Industrial Relations Act 2016 – Key things to know Transport and Main Roads Michael Moy Partner Lydia Daly Senior Associate March 2017

Overview Department level issues Employee issues New bargaining regime (bargaining awards, scope orders, PABO process, disputes) Directives (casual/temp conversion) Expansion of public service appeals Employee issues Anti-bullying Adverse action (general protections) Mutual duty of trust and confidence Discrimination QES changes (DVO leave, other leave, request flexible work arrangements)

Chapter 8 General protections / adverse action

What is general protections / adverse action? because of … Industrial activity Workplace right Discriminatory reasons Adverse action

What is ‘adverse action’? Dismissing an employee Injuring an employee in their employment e.g. compensable injury Altering an employee’s position to their detriment (real/substantial v hypothetical) Discriminating between one employee and other employees Refusing to employ a prospective employee Discriminating against a prospective employee in the terms and conditions offered

What is ‘adverse action’? Injuring an employee in their employment financial injury deprivation of practical incidents of employment Examples loss of pay reduction in classification or rank change of hours Injuring an employee in their employment. Injury means financial injury or deprivation of one or more immediate practical incidents of employment e.g. loss of pay, reduction in classification or rank, change of hours, change to duties. Examples: forced removal of a worker from a worksite at the request of a union because the employee had not paid his union fees: CFMEU v Hamberger (2003) 127 FCR 309 standing down an employee at the direction of a union because the employee had refused to engage in industrial action: Squires v Flight Stewards Association of Australia (1982) 2 IR 155 decision of an employer to change an employee’s status from full-time to part-time and reduce his work hours to two days per week, under threat of not being paid his termination entitlements: FW Ombudsman v FL Press Pty Ltd [2015] FCCA 1578 employee was denied an opportunity for promotion, which the employee claimed reduced his status in relation to his colleagues. This was not an ‘injury’: Australian Licensed Aircraft Engineers Assoc v Qantas Airways

What is ‘adverse action’? Altering an employee’s position to their prejudice deterioration in advantages enjoyed by employee worse off because of the action taken by the employer does not require employee suffer actual loss or for there to be a breach of a legal right Examples √ issuing a written warning √ change to rostered shifts, transfer to another location into position with lower level of responsibility √ suspension during investigation, show cause letter during discipline process ? initiating/conducting an investigation Altering to prejudice: Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 – employed as manager at storage facility but was transferred to another site in Assistant Manager role. Suspension with pay during investigation, resulting in employee being issued with written warning. Removal of an employee from their employment, even temporarily, will usually be adverse to their interests. Automotive, Food Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 Murray v The Penninsula School [2015] FCA 447 – Application for an injunction granted by the Federal Court who held that suspending an employee on pay and subjecting the employee to a discipline process may constitute adverse action. Interim orders were made restraining the employer from dismissing the employee. Other Initiating / conducting an investigation into allegations by employee = Not Adverse Action: CFMEU v Leighton Contracts [2012] FMCA 487 at [152]. It is the outcome of the investigation that may affect the status or standing of the employee i.e. might alter employee’s position to their prejudice, not the investigation itself. Suspending employee following allegations = adverse action CFMEU v Leighton Contracts at [154] Show cause process of affording employee opportunity to respond to allegations in writing = adverse action (altering employee’s position to prejudice) CFMEU v Leighton Contracts at [156-157] Section 351 FW Act Adverse action by discriminating against employee with physical or mental disability. Threshold issue: existence of a disability. ‘Employee with a disability’ defined Sch 5 IR Bill to mean – employee who qualifies for a disability support pension under ss 94 or 95 of the Social Security Act 1991 (Cth) or would be qualified but for sections 94(1)(e) or 95(1)(c). CFMEU v Leighton Contracts at [158-159] ; Corke-Cox v Crocker Builders Pty Ltd [2012] FMCA 677

What is ‘adverse action’? Section 282 of the IR Act ‘Adverse action does not include action that is authorised under — (a) this Act or any other law of the State; or (b) a law of the Commonwealth.’ Management Action v Disciplinary Action Management Action – Caution, Requirement to undertake further training/professional development Section 187 PS Act – may discipline, s 188 - may take disciplinary action Section 189 – my suspend

‘Workplace right’ Entitled to benefit of industrial instrument or law or order of industrial body e.g. workers compensation law Role or responsibility industrial instrument or law or order of industrial body Able to initiate, or participate in, proceedings under a industrial law or instrument Able to make complaint or inquiry in relation to their employment e.g. employee questions salary / makes complaint about supervisor “Industrial Law” is defined in schedule 5 to the IR Bill to mean the Act or another Act regulating the relationships between employers and employees. Process or proceeding under an industrial law – request for flexible work arrangements, workers’ compensation claim, conciliation conferences/hearings/claims in QIRC

How to approach Step 1 – Is there a prohibited reason? Step 2 – Has adverse action been taken or proposed to be taken? Employee must prove on objective facts Step 3 – Was the adverse action taken or proposed because of the prohibited reason? Multiple reasons – employer takes action for a particular reason if the reasons for the action include that reason (Section 305 IR Act) Reverse onus – presumed alleged reason is a reason action taken unless employer proves otherwise (Section 306 IR Act)

Decision Maker’s evidence is key Statement by decision maker TMR will need to be prepared to provide evidence from the decision maker about his/her reason for taking the action and their motivation at the time of taking the action Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another [2012] HCA 32 QIRC will likely consider decision maker’s state of mind, intent/purpose for action and credibility contradictory evidence put forward by employee Correspondence to the employee by decision maker Information or documents contained on files or briefing notes seen by decision maker Barclay was employed as a senior teacher at the Institute and was president of the sub branch of the AEU. He was asked to show cause as to why he should not be disciplined following an email Barclay sent. The High Court decision established that if there is evidence from the accused about the reason the action was taken, and the evidence doesn’t disclose that the action was taken for a prohibited reason, and the evidence is accepted as reliable and is not successfully challenged, there is no need for the Court to look for unconscious reasons Heydon J strongly disagreed with the assertion that a Court should search for the ‘unconscious’ elements in the impugned reasoning

Flexible Work Arrangements

Step 1 – Employee asks in writing for change in the way they work Summary of process Step 1 – Employee asks in writing for change in the way they work Step 2 – Employer has 21 days to consider the request and make a decision

Summary of process Step 3 – Employer issues written notice of decision or if no notice is issued, employer deemed to have refused the request Step 4 – If request refused (whole or part), or no decision made, Employee can make an application for a dispute in QIRC Dispute under Chapter 6 IR Act

Request by employee – s 27 Employee may ask for flexible work arrangements ordinary hours of work place where employee works change to way the employee works e.g. different equipment Request must be in writing provide sufficient detail to allow the employer to make a decision state reason(s) for change s 27(1) is not an exhaustive list of changes that an employee can request, just examples

Decision by employer Employer must have reasonable grounds if it makes a decision other than to grant the request Act is silent on what are ‘reasonable grounds’ e.g. inherent requirements of position / operationally difficult or impractical e.g. WHS Reasons of employer must be genuine Written notice must state reasons for the decision reasonable grounds for granting the request in part, with conditions or refusing the request that QIRC has jurisdiction to hear and decide a dispute over the request

Questions

Contact Michael Moy Partner T +61 7 3233 8720 M +61 439 060 343 E mmoy@mccullough.com.au Lydia Daly Senior Associate T +61 7 3233 8697 E ldaly@mccullough.com.au Disclaimer: This presentation covers legal and technical issues in a general way.  It is not designed to express opinions on specific cases.  This presentation is intended for information purposes only and should not be regarded as legal advice.  Further advice should be obtained before taking action on any issue dealt with in this presentation.