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.  

The post The IR changes are coming – five practical issues to consider for employers and human resources appeared first on Recruitment Marketing.

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.

The Australian Council of Trade Unions (ACTU) is not different and although from a political standpoint traditionally lobbies for the rights of workers is also an employee within themselves.  An interesting case in the Fair Work Commission of Corry v Australian Council of Trade Unions T/A ACTU [2022] FWC 288 dealt with an employee who made some opinionated comments on his personal Facebook page.

What Was Said?

The ACTU had discovered after he had posted some very odd comments on the internal “Slack” program that the employee had expressed comments in a more public forum, namely Facebook.

•  “F#$k the Jab’ good lads!” – alongside a photo of a protest; and
• “I was fleeing domestic violence so I could attend the Blag Lives Natter meeting and it was all gay people and rainbow flags there and we discussed getting drag queen story hour into primary schools ahhhhh your honour… shiiiiiieeeeeeeeet NIBBA (Don’t be afraid to use globo homo Big Lies against them..) [sic]”

The ACTU had a major problem with an employee expressing such views on a public forum as it went against the:

• Code of Conduct
• Social media policy
• ACTU Public Policy

Further, as an organisation that had large political elements attached, such comments made by an employee would bring the employer’s reputation into disrepute.

Unfair Dismissal Claim

As a result, the ACTU decided to terminate the employee’s employment after a verbal (in what could be categorised as) show cause process.

The ACTU terminated his employment finding his explanation unsatisfactory and the posts “completely inconsistent” with its “clear and unambiguous values and policies”.

The employee filed an unfair dismissal claim with a number of arguments:

• There were no express terms in the employment contract that were breached
• Comments were made “out of work hours”
• The Facebook profile from where the posts came from did not include pictures of himself, identify his geographic location nor did it identify who his employer was
• The social media policy did not cover instances such as which had occurred because comments were made out of work hours

What Did The Fair Work Commission Say?

DP Masson stated at [142]:

“A right to hold and express a strongly held views [sic] does not however mean the Applicant has an unqualified right to publicly espouse views that are contrary to the interests and values of his employer”.

DP Masson also ruled against the employee’s submission that his Facebook account did not identify his location and did not contain posts critical of the ACTU or its affiliates. DP Masson stated at [154]:

“Once the Facebook posts were made, they were public and liable to be viewed by other persons beyond his immediate Facebook group. That his Facebook profile was on a ‘public’ versus a ‘private’ setting indicates he was content for the posts to be shared. The vice and virtue of social media is that posts made by ‘obscure’ individuals can be circulated widely and quickly, far beyond the initial Facebook group to which they were initially made available to. The reality is that the Applicant had no control over the post’s circulation, short of removing the post”.

What is interesting on this point is that the Fair Work Commission did identify there were problems with the reach of the social media policy and that its focus was on “company property usage” or social media use whilst working. Not a lot of stock was placed on the friends linked to the Facebook profile.  It was enough that the Facebook profile was set to public and that this would have reputational damage for the organisation.

The FWC also applied the principles of Rose v Telstra to establish that the out of work hours conduct was likely to cause damage and was a breach of the duty owed to the employer.

The FWC had some criticism of the verbal only show cause process and the lack of putting forward the allegation as well as the breach to the employee.  It also did not help that the ACTU seemed to have lacked procedural fairness in allowing more time for the employee to respond and to accede to his request to provide the allegations in writing (say a show cause letter).

Although there was a lack of procedural fairness, on balance the FWC found valid reason for dismissal. It was not an unfair dismissal.

What Can Employers Learn From This?

A couple of key points:

• Procedural fairness is integral – rushing it almost lost the case for the ACTU – this should include a show cause letter and opportunity to respond to the allegation (as well as the proposed breach);
• Social media policy needs to be in place but also may need some tightening especially if the organisation has very strong views on certain issues;
• Out of work conduct can be investigated – managers need education and training on this;
• Strong personal views are fine but it does not give an unqualified right to publicly espouse views that are contrary to the interests and values of his employer; and
• The values of a company can be upheld and employees measured against this with their conduct – as long as they actually know about them – this may manifest in policies, training or/and codes of conduct.

This article originally appeared on NB Lawyers, the Lawyers for Employers, and has been republished here 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 Personal opinions in the workplace: five key learnings from an employment lawyer appeared first on Recruitment Marketing.

In this instalment, Jonathan shares valuable information about what employers should expect and prioritise in 2021. 

The post-pandemic landscape has meant a number of challenges for employers and HR. As an Employment Lawyer, human resources departments ask for assistance on a range of matters. Here are some quick wins for you and your HR team in 2021.

1. Prioritise good performance management training

Some companies have seen a spike in productivity and others have seen productivity limited.  It is important to understand the unique problems that have compounded poor performance management.

A number of cases have succeeded against employers due to poor performance management by managers and supervisors. This has led to success in:

• unfair dismissal claims
• general protections claims
• discrimination disputes
• workers compensation claims

A focus on performance management training is the key to success. Here is some quick advice for how you can to improve staff performance from an employment lawyer:

• Ensure you have a performance management policy – if you don’t have one, develop one. It can be a great kick-starter for training
• Understand the consequences – for managers and supervisors, they need to understand what poor performance management can actually lead to – yes, there is liability for the company but also personal liability (accessorial liability). Case studies are a good way to demonstrate this.
• Consider external training, potentially from a specialist employment law firm, as they may be able to demonstrate the seriousness of performance management to managers and supervisors.

2. Review your payroll

Underpayment of wages is a significant risk for many organisations.  Big names such as Woolworths, Chatime and even a former MasterChef George Calombaris have felt the wrath of the Fair Work Ombudsman.

Read more: Google pays $3.8M to settle allegations of pay, hiring discrimination

Automated payroll systems are efficient. However, keep in mind the rules you input into the system will either be wrong or right.  Even if they are right – over time they could become stale and even be contrary to a legal obligation under a Modern Award.

In a previous article, I set out three key tips that to help your business to avoid risks, including:

• review your payroll system
• ensure your payroll system reflects rules of awards
• compare your HR system with your payroll system

3. Keep an eye on immigration updates 

More and more opportunities around utilising a migrant workforce and skilled employees to plug gaps in the business continue to cause HR headaches.

• General Skilled
• 482
• Subclass 186
• Employer-Sponsored
• Partner Visa
• Australian citizenship

Now is a good time to understand some of the opportunities that are coming in 2021 to migration laws. Getting in touch with a migration agent, such as No Borders Migration, is a good start.

4. Industrial relations law changes

The government is looking to make changes to IR laws. At this point we understand there will be changes to:

• Casual employee rules to combat previous cases around Workpac v Rossato and Workpac v Skene
• Definition of a casual employee defined in the Fair Work Act
• Enterprise bargaining changes which may lead to a “slackening” of the BOOT test and quicker turnarounds
• Simplifying some awards including give key “distressed” industries opportunities to pay loaded rates
• Allow project life pay deals which are designed to prevent industrial (strike) action on the aspect of increased wages.

Continue to read about these issues to keep yourself informed. These changes will require a lot of preparation and potentially, advice, going forward.

Do you have a question for Jonathan? Send it to editor@www.rmm.onenazmul.dev. Jonathan and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*. 

*This series may be limited. Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.  

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 4 hot tips for HR from an Employment Lawyer: Preparing yourself for 2021 appeared first on Recruitment Marketing.

Thank you to readers who submitted their questions. In this instalment, Jonathan provides his answers to your work-from-home and talent management questions. 

COVID-19, lockdown, face masks, illness, border closures and work from home (WFH), remote working.  These words seem to go hand in hand in our current workplaces.  Some states and territories are still feeling the effects of the pandemic while other workplaces are starting to look towards getting people back to the office (or already have).

Work-from-home (WFH) arrangements have been forced upon many organisations, testing the flexibility of our workplaces to accommodate these needs while retaining high productivity. Many HR professionals, Managers, Directors and employers are grappling with a prime issue: What are our powers and responsibilities when it comes to WFH arrangements? 

Here are three things you need to know. 

1. Health and safety responsibilities still lie with employers

Of concern for many is the issue of responsibility if an employee injures or becomes ill while working from home. This has manifested in a number of ways and here is a snapshot of the type of matters which have arisen and we have dealt with recently:

• An employee injured their foot while “walking around” their home office
• An employee who made a complaint to their employer that they felt more “stressed” working from home because they couldn’t “switch off”
• An employee who felt “pressure” while working from home from her husband and kids and developed mental health issues such as anxiety
• An employee who complained of back problems due to using a chair in their home office (not supplied by the company).

The basic fundamental health and safety obligations will still apply and that is an employer must do what is reasonably practicable to ensure the health and safety of an employee. There are also obligations on the employee as well to ensure their own health and safety.  Whether the employee is injured at the office or working from home – for health and safety purposes the obligations will still lie with the employer.

Read more: Ask an employment lawyer Q&A: Leave entitlements, JobMaker, WFH setups and more

There is of course merit to discussions around whether the employee was engaged in work hours or in the conduct of work. There are several cases which point to a distinction.  To mitigate this risk a number of steps can be taken:

1. Undertake a health and safety assessment, if it is not possible to do one in person, consider a self-assessment audit with undertakings by the employee that they are being honest with their assessment
2. Put in place a work-from-home policy – this should cover a number of issues but at a basic level, reminding them of their health and safety obligations, the procedure to request work from home, approval requirements for equipment and company property to be supplied
3. Consider providing standard company property if it is an inherent requirement of the position – chairs and computers are a good example and potentially even tables, cameras and basic stationery
4. Training – consider undertaking appropriate WFH training for managers and also for employees WFH this will ensure expectations and standards are known. If this is backed by the above policy even better

2. WFH arrangements – can they be refused?

Requests to WFH will fall under flexible work arrangements, flexible work arrangements are underpinned by the National Employment Standards.

Although there are some differences between award free employees and award (and enterprise agreement) covered employees there is a general requirement to:

• Discuss any request with the employee regarding the request
• Take into consideration:
  • Needs of the employee
  • Effect for the employee if arrangements were made
  • Reasonable business grounds to refuse.

The key part for employers and HR is the term “reasonable business grounds”. The criteria set focuses on the following key factors:

1. Cost (high cost)
2. The effect on other employees’ arrangements
3. new employees will be required to accommodate the arrangements
4. there would be a significant loss of productivity or/and negative impact on client/customer service

To be frank, whatever business grounds put forward employers and HR need to ensure that those arguments would satisfy a Commissioner in the Fair Work Commission. That is to say, whatever you put in writing (and you have 21 days to respond) a Commissioner will look kindly on the arguments put forward.  You will need to consider all of the above to have a chance at a refusal being supported by the Fair Work Commission if it is challenged by an employee (and their representatives).

Consider the case of Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria [2019] FWCFB 305 wherein the Victoria Police were unable to refuse a detective’s request for flexible working arrangements.  This is even with the following arguments:

1. the arrangement would Impose an unreasonable financial burdenas they would need to pay the detective his full salary plus overtime allowances
2. a significant increase to the risk of fatigue-related OH&Sincidents as the shifts would be longer
3. A negative impact to productivity and parity to the colleagues of the detective

Although there were some other issues that hindered the Victoria Police in this matter the arguments would seem to be (on the face of it) wholly justified on reasonable business grounds. The Fair Work Commission found this was not the case.

Taking this case into consideration you will need to go further than the Victoria Police to justify a refusal.

3. Termination of employment (and discipline) must follow a procedure

If you have not got a proven procedure for dealing with dismissal this is the time to put one in place and ensure you are getting legal advice (to claim privilege) every step of the way.  We have provided details around this in previous articles such as Defending An Unfair Dismissal Claim – HR Need To Consider 3 Main Issues and The Pink Folder – Senior Employees And Their Duties Of Trust And Confidence (3 Tips For Employers) and General Protections Complaint – Huge Future Economic Loss $Pay-Out Due To COVID-19.

Here are some further considerations to keep in mind:

• If an allegation of misconduct has been brought up such as timesheet fraud, misuse of social media, misuse of leave or data theft has occurred – although it may be frustrating for all involved the allegation should be put to the employee preferably through a show-cause letter
• Why a show-cause letter – it gives the Employer an opportunity to consider any response by the employee there may well be even mitigating circumstances that should be considered.
• Performance management should be managed in the same way even with WFH – this might mean discussions over virtually instead of in-person but the same premise holds true
• Whatever is in writing and whatever has been said should all be assumed to be exposed and potentially read or considered by a Judge or a Commissioner – will this be looked upon favourably – if not? How will risk and liability be mitigated?

Do you have a question for Jonathan? Send it to editor@www.rmm.onenazmul.dev. Jonathan and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*. 

*This series may be limited. Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.  

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 Ask an employment lawyer: 3 things you need to know about managing WFH arrangements appeared first on Recruitment Marketing.

You asked, Jonathan answers. Thank you to readers who submitted their questions. In this instalment, Jonathan provides his answers, sharing information about leave entitlements, employer’s work-from-home obligations, JobMaker and more. 

Q1) Hi, if employees have exhausted all sick/annual leave entitlements after the holidays, should we allow them to go into negative leave balance? If so, how much negative leave balance should we allow?

There are two parts to this question, the first is the personal leave component (sick leave) the second is annual leave.

Personal Leave

With respect to personal leave, we recommend it only be allowed where an employee is entitled to personal leave under the National Employment Standards (for example a personal injury or illness).  An employer should not allow a person to use their personal leave to supplement annual leave (unless there is a genuine entitlement to personal leave).  By doing so you may create an expectation among employees that they are entitled to use annual leave and personal leave interchangeably.

There is also the option of allowing unpaid personal leave if the leave entitlements have been utilised.

Allowing employees to go into negative personal leave balance is not recommended  because employers will likely encounter difficulties in recovering outstanding personal leave from final termination pay.  There are strict limits on when amounts can be deducted from employees pay and without proper documentation, an employer may be left with no recourse to recover personal leave paid in advance.

Of course there are exceptions and if you have a policy allowing negative leave balances then you will need to follow those policies.

Annual Leave

Annual leave operates differently.  Under all Modern Awards there is ability for an employer to enter into an agreement with an employee to take annual leave in advance.  Such an agreement may be necessary where there is an office closedown over the Christmas break.

In these circumstances an employer should enter into a written agreement setting out:

• The amount of leave to be taken in advance; and
• The date on which leave is to commence;

The agreement must also be signed by the employer and employee.

This agreement must also be retained as an employee record.  If an employer enters into an agreement to take annual leave in advance, they are entitled to deduct any outstanding leave in advance from the employee’s final termination pay.  This is supported under Section 324 of the Fair Work Act.

Despite there being a broader scope to allow annual leave to be taken in advance, the amount of leave taken in advance should be minimised (e.g. no more than 1-2 weeks).  Unlike personal leave, there is scope for an employer to refuse a request for annual leave provided the refusal is reasonable.  As such, if an employee makes a request for annual leave in advance it can be refused on reasonable grounds.

Got a question for Jonathan? Send it to editor@www.rmm.onenazmul.dev. Mamaril and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*. 

Q2) Can any age discrimination charges against employers be made if you can only hire employees under 35? (For the JobMaker hiring credit)

In its current form, the JobMaker Hiring Credits are intended to support employees within the 16 to 35 year age bracket, who have been very disadvantaged by COVID-19. In practical terms, this is a welfare measure intended for their benefit. As to whether allegations of age discrimination can be made, we need to look at the position at the State and Federal level.

At the Commonwealth Level, section 33 of the Age Discrimination Act 2004 (Cth) permits ‘positive discrimination’ if there is a bona fide benefit to persons of a particular age, intended to meet a need that arises because of the age or intended to reduce a disadvantage experienced by person of a particular age. The JobMaker scheme arguably fits within this exemption. It is intended to reduce the unemployment rate of persons aged 16 – 35, who have been impacted by COVID-19.

As an example of state laws, in Queensland, there is no ‘positive discrimination’ provision under the Anti-Discrimination Act 1991 (QLD). Employers have had to specifically seek exemptions when they wished to benefit a particular group of people. As an example, in Re: Protech Personnel Pty Ltd [2019] QIRC 175, Protech Personnel applied to the Queensland Industrial Relations Commission to be able to specifically advertise for and recruit women for the construction industry. Women have been historically underrepresented in this industry. Protech Personnel’s actions were well-intended, however they were still required to specifically apply for an exemption.

In our view, section 104 of the Anti-Discrimination Act 1991 (QLD) may be relevant. It allows a person to do an act, to members of a group with an attribute (such as age), if the act was designed to assist their welfare. Given the intention of the JobMaker Scheme is to benefit the welfare of a particular age group, it may fall within section 104 of the Queensland Act, creating an exemption to age discrimination.

Having regard to the above, there is unlikely to be an issue if an employer only hires persons eligible for JobMaker. There may well be an issue however, where the employer specifically advertises for persons aged 16 – 35. There is a material difference between merely making use of JobMaker and specifically excluding applicants from applying for a vacant position because of their age.

Q3) With JobKeeper due to expire in March, can employers terminate employees if there is no work? (What if there is work for some employees but not all?)

The unavailability of work does not in itself create a reason to dismiss an employer, however it is a change to the operational requirements of an employer’s business. The employer can then make decisions as to whether or not certain roles are still required, having regard to the changes in operational requirements. If roles are no longer required, the employer may be able to dismiss an employee for reasons of redundancy.’

There is a process for this however and depending on the industrial instruments in play it can even be prescribed.

If an employer and/or an employee is covered by an award, there may be certain consultation obligations under the award that must be fulfilled prior to making a role redundant. These consultation obligations are quite strict, for example, most awards require information to be providing in writing to potentially affected employees.

Regardless of whether an employer and/or employee is covered by an award, there is still an obligation on an employer to consider redeployment opportunities. These opportunities may not exist in the event of unavailability of work, however the onus remains on the employer to give consideration.

Failure to consider redeployment or properly consult with employees may lead to additional risks for an employer (for example, the risk of a successful unfair dismissal or a general protections claim).

Q4) Is it the organisation’s responsibility to provide equipment to work-from-home employees for safe working; for example, a proper computer chair?

An employer has an obligation to ensure the health and safety of its employees whilst they are at work, irrespective of whether the employees are performing their work from the employer’s premises. As part of these obligations, an employer should seek to determine whether the employee’s workspace at home is reasonable, having regard to health and safety risks. This can be by way of a self-audit performed by the employee or another professional attending the work office of the employee.

The Fair Work Commission decision of McKean v Red Energy Pty Ltd (a summary of the case can be found here) involved a work from home employee due to COVID-19 who was denied a request for a desk. The Fair Work Commission found that it was “plainly” reasonable to refuse the provision of a desk as other items had been provided already:

• Online training and resources
• Access to an occupational therapist
• Ergonomic assessment
• Laptop computer
• Headset
• Chair

Although it involved an unfair dismissal claim it is relevant because it focuses on the reasonableness factor by way of:

• Rejection
• Direction
• Refusal

It is important to note the primary duty is to do what is “reasonably practicable” to ensure the health and safety of workers under workplace health and safety legislation.  What is reasonably practicable will largely depend on the individual circumstances of the employer.

We also note a good way to keep track of Company assets is to implement a Company asset register.  If an employee is allowed to take office equipment (e.g. desks, chairs, phones), they should be required to sign a declaration saying they possess the equipment.  This will ensure that all Company property is returned when the employee returns to the workplace.

Please also note workers have a duty under work health and safety laws to take reasonable care for their own health and safety.  As such it is a good idea for the business to require the employee to perform an audit and make a declaration that their premises are fit to allow working from home.

This series may be limited. Send your employment questions to editor@www.rmm.onenazmul.dev.

*Legal advice is general in nature. For tailored legal advice specific to your organisation, industry and location, speak to your organisation’s legal advisor.  

Send your questions to editor@www.rmm.onenazmul.dev. Jonathan and his team of employment lawyers at NB Lawyers will answer as many as they can and share these answers in Recruitment Marketing Magazine*. 

The post Ask an employment lawyer Q&A: Leave entitlements, JobMaker, WFH setups and more appeared first on Recruitment Marketing.