Highlights from the HR Law Masterclass
The HR Masterclass was a successful event – the speakers and panellists provided insightful guidance on a good balance of topical and enduring issues to an engaged audience who posed astute questions. Also, the Slido technology allowed the audience to raise burning questions and issues in a safe and timely way and generated a lot of great discussion.
The speakers covered a lot of ground during the day – I hope that the audience were left feeling as though they had useful information and more tools to assist them to manage employment and industrial relations issues in the workplace. For example:
Julia Sutherland highlighted that employers need to be aware of how to comply with new obligations designed to protect vulnerable workers, and should check if their industries are affected by the recent Fair Work Commission decision to introduce casual conversion clauses into a number of modern awards. She also noted that although statistics show that employers’ fears about an influx of bullying complaints have not materialised under the Commission’s anti-bullying jurisdiction, adverse action and unfair dismissal claims continue, and employers should be alive to the Fair Work Ombudsman’s focus on accessorial liability;
Gareth Jolly discussed the tumultuous last year in bargaining and industrial relations – he reminded us that as the Commission is adopting an increasingly technical approach to enterprise agreements, employers must comply with requirements such as the notification time for commencing bargaining and issuing notices of employee representational rights or risk their agreements not being approved. In addition, employers should expect greater scrutiny from the Commission, for example if adopting a bargaining strategy of using a small group of employees to vote on an agreement to cover a much larger employee group. Employers may also see modern award review changes being felt in bargaining negotiations, for example claims for domestic violence leave, and should expect ongoing disputes about where right of entry discussions may take place in the workplace. There is also an interesting trend of employers applying to terminate enterprise agreement, although quite a high threshold still applies to succeed.
David Cross reinforced that mental health, illness and injury is an increasingly prevalent issue in the workplace – he outlined some fundamental principles to manage this issue including acting in accordance medical evidence, considered the limits on ‘looking behind’ medical certificates, highlighted the importance of considering the risks including unlawful discrimination, understanding the ‘real’ inherent requirements of the role, and terminating employment with caution based on the evidence. Our first panel worked then through questions to manage these challenging issues – they highlighted that there is no easy fix but employers can take action.
Sara Westcott provided a useful update on recent unfair dismissal cases and confirmed the importance of ensuring employers have a valid reason to dismiss and follow a fair process. She also gave an overview of some recent adverse action decisions and reminded us to be aware of the reverse onus of proof in adverse action matters.
Lucy Shanahan provided an overview of workplace investigations – employers need to consider their frameworks, what they actually need to do, and how they will run the process. Employers must ensure that they afford procedural fairness, and should take a consistent approach to minimise risk – for example, they should appoint an investigator, identify terms of reference and the scope, and communicate with the complainants and consider any follow up actions eg disciplinary action.
Our second panel concluded by examining some of the common scenarios and effective strategies for dealing with performance management, workplace restructuring, workplace bullying harassment and discrimination.
Senior Associate – Employment, Safety & People
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