Employment and Migration Blog

When the harmonised legislation replaced the 2000 NSW OH&S Act, and the District Court was given jurisdiction to deal with prosecutions instead of the Industrial Relations Commission, there was speculation that this may change the approach to assessing defences raised by an employer. In a recent decision, this indeed seems to have happened.

When you consider the Fair Work Act amendments which took effect as at 1 January 2014, it seems as if the new bullying provisions received all of the attention. In addition to bullying, there where also a number of other changes which may affect the day to day operations of your business, which are equally important.

By 27 February, the Fair Work Commission had received 66 anti-bullying applications, and a member of the Fair Work Commission, Commissioner Cribb has said that they have the following features.

Someone asked me this at a presentation on the new bullying laws last week. And the answer is “No.” In the seven weeks since the Fair Work Commission opened shop for bullying complaints, I haven’t yet had one framed in terms of the new legislation. That’s not to say they aren’t around: Fair Work Commission reported receiving 44 applications in January, which was under the estimate of 70 a month, but still a tidy number for a month when much of the country is still in holiday mode.

The Fair Work Commission recently held that a company’s Facebook message to one of its employees telling her that it would be inappropriate if she was to return to work did in fact amount to the termination of her employment.

A mining company in Central Queensland, Biloela’s Anglo Coal Callide Mine, is currently being sued for $1.26 million after one of its miners tumbled more than 1.5m down a rock face whilst in a dozer, causing permanent injury to the employees spine.

Facebook or Face-Crook All it took was for a Shona Mackin to undertake a quick Facebook search of one of her employees to discover that the employee’s so called ‘injury’ and claim for workers compensation was fraudulent - and it was all downhill from there! The relevant employee sought workers compensation after he was involved in a motorcycle accident which he claimed happened on the way to his work. Subsequently the employee requested light duties and was working only two hours a day due to the pain he was experiencing in his arm.

The dismissal of an employee who misused his employer’s computer system has been deemed ‘not harsh or unjust’ and has been held to amount to serious misconduct.

How workplace bullying can effect your business: orkplace bullying can have detrimental consequences on a person and an organisation. An recent article by Lollie Barr has found that collectively the cost of bullying to Australian businesses is on average $9.5 billion per year, resulting in decreased productivity, increased levels of absenteeism, staff turnover, poor morale and in some circumstances suicide.

Providing a safe work environment – are you addressing your bullying complaints? Following on from my previous blog where I emphasised the importance of employers managing employee relationships, a case has emerged in Queensland in which an employer who turned a blind eye to workplace bullying was found to be negligent of providing a safe work environment. Ms Wolters had been verbally abused and threatened by another employee, Mr Bradley, and as a result suffered severe depression and was unable to return to work.

Mediation could save your career…and life. What started as a minor disagreement between Alex Andrasch and another employee almost turned into an ugly scene with Andrasch narrowly escaping getting his ‘head bashed to pieces.’ The other employee was a trained kick boxer and Muay Thai fighter who became enraged when Andrasch questioned his martial arts credentials. Andrasch, also a martial arts fighter, told the employee he had no idea what he was talking about when he heard the employee explaining how to defeat someone who uses Kung Fu - this deeply angered the employee who in response told colleagues that he planned to attack Andrasch once he got him alone.

The Fair Work Ombudsman is in the process of pursuing the owner of an Italian restaurant in Terrigal for failing to pay back nine underpaid employees, including two juniors aged 16 and 19. On top of the total of $12,178.00 owed, the owner could also be facing exposure to penalties, which range from $10,200 per contravention for an individual and $51,000 per contravention for a body corporate.

In Canberra recently, an interior designer was fired from his day job at a design firm after his employer discovered he was using his LinkedIn page to promote the imminent growth of his personal business to a “full-time design company.” The employee had sent a group email to his connections on LinkedIn, including current clients of the company he worked for, offering his services in a personal capacity.

There was backlash last month from Melbourne firefighters when Fire Brigade management cut all employees right to check Facebook, Twitter, YouTube and other websites down to just 60 minutes per shift. The move came after management found that the top 10 most visited websites were not work related sites. The United Firefighters Union, on behalf of their members, have taken the case to the Fair Work Commission in an attempt to have management’s decision overturned. They assert there are a number of issues with the sudden implementation of new rules, without formal warning or room for discussion with employees. The main concern from the firefighters was that their existing workplace policy provided that limited internet use was "permitted so long as it did not affect [work] or breach internal policies."

With increasing demands being placed on employee's time and productivity levels in recent years, there is a growing trend for employees to be using their own personal electronic devices (such as smart phones, iPads and so on) as well as other electronic storage devices to enable them to juggle work commitments outside of the office - whether it be whilst working at home, or in between client/customer appointments.

Having a baby can be an exciting – and demanding – time for parents. The last thing they want to worry about is trying to negotiate suitable return to work arrangements with an employer! However, despite the desire of many first-time parents to plan ahead and confirm arrangements before they go on parental leave, it is usually better not to lock in definite return to work arrangements until after the baby is born. This is because there are often unforeseen events that might occur and make the best of plans fall through. Negotiating suitable return to work arrangements for employees who have had a baby is something many business owners and managers will have to face. As an employer you have a responsibility to make all reasonable adjustments to the workplace to accommodate a pregnancy and the worker's subsequent return.

Many parents will bemoan the axing of the baby bonus from 1 March 2014, as outlined in the recent Federal Budget. About 28,000 families would miss out completely under the change while another 20,000 are expected to instead take Paid Parental Leave (PPL). So how does PPL work?

In my last post, I reported on a visit to the Sistine Chapel, and focused on the ceiling but there is much more to the Chapel than that, since most of the wall space is filled with wonderful 16th century paintings in jewel-bright colours. The most dramatic occupies the whole end wall, Michelangelo’s Last Judgment, painted 1536-41, more than twenty years after he painted the ceiling frescos. This is full of swirling energy and turmoil, with Christ hurling sinners into hell and raising the saved to paradise. It takes some effort to shift from the movement in the overall image to focus on the details - but when you do, one point in the bottom right corner has particular employment law resonance. In Hell, there is a portly figure with donkey’s ears and a large snake curled around him to cover his nakedness (actually, it is worse, but as this is a respectable professional blog I’ll leave it at that).  This is Minos, judge of the underworld, receiving the souls of the damned.  As a model, Michelangelo used Biagio de Cesena, the Pope’s Master of Ceremonies at the time, presumably without consent.  Michelangelo was always an irascible character, and Biagio was his loudest critic and objected to the many nude figures which Michelangelo included – but had his revenge in perpetuity.

As many of my clients know, I am taking a gap year in 2013, travelling the UK and Europe so my posts this year will have a travel theme. I have just finished 2 ½ weeks in Rome, where one of the top priorities of my wife and I was to see the Vatican Museums and the Sistine Chapel. You enter through a small door, onto a marble pavement which extends a couple of metres and then goes down 3 steps to the main floor. And as everyone knows about Michelangelo painting the ceiling, most visitors stop, and look up to stare, as soon as they get through the door, attention pretty much distracted from the steps by the sight of God creating the world, and creating Adam, and the brightly coloured portraits of sibyls and prophets. So, immediate WH&S issue: the risk of someone tumbling down the stairs is pretty high. And if the Work Health & Safety legislation applied, the Vatican would clearly have a duty to all these visitors to a workplace. At first glance, there is nothing in place to address the risk: no barriers, no high-vis markers on the edges of the marble steps, no prominent signs (no-one would look at them anyway!). It seems “all reasonably practicable steps” have not been taken to remove or minimise the risk.

I was recently asked to comment on an article for "In the Black" magazine (a CPA publication) on 'what makes a successful redundancy' - and I thought I'd share a snippet of what I said...

For the next 12 months I will be heading up the Employment Law and Business Migration team here at Coleman Greig, while Stephen Booth takes a sabbatical and ventures around Europe (in my opinion - a well deserved break after 25 years of practice!). If we are lucky we might hear from Stephen throughout the year - maybe even with a description of the picturesque locations he happens to be exploring - but for now it is probably best to review some of the latest developments in the employment law/immigration space over the holiday period!

A prominent Melbourne employment lawyer, Josh Bornstein, has suggested that we need to rethink how we deal with workplace bullying in legal terms. He says, surely correctly, that the “Brodie’s law” approach, criminalising bullying as akin to stalking, is more symbolic (and legislative “feel good”) than of real benefit, in the vast majority of cases. And he argues that we will never make headway against workplace bullying while it is perceived as a safety issue, essentially because an OH&S focus addresses processes and implementation, and in rare cases penalties for a business that handles a bullying issue very badly, but there is generally no private right of action. But would a much broader right to make a claim about bullying be suitably calibrated to address genuine cases, or would it open floodgates to many cases that are more about general disgruntlement or workplace politics than seriously inappropriate behaviour? As we’ve seen with unfair dismissals, despite the laudable goal to avoid imperatives for employers to pay “go away money”, the simple fact is that wherever there will be costs in money and time to defend claims, money will be paid to make them go away, even in cases of low merit.  And defining bullying for the purposes of a right to make a damages claim would be a particularly perilous minefield. And what that approach ignores is that real cases of bullying generally involve deep-seated cultural issues and behavioural traits of the workplaces, bully and victim.  Might we not achieve more by focussing directly on those?  Of course, in the short and medium term, that will work in decent workplaces but not reach the toxic ones.  And discrimination legislation has certainly permeated everyone’s consciousness because of the risk of claims.  A right of action for bullying might do the same, but at what cost?

Pay rates All award rates increased 2.9% as of 1 July. So if you pay at or close to award rates, or pay at an annual rate which is not far above award rates but which is intended to include all obligations, then it is a good idea to check the rates you pay against the revised pay rates in the award to make sure you comply, both with base rate and with the total due including overtime etc.    If you need assistance doing this “IR health check”, please give us a call.

There was a flurry of media attention in 2008 when Vivienne Dye launched claims against Commsec and the Commonwealth Bank, alleging persistent predatory sexual harassment (in some instances alleging conduct amounting to rape) by two named managers. The managers’ reputations were trashed. However, in the long run it is Ms Dye who has crashed and burned, as the Federal Court dismissed all her claims last month, after a case lasting 94 hearing days! The decision includes many details which would seem far fetched if you read them in a novel, including Ms Dye attending a work party wearing a white fur G-string – as you do!

There has been a bit of commentary since Toyota notified a large number of employees of redundancy last Monday. Employers having to sack people for redundancy, don’t generally enjoy it, and no doubt Toyota is no exception. The criticism of the methods used have a bit of a “damned if you do, damned if you don’t” about them. Toyota had announced impending redundancies in January, and seems to have had extensive discussions with the unions, so it would’ve been a surprise to no-one. There has been criticism of tapping people on the shoulder when they arrived for work, and the employees being mini-bussed to a meeting where they were given the details. But if they’d sent a letter, or made a phone call, or sent a text to tell the affected workers, they would have been criticised for not being personal about it.

Happy New Year to our blog readers! No resolutions here, but a reflection to begin the year: people can have an amazing lack of insight. Being an employment lawyer (or working in HR) broadens your life experience: you get to see people behaving in ways you wouldn’t believe if you read it in a book. Check out this random sample of recent unfair dismissal try-ons.

It is in the nature of our media-saturated world that crises occupy all attention for “15 minutes of fame”, and then subside again, so those not directly involved lose the track of the story, till the next crisis. So what has happened to the Qantas dispute?  Essentially, the wheels set in motion by the Qantas grounding, and the orders of FWA on 31 October, continue to turn, but out of sight.  There having been no private resolution within the 21 days allowed, the disputes are now set up for formal arbitration by FWA in March 2012.  The general expectation is that, when imposing a deal on the parties, FWA will not override Qantas’ management prerogative to the extent of interfering in decisions about off-shore operations and staffing.  Certainly it seems to be Qantas’ calculation that it will get a better deal out of FWA than directly with the unions, and by a route which precludes ongoing industrial action.

Retailers will very shortly be able to hire high school students on 90 minute casual after-school shifts, after Fair Work Australia rejected the appeal by the Shop Distributive Allied Employer’s Association (refer to previous blog). FWA wasn’t persuaded that the proposed variation of the three hour minimum engagement period under the General Retail Industry Award was “affected by error”. The decision, however, doesn’t mean an immediate start to 90 minute shifts because the Award was not formally varied, but the option shouldn’t be too far away! It is anticipated that 90 minute shifts will only be available where the employee and their parent or guardian agrees, and where employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer, or the unavailability of the employee.

Fascinating to watch the developments in the Qantas dispute over the recent weeks. We’ve got out of the habit of watching a dispute on this scale, in a critical industry, with the added frisson of uncertainty over the operation of new legislation. The theatre of a commercial/industrial dispute such as this is something which anyone involved in negotiation or dispute resolution can appreciate. What step to take next, when to take it? How to calibrate it and what message will it send to the other players? How to play your cards close to your chest, while at the same time managing the audience (in this case via intense media interest)?

Beware the consultation and redeployment issues when making employees redundant. For a redundancy to be outside the unfair dismissal regime, it has to be a "genuine redundancy." Whether a redundancy is genuine depends on whether there is consultation as required by an applicable award, and whether any reasonable options for redeployment are offered to the employee.

Surely that's OK, if I do it in my own time from my own computer with the maximum privacy settings and only to a select group of 70? Not when the comments are particularly offensive, and the group includes 11 work colleagues, even when the employee has the sensitivity to block the access of the relevant boss.

Continuing on last week’s theme that “Redundancy is not a panacea”, I saw a decision last week, made particularly interested by the ATO’s involvement both as employer and taxman, so that the A to the Q above could be “When the ATO says so.” An ATO employee negotiated a voluntary redundancy then asked the ATO to treat it as a “genuine redundancy” to get the tax breaks involved. The ATO refused. She went to the AAT to argue the issue, the ATO opposed it, and she lost.

Another of the top 10 from Booth's 101 Rules for avoiding unfair dismissal is " Redundancy is not a panacea ". This colourful story comes from a Qld discrimination case last month (Webb v Lightfoot) rather than unfair dismissal, but the principle is the same. Lightfoot ran a scaffolding business which employed Webb. When Webb had a back injury (reading between the lines, it seems Lightfoot doubted this), claimed workers comp, and sought light duties, Lightfoot ignored him. Webb persisted in seeking light duties. Lightfoot's reaction was:

As at 1 July 2011 – the cap has increased to $118,100 (from $113,800). What does this mean?? If you earn over $118,100 (base salary and other guaranteed payments, but excluding 9% super and “at risk” commissions, bonuses or other incentives) and you are not covered by a modern award or enterprise agreement – you cannot bring an unfair dismissal claim. So remember - it’s really important to calculate how much your employees are earning from 1 July 2011 - as it could affect their unfair dismissal rights as well as their workplace entitlements!!!!

Just a few things to bear in mind, and get in order if need be, as 1 July approaches: Paid parental leave, pay increases, modern award transition and unfair dismissal salary cap.

There was a case last week (Trapman v Sydney Water) in which an indigenous labour hire worker recovered $5,000 damages from supervisor and end-user employer because the supervisor told a group, including the worker, a joke about Aborigines. The supervisor had asked the worker’s permission to tell the joke, which was given, but the Court accepted that the worker should not have been put in the position of having to tell his supervisor that he was unhappy about a racist joke being told – the very fact that the supervisor asked for permission meant that the supervisor knew the joke was inappropriate.

There’ve been a few instances of termination by text surfacing in recent FWA decisions. On the face of it, sounds like pretty poor HR, but there can be exceptions. I had an unfair dismissal case recently where the termination was by text, and it seemed OK to me – but this was in the context of the employee having been refused leave, saying he’d take the time off anyway and get a doctor’s certificate, then failing to show for several days, refusing to come to the door when his boss called by, and refusing to take his boss’s calls. Sending a text in those circumstances at least had the virtue of being in writing (as required by the FWA), and was therefore better than leaving a voicemail. However, it would have been better still if a snail mail had followed with all the usual details. Not hard to do. We never had to put it to the test as the employee lost interest and cancelled the conciliation.