www.workplacelawandstrategy.com.au Open in urlscan Pro
172.67.167.220  Public Scan

Form analysis
4 forms found in the DOM

POST https://www.workplacelawandstrategy.com.au/#lxb_mct-form-1

<form class="lxb_mct_subscribe_widget_form  " action="https://www.workplacelawandstrategy.com.au/#lxb_mct-form-1" method="post">
  <label class="" for="lxb_mct-form-1"><i class="icon-envelope"></i> Subscribe to this blog</label>
  <input type="email" required="" class="" id="lxb_mct-form-1" name="mc_email" placeholder="Enter Your Email">
  <label for="mc_website-lxb_mct-form-1" class="mc_website_label screen-reader-text ">Your website url</label>
  <input type="text" id="mc_website-lxb_mct-form-1" class="mc_website " tabindex="-1" aria-hidden="true" name="mc_website" value="Website">
  <input type="submit" class="" id="mc_submit-lxb_mct-form-1" name="mc_submit" value="Subscribe">
  <input type="hidden" name="mc_input_id" value="lxb_mct-form-1">
  <input type="hidden" name="mc_list_id" value="b1822045fb">
  <input type="hidden" name="mc_redirect_to" value="">
  <input type="hidden" id="mc_load_time-lxb_mct-form-1" name="mc_load_time" value="0">
  <input type="hidden" name="profile_link_classes" value="">
</form>

GET https://www.workplacelawandstrategy.com.au

<form method="get" class="lxb_af-template_tags-get_search_form" action="https://www.workplacelawandstrategy.com.au" role="search">
  <label class="screen-reader-text" for="lxb_af-s-180044">Search…</label>
  <!--[if IE 9]>
				<input class='lxb_af-template_tags-get_search_form-search' type='search' id='lxb_af-s-180044' value='Search&hellip;' name='s'>
			<![endif]-->
  <!--[if !(IE 9)]><!-->
  <input class="lxb_af-template_tags-get_search_form-search" type="search" placeholder="Search…" id="lxb_af-s-180044" name="s">
  <!--<![endif]-->
  <button class="lxb_af-template_tags-get_search_form-submit lxb_af-button" value="Search"><span class="screen-reader-text">Search</span> <span class="icon-search"></span></button>
</form>

GET https://www.workplacelawandstrategy.com.au

<form action="https://www.workplacelawandstrategy.com.au" method="get"><label class="screen-reader-text" for="cat">Topics</label><select name="cat" id="cat" class="postform">
    <option value="-1">Select Category</option>
    <option class="level-0" value="33">Cross border advice and transactions</option>
    <option class="level-0" value="130">Director Dashboard</option>
    <option class="level-0" value="31">Diversity &amp; equal rights</option>
    <option class="level-0" value="18">Employment &amp; Holidays</option>
    <option class="level-0" value="57">Health &amp; Safety</option>
    <option class="level-0" value="20">HR/IR Strategy</option>
    <option class="level-0" value="52">News</option>
    <option class="level-0" value="1">Uncategorized</option>
    <option class="level-0" value="21">Workplace policy and process</option>
    <option class="level-0" value="69">Workplace reform</option>
  </select>
</form>

GET https://www.workplacelawandstrategy.com.au

<form method="get" class="lxb_af-skinny_search overlay" data-controller="lxb_af-skinny_search-controller" data-closer="lxb_af-skinny_search-closer" action="https://www.workplacelawandstrategy.com.au" role="search" style="display: none;">
  <a href="#" class="lxb_af-skinny_search-closer"><span class="icon-close"></span> <span class="screen-reader-text">Close</span></a>
  <div class="lxb_af-skinny_search-inner inner">
    <div class="lxb_af-skinny_search-fieldset">
      <span class="icon-search"></span>
      <label class="screen-reader-text" for="lxb_af-s-853680">Enter Search Terms</label>
      <!--[if IE 9]>
				<input class='lxb_af-template_tags-get_search_form-search' type='search' id='lxb_af-s-853680' value='Enter Search Terms' name='s'>
			<![endif]-->
      <!--[if !(IE 9)]><!-->
      <input class="lxb_af-template_tags-get_search_form-search" type="search" placeholder="Enter Search Terms" id="lxb_af-s-853680" name="s">
      <!--<![endif]-->
    </div>
    <div class="lxb_af-skinny_search-fieldset">
      <button class="lxb_af-template_tags-get_search_form-submit lxb_af-button" value="Search">Search </button>
    </div>
  </div>
</form>

Text Content

Skip to content


MENU


Current Page:HomeAboutAuthors
Search


WORKPLACE LAW & STRATEGY

Insights. Advice. New Thinking.


A PUZZLE FOR EMPLOYERS: THE FUTURE OF WORK HEALTH AND SAFETY LAWS IN AUSTRALIA

By Sarah Goodhew, Nick Neil & Gabrielle Wilson on May 21, 2024
Posted in Health & Safety

The last several months have seen rapid changes in the employment and workplace
health and safety space. With such dynamic movement, and then lots of commentary
on each of these changes, it’s easy to view all these changes as one big jumble
of puzzle pieces. And it can be hard to know what the whole jigsaw looks like.



As Chris Gardner and I mentioned last year in our blog post, HR and safety
working together on the new positive duty, one of the corner pieces that keeps
the picture in place, is having HR and WHS teams working together. What that
looks like is different for each organisation: sharing physical locations,
integrating these teams, formal meetings or processes, as needed communication
between departments or specific individuals, or maybe an individual solution
specific to your organisation. The fundamental point is sharing the crossover
information, working together when multidisciplinary issues arise and doing so
early. Regardless of how your team does it, it is clear that your workplace
health and safety and human resources teams will be grappling with these changes
together.

With the ever-increasing focus on psychosocial risks, employment and industrial
relations decisions now need to be cognisant of workplace health and safety
considerations.

The key takeaway is that it doesn’t matter how many jigsaw pieces there are, the
jigsaw is showing an ever-increasing focus and attention on the workplace. In
our view, this is going to see a consequential increase in regulatory attention,
and possibly enforcement. Agree with them or disagree with them, the changes are
coming.

Are you assembling the puzzle or lost amongst the pieces?

--------------------------------------------------------------------------------

Subscribe to receive the next Workplace Law & Strategy blog direct to your
inbox.

Email this postTweet this postLike this postShare this post on LinkedIn


REVISITING HOMER’S DRINKING BIRD: NAVIGATING REMOTE WORK AND AUTOMATION

By Ben Dudley on April 30, 2024
Posted in HR/IR Strategy

Almost eight years ago, we wrote about some lessons that could be taken from The
Simpsons episode ‘King-Size Homer’ (first broadcast in 1995). You will remember
that Homer is so lazy that he sets up a “drinking bird” to automate pressing
buttons on his home computer that is being used to monitor the Springfield
nuclear reactor. What could go wrong?

Our blog raised some issues that we thought employers should consider when
addressing the “emerging trends” of automation and working from home.

What a difference almost a decade makes! COVID has changed our lives in many
ways, but one of the most significant was to force many employees to work at
home for significant periods – with many employees wanting to continue to work
from home for substantial portions of the week even after they were released
from COVID-prison.

The recent changes made by the Federal Government to the Fair Work Act
re-emphasise the need for businesses to think carefully about how flexible
working can be managed for their workplaces. Under the “secure jobs, better pay”
changes, some categories of employees in Australia, including those with
responsibility for childcare, those over 55 and those who are pregnant, can make
a “flexible working request” and, if the employer refuses, ask the Fair Work
Commission to decide their claim.

These changes mean that employers will need to think even more carefully about
whether they are prepared to allow employees to work flexibly, and what
guardrails need to be in place if they (or the Commission!) allow them to do so.
Employers will need to be able to stand up in front of a member of the
Commission and explain their rationale for refusing to allow an employee to work
in the way the employee wants to. Remember: flexible working requests aren’t
just about working from home – they can include changes to start/finish times,
changes to the working days in each week, job‑sharing arrangements and other
changes.

If you are a sophisticated employer, this means that you will already be
thinking about:

 * Whether you allow some employees to work from home permanently? Will doing so
   set a precedent or expectations? If so, how will you distinguish between
   different parts of your workforce when it comes to work from home?
 * How to accommodate employees with a disability;
 * Whether there are parts of every employee’s role that must be done in your
   workplace;
 * The appropriate controls around allowing employees to work flexibly,
   especially when working from home, such as systems to monitor and manage such
   employees – for instance, are regular daily video calls required? Is an
   ergonomic assessment required? Will you allow employees to work from home
   while they have responsibility for childcare? Will you require them to be in
   a quiet room?
 * The steps you need to take to manage your health and safety risks.

We will very likely get some guidance on some of these questions when the first
cases filter through the Fair Work Commission – but until then, make sure you
don’t knock over the “drinking bird”!

--------------------------------------------------------------------------------

Subscribe to receive the next Workplace Law & Strategy blog direct to your
inbox.

Email this postTweet this postLike this postShare this post on LinkedIn


INTERNATIONAL WOMEN’S DAY 2024: PAY GAPS, THE LAW OF AVERAGES AND ACCELERATING
PROGRESS

By Rachel Bernasconi & Erin Hawthorne on March 7, 2024
Posted in Diversity & equal rights

International Women’s Day for 2024 has the important theme of Count Her In:
Invest in Women. The UN talks about the importance of empowering women and
investing in women in a range of ways. This includes accelerating women’s
economic empowerment by recognising that when women entrepreneurs are
successful, this can lead to more benefits.

The topic of investing in women has been in the headlines in Australia,
following the first release of employer-level pay gap data by the Workplace
Gender Equality Agency (WGEA).

This is intended to spark, and has succeeded in sparking, conversations about
pay gaps. Rightly (in our view), people are looking at where pay gaps exist.
Some companies have been lauded for having no pay gap or small pay gaps. Some
companies have been publicly criticised for their pay gap.

However, it is important to bear in mind that the WGEA pay gap data is limited
in what it tells us about gender equality within any business:

 * The WGEA’s approach is (necessarily) broad-brush. As explained on its
   website, it compares the median remuneration of men and women within a
   company. Where there is a difference, this is reflected as a pay gap
   percentage or dollar figure.
 * The WGEA does not look at whether people receive equal pay for equal work. It
   uses broad occupational and manager categories for comparison purposes, does
   not consider differences in the actual jobs that people have, how skilled
   they are or assess why a gap might exist. It is not evaluating whether a pay
   gap is fair or not.

Knowing that there is a pay gap is a useful place to start a conversation. As
the WGEA suggests, this can prompt questions about what’s driving a pay gap in
order to start reflecting on the possible causes and (where needed) action to
address them.

Some companies questioned about their pay gaps had substantive explanations. For
example:

 * One primary care organisation was listed as having a pay gap of 73.1% in
   favour of men. However, the CEO explained that its workforce included a large
   number of casual doctors working in an after-hours service, on an average of
   one 4-hour shift per month. Half the male workforce are casual doctors
   meaning the median earnings are skewed high. Once this cohort of casual
   doctors was excluded from the data, the pay gap dropped to 2%.
 * Similarly, a women’s retail chain explained that it has a large female
   workforce of over 1400 women (most of whom are employed in retail stores),
   but a small group of male employees. Although 84% of its best-paid employee
   group are female and women occupy 89% of manager roles, the fact that 62 of
   its 65 male employees work in “head office” roles resulted in a median male
   salary being much higher than for its female employees. Other fashion brands
   made similar comments.

These examples highlight the danger of jumping to conclusions and the way in
which context is critical to assess why a pay gap exists and what action might
best support pay equity in the future.

This is particularly important given the recent criticism that has been directed
towards pay gaps in companies owned by women or marketed towards women. There
may be good reasons to question a pay gap in a company that promotes itself as
caring for or supporting women. However, in the spirit of IWD, we think
reflecting on this point is important.

Should companies owned by or marketed to women should be held to a higher
standard and singled out for special criticism (when compared to others)? Does
this risk accidentally taking a step backwards? In our rush to respond to pay
gap data and advocate for pay equity, are we looking at this in a way that could
undermine female entrepreneurship?

These are important questions that have no right or wrong answer. But we look
forward to continuing the conversation. After all, that’s the whole point.

--------------------------------------------------------------------------------

Subscribe to receive the next Workplace Law & Strategy blog direct to your
inbox.

Email this postTweet this postLike this postShare this post on LinkedIn


THE NEXT TEN YEARS: SEYFARTH’S PARTNERS DISCUSS THE FUTURE OF EMPLOYMENT AND
WORKPLACE SAFETY LAW IN AUSTRALIA

By Rachel Bernasconi, Paul Cutrone, Marissa Dreher, Ben Dudley, Chris Gardner,
Erin Hawthorne, Justine Giuliani, Sarah Goodhew, Philippa Noakes, Darren Perry,
Henry Skene & Michael Tamvakologos on March 5, 2024
Posted in HR/IR Strategy, Uncategorized, Workplace policy and process, Workplace
reform

In our previous post celebrating the firm’s decade in Australia, our partners
shared their insights into the most significant changes in employment and safety
law that have affected leading employers. This post further explores our
partners’ perspectives on the major changes and trends that they anticipate will
have a major impact on Australian businesses in the next five to ten years.

What changes or trends do you foresee that will have a major impact on employers
in the next 5-10 years?

“I think the regulatory changes introduced since the Labor government came to
power will see their full impact play out over the medium term. The
ramifications of the changes, and their likely impact on our workplaces and the
economy, will be wide-reaching. This will require new skillsets and thinking for
management and HR teams who, in many cases, are not ready and sufficiently
resourced for what is coming.” – Rachel Bernasconi, Partner

“Compliance with the relatively new psychosocial risk laws will start to settle
in, as well as potential new laws relating to reporting psychosocial risks and
incidents.” – Paul Cutrone, Partner

“Psychosocial laws are in their infancy but they will continue to develop across
the various jurisdictions. While there appears to be consensus on the ultimate
aim of these laws, how we get there has been polarising. Given the intangibility
of psychosocial health and the differing views of what compliance may look like,
adapting risk management strategies will be a challenge for employers,
particularly for those who are managing risks from a variety of working
environments in a post-pandemic world.” – Marissa Dreher, Partner

“As technology advances and we see even more new ways of working (and society
considers how to best take advantage of AI), we will see ongoing debate about
how far workplace regulation should intrude. As the world recovers over the next
10 years from the impacts of COVID (including persistent inflation) and armed
conflicts, employers will need to deal with the changing expectations of
employees about what “work” means to them, and the role it plays in their lives.
Employers will need to be open to adapting their business models to the demands
of modern workers, including the “Three Fs”: flexibility, fulfilment and
finance.” – Ben Dudley, Partner

“Workplaces will navigate the current Government’s extensive workplace changes.
Multi-employer bargaining will emerge in industries where unions already operate
in a de-facto pattern bargaining fashion. As economic fortunes wane, workplaces
will again find ways to do more with less and a future Government will be under
pressure to de-regulate in some areas. I wouldn’t rule out the return of a
statute supported individual contract as frustration with collective bargaining
mounts including amongst employees. AI will erode routine knowledge-based jobs.
Lower employment will be a consequence of an inflexible regulatory environment.
Large employers will find ways to better systemise workplace compliance with
more solutions offered to them by the market.” – Chris Gardner, Partner

“After a period of relative stability under the Fair Work Act 2009, we are now
heading into a period of instability. The Albanese Government’s broad reform
agenda is pursuing fundamental changes which will affect the way businesses deal
with their employees, contractors, labour hire providers and unions. These
reforms affect almost every way of working. The full impact of the reforms will
not be known until after any transitional periods when test cases start to run
through courts and tribunals. This period of uncertainty will make employer
decision making more difficult, and riskier, in the foreseeable future.
Employers will have to carefully calibrate opportunity and risk. There is going
to be a tradeoff between “playing it safe” and making decisions in the face of
uncertainty that might best position the business in years to come (depending on
how those test cases play out).” – Erin Hawthorne, Partner

“Running a business will be a different proposition in the next decade to what
it was in 2010, or even 2020, from a people perspective. Employer duties and
obligations to their people are broader and deeper, even as workforces
de-centralise and evolve with the advent of better technology. Recent
legislative reforms will entrench the focus on the protection of the individual
and their health, safety and satisfaction at work.” – Justine Giuliani, Partner

“The multi-disciplinary approach needed by businesses to what have traditionally
been ‘HR’ or ‘WHS’ issues which now need to be considered wholistically. This is
occurring against the backdrop of an increasing enforcement environment, with
greater criminal penalties for corporations and individuals.” – Sarah Goodhew,
Partner

“With the new legislative changes introduced by the Federal Government, I
anticipate that we are moving into a period of collective claims and disputes.
This is a product of the focus on enterprise bargaining and union rights under
the new legislation. In addition, we will also see an increased focus on
diversity and inclusion as companies look to manage their new obligations with
recent changes in WGEA reporting requirements, new obligations under the
Respect@Work reforms and an increasingly tight labour market where companies are
competing for talent (and candidates are closely considering policies and
benefits which touch on diversity and inclusion such as flexibility and parental
leave).” – Philippa Noakes, Partner

“Clearly one major trend will be how our legislative frameworks evolve to
reflect changes in the nature of work, as technological change breaks down
conventional models of employment. Another will be how employers engage with a
revitalised union movement and much less favourable environment in our
employment tribunals. There is an element of going back to the future here. My
expectation is that we will start to see companies increasingly approaching
their compliance with employment and safety laws, and ethical workplaces
practices, become a key part of their approach to ESG.” – Darren Perry, Managing
Partner

“The title “Fair Work Act” has become a misnomer following recent changes. The
“Worker Rights Act” would be a more suitable title. The next five years will be
characterised by test cases to establish the boundaries of these new individual
and collective rights. My fear is that the economic damage will be profound
before the “pub-test” will provide a viable political pathway for reform. So, we
need to plan for this environment to be here for a while….The comfort is that
principled organisations with strong leadership know that they can drive
effective workplaces and change notwithstanding the regulatory environment.
Strategies to achieve and maintain alignment with at least a majority of
employees will never be more important. So, I expect to see increasing
sophistication and innovation from organisations to meet the challenges of the
new landscape. Promisingly, this has already started to occur.” – Henry Skene,
Partner

“A key driver of future success will be creating business models and practices
that are resilient to regulatory change and can benefit from it. The ability for
business to constantly evolve and use technology will be paramount. In terms of
changes to the law, preparation is better than prediction. That said, there are
likely to be aspects of change:

 * As the political winds change there will be an assessment of whether some
   aspects of the current changes and those that will occur in the short term
   are economically damaging or an over-correction; which may see some aspects
   wound back.
 * The fast development of AI, and all the good and bad that comes with it, will
   mean the intersection of employment laws, surveillance and other technology
   related laws will become a greater focus.” – Michael Tamvakologos, Partner

The perspectives offered by our partners on recent and anticipated changes serve
to remind employers that employment and workplace safety laws are never static.
Employers will need to proactively adapt to the evolving legal terrain, ensuring
resilience and success amidst the challenges and opportunities on the horizon.

--------------------------------------------------------------------------------

Subscribe to receive the next Workplace Law & Strategy blog direct to your
inbox.

Email this postTweet this postLike this postShare this post on LinkedIn


A DECADE IN AUSTRALIA: SEYFARTH’S PARTNERS REFLECT ON CHANGES IN EMPLOYMENT AND
WORKPLACE SAFETY LAW

By Rachel Bernasconi, Paul Cutrone, Marissa Dreher, Ben Dudley, Chris Gardner,
Erin Hawthorne, Justine Giuliani, Sarah Goodhew, Philippa Noakes, Darren Perry,
Penny Stevens, Henry Skene & Michael Tamvakologos on February 29, 2024
Posted in Health & Safety, HR/IR Strategy, News

Seyfarth just celebrated ten years of service to leading employers in Australia.
To mark the occasion, we invited some of our partners to share insights on the
evolution of employment, industrial relations and workplace safety in Australia
over the past ten years.

What have been the biggest changes in employment law, industrial relations and
workplace safety over the previous ten years?

“In my view, one of the biggest changes has been the challenge for employers of
all sizes to comply with increasingly complex employment laws and, more
specifically, modern awards.” – Rachel Bernasconi, Partner

“The changing health and safety enforcement climate for organisations and
individuals. The enforcement setting is shifting to a more assertive and higher
stakes regulatory environment.” – Paul Cutrone, Partner

“An increased community awareness and engagement with respect to workplace
safety, and with that, greater expectations on both organisations and the
individuals within them. This change in community expectation has been reflected
across Australia with the introduction of outcome-based industrial manslaughter
laws, the increased use of reckless endangerment provisions (against both
companies and senior managers), significantly increased maximum fines and, more
recently, a heightened regulatory focus on psychosocial risk.” – Marissa Dreher,
Partner

“The biggest changes have involved the courts and government grappling with what
the concept of “employment” really means in modern society, and how far
regulation should stray into the private relationships between parties in the
21st century. We have seen the High Court of Australia hand down decisions in
relation to what “casual employment” means, as well as where the line is drawn
between an employment relationship and an independent contracting relationship.
And then the government has legislated to change the result of both of those
cases.” – Ben Dudley, Partner

“Business leaders and HR have never been under more pressure when it comes to
the workplace. A tight labour market combined with ever increasing regulation
has underscored the difficulty. Related to this we’ve seen the bolstering of
individual rights and a wellness zeitgeist as workplaces have never spoken more
of resilience but seen less of it. The rise of the individual and a certain
entitlement mentality has seemingly coincided with a decline in individual
accountability with everything left to institutions (the employer being but one)
to solve. For HR, “risk” has been the big theme.” – Chris Gardner, Partner

“Workplace issues have become significant business and brand risks, while
increasing in complexity. Formerly, many businesses would have a siloed
approach, with separate teams dealing with safety, HR, compliance, workers
compensation and payroll issues. The issues that employers need to deal with
have increasingly required a cross-disciplinary approach. To take some simple
examples: workplace bullying and sexual harassment issues need input from HR and
from safety teams. Award compliance increasingly requires legal and payroll
teams to work closely together, often with external experts as well. We are also
seeing a trend of claims that would previously have been addressed as employment
grievances (e.g. performance management or organisational change concerns) lead
to allegations of safety breaches and/or workers compensation claims.” – Erin
Hawthorne, Partner

“Managing people is a first order priority for Boards and senior leaders.
Employers are increasingly deploying risk-management based approaches in all
facets of the employment relationship – whether ensuring their people are paid
in accordance with applicable industrial instruments, meeting multi-layered work
health and safety regulation, and discharging the positive legal duty introduced
under the Respect@Work reforms. There is little latitude for error, with
enhanced penalties for non-compliance and enforcement activity reinforcing the
expectation that businesses will get it right the first time.” – Justine
Giuliani, Partner

“The regulation of hazards and risks – psychosocial and sexual harassment being
two examples – in the workplace that have traditionally been considered within
business to be outside the ‘WHS’ sphere. And the introduction of industrial
manslaughter as a consequence based offence into risk based legislation.” –
Sarah Goodhew, Partner

“Ten years ago, employers were nervously anticipating the impact of new
(typically, individual) claims introduced under the Fair Work Act 2009 (Cth)
including general protections claims and applications for stop bullying orders.
With that in mind, over the last ten years, employers have been very focused on
managing individual claims, which has in turn led to a huge focus on workplace
investigations. It is now very common to see employers skilling up their
workforces (including HR and ER teams, and managers generally) to undertake
robust investigation processes or seeking external investigation assistance for
complex matters.” – Philippa Noakes, Partner

“For me, while so much has evolved, there are three major changes. The first is
that compliance with employment obligations have emerged as a much higher order
risk item for companies. This has been as a result of greater complexity in our
laws, but also more active enforcement by regulators and the representatives of
worker groups. Related to that, the second is that compliance with workplace
obligations is a major reputational issue for company boards, much more so than
a decade ago. Finally, we are seeing a significant lifting of the bar in the
standards of behaviour expected in our workplaces, and a much greater
preparedness for workers to assert their rights when these they feel these
expectations have not been met.” – Darren Perry, Managing Partner

“Only 18 months ago, my top three would have been the ever increasing complexity
of workplace regulation, the success of human resources and organisational
leadership in response, and a commensurate weakening of union penetration and
influence in most workplaces (with a few notable exceptions). Today, the answer
is the four rounds of “Closing Loopholes” reforms. These changes dwarf anything
that has happened in workplace relations since the introduction of enterprise
bargaining in the early ‘90s. And those who remember (then) Minister Gillard
proudly proclaiming in 2008 that the Fair Work Act shifted the “pendulum” back
to the middle, should be aghast at just how far Minister Burke has managed to
push it to one side. The reforms touch all points of the workplace: imposing
increased regulation of engagement, individual rights to access arbitration,
collective rights to commence bargaining and arbitration of actual conditions,
new sector-wide bargaining and capacity to impose employment rights on
contractors and labour hire workers, and universal workplace delegates rights to
speak for both members and non-members. And you will not find anywhere in the
reforms any new measures to improve productivity or even to require that it be
taken into account.” – Henry Skene, Partner

“The introduction of industrial manslaughter for employers in most Australian
jurisdictions signalled an increased focus by regulators on strengthening
workplace safety and accountability. This legislative development underscores a
critical shift towards prioritising the wellbeing of employees, demanding
stricter adherence to safety protocols, and holding employers responsible for
ensuring a secure work environment.” – Penny Stevens, Partner

“In my view, the biggest changes we’ve seen to the law are in areas where the
law lagged social attitudes and has now caught up, namely:

 1. Compliance with workplace obligations and standards such as timely and
    correct payment is now a Board issue: Ten years ago, it would have been rare
    for a Board to spend time on this kind of issue. Now systemic underpayments
    attract a high level of scandal and can damage reputations – corporate and
    personal. As a result, organisations are spending much more on IT and
    auditing at the front end and litigation at the back end.
 2. Individuals and vulnerable individuals and groups empowered: Both
    generational shifts in thinking and social movements such as #MeToo have
    reset expectations about what is acceptable. In legal terms there is focus
    on practices such as confidentiality agreements to resolve harassment claims
    and many recommendations and changes that have come out of the Respect@Work
    report.
 3. Government intervention in IR: After decades of incremental or no reform,
    the Labor Government has shown a willingness to enter the IR landscape and
    make far reaching changes to the point of nearly prescribing outcomes.
    Companies in some industries are heavily impacted and succeeding with this
    level of regulatory risk and intervention requires a planned approach.” –
    Michael Tamvakologos, Partner

On behalf of the team, we would like to thank our valued clients. We are excited
to continue working with you in 2024 and beyond.

In our next post, our partners look forward to sharing their insights on the
changes and trends that are poised to significantly impact employers over the
next five to ten years.

--------------------------------------------------------------------------------

Subscribe to receive the next Workplace Law & Strategy blog direct to your
inbox.

Email this postTweet this postLike this postShare this post on LinkedIn


SEYFARTH PROMOTES MARISSA DREHER TO PARTNER

By Tim Griffin on January 24, 2024
Posted in News

Seyfarth is pleased to announce the promotion of Marissa Dreher to the position
of partner with the firm.

The appointment of Marissa brings the total partner promotions from within the
team to five since the Australian offices of Seyfarth opened in Australia in
2013, in addition to a number of lateral partner hires. The appointment means
that there are more women than men in Seyfarth’s Australian partnership team,
highlighting the firm’s commitment to diversity and inclusion. Marissa joins
Paul Cutrone, Sarah Goodhew and Penny Stevens as partners and leaders of
Seyfarth’s workplace health and safety team, who all work collaboratively with
Seyfarth’s nine employment partners. Nick Neil has been promoted to counsel in
the workplace health and safety team.

Marissa joined Seyfarth as Counsel in 2020 from Dreher Legal, a boutique
workplace safety practice that she established in 2013, having previously led
the large safety practice of a national firm. Marissa is a highly experienced
workplace safety lawyer, practising exclusively in this area for 20 years.

“Marissa is an outstanding lawyer who is an integral part of the success of
Seyfarth’s workplace health and safety law team in Australia, and her promotion
to partner recognises her standing with clients”, said Australia Managing
Partner, Darren Perry. “Since the establishment of Seyfarth’s workplace health
and safety practice in 2015, the team’s depth of expertise has continued to grow
in response to this increasingly complex area of law.”

Clients come to Marissa for her sound business acumen, her strategic and
pragmatic approach, and her ability to balance legal obligations with commercial
and operational needs. Marissa has extensive experience defending prosecutions
across a broad range of industries, as well as representing clients during
regulatory investigations and coronial inquests following serious workplace
incidents, and assisting them when responding to statutory notices.

Seyfarth is Australia’s only specialist labour, employment and workplace health
and safety team with the backing of a global firm. The Australian team has
received top rankings for its superb legal work and innovation in Chambers
Asia-Pacific, The Legal 500, Doyle’s Guide and Best Lawyers.

Email this postTweet this postLike this postShare this post on LinkedIn


CLOSING LOOPHOLES JUST KEEPS GETTING BETTER AND BETTER

By Henry Skene & Chris Gardner on December 1, 2023
Posted in News, Workplace reform

It is worth noting that under the original timetable of the Hon Tony Burke MP
for the Closing Loopholes Bill, it would have been passed as law this week.

Instead, in the face of Senate scrutiny, the Bill was pushed into Committee for
examination until February 2024. In the time since, fundamental problems with
the Bill have been identified (as have been extensively covered in this blog and
media commentary).

This week, the Australian Government tabled proposed amendments aimed at a tidy
up. But key amendments fail to resolve the issues they purport to address. And
others introduce new significant measures not contemplated by the initial Bill.
We explain below.

The tidy up is ineffective

For example, let’s look at the changes in relation to two of the hottest issues:

 1. “Regular” casuals: The Bill proposed wholesale amendments to the casual
    employment test (see our blog here) imposing a complicated multi-factorial
    test that had the potential to disrupt casual employees from working regular
    days. After a long negotiation with the AHA, the Government claimed it had
    reached agreement, such that casuals with regular patterns of work could
    remain casual. The proposed amendment to achieve this is: regular pattern
    will not “automatically” mean they are not casuals but does not mean that
    they are casuals. What does that mean?
 2. “Service-based” contractors: The labour hire provisions of the Bill
    introduced a new regime for determining when contractors (as opposed to
    employees) could be required to be paid the same rates as employees who
    perform like work. The test was inexplicably broad and immediately
    acknowledged by practically everyone, including Minister Burke, as going too
    far and risking capturing all sorts of service providers (see our blog
    here). The proposed amendment here makes things better, but remain obscure.
    On the one hand, it says that the Fair Work Commission (FWC) must not make
    orders where a work arrangement relates to the provision of service rather
    than the provision of labour, but on the other hand, it requires the FWC to
    have regard to a range of factors, not about the services being provided,
    but rather the “employment-like” arrangements in which work is performed.
    So, the test is aimed at an objective skewed by the lens through which it is
    assessed. Why is there not consideration of the services being performed?

These are just two examples of the problems that have received most significant
attention since the Bill was first tabled. Both these amendments are designed to
achieve a simple outcome but fail to do so, leaving contestable issues and
uncertainty. One could be forgiven for thinking that this is deliberate, as
simple drafting of both measures would not be hard to achieve. A more detailed
review of the legislation and the amendments reveals a longer list, which we
will cover in future posts.

Bargaining determinations: all one way

The amendments include further significant changes to the bargaining regime
introduced only last year.

Most concerning is the proposed amendment to the arbitration rules after the FWC
determines that bargaining is intractable. A new provision will mean that that
any term determined by the FWC must not be “less favourable” to each employee
covered by the agreement and any union than the terms of any current enterprise
agreement.

So there’s no give and take here – it’s all one way. Employees and the union
must not go backwards from their position under any prior agreements. This is an
extraordinary measure that fundamentally alters the dynamics of bargaining.

Intractable disputes are almost invariably about difficult issues. Employers
commonly want to achieve changes to existing terms and conditions as part of any
new deal. The objects of the Fair Work Act 2009 require a fair and flexible
framework for collective agreement making to deliver productivity. How unfair
that an employer, particularly one trapped by conditions in an outdated
enterprise agreement, should ever be able to achieve any such reforms.

The effect of this provision is that militant unions can hold out in bargaining
to prevent any such changes (all the while taking protected industrial action).
And do so without any risk that an unreasonable position on their part could be
rectified by the FWC (even where the FWC considered that it was otherwise fair
and appropriate to make changes to existing terms of enterprise agreements). The
reform would drive ambit claims and disincentivise any reasons for unions or
employees to make concessions. There would now be no risk of them being imposed.
The result for the employer: stuck with restrictions in current agreements with
no mechanism to address them and where bargaining becomes about managing
downside risk and cost.

Who is not listening to the umpire’s decision now? But why bother when it is so
much easier to rig the game from the start so the umpire cannot decide against
you. More to follow on this change and its impact.

Email this postTweet this postLike this postShare this post on LinkedIn


HOW WILL THE POTENTIAL BAN OF EMPLOYMENT RESTRAINTS AFFECT AUSTRALIAN EMPLOYERS?

By Michael Tamvakologos on November 14, 2023
Posted in HR/IR Strategy, Workplace reform

Many Australian businesses use contractual restraints of trade to protect
confidential information and customer relationships. In this update we answer
frequently asked questions about the future of restraints of trade in Australia,
and consider options available to companies in the event that some types of
restraints are no longer available.

Are restraints of trade still allowed?  

Yes – in the sense that the rules that have applied for years still apply for
the moment.

Restraints of trade can form part of an employment arrangement (usually in the
employment contract or a deed) and sale of business agreements and will be valid
and enforceable in certain situations.

There are a fairly complicated set of both rules and principles that Courts
apply in determining whether a restraint will be valid, and warranting remedy,
where it has been or might be breached. The basic rule is that a restraint will
be unenforceable unless there are special circumstances where a restraint
protects a legitimate interest recognised by law. This interest must be
recognised by the law and deemed reasonable by the Court both as between those
who agreed to it, and taking into account the public interest.

Generally, Courts take a more permissive approach to sale of business restraints
(which typically restrain the vendor from accepting business from former clients
of the business sold for a period of time). The idea is that sale of business
restraints are a public good because they benefit trade. Courts typically need
much more convincing that a restraint in an employment agreement is enforceable.

When is a restraint reasonable and enforceable?

This depends on the particular circumstances. A Court will consider the scope of
the restraint (the activities – such as not competing or poaching staff), how
long the restraint applies, and its geographical area.

For more detail, click here to receive a copy of my article in the Australian
Business Law Journal.

Are employment restraints about to be banned in Australia?

Short answer is no, not yet, but their future looks uncertain.

Businesses that use restraints of trade to protect confidential information
going to competitors when employees leave, or purchasers acquiring a business
who want to protect goodwill will be keen to understand the future of restraints
of trade in Australia. The Australian Competition and Consumer Commission (ACCC)
is presently reviewing whether restraints will be banned in Australia following
a referral from the Federal Government.

We’ve set out key information about the state of play below. If you see
something important and need more insight, speak to any of our partners. We have
had deep involvement in many of the most contentious and high stakes cases
decided in Australia and have broad advisory expertise in this area.

Are there many types of restraint and which are being reviewed?

Yes, there are many different types of restraint. They include:

 * Non-competition restraints which forbid working for a particular company or
   in a particular industry.
 * Non-poaching restraints which forbid soliciting or encouraging staff or
   clients to leave one organisation and join another.
 * Sale of business restraints which are typically a form of non-competition
   restraint given by a vendor to the purchaser of a business promising not to
   set up in competition and take clients or staff away.

We understand that all of these types of restraints are under review.

If we were to speculate, what changes will the Government make?

It depends much on what recommendations the ACCC provides the Government with,
and then, of course, whether the Government has the numbers in Parliament to
implement any recommendations it accepts.

Judging by what has occurred in other countries, most notably the United Kingdom
and the United States of America (who Australian politicians commonly look to
for ideas), consideration will be given to:

 * banning non-competition restraints contained in employment contracts;
 * limiting non-solicitation of client or staff restraints to a short period of
   time, say three months maximum; and
 * only permitting enforcement of a restraint where there is specific and
   separate payment for the period the restraint operates.

It is likely that sale of business restraints will be left alone or subject to
additional criteria. We do not anticipate them being banned altogether.

Restraints of trade have been in place for hundreds of years. Why is the
Government reviewing them now?

The catalyst for the review in Australia was a 2023 decision by the Federal
Trade Commission (FTC) in the United States of America (similar to Australia’s
ACCC which enforces competition laws) to issue a rule that all employment
non-compete agreements (but not sale of business agreements) be banned, and even
existing non-compete agreements be rescinded.

Although this FTC rule is not in effect whilst consultation about the proposal
is occurring, the proposed change has unleashed quite the energetic backlash
with more than 11,000 submissions being filed with the FTC about the proposals,
with plenty of media making the case both for and against restraints. This is
mostly due to US legislative activity expanding to impose restrictions on
confidentiality and non-disparagement agreements following a separate decision
from the National Labour Relations Board which found an increase in corporate
suppression of misconduct and ill-treatment of shareholders, consumers and
employees.

Interestingly, other employment restrictions including non-disclosure and
non-solicitation agreements are exempt from the ban. The affected ability for
employers to include confidentiality and non-disparagement clauses in separate
agreements has been proposed in conjunction with the ban on non-compete clauses
on the basis that these provisions provide an unfair method of competition. In
the past, employees have been found to be best positioned to reveal employer
misconduct as a result of their access to private, in-house information. This
has in turn, attributed to a growing concern for employer abuse in the
implementation of strategic confidentiality provisions and contractual clauses
aimed at preventing an employee from exercising workplace rights and disclosing
misconduct and wrongdoing.  

The criticisms of the FTC proposal are many and varied, including that:

 * The FTC does not take into account the many positive reasons for non-compete
   agreements, such as promoting innovation and giving companies a better chance
   to protect confidential information;
 * The FTC does not have congressional authority to make the rule banning
   non-competes that it proposes – this issue will be determined through
   litigation in 2023 and 2024; and
 * The reasons given by the FTC for banning non-competes lack substance. For
   example, the FTC cites the overuse of non-competes to restrict the mobility
   of low-earning employees, but does not explain why senior employees who have
   confidential and commercially sensitive information and move from a company
   to a direct competitor should not be subject to such restraints.

A number of States in the U.S. including California, North Dakota, Oklahoma, and
Minnesota have now proposed State legislation to ban non-competes. Other States
in the U.S. including Washington, Oregon, Nevada, Colorado, Illinois, Maine,
Massachusetts, Rhode Island, Maryland, Virginia, and the District of Columbia
have enacted legislation which is restraint friendly or unfriendly. You can find
a State-by-State comparison prepared by our United States colleagues here.

The UK government appears to have followed suit shortly after the FTC’s
announcement in proposing a statutory limit on the length of non-compete clauses
of three months. The UK’s position aims to boost flexibility in the labour
market and unleash greater competition and innovation. It is unclear from the
UK’s proposal how this is to affect current in-place non-compete clauses.

In the case of Europe, no major jurisdictions have banned non-competes
completely. They remain enforceable, given the commonality for employers to opt
to embed non-compete clauses in employment agreements of essential employees.
Many jurisdictions have a limit of 12 months on non-compete periods, requiring
some non-compete periods to be paid fully or partly as is the case in France,
Spain, Italy, Belgium, Denmark, Poland, Norway, Portugal, and Germany.

There is specific legislation in New South Wales that helps companies enforce
restraints. Will that be changed?

We can only speculate at this point. If the Federal Government changes the law
concerning restraints (for example, by placing a strict cap on the duration of
employment restraints), it is likely the change in law will apply uniformly
across the country, which will alter the position in New South Wales.

We are common users of restraints of trade in our business. What can we do now
to put ourselves in a good position in case employment restraints are not
available in the future?

Restraints are very common in some industries and professions. In the only
Australian study examining the prevalence of restraints, Chia and Ramsay (2016,
Australian Journal of Labour Law) found that restraints are most commonly used
in financial services, professional services, technology, real estate,
recruitment and in wholesale and consumer products businesses.

Although a good restraint of trade can offer important benefits to a business if
it is well drafted and used for the right reasons, it is important to bear in
mind that there are other means to protect confidential information. Sections
182 and 183 of the Corporations Act 2001 (Cth) prohibit directors and employees
improperly misusing information obtained through their employment. Further,
equitable rules regarding the misuse of confidential information, agreed
contractual provisions, legislation protected trade secrets and common law
protected intellectual property all ensure the security of privileged
information.

The issue is that none of the means described above offer the same protection
that a good restraint of trade does. For example, assuming a valid restraint has
been agreed upon, a top salesperson who leaves to join a competitor can be
restrained for a reasonable period to (a) enable the former employer to replace
them, and (b) provide a replacement salesperson with a chance to meet clients
and form customer connections. Absent a restraint, there are no strong legal
protections that deal with this kind of situation.

In terms of what can be done to protect business assets, such as confidential
information or critical customer connections in the face of a potential ban on
restraints, we can take some guidance from what companies have done in some U.S.
States, such as California, where restraints were banned years ago. Over time, a
number of legal and economic instruments have been developed and deployed
including:

 * Use of choice-of-forum clauses (where there are differences between States)
   that may enable the law of a different forum to regulate the contract;
 * Stronger drafting of confidential information protection contained in the
   employment contract or Non-Disclosure Agreement clauses (which can be used
   throughout the employment not just at the start);
 * In industries where this solution is appropriate, invention assignment
   agreements (typically used in technology companies and universities) where
   the employee agrees in advance that any inventions developed in the course of
   the employment belong to the employer;
 * Use of deferred compensation mechanisms to encourage employees to stay with a
   firm or to leave on terms which protect confidential information and customer
   relationships; and
 * Increased use of legislation protecting trade secrets and confidential
   information.

Other novel solutions also exist in particular industries and professions.

Is there merit in the criticism of restraints of trade, that they suppress wages
and trap employees in jobs they don’t like?

This is a contentious topic, and there is no straightforward answer. Much
depends on the stance taken on some philosophical issues such as whether
employees should ever be in a situation where they cannot freely move around in
a labour market and pursue their own best interests.

If it is accepted that there is a trade-off to be struck between labour mobility
and the protection of company interests, such as confidential and commercially
sensitive information or investment in staff and clients, the issue is where the
appropriate trade-off should be.

Various overseas studies have looked closely at this issue from different
perspectives include a macro whole of economy perspective, a business level
perspective and an individual employee perspective. For example:

 * Ronald Gilson from Columbia Law School emphasised that the success of Silicon
   Valley in California is in large part attributable to the State ban on
   restraints. Knowledge spillovers between firms, so the argument goes, allow
   ideas to spread to where they are most likely to be commercialised – which
   accelerates innovation and is good for the economy and society.
 * By analysing a large volume of patent and other data, Agrawal, Cockburn and
   McHale (2006, Journal of Economic Geography) noted that it is social ties
   between people that results in idea and information flows. These researchers
   found that even after an inventor had moved companies or geographies,
   knowledge flow at the old location was 50% higher than when they had lived
   and worked there. This indicates that personal relationships endure over
   time, space and organisational boundaries. These researchers would not
   consider restraints a major variable impacting idea and information flows.
 * In a thorough and long paper, Posner, George Triantis and Alexander Triantis
   (2004, Olin Working Paper No. 137, University of Chicago Law & Economics)
   considered the issue from an economic efficiency perspective (that is, what
   is the correct balance point between labour mobility and employer investment
   in human capital), and concluded that the choice and drafting of a restraint
   can deal with these tensions, although there are economic incentives for both
   contracting parties to agree to excessively broad restraints upfront which
   can be a problem if they cannot be renegotiated at a later date.
 * Arup, Dent, Howe and Van Caenegem (2013, University of New South Wales Law
   Journal) considered the impact of legal practice (that is, how the law works
   in practice) upon the enforceability of restraints of trade, and found that
   when an employee leaves and hard bargaining occurs under circumstances of
   uncertainty concerning whether the restraint will be enforced, often the
   former employee is at a financial and expertise disadvantage unless the new
   employer is willing to become involved and to provide financial and legal
   support.

--------------------------------------------------------------------------------

Subscribe to receive the next Workplace Law & Strategy blog direct to your
inbox.

Email this postTweet this postLike this postShare this post on LinkedIn


THE DEMISE OF LABOUR HIRE – THE PROBLEM, POLICY AND POLITICS

By Michael Tamvakologos on October 5, 2023
Posted in HR/IR Strategy, Workplace policy and process, Workplace reform

In his press club speech on 31 August 2023, just days before the public release
of the Closing Loopholes Bill, Minister for Employment and Workplace Relations
the Hon Tony Burke MP described the problem of the labour hire loophole as
follows:

“But if you have an enterprise agreement in place, the labour hire loophole is
where the employer has agreed for particular tasks, particular classifications,
that there’ll be a particular rate of pay. And then, having agreed to it, having
had it registered, says, “But I’m now going to use someone who’s technically a
different employer,” and those rules instantly disappear, and now we go right
back down to the award again. That’s a loophole. It’s not what’s intended. It’s
currently legal for the companies that are doing it.“

And later:

“…labour hire shouldn’t be used as a device to undercut what’s been registered
and agreed to.“

The Minister defiantly stated, “for anyone who does want to stop us closing the
loopholes – defend them. Because so far, no-one has defended any of the
loopholes I’ve described”.

The invitation to examine the problem, the policy to deal with it, the
implementation of the policy, and even the politics is accepted.

Let’s start with agreeing on the problem. The Minister claims labour hire can be
used as a device where a company agrees to a rate of pay in an enterprise
agreement and then avoid that agreement by shifting the work to a different
employer which pays an inferior rate. This is the “loophole” that allows
companies to circumvent how the current law is intended to work. Notice the
language used of a “device”. The Minister apparently now sees a device, a trick,
a scam that has been taking place for 14 years under the Gillard Government
legislation enacted in 2009.

So, is there a loophole that allows companies to circumvent the way the current
law is intended to work? To answer that question, let’s examine how the current
system deals with this problem.

First, outsourcing work because your employees have entitlements under an
enterprise agreement is not lawful. Not under this legislation or previous
versions of it. So, the loophole claim does not get off the runway.

Second, employees of the labour hire company working alongside employees earning
more have a fairly simple path to higher wages. It is the same path that the
host employer’s employees took – that is, to use the system to make an
enterprise agreement that contains a higher rate of pay. They would have all the
industrial weapons afforded by the legislation, including protected industrial
action. This is the premise of enterprise bargaining which underpins the
legislation and has done so since 1993, but now staff have the benefit of new
options like seeking to engage in multi-employer bargaining, and in many cases,
to initiate bargaining simply by requesting that the employer do so.

Third, even the Minister acknowledges there are good reasons for labour hire.
So, which are good and which are a device? Read the Bill and see if you come
away any wiser.

The reality is that describing this problem as a loophole is wrong. It is a
standard issue industrial problem which the legislation already deals with.
There is no policy or legal vacuum that needs to be filled.

That’s the problem and the policy – what about implementation?

This is where the Bill has the capacity to create serious distortions.

Consider the situation where a labour hire company has negotiated its own
enterprise agreement with its employees. As with any enterprise agreement, the
terms and conditions agreed are a mix of swings and roundabouts. That might mean
a higher rate of pay than at other enterprises in return for other conditions
being changed or reduced, but it may also mean a lower rate of pay in exchange
for other benefits such as additional leave. The point of enterprise agreements
is that they are negotiated at an enterprise level and are right for that
business at that time. The way the system will work if the Bill passes is that
those employees can take the high-water mark of the rate of pay in their own
agreement or the rate of pay of the “host employer” plus all other conditions
provided by the direct employer. The integrity of the agreement making system
suffers in return for a pick and choose approach to pay rates.

There are other issues. As mentioned above, the Bill makes no distinction
between the use of labour hire as a so-called device and its integrous and
proper use. There is a long list of factors that the Tribunal must take into
account (if the parties raise them) in deciding whether the legislative bias
towards making an order is displaced, but it can also take into account any
other factors it considers relevant in ultimately deciding what is “fair and
reasonable” – about as vague and amorphous as it gets. Different Tribunal
members, each deciding the matter diligently and in line with the legislation,
can come to different conclusions because the standard adopted is discretionary
and impressionistic. What it does supply, though, is a great political defence –
who can argue against a law that is directed to achieving a “fair and
reasonable” outcome?

In addition, rather than specialised services labour hire being permissible – as
was promised to be the case – it is just one factor that goes into a long
shopping list of factors before a result gets spat out. There is no reason why
this would necessarily result in an order not being made. Indeed, the default
position with specialised labour hire is the same as for any other case – an
order must issue unless the employer convinces the Commission it would not be
“fair and reasonable”.

The new provisions also jar with other parts of the system. The transfer of
business provisions permit the Commission to make an order to stop an enterprise
agreement (and its rates of pay) from moving with employees to a new employer in
some cases, including outsourcing scenarios. Such an order is the result of a
judgment call by the Commission that it’s not appropriate for that instrument –
including sometimes a higher rate of pay – to transfer. That outcome could be
undermined by the subsequent making of a protected rate of pay order that
imports a host employer’s rate of pay where those employees later provide
services to the host employer. Again, the system is, by design, weighted towards
that outcome.

This legislation is not, however, ill conceived. Not in the real politik sense.
It is there for a reason – just not the reason stated. It is not closing a
loophole or preventing the use of a device to undercut agreements. If it were
really about closing a loophole, then it manifestly goes further than its
intended aim. If the government is really targeting a narrow range of abuses, it
is obvious that its scope must be narrowed now. As noted, English Parliamentary
Draftsman Stephen Laws CB has warned, Acts of Parliament “… cannot be steered to
the right target: they have to have been well aimed before having been launched.
If an Act misses its target, it may take at least a couple of years to put
things right. In the meantime, the government’s policy will not be delivered,
and the law may be producing the wrong result in case after case”.

So why make this change to the law when its scope and effects so clearly exceed
its stated purpose? One can readily speculate that the real issue is distaste
for developments at workplaces that have moved us away from centralised
negotiations, usually with one or more powerful unions, that would implement a
single set of rules for a workplace or business.  A dispersal of work across
different providers, who compete with each other on factors including labour
costs and have their own sets of conditions, does not fit that mould, and in
turn, reduces unions’ influence and the attraction of membership. This change
seeks to reverse those trends, or at least buck the trend.

What we see here is a workplace-level implementation of the same centralising
impulse that drove the government’s earlier amendments, allowing employers to be
dragged into multi-employer bargaining, and indeed permitting employers to be
added against their will to the coverage of enterprise agreements they had no
role in negotiating.   

Now, we can debate whether these macro system changes are good or bad. There are
complex policy debates to be had here – but we cannot have them if these changes
are positioned as ‘closing a loophole’ to cover for their real purpose.

--------------------------------------------------------------------------------

Subscribe to receive the next Workplace Law & Strategy blog direct to your
inbox.

Email this postTweet this postLike this postShare this post on LinkedIn


LOOKING TO CUT COSTS? WHO YOU GONNA CALL?

By Henry Skene & Chris Gardner on October 4, 2023
Posted in Workplace policy and process, Workplace reform

So, the business needs to cut costs. It might want to outsource. Redundancies
look inevitable. But you need to be sure: so here comes a high-priced management
consultant.

Things are getting expensive. Everything is on the table. There’s an enterprise
agreement or two driving costs. You could get maintenance cheaper elsewhere. Or
how about the supply chain? A 3PL solution can work. The numbers stack up. Your
hunch is right – the consultants have confirmed it. Post redundancy costs will
be amortised in three years. You press the “go” button and on sound advice. You
send in the commercial lawyers to make sure all is in order. This is a
commercial issue, after all. Safe hands.

Then HR is handed the task of implementation. But wait, there’s the law of
workplace change.

Neither the consultants nor the commercial team have considered consultation or
the potential for a dispute or litigation.  The employment costs are on the due
diligence list, but implementation risks are not on the radar (or, at least, not
until now when you raise them at the first implementation meeting).

Now, the union wants to see documents. There has been much talk about the
consultants. Their work is no secret.  The union claims this is all about
avoiding the industrial instruments and the next bargaining round. A court claim
is imminent….

Two potential scenarios follow:

 * First, your outsourcing is stopped in its tracks by a Court injunction. This
   is until a final hearing can deal with it, about 6 -12 months down the track.
   And there are to be no redundancies in the meantime. Unfortunately, recent
   developments mean that this might actually be the best scenario.
 * The second sees the outsourcing going ahead. But then the damages claims
   follow. A claim by the union that it’s lost membership dues. A claim by
   employees who have lost jobs and, therefore, income. Add to these claims for
   “pain and suffering”. And this latter claim will take years, not months, to
   resolve, all the while potential liability continues to accrue, and
   uncertainty hangs over every step the business takes like a looming storm
   cloud.

The law of workplace change is not new. It’s basically this: any workplace
change negatively impacting employees must not be for specific unlawful reasons:
the existence of an enterprise agreement, the right to bargain for an enterprise
agreement, union membership, and certain union activity being just some
examples. It’s been heavily litigated over the years. And it remains difficult
to navigate even where the reasons are commercially driven, as is most often the
case.

That’s because the law has blurred the lines. Are redundancies to save costs
because of the enterprise agreement? Or are they to save money? To save money,
of course – but the saving comes by “avoiding” the enterprise agreement, or so
the argument goes. At a trial, a judge must unpack the various arguments about
the reasons for the decision and their underlying cause. Notes of internal
meetings, the consultant’s brief and analysis, who said what and to whom
internally will all be picked over. Any mention of the enterprise agreement
gives the union its gotcha moments.

If the employer cannot positively prove in this contest of competing so-called
“reasons”, that the enterprise agreement or other workplace rights did not play
any part in their consideration, the court can find that the business has not
discharged the reverse onus. The business goes down and substantial damages can
follow, defeating the cost-savings and more. And, of course, the senior
management are obliged to turn their minds to the industrial arrangements in
order to discharge their duties to the business and its shareholders.

So, we run the risk that you are damned if you do and damned if you don’t. This
“trip wire” is not new. But following the High Court developments last month,
it’s now more opaque than it has been for 20 years. And about to get some
renewed focus by union lawyers keen to put the brakes on any workplace change.

--------------------------------------------------------------------------------

Subscribe to receive the next Workplace Law & Strategy blog direct to your
inbox.

Email this postTweet this postLike this postShare this post on LinkedIn


POST NAVIGATION

Older Posts 


STAY CONNECTED

Subscribe via RSS Twitter LinkedIn Facebook
Subscribe to this blog Your website url
Search… Search


TOPICS

Topics Select Category Cross border advice and transactions Director Dashboard
Diversity & equal rights Employment & Holidays Health & Safety HR/IR Strategy
News Uncategorized Workplace policy and process Workplace reform


ARCHIVES

Archives Select Month May 2024 April 2024 March 2024 February 2024 January 2024
December 2023 November 2023 October 2023 September 2023 August 2023 July 2023
June 2023 May 2023 April 2023 March 2023 February 2023 December 2022 November
2022 October 2022 August 2022 June 2022 May 2022 April 2022 March 2022 February
2022 December 2021 November 2021 October 2021 September 2021 July 2021 March
2021 January 2021 November 2020 September 2020 June 2020 May 2020 February 2020
January 2020 October 2019 August 2019 June 2019 May 2019 April 2019 February
2019 January 2019 December 2018 November 2018 October 2018 September 2018 July
2018 June 2018 May 2018 April 2018 March 2018 February 2018 December 2017
November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May
2017 April 2017 March 2017 February 2017 December 2016 November 2016 October
2016 September 2016 August 2016 July 2016 June 2016 May 2016 April 2016 March
2016 February 2016 January 2016 November 2015 October 2015 September 2015 August
2015 July 2015 June 2015 May 2015 April 2015 March 2015 February 2015 January
2015 December 2014 November 2014 October 2014 September 2014 August 2014 July
2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014


RECENT UPDATES

 * A puzzle for employers: the future of work health and safety laws in
   Australia
 * Revisiting Homer’s drinking bird: Navigating remote work and automation
 * International Women’s Day 2024: Pay gaps, the law of averages and
   accelerating progress
 * The next ten years: Seyfarth’s partners discuss the future of employment and
   workplace safety law in Australia
 * A decade in Australia: Seyfarth’s partners reflect on changes in employment
   and workplace safety law


LINKS & RESOURCES

 * ADA Title III Blog
 * Beneficially Yours Blog
 * Big Immigration Law Blog
 * California Peculiarities Employment Law Blog
 * Carpe Datum Law Blog
 * Consumer Class Defense Blog
 * EEOC Year-End Countdown
 * Employment Law Lookout
 * Future Enterprise
 * International Dispute Resolution
 * Management Writes: Practical Labor Law Updates
 * The Blunt Truth®
 * The Construction Seyt
 * The Global Privacy Watch Blog
 * Trading Secrets Law
 * Wage & Hour Litigation Blog
 * Workplace Class Action Blog
 * Workplace Safety and Environmental Law Alert Blog

Subscribe via RSS Subscribe via RSS
Twitter Twitter
LinkedIn LinkedIn
Facebook Facebook
Privacy PolicyAttorney Advertising
Copyright © 2024, Seyfarth Shaw LLP. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo
Close
Enter Search Terms
Search


PRIVACY PREFERENCE CENTER

When you visit any website, it may store or retrieve information on your
browser, mostly in the form of cookies. This information might be about you,
your preferences or your device and is mostly used to make the site work as you
expect it to. The information does not usually directly identify you, but it can
give you a more personalized web experience. Because we respect your right to
privacy, you can choose not to allow some types of cookies. Click on the
different category headings to find out more and change our default settings.
However, blocking some types of cookies may impact your experience of the site
and the services we are able to offer.
Privacy Policy
Allow All


MANAGE CONSENT PREFERENCES

FUNCTIONAL COOKIES

Always Active

These cookies enable the website to provide enhanced functionality and
personalisation. They may be set by us or by third party providers whose
services we have added to our pages.    If you do not allow these cookies then
some or all of these services may not function properly.

View Vendor Details‎

PERFORMANCE COOKIES

Always Active

These cookies allow us to count visits and traffic sources so we can measure and
improve the performance of our site. They help us to know which pages are the
most and least popular and see how visitors move around the site.    All
information these cookies collect is aggregated and therefore anonymous. If you
do not allow these cookies we will not know when you have visited our site, and
will not be able to monitor its performance.

View Vendor Details‎

STRICTLY NECESSARY COOKIES

Always Active

These cookies are necessary for the website to function and cannot be switched
off in our systems. They are usually only set in response to actions made by you
which amount to a request for services, such as setting your privacy
preferences, logging in or filling in forms.    You can set your browser to
block or alert you about these cookies, but some parts of the site will not then
work. These cookies do not store any personally identifiable information.

View Vendor Details‎

TARGETING COOKIES

Always Active

These cookies may be set through our site by our advertising partners. They may
be used by those companies to build a profile of your interests and show you
relevant adverts on other sites.    They do not store directly personal
information, but are based on uniquely identifying your browser and internet
device. If you do not allow these cookies, you will experience less targeted
advertising.

View Vendor Details‎
Back Button


VENDORS LIST



Search Icon
Filter Icon

Clear
checkbox label label
Apply Cancel
Consent Leg.Interest
checkbox label label
checkbox label label
checkbox label label

Confirm My Choices