When employees walk out

David Weiler, Associate

Recently it was reported that up to 500 journalists and other editorial staff walked off the job in response to an announcement by Fairfax Media that it intended on making cuts to the equivalent of 120 full-time staff. This dramatic display of industrial defiance is an example of where a breaking point has arisen between employees and management. 

The actions taken by the Fairfax employees constituted unprotected industrial action under the Fair Work Act 2009 (Cth) (“FW Act”) as it was not undertaken as the result of a protected action ballot (nor could it have been as the relevant enterprise agreement had not yet expired). This type of behaviour can be extremely detrimental to businesses and employers should be aware of their rights in preventing such action, especially those in the public spotlight. 

If an employer is of the opinion that unprotected industrial action is threatened, impending or probable it has the ability to apply to the Fair Work Commission to make an order to stop the industrial action (or proposed action). Therefore it is crucial that if an employer thinks action may be taken, it acts as swiftly as possible. A breach of an order to stop bargaining can carry a maximum penalty of $10,800 for individuals and $54,000 for bodies corporate. 

However, although the Commission must (so far as practicable) determine such an application within two days after the application is made, this is not always enough time. In the case of the Fairfax employees, they were only given notice of the proposed redundancies on a Thursday morning and the first wave of 24-hour strikes began on Friday. This demonstrates the potential for disruption from unprotected industrial that employees can cause, often with little recourse. Importantly, employers are prevented under the FW Act from taking adverse action against an employee that takes part in industrial action, regardless of whether it is protected or not.

If employees do take unprotected industrial action, employers are obligated under the FW Act to not pay them for this period of time (and at least four hours of pay if the action lasts less than four hours). 

The Fairfax dispute is a high profile example of how important it is for employers to manage industrial relations even when an enterprise agreement is on foot. We work with clients on how to effectively engage early, often and genuinely with both employees directly and their union representatives.  

Employer Funded Paid Parental Leave – Top 5 Things to Consider

Beverley Thomas, Associate

Despite lingering uncertainty about the future of the Government’s Paid Parental Leave Scheme, many organisations continue to develop and implement their own unique Parental Leave Policies to entice to job applicants, encourage diversity and improve the work-life balance of their employees.

Globally, we have seen companies, particularly in the tech space, making waves with their policies. For example, online e-commerce company, Etsy, offers a half year’s paid leave to its employees and Netflix provides its employees with “unlimited” paid leave during the first year after the birth or adoption of a child. Regardless of where your organisation draws its inspiration from, there are a few things to keep in mind when designing your Paid Parental Leave Policy. Here are our top tips:

  1. Remember that paid leave equals service: Some employee entitlements are determined by years of “service”. While periods of unpaid leave do not count towards service, paid periods of leave usually do. This means that employees will accrue annual and personal leave during periods of employer funded paid parental leave, so it is worth factoring in this cost when designing a policy.
  2. Foster a culture of acceptance: There’s no use in implementing generous family friendly policies if the culture of the workplace is such that an employee would be frowned upon if they accessed the policy’s benefits. Acceptance is something that should filter from the top down in order to have the most influential impact. Recently, Facebook founder Mark Zuckerberg, took two months off to spend time with his wife and new daughter after her birth. This sent a powerful message to employees of this social media network that equally grants new mums and dads four months of paid parental leave.
  3. Benefits are best kept discretionary: Business environments, governments and legislation can all change and affect your organisation’s ability to provide benefits in excess of its obligations. For this reason, it is generally recommended that a Paid Parental Leave Policy is contained in its own policy document as opposed being drafted into contract of employment or enterprise agreement. Provided it is made clear that it is not an entitlement and subject to change, this will assist you organisation to alter its policy from time to time with less exposure to a legal claim.
  4. Keep diversity at the forefront: Surrogacy, adoption, fostering and same-sex relationships are just some of the features of today’s diverse society. Avoid directly or indirectly discriminating against particular groups by taking a gender neutral approach to policy drafting and extending benefits to less commonly considered scenarios.
  5. Think outside the square: Providing employees with paid leave is only one way that employers can take a family friendly stance. Consider other options that might be more suitable for your organisation, such as providing employees with a bonus upon their return to work after taking parental leave. Other options include continuing to make superannuation contributions to an employee during periods of unpaid parental leave or facilitating flexible work arrangements upon a parent’s return to the workplace.

Today’s Workplace Part 1

As society grows and changes, technology evolves and, new generations enter the workforce, what policies and procedures have worked in the past may not be relevant in today’s and tomorrow’s workplace. In this webinar we discussed:

Managing the risks of adverse action and unlawful discrimination in recruitment:

  • can you trust what social media says about a candidate and what are the risks of relying on it?;
  • the do’s and do not’s of drafting job advertisements; and
  • how interview notes may lead to a legal claims.

Social media:

  • understanding when a post has a connection to employment;
  • ownership of social media contacts after termination; and
  • humour vs harassment and knowing where to draw the line.

The ageing workforce:

  • discrimination in recruitment;
  • workers compensation issues; and
  • making reasonable adjustments.

Getting the most out of Gen Y:

  • investing in training and development;
  • tapping into a unique skill set;
  • specific retention strategies; and
  • is there a culture of entitlement?

Getting independent contracts right: a case law follow up

In our most recent edition of Strateg-Eyes, we considered the use of “triangular contracting arrangements” as a means of mitigating the risk of a worker being deemed an employee when the intention was that they be engaged as an independent contractor. A timely decision of the Fair Work Commission (in Mr Norman Turner v Australian Postal Corporation [2016] FWC 801) has demonstrated the effectiveness of these arrangements when properly deployed in practice.

The decision

Mr Turner performed work for Australia Post and argued that he was unfairly dismissed following the termination of his engagement. Australia Post objected on the basis that Mr Turner was an independent contractor, not an employee.

Mr Turner argued that the relationship was one of employment based on certain of its characteristics, including that Australia Post:

  • controlled his mail delivery area;
  • dictated the appearance of the vehicle he was to use;
  • required him to wear an Australia Post uniform; and
  • required him to comply with certain of its policies and procedures.

Australia Post argued that no employment relationship existed because the Mail Contractor Agreement (the “Agreement”) it had entered into was between it and Coomba Park Couriers, Mr Turner’s company. That is, the Agreement was a triangular contracting arrangement.

The FWC accepted Australia Post’s argument, holding that because:

  • there was no contract between Australia Post and Mr Turner; and
  • the Agreement was not a “sham” (in that there was no evidence to suggest that it was not intended it would have “substantive legal effect”),
  • there was “no basis [on which] to undertake a ‘multi–factorial assessment’ to determine whether the character of any contract between Mr Turner and Australia Post (if it existed) was a contract of employment or alternatively a contract of some other character”.

As such, Mr Turner was precluded from bringing an unfair dismissal claim.

Lessons for employers

  • Independent contracting arrangements should be recorded in tripartite contracting arrangements where possible.
  • Such arrangements should contain express acknowledgments that the relationship they record is not one of employment.
  • Even where a number of features of a relationship are indicative of employment, if these features can be explained as genuine requirements of a commercial contract, the worker may not be deemed to be an employee.

Turning a Blind Eye to Sexual Harassment

Elizabeth Kenny, Associate

Most organisations have policies and procedures around discriminatory behaviour and sexual harassment by employees and are aware of their own obligations in preventing discrimination and harassment. However, many organisations are less familiar with the question of potential liability where a customer or client acts in a discriminatory or harassing manner to their employees.

Under the Sex Discrimination Act 1984 (Cth) (the “SD Act”), it is unlawful for any person to sexually harass another in the course of seeking or receiving the provision goods, services or facilities from another person. This imposes an obligation on the customer or client to refrain from sexually harassing employees, but the employer is not technically vicarious liable for such conduct.

What is less well known is that employers (or anyone) who “causes, instructs, induces, aids or permits” another person to do an act that is unlawful under the SD Act may be found liable for the conduct. In these circumstances, if an employer is aware of sexually harassing behaviour by others that affects their employees and does not take all reasonable steps to stop that behaviour, then it may be construed that the employer is permitting the person to engage in acts that are unlawful under the SD Act.

In addition, employers also have an obligation under work health and safety laws to ensure the health and safety of workers. An employer may be captured under this regime if the sexual harassing behaviour causes a risk to the health and safety of a worker or group of workers and the employer has not taken steps to eliminate these risks.

Recently, a Bunnings Warehouse store in Melbourne banned a number of tradesmen from its stores due to sexual harassment of a staff member. The female employee complained to management about the sexual harassment of certain tradesmen shopping at the store and Bunnings reacted by banning the tradies.

Such actions are indicative of an approach that does not turn a “blind eye” but rather faces the situation head on and takes decisive action. Employers may also wish to consider inclusion of procedures for dealing with sexually harassing conduct by customers or clients in their workplace behaviour policies and training sessions.

If you think that your organisation will benefit from a review of your workplace behaviour policies or wish to implement one in your organisation, please contact PCS.

Embracing Diversity Creates A Stronger Workplace

David Weiler, Associate

In celebration of the Mardi Gras season that has just swept Sydney, we take a moment to reflect on the positive impact that embracing diversity can have on your workplace. In our most recent edition of Strateg-Eyes we explored how employers can face the challenges associated with a diverse workplace in a manner that allows for inclusiveness and happier employees (this article was subsequently republished on Wolters Kluwer’s Employment Chat Blog). In the same issue, Senior Associate James Zeng demonstrated how diversity allows companies to approach issues from different angles, which in turn can drive innovation.

At the very core of diversity is the appreciation that each and every employee brings a different background and set of values to their work. In this sense, it is in the best interest of employers to recruit people who are able to offer something unique while at the same time are willing to embrace a culture of diversity.

Top employers around the country realise the need to move away from homogeny and many have taken considerable steps to highlight their specific approach to recruitment and the role diversity plays in their business. For example, Pride in Diversity is group dedicated to assisting organisations across all sectors “to develop and sustain workplace cultures in which sexual and gender diversity is not only accepted, but is affirmed and celebrated.”

In furthering this cause, Pride in Diversity publishes the Australian National Recruitment Guide (“ANRG”) each year which showcases organisations around the country that are engaged in LGBTI workplace inclusion. The 2015 edition of the ANRG includes various banking/financial institutions, legal and professional services as well as mining and resource sector employers demonstrating a diverse group of industries embracing diversity. The ANRG gives graduates and other jobseekers a snap shot of national employers that have taken initiatives to increase diversity as well as providing them with the confidence to be themselves during interviews.

The groundswell in support from large organisations to make diversity an important part of their hiring strategy and culture suggests considerable progress for equality in the workplace. However, a company can only be as “diverse” as its leaders and for an organisation to truly harness the potential of its individuals, it must practice what it preaches when choosing its executive team. We work with companies to reflect on their needs as a business, including how to establish and maintain a breadth of experience through a diverse workplace, in order to drive innovation and establish the desired culture.

Congratulations to PCS Team Member, Erin Lynch

People + Culture Strategies is pleased to announce that Erin Lynch has received the much deserved promotion to the role of Associate Director and in that capacity has now joined the Leadership Team of the firm.

Having been with us for over 3 years, Erin continues to be a tremendous asset to our firm, particularly through her development of client relationships and her mentoring of junior lawyers.

On behalf of the team at PCS we congratulate Erin on this promotion.