HR Law Masterclass Agenda

Brisbane: March 12
Melbourne: March 18
Perth: March 20
Canberra: March 21
Sydney: March 14

08:50

09:05

  • Proactively improving accountability in your organisation to reduce accessorial liabilities  
  • Reducing your accessorial liability risks relating to:   
    • The Fair Work Act 2017 (Protecting Vulnerable Workers)   
    • The National Employment Standards  
    • The Modern Slavery Act 
    • Your procurement chain and related entities 
  • Recent case examples and how they could have been avoided 

09:45

  • Identifying what constitutes difficult workplace behaviour 
  • Defining misconduct vs. serious misconduct 
  • Relevant laws governing the management of difficult employee behaviour, 
  • Understanding what constitutes ‘reasonable management action' under different cicumstances 
  • Preventing difficult behaviour through policies and employment contracts  
  • Approaching challenging conversations about unacceptable employee behaviour 
  • Strengthening disciplinary and termination process  
  • Understand what constitutes ‘reasonable management action taken in a reasonable manner and ‘harsh, unjust or unreasonable’

10:25

10:50

Casual conversion clauses: 
  • When is an employee entitled to casual conversion, and what criterion need to be met? 
  • Procedures and timeframes required for both the employee and employer 
  • When can an employer refuse a request to convert employment status, and under what reasonable grounds? 
  • Can an employee challenge a refusal to grant casual conversion? 
  • Understand what information you need to provide employees about the casual conversion clause under their award 
Sham contracting: 
  • Avoiding misclassification or misrepresentation of an employment relationship as an independent contracting arrangement 
  • Reviewing recent case law which has tested the gig economy model 
  • What is the likelihood for new laws being introduced: 
  • as a regulatory responses to the gig economy 
  • to extend minimum employment entitlements to other independent contractors 
Other future workforce and work model considerations: 
  • Flexible workplaces: changes to modern awards; employer workplace law obligations for considering flexibility requests; and key OHS factors to keep in mind 
  • Risk factors to consider for agile / ‘hot-desking’ working environments – what issues have emerged

11:30

This session will provide an overview of recent case law relating to workplace mental health, with a particular focus on disclosure of mental illnesses, medical evidence, psychological injuries and addressing performance issues.   
  • What is mental health and psychological injury? 
  • Duty of care, legal obligations and mental health risks in today’s workplace 
  • Communicating with your employee - do they need to disclose if they have a mental health issue? 
  • Managing employee disclosures and self-diagnosis without medical information 
  • Dealing with employees who refuse or are unwilling to return to work – lessons from Finnegan v Komatsu Forklift Australia Pty Ltd  
  • Working with medical experts and medical evidence 
  • Practical tips for proactively managing complex matters that can be impacted by mental health and psychological injury 
  • Recent case law developments – unravel the complexities 

12:10

01:00

  • Requesting medical evidence, and independent medical exams  
    • What to request 
    • Information to provide to medical experts or occupational health professionals 
    • When it’s advisable to engage occupational health managers to liaise with medical professionals 
  • What constitutes reliable medical evidence? 
  • When the employee refuses lawful and reasonable direction to provide medical evidence or attend an independent medical assessment 
  • Dealing with cases of medical incapacity, including duration and nature of the incapacity 
  • If the employee says they are ready to come back to work but the medical report says otherwise 
  • Considerations for tailoring return-to-work, and for adjusting position requirements 
  • Psychological injury claims & return-to-work: How an HR manager can help manage the complexities of psychological injury case management & RTW 
  • Recent case law review 

01:40

Bullying and harassment risk management: 
  • Assessing risk areas for bullying, and identifying common predictors or triggers 
  • Bullying claim risks associated with performance management or improvement programs 
  • Designing and implementing anti-workplace bullying guidelines, policies and reporting procedures 
Dealing with the implications of bullying and harassment: 
  • Personal grievances and claims of being unjustifiably disadvantaged due to the employer failing in WHS obligations 
  • Constructive dismissals, where an employee feels they have no choice but to resign 
  • Recent bullying case law reviews 
  • Sexual harassment and inappropriate conduct: 
    • Prevention and policies, baselines, and identifying control measures 
    • Privacy – what you should know and adopt 
  • Recent case law review: provisions, actions and remedies 
Commonalities and differences between managing bullying or sexual harassment claims: 
  • Where workplace legislation around bullying, harassment and inappropriate conduct intersects: state, federal, OHS 
  • Claims handling processes and grievance management systems 
  • When is a formal investigation required? 
  • Avoiding inflammation of issues

02:20

02:50

  • Assessing the formality of investigation required, or other conflict resolution paths 
  • If an investigation is a consequence of a performance process - how this changes your response 
  • Who should conduct investigations - internal or external parties? Making sure they are impartial and unbiased 
  • Planning an investigation - the allegation, roles and ensuring consistencies 
  • Establishing workable terms of reference 
  • Managing complex factors of investigations: hearsay; conflicts of interest; parallel criminal investigation; conflicting reports; anonymous reports or requests for anonymity  
  • Setting expectations with individuals involved and ensuring they understand the process 
  • When the subject of an investigation doesn’t cooperate 
  • When to suspend employees 
  • Evidence gathering prior to interviews 
  • Conducting effective interviews, who to interview, and who should do them 
  • Managing privacy obligations 
  • Potential stand-downs and adverse actions: if during an investigation the employee has made a claim requiring the investigation to be paused 
  • Justification tests: benchmarking investigations and disciplinary action as reasonable 
  • Record keeping, plus legal privilege for investigation notes and reports 
  • Your report, findings and outcomes of the investigation - what will withstand external scrutiny and challenge?

03:30

  • Understanding the breadth of scope for general protections claims relating to actions, threats or perceived threats: 
    • For prospective and current employees and contractors 
    • Under enterprise agreements; WHS Acts; the NES; and discrimination provisions 
  • The triggers: talent management or performance processes; denial of training; demotion; dismissal; threat of redundancy; denial of employment opportunity; investigations or the threat of an investigation 
  • When adverse actions claims can result from poorly run investigations 
  • What’s not considered an adverse action under the law?  
  • The reverse onus of proof: understanding this unique aspect in law 
  • Defending an adverse action when employees abandon their job or are involved in industrial action 
  • Can the probation period adequately protect you from adverse action claims? 
  • The importance of contemporaneous records when defending an adverse action claim 
  • Understanding the consequences and financial damages possible under adverse action/general protections claims 
  • Assessing whether to settle, or when to prepare for court 
  • Recent case reviews 

04:10

  • Terminations during probationary periods, trial periods and internships 
  • Terminations for performance issues – ensuring adequate performance improvement processes  
  • Dealing with terminations for reasons of serious misconduct  
  • Terminations for reasons of absences: when an employer can terminate employment 
    • Long term absences due to medical condition 
    • Managing terminations for intermittent and regular absences over time  
  • Meeting requirements under tests for redundancy 
  • Managing terminations of fixed term contracts 
  • Acting in good faith – including employer communication about issues, and allowing for response 
  • Recent case law and remedies review 

04:50

05:00