An Article in BRW

When Qantas invited its Twitter followers to describe a luxury inflight experience to win a gift pack, the airline presumably was seeking to repair relations strained from its grounding of the entire fleet a few weeks earlier in response to a labour dispute.

Instead it faced an almighty backlash. Within hours, thousands of angry and unimpressed customers took to the social media site to voice their views. Responses ranged from “Getting from A to B without the plane being grounded or an engine catching fire” to “More than 3 mins notice that the whole service has been grounded #QantasLuxury” to “#QantasLuxury is a massive executive bonus while your workers starve and your former customers choke”…..

To read the rest of the article go to http://www.brw.com.au/p/sections/professions/more_than_social_xSkeSQBU5dohjJWFCXQIbN

…… Blands Law general manager Vivienne Storey, says it’s smarter to embrace the technology and set the terms for its use with a tailored policy than to ban it.

“This will enable your staff to freely participate in social media but also remain clear and informed about what is acceptable on these platforms,” Storey says. “Social media is the tool. If employees are time wasting on social media, they’d be time-wasting anyway.”

Investing time and resources to ensure the policy is implemented effectively is the best course of action. “Implementation is crucial, it’s more important than the policy in some ways,” Storey says. “Employees need to have a thorough understanding of the contents of the policy and the ramifications for breaches if it is to be successful.”

Law Firm Helping Companies Manage Social Media Risk

In an historic first in Australia, a law firm (BlandsLaw)has developed a suite of social media policy products, designed to assist companies and suppliers manage their social media risk. As BlandsLaw has extensive expertise in workplace and commercial law and is an active user of social media, they are well placed to advise companies on the many aspects of social media.

“I would call us a ‘social’ law firm” says General Manager, Vivienne Storey. “Meaning that social media is integrated into the way we do business, not just used as an add on or marketing afterthought.”

Australians are among the most avid consumers of social media worldwide with nearly 11 million users on Facebook as of December 2011(socialmedianews.com.au). And it’s not just about sharing photos and status updates with friends. Businesses are increasingly using social media to engage with customers. LinkedIn Australia, the professional social networking site, now has over two million members.

With an increasing number of cases relating to social media in the courts, this suite of social media policy products is a timely resource for employers. Implementing a social media policy helps ensure employers are across the potential risks faced with the increasing use of social media in the workplace.

Postings on Facebook and the general use of social networking sites by individuals to display their displeasure with employers, employees and coworkers are becoming common. Nearly every business is affected by it. Even a business that doesn’t make use of social media for recruiting or branding purposes can be affected by what others post about it, including their own employees. And unless employees have clear guidance to tell them what type of social media posting is acceptable and what is not, they may think they have free reign to post whatever they want, including information about the company.

• Some of the risks companies face include:
• Leaking of confidential information (often inadvertently)
• Bringing the company into disrepute
• Potential unfair dismissal claims
• Public airings of employee grievances
• Ambiguity regarding ownership of social media accounts
• Adverse impact on brand reputation

The recent case where Fair Work Australia found against Linfox for an unfair dismissal case, where an employee was making disparaging remarks about his employer on Facebook, further highlights the need to have a well thought out social media policy that employees are trained on. Policies should be comprehensive and tailored to the work place in order to be relied upon in a court case. “Additionally, a strategically executed social media policy can be an invaluable training resource to ensure employees understand the social media medium and it’s inherent risks”, says Vivienne.

The social media policy products have been separately branded under the MySocialPolicy identity and more detailed information can be found at http://mysocialpolicy.com.au

Press Contact

Vivienne Storey

General Manager

BlandsLaw

Tel: 61 2 98055600

www.blandslaw.com.au

www.mysocialpolicy.com.au ]]> http://blandslaw.com.au/media/law-firm-helping-companies-manage-social-media-risk/feed/ 0 http://blandslaw.com.au/media/using-social-media-know-your-legal-risks/ http://blandslaw.com.au/media/using-social-media-know-your-legal-risks/#comments Tue, 24 Jan 2012 10:13:02 +0000 admin http://blandslaw.com.au/?p=1047

An Article in  the SMH MySmallBusiness - Using social media? Know your legal risks

If one of your employees posted a dodgy comment on Facebook, or a customer tweeted a false claim against your business, would you know your legal rights?

The benefits of social media are becoming increasingly obvious to many SMEs, but the medium comes with its own array of risks – unless you develop a robust media policy and thorough staff training, experts say……

Reputation is everything

Vivienne Storey, general manager of law firm BlandsLaw, agrees that staff training is key to mitigating not only legal risks, but also the risk of damaging or ruining a business’ reputation.

“Social media is just another tool – and just like driving a car, you need rules to make it safe to use,” says Storey.

“Businesses have to understand that social media is a very public medium and that what’s said on social media platforms is permanent. Smart companies educate their staff about this and once people understand that, there’s usually a shift in the way it’s used.”

Storey says it’s essential for every business to develop a social media policy and highlight privacy and confidentiality issues to staff.

“As the laws in this area are still developing, it’s important to have an ongoing discussion about what the company’s policy is,” she says.

Storey uses BlandsLaw’s own social media policy as an example.

“Our policy is very free. We allow staff to access social media at any time during work hours and everyone here is allowed to talk on behalf of the organisation and about the organisation. But there are only six of us in the firm. If you’re a larger business, you probably don’t want everyone to talk on behalf of the business,” she says.

“Social media is just a tool, but it is a high risk, high benefit tool. What’s important is trying to help people understand how to manage those risks through education and clear policies.”

Personal/Carers, Compassionate & Community Service Leave.

1. Personal or Carers Leave 

Background and eligibility

The National Employment Standards (NES) details the entitlements to personal and carers leave. Paid personal or carers leave is the correct terminology for the phrase ‘sick leave’. All employees (other than casuals) are entitled to paid personal leave or paid carer’s leave, of 10 days per year. The entitlement to paid personal/carers leave accrues from year to year. Paid personal/carers leave is leave that is provided for an employee if, due to their own personal circumstances, they are sick or injured.

Carers leave is available to employees if they need to provide care or support to a member of their immediate family or household. The Fair Work Act 2009 (Cth) sets out who qualifies as a member of an employee’s immediate family. This definition encompasses a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of an employee; or a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

Unpaid personal/carers leave is an entitlement to 2 days leave for each instance, which an employee can take when a member of their immediate family or household requires care or support due to illness, injury or an unexpected emergency. This type of unpaid carers leave can be taken in one continuous period, or broken up, for example over four half days, to share caring with another person. The entitlement to unpaid carers leave is available to all employees, including casual employees.

Accrual of Paid Personal/Carers Leave.  

Paid personal/carers leave is accrued on a yearly basis. It accumulates from year to year and accrues on a pro-rata basis for periods of less than a year. When an eligible employee takes paid annual leave or paid personal or carers leave, the personal/carers leave owing to them will continue to accrue. Unless provided for specifically in an award, personal or carers leave will not accrue whilst an employee is on any form of unpaid leave.

Notice and Evidence.

Employees need to give their employer notice for any periods that the employee proposes to take as personal/carers leave. This notice must be given as soon as is practicable. In relation to the evidence required, most awards will stipulate the provisions relating to the type of supporting evidence that must be supplied by an employee taking personal/carers leave, or refer to the evidence requirements as set out in the National Employment Standards (NES).  When an award refers back to the NES, s107 of the Fair Work Act 2009 (Cth) outlines the notice and evidence requirements in relation to personal/carers leave. This section states that the employer can request evidence to confirm the need for personal/carers leave.

Payment.

Payment of personal leave is made on the basis of the employees base rate of pay for the ordinary hours that an employee would have worked during the period that they take off. A base rate of pay does not include incentive payments and bonuses, loadings, monetary allowances, overtime or penalty rates or other separately identifiable amounts.

Termination and cashing out.

Paid personal/carers leave is not paid upon termination. However, some individuals and organisations choose to make arrangements to ‘cash out’ their paid personal or carers leave to reduce the balance owing to employees. This is permissible for employees that are covered by an award or workplace agreement (such as an Australian Workplace Agreement (AWA) or an Enterprise Agreement (EA)), providing the employee freely agrees, and in the following circumstances:

• the award or agreement that covers the employee allows for the practice, and
• there is an agreement in writing in each instance of ‘cashing out’, and
• the employee retains a balance of 15 days personal or carers leave, and
• the employee is paid the same amount that they would have been paid had they taken the leave in the usual manner.

Transferring employment or business.

A transfer of employment occurs when an employee moves from one employer (the old employer) to another employer (the new employer) within three months of a transfer of business and performs substantially the same work for the new employer as they performed for the old employer.

A transfer of employment can also occur where an employee moves from one employer (the old employer) to another employer (the new employer) who is an associated entity of the old employer within a specified time frame of ending employment with the old employer (this time frame may vary state by state).

A transfer of business can occur where one of the following connections between the old employer and the new employer exists:

• a transfer of assets,

• outsourcing,

• insourcing, or

• where the two employers are associated entities.

When there is a transfer of employment, the period of service with the old employer will generally count as service with the new employer, and the employee will keep any accrued personal or carers leave that they had with the old employer.

2. Compassionate Leave.

Background and Eligibility.

Personal/carers leave should not be confused with compassionate leave. Paid compassionate leave is available to all employees, except casuals. It is a period of leave that can be granted for an employee when an immediate family or household member sustains an injury that is considered life threatening, or when an immediate family or household member dies.

The entitlement to compassionate leave is for a period of two days for each occasion that an employee is eligible. It can be taken as two separate or continuous days, or as otherwise agreed to between the employer and employee.

Unpaid compassionate leave is available for any eligible casual employee providing they meet the criteria in relation to an immediate family or household member sustaining a life threatening injury or dying.

Accrual of Compassionate Leave.

Compassionate leave does not accrue as it is granted for each occasion in the circumstances outlined above.

Notice and Evidence.

The notice and evidence requirements for taking compassionate leave are the same as those required in relation to personal and carers leave. Evidence may be requested by the employer to confirm that the compassionate leave is taken for a permissible occasion.

Termination and Cashing Out.

As compassionate leave is taken on an each occasion basis and is not accrued, there are no payments made in relation to compassionate leave upon termination, and no cashing out options available.

3. Community Service Leave

Community service leave is a form of miscellaneous leave that some employees may be eligible for when participating in a community service activity. These types of activities include jury service, voluntary emergency management activities or some other activity that may be prescribed by various regulations. Notice must be given to employers by the employee as soon as practicable regarding leave proposed to be taken under these circumstances and evidence may be required by the employer to support such leave taken. This type of leave is unpaid, except for jury service leave, when the first 10 days are paid. The payments made to any employee for jury service leave is a form of ‘make up’ pay, that is, the employer pays the difference, if any, between what the employees base rate of pay is, and any jury service pay that the employee receives whilst attending jury service.

Points for Employers.

• Have a thorough understanding of the personal/carers, compassionate and community service leave entitlements for your employees. Further details can be found in the National Employment Standards (NES) contained within the Fair Work Act 2009 (Cth), this Standard must be adhered to.
• Employers must keep up to date records on the amount of leave owing to employees. Fair Work Australia requires that those records show the leave taken, if any, and the balance of the employees entitlement to that leave. The employer can be issued with an infringement notice for not keeping these records.
• Understand what the termination payments or cashing out provisions in relation personal/carers leave may be.
• Make it clear to employees what the evidence requirements are for employees when taking personal/carers, compassionate or community service leave.
• If in doubt, seek help from a professional as to how the NES, and particularly the leave provisions apply to you and your employees.

Author: Danica Leys

For more information, please contact us at enquiries@blandslaw.com.au

It is intended as a guide only and does not replace specific legal advice.

Recent FWA Decision Stresses the Importance of a Social Media Policy.

A decision handed down on Monday 19 December by FWA has once again shown the need for organisations to have a social media policy in place. In this case a former Linfox employee was seeking reinstatement to his position after being terminated for comments made on his Facebook page. Commissioner Roberts commented on the need for a social media policy when, whilst lamenting the fact that Linfox did not have one, he commented that:

“In the current electronic age, this is not sufficient and many large companies have published detailed social media polices and taken pans to acquaint their employees with those policies.”

In this case, the employee, Mr Stutsel, was terminated after an investigation into certain comments that were made on his Facebook page. Mr Stutsel was employed by Linfox as a truck driver and had been with the company for approximately 22 years. During that time his employment record was virtually blemish-free, with no disciplinary matters ever addressed with him. Prior to his termination, his wife and daughter set up a Facebook account for him, which he had been using fairly frequently. He believed that his postings on Facebook were private, as that is what he was told by his wife and daughter, and stated that he did not know how to check and change his privacy settings anyway.

As it turned out, his Facebook wall was not as private as he believed, and it came to light that various comments, later claimed to be derogatory and offensive in nature, were seen by other employees. In short, these comments concerned a few Linfox employees and took place over an extended period of time.  Linfox conducted an investigation and terminated him due to the nature of the comments made

The Commissioner ultimately reinstated Mr Stutsel and also awarded him compensation for the difference in his pay for the period that he was not employed by Linfox. In making his decision, the Commissioner noted that since Linfox had no social media policy in place, it was hard for them to be able to demonstrate that they had fully educated employees on what the accepted standards of behaviour may be. The Commissioner further found that the nature of the comments made, whilst childish and immature, were more in the flavour of a conversation taking place in a pub or café, although admitting that it was in an electronic format.

Lessons for Employers

The lessons for employers are:

• To ensure they have a comprehensive social media policy, tailored to their work place,  to rely on in case something like this occurs (see our recent article “Social Media and Unfair Dismissal Guide for Employers” .
• Not only that, but employers need to be able to demonstrate that the employees are aware of the contents of the social media policy,
• and that there is a clear process in place for what happens when a breach of the policy occurs.

For further information and a full description of our social media law services, including policy development and implementation, you can Social Media Policy  on our website .

Author:   BlandsLaw Team

For more information, please contact us at enquiries@blandslaw.com.au

It is intended as a guide only and does not replace specific legal advice.

Wednesday, 21 December 2011

MINISTER NAMES FINALISTS IN NSW RURAL WOMEN’S AWARDS

A goat farmer specialising in skin care products and a former agronomist who has established a unique social media platform have been named as finalists in the NSW Rural Women’s Awards,

Minister for Primary Industries, Katrina Hodgkinson said today.

Corinne Annetts from Uralla in the New England district and Danica Leys from West Pymble have been selected for their contribution to rural industries to compete in the 2012 Rural Industries Research & Development Corporation (RIRDC) Rural Women’s Award.

“Both Corinne and Danica share two great success stories and demonstrate that hard work, fresh ideas, and resourcefulness can make a real difference to our primary industries and small businesses in regional areas,” Ms Hodgkinson said.

“Our NSW finalists were chosen because they are both innovative and have utilised the latest technology to increase opportunities in their enterprises, which will only be of great benefit rural communities.”

Corinne Annetts

• Has established her own goat stud enterprise at Uralla which produces skin care products made from goat’s milk which are sold to local and international customers.
• These products have proved successful in helping people who suffer from eczema, dermatitis, psoriasis and scarring.
• She also produces goat’s cheese and plans to expand her cheese business to provide local produce for restaurants, cafes, events and functions.

Danica Leys

• Has established a social media forum, AgChatOz, which provides an opportunity for people involved in the agricultural industry to make valuable connections, share ideas in weekly discussions and promote agriculture to a wider audience.
• Danica was formerly an agronomist and worked in Narrabri and Dubbo and now works as a lawyer specialising in agribusiness.
• She plans to expand AgChatOz to increase its participation, streamline its social media platform and be involved in seminars, field days and workshops across Australia.

The winner of the 2012 Rural Industries Research & Development Corporation (RIRDC) Rural Women’s Award will receive a bursary of $10,000, and both the winner and runner-up will participate in the RIRDC Australian Institute of Company Directors’ course.

The Rural Women’s Awards are coordinated by NSW Rural Women’s Network through the NSW Department of Primary Industries.

The winner will be announced on 21 February 2012 at Parliament House, Sydney.

Click To Download The Minister’s Media Release

Minister names finalists in NSW Rural Women’s Award ]]> http://blandslaw.com.au/in-the-media/minister-names-finalists-in-nsw-rural-womens-award/feed/ 0 http://blandslaw.com.au/articles/employee-leave-entitlements/legal-considerations-for-employers-during-the-silly-season/ http://blandslaw.com.au/articles/employee-leave-entitlements/legal-considerations-for-employers-during-the-silly-season/#comments Wed, 07 Dec 2011 05:32:21 +0000 admin http://blandslaw.com.au/?p=979

Every year, around this time, we get questions about employer’s obligations to their employees, particularly in the context of workplace functions. There are many parties, celebrations, after-work drinks and festivities for employers and employees to attend, and many of them are connected to work. As such, employers should be aware of, and be prepared for, the potential legal risks and liabilities that may arise.

Attendance at a work function, be it a Christmas party or some other social function, can be considered conduct that is “in the course of employment” and therefore, the employer has all the same legal obligations to it employees as it would usually have.

This notion has been considered in various cases over the years, including workers compensation decisions. For example, in the case of Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365, an employee drove her work vehicle to a Christmas party, consumed alcohol and drove home at 2am with a blood alcohol level of 0.124. She was asked by her employer during the night not to drive due to her intoxication. She ignored this direction and had an accident whilst driving home and sustained significant injuries. The employee lodged a workers compensation claim, which was denied by the insurer, but then the arbitral decision upheld that her injuries were ‘during the course of employment’. However, this decision was appealed and the worker was found to have been acting outside the course of employment as she was driving a company motor vehicle and disobeyed the direction of her employer. However, had the employer not given this direction to outcome may have been different.

Another high profile matter was that of Carlie Streeter v Telstra Corporation [2007] AIRC 679 in which Ms Streeter successfully challenged her dismissal by Telstra after they alleged that she sexually harassed another female employee following a work Christmas party. Again, the case tested the notion of what is considered ‘in the course of employment’.

The main legal risks for employers to be mindful of during the party season are potential sexual harassment incidences, followed by O,H & S risks,  workers compensation claims and also the issue of negligence and discrimination.

To try and minimise the impact of these risks, workplaces should consider the introduction of a social functions policy. A policy such as this should be rolled out to employees well before any function goes ahead. Employees need to read and understand the policy fully, and it can be a wise idea to cover off on the policy and the corresponding expectations of behaviour at a staff meeting.

When discussing a workplace function at any meeting and potentially introducing a policy, the following points need to be made clear to employees:

•  Employees should adhere to the expectations of behaviour that the Company sets out and adhere to the provisions of other applicable workplace policies.
• Employees should consume alcohol responsibly, and not drive home if they have been consuming alcohol at a workplace function.
• Employees should take steps to organise alternative transport home before the function begins if they intend to consume alcohol at a function.
• Employees should be stewards of their fellow employees welfare, and take reasonable steps to provide a safe environment, free from harassment and discrimination, and help arrange transport home for those employees who may have consume excessive amounts of alcohol.

When employers are considering organising a workplace function they should consider the following:

•  Setting a clear start and finish time to the function,
•  Setting a reasonable limit on the amount of alcohol available,
• Ensure that obligations in relation to the Responsible Service of Alcohol (RSA) are being met. This means have servers that have the RS accreditation and making sure there is no service of alcoholic beverages to intoxicated persons,
• Considering what public transport options might be available when selecting a venue for a function,
• Ensuring that non-alcoholic options are available,
• Ensuring that there are safe transport options home for those who have drunk too much (eg. CabCharge vouchers),
• Making  sure there is food served,
• Ensure that no alcohol is provided to employees under the age of 18 years,
• Be alert to harassment and other potential forms of abuse or discrimination,
• Consider the diversity and cross cultural backgrounds of employees when planning an event, and ensure that no particular person or group is excluded or isolated from an event,
• If gifts are to be exchanged, provide guidelines on the appropriateness of such gifts before the event.

Authors: Andrew Bland, Principal and Danica Leys, Solicitor

For more information on the provision of workplace policies, please contact us at enquiries@blandslaw.com.au.

This article is intended as a guide only and does not replace specific legal advice.

Andrew Bland was his opinion for an article  ”Would You Tell A Prospective Employer If You Were Pregnant?” for Marie Claire

You’re interviewing for your dream job…you’re three months pregnant. Do you tell?

The law says an employer has no right to know you’re pregnant at the time of an interview. But what’s the cost of keeping quiet?

Nina Mandrake* maintained her composure as her potential new boss grilled her about her management experience. She answered most of the questions easily: of course she enjoyed mentoring juniors, attention to detail was definitely one of her strengths, and here were some strong examples of crises she had averted in her previous roles. To an outsider she looked confident, professional and more than qualified for the job on offer. ….

To read the rest of the article go to http://au.lifestyle.yahoo.com/marie-claire/features/world/article/-/12737856/would-you-tell-a-prospective-employer-if-you-were-pregnant/

…….Workplace lawyer Andrew Bland says Nina was lucky. An unsympathetic boss who realised Nina knew she was pregnant during the hiring process may have found a loophole that allowed him to fire her. “Were any questions asked during the interview about length of employment, or about events that the applicant may have been required for in nine, 10 months time? Or does the job require heavy lifting or flying or anything else that may injure a pregnant employee?” he asks, rhetorically.

The harmonisation of occupational health and safety laws was first raised by the Whitlam Government in 1974. Over the last 25 years there have been ongoing efforts to nationalise OH&sS state based requirements and obligations.

The national OH&S scheme is expected to come into operation on 1 January 2012 as a result of each state, territory and the Commonwealth committing to the harmonisation process. Seven out of nine jurisdictions have now approved the model work health and safety regulations and codes of practice and have committed to meeting the COAG deadline of 1 January 2012.   The two remaining states, Victoria and Western Australia are yet to commit.

The Model Work Health and Safety Act and Model Work Health and Safety Regulations represent a fundamental shift in the traditional regulation of OH&S in Australia. By committing to the harmonisation process, each jurisdiction will face some changes in their current OH&S arrangements. With 1 January 2012 fast approaching, now is the time to ensure that your business is abreast and ready for the OH&S changes.

The Work Health and Safety (WHS) model

The model WHS Act sets out work health and safety responsibilities. The WHS Regulations expand on the requirements of the Act, with details of how certain sections of the Act are to be implemented, and specific direction on how to meet those obligations.

The WHS Codes of Practice provide guidance on achieving the standard of health and safety that can apply to a profession, trade or industry. They provide detailed information on particular areas of an act or regulation, and outline activities, actions, technical requirements, responsibilities, and responses to events or conditions within a workplace.

Key Changes

In most cases, the national WHS Act draws on existing state OH&S requirements.  However, it also introduces some new additions or clarifications.  Some of the main changes included in the model legislation are:

• Person conducting a business or undertaking (PCBU)

An employer will become known as a ‘person conducting a business or undertaking’. A PCBU includes an employer, corporation, association, partnership, sole trader and certain volunteer organisations. For example, a volunteer organisation that employs a person to carry out work is a PCBU. But a volunteer organisation that operates with volunteers and does not employ anyone is not a PCBU.

A PCBU has the primary duty of care for workplace health and safety.

A person is not a PCBU if they are:

• Engaged solely as a worker or an officer;
• An elected member of a local authority; or
• A volunteer association where no-one is paid to carry out work for the association.

Broader definition of “worker” 

The WHS Act recognises the changing choice of work options and provides a broader definition of ‘worker’ and work environments. Certain volunteers will be included as a worker. A worker will also include labour hire staff, apprentices, work experience students, subcontractors, and contractors.

A sole trader who is a PCBU and carries out work for another business (PCBU) is a also a worker for that PCBU.

Due diligence 

The WHS Act clarifies that the officers of corporations have an obligation to exercise due diligence to ensure the company’s duty of care.  Directors and officers will have a positive duty to ensure their businesses comply with their safety obligations under new occupational, health and safety laws.

Under the new laws, officers could be personally liable for up to $600,000 in fines and/or 5 years’ imprisonment if they recklessly breach their duty and it results in, or exposes a person to, serious harm.

•  Union rights 

Unions will lose the power to prosecute for an OH&S offence (currently allowed in NSW). Unions will have the right to enter any workplace to:

•  Investigate suspected breaches of the OH&S Act or regulations;
•  Consult with and provide advice to workers on OH&S issues;
•  Consult with the person in control of a workplace on OH&S issues; and
•  Health and safety representatives will have the power to direct work to cease where they feel the work will pose an immediate threat to any person. They can also issue provisional improvement notices. These powers would be new to New South Wales and Tasmania.

OH&S consultation 

Clearer guidelines will be provided on employee consultation requirements. This includes the need to consult when:

• Identifying hazards and assessing the risks of work performed;
• Making decisions about ways to eliminate or control those risks;
• Proposing changes that may directly affect the health and safety of workers; and
• Making decisions regarding OH&S procedures.

Incident notification 

Incident notification requirements will be uniform across all states with the employer having responsibility to notify the regulator immediately when there is a fatality, serious injury, serious illness or a dangerous incident.  

• Role of inspectors and regulators 

The role of inspectors and regulators will be nationally consistent. Inspectors will be able to:

• Investigate suspected breaches of OH&S legislation;
• Issue infringement notices, improvement notices and prohibition notices; and
• Provide advice and assist in the resolution of issues at workplaces.

A regulator will be able to:

• Seek an injunction when there is an ongoing breach of a prohibition notice; and
• Compel compliance with an improvement notice after the time period has expired.

Penalties 

It is proposed that there will be four levels of penalties for breaches of the regulations, commensurate with the significance of the breach.  These levels are:

• Offences that are ‘linked’ to the WHS Act, specifically to either the general duties or the authorisations provisions, with penalties up to:
• o $3 million for reckless endangerment by a corporation, and
• o $1.5 million for breaches giving rise to a risk of death or serious injury.
• Stand-alone offences that are specified in the WHS Regulations as shown below:

Provision will also be made for infringement notices to be issued with penalties set at between $1,200 and $3,600 for a corporation.

Compliance with codes of practice will not be mandatory, but they may be used in proceedings to demonstrate what was known about hazards, risks and risk controls.

The Industrial Relations Court will no longer have jurisdiction to hear safety matters. Matters will be dealt with by the Local Court (where the maximum penalty may be imposed is A$50,000) and the District Court.

Transitional Arrangements

All jurisdictions have agreed to a set of principles which will ensure that transitional arrangements are consistent across Australia, although some variations will be inevitable as each jurisdiction will be transitioning from a different work health and safety system.

Preparing for the transition 

In order to prepare for the transition to the new harmonisation laws, we suggest employers should consider their practices with respect to:

• Current OH&S practices – assess and evaluate these processes to determine WHS Act compliance and in particular the adequacy of officers’ due diligence practices.
• Current policies and procedures – consider and assess the appropriateness of your current policies and procedures (such as consultation arrangements, election of health and safety representatives, training) to ensure that these are complaint and adequate.
• Transitional preparations – Consider the possibility of your existing projects continuing past the implementation date of 1 January  2012 and whether the transitional provisions will apply to your business arrangements.
• Senior managers and directors – determine who in your organisation is an ‘officer’ (an ‘officer’ not only includes company directors, but also includes partners and the most senior operational staff, or the key persons responsible for ensuring positive health and safety practice within the organisation).
• Monitor key developments – Keep track of what is happening in jurisdictions in which you organisation operates noting that at this stage, Victoria and Western Australia are yet to commit.

As the year draws to a close, it will be important to have considered the above matters given the new year commencement date.

Author: Jo-Anne Chong

For more information, please contact us at enquiries@blandslaw.com.au

This article is intended as a guide only and does not replace specific legal advice.

Getting It Right – Employee Leave Entitlements on entry, exit and during the course of employment

Welcome to our ‘Getting It Right’ series. This is the first of our series of articles addressing employee leave and their entitlements upon commencing employment, during employment, resignation and termination.

This week we are looking at annual leave and further in the series, we will be covering personal leave, parental leave, long service leave, leave without pay and other special leave.

“Getting It Right” means being aware of an employee’s leave entitlements, knowing how and when such leave can be taken and what is payable when leave is taken or the employment relationship comes to an end. This paper aims to clarify and consolidate your thoughts on annual leave.

Annual Leave  

Since 1973, a four (4) week annual leave period for the benefit of an employee has been standard practice, increasing from the initial one (1) week annual leave standard introduced in 1941. Today, annual leave entitlements now form part of the National Employment Standards (NES) providing a minimum safety net of employee entitlements.

Under the NES, all employees (except casual employees) get paid annual leave based on their ordinary hours of work. An employee is entitled to:

•  4 weeks annual leave for each 12 months of service; or
•  5 weeks annual leave for some shift workers for each 12 months of service.

To qualify for the shift work entitlement of 5 weeks annual leave, an employee must either be classified as a shift worker under an award or agreement, or if not covered by an award or agreement, they must meet all of the following criteria:

• They are employed in an enterprise where shifts are continuously rostered 24 hours a day for seven days a week;
• They are regularly rostered to work those shifts; and
• They regularly work on Sundays and public holidays.

An annual leave entitlement that comes from an award or agreement may be different, but cannot be less than the NES entitlement.

Casual employees are excluded from annual leave entitlements on the basis that casual loading is intended to compensate them for such entitlements together with paid personal leave.

Annual Leave Accrual

Annual Leave is based on the number of hours worked. For example, a full time employee working 38 hours per week accrues annual leave at the rate of 2.92 hours per week. A part-time employee working 15 hours per week will accrue1.15 hours of annual leave per week.

An employee’s entitlement to annual leave under the NES accrues progressively during a year of service according to their ordinary hours of work and accumulates from year to year.

Leave continues to accumulate while employees are taking paid annual leave and paid personal leave. However, annual leave does not normally accumulate during periods of unpaid leave, such as unpaid parental leave, or unpaid authorised absences.

As long as an employer can determine an employee’s entitlement at any time they request leave, or their employment ends, it is generally sufficient to accrue it on any regular basis, unless an applicable award or agreement specifies a particular accrual method.

The Fair Work Ombudsman suggest that an employer should record the accrual of leave not less than monthly (or more frequently if required by the applicable award or agreement).

Taking Annual Leave

An employee can take paid annual leave when their employer has agreed to their request for leave. The employer must not unreasonably refuse to agree to a request to take annual leave.

There’s no minimum or maximum amount of accrued annual leave that must be taken at a time.

An award or agreement may allow for an employee to be directed to take annual leave in certain circumstances, for example:

• During a period of shut down (such as between Christmas and New Year)
• If the employee has an excessive accumulated annual leave balance.

However, the employer’s requirement or direction to take leave must be reasonable, taking into account factors such as:

• The needs of the employee and the employer’s business;
• Any agreed arrangement with the employee;
• Custom and practice of the business;
• Timing of the direction or requirement to take leave; and
• Reasonableness of the period of notice given.

Annual leave falling on a public holiday is to be paid on the basis of the public holiday and is not considered to be annual leave or to be deducted from an employee’s annual leave balance.

Annual Leave Payments during the course of employment

Under the NES, an employer must as a minimum, pay annual leave at an employee’s base rate of pay for their ordinary hours during the period of leave.

An employee’s base rate of pay (other than a pieceworker) is the rate of pay payable to an employee for his or her ordinary hours of work, but not including any of the following:

• Incentive-based payments
• Bonuses
• Loadings
• Monetary allowances
• Overtime or penalty rates
• Any other separately identifiable amounts.

Awards and agreements may provide for annual leave to be paid at a higher rate than that required by the NES. For example this may include the payment of annual leave loading (usually 17.5%) in addition to the ordinary rate of pay.
Cashing Out Annual Leave Entitlements

Under the NES, for employees covered by an award or agreement, annual leave can be cashed out if the award or agreement allows it. Award or agreement free employees may also agree with their employer to cash out annual leave.

However, for all employees that agree to cash out annual leave, the following conditions apply:

• An employee must retain an entitlement to least four weeks paid annual leave;
• There is a separate agreement in writing on each occasion that leave is cashed out;
• An employer must not exert undue influence or undue pressure on an employee to agree to cash out an amount of annual leave; and
• An employee must be paid at least the full amount that would have been payable had the annual leave been taken.

These restrictions on cashing out are intended to safeguard employee entitlements to annual leave. Determinations seeking to limit cashing out provisions in enterprise agreements with respect to satisfying the ‘Better Off Overall Test’ (BOOT) have been overruled on the basis that legislative safeguards should be regarded as adequate.

Termination 

On termination of employment an employer must pay an employee for any untaken annual leave which has accrued.

Whilst annual leave loading is not a minimum entitlement, if an employee is entitled to annual leave and annual leave loading, then they must be paid out for both entitlements if their employment is terminated. This applies even if a clause in a modern award, agreement or contract expressly states that either entitlement is not payable.

This entitlement is based on the annual leave on termination provision in s.90 (2) of the Fair Work Act , 2009 which provides that a terminated employee with a period of untaken annual leave must be paid what they would have been paid if they had taken that period of leave.

The correct payment of annual leave entitlements on termination is important. In the event that an annual leave payment on termination is paid incorrectly, employers may be exposed to underpayment claims from employees who have not received payment of their correct annual leave entitlement of annual leave loading on termination. Underpayment claims may be brought up to six years after the claim arose, and may give rise to penalties of up to $33,000 per breach.

Transferring Employment

A ‘transfer of employment’ occurs when an employee moves from one employer (the old employer) to another employer (the new employer) within three months of a transfer of business and performs substantially the same work for the new employer as they performed for the old employer.

A transfer of employment can also occur where an employee moves from one employer (the old employer) to another employer (the new employer) who is an associated entity of the old employer within 3 months of ending employment with the old employer.

A transfer of business can occur where one of the following connections between the old employer and the new employer exists:

• A transfer of assets
• Outsourcing
• Insourcing
• Where the two employers are associated entities.

When there is a transfer of employment, the period of service with the old employer will generally count as service with the new employer, and the employee will keep any annual leave balance they had accrued with the old employer.

However, where the employers are not associated entities, the new employer can decide not to recognise an employee’s service in relation to annual leave with the old employer. In such cases, the old employer will be required to pay out the employee’s untaken accrued annual leave.

In Summary

Annual leave entitlements are generally straightforward. Notwithstanding, employers should ensure that in paying out an employee’s entitlements on termination inadvertent breaches of the Fair Work Act, 2009 do not occur.

Employers should also be mindful as to whether an employee has an entitlement under the NES that overrides or complements entitlements in a relevant award or agreement.

Follow this series next week with our paper on personal leave.

Author: Jo-Anne Chong

For more information, please contact us at enquiries@blandslaw.com.au

It is intended as a guide only and does not replace specific legal advice.

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