The Demise of Enterprise Agreements – Is the Fair Work Commission to Blame?

I read with interest an article that appeared in The Australian on Friday 9 August 2019. That article was an opinion piece and commentary on the difficulties that businesses now face in trying to have Enterprise Agreements (EAs) approved by the Fair Work Commission (FWC). The article was written by Steve Knox who is chief executive of Australian resources and energy group Australian Mines  and Metals (AMMA).

This article really does “hit the nail on the head” as it very closely echoes the sentiments that I have held for the past 2 years or so regarding the difficulties that our clients have faced in getting EAs approved by the FWC.

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What’s Love Got To Do With It

Dealing with Romances in the Workplace

Has the #metoo era dimmed the enthusiasm of workers for workplace romance? When writing this article, Tina Turner’s words are echoing in my head. The #metoo movement has now brought to light the dangers of workplace relationships and therefore it is an opportune time to take a look at office romances (and break-ups) and the steps employers should take to ensure they don’t get caught up in the #metoo turmoil.

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Sexually Harassed by Colleague and Flawed Investigation Results in $150K damages

A woman has been awarded $150,000 in damages for a psychiatric injury after she was sexually harassed by a colleague. The Victorian Civil and Administrative Tribunal (VCAT) also heavily criticised her employer in the decision for failing to conduct an impartial investigation.

The accused male employee and the victim’s employer, Parker Manufactured Products, were ordered to jointly pay $130,000. In addition, the company was ordered to pay an extra $20,000 in damages.

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Deputy President Slams the Abuse of Anti-Bullying Provisions

Deputy President Sams of the Fair Work Commission (FWC) has dismissed a casino worker’s bullying application, warning it is not acceptable to use such claims as “a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes”.

Background and Outcome

An employee at Star City Casino claimed he was bullied by management after he breached the Casino’s mobile phone policy. He filed a stop bullying application with the FWC, claiming that he had been physically abused. He further claimed that the written warning he received was unjustified and also amounted to bullying.

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Instant Dismissal – care required

What is instant dismissal?

Instant dismissal (also known as summary dismissal) permits an employer to terminate an employee’s employment immediately. That said, this is only permitted where an employee engages in serious misconduct.

The Fair Work Regulations 2009 (Cth) define ‘serious misconduct’ as follows:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
(b) conduct that causes serious and imminent risk to:
(i)  the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.

Instant dismissal overrides the requirement of a notice period and therefore the employee is not entitled to receive their notice period.

Employers should be mindful to ensure they are not sacking an employee instantly without sufficiently serious grounds. This may expose them to claims for unfair dismissal should they instantly dismiss employees unlawfully or unreasonably.

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