The ceaseless trend towards casualisation and new rules of engagement in the gig economy is a modern fact of life. From bicycle couriers to ride sharers and food deliverers, relationships around work continue to fascinate. In the political realm, parliaments around the world are only slowly starting to grapple with how work is being redefined.
In December last year Deputy President Gostencnik of the Fair Work Commission delivered the first decision in Australia assessing whether an Uber driver is an employee. DP Gostencnik found that for unfair dismissal purposes, an Uber driver was not an employee.
Our colleagues at Greenwoods + Herbert Smith Freehills have published an excellent update on Employment Taxes. Click here to discover more.
The ‘Trends in Federal Enterprise Bargaining’ report for July-September 2017 was released by the Department of Employment on 10 January 2018.
If you have enterprise agreement negotiations coming up in 2018, this data can be useful for benchmarking.
Australia’s Joint Standing Committee on Foreign Affairs, Defence and Trade (‘Committee’) has handed down its final report in its inquiry into establishing a Modern Slavery Act in Australia.
The inquiry included consideration of the Australian Government’s announcement in August 2017 that it would adopt the Committee’s in principle recommendation in the interim report to introduce a modern slavery reporting requirement.
Following an inquiry into work arrangements in the labour hire industry, the Victorian Government has recently introduced the Labour Hire Licensing Bill 2017 (Bill).
The Bill establishes a licensing scheme for labour hire providers and creates civil and criminal offences for breaches of the scheme. The stated object of the Bill is to prevent vulnerable workers from exploitation by both the direct providers of labour hire services and hosts. Accordingly, the application of the Bill is broad and applies to all industries within Victoria. Continue reading
To view our summary of this year’s Top 10 Trends in Employment and Industrial Relations, click here.
On 7 December 2017, the Australian Government took a further step towards whistleblower reform by introducing the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 into the Senate (‘Whistleblower Bill’).
The Whistleblower Bill seeks to consolidate whistleblower protections in the corporate, financial and credit sectors into a single regime under the Corporations Act 2001 (Cth) (Act).
An independent review of mental health at work, commissioned by the Prime Minister, has been published. The Stevenson/Farmer review calls on employers to adopt six mental health core standards covering mental health at work plans, employee awareness and open communication, healthy work life balance, effective people management, and monitoring of mental health and wellbeing. Further enhanced standards are recommended for companies with more than 500 employees, encompassing increased transparency and accountability and the provision of tailored in-house mental health support and signposting to clinical help. The review also calls for Government action to set clearer expectations of employers through legislation and better enforcement, to encourage voluntary reporting by organisations on mental health, and to reform statutory sick pay to better support phased returns to work. Continue reading
The Court of Appeal has held that the EAT ruling in Efobi v Royal Mail Group (that it is not incumbent on the claimant in a discrimination claim to prove a prima facie case, summarised in our blog post here) is wrong. The claimant does have the initial burden of showing a prima facie case of less favourable treatment before the burden shifts to the respondent to provide a non-discriminatory explanation.
Although the wording in the Equality Act differs from its predecessors, there was no evidence of a parliamentary intention to change the burden of proof; rather the drafting was intended to reflect case law clarifying that tribunals can take into account all the evidence, including evidence presented by the respondent as to whether there was less favourable treatment, at the first stage of the burden of proof (Ayodele v Citylink Ltd) .
Permission to appeal has been sought in the Efobi case.
The Court of Appeal has overturned the EAT ruling in Royal Mail v Jhuti, although a further appeal has been filed. The EAT had ruled that the reason for a dismissal can be the employee’s whistleblowing, even where the decision-maker is unaware of this, if their decision has been manipulated by a manager aware of the protected disclosure and motivated by a desire for retribution. The Court of Appeal disagreed: a decision made by someone in ignorance of the facts, which is manipulated by someone else aware of those facts, cannot be attributed to the employer (save perhaps where the manipulation is by someone high up in the hierarchy such as a CEO, or by a manager with some responsibility for the investigation). Continue reading