HR Law Masterclass Agenda

Brisbane: September 10
Sydney: September 12 
Melbourne: September 13 
Perth: September 17
Adelaide: September 19

08:50

09:00

  • Your duty of care, legal obligations and risks, including state based WHS/EHS/OHS obligations
  • What do you do if your employee doesn’t disclose they have a mental illness?
  • Managing the complexities of cases involving mental health factors such as stress, anxiety, fatigue, and bullying
  • Working with mental health/medical experts, & medical evidence 
  • Managing cases relating to mental health and psychological injury
  • Recent case law reviews – unravel the complexities

09:35

  • Medical evidence and examinations: what you can ask for and what the employee needs to provide
  • When you can challenge medical evidence, and when it is lawfully reasonable to request an Independent Medical Examination (IME), and how to show cause
  • What to include in your policies, and understanding both employer and employee obligations
  • Return-to-work: Re-assessing positions, modifying roles/ duties
  • Terminations: Understanding grounds for termination, if an employee refuses to participate in an IME; If an impairment prevents the employee safely performing the role; Avoiding unfair dismissal claims
  • Recent case law reviews – reduce your liabilities and improve outcomes

10:10

  • Looking at reasonable management actions when instigating a performance improvement plan or performance management process
  • Managing recurring performance issues, when time has lagged after a performance improvement process has already been completed
  • Risk management approaches for avoiding claims including: unfair dismissal; adverse actions; discrimination; victimisation; bullying; harassment; and workers compensation
  • How to proceed should a claim arise
  • Recent case law reviews – learn from mistakes and get the process right

10:45

11:15

  • Reviewing how the Fair Work Commission assesses whether a termination is harsh, unjust or unreasonable
  • Mitigating common risks relating to claims of: unfair dismissal; adverse action; discrimination
  • Ensuring procedural fairness for dismissals and terminations
  • Minimising chances of unfair dismissal claims during performance improvement processes
  • Meeting chain of evidence requirements for post-termination hearings 
  • Ensuring an employee’s right of reply to allegations during termination discussions
  • Recent case law reviews – mitigate risks and ensure fairness

11:50

  • Factors influencing whether an investigation should be undertaken - assessing seriousness of allegations, complexities of complaints, and consequences of failing to investigate
  • The importance of not over complicating investigations, and ensuring appropriate terms of reference are defined and adhered to
  • Insourcing or outsourcing investigations – the key considerations
  • Assessing when a formal investigation is appropriate, or if it has potential to be punitive
  • Determining other suitable legally acceptable avenues for conflict resolution? 
  • Setting expectations of people involved in investigation processes
  • Procedural fairness, and ensuring independence, transparency, and standards of proof
  • Recent case law reviews – investigate what can go right and wrong

12:25

  • Understanding accessorial liability risks under the Fair Work Act, and relating to National Employment Standards, under-payments, work conditions, and awards
  • Complying with the Protecting Vulnerable Workers Legislation and 2017 amendments to the Fair Work Act. Your obligations under the NES, modern awards, enterprise agreements, and record-keeping 
  • Supply chain compliance under the Modern Slavery Act - practical steps regarding: your oversight responsibilities for suppliers or partners: reviews / audits; wages compliance; and operational conditions 
  • Improving accountability to reduce accessorial liabilities
  • Understanding activities of the new Anti-Slavery Unit announced in the federal budget 2018
  • Recent case law reviews – Courts are taking an increasingly expansive view of who is responsible

01:00

01:50

  • Evaluating the pros and cons – suitability of EBAs for your organisation
  • Getting the process right, and being prepared for the increased scrutiny and complexities
  • Applying the Better Off Overall Test (BOOT)
  • Understanding common errors relating to Notices of Employee Representational Rights 
  • Evaluating and stress testing agreements: for fairness, undertakings, queries, and potential provisions
  • Looking at how recent agreements have impacted wages, and applying loaded rates
  • Managing complexities of multiple awards in an EBA
  • Meeting your Good faith bargaining obligations 
  • The politics of expiration and terminations of agreements. Looking at the current Coalition stance on expiring agreements, and the likely changes if Labor get in to power. Conditions regarding termination of agreements
  • Recent decisions review – lessons learned for smoother agreement making

02:25

  • Identifying legal risks associated with bullying claims and/or complaints:
    • Discrimination, harassment and victimisation
    • Adverse action
    • Mental health and associated safety risks
    • Workers compensation
  • Designing and implementing anti-workplace bullying guidelines, policies and reporting procedures
  • Risk assessing your organisation – identifying predictors and triggers
  • Initiating a strong claims handling process and grievance management system in your organisation
  • Investigating complaints, resolving disputes and managing grievances: avoid the common mistakes 
  • Recent case law review om discriminatory, bullying and harassing behaviour complaints

03:00

03:25

  • Knowing employer responsibilities and duty of care for sexual harassment and inappropriate conduct associated with: Breach of contract; WHS/EHS/OHS legislation; The Sex Discrimation Act (Commonwealth); State based anti discrimination Acts
  • What should be included in sexual harassment policies and complaint procedures
  • Evaluating and investigating a sexual harassment claim – considerations to avoid inflammation of an issue: terms of reference, procedural fairness, confidentiality, and communication
  • Risk assessing your organisation, including for historical claims
  • When investigations go wrong – lessons learned
  • Recent case law reviews – Contain your risk exposure

ADVERSE ACTIONS HOUR

04:00

  • Defining actions which can constitute or trigger adverse action: from terminations, to reduction in benefits, inadequate training, and performance management processes 
  • Adverse Actions, ‘General Protections’, protected rights, and what’s not considered an ‘adverse action’
  • What you may not know about adverse actions:
    • The breadth of scope and range of huge triggers under which claims can be brought: beware
    • Understand civil remedy provisions, and lengthy historical time limits on bringing an adverse action about
    • Adverse action claims based on denial of employment
    • Does the probation period adequately protect you from adverse actions?
    • What about Contractors & adverse action claims? 
  • Protect and prevent: Overcoming procedural issues which may lead to adverse action claims

04:30

  • The onus of reverse proof – what you will need to be prepared for to demonstrate lawful and reasonable actions
  • When you can defend and effectively neutralise an adverse action claim. How can employers also bring about an adverse action claim?
  • Responding to claims of denial of employment
  • Countering contractors claims – practical steps
  • Use of contemporaneous notes and witnesses
  • Recent case law reviews – defend yourself from this game changer in employment law