Recent claims against politician Barnaby Joyce show that sometimes an internal investigation into workplace sexual harassment is not the best idea. When sexual harassment or misconduct claims are made against an individual in an organisation, the natural reflex may be to deal with complaints internally (especially if the person is senior or high profile). However, the benefits of engaging an independent investigator can outweigh the seeming advantage of being able to fully control the matter internally.
Employees will not come forward and report troubling behaviour if they fear retaliation. There are a number of steps that employers can take to create an atmosphere of trust and candour, which will help to reassure employees that they can, and should, voice any concerns.
The Fair Work Ombudsman (FWO) has persuaded the Federal Circuit Court that the underpayment of two migrant employees by a Tasmanian hotel was deliberate, exploitative and discriminatory in its first racial discrimination prosecution under Part 3-1 of the Fair Work Act. The decision demonstrates the FWO's appetite to use all of the tools at its disposal to pursue employers which take advantage of employees.
The Modern Slavery Bill 2018 (NSW) has received assent, making the Modern Slavery Act 2018 (NSW) the first of its kind in Australia. The act addresses the findings and recommendations in the report on the inquiry into human trafficking in New South Wales, which left little to the government's imagination about the prevalence of modern slavery in New South Wales and throughout Australia.
The line between employee and contractor continues to be blurred in the gig economy. To avoid litigation, companies must determine how to classify workers. The Fair Work Ombudsman has launched legal proceedings against a food delivery business, Foodora, on the basis that it treats its workers as independent contractors rather than employees. While the gig economy awaits the outcome of the case, what should employers be doing in the meantime?
Visual contracts, in which an employment agreement is conveyed partially or wholly by pictures, are now a thing – but what are their benefits and risks? In addition to concerns over certainty and variation, there are a number of key issues that businesses should consider before getting out the watercolours to update their employment agreements.
The Fair Work Commission's Expert Panel recently issued its 2017-2018 Annual Wage Review decision. Among other things, the panel decided that it was appropriate to adjust modern award minimum wages. From the first full pay period on or after 1 July 2018, minimum weekly wages will increase by 3.5%, with commensurate increases in hourly rates on the basis of a 38-hour week.
Navigating the payment of bonuses or incentive payments can be a tricky legal issue. One question that clients regularly ask is how discretionary is an employer's discretion when it comes to awarding a bonus or setting an employee's annual remuneration? As with most legal issues, there is no quick answer, but there are some tips from case law which can provide guidance.
The effects of Australia's ageing workforce are expected to be so pronounced that the government has budgeted for retraining. Between the tax cuts and promises to return to surplus, one of the centrepieces of the 2018 Budget was increased funding to assist Australia's so-called 'greying' population. To manage the changes to Australia's demographics, employers should start to prepare for an ageing workforce and develop strategies to manage and retain older workers.
Under new legislation, labour hire service providers in Queensland and South Australia must be licensed to provide labour hire services in order to avoid costly penalties. Businesses that engage labour hire service providers must also ensure that those providers are licensed. The new licensing schemes aim to regulate the provision of labour hire services and protect employees from exploitation by labour hire service providers.
In January 2018 rail workers employed by Sydney Trains and NSW Trains threatened a 24-hour stoppage and overtime bans. In a noteworthy decision for all employers, the Fair Work Commission ordered that all industrial action be suspended for six weeks, finding that the stoppage threatened to cause significant damage to the economy and endanger the welfare of the community and the people who rely on the network to get to work and school.
Managing a workplace investigation can be challenging at the best of times, particularly where the complainant or alleged offender proves difficult. Employers should consider a number of issues that can arise when managing absent participants or vexatious employees in the context of an investigation, as well as various tips on how to move forward successfully.
Employers should consider a number of legal issues when seeking to integrate apps with their existing systems. In some cases, it may be necessary to tailor apps to the business or to consider changes to instruments which govern the employment relationship. Employers should consider these issues and review existing industrial instruments and employment contracts for their compatibility with apps before implementing them in the workplace.
Most employers are aware of the stringent obligations in place to protect their employees' personal information. What might not be so clear are their obligations where law enforcement has requested this information to be shared with it. Knowing how to act in this situation is crucial. With the introduction of new data breach disclosure provisions, the standard for protecting an employee's personal information has never been higher (nor the punishments more severe).
Under new legislation, bargaining representatives – whether acting for employers, peak bodies or unions – must now disclose any personal financial benefits arising from enterprise agreements before they are voted on. The purpose of the disclosure documents is to help workers, employers and other stakeholders to track the revenue that an enterprise agreement will generate for unions and any other bargaining representative.
A growing workforce, strategic expansion or the end of a lease can force businesses to relocate their premises or employees. While such changes are often positive, relocation can pose a number of practical and legal issues that should be carefully negotiated in order to minimise disruption to the business and employees and reduce exposure to employment-related claims. Two recent unfair dismissal decisions provide useful guidance on business relocation.
The #metoo movement has helped to expose the prevalence of sexual harassment in society, particularly in the workplace. While the spotlight has been on individuals working in Hollywood's film and television industry, a 2012 survey by the Australian Human Rights Commission found that 25% of women in Australia had been sexually harassed at work. Three key tips can help employers to support gender equality, prevent sexual harassment in the workplace and ensure that no one is alienated in the process.
For 74 days in 2017 Carter Holt Harvey Woodproducts Australia Pty Ltd 'locked out' a number of its employees from the workplace during an industrial dispute. The Fair Work Commission was called on to resolve a dispute over whether employees who had been locked out during the industrial action were entitled to accrue annual leave and long service leave during the lock-out.
The Fair Work Commission recently rejected an Uber driver's claim of unfair dismissal on the grounds that he was an employee, upholding Uber's argument that he was instead an independent contractor. It stated that the fundamental elements of an employment relationship were absent from the relationship between the parties, as the driver was not required to perform work or provide services for the benefit of Uber, and Uber made no payments to the driver for the provision of any work or services.
The Fair Work Commission's bullying jurisdiction recently rejected an aged care worker's bullying claim against her supervisors and managers. The employer successfully argued that, at all times, the employee was subject to reasonable management action carried out in a reasonable manner. This case demonstrates that bullying is not always top-down; it can be horizontal or even bottom-up.