Shannon Walker

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Amendments to the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth) take effect from 1 July 2019 ushering in significant changes to Australia’s whistleblowing laws.[1] Chief among the key changes is a requirement on public companies and large proprietary companies[2] to have a compliant whistleblowing policy by 1 January 2020. A failure to have such a policy will be a criminal offence attracting a maximum penalty of $126,000.

As it is unlikely existing whistleblowing policies will be fully compliant with the new whistleblowing regime, it is important that organisations review their current arrangements for dealing with whistleblowers and make appropriate changes to their policy and process.

Importantly, while not all companies are obliged to have a whistleblowing policy, they must comply with the new laws, particularly their obligations to maintain confidentiality and take reasonable steps to prevent detrimental conduct towards a whistleblower. Having a policy will assist these companies to comply with such obligations, which come into effect from 1 July 2019, and also accords with best practice.

A federal election is due by mid-2019 and it is shaping up to be one where, for the first time in a long time, there might actually be substantive differences between the employment and labour policies of the Labor Party and those of the Liberal National Coalition. Were Labor to win, and have a Senate that is more amenable to its workplace relations policies than the current Senate is to the Coalition Government’s policies, what might this mean for Australia’s employers and 12.5 million workers?

The Fair Work Commission will inevitably find a dismissal to be ‘unfair’ if, despite having legitimate performance concerns, an employer does not give the employee a ‘fair go’ to both respond to those concerns and improve their performance.

In Cheek v ELB Pty Ltd,[1] the Commission took a close look at just what a ‘fair go’ means in finding the dismissal for a valid reason to be unfair.

Penalties imposed under Western Australia’s Occupational Safety and Health Act 1984 (Act) have been kicked up a notch with the Perth Magistrates Court recently fining a company and its director more than double the previous record. In setting this new high water mark, the Court has sent a clear message that failing to ensure a safe workplace will likely result in substantial penalties for both companies and individuals.

In October 2017, a Full Bench of the Fair Work Commission in Fitzgerald v Woolworths[1] challenged the common understanding of “representation” by a lawyer, by finding it involves a wide range of activities connected with litigation and is broader than just oral advocacy before the FWC.  As lawyers (and paid agents) must obtain the FWC’s permission to represent their client in a matter before the FWC,[2] this broader interpretation of representation has certainly made life more difficult for lawyers.

So, when will permission for legal representation be granted and, in light of Fitzgerald, can lawyers still assist their clients if permission is refused?

In our experience, many employers are under the false impression that, if they put an employee on a ‘common law contract’ and give them a fancy job title, they will be award-free, particularly if they are paid well above the award rates.

The recent case of Karen Muscat v Chase Commercial Pty Limited [2018] FWC 1398 reminds us that this just isn’t always true.

An employer decides to abolish 23 full-time positions due to a lack of funding.  Surely this is a major change likely to have a significant effect on employees which obliges the employer to consult with those employees as per the consultation term in their enterprise agreement?

While many would say ‘yes, of course’, the Federal Court in Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246 recently found the answer to be a clear ‘no’ and, accordingly, there was no requirement for the employer to consult.

Your employee resigns to join your arch rival. You’re not worried because you know you have ‘water tight’ post-employment restraints in the contract of employment. But, if in reacting to the employee’s untimely resignation, you breach the contract and this breach amounts to a repudiation of the contract, then your restraints will be unenforceable. This is why it is very important to ensure your actions, including placing an employee on ‘garden leave’ or taking their mobile phone, are consistent with your rights under the contract.

The recent case of Grace Worldwide (Australia) Pty Limited v Steve Alves [2017] NSWSC 1296 is an example of where the employer got it right.

The Queensland Supreme Court last month awarded $1,703,530 in damages against an employer, whose Chief Executive Officer’s “unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard” of the plaintiff employee resulted in serious psychiatric injury. The employer was found vicariously liable for the CEO’s actions and to have breached its own duty of care.

If your business is considering making an enterprise agreement, you must strictly comply with the procedural requirements of the Fair Work Act 2009 (FW Act) and ensure you use the newly amended Notice of Employee Representational Rights. For those who have already commenced bargaining, small mistakes made during the bargaining process may mean the parties’ agreement cannot be approved and the entire bargaining process must start all over again, which can be very costly and frustrating for all parties.