2008 – A Year of Reform
Change would indeed appear to be the only constant in employment relations! Significant developments have occurred in the workplace relations landscape during 2008. In this final newsletter for 2008, we focus on three key reforms:
- the recommended reforms to the Victorian Equal Opportunity and Human Rights Commission;
- the Fair Work Bill that was released last week; and
- the recent work of the Australian Human Rights Commission.
There have been various amendments and recommended amendments to the discrimination law and procedures of the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”) this year.
Attributes and Obligations
“Employment activity” is a relatively new attribute protected under the Equal Opportunity Act 1995 (Vic) (“EOA”), having been introduced in 31 March 2008. The attribute covers two types of activity by an employee acting in their individual capacity: making a reasonable request to their employer for information regarding their current employment entitlements, and communicating a concern to their employer that some or all of their employment entitlements have not been, are not being or will not be given to them.
“Employment entitlements” are defined as those rights and entitlements under a contract of service, including a workplace agreement, employment agreement or award within the meaning of the Workplace Relations Act 1996 (Cth), or a contract for services, or State or Commonwealth legislation.
In another recent amendment to the EOA, the range of what constitutes discrimination against parents or carers in employment or employment-related areas has been broadened, by the Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic).
From 1 September 2008, Victorian employers are not to unreasonably refuse to accommodate the responsibilities an employee has as a carer or parent, both for existing employees and those offered a job. When an employer receives a request for new work arrangements, some of the considerations they must consider include matters such as:
- the nature of the person’s work and family responsibilities;
- the nature and cost of the arrangements required;
- the size, nature and financial circumstances of the employer, principal or firm;
- the effect on the workplace of the accommodation, including the financial impact; and
- the consequences for the person of not making the accommodation.
It will not always be discriminatory to refuse a request for flexible work arrangements and a breach will only occur where an employer, principal or firm unreasonably refuses to accommodate the person’s parental or carer responsibilities, taking into account all relevant facts and circumstances.[i]
An interesting practical aspect of this amendment is that the evidentiary burden which usually lies with the complainant is reversed. Instead, the burden is on the employer to prove that it has not unreasonably refused to accommodate a request.
In mid-2008, a review of the operations of the VEOHRC complaint handling process has recommended a new dispute resolution process for VEOHRC.
Major changes suggested by Julian Gardner include that there would be:
- No longer any duty on the VEOHRC to assist complainants to formulate their complaints;
- Greater emphasis on ensuring complainants are able to access external legal assistance from legal centres and Victorian Legal Aid in relation to their complaints;
- No investigation of complaints lodged;
- An emphasis on quick ADR resolution, firstly by information advisor at VEOHRC who takes the call; then if the matter is not resolved, the matter is referred that same day to an on duty ADR practitioner at VEOHRC who will decide how to then handle the matter;
- No requirement for parties to a complaint to use VEOHRC’s complaint-handling processes; and
- The ability for a party to request that a complaint be dealt with directly at VCAT without needing to go through any ADR processes at VEOHRC.
This may result in those complaints that cannot be resolved easily (by an information adviser), or, where a party does not wish to use VEOHRC’s processes of ADR, being brought directly to VCAT for resolution by ADR or decision.[i] For further information see the Guidelines published by the VEOHRC: http://www.humanrightscommission.vic.gov.au/pdf/FamilyResponsibilitiesGuidelines.pdf
2. “Forward with Fairness”
A number of policy commentators and lawyers have released comprehensive comments on the Fair Work Bill, released on 25 November 2008. Various aspects of the new IR regime have the potential to have a significant impact on discrimination and dispute resolution matters.
Dispute Resolution Clauses
In an address on 14 November 2008, Julia Gillard announced that under the new “Forward with Fairness” system [ii], enterprise agreements will continue to be required to include a clause for the settling of disputes that arise under the agreement. The Deputy Prime Minister also announced that the Bill would introduce some important changes which would effectively limit the ability for parties to design the dispute resolution clause of their choice. Dispute resolution clauses would no longer be able to have a representative of the employer as the end point of the dispute (Gillard called this “an appeal unto Caesar”!).
The Forward with Fairness Bill, released on 25 November 2008, sets out various requirements that must be met in order for a proposed enterprise agreement to be approved by Fair Work Australia (“FWA”). One of these requirements is that FWA must be satisfied that the agreement includes a term for settling disputes, which:
“requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(1) about any matters arising under the agreement; and
(2) in relation to the National Employment Standards.”
The term must also allow for the representation of employees covered by the agreement for the purposes of that procedure.
The Model Dispute Resolution Process that is currently set out in Division 2 of Part 13 of the Workplace Relations Act 1996 will be replaced with a new model dispute resolution clause in the new Regulations, which have not yet been released.
“Fair Work Australia” and Alternative Dispute Resolution
The Fair Work Bill increases the powers of FWA to engage in arbitration, as one form of alternative dispute resolution.
FWA can be empowered to deal with a dispute under a dispute resolution procedure in a modern award, an enterprise agreement or a contract of employment (in relation to certain disputes), including the power to arbitrate. FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion.
In enterprise bargaining matters, FWA can intervene if the parties are not “bargaining in good faith” and FWA may only arbitrate in a bargaining dispute if arbitration has been agreed to by the bargaining representatives for the agreement.
Flexible Work Practices
A new provision about flexible work practices will apply to employees with more than 12 months of continuous service, and long term casual employees.
Under the proposed legislation, an employee who is a parent, or has a responsibility for the care, of a child under school age may request the employer for a change in working arrangements to assist the employee to care for the child. The Bill gives examples of changes in hours, patterns and location of work. The request must be in writing, and include the change sought and the reasons for the change.
If an employer receives such a request, it must give the employee a written response within 21 days. The employer may refuse the request only on reasonable business grounds.
We will watch with interest the debate about the expected impact of the Forward with Fairness Bill.[ii] Australian Labour Law Association’s Fourth Biennial Conference, Melbourne
3. Recent Work of the Australian Human Rights Commission
The Australian Human Rights Commission has released various advice and codes of best practice for employers over the last 12 months.
In its “Code of Conduct for Effectively Preventing and Responding to Sexual Harassment”, the Commission recently noted the importance of audits in the workplace. It recommended that medium and large employers undertake regular audits to monitor the incidence of sexual harassment, and review and audit complaints procedures.
This is not news for Worklogic and many of our clients, who know that auditing is not just about finance! Of course it’s fundamental to know how financially healthy your organisation is. But what about other bottom lines, such as the quality of human interactions in your workplace? Given that workplace research demonstrates how staff wellbeing affects workplace stress, morale, retention rates, WorkCover premiums and an organisation’s productivity in general, isn’t it just as vital to monitor your workplace environment?
Training and educating staff and managers about appropriate and expected behaviours are clearly necessary steps to creating a happy and productive workplace. But without monitoring the impact of training, how do you really know whether staff do behave appropriately, that there’s zero tolerance for bullying and universal support for diversity? A lack of complaints, formal or otherwise, may not mean that all staff are being treated appropriately. It could mean the opposite.
Staff may not wish to make an internal complaint of bullying or discrimination if they think the complaint process is not worthwhile, cumbersome, or even incomprehensible. Finding this out through staff going straight to an external complaint process may be a disconcerting epiphany.
Audits can be more than just focussing on the incidences of behaviour – they also can explore people’s knowledge of appropriate behaviours, whether they know and trust internal complaint processes, and provide a whole range of data that can assist with further targeted staff training.