TressCox Employment Seminars – Workplace Strategies in a Soft Market

In a time of variable economic conditions, managing the costs associated with employment and retaining current revenue sources can become critically important.  I’m excited to invite you to a seminar in our Melbourne office where we will examine legal strategies to protect your business from employment related issues in a tightening market place. 

The legal issues examined will include:

• Preventing solicitation of clients by ex-employees
  We will review recent decisions regarding the enforceability of restraint of trade clauses, and how to best draft appropriate contractual terms. We will also look at the use of confidentiality and gardening leave clauses in such circumstances. 
• Alternative working arrangements 
  We will examine the use of working arrangements other than the employment of permanent employees (for example casuals, contractors and the use of labour hire companies).   We will also explore circumstances in which the working arrangements with existing employees can potentially be altered.
• Redundancy processes
  We will set out the required legal process for execution of redundancies, potential pitfalls and the minimum redundancy entitlements owing to your employees.

The seminar will focus on practical strategies, and provide ample time for attendees to ask questions specific to their businesses.

JOIN US in our Melbourne office at a morning seminar, 9.00am, Wednesday 17 April 2013, or an evening seminar, 5.30pm, Thursday 18 April 2013.

Interested in attending? RSVP at the links above.

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Work Experience, Internships or Just Free Labour

A report prepared for the Fair Work Ombudsman by Adelaide University Law School in January 2013, examining whether unpaid work engagements are considered experience or exploitation, found that employers may be, perhaps unknowingly, engaging in illegal work practices contrary to the requirements of the Fair Work Act 2009 (FWA).

The report also notes that various forms of unpaid work arrangements are on the rise in Australia.

The report identifies two main groups of workers who are susceptible to risk: younger people looking to get a start in employment (including university graduates), and migrant workers. The two main potentially exploitative unpaid categories of work were identified as work experience placements and internships.
The office of the Fair Work Ombudsman investigates and commences proceedings against businesses that breach their obligations under the FWA. Although there are some exceptions permitting these arrangements, for example genuine vocational training, employers must carefully assess the placement against a range of factors to ensure compliance with the FWA.

A flawed understanding of the placement could result in a legally binding employment relationship, which entitles the worker to minimum wage and other benefits normally associated with employment. Employers are encouraged to consider the following, prior to entering into a work experience internship or voluntary arrangement:

(a) the purpose of the relationship – is it the relationship truthfully tailored to providing work experience to the person or is it to get the person to do work to assist with the business outputs and productivity? An example would be a work experience placement being asked to do universal mailing while undertaking a marketing placement post university qualification;

(b) the length of time the placement continues over is also a guiding litmus test for employment. Generally, the longer the placement, the more likely the person is considered a statutory employee;
 
(c) does the person have productivity obligations imposed upon them? Although the person may do some productive activities during a placement, they are less likely to be considered an employee if there is no expectation of productivity in the workplace;
 
(d) does the person benefit or the business from the arrangement, if the main benefit of a genuine work placement or internship is not considered as flowing to the person doing the placement and the business is gaining a significant benefit as a result of engaging the person, this may indicate an employment relationship has been formed.

If the placement was entered into through a university or vocational training arrangement then it is less likely that an employment relationship can be shown to exist. Furthermore, unpaid work experience placements are less likely to be considered employment if they are primarily observational.

Although, this article is designed to highlight the traps that employers may unwittingly find themselves in, it is by no means intended as a general guide for one size fits all. If you are in doubt as to whether your work experience or intern placements are legal or exposing your business to possible prosecution, please contact Peta Tumpey, Nicholas Duggal or Rachel Drew for further advice.

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Fair Work Commission commenced 1 January 2013

In addition to renaming Fair Work Australia the Fair Work Commission, the following changes prescribed by the Fair Work Amendment Act 2012, came into effect on 1 January 2013:

Unfair Dismissal

• The time limit for lodging an unfair dismissal application increased from 14 calendar days to 21 calendar days.  In addition, the Commission has further powers to dismiss unfair dismissal applications and to award costs against parties, lawyers or paid agents.
• If dismissed prior to 1 January 2013, an unfair dismissal application must be made within 14 calendar days of the date the dismissal took effect.

General Protections

• The time limit for lodging a general protections application is reduced to 21 calendar days from 60 calendar days.
• If dismissed prior to 1 January 2013, a general protections application must be made within 60 calendar days of the date the dismissal took effect.

Enterprise Agreements

• An enterprise agreement can no longer be made between an employer and a single employee.
• A union official cannot act as a bargaining representative for an employee unless the union has coverage to represent that employee.
• Terms in an enterprise agreement allowing an employee to opt out of an enterprise agreement are now prohibited.
• A bargaining representative applying for a scope order need only take all reasonable steps to give notice of the application to other bargaining representatives, and
• The notice of employee representational rights prescribed by the Fair Work Regulations cannot be modified by employers.

TressCox Lawyers can provide advice in relation to unfair dismissal and general protections applications, and assist in preparing enterprise agreements. Please contact TressCox Employment and Industrial Relations Partner, Nicholas Duggal.

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Slipper case thrown out

The Federal Court has thrown out the sexual harassment case against former Speaker of the House of Representatives Peter Slipper. The judgment was handed down by Justice Rares on 12 December 2012.

The case was brought against Mr Slipper by former staffer James Ashby. Mr Ashby’s allegations included that he was the victim of unwelcome sexual advances, unwelcome sexual comments and alleged the improper use of Cabcharge vouchers by Mr Slipper. The Cabcharge allegations were withdrawn shortly before a preliminary hearing.

Mr Ashby sought orders that Mr Slipper undergo counselling, civil penalties be imposed on both Mr Slipper and the Commonwealth and that he be awarded compensation. The Commonwealth had previously reached settlement with Mr Ashby regarding its role in the proceedings.

Mr Slipper maintained that the proceeding was an abuse of process whose primary purpose was to vilify him publicly and advance the political aspirations of Mr Ashby. The case received extensive coverage in the media, forcing Mr Slipper to step aside from his role as Speaker.

In considering the allegations of sexual harassment made against Mr Slipper, the Court noted the following:

• “not every attempt to develop a relationship into a sexual one, that is unsuccessful, necessarily has the character of sexual harassment”;
• Mr Ashby was generally not afraid to stand up to Mr Slipper or put him in “his place”. This suggested Mr Ashby had not fallen victim to a “power differential” regarding the alleged sexual advances;
• text messages sent by Mr Ashby to friends showing no sign of emotional trauma, but appeared to show Mr Ashby considering the impact of releasing the contents of the exchanges with Mr Slipper to the media; and
• contact with Mr Slipper’s political opponents regarding the allegations.

In concluding that the application amounted to an abuse of process, the Court found that:

• the Cabcharge allegations were without a proper basis or supporting evidence and were included to damage Mr Slipper’s reputation;
• the failure to seek alternative remedies by Mr Ashby was further evidence of his desire to vilify Mr Slipper in a public arena;
• the originating application was used for the predominant purpose of causing significant public, reputational and political damage to Mr Slipper; and
• the charges in general were made with the aim of advancing the interest of the LNP and Mal Brough.

The Court took the unusual step of awarding costs against Mr Ashby in the “no costs” jurisdiction of the Fair Work Act. The Court relied on the provision in the Act that allows for a costs order against a party that institutes proceedings “without reasonable cause”.

So what are the implications for business? Following a number of high profile sexual harassment cases, this judgement reinforces the unwillingness of the Judiciary to entertain cases brought for collateral purposes. The Federal Court was prepared to strike out the application in light of Mr Ashby’s apparent desire to use the proceedings to cause damage to Mr Slipper and advance the aspirations of his rival. The decision was made despite the fact that the text messages, on their face, appeared to many to be inappropriate in an employment context.

Notwithstanding the striking out of Mr Ashby’s claim, this case generally highlights the significant damage that can be caused where employees treat their colleagues inappropriately in the workplace. Although Mr Ashby’s application has been struck out with costs, both Mr Slipper and the Commonwealth have already endured substantial adverse publicity in the course of this proceeding. The best approach for employers continues to be preventing such incidents before they happen, through adequate training and comprehensive workplace policies.

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Santa Clause and Workplace Laws: how to avoid Christmas claims

As work winds down for the year and we look forward to the annual office Christmas party, it is timely to remind employers and employees of their obligations under workplace laws. Key obligations include an employer’s duty to keep employees safe and provide a workplace free from sexual harassment and discriminatory conduct.

The Christmas Party

Your employees have worked hard and deserve a chance to let their hair down. You’ve arranged a terrific party either in the office or at a local venue. Things you should be aware of are that employers have a duty of care to protect their employees from harm both in OHS legislation and at common law.

This may be from physical harm caused by an unsafe work environment or equipment, or psychological harm caused by discriminatory or harassing conduct.

Your OHS obligations may extend beyond ordinary business hours, including at a work-organized function, in the office after-hours, or even preventing an inebriated employee from operating a motor vehicle after the function.

An employer may be vicariously liable for harmful acts of an employee including sexually harassing or discriminatory conduct. These issues are particularly topical during the festive season when alcohol-fuelled revelry leads to common complaints of: unwelcome touching, dancing or embracing; inappropriate comments or conversations relating to appearance and sexual activity; and derogatory comments relating to personal characteristics including race or age.

Be the Grinch

Rather than greeting the New Year with workplace Christmas claims, TressCox suggests you take the following precautions:

• circulate an email to staff setting out expectations and information about the Christmas party;
• make sure your employees are up-to-date with your policies on anti-discrimination, harassment, social media and disciplinary procedures prior to the Christmas party;
• in particular, employees should be aware that the standard of conduct expected in ordinary business hours may continue to apply at an out-of-hours Christmas party and beyond, and that out-of-hours conduct which has a sufficient connection to their employment may be grounds for disciplinary procedures, including termination;
• encourage staff to consume alcohol responsibly, consider avoiding hard liquors and have plenty of food available;
• have fixed start and end times and note that the company is not responsible for conduct after that time.

Make sure the New Year does not bring a flood of claims to your workplace. If your workplace does not have policies relating to standards of conduct, sexual harassment, discrimination or social media use, we strongly suggest you speak with a workplace relations specialist. Recent developments in case law demonstrate that failure to implement these policies may mean that your rights in respect of disciplining employees are limited.

TressCox Lawyers can provide advice in relation to workplace conduct and claims, and assist in preparing workplace policies. Please contact TressCox Employment and Industrial Relations Partner, Nicholas Duggal.

Post by Nick Duggal and Elizabeth Aitken.

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