Employment Law Webinar Series SESSION 1 - Key employment law developments and trends - What's in store for 2013

1. WELCOME Employment Law Webinar SeriesSESSION 1 - Key employment law developments and trends - What's in store for 2013 28 February 2013 *This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

2. Welcome • You are on mute • A link to a recording of the webinar will be available • We can take questions by using the chat function, we will respond to your questions by email after the webinar Pattie Walsh Partner EP&B Webinar Series

3. Presenters Andrew Ball Partner Sydney Pattie Walsh Partner / Head of Employment, Pensions & Benefits, Asia Pacific Pattie Walsh Partner Rick Catanzariti Partner Melbourne Allan Drake-Brockman Partner Perth Murray Procter Partner Brisbane Nick Ruskin Partner Melbourne EP&B Webinar Series

4. Agenda • Adverse Action - The current state of Adverse Actions claims and how to manage them • Protecting Confidential Information - Results from the DLA Piper research into 250 international businesses • Changes to the Fair Work Act - A summary of the key changes including a review of the amendments to unfair dismissals and enterprise agreements • Bullying and Harassment - What are the key elements of Safe Work Australia's draft Bullying Code of Practice • Enterprise Bargaining - Issues, trends and developments Pattie Walsh Partner EP&B Webinar Series

5. What are workplace rights? SECTION 1 ADVERSE ACTION Presented by Nick Ruskin, Partner Nick Ruskin Partner EP&B Webinar Series

6. How are adverse action provisions breached? Workplace Right Adverse Action Nick Ruskin Partner Connection between adverse action and workplace right EP&B Webinar Series

7. What are workplace rights? • A role or responsibility under a workplace law or agreement • Entitlements under a workplace law or agreement eg. sick leave • A statement to a workplace safety inspector • Making a workers compensation claim • Having an attribute under discrimination law • Making a complaint or an enquiry about the employee's employment Nick Ruskin Partner EP&B Webinar Series

8. What is ‘Adverse Action’ Nick Ruskin Partner EP&B Webinar Series

9. Procedure Dismissal stream: • 21 days to make a claim • Fair Work Commission conciliates – if not resolved, 14 days for applicant to go to a Federal Court Non-dismissal stream: • 6 years to make an application • Applicant can seek interim injunctive relief Nick Ruskin Partner EP&B Webinar Series

10. Procedural Issues Remedies • 'Any order the court considers appropriate‘ • Compensation (uncapped) including for economic loss and hurt and humiliation • Interlocutory relief to prevent dismissal/detriment • Orders to reinstate employee • Fines - $51,000 for a corporation; $10,200 for an individual Nick Ruskin Partner EP&B Webinar Series

11. Protecting Confidential Information SECTION 2 PROTECTING CONFIDENTIAL INFORMATION Presented by Murray Procter, Partner Murray Procter Partner EP&B Webinar Series

12. Protecting Confidential Information DLA Piper survey 2012 • Types of confidential information employers are most concerned to protect • What makes information confidential? Murray Procter Partner EP&B Webinar Series

13. Protecting Confidential Information • 28% of employers do not take any steps to specify that information is confidential • Only 14% of employers use the contract of employment to spell out the type of information which they deem to be confidential, despite 65% including confidentiality provisions of some sort in the contracts • Restrictive covenants • non-compete 19% • non-solicitation / non-dealing 59% • 25% of employers who include restrictive covenants have no confidence they are enforceable Murray Procter Partner EP&B Webinar Series

14. Protecting Confidential Information Impact of the changing workplace Murray Procter Partner Tech stats • 60% of employers either allow or require personal mobile devices • 36% of employers ask employees to store business contact details on databases that are not within the employer's control • 66% of employers are concerned about the threats posed to confidential information by social media BUT • Only 39% have a policy regulating employee behaviour with respect to social media EP&B Webinar Series

15. Protecting Confidential Information Keys steps for protecting confidential information Murray Procter Partner EP&B Webinar Series

16. Recent Fair Work Act changes SECTION 3 CHANGES TO THE FAIR WORK ACT Presented by Rick Catanzariti, Partner Rick Catanzariti Partner EP&B Webinar Series

17. Recent Fair Work Act changes • Change of Tribunal name • Appointment of senior members • Superannuation • Enterprise Agreements • Unfair Dismissal/General Protection Claims Rick Catanzariti Partner EP&B Webinar Series

18. Commission Rick Catanzariti Partner EP&B Webinar Series

19. Superannuation • Modern awards are to include terms about default superannuation arrangements • The term must contain an obligation on the employer to pay super into a default complying superannuation fund if none is chosen by employee • Commission will conduct 4 yearly reviews of clause Rick Catanzariti Partner EP&B Webinar Series

20. Enterprise Agreements • Cannot have EA with only one employee • Deals with problem of two earlier Commission decisions allowing single enterprise EAs • EAs cannot contain a clause allowing an employee to opt out of being covered by the agreement • Union officials cannot be a bargaining representative for an employee unless the union has coverage of that employee type • Now have a notice specified by the Regulations which sets out the content for advising employees of their rights to have a bargaining representative for the negotiation of an EA Rick Catanzariti Partner EP&B Webinar Series

21. Dismissal claims • 14 day time limit to lodge an unfair dismissal claim has now been changed to 21 days • Time limit to lodge a general protections claim in relation to a dismissal of an employee is reduced from 60 days to 21 to coincide with unfair dismissal time frame. The employee still needs to lodge the application in the Commission • Dismissal of unfair dismissal claim by the Commission can also occur if an employee has unreasonably: • failed to attend a hearing or conference • failed to comply with a Commission order or direction • failed to discontinue an application after a settlement agreement is reached Rick Catanzariti Partner EP&B Webinar Series

22. Costs Rick Catanzariti Partner EP&B Webinar Series

23. Bullying and Harassment SECTION 4 PREVENTING AND RESPONDING TO WORKPLACE BULLYING DRAFT CODE OF CONDUCT Presented by Andrew Ball, Partner Andrew Ball Partner EP&B Webinar Series

24. Bullying Draft Code of Practice • No specific bullying legislation • Draft "Preventing and Responding to Workplace Bullying" Code of Practice (Code) • Fair Work Commission – new powers • Finalised Code expected before mid 2013 Andrew Ball Partner EP&B Webinar Series

25. Bullying Draft Code of Practice What is workplace bullying? • Workplace bullying is repeated, unreasonable behaviour directed towards a workers or group of workers, that creates a risk to health and safety • 'Repeated behaviour' refers to the persistent nature of the behaviour and can refer to a range of behaviours over time • 'Unreasonable behaviour' means behaviour that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening • Intentional or unintentional bullying • Direct or indirect bullying Andrew Ball Partner EP&B Webinar Series

26. Bullying Draft Code of Practice What is involved in preventing workplace bullying? • A risk management process which involves the following steps: Andrew Ball Partner EP&B Webinar Series

27. Bullying Draft Code of Practice 1. Identifying and Assessing the Risk of Workplace Bullying Identifying hazards involves finding all of the things and situations that could potentially contribute to bullying in the workplace and cause harm to people. Although there may be no obvious signs of workplace bullying, this does not mean such behaviour or conduct does not exist. 2. Controlling the Risk of Workplace Bullying The best way to control bullying risks is to eliminate the factors that can cause it. If that is not reasonably practicable, implement measures to minimise the risk. Andrew Ball Partner EP&B Webinar Series

28. Bullying Draft Code of Practice 3. Responding to Workplace Bullying Andrew Ball Partner EP&B Webinar Series

29. Bullying Draft Code of Practice 4. Monitoring and Reviewing Control Measures Once control measures have been implemented, you should be checking and reviewing them to ensure they are effective in preventing and managing bullying behaviour. Andrew Ball Partner EP&B Webinar Series

30. Enterprise Bargaining SECTION 5 ENTERPRISE BARGAINING: Issues, trends and developments Presented by Allan Drake-Brockman, Partner Allan Drake-Brockman Partner EP&B Webinar Series

31. Enterprise Bargaining • Enterprise bargaining – collective agreement in single enterprise or multi-enterprise between employer and specified employees • Unions involved if union a bargaining representative • Significant number of agreements have union involvement • Enterprise bargaining – Greenfields Agreement between employer and union direct Allan Drake-Brockman Partner EP&B Webinar Series

32. The 2013 industrial relations environment… Agreements – Offshore • Diving Agreements – all expire 30 June 2013 • Vessel Operator Agreements – all offshore agreements expire 30/31 July 2013 • Helicopter Agreements – have either expired or will expire during 2013 • Offshore Mobile Drilling Rig Agreements • Operators all but one expire second half of 2013 • Manning Agents – expire second half of 2013 or first half of 2014 • ROV – various expiry dates • Production Operators – various Agreements – Onshore • Production Operators – various • Dates vary – some are project specific agreements whilst others are term agreements • A range of agreements expire during 2013 Allan Drake-Brockman Partner EP&B Webinar Series

33. Productivity • Offshore wage rates 40-50% higher than world rates • Even onshore wage rates 20-30% higher than world rates • The focus of enterprise bargaining to date has simply been wage increases essentially without any productivity offsets • Australia 50th in productivity in the world behind Uganda just in front of Botswana • With worsening economy employers will be looking for productivity gains Allan Drake-Brockman Partner EP&B Webinar Series

34. Recent developments Allan Drake-Brockman Partner EP&B Webinar Series

35. Key issues – Greenfields Agreements • Put the unions to bed? • Situations that are not genuinely "Greenfields" and the risks • Outright refusals by unions to enter into Greenfields Agreements • A different approach to bargaining? Allan Drake-Brockman Partner EP&B Webinar Series

36. Enterprise bargaining tips • Prepare a draft agreement which forms the basis of negotiations. You need to be in control of the bargaining process. • Appoint a person who can take accurate minutes of the bargaining process • Establish a consistent bargaining team and appoint a lead bargainer • Ensure tight parameters are placed on your bargaining range. Some non-negotiable items may require ‘Board approval’ if the union is fixated on negotiating changes relating to that item • Be wary of the old saying "nothing agreed until everything agreed" • Provide opportunities for lead bargainers to meet informally outside of bargaining table • Legal contingency planning Allan Drake-Brockman Partner EP&B Webinar Series

37. Our Contact Details Andrew Ball Partner SydneyT: +61 2 9286 8449 E: andrew.ball@dlapiper.com Pattie Walsh Partner / Head of Employment, Pensions & Benefits, Asia Pacific T: +61 2 9286 8197 E: pattie.walsh@dlapiper.com Pattie Walsh Partner Allan Drake-Brockman Partner Perth T: +61 8 6467 6205 E: allan.drakebrockman@dlapiper.com Rick Catanzariti Partner Melbourne T: +61 3 9274 5810 E: rick.catanzariti@dlapiper.com Murray Procter Partner Brisbane T: +61 7 3246 4062 E: murray.procter@dlapiper.com Nick Ruskin Partner MelbourneT: +61 3 9274 5284 E: nick.ruskin@dlapiper.com EP&B Webinar Series