted
unreasonably
EP&B Webinar Series
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Bullying and Harassment
CURRENTLY SPEAKING
SECTION 4
Andrew Ball
Partner
PREVENTING AND RESPONDING TO
WORKPLACE BULLYING DRAFT
CODE OF CONDUCT
Presented by Andrew Ball, Partner
EP&B Webinar Series
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Bullying Draft Code of Practice
CURRENTLY SPEAKING

No specific bullying legislation

Draft "Preventing and Responding
to Workplace Bullying" Code of
Practice (Code)

Fair Work Commission – new
powers

Finalised Code expected before
mid 2013
Andrew Ball
Partner
EP&B Webinar Series
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Bullying Draft Code of Practice
CURRENTLY SPEAKING
Andrew Ball
Partner
EP&B Webinar Series
What is workplace bullying?

Workplace bullying is repeated, unreasonable
behaviour directed towards a workers or group of
workers, that creates a risk to health and safety

'Repeated behaviour' refers to the persistent nature of
the behaviour and can refer to a range of behaviours
over time

'Unreasonable behaviour' means behaviour that a
reasonable person, having regard for the
circumstances, would see as victimising, humiliating,
undermining or threatening

Intentional or unintentional bullying

Direct or indirect bullying
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Bullying Draft Code of Practice
CURRENTLY SPEAKING
What is involved in preventing workplace
bullying?
Andrew Ball
Partner
 A risk management process which involves the
following steps:
Review
Control
Assessment
Identification
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Bullying Draft Code of Practice
CURRENTLY SPEAKING
1. Identifying and Assessing the Risk of
Workplace Bullying
Andrew Ball
Partner
Identifying hazards involves finding all of the things and
situations that could potentially contribute to bullying in the
workplace and cause harm to people. Although there may
be no obvious signs of workplace bullying, this does not
mean such behaviour or conduct does not exist.
2. Controlling the Risk of Workplace
Bullying
The best way to control bullying risks is to eliminate the
factors that can cause it. If that is not reasonably
practicable, implement measures to minimise the risk.
EP&B Webinar Series
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Bullying Draft Code of Practice
CURRENTLY SPEAKING
3. Responding to Workplace Bullying
Andrew Ball
Partner
Treat all
matters
seriously
Support all
parties
Act promptly
Do not
victimise
Be neutral
Communicate
processes and
outcomes
Maintain
Confidentiality
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Keep records
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Bullying Draft Code of Practice
CURRENTLY SPEAKING
4. Monitoring and Reviewing Control
Measures
Andrew Ball
Partner
EP&B Webinar Series
Once control measures have been implemented, you
should be checking and reviewing them to ensure they are
effective in preventing and managing bullying behaviour.
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Enterprise Bargaining
CURRENTLY SPEAKING
SECTION 5
Allan DrakeBrockman
Partner
ENTERPRISE BARGAINING:
Issues, trends and
developments
Presented by Allan Drake-Brockman, Partner
EP&B Webinar Series
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Enterprise Bargaining
CURRENTLY SPEAKING
Allan DrakeBrockman

Enterprise bargaining – collective agreement in
single enterprise or multi-enterprise between
employer and specified employees

Unions involved if union a bargaining
representative

Significant number of agreements have union
involvement

Enterprise bargaining – Greenfields Agreement
between employer and union direct
Partner
EP&B Webinar Series
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The 2013 industrial relations environment…
CURRENTLY SPEAKING
Agreements – Offshore


Allan DrakeBrockman
Partner
EP&B Webinar Series
Diving Agreements – all expire
30 June 2013
Vessel Operator Agreements –
all offshore agreements expire
30/31 July 2013

Helicopter Agreements – have
either expired or will expire
during 2013

Offshore Mobile Drilling Rig
Agreements

Operators all but one expire
second half of 2013

Manning Agents – expire
second half of 2013 or first half
of 2014

ROV – various expiry dates

Production Operators –
various
Agreements – Onshore

Production Operators – various

Dates vary – some are project
specific agreements whilst
others are term agreements

A range of agreements expire
during 2013
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Productivity
CURRENTLY SPEAKING

Offshore wage rates 40-50% higher than world
rates
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Even onshore wage rates 20-30% higher than
world rates

The focus of enterprise bargaining to date has
simply been wage increases essentially without
any productivity offsets

Australia 50th in productivity in the world behind
Uganda just in front of Botswana

With worsening economy employers will be
looking for productivity gains
Allan DrakeBrockman
Partner
EP&B Webinar Series
33
Recent developments
CURRENTLY SPEAKING
Allan DrakeBrockman
FW Act
Amendments…
And more?
Partner
Productivity
EP&B Webinar Series
Challenges
by unions
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Key issues – Greenfields Agreements
CURRENTLY SPEAKING
Allan DrakeBrockman

Put the unions to bed?

Situations that are not genuinely "Greenfields"
and the risks

Outright refusals by unions to enter into
Greenfields Agreements

A different approach to bargaining?
Partner
EP&B Webinar Series
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Enterprise bargaining tips
CURRENTLY SPEAKING
Allan DrakeBrockman
Partner
EP&B Webinar Series

Prepare a draft agreement which forms the basis of
negotiations. You need to be in control of the bargaining
process.

Appoint a person who can take accurate minutes of the
bargaining process

Establish a consistent bargaining team and appoint a lead
bargainer

Ensure tight parameters are placed on your bargaining
range. Some non-negotiable items may require ‘Board
approval’ if the union is fixated on negotiating changes
relating to that item

Be wary of the old saying "nothing agreed until everything
agreed"

Provide opportunities for lead bargainers to meet informally
outside of bargaining table

Legal contingency planning
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Our Contact Details
CURRENTLY SPEAKING
Pattie Walsh
Partner / Head of Employment,
Pensions & Benefits, Asia Pacific
T: +61 2 9286 8197
E: [email protected]
Andrew Ball
Partner
Sydney
T: +61 2 9286 8449
E: [email protected]
Pattie Walsh
Partner
EP&B Webinar Series
Rick Catanzariti
Allan Drake-Brockman
Partner
Melbourne
T: +61 3 9274 5810
E: [email protected]
Partner
Perth
T: +61 8 6467 6205
E: [email protected]
Murray Procter
Nick Ruskin
Partner
Brisbane
T: +61 7 3246 4062
E: [email protected]
Partner
Melbourne
T: +61 3 9274 5284
E: [email protected]
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