WORKCHOICES MAY be ‘dead, buried and cremated’, but the Fair Work regime that replaced it is continually evolving, and this year is no exception. As with many complex issues, the devil is in the detail and, for HR practitioners, keeping up with case law and legislative developments presents an ongoing challenge.
We have continued to see developments to leave entitlements in the first half of 2015.
The cost of ‘getting it wrong’ was recently highlighted by a company that failed to accurately update its parental leave policy. A father was refused 12 months’ parental leave as he wasn’t the ‘primary carer’ – a requirement that existed under the previous workplace relations legislation. As a result, the employer wrongly believed that he was without the ‘return to work’ guarantee afforded to returning parents. Following a period of extended paid and unpaid leave, the worker ultimately returned to a part-time position (having not been offered his original full-time role) and was made redundant a year later. The company was ordered to pay $170,000 in lost salary and entitlements,1 with penalties for breaches of the National Employment Standards (NES) set down for a separate hearing.
The concept of domestic violence leave continues to emerge through enterprise agreement negotiations, employment policies and award considerations. The Australian Council of Trade Unions is pressing claims in the four-yearly modern awards review in an effort to introduce 10 days of paid leave for permanent employees in relation to domestic violence issues, as well as the right to part-time return to work following parental leave. These claims are viewed by many employer advocates as an attempt to improperly expand the minimum legislative framework of the NES, in effect using the Fair Work Commission (FWC) to bypass Parliament. This hearing is set down for August.
In a win for employers, a recent Full Bench decision of the FWC will enable employers to direct employees to take excessive annual leave, provided that safeguards such as capping directed leave to a maximum of two weeks in 12 months are in place. A final decision will be issued following consideration of the proposed model clauses. There are also provisions allowing annual leave to be taken before accrual, and annual leave EFT payments to be made within usual pay cycles instead of in advance.
The application of section 90 of the Fair Work Act (the Act) relates to the payment of annual leave loading on termination of employment, and this continues to be a highly contentious issue. Modern awards give clear instructions as to whether (or not) leave loading is payable on termination. However, in a decision currently under appeal, the Federal Court determined that the current wording of the Act rendered the different provisions in an industrial instrument unenforceable.2 This effectively requires any leave loading to be paid out regardless of the wording of the relevant agreement. Proposed changes to section 90 to address this issue are part of an amendment bill currently before the Senate.
In a potentially far-reaching NSW case,3 the issue of employees receiving ‘dual’ payments from workcover and annual leave has been considered by a Full Bench of the Federal Court. According to the Act, annual leave should not be taken or accrued except where “permitted” by a compensation law. With the Workers Compensation Act 1987 (NSW) silent on the issue of leave, it was found that the term “permitted”, while “curious”, should be read as “not prevented, prohibited or restrained”.
A key decision4 under anti-bullying legislation determined that a worker must be ‘at work’ when the conduct occurs for the provisions to apply (this includes being engaged in permitted workplace activities). In considering the reach of social media, it was determined that it didn’t matter when bullying comments were posted online – the key test was whether the affected employee accessed them ‘at work’.
In considering the test for approving a protected ballot order, the FWC Full Bench found that some earlier decisions had adopted too narrow a test and that bargaining for ‘non-permitted matters’ did not mean a union was not ‘genuinely trying’ to reach agreement.5
Finally, while there continue to be developments in relation to drug and alcohol testing, a crucial decision has emerged that supports employers relying on a breach of policy in disciplining or terminating an employee, as opposed to a demonstration of impairment.
The year 2015 is shaping up to be a significant one for workplace relations -
LEGISLATION AND CURRENT REVIEWS
• Productivity Commission review into Australia’s workplace relations framework
• Inquiry into portability of long-service leave entitlements – Victoria
• Royal Commission into Trade Union Governance and Corruption
• Inquiries into labour hire – South Australia and Victoria
Bills before Parliament
• Fair Work Amendment (Bargaining Processes) Bill 2014
• Fair Work Amendment Bill 2014
• Building & Construction Industry (Improving Productivity) Bill 2013
• Paid Parental Leave Amendment Bill 2014
• Fair Entitlements Guarantee Amendment Bill 2014
• Fair Work (Registered Organisations) Amendment Bill (No 2) 2015
1 Scullin v Coffey Projects (Australia) Pty Ltd  FCCA 1514.
2 Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2)
 FCA 136.
3 Anglican Care v NSW Nurses and Midwives’ Association  FCAFC 81 .
4 Bowker, Coombe and Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia,
The Victorian Branch and Others  FWCFB 9227. 5 Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); The Australian Workers’ Union (AWU)  FWCFB 210
Lisa Burrell is the general manager of the Victorian Employers' Chamber of Commerce and Industry (VECCI). VEECI is Victoria’s most influential employer group, servicing over 15,000 Victorian businesses per annum. An independent, non-government body, VECCI was founded in 1851 by the business community to represent business.
Lisa Burrell takes a look back at the significant workplace developments in the first half of 2015 and outlines what HR professionals need to know to remain compliant