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Corporate whistleblowers to get better protection from 1 July 2019

From 1 July 2019 new whistleblower legislation comes into effect creating better protection for whistleblowers under the Corporations Act 2001(Cth), Taxation Administration Act 1953 (Cth), Banking Act 1959 (Cth) and Insurance Act 1973 (Cth).

The changes apply to current and former employees and suppliers of public companies or large proprietary companies[1] making disclosures about wrongdoing by the entity. The protections extend to disclosures by family members of employees or suppliers and the range of misconduct about which a disclosure may be made will also broadened.

However this does not mean that all persons or disclosures will be protected. Litigation in this area to date often involves attempts to invoke whistle-blower protection for matters that are better described as workplace disputes or “personal work-related grievances” that should properly be addressed within the workplace. The new laws preserve this distinction while increasing the protections for eligible persons who make a protected disclosure about a regulated entity. 

One such case is currently before the Federal Court[2] involving an ex-employee of the Commonwealth Bank of Australia who

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FWC announces a 3% wage increase - effective from 1 July 2019

The Fair Work Commission has released its 2019 Annual Minimum Wage Decision, awarding a 3% increase to the national minimum wage and award-reliant employees.

The FWC decision increases the national minimum wage to $740.80 – or $19.49 an hour. This constitutes an increase of $21.60 a week or 57 cents an hour.  All award rates of pay will increase by 3% with effect from the first pay period commencing on or after 1 July 2019.

The FWC panel stated that while business conditions have moderated from the high levels in early 2018, the forecast is for continued growth in the economy and strong performance in the labour market. The panel considered that its forecast provided an opportunity to improve the living standards of those relying on award rates and the minimum wage. Noting the disproportionately large number of women in this group, the panel (consisting of five men and two women) expressed a belief that an increase would assist in reducing the gender pay gap.   

It was acknowledged that

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Terminating employment during probation – why you should provide a reason - May 2019

Most employment contracts contain a probation clause stating that, during the probation period (usually 3 to 6 months from the employment commencement date), either party can terminate the employment by providing one week’s notice. Even if there is no probation clause, or no employment contract, a minimum employment period applies before an employee is eligible to make a claim for unfair dismissal.

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FWO cashed up to investigate and prosecute sham contract arrangements - April 2019

The Federal government has announced the Fair Work Ombudsman will receive $2.3 million each year for the next 4 years to establish a dedicated unit to address sham contracting.

While part of the objective is to increase education and encourage compliance, the unit will also dedicate funds to investigation of and litigation against employers who are participating in sham contractor arrangements.

Sham contractor arrangements refers to a situation where a worker is being engaged as a contractor but is in fact an employee. The effect of this is that the employer avoids its usual employment obligations such as paid leave, notice and redundancy.

It is well established that courts will look further than the written agreement between the parties to determine the true nature of the working relationship. Considerations including who has effective control of how and when the work is done, whether the worker performs work for others and whether the worker can refuse or delegate the work all form part of the assessment of the true nature of

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Employer liable for sexual harassment by employee - March 2019

The Victorian Civil and Administrative Tribunal recently heard a sexual harassment claim by an employee under the Equal Opportunity Act 2010 in which the employer was named as second respondent.[1] The complaint of sexual harassment was made out and the employee and employer were jointly ordered to pay damages of $130,000, with the employer ordered to pay an additional $20,000 in aggravated damages.

The employee’s claim was that she had been verbally and physically sexually harassed by a co-worker at the workplace on a number of occasions. She also claimed there was an incident when she was unwell at work and the employee in question was asked by the employer to drive her home where he again sexually harassed her.

The evidence was that the complainant had told the employer 3 days after the event that she had been sexually harassed by her co-worker. She then sent an email confirming her account of events.

After finding that sexual harassment had occurred, Judge Harbison referred to s.109 of the Act

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When can an employer require a medical examination - March 2019

Clearly employees are entitled to be absent on approved leave and to return to their role when the period of leave has expired. However, when the absence becomes long-term, often due to an accident or illness, employers can find themselves in the difficult situation of being unable or unwilling to keep the position open indefinitely, but unsure of their options around managing the employee.

 

 

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Understanding bullying and reasonable management action - February 2019

Informing employees of underperformance can be a difficult task for employers, particularly when employees don’t handle the feedback well. It is a common scenario that disgruntled employees retaliate by making a ‘bullying’ claim against their supervisors. The good news is that employers are well within their rights to implement processes to rectify poor performance to steer workers back on track. Provided that the steps taken by the employer constitute reasonable management action that has been carried out in a reasonable manner, the worker’s bullying claim will not succeed.

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How does the FWC determine unfair dismissal cases - February 2019

In a recent case,[1] the FWC has sent a reminder that it is “not incumbent on an employer to take any particular steps" when carrying out terminations. The appropriateness of the steps taken in each case will depend upon the circumstances of the situation. However, in dealing with unfair dismissal applications, the FWC relies on the Fair Work Act 2009 (“FWA”) to determine whether a dismissal is harsh, unjust or unreasonable.

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Employers more accountable for decisions about flexible work arrangements - November 2018

A new model term dealing with how an employee’s request for flexible working arrangements must be dealt with will be inserted into all modern awards from 1 December 2018.

The model term applies to a request by an employee for a change in working arrangements under section 65 of the Fair Work Act 2009 (“the Act”). The Act provides that an employer can only refuse a request on ‘reasonable business grounds’.

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FWO triumphs in its first racial discrimination prosecution - November 2018

The role of the Fair Work Ombudsman includes ensuring employers are compliant with Australian Workplace Laws and safeguarding the protection of vulnerable workers from exploitation. In addition to an already extensive list of powers, the FWO has jurisdiction to investigate claims of workplace discrimination on the basis of factors such as race, sex, age and pregnancy.

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Is it OK to sack your employees via phone, text or email - November 2018

In most circumstances, dismissals take place during pre- arranged face to face meetings between employers and employees.  Employers are required to afford procedural fairness, and this usually involves meeting with the employee to discuss the circumstances around the termination. In saying that, there are circumstances when an employer may validly terminate an employee through less traditional means, such as through a phone call or email.

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Determining whether your employees are award-free - October 2018

In a recent case before the FWC,[1] an appeal to quash the approval of the AAA Pet Resort Enterprise Agreement considered whether employees were covered by the Miscellaneous Award 2010 as opposed to being classified “award-free”. It was submitted that the pervious commissioner erred in finding that the employees were not covered by an award.

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Bizarre Facebook messenger conversation leads to surprising sacking - October 2018

It is well established that employers cannot decide to end the employment relationship at the drop of a hat. In most cases there must be a valid, sound, and defensible reason behind the dismissal, which is to be communicated to employees in the appropriate manner and in accordance with proper process.

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A casual approach to casuals could cost you - August 2018

We routinely deal with employer issues around casual employment. This is not surprising given the fact that there is no definition of a casual employee in the Fair Work Act, as well as the largely misunderstood notion of who, what and when a casual.  However, a recent decision of the Federal Court has introduced some additional - and costly - hazards into these murky waters.

The case concerns an employee engaged as a truck driver by a labour hire company.

The employee was engaged as a casual and was paid at a rate that included a casual loading paid in lieu of entitlements afforded to permanent employees – notice of termination, leave, etc.

The employee worked for around 4 years under this arrangement.

The employee claimed he was not a casual and was employed on a full time basis.

Despite a number of factors indicating against this, the Court found that the employee was not engaged as a casual, and he was therefore entitled to be paid for leave accrued

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The importance of policy communication and training - August 2018

In cases of an employee policy breach, courts have supported the principle that it is not enough for an employer to simply point towards the existence of a policy in an effort to justify disciplinary action. Generally speaking, policies are fruitless unless employers can demonstrate that employees have easy access to policy documents, that regular training is provided and that policies (and changes) are effectively communicated to all employees.

In a recent case before the FWC,[1] a longstanding employee of 17 years with a positive work-record was summarily dismissed for breaching his employer’s "zero tolerance" mobile phone policy, when the employee used his phone in what his employer considered a ‘food production area’. The next day, the employee was called into a meeting where he was instantly dismissed.

The employee claimed that the employer had already decided to terminate before the meeting, because it “wanted to make an example out of him”. He said that he was aware that mobile phones were not permitted in the food production area,

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FWC supports dismissal for lack of capacity - August 2018

Employers are within their rights to dismiss employees who lack the capacity to perform the inherent requirements of their role.  However, when questions concerning capacity arise, employers should ensure there is medical evidence to support their decision. Medical assessments can be relied upon for diagnosis of the employee’s condition, assessment of ability of the employee to perform the specific duties associated with the role, identification of modifications or adjustments that may be necessary and a possible timeframe for the employee to return to work.

In a recent case before the FWC,[1] a bus driver with substantial nerve pain and anxiety was placed on modified ‘light’ duties for a period of 16 months. Following careful review of countless capacity-to-work assessments, abandoned return-to-work plans, meetings and medical reports which indicated that the employees condition was unlikely to improve in the future, the company made the decision to terminate his employment due to restricted capacity.

The employee’s condition surfaced when he was driving a bus and experienced pain in his left wrist

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Employees keeping ‘hush hush’ during workplace investigations - August 2018

Maintaining confidentiality is an essential component of an effective and functional complaints process. Therefore, it is common for employers to require employees not to disclose information to others during workplace investigations in order to preserve the integrity of the investigation. This is important in protecting all parties concerned, including the complainant, the respondent and any witnesses who may be reluctant to come forward with critical information.

Employers should consider placing confidentiality clauses in their workplace documents, including contracts, policies and procedures, to prevent employees disclosing confidential information. During workplace investigations it is worthwhile reminding participants at the outset about their confidentiality obligations.

In a recent case before the FWC,[1] an employee was dismissed after she sent emails to her Westpac state manager which included factually incorrect information about her colleague (relating to an investigation into a bullying and harassment complaint she had previously made against her colleague). The investigation had concluded and many of the allegations were found to be unsubstantiated. It appeared that the employee sent the emails

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The Fair Work Act fights back to protect vulnerable workers - July 2018

Following the outbreak of the 7/11 underpayments scandal in 2016, the Australian Government responded to the controversy by introducing the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (“Bill”). In September last year the Bill passed through parliament, bringing with it a series of significant amendments to the Fair Work Act 2009 (“FWA”) designed to prevent the deliberate and systematic exploitation of vulnerable workers, such as migrants and those who work in the franchisee sector.

All employers, particularly franchisors and holding companies, should be aware of the changes and how they are likely to affect business operations. Those who breach the new laws can expect to face hefty penalties, along with the wrath of the all-powerful Fair Work Ombudsman (FWO), who does not take contraventions of Australian workplace law lightly. The FWA amendments include the following:

  1. Introducing higher penalties for ‘serious contravention’ of workplace laws

Employers who engage in ‘serious contraventions’ risk facing substantial financial penalties, which now stand at $126,000 per contravention for individuals and $630,000 for corporations. A

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Are you misclassifying your workers as Independent Contractors - July 2018

Failing to properly classify the employment relationship is a recurring issue. In a recent case[1], the Fair Work Commission (“FWC”) has shed some light on the distinction between employees and independent contractors and what is required to ensure procedural fairness when terminating labour hire agreements.

In this case, Audi Enterprises was a franchisee of Courier company Couriers Please. Two courier drivers who performed work for Audi Enterprises were let go after the host courier company found significant stock discrepancies in the deliveries that were designated to the drivers. The host courier company alleged that the two couriers stole a parcel containing $17,000 worth of cigarettes after viewing CCTV footage which showed the couriers taking the package.

The drivers were prohibited from attending the Couriers Please premises until an investigation into the alleged theft was completed by the Police. The exclusion clause in the Audi Enterprises and Couriers Please franchisee agreement specifically stated that “Drivers must be approved by Couriers Please... who may, in its absolute discretion, require

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