Findings and Forecasts: 2018 and Beyond

1. FINDINGS AND FORECASTS: 2018 AND BEYOND
ClarkeKann Lawyers
Employment, Industrial Relations and Safety | 13 December 2018

2. Agenda
o Casual employees: A roller coaster in 2018
o Safety matters: The million dollar safety step
o Enterprise bargaining: Taking pre-approval steps in a tighter BOOT
o Restraints are not just about restraints
o Forecast for 2019 and beyond

3. What is a “casual employee”?
Legislation
o No definition in the
FW Act
o FW Act recognises a
category of “long
term casual
employee”
Modern Awards
o Differing approaches
to defining casual
employee
o Some exclude casuals
as a class
Common Law
o Vexed issue with
competing
approaches taken to
identifying casual
employment
o Recent decision may
have far-reaching
consequences for
employers

4. Annual leave for a “casual”
Facts
o Labour hire company servicing the mining industry
o Engaged employee in a dump truck operator
position at a mine operated by Rio Tinto
o Issued with letter of offer for casual employment
subject to terms of employer’s enterprise
agreement, paid a flat hourly rate for all hours
worked
o Worked a roster issued 12 months in advance by
Rio Tinto
o Rio Tinto provided flights to and from, and
accommodation at, the mine
o Employed from July 2010 until 24 April 2012

5. Annual leave for a “casual”
Responses
o Class action and union law firms circling
o WorkPac v Rossato
o New Fair Work Act 2009 regulations
preventing “double dipping”
o Casual conversion rights

6. Casual conversion:
Awards and the NES
o FWC introduced to awards in 2018; Federal Government
to make part of the NES in 2019
o Provides employees engaged on a casual basis for a
prolonged period working the equivalent of part-time or
full-time hours on a regular basis to elect to convert to
part-time or full-time employment
o Elections to convert from casual to permanent
employment subject to refusal by employer on reasonable
grounds
o No application to “true casuals” employed on irregular
and unpredictable hours

7. Elements of the right to request
Who can request & when can an employer refuse?
“Regular casual
employee”
Right to request
conversion
Refusal on “reasonable
grounds”
o A casual employee who in
preceding 12 months worked
a pattern of hours on an
ongoing basis which could
continue to be worked as a
part-time or full-time
employee
o A regular casual employee
has a right to request to
convert to permanent
employment, but only to the
status that reflects their
current hours
o Employer may only refuse
conversion request on
“reasonable grounds”
o Must provide written reasons
for refusal
o Employee can dispute
decision

8. Consequences of conversion
Impact on employment relationship
o Employee becomes entitled to accrual
of paid leave entitlements and notice
of termination from conversion date
o Affects calculation of long service
leave entitlements
o Potentially increased exposure to back
pay claims, as employer has
acknowledged employee was working
equivalent of part-time or full-time
hours for a prolonged period by
granting request

9. Where regular casual employees
choose not to convert
No obligation on either party to convert
o Model clause expressly states a regular casual employee is not obliged to pursue conversion
to permanent employment, nor is an employer obliged to require a regular casual employee
to convert
Risk of underpayment claim persists
o A mere failure by a regular casual employee to seek conversion to permanent employment
will not prevent them from bringing a claim contesting their employment status
o In many cases, an employee who met the criteria of a regular casual employee would have a
strong basis for an underpayment claim based on the reasoning in Skene
o Depends on validity of proposed FW Regulations

10. Notification obligations to
casuals
Fair Work Information Statement Casual conversion clause
o All casual employees must be
provided with the Fair Work
Information Statement upon
commencement of employment
o Need only provide the statement
once in any 12 month period
o For casual employees commencing
on or after 1 October 2018, employer
must provide a copy of the casual
conversion clause within 12 months of
their commencement date
o For casual employees employed prior
to 1 October 2018, must provide a
copy of casual conversion clause by
1 January 2019

11. Casuals: Lessons from 2018
Review business needs & documents
o Why are the employees engaged as
casuals?
o Is there another way?
o Consider any award or enterprise
agreement restrictions
o Review current contracts
o Vary working days/hours?

12. Safety matters: The primary duty of
care
Section 19 of WHS Act
2. A PCBU must ensure, so far as is
reasonably practicable, that the
health and safety of other persons
is not put at risk from work carried
out as part of the conduct of the
business or undertaking.
1. A person conducting a business or
undertaking (PCBU) must ensure, so far as is
reasonably practicable, the health and safety
of:
a) workers engaged, or caused to be
engaged, by the PCBU; and
b) workers whose activities in carrying out
work are influenced or directed by the
PCBU, whilst the workers are at work in
the business or undertaking.

13. Hazardous plant: Example 1

14. Hazardous plant: Example 2

15. Hazardous plant: Example 3?

16. Case study: The hazard hiding in plain sight
Harris v Coles Supermarkets Australia Pty Ltd [2018] ACTCA 25
o Employee engaged in ‘presentation’
work in a supermarket
o Used a safety step to access higher
levels of shelving
o Employee fell off step, sustaining
significant injuries
o Evidence that Coles had identified
the safety step as a potential hazard
and conducted a risk assessment

17. Harris v Coles Supermarkets Australia Pty Ltd [2018] ACTCA 25
o Employee provided with insufficient training and supervision in safe use of the step.
o Safe method for using the step was not so obvious that no training or supervision was
necessary.
o Risk of injury not so “infinitesimally low” as to render measures to eliminate or minimise the
risk unnecessary or unreasonable.
o Employee was not contributorily negligent in her use of the step.
o $1,088,469 in damages awarded for past and future economic loss, medical expenses and
care.
Case study: The hazard hiding in plain sight

18. Case study: Lessons to be learned
o White collar does not mean no risk
o Don’t dismiss potential WHS hazards out of hand
o Always account for stupidity!
o Review all existing WHS documentation for compliance with applicable
legislation, regulations and codes of practice
o Ensure effective training systems are in place which target the risks
common to the PCBU and maintain adequate records of all training
provided

19. Enterprise bargaining
Pre-approval steps in a tighter BOOT
ENTERPRISE
AGREEMENT
ISSUES
Notification time and
the NERR
Explanation of terms
Fairly chosen
BOOT

20. Lessons from 2018
Who is preparing your Form F17?
Application by CFMMEU [2018] FWC 4995
(31 July 2018)
Misleading content on Form F17 may result in
criminal charges
Derbarl Yerrigan Health Services Inc [2018] FWCFB
2721 (29 June 2018)
Don’t rely on advice from the FWC Civica BPO Pty Ltd [2018] FWC 4376 (31 July 2018)
Undertakings to rectify the BOOT on loaded rates?
CFMMEU v Allstyle Concrete [2018] FWCFB 3823
(28 June 2018)
Have you explained enough? / Can’t genuinely
agree to some employment groups
One Key Workforce Pty Ltd v Construction, Forestry,
Mining and Energy Union [2018] FCAFC 77
(25 May 2018)
EA with three employees is ok
Thiess Pty Ltd v CFMMEU [2018] FWCFB 2405
(7 June 2018)

21. Pre-approval steps in a
tighter BOOT
Government response
o In 2019, Fair Work Commission may
overlook minor or technical non-
compliance with pre-approval steps
Relates only to:
o Notice of Employee Representation Rights
o Material to be provided
o Explanation of terms
o Notification of place and time of vote
o Voting methods and irregularities

22. What makes restraint of trade
clauses enforceable?
Void as against
public policy
Test time The court should give
weight to the commercial
setting
“Legitimate
business interests”
Onus

23. Restraining future employment
The ‘legitimate interest of the employer’
o Consider the duties during the
employment
o No implication post employment –
they must be express
o No protection for ‘mere competition’
o Confidential information
o Client connections
o Workplace connections

24. o Austal Ships Pty Ltd v Clay, 15 June 2018
The restraint within a restraint:
Relying on confidence
The common law characteristics of confidential information:
o The fruit of considerable skill and effort
o Jealously guarded by the employer and not able to be acquired by others without
considerable skill and effort
o Employees must be informed the information is confidential
o Uses and practices in the industry must confirm that the information is treated as
confidential
o Only those who “need to know” permitted to share in the information;
o BUT it is important to specify the information.

25. Forecast for 2019 and beyond
PM Scomo PM B.S.
o Casuals: no double dipping; NES
conversion rights
o Enterprise bargaining: status quo
with some modifications
o FWO / WHS Regulators: greater
focus on management liability
o NES changes: definition of casual
employment; LSL, penalty rates, DVL
o Increased bargaining powers and
industry wide bargaining
o Expanded compliance obligations for
“economic decision makers”
o Abolition of ABCC (again)

26. 0 1 0 2
0 3 0 4
Take away messages for 2019
Casual conversion Safety matters
Restraints Enterprise bargaining
• The essence of casualness?
• Notification obligations
• Specify the loading
• Training is integral to compliance
• Account for stupidity
• WHS compliance is evolutionary
• Contracts are key
• Walk the talk on confidential
information
• RULES RULES RULES
• Some relaxation in sight
• Will a PM B.S. “Change the rules…”?

27. M u r r a y P r o c t e r
P a r t n e r
P h o n e : ( 0 7 ) 3 0 0 1 9 2 2 5
0 4 0 2 9 6 7 1 7 1
E m a i l : M . P r o c t e r @ C l a r k e K a n n . c o m . a u
B e n K e e n a n
S e n i o r A s s o c i a t e
P h o n e : ( 0 7 ) 3 0 0 1 9 2 6 8
E m a i l : B . K e e n a n @ C l a r k e K a n n . c o m . a u