Employment law developments on the horizon

Gender equality remains a hot topic for employers. New gender reporting requirements commenced this year with further reporting obligations in the pipeline. However, the new minimum standards may not apply to certain employers.

Further clarification regarding implied terms in employment contracts may also be on the horizon with the High Court recently hearing the appeal in Commonwealth Bank of Australia v Barker.¹

Policy tug-of-war for gender reporting

The Federal Government has announced the introduction of new gender equality "minimum standards" to support gender equality in the workplace. These standards will apply to companies with 500 or more employees.

Currently, private sector employers with over 100 employees (and higher education institutions) are required to provide a public report to the Workplace Gender Equality Agency for the period 1 April to 31 March each year, under the Workplace Gender Equality Act 2012 (Cth) (WGE Act). The WGE Act replaced the Equal Opportunity for Women in the Workplace Act 1999 (Cth) in December 2012.

In addition to these reporting requirements, with effect from 1 October 2014 employers with 500 or more employees will need to have in place a policy or strategy in at least one of the following areas to comply with new minimum standards:

• gender composition of the workforce;
• equal remuneration between women and men;
• availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and working arrangements supporting employees with family or caring responsibilities; and
• sex-based harassment and discrimination.

Meanwhile, the Federal Government has recently advised that it will not be changing the current reporting thresholds. Earlier reports had suggested that the current 100 employee reporting threshold may be increased to apply only to organisations with 1,000 or more employees.

Watch the space: High Court poised to clarify implied term of trust and confidence

The High Court of Australia (High Court), after two days of hearing, has reserved its judgement in Commonwealth Bank of Australia v Barker.

In August 2013, Mr Barker was awarded over $335,000 in compensation when the Full Court of the Federal Court of Australia found that the Bank had breached the implied term of trust and confidence by failing to comply with its own policy to consider redeployment options before terminating Mr Barker's employment in April 2009².

In December 2013, the Bank was granted leave to appeal the judgment of the Full Court of the Federal Court. Following the two day hearing on 8 and 9 April 2014, we are now awaiting the judgment of the High Court. Many are hoping that this judgment will provide clarity on if and when a term can be implied into an Australian employment contract.