Issue 16 August 2003
EMPLOYMENT BRIEFLY
In this issue:
COMPENSATION FOR MUM WHO WAS REFUSED PART-TIME
WORK
In a decision recently handed down in the Federal Magistrates
Court, a female manager was awarded $39,000 after her employer,
the Australian Nuclear Science & Technology Organisation (ANTSO),
refused to allow the manager to work part time, upon her return
from maternity leave.
The Court considered that ANTSO’s actions amounted to unlawful
indirect sexual discrimination, as it had imposed a condition
that was likely to disadvantage women – that is, a requirement
that employees work full time. Federal Magistrate Rolf Driver
considered this amounted to constructive dismissal, and a breach
of Section 5(2) of the Sex Discrimination Act. By refusing the
employee’s request to return to work part time, ANTSO acted
unreasonably, as there was evidence before FM Driver (in the form
of internal emails) that indicated that part time work was in
fact available. Further, ANTSO’s attempts to find part time
work were held to be “inadequate”.
So, while the decision highlights the increasing pressure on
employers to accommodate flexible working arrangements for female
employees returning to work after maternity leave, employers will
only be required to make reasonable efforts to meet the needs
of these employees. Provided all avenues are explored and adequate
attempts are made to avoid any indirect discrimination, employers
will be able to demonstrate a commitment to ensuring they comply
with the relevant anti-discrimination laws.
For further information about issues covered
in this article, please contact Cecilia White on 8210 1286 or
E-mail cwhite@normans.com.au.
THE DEED IS DONE
The Australian Industrial Relations Commission recently considered
the situation when a dismissed employee, who has signed a deed
of release in return for extra termination payments, later brings
an unfair dismissal action, seeking compensation.
In Thomas v Logica Pty Ltd, Mr Thomas had received an additional
$3,054 in severance pay upon being made redundant, and in return
had signed a deed of release. The deed of release stipulated that
the extra payment was made in full and final settlement of any
future claims against Logica, in particular any unfair dismissal
claims.
Mr Thomas later brought a claim for unfair dismissal against
Logica, alleging that he was unfairly selected for redundancy,
and further that he signed the deed of release under duress, having
no other choice at the time than to accept the additional payment.
The Commission noted that it is in the public interest that settlements
such as that between Mr Thomas and Logica be honoured, unless
there is sound reason not to – such as in the case of duress.
The Commission considered the evidence that Mr Thomas was under
significant financial pressure at the time of dismissal, but this
was not enough to demonstrate duress. In order for there to be
duress, there had to be “illegitimate pressure” placed
on the person signing – here, that was not the case. The
deed stood, and the claim was dismissed.
A deed of release upon termination can be a safeguard for employers
against potential unfair dismissal claims down the track, but
employers must ensure that employees are not placed under illegitimate
pressure to sign on the dotted line.
For further information about issues covered
in this article, please contact Ian Colgrave on 8210 1203 or
E-mail icolgrave@normans.com.au.
SENATE BLOCKS BILL TO TRANSFER UNFAIR
DISMISSALS TO AIRC
The Workplace Relations Amendment (Termination of Employment)
Bill 2002, which proposed to move most unfair dismissals into
the federal industrial relations system, has failed to pass the
Senate.
The Democrats, whilst supporting the key change, proposed a series
of amendments to the Bill, including:
- Broadening the definition of “employee”, so that
workers would be presumed to be employees, unless running their
own business;
- Deeming labour hire companies to be the employers of workers
they supply (rather than host employers);
- Providing the AIRC with the power to deem contractors to
be employees;
- Opening up the jurisdiction to regular casuals with six months
service, and with an ongoing expectation of employment; and
- Removing the Bill’s exemption for small businesses.
The Democrats had based their amendments concerning the re-definition
of “employee”, on recommendations made in the Stevens
report into the SA Industrial Relations system.
The ALP rejected the amendments, and the Bill was not passed.
For the time being the respective jurisdictions of the Federal
and State Industrial Relations Commissions in respect of unfair
dismissals will remain unchanged.
For further information about issues covered
in this article, please contact Ian Colgrave on 8210 1203 or E-mail
icolgrave@normans.com.au.
RECENT CHANGES TO WORKPLACE RELATIONS LAWS
The Workplace Relations Act 1996 has received attention recently
in the Senate.
The Workplace Relation Amendment (Fair Dismissal) Bill 2002,
which sought to exclude employees of small businesses (less than
20 employees) from the coverage of the “unfair dismissal”
provisions of the Workplace Relations Act 1996 was defeated in
the Senate. It is not the first time that Bills with the same
or similar provisions have been defeated.
However, the Workplace Relations Amendment (Prohibition of Compulsory
Union Fees) Act 2002 was passed. The Act will amend the certified
agreement and freedom of association provisions of the Workplace
Relations Act 1996 to:
- Prevent the AIRC from certifying an agreement that contains
a provision requiring the payment of a bargaining services fee;
- Provide that a clause in a certified agreement is void to
the extent that it requires payment of a bargaining services
fee;
- Prohibit employers and industrial associations from coercing
or compelling a person to pay a bargaining services fee, including
engaging in any discriminatory behaviour towards someone who
has not, or will not, pay such a fee.
Employers should be aware of these recent amendments, and ensure
that any demands by any unions to incorporate a clause requiring
a compulsory bargaining services fee into an agreement are not
met.
For further information about issues covered
in this article, please contact Ian Colgrave on 8210 1203 or E-mail
icolgrave@normans.com.au.
REDUNDANCY TEST CASE GETS UNDERWAY
Hearings began in the Australian Industrial Relations Commission
on 26 May 2003 on the ACTU’s test case to increase redundancy
entitlements. The ACTU are pushing for an increase in severance
entitlements from 8 weeks pay to 16 weeks pay for workers made
redundant after more than six years of service, and an extra four
weeks severance pay for workers aged over 45.
Submissions are continuing, with final submissions to be made
by the end of October 2003.
For further information about issues covered
in this article, please contact Ian Colgrave on 8210 1203 or
E-mail icolgrave@normans.com.au.
NEW FACES
Two new members were appointed to the SA Industrial Relations
Commission on 12 August 2003. The new appointees are David Steel,
Business SA’s general manager of industrial and employee
relations, and Mick Doyle, secretary of the United Firefighters
Union.
Commissioner Karen Bartel will join Deputy President Hampton as
the second lay Deputy President in the Commission.
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