Research from Money.com.au found that:

• Two-thirds (67 per cent) of Australian employees admitted they are plagued by distractions when working remotely be it TV, social media, errands or having visitors over; and
•  43 per cent spend less than half their day working productively.[1]

These results and potentially some other anecdotal views are leading to an increasing workplace issue around flexible working arrangements and working from home (WFH).

While these options can offer numerous benefits for both employers and employees, there are also a number of legal issues to consider when implementing flexible working arrangements or allowing employees to work from home. These issues include:

– The right to request flexible working arrangements under the Fair Work Act 2009;
– Whether the employee is entitled to paid leave during periods of illness or injury;
– The safety obligations of employers when workers are based at home

Flexible working arrangements requests

Requests for flexible working arrangements are now covered under the National Employment Standards (NES); as such, this provides a right for certain employees to request flexible working arrangements (such as changes in hours of work) from their employer. An employer can only refuse such a request on reasonable business grounds.

The right to request a flexible working arrangement usually is in the form of:

• Changes to hours;
• Changes to patterns of work;
• Changes to location of work.

This type of request can be utilised if there are carer or family obligations, family responsibilities which include a child or close relative with a disability, or support to immediate family or someone in the household in regards to violence.

The request can be turned down on reasonable business grounds and this includes reasons such as:

• The new working arrangements requested by the employee would not be commercially practicable;
• There is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
• It would be, from a business perspective, impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
• The new working arrangements requested by the employee would likely result in a significant loss of efficiency or productivity;
• The new working arrangements requested by the employee would have a significant negative impact on servicing clients and customers.

Employers are required to approve or reject the request within 21 days.

However, a big change has been the ability for employees to directly arbitrate any decisions on flexible workplace arrangements in the Fair Work Commission if they cannot be resolved in the workplace. This is a guaranteed dispute resolution mechanism that many, outside of Enterprise Agreement-covered employees, have not been able to access.

Work from home

Work from home has provided so many layers of flexibility and even become an employer branding exercise to attract and retain staff.

It has also led to 43 per cent of workers spending half their time productively, according to Money.com.au research.

In saying this, WFH is likely here to stay – and, amongst other issues, employers and HR need to consider the legal obligations, duties and responsibilities.

Legal HR issues to consider  

1. Employment law – what contractual obligations have been put in place regarding their WFH arrangement?

This could take the form of variations to an employment contract or a flexible working arrangement agreement.  It may simply be a policy in place where there are parameters for its use.  For example, there may be required “touch point” days where employees are all required physically in the office on a Wednesday.

2. Health and safety – what are the health and safety risks associated with WFH?

Managing psychosocial risks is now a positive obligation that employers (and officers) need to get familiar with. Our article Managing Psychosocial Risks: How Do You Identify Them? (6 Hazards Under The Code) identifies some hazards of working from home, such as:

• isolation; and,
• remoteness.

These two hazards, without proper assessment of risk, may well turn into psychological health concerns – which in turn leads to workers’ compensation claims or even resignation.

There are also other general health and safety aspects to consider, including electrical safety, hazardous areas when walking, and even ergonomics.

3. Data protection and confidentiality  – how will the company ensure that confidential data is protected when employees are WFH?

Apart from data protection, the issue of confidentiality is also a live one. Work product undertaken remotely is the responsibility of the employer.  They will be vicariously liable for any actions of an employee; conversely, they also own the intellectual property of the work product of the employee as long as this is expressly covered under an employment contract (there are some implied obligations but it is best not to rely upon implied obligations).

This article only really touches on parts of the issues associated with flexible working arrangements and working from home.  Cultural issues that stem from these changes and also shifting a workforce back into more in-workplace days has various challenges.  For all employers and HR teams, those challenges also bring about a number of legal ones.

Jonathan Mamaril is a Director with NB Employment Law, leading the Employment Law and Workplace Relations team. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training; and advising on matters to prevent problems from occurring and solve problems when matters become litigious and difficult. 

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So what exactly are psychosocial risks? And what can be done to mitigate them?

What is a psychosocial risk?

Psychosocial risks are those that relate to a person’s psychological and social well-being. They can be caused by many different factors, including work-related stress, bullying, and harassment, and can lead to a range of health problems.

It is defined as a risk to the health or safety of a worker that arises from or relates to:

• the design or management of work;
• a work environment;
• plant at a workplace; or
• workplace interactions or behaviours; and
• may cause psychological harm, whether or not the hazard may also cause physical harm.

These risks could arise by way of the design of the work itself – take for example the naturally hectic area of call centres.  The psychosocial risk in such environments may be higher than others due to the management of the work.  Another example might be formal performance management steps taken or discussions around working from home and flexibility plans.

What is the new Primary Duty?

It is now a requirement of the Work Health and Safety Act 2011 (the Act) that persons conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the psychological health of workers and the elimination or minimisation of risks to psychological health arising from work-related stress.

This is commonly referred to as the ‘primary duty of care’.

The primary duty of care applies to all PCBUs regardless of their size or industry sector. It is an ongoing duty that requires PCBUs to take proactive steps to identify and control psychosocial risks in the workplace.

From April 2023 the duty goes further:

• Expressly requiring a recognition to consider the psychosocial risks to meet the primary duty;
• Imposing an express obligation to manage and identify the psychosocial risks via risk management on the basis of elimination and if not reasonably practicable to do so minimisation of that risk using the hierarchy of controls.

What does this mean for the duty holder?

From April 2023 there will now be a positive obligation on the duty holder to determine control measures implemented and all relevant matters including:

• the duration, frequency, or severity of the exposure of workers to psychosocial hazards and how the psychosocial hazards may interact or combine;
• the design of work,
• the systems of work;
• the design and layout and environmental conditions of the workplace, including:
  • safe means of entering and exiting the workplace; and
  • facilities for the welfare of workers;
• the design and layout, and environmental conditions, of workers’ accommodation;
• the substances and structures at the workplace;
• the workplace interactions or behaviours; and
• the information, training, instruction, and supervision provided to workers.

Duty holders will need to demonstrate:

• deadlines set are reasonable;
• the tools, equipment, and support provided to perform the role or meet deadlines are adequate;
• menial tasks outside of the job description are a regular feature of work;
• distribution of work and capacity;
• observation of resilience (or lack thereof); and
• sufficient workplace training.

What needs to be done by employers?

There are a number of ways to manage psychosocial risks in the workplace. These include:

• providing support and training for employees – the NB Employment Law team are running specific management training programs to educate managers and decision-makers on the new changes, especially in the context of mental illness, psychological safety, psychosocial risks, and potential legal claims in jurisdictions such as unfair dismissal, general protections and discrimination, workers compensation and workplace health and safety – click here for more information.
• implementing policies and procedures for the elimination and if not reasonably practicable to do so minimisation of that risk using the hierarchy of controls.

Jonathan Mamaril is a Director with NB Employment Law, leading the Employment Law and Workplace Relations team. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training; and advising on matters to prevent problems from occurring and solve problems when matters become litigious and difficult.  

[1] https://7news.com.au/lifestyle/health-wellbeing/many-australians-frequently-stress-at-work-c-1913638

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There are a number of headline changes that have already incited a lot of discussion, such as:

• The final nail in the coffin for the construction industry watchdog, Australian Building and Construction Commission, with its powers shifting to the Fair Work Commission;
• The set up of an Economic Inclusion Advisory Committee to examine the suitability of income support payments ahead of each federal budget;
• Preservation of the BOOT (Better Off Overall) Test, that is with any new enterprise bargaining employees will not go backwards in new negotiations;

Putting aside the headlines, here are some of the more practical changes that employers need to be aware of — and get ready for:

Pay secrecy (and therefore transparency)

We already foreshadowed this potential change in a previous NB Employment Law article with the prohibition of “pay secrecy” clauses and the ability for employees to ask and disclose their remuneration.  This will also form a workplace right, which has some consequences in the General Protections provisions.

There are a number of ramifications for this.  Firstly, confidentiality clauses in contracts that set out remuneration as confidential will not be prohibited under the proposed Bill.  Secondly, such clauses will have no effect.

This causes some consternation from a number of vantage points:

• Rewarding discretionary effort;
• Succession planning;
• Keeping up with market salaries;
• Using increases in pay to retain key personnel;
• Creating a workplace culture where staff are constantly asking for pay rises (at least initially) and potentially causing toxic behaviour as staff get paid different remuneration.

On the other hand, the purpose of this transparency is twofold; the first being that gender equity has been put forward as a key object of the Bill.  The argument here is that pay transparency will generally lift the remuneration of all staff whatever gender they may be.

The second purpose applies to contexts such as where two people are working on one site.  There may well be one employee who works for the Principal while the other is a labour-hire employee.  The idea of this potential transparency change is that if they do the same work (with all else being equal), the remuneration should be – in theory – the same.

Contract reviews and communication with staff will be integral to combat this change.

Sexual harassment

The Bill expressly prohibits sexual harassment and is a natural extension of the workplace health and safety laws – in particular, it specifies that unlawful sexual harassment and discrimination are work health and safety hazards.

The Bill stresses the positive obligation of employers to manage the psychosocial risks and take all reasonable steps to eliminate sexual harassment.  This is a much more proactive obligation and although there have been avenues in the past in unfair dismissal, general protections and discrimination, this Bill provides more express provisions for “stop sexual harassment orders” – similar to the current FWC workplace bullying jurisdiction.

However, one prime difference between the bullying jurisdiction and the new sexual harassment provisions is that there is a compensatory avenue.

The new provisions also capture behaviours that are not directed at an individual, such as sexual innuendo, banter of a sexual nature, sexualised jokes and displays of offensive material – which would constitute a breach.

Employers and human resources must expect that sexual harassment complaints will likely increase – and unlike bullying complaints, there is a direct avenue for compensation for such complaints.

This increases the risk substantially, and policies – in particular, management training – will be integral.

Flexible workplace requests

As part of the post-covid 19 workplace – and with employer branding, the war for talent and “quiet quitting” being headlines across all Australian workplaces – flexibility has some extended protections under the Bill.

The Bill will enable employees to directly arbitrate any decisions on flexible workplace arrangements in the Fair Work Commission if it cannot be resolved in the workplace. This is a guaranteed dispute resolution mechanism that many outside of Enterprise-Agreement-covered employees have not been able to access.

In particular, it will speed up the process of making a decision for a request, with a requirement to either approve or reject the request in writing within 21 days.

Flexible working arrangements, such as carer responsibilities and family or domestic violence, obtain an extension where an employee may request a flexible working arrangement if the employee has a disability or where a member of the employee’s immediate family or household, experiences family or domestic violence.

Enterprise bargaining

There has been no doubt that many Employers have found the current bargaining system ineffectual and of negligible commercial value.  The new changes saw a number of employer and industry associations provide submissions on the proposed changes.

The biggest change is the single-interest bargaining authorisation.  It will allow the making of multi-employer agreements with a group of employers, such as franchisees, who share “clearly identifiable common interests”.

This change was particularly pushed by the Union movement to allow traditionally non-unionised workplaces to negotiate as a collective. Employers, especially those in franchise or quasi-franchise arrangements, should expect an uptick in Union-initiated bargaining with multiple employers. Those employers should be looking at legal advice as a matter of urgency to mitigate liability and risk.

Thankfully, small businesses with less than 20 staff will be excluded (one of the last-minute changes from the crossbench) from the multi-employer bargaining.  Furthermore, businesses with less than 50 staff can opt out of the bargaining, with the onus on Unions to set out a case as to why they should be included.

Another change that may affect companies with long-expired enterprise agreements is that a majority-support determination will no longer be required and a Union can initiate bargaining after 5 years have lapsed (past the nominal expiry date).

Fixed term contracts

Fixed term contracts have come under the microscope with the aim of preventing rolling contracts and, in principle, providing better job security.

Namely, any fixed term contracts exceeding two years will be restricted and require an identifiable term of termination.  Some of the restrictions include:

• Changes to the period of time or terms of a fixed term contract;
• Delaying re-engaging an employee for a period;
• Changing the nature of the work or tasks the employee is required to perform.

There are exclusions, including one-off government-funded positions, training arrangements and contracts for distinct and identifiable tasks expressly permitted under a modern award.

Other requirements include:

• A ‘Fixed Term Contract Information Statement’ to be issued;
• Prohibition for longer than 2-year fixed term contracts;
• Requirement for employers to issue a new ‘Fixed Term Contract Information Statement’ to employees engaged for a fixed or maximum term;
• Prohibition of fixed term or maximum term contracts for a total of more than two years (including under rolling contracts or extension/s) and a right to renew the contract more than once; and,
• Rendering ineffective any contract that breached these prohibitions (subject to exceptions, e.g. if an applicable modern award expressly permits a particular provision).

Employers with regular fixed term contracts and non-government-funded positions should be careful about their engagement of fixed term contracts. The above restrictions will need to be taken into account because penalties could be as high as $82,500, or $16,500 for an individual.

Jonathan Mamaril is a Director with NB Employment Law, leading the Employment Law and Workplace Relations team. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training; and advising on matters to prevent problems from occurring and solve problems when matters become litigious and difficult.  

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A company looking to sell, tendering for larger contracts, or contracting with other organisations will usually be required to produce a coherent document.  If you are starting up a company, investment in proper employment contracts with staff may seem (understandably) a lesser priority—however, as an organisation grows, it is integral to have one in place.

For organisations that have employment contracts in place, regular reviews and potential amendments will require some strategic thinking around timing and communication with staff. In addition, there is the consideration that the contracts themselves must be up to date and do not inadvertently breach the law or a modern award.

Other than specific pay and bonuses clauses and the position description, here are six key clauses to focus on in your review and ensure all are in your Employment Contract:

1.  Confidentiality

For employers with employees who have access to sensitive and confidential information, trade secrets and processes, a confidentiality clause is a must-have. Why?

A confidentiality clause gives an employer the ability to contractually protect information:

• Leaking to competitors
• Being misused by an employee
• Released and breaching privacy laws and other information legislation
• Utilised by an employee adversely for their own personal profit or gain
• Damaging the reputation of the business

The confidentiality clause should also cover post-employment conduct as well.

2.  Restraint Of Trade

Restraint of trade provisions or non-compete clauses are generally difficult to enforce against employees. Whether a restraint of trade clause is enforceable is ultimately a decision by a Court or Tribunal.

However, without one there is a limited ability to enforce a restraint on an employee.  Whether that is starting their own business, poaching existing employees, stealing clients and customers or even utilising contact details obtained by the company—if there is no restraint of trade contractually in place, the laws of equity and potentially the corporation’s legislation are the only avenues (they are limited).

A restraint of trade clause is the minimum required to pursue a non-compete position and they require a cascading clause of:

• Various geography
• Components of time periods

A cascading clause (which provides multiple combinations) is integral because if one combination is found to be unenforceable and unreasonable, another combination might be found to be very reasonable and therefore enforceable.

3.  Award Coverage

An employer must ascertain what award covers the employee.  If there is no award that covers the employee, then the employer must also come to a clear conclusion that the employee is award free.

Award coverage will dictate the base minimum wage as well as other conditions such as:

• Minimum engagement time
• Offer of permanent employment (or casual conversion)
• Overtime rates
• Allowances
• Consultation for major change requirements
• Permitted deductions

It is also important that once an award coverage is ascertained that the employer keeps themselves updated about any specific industry changes to the award—which happens from time to time.

4.  Off-Set Clause

In particular for salaried employees, an off-set clause is one of the key employment contract clauses that will allow the company to offset any payments made above the minimum requirements of an award against any alleged underpayment of wages.

In any event, an off-set clause usually only becomes applicable if an employee disputes their pay entitlements.  An off-set clause may need pairing with an individual flexibility agreement to be useful (IFA).  The off-set clause is particularly helpful when you pay an employee well above the award rate.

5.  Warranties

Several warranties should be set out in an employment contract. In particular, one is that the employee warrants to have honestly represented their skills and experience.

If the employer subsequently learns an employee has misrepresented their skills or qualifications, the employee will be in breach of the contract and may allow the termination of their employment.

6.  Probationary Period

A probationary period is typically three (3) to six (6) months, during which the employer will have time to assess the employee’s performance.

A probationary period is separate and distinct from the ‘minimum employment period’ under the Fair Work Act 2009 (Cth) which partly determines an employee’s eligibility to commence an unfair dismissal application in the event of termination of employment.

The ‘minimum employment period’ under the Fair Work Act 2009 (Cth) is either six (6) or twelve (12) months, depending on whether the Company is a ‘small business employer’ under the FW Act (a small business employer engages less than 15 employees across all of their businesses).

Once an employee meets the minimum employment period under the Fair Work Act 2009 (Cth) they are able to make an unfair dismissal application to challenge their termination of employment.

A probationary period clause is useful and sets out expectations, however, terminating an employee during their probationary period is not necessarily a risk-free method of ending their employment. They may, for example, seek to argue their dismissal was motivated by discriminatory reasons or was in breach of their rights under the Fair Work Act 2009 (Cth). Legal advice should always be sought in those circumstances.

Jonathan Mamaril is a Director with NB Employment Law, leading the Employment Law and Workplace Relations team. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training. Advising on matters to prevent problems occurring and solve problems when matters become litigious and difficult.  

The post Six key clauses all employment contracts need appeared first on Recruitment Marketing.

• Moving the employee from the Dairy section to the Grocery section;
• Directing the employee to attend a meeting to “deal with a range of issues” and if she did not attend she would be subject to disciplinary action;
• The employee was “interrogated” about the petition and the manager sounded very annoyed on the phone; and,
• When the Union were involved in the issue the HR team wrote to the manager and said  … “I’m sorry that you have had to deal with RAFFWU lately, they can be very difficult to deal with ..”[1]

In the matter of Retail and Fast Food Workers Union Incorporated v Woolworths Group Limited [2022] FedCFamC2G 578 (22 July 2022) the Federal Circuit and Family Court of Australia found in favour of the Applicant (the Union).

As a result of the adverse reaction by the manager and the subsequent corporate strategic actions taken by the HR team which were exposed, the Union notified of a dispute under the Enterprise Agreement on behalf of the employee. It was accepted that this was a workplace right.

The Respondent had taken adverse action by directing her to attend the “issues” meeting – Deputy Chief Judge Mercuri had this to say:

“I am satisfied that directing the employee to attend a meeting or face the prospect of disciplinary action does constitute altering the employee’s employment to their detriment.” [2]

The causal nexus between the dispute arising and the actions taken by the manager and Woolworths was also accepted.

As a result, a $10,000 fine was handed down and this was only limited because of:

• The contrition shown – an apology was made to the employee; and,
• A $3,000 lump sum was already paid to the employee personally as compensation.

Lessons to learn for HR and Employers

1. Petitions, complaints and reasonable enquiries made by employees should not be negatively reacted to – this is very hard in practice, however from a risk management perspective it is integral.  Keep calm, ask questions and try and deal with it from their perspective as well as ensuring you are complying with any policies, processes or agreement clauses in place.
2. Managers need to understand that dealing with a Union or any representative of an employee (especially if it concerns General Protections) requires help – HR, legal or otherwise – in terms of how to respond and what to say.
3. Human Resources and People and Culture must also understand the scrutiny that may be levelled against correspondence which may be internal.  Whether it is because it has been disclosed or does not garner legal professional privilege, correspondence–especially open correspondence–should be carefully drafted. Just like this case, you should keep in mind – what would a Judge think of your email?

This article was originally published here and was republished with permission. 

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem. 

The post How you can avoid being fined for employee complaints: key learnings from an employment lawyer appeared first on Recruitment Marketing.

• Lack of recruitment, leading to promoting a manager to a senior manager role and doubling his direct reports – the senior manager felt frustration with one staff member and in particular struggled with the performance management process which eventually led to the senior manager going on “stress leave”.
• Problems with retaining staff led an employer to continuing to hold onto an employee who was engaging in toxic behaviour in the workplace – this eventually led to an upward bullying claim being made by her line manager.
• An employee being constantly absent from the workplace due to a number of health related and personal issues leading to workloads being increased on other staff members and a general staff shortage.

Absenteeism In The Workplace

In the Fair Work Commission matter of Royall v Aussie Kids Pty Ltd [2022] FWC 2301 (31 August 2022) a centre director for Aussie Kids, a childcare centre had a number of employees absent on a Friday. The reaction by the centre director was to send an email to all staff expressing general “disappointment” and that time off should only be taken for genuine reasons.

The clear implication made by the centre director was that some of the absences were not for genuine illness related reasons.

The response by the Applicant in particular was damning.  The Applicant replied via email but also via Tanda, the roster based system the employer utilises.  A response through Tanda was effectively public as all employees could see the response provided by the Applicant. She wanted the centre director to know that the email was:

• Hurtful, and that;
• the employees had done nothing wrong;
• considering the circumstances, employees should be commended for their effort not criticised (as flu season and COVID-19 related illness were common place).

Fatal Steps

In the dismissal response provided by the Employer they claim that the employee was not dismissed and furthermore had not served the 6 month minimum employment period.

Not Dismissed

The applicant was called into the office to provide a “please explain” for her actions and that the Tanda message was so public; the rationale being that any disagreement should have been relayed in private. As the applicant showed a lack of contrition, the employer:

• Asked her to go home;
• Cancelled the rest of her shifts that week;
• Took her off access to Tanda; and
• Failed to respond to contact by the Applicant in regards to the above.

The employer claimed that:

• The cancellation of shifts was because there was an excess of staff for that week and any changes to roster for that week were coincidental;
• The lack of contrition was the reason access to Tanda was removed;
• Not informing her of the decision to remove her access was a mere oversight; and
• There was no dismissal because if there was, the usual course of action would be to issue a separation certificate.

Minimum Employment Period

The employer also claimed a further objection in that the applicant had 18 weeks unpaid parental leave and therefore this broke service.  In particular, that she was a casual and as such was not a regular and systematic employee.

Findings By The Fair Work Commission

The Fair Work Commission did not find merit in the objections made by the employer and found that unpaid parental leave did not break service and the steps taken by the employer leads to a reasonable assumption that a dismissal had taken place.

Two parts in particular were damning on the employer:

• Cancelling the Applicant’s shifts and removing her access “had the probable result of bringing the employment relationship to an end”; and
• The employer also failed to properly explain why it didn’t inform the applicant and took no steps to advise about the lack of upcoming shifts leading to very poor management decision making.

Maximum Compensation Awarded

As the Fair Work Commission found there was no justification in the dismissal and significant procedural failures the tribunal found there was an unfair dismissal.

6 months pay was awarded to the employee although the final figure was reduced due to the employee’s failure to mitigate her loss.

Learnings

This is a clear tale of how not to deal with absenteeism and conduct issues in general.  The employer could have prevented a successful claim at a number of junctures and ultimately failed when they removed access, cancelled shifts and failed to inform the employee they did so.  As they did not intend to necessarily dismiss the employee for her actions, the employer was caught unaware their actions were likely to be deemed unfair by the Fair Work Commission.  You can understand the intention of the employer however the way they handled it should rightly be criticised and Employers should take heed of the mistakes made here.

This article was originally published here and was republished with permission. 

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem. 

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Some employers have adopted hybrid models of work, requiring their employees to physically attend the office for a portion of the working week. Other employers have dispensed with office work entirely, and their employees can be found throughout Australia (perhaps travelling in a fried-out kombi) performing remote work. The possibilities of working from home have even led to some employees moving overseas whilst remaining employed (and performing work) for their Australian employer.  There are of course a number of workplace issues with working from home:

• Building workplace culture
• Retention and recruitment
• Workplace health and safety
• Mental Illness
• Work and job productivity
• Employee loyalty
• Family and domestic effects
• Management of work-from-home staff

With these possibilities, there are also other technical workplace issues involving interactions with long-service leave entitlements.

What is the position in Queensland?

For most employees, long service leave entitlements are given by way of State or Territory legislation, each with their own nuances. In Queensland, long service leave is provided by the Industrial Relations Act 2016 (QLD) (IR Act). Section 93(b) of the IR Act provides that an employee’s ‘continuous service’ which is used for determining long service leave entitlements can be “with the same employer, whether wholly in the State or partly in and partly outside the State”. Accordingly, by the express language of the IR Act, an employee’s employment can be partly outside of Queensland whilst still retaining an entitlement to long service leave.

Clarity was provided in the decision of Anantapadma v Infosys Limited [2020] QIRC 190, where it was determined that an employee’s employment outside of Queensland must have “substantial connection” with Queensland in order to be counted as continuous service for the purposes of long service leave. In its decision, the Queensland Industrial Relations Commission found the employee in Anantapadma lacked the requisite connection, as he was only temporarily engaged to work in Queensland. His period of employment in Queensland was also short (consisting of 9 months), with his remaining periods of employment taking place in Melbourne and India.

The decision in Anantapadma was subsequently followed in Raman v Infosys Limited [2021] QIRC 275. In Raman, the period of employment in Queensland was also relatively short (consisting of 8 months) and was considered in the factual context of the work arrangements. The Queensland Industrial Relations Commission considered the employer had specifically maintained a cohort of employees capable of being deployed internationally, with each deployment being temporary in nature. Their employment contracts were also jurisdictionally linked to India, instead of Australia.

What is the position in other states or territories, such as New South Wales and Victoria?

The position in New South Wales closely mirrors that of Queensland. In the matter of Australian Timken Pty Ltd v Stone (No 2) [1981] 2 NSWLR 64, the “substantial connection” test was mentioned and it was observed that long service leave would “accrue if at the time the relevant event occurs (that is, completion, termination or cessation) the service which was being performed at that time had a substantial connection with this State”. In practical terms, if an employee was claiming long service leave at the time of termination of employment, the Court’s role was to assess whether their employment as a whole was substantially connected to New South Wales.

The position in Victoria is somewhat nuanced. The decision in Infosys Technologies Limited v State of Victoria [2021] VSCA 219 appeared to doubt the position adopted in Timken (which was applicable in New South Wales). Specifically, it was observed that “improbable and absurd outcomes could arise” if the approach in Timken was preferred. Instead, the Court took the view that a period of employment should not necessarily be treated as an indivisible period. Whether a period of employment counted towards accrual of long service leave entitlements depends on whether it had a substantial connection to Victoria at the time the employment was undertaken.

Accordingly, components of overseas or interstate employment could be excluded from calculating long service leave entitlements, if they had no connection to Victoria. This is a different approach to long service leave in Queensland and New South Wales, which (for now) seems to involve an assessment of the entire employment period when a triggering event (usually termination of employment) occurs. Nonetheless, each of the States accepts that periods of employment outside of the State could count towards long service leave entitlements. We consider this likely extends to capture periods of employment for employees working remotely, whether interstate or overseas.

A practical guide for employers (and businesses)

Assess an employee’s connection with a state or territory

We would suggest assessing an employee’s connection with a specific State or Territory in determining where their long service leave entitlements might accrue. This might involve reviewing the terms of an employment contract to determine which jurisdiction it has been made within.

It might also involve reviewing where profits of the business flow to, or whether instructions to an employee are coming from a particular State or Territory. Where an employer has consented to an employee relocating strictly because of their personal preferences (as opposed to any genuine business requirement), we suggest recording this in writing. We would recommend employers do this for all of their remote employees, particularly where they are interstate or overseas. If required, further advice should be sought regarding the requirements of a specific State or Territory.

Consider the nuances of the relevant state or territory

After determining an employee’s connection with a specific State or Territory, it becomes necessary to consider nuances within the various legislation. As an example, section 4(2) of the South Australian Long Service Leave Act 1987 (SA) may allow an employee with potential long service leave entitlements in different States and Territories to choose which legislation applies. Similarly, a South Australian employee who resigns is usually entitled to proportionate payment of long service leave after seven (7) years of completed service, whereas a Queensland employee may only be entitled if they resign because of illness, or a domestic/pressing necessity. We would recommend factoring in these differences for each employee working remotely.

Document the arrangements in writing

For businesses that have National operations, it is not unusual for employees to be temporarily assisting with operations in another State or Territory. This may come in the form of a secondment, or an assignment to a different team. Where the work arrangements are temporary, we would suggest clearly setting this out in writing to ensure the temporary nature is agreed upon. We recommend recording this as a reasonable and lawful direction (if an employee’s contract allows differing locations of work/different duties), or as a variation to an employment contract (noting an employee’s agreement would be required). Taking these steps may assist with minimising inferences that an employee is substantially tied to a State or Territory.

This article was originally published here and was republished with permission. 

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem. 

The post The limitless territory of working from home, and its effect on long service leave appeared first on Recruitment Marketing.

The COVID-19 Pandemic created a need for a number of new positions, including contact tracing. There was high demand for these employees, lots of work and a determination to make the best efforts to contain the Pandemic. One such employee found his employer, the Department of Health (Victoria), caused major delays in getting back to him on the certainty of his position.

It begs the question: Did the attention dedicated to dealing with COVID-19 lead to priorities being shifted away – in particular, away from proper people management?

The Fair Work Commission (FWC) has handed down judgment in the matter of Bradley Alan Fisk v State of Victoria (Department of Health) [2022] FWC 911 (31 May 2022) a jurisdictional objection in the General Protections jurisdiction.

The judgment provided scrutinising commentary at the Department indicating their difficulties to deal with the employee’s concerns and inability to comply with the orders of the Fair Work Commission required specific comment.

At [54] the commission stated “It is likely that the failure to vary Mr Fisk’s contract for a further fixed term was the result of resourcing and administrative pressures affecting the Department’s ability to function (discussed earlier) as well as a failure to resolve the classification dispute that caused Mr Fisk not to accept the offer of the second fixed-term contract after it was sent to him on 8 December 2020.”

The facts

1. Mr Fisk was employed for a fixed term between 26 August 2020 and 31 December 2020.
2. For the first 11 weeks, he received no payment for his services (“It was a sign of things to come”[7]).
3. Mr Fisk was offered a new position as a team leader however when he asked for his pay to be adjusted he heard nothing back and therefore did not accept the new position.
4. Mr Fisk continuously followed up on the renewal of his contract but received no reply.
5. He became increasingly frustrated and changed his behaviour towards his colleagues.
6. During this period Mr Fisk received complaints about his passive-aggressive behaviour which he later claimed was a result of the frustration of not having certainty in his future employment.
7. As the relationship broke down, Mr Fisk was ultimately terminated from his employment on grounds of performance, effective on 30 June 2021.

The commissioner rejected the arguments of the employer stating that the employee’s contract had expired and as such this was the true reason for his termination. The commissioner stated that the end period of the contract had well and truly expired and he was no longer under a fixed period of employment.

The commissioner laid blame on the extremely under-resourced employer.

The detail was given to the following:

1. Significant under-resourcing of the Department’s administrative functions.
2. Management of internal human resources during this period was “haphazard”.
3. The employee sought clarification on multiple occasions regarding employment but received no response until his termination.
4. It was never established that following 31 December 2020 Mr Fisk would continue his employment on a fixed-term basis.

As a result, the jurisdictional objection failed and the employee may now continue with their General Protections claim.

Five tips for employers – what we can learn

Another basic method is to ensure that offers of employment are not made until checks are undertaken.

• Human Resources should always address all concerns raised by employees, particularly those relating to employment contracts and payroll. This should be done in a timely manner. Unreasonable delays such as 2-3 months should not be entertained whether it is the external investigators taking too long or internal mechanisms of the organisation creating the delay, the Fair Work Commission have made their views clear – unreasonable delay is unacceptable.
• Being significantly under-resourced will leave HR managers and employers exposed to “key risks” and hinder their “ability to function.” This may include;
  1. Missing deadlines, such as Mr Fisk’s lapsing contract.
  2. Contraventions of the Fair Work Act, in this instance, missing adjustments in an employee’s pay.
• Employers should take a proactive approach and not a reactive approach toward their business and employees. Examples might include:
  1. Management training
  2. Workforce planning strategy
  3. Policy and Contract reviews
  4. Wage audits (sample wage audits on a regular basis)
• Human Resource staff should familiarise themselves with the consequences that may arise from being under-resourced. Following this, an action plan to remedy the situation may be needed.
• If your business was shaken by the Pandemic, you could be missing something that could expose your business to such risks as well. A proper review should be conducted by risk management teams or Employment Lawyers. Such gaps will include:
  1. Workplace Health and safety gaps
  2. Workplace bullying and reasonable management action misunderstandings
  3. Not knowing the difference between Unfair Dismissal and General Protections claims
  4. Mismanagement of grievances and complaints
  5. Poor handling of mental illness or injury disclosures

This article was originally published on NB Lawyers for Employers here and was republished with permission.

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem. 

The post Five tips for employers to avoid risks from understaffing and delays appeared first on Recruitment Marketing.

• Providing or in the process of providing an offer of employment then rescinding this offer due to a criminal record or history
• A criminal history or record is either disclosed or found out by the employer during the course of employment

Rescinding Offers

In the current climate where recruitment of employees is difficult, hiring quickly is becoming the norm.

Once an offer has been made and accepted by an employee it may become a contractual relationship and with that all the necessary legal obligations.

Reference checks and even just general “google” checks can slow down the process but it also provides an understanding of the employee.  If an offer is made before a proper background/criminal history check is undertaken there are chances that the checks may reveal some relevant information which may lead to an employer deciding to rescind the offer.

Employers must be careful when doing this as some circumstances may give rise to claims of:

• Misrepresentation;
• Discrimination and/or;
• breach of contract.

The Australian Human Rights Commission Regulations 2019 (Cth) came into effect in October 2019 and provided amendment to the definition of discrimination for the purposes of section 3(1) of the Act.

Previously an Employer was able to “discriminate” if the criminal record meant that the prospective employee will be unable to perform the inherent requirements of a particular role. The regulations have clarified that employers are now prohibited from using “irrelevant” (Regulation 6 (a)(iii)) Criminal history records to rescind or decline an offer of employment.

What is “irrelevant” will come down to some of the following considerations:

• the type of role
• the industry
• the type of criminal record or charge
• the effect on the employment
• the effect on the employer

As an example health and aged care employers will be able to consider criminal charges around drug use much more relevantly than a manufacturing or professional services employer.

A Relevant Case To Consider Is BE V Suncorp Group Ltd [2018] AusHRC 121.

The matter was referred to the AHRC. The employee, Mr BE was provided with a conditional offer of employment pending the outcome of his criminal history check.

The criminal history check returned the following charges:

1. Failure to comply with reporting obligations – $1,000 fine.
2. Use of a carriage service to access Child Pornography – 12 months imprisonment – released on $10,000 bond for two years. Pay $5,000 to charity. Further $5,000 fine.

Upon receipt of this information, Suncorp rescinded the offer of employment. They did not inform him of the reason for this.  When the complaint was filed Suncorp responded stating their concerns for his character to sufficiently undertake his obligations in the role.

The commission stated that although his criminal history was serious it is irrelevant and cannot be relied on to argue that he would not otherwise fulfil the inherent requirements of the job to be trustworthy and of good character.

Even with the negative finding Suncorp also refuted the commissioner’s findings and refused to pay any amounts to the employee.

Putting aside the AHRC’s lack of ability to enforce financial penalties the decision itself is still one that an employer such as Suncorp may not want on the record.

In saying this, whether you agree or not, the AHRC have made it clear that criminal charges and history is not enough to impute someone’s bad character.

So What Can Employers Do?

One method some Employers are utilising is to implement a pre-employment screening program which includes the question of:

• Have you ever been charged but not convicted of a criminal offence?

This pre-employment screening document is put together in the form of a statutory declaration which then makes it clear that if any questions were answered dishonestly this would be subject to serious misconduct.

A contract of employment could be relied upon to set out very clearly that a criminal charge or conviction could lead to disciplinary action.

Another basic method is to ensure that offers of employment are not made until checks are undertaken.  This may be difficult in the current race for talent – however you also don’t want to be in a position to have to rescind an offer as well.

In Part 2 we will discuss the legal implications for an employer if a criminal record is disclosed or found by an employer during the course of employment.

This article was originally published on NB Lawyers for Employers here and was republished with permission.

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem. 

The post Rescinding an offer of employment due to a criminal history – things to consider (part one) appeared first on Recruitment Marketing.

However, in many industries, salaried positions and for non-award covered employees the requirement to work “reasonable additional hours” to complete the duties or work they are employed for is quite common.  This is usually coupled with a higher-than-standard pay rate or salary, greater flexibility and greater responsibility.

What Are “Reasonable Additional Hours”?

In the Federal Court decision of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512 the Court was asked to answer this question.

A migrant worker from Ghana started work with Dick Stone, a long-established NSW butcher and meat processor. At the commencement of employment he was provided with documents entitled:

• Employee commencement pack
• Employment form

These documents specifically outlined that he would work ordinary hours of 50 hours per week – however, importantly it failed to outline the:

• hourly rate
• overtime rate

Oddly, the employee did not actually know how much they would be paid until the first pay slip.

The employee worked from 2am to 11.30am on Monday to Friday and then a further 2am to 7am on Saturdays. The employee felt that these hours were tiring, draining, and, if given the choice, would not have worked those hours.

A dispute was raised by the union on behalf of the employee on the basis that Dick Stone failed to:

• pay overtime rates in excess of 38 hours per week;
• pay overtime rates in excess of the span of hours; and,
• comply with the award by requiring or requesting him to work more than 38 hours per week.

Findings By The Court

The Federal Court found that the hours were unreasonable. Whether hours in excess of 38 hours is reasonable falls to the employer asserting it and based on a number of factors:

• Risk to health and safety;
• Personal circumstances;
• Needs of the workplace;
• Entitlements to overtime, penalty rates, compensation or remuneration;
• Notice provided that the employee would work additional hours;
• Notice provided by the employee that they had an intention to refuse to work the additional hours;
• Usual patterns of work in the industry;
• Nature of employee’s role and level of responsibility; and,
• Other factors such as the average of hours, unsocial hours of work, effect on weekends and personal/family time.

The Court in taking into account all these factors had a particular focus on the health and safety aspect.  Accepting that it was common knowledge that physical and mental exhaustion from working such hours would lead to higher risks of accidents in the workplace especially as the employee would be utilising knives and lifting heavy objects.

The long hours could arguably have been split among a number of employees and there were arguments that the shifts were unnecessarily long.

Apart from the physical hazard, there were also arguments that such hours worked would contribute to a variety of diseases.

From a personal perspective knowing that the employee was an immigrant with little knowledge of Australian labour law as well as not being issued with Fair Work Information Statement made it clear that the employee had very little understanding of his working rights.

Justice Katzmann also underlined there were several flaws in the employment contract especially given none of the documents mentioned what the employee would be paid.

Ultimately, although a 50-hour week “aligned with Dick Stone’s business needs”, the Court found that the additional hours were not reasonable based on the factors above but in particular the workplace health and safety risks associated with long shifts in a role with knives and heavy lifting and on the basis the employee was not given a choice to work such hours.

Key Considerations

This case demonstrates that regardless of whether an employee freely agrees to an employment contract which requires reasonable additional hours they will not be deemed reasonable in every case. Employers and Human resources need to consider the following:

• The criteria of factors considered:
  • risk to health and safety
  • personal circumstances
  • needs of the workplace
  • entitlements to overtime, penalty rates, compensation or remuneration
  • notice provided that the employee would work additional hours
  • notice provided by the employee that they had an intention to refuse to work the additional hours
  • Usual patterns of work in the industry
  • Nature of employee’s role and level of responsibility
  • Other factors such as the average of hours, unsocial hours of work, effect on weekends and personal/family time
• Balancing the business needs and the need for reasonable additional hours
• Undertake risk assessments of the hours worked by the employees
• Basic processes are maintained namely:
  • An employment contract is in place
  • The Fair Work Information Statement is issued at commencement of employment.

Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem. 

The post What are reasonable additional hours – is 50 hours too much? appeared first on Recruitment Marketing.