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Welcome to our February e-newsletter
Welcome to our February 2007 update on some important recent developments in the field of Employee Relations in Australia.
Our sense is that many employers still remain unsure about what to do with Work Choices. With the High Court challenge behind us, many may now be thinking that the approaching elections in NSW and at the Federal level are reasons not to do anything new.
Our view (see lead story about recent changes to Work Choices) is that even if Labor were to win Government (and that is no certainty with a wily campaigner like John Howard), it is probable that many elements of Work Choices would remain. In particular, it has become clear that the ongoing use of the Corporations power to regulate industrial relations is likely to continue.
Maybe you'd like to contribute to our mini poll at the top right on what your intentions are in relation to Work Choices. If you vote early, you can return later to check progress on the poll.
Cheers,
Steve Champion, Director
Employee Relations Strategies Pty Ltd
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Legislation Review
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Recent Changes to WorkChoices
Pre-Christmas Fix for Anomalies
The Federal Government amended the Workplace Relations Act and regulations prior to Christmas to fix some anomalies that had become apparent (click here for media statement). These changes are summarised below (click on each heading for more information) -
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Independent Contractors Act 2006
"WorkChoices" for Contractors?
This Act commences on 13 June 2007, or on an earlier date as decided by the Minister, and like WorkChoices is based on the Corporation’s power of the Australian Constitution. It therefore applies to contracts for services between constitutional corporations and independent contractors.
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NSW Child Employment Laws
NSW Government takes aim at WorkChoices
In November 2006 the NSW government passed legislation protecting employees under 18 from the impact of WorkChoices. Read more
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Injured Worker Laws "Protected"
NSW Amendment
The Industrial Relations Further Amendment Act (NSW) altered the NSW Industrial Relations Act to move the existing Protection of Injured Worker provisions to the Workers’ Compensation Act which means they are no longer outlawed by WorkChoices as a state industrial law. The change confirms that these provisions continue to operate despite the introduction of Work Choices.
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Recent Cases
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Handling Discrimination claims requires care
Overview - In a case decided in November 2006, the ADT awarded an employee who was discriminated against $5,000 for the discrimination and then a further $10,000 due to the manner in which the complaint of discrimination was handled.
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Full Bench defines Commission role
Determining "genuine operational reasons" for Unfair Dismissal
Overview - A Commissioner was found to have exceeded his authority in considering the facts behind a termination for operational reasons.
Read more
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Unlawful to terminate employees on Workers' Compensation?
We bet they'll change this one!
Overview - A Federal Magistrate has included Workers’ Compensation pay as ‘paid sick leave’ for the purposes of unlawful termination for temporary absence from work due to illness or injury. The practical effect of this would be to prevent an employer terminating any employee receiving workers’ compensation payments.
Lee v Hills Before & After School Care Pty Ltd [2007] FMCA 4 (15 January 2007)
Facts: the Hills Before and After School Care terminated a long term casual employee who had been absent on workers’ compensation. The employee claimed her termination was unlawful because she was terminated after a series of absences greater than 3 months in the pervious 12 months but these absences were due to temporary illness or injury (Section 659 WR Act 1996) and for which she received sick pay (Regulation 2.12.8 (2) ].
Federal Magistrate Raphael examined the legislation and concluded
"It would certainly be an odd result that a person who has an industrial accident and suffers injury could claim protection if he or she consequently claimed only sick pay, in which case it would be unlawful to dismiss him or her, but if she or he claimed Workers Compensation, upon the respondent’s construction of the subsection it would be lawful to do so."
The matter was decided in favour of the employee who is now able to sue the employer for unlawful termination.
This result appears superficially logical but in practice means an employee on workers compensation cannot be terminated while receiving payments.
ER Strategies Comment - While we anticipate the decision will be appealed or the Federal Government will amend WorkChoices, employers need to take care if termination of an employee on workers' compensation is being considered.
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General
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Consumer Price Index Falls
The Australian Bureau of Statistics released its latest headline inflation figures on 24 January 2007.
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Who Are We?
Employee Relations Strategies Pty Ltd was established in 1999 and works exclusively for employer clients. We have a varied client mix including companies in Hospitality, Retail, Manufacturing, Financial Services, Construction and the Media. Our core client services are our based around our LabourNet Managed ER Membership – click here for details.
We are not lawyers, although a lot of what we deal with is of a legal nature. We are not ‘old IR hacks’, but we certainly have been around. We are experienced in a wide range of industries.
We do offer practical, commercial solutions to employee relations and industrial relations issues. We see customer service as vital to our success.
Our vision is to partner with our clients to help them manage their people, so they can focus on what they do best.
Check our website at www.erstrat.com.au for more details.
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Telephone Advisory Service
Answers Only a Phone Call Away
ER Strategies provides a service giving you access to fast and efficient answers to employee relations queries. The Telephone Advisory Service (TAS) allows unlimited calls* to our highly experienced IR and HR practitioners where you can receive professional and practical advice for a low investment of only $350 per annum (GST inclusive).
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