Employment Law for Educators Associate Professor Amanda Coulthard & Professor Nick James

overview Professor James and Associate Professor Coulthard will draw upon their experience in teaching and practising employment law to examine a range of topics of interest and relevance to school leaders and senior school staff from both private and public schools. These topics include the legal regulation of employment conditions (the contract of employment, awards and enterprise agreements, workplace policies and procedures, and the minimum entitlements prescribed by the Fair Work Act), discrimination and bullying (what it is, what can be done about it, grievance procedures etc) and termination of employment including unfair dismissal. Presentation will be in two parts: regulatory landscape and focus on hiring, disciplining, bullying and sacking

The regulatory landscape: Two systems INDEPENDENT EDUCATION SYSTEM FEDERAL Fair Work Act 2009 (Cth) Federal awards Federal enterprise agreements State and Commonwealth anti-discrimination legislation State workplace health and safety legislation State workers’ compensation legislation The common law STATE Industrial Relations Act 1999 (Qld) State awards State enterprise agreements NJ explain Federal system Q: How would this be different for someone in the government system?

SOURCES OF EMPLOYEE ENTITLEMENTS POLICIES AND PROCEDURES EMPLOYMENT CONTRACT ENTERPRISE AGREEMENT MODERN AWARD FAIR WORK ACT / NES You really need to know sources of employee rights and entitlements, and how they inter relate Q: Is it hierarchical? Kind of – a reverse hierarchy Q: How do they inter relate? Q: Do the terms of a policy count as part of the employment contract? What if the policy says one thing but the contract says another?

FAIR WORK ACT The Fair Work Act 2009 (Cth) establishes the Fair Work Commission and the Fair Work Ombudsman. Modern Awards are made by the Fair Work Commission. The FW Act regulates collective bargaining and enterprise agreements, and contains the National Employment Standards. It sets out the rights and responsibilities of employers and employees, including those relating to: protection of workplace rights, unfair dismissal, discrimination, and workplace bullying. (Contrast with Work Choices? No.) Q: Why are we starting here? Importance as source of terms and conditions Q: Does the Act cover everything employment related in Australia? No Q: Should people read it? No, but there are other websites.

NATIONAL EMPLOYMENT STANDARDS The NES contain ten minimum standards that operate as a ‘safety net’: Maximum hours of work Requests for flexible working arrangements Parental leave Annual leave Personal / carer’s leave Community service leave Long service leave Public holidays Notice of termination and redundancy Provision of the Fair Work Statement Employers cannot seek to ‘contract out’ of the NES. Q: What role do they play? Q: Have you ever heard of or dealt with a case that deals with breach of the NES? No, larger employers usually have systems in place. But other industries do … e.g. Dominos Pizza, hospitality industry

MODERN AWARD An award is an instrument prescribing employee entitlements and working conditions within a particular trade, occupation or industry. If an employer fails to recognise the minimum entitlements of an employee under an award they may be prosecuted for breach of the award. Q: What is an award?

MODERN AWARD The relevant modern award for teachers in the federal system is the Educational Services (Teachers) Award 2010. It sets out the minimum terms and conditions relating to: Types of employment Wages and allowances Hours of work Leave Termination and redundancy Consultation and dispute resolution The award is a safety net for enterprise bargaining = the BOOT. Q: What is the award for teachers? Q: Let’s take a look … Click on 19.

ENTERPRISE AGREEMENT An EA is a collective agreement made between an employer and its employees. It usually applies to a single workplace, e.g. the Somerset College Limited Union Collective Enterprise Agreement 2016. It sets out minimum terms and conditions of employment, and procedures for resolving disputes about the agreement. All enterprise agreements must be approved by the Fair Work Commission before they commence operation. The Modern Award is displaced by the Enterprise Agreement. The Fair Work Commission will apply the ‘Better Off Overall’ test to ensure that each employee covered by the agreement is better off overall in comparison to the Modern Award. Q: Why is this so important? Q: Are EA’s publicly available? Where do you find them? Q: Should a manager read the EA?

EMPLOYMENT CONTRACT The employment relationship is a contractual relationship. It can take a variety of forms, such as: an oral contract, a formal written contract, or a letter of appointment. The terms of the contract include: the express agreement of the parties; and terms implied by the common law, e.g. duty of good faith, duty of cooperation, duty to provide a safe workplace, duty to act fairly and reasonably. An employment contract cannot provide for less than the legal minimum set out in the NES, relevant awards, or enterprise agreements. Q: Does everyone have an employment contract? Yes but it won’t always be a formal contract. Q: Should an employer put everything relevant into a written contract? Q: What should you put in a contract?

Workplace policies and procedures Most workplaces have written policies and procedures over a wide range of matters Why do workplaces have policies? What role do they play? What happens if the employer or employee does not comply with them? See questions Additional question: Does an employer have an obligation to ensure employees have read and understood the policy? Discussion re policy as lazy management practice

The interview and selection process must include non-discriminatory questions. Consult the relevant enterprise agreement regarding: the letter of appointment and required content, and the status of employment. Consider whether a formal written contract of employment is necessary. EMPLOYING STAFF Q: What can go wrong? Q: What should a manager do?

CONTROL, PERFORMANCE, MANAGEMENT & DISCIPLINE “Employees are not like other resources that an employer utilises in the operation of its business. Employees are human beings, they can be easily damaged, and when faulty they should be handled with more care than machines.” Finnegan v Komatsu Forklift Australia Pty Ltd [2017] FWC 2433 per Commissioner Cambridge CONTROL, PERFORMANCE, MANAGEMENT & DISCIPLINE Q: What can go wrong? Q: What should a manager do? Q: How emotional can a manager get when disciplining a staff member.

“It is a sad indictment on the capacity of two education professionals and the educational institution in which they are employed, that to resolve an obviously tense interpersonal relationship involving some mutual animus, resort must be had to this tribunal and the anti-bullying provisions of the Fair Work Act 2009. But, that it seems is the way of things, with workplace combatants all to keen to cede to a third party the capacity to resolve conflict, which with a modest amount of goodwill, some introspection and reflection, ought to be capable of resolution by the combatants themselves.” Susan Purcell v Ms Mary Farah and Mercy Education t/as St Aloysius College [2016] FWC 2308, Deputy President Gostencnik WORKPLACE BULLYING Q: What is bullying? Where is the line between disciplining an employee and being a bully? Q: Should confrontations with difficult employees be in person rather than by email?

TERMINATION OF EMPLOYMENT Terminating a contract of employment usually requires notice. Consult the written contract or letter of appointment; consult the award or enterprise agreement; and comply with the notice provisions in the NES. Consider exposure to litigation for: breach of contract, breach of the enterprise agreement, unfair dismissal, discrimination, or adverse action. Q: What can go wrong? Q: What should a manager do?

GUIDELINES Comply with the terms of the contract. Comply with the terms of the Award or enterprise agreement. Comply with the relevant policies and procedures. Ensure any investigation is procedurally fair and unbiased. Ensure conduct is otherwise procedurally fair.

GUIDELINES Ensure decisions are substantively fair: Do not discriminate on the grounds of disability, gender, race, age etc. Do not take action for a ‘prohibited’ reason e.g. because the employee has made a workplace complaint. Do not terminate employment unless there is a valid reason to do so. Keep accurate documentation. Remember that documents may have to be disclosed in any proceedings. Know when to seek external advice. NJ run through guidelines, handover to AC for final word: ‘Stop and think: Am I being fair and reasonable’?