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OHS Harmonisation Update
With the end of 2012 fast approaching, it is timely to briefly review the current progression of OHS harmonisation to date. The Australian Capital Territory, the Commonwealth, New South Wales, Northern Territory and Queensland have all implemented harmonised OHS legislation which became operational on 1 January 2012 in these jurisdictions. Tasmania and most recently South Australia have enacted harmonised OHS legislation which will become operational on 1 January 2013. Western Australia intends to adopt harmonised OHS legislation and is currently entering a consultation phase however the final legislation is unlikely to be operational for at least a further 6 to 12 months. Victoria remains reluctant to adopt the harmonised legislation at this point and the current Occupational Health and Safety Act 2004 continues to apply. For those jurisdictions which have adopted the harmonised legislation, careful regard should be had to the transitional provi...
15 November 2012High Court Clarifies Adverse Action Onus
The High Court has brought a welcome level of clarity to the threshold question for considering adverse action claims. The following article summarises the main aspects of the decision. Background The Fair Work Act 2009 (Cth) prohibits an employer taking adverse action (or threatening to take adverse action) against an employee where that employee engages (or does not engage) in industrial activity. This includes, amongst other factors, because the employee is (or is not) a member or officer of a union or, because the employee engages or proposes to engage in certain forms of industrial action. Where an application for adverse action is made a reverse onus of proof applies. That is, it will be presumed that the employer took action (or threatened action) against the employee for a prohibited reason unless the employer proves otherwise. For this reason, the question of why the employer took (or threatened to take)adverse action becomes a central issue in determining if i...
12 September 2012Further Confirmation of Trust and Confidence... But This Time With Damages
Introduction Last week in a single member decision of the Federal Court in Barker v Commonwealth Bank of Australia, the application of an implied term of trust and confidence in contracts of employment was confirmed. The existence of an implied term of trust and confidence in Australia has been unclear until recently, where a number of decisions have confirmed its relevance. This decision however, also confirms the type of damages that may be awarded as a result of a breach of the term. The following article summarises the decision and outlines its implications. Background Mr Barker had been employed by the Commonwealth Bank of Australia (CBA) for 27 years and most recently in the position of Regional Executive. The CBA had in place a redeployment policy which stated the process which was to be followed when it was seeking to redeploy an otherwise redundant employee. In February 2009, the CBA undertook a restructure, under which Mr Barker’s...
12 September 2012