FCW Lawyers

Accord 2.0 kicked off by Federal Government

Share

Accord 2.0 Kicked off by Federal Government

28 May 2020

The recent casuals case of Workpac has added momentum to a national meeting of IR Stakeholders, sponsored by the Federal Government, to simplify and make more flexible our IR system. The two definite changes which will be agreed, I suspect, are:

  1. Protection of long term casuals – having the benefits of permanent employee and access to mortgages etc. The WorkPac decision must be legislatively addressed and
  2. Change from the BOOT test to the old Workplace Relations Act 1996 ‘no disadvantage test’. This would massively speed up EA approvals and make EA’s much easier to negotiate.

Sadly, my fears are it will become captive to the extremes of left and right ideology and lead to a political division, at a  time when we need cohesion. If we just get the two changes above and not silly changes like reducing the approval time of EA’s (which almost no one has used or will use because of the damage it causes to relationships) it will be a great result.

 

First Stand Down Case decided on the Pandemic – not a win for the Union movement

In the first case of a concluded FWC arbitration on the impact of the pandemic, employers come out the winners.

A cruise line operator stood down a multi-function marine operator when Government Regulation meant it was unable to operate cruises. His role included maintenance, management and business sustainability work. His work had not stopped but was impacted by the stoppage of work the business could do – running cruises. The case, Marson v Coral Princess Cruises, examined what was a stoppage of work and limited it to a business activity not the business as a whole. This is a significant departure from the Union orthodoxy that says for a stoppage under s.524 to occur, the business has to stop operating.

It then looked at the concept of ‘useful work’, with the FWC holding that doesn’t mean any work but there needs to be a clear examination of the economic consequences on the employer-it is balancing fairness. It is not that the employees would be idle (that is an extreme version) but whether it would create a net benefit for the employer. What permits an examination of useful work is the employer using a good faith method of determining useful work. Failure to assess and determine useful work would be fatal. It is worth remembering the onus is on the employer to prove the three elements on stand down; stoppage, stoppage not caused by the employer and no useful work.

Lessons

  1. Focus on what activity has been stopped by government regulation or an apprproiate risk assessment
  2. Use a skills/Job matrix to look at what work is useful in light of the stoppage of activity

 

What happens when HR don’t understand Workers’ Compensation RTW and Psychological Health

In Ms Anne Pilbrow [2020] FCW 2458, a HR department was criticised by the Commissioner for its lack of involvement in the return to work of an employee (Ms Pilbrow) following her injury and its failure to adequately address Ms Pilbrow’s complaints about her manager (Ms Edmondson).

Ms Pilbrow’s complaint was that Ms Edmondson did not carry out any form of consultative process around her return to work, did not offer light duties and engaged in bullying behaviour by berating her about her work.

The Commissioner found Ms Edmondson’s conduct and communication with Ms Pilbrow should have been better but did not amount to bullying. The bullying order failed but there is little doubt the behaviour would ground a psychological claim in workers’ compensation-a much more dangerous outcome. The Commissioner’s criticism would mean such a claim would be accepted.

Lessons:

  1. Each organisation should have a designated Return To Work Coordinator. Prior to any return to work, the coordinator should speak with the concerned employee to determine what adjustments may be required to ensure the workplace is safe on their return;
  2. HR must act immediately on receiving a complaint of bullying, harassment or discrimination. In this case, HR should have temporarily relocated Ms Pilbrow away from Ms Edmondson and investigated and
  3. A skilled intervention by a facilitator would have probably resolved this issue and made the employees both feel safe.

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce. Please contact Andrew Douglas at andrew.douglas@fcwlawyers.com.au or on 0488 151 503.

Stay updated through our Friday Workplace Briefing Webinars

Every Friday at 10:30am, join our free webinar and stay updated on the critical news and developments that affect your workplace. We’ll keep it simple, pragmatic and to 30 minutes. Watch, listen and interact with us, as we address the pressing topics and questions that impact your business and people. We are here to help and look forward having you with us.