Roseanna Smith, Graduate Associate
Following the Weinstein scandal and the highly publicised #MeToo and #TimesUp campaigns, many organisations are asking, what does this mean for my workplace?
It is a fairly accurate observation to make that there has been a rise in workplace sexual harassment complaints since various scandals have been exposed. This isn’t a coincidence. People are now feeling more empowered to call out sexual harassment, and other unacceptable behaviour in the workplace, and to recount experiences that may have occurred some time ago that they feel should be aired publicly.
The conduct that is coming to light in organisations is not necessarily new, although social media has provided new avenues to engage in such behaviour. It is often behaviour that was once accepted as a workplace norm, ignored or even concealed.
In a workplace setting there is enormous diversity of human interactions and relationships, and an organisation cannot control every aspect of its employees conduct in this regard. However, organisations can and must explain and detail what acceptable conduct in their workplace looks like, and need to be clear and unambiguous in their messaging with respect to sexual harassment. In addition, the behavioural standard that organisations set, and an organisation’s reaction to behaviour that falls outside of this standard, must not create a workplace culture that tolerates or perpetrates sexual harassment.
Our observation is that workplace policies and education on workplace harassment are largely inadequate because they tend to stick to the black and white issues. The majority of workplace policies and employee induction sessions only cover the obvious, that is, what is already fairly well known to be right and wrong. Few organisations step up to the challenge of dealing with the more nuanced behaviour or the “grey” areas.
The “grey” areas concern the conduct that, in the extreme, to one person may constitute outright harassment but to another is acceptable behaviour. For example, the banter that occurs in many workplaces, nicknames between co-workers, and the language used around the lunch table are all examples of everyday areas where organisations need to refocus and reassess their approach.
It is the responsibility of an organisation to develop and foster the culture they envision for their workplace. This may mean having somewhat awkward conversations, for example, around initiating and developing romantic relationships with coworkers. There is no doubt that consensual relationships in the workplace exist, as 52% of workers have developed a romantic relationship with a co-worker.1 Recent events in parliamentary circles have raised the question of whether organisations should ban relationships that involve at least the perception of a power imbalance.
Interestingly, as a result of the recent exposure of sexual harassment claims against prominent public figures, more than one in four workers reported that they now less likely to think it is acceptable to engage in romantic relationships with office colleagues.2
The positive duty of an organisation to provide a healthy and safe workplace free from sexual harassment includes a culture that does not ignore information about sexual harassment that is brought forward explicitly by a complainant, or gleaned from gossip in the workplace. Changing the workplace culture around sexual harassment goes further than adopting prescriptive policies, as real difference comes from an organisation’s commitment to change. The consequences of engaging in harassment in the workplace must be feared more than the risk of speaking out. In the current climate, the starting point for organisations is to reassess the way they have handled previous complaints and question why people in their workplace are only starting to come forward now.
Our perceptions around workplace harassment will continue to shift, depending on the changing social and cultural expectations. Organisations need to be at the forefront of this so they are not on the back foot when a harassment claim is lodged. If there is a silver lining to the Weinstein scandal, it is the insight that organisations now have that prevention through culture change is a better option for creating a healthy and safe work environment.
Sam Cahill, Associate
This article is based on a webinar presented by Joydeep Hor on 14 February 2018
The majority of business leaders aspire to instil a culture of high performance. However, the notion of organisational culture, and especially high-performance culture, can be difficult to define, let alone apply to the running of an organisation. In this article, we look at the key components of high-performance culture and how business leaders can assess and improve the performance culture in their organisation. This is the beginning of the journey to high performance.
It is tempting to assess an organisation’s culture by reference to incidents or themes that recur within the organisation. For example, an organisation may spend a great deal of time dealing with disciplinary issues or instigating performance management. This approach is problematic, as it can lead to an undue focus on these negative aspects of people management, rather than the creation of a high-performance culture.
Instead, we advocate a more proactive and holistic approach, which involves a structured framework for assessing and improving an organisation’s performance culture. An example is the “V-S-C” framework, where performance culture is measured against three key metrics:
- “Vision and Values”
- “Systems and Structures” and
- “Capability and Credibility”.
What follows is an analysis of each of these metrics of performance culture, in order to give a clearer picture of the practical steps that business leaders can take to develop and maintain a high-performance culture.
Vision and Values
A good starting point for assessing an organisation’s culture is to start with some simple questions:
- What is the organisation’s vision or over-riding objective? What is it trying to achieve?
- What are the values of the organisation? What are the things that management “stands for” or “stands against”?
- How does the organisation articulate its vision and values? Are employees aware of the organisation’s vision and values? Do they share them?
For performance culture to be given the weight that it warrants, it is essential for an organisation to have a clearly-articulated commitment to high performance as part of its mission statement (or vision). It enables an organisation to articulate its aspirations in terms of a commitment to high performance, and to not limit this simply to the meeting of basic targets or revenue benchmarks.
It is essential for an organisation to spend time in articulating its vision in terms of performance. If time is spent on articulating and formalising vision and values, it makes it easier to communicate this to employees and ensure their performance is in sync. It is also important for the values of the organisation to be embraced and reinforced by individual managers, as this will enhance buy-in from employees.
However, organisations must also recognise that, at best, vision and values are only the beginning. Once an organisation’s vision and values have been articulated, they need to be actioned by management and continuously reinforced. The “lived experience” of the vision means that employees are more likely to adhere to it, and also facilitates the achievement of high performance. Finally, an organisation’s vision and values are not set in stone. Constant reflection on an organisation’s vision and values is an important part of a high-performance culture.
Systems and Structures
An organisation’s systems and structures are the building blocks of its approach to human resources and people management. The articulation of the organisation’s vision and values must be carried through in its systems and structures. When assessing an organisation against this metric, it is important to ask:
- How does the organisation recruit and induct new employees?
- Does the organisation have written employment contracts, position descriptions and internal policies? What do these documents say about working for the organisation?
- What is the organisation’s reporting structure? What are the opportunities for career progression?
- How does the organisation provide employees with feedback on their performance? Does it have a system of performance appraisal?
By way of example, staff inductions provide an opportunity to explain the rights and responsibilities of employees and the organisation, promote an understanding of the organisation and its history, inform employees about points of contact within the organisation and communicate policies and procedures.
One aspect of staff inductions that some organisations may overlook is scheduling a conversation between a valued and successful employee and a new employee or employees. This discussion is an authentic and powerful tool designed to promote not only individual success, but also instil a sense of drive to achieve the organisation’s desired outcome.
Similarly, an organisation’s employment contracts, position descriptions and internal policies provide an opportunity for an organisation to infuse its systems and structures with its vision and values. Employment contracts and position descriptions can be used to set clear expectations regarding performance, while policies can be used to articulate what it means to work for the organisation and what is required of employees. The framing of the vision and values in such documentation ensures that they have been formally recorded and that staff understand what it is the business aspires to achieve.
Credibility and Capability
The best systems and structures will only be as good as the leaders who are responsible for implementing them. This means that, in order to have a high-performance culture, an organisation must have managers and supervisors with the capacity to lead and inspire high performance.
When assessing an organisation against this metric, it is important to ask:
- Do managers and supervisors espouse and uphold the values of the organisation? Do they talk the talk? Do they walk the talk?
- Do managers and supervisors conduct themselves in a manner that resonates with the organisation’s high-performance mantra?
- Do leaders have the necessary “credibility” to execute the organisation’s vision and values?
- Does the organisation take steps to monitor its leaders to ensure that this is the case?
A good leader will have traits and values that reflect the broader vision and values of the organisation. Moreover, a good leader will be able to build rapport with employees and encourage them to adopt those same traits and values. This enables and promotes a strong alignment between the objectives and values of the organisation and the personal aspirations of employees.
To build rapport and inspire employees, leaders must have credibility. One way of testing against this metric is to gain an understanding of how the organisation’s leaders are perceived by employees, either through dedicated group discussion sessions or using survey tools. If employees see that leaders are walking the talk, this can enhance the performance culture within the organisation.
An effective starting point in the journey to high performance is to conduct a culture audit. This enables an organisation to gain an understanding of its performance culture as its stands. It can help an organisation understand the strengths and weaknesses of its performance culture and the areas in which there is scope for improvement. Using the simple V-S-C framework, an organisation can use the findings of an audit to embark on a journey towards a culture of high performance. At the same time, this approach can highlight where problems exist, and therefore prevent costly and time-consuming people management issues that can impact on the effective and productive functioning of the organisation.
PCS regularly conducts culture audits and works with organisations nationally and globally to implement a high-performance culture in their organisations. Please contact [email protected] or any of the PCS Directors for further information.
Therese MacDermott, Consultant
Roseanna Smith, Graduate Associate
Recent publicity around sexual harassment and other forms of misconduct in the workplace has brought into the spotlight the extent to which confidentiality provisions in employment contracts, settlement agreements and standalone non-disclosure agreements are used to keep such conduct out of the public domain. While a litigated dispute will mean the issues are aired in a public forum, few matters are in fact litigated, and settlement on confidential terms is a widespread practice.
Competing factors come into play surrounding the extent to which such matters become public knowledge. On the one hand, parties to a dispute are at liberty to settle a dispute on terms that they can agree on, including a provision that makes the fact that the conduct occurred confidential and not something to be disclosed by any party to the agreement. On the other hand, serious forms of wrongdoing and/or systemic practices at a workplace may be of genuine concern to the broader community, and hence a valid subject of public interest.
This article considers recent developments in this area, including the proceedings seeking to enforce the obligations under a deed of release signed by a former employee of the Seven Network, and the recent campaign that banks should waive their rights to enforce non-disclosure agreements against former employees who may wish to give evidence to the Royal Commission into Misconduct in the Banking, Superannuation and Finance Services Industry (the “Banking Royal Commission”).
How non-disclosure terms operates in an employment context
Most employment contracts contain confidentiality provisions that limit the extent to which employees can disclose confidential information during, and after the conclusion of, the employment relationship. In addition to contract law principles, equitable obligations of confidentiality are also applicable. The type of information which is generally defined as being “confidential information” in an employment contract includes intellectual property, business plans, trade secrets, client lists, research and commercially sensitive information. These types of clauses, however, are not general regarded as preventing employees from disclosing sexual harassment and misconduct in the workplace given that they are aimed at governing very specific types of information that are confidential to the employer, and not principally directly to the manner in which a workplace may operate.
Settlement agreements commonly make provision for tailored confidentiality clauses, as well as non-disclosure terms. This will often be a standard practice where an end to an employment relationship is negotiated between the parties. This could include circumstances where the relationship comes to an end on the basis of established misconduct or other inappropriate behaviour.
In terms of confidentiality, settlement agreements can impose specific obligations regarding the confidentiality of information, processes or contacts the employee or executive in question had access to during their employment. Such clauses are likely to be more particularised than a standard clause in an employment contract. In addition, the terms of a settlement agreement may protect the confidentiality of:
- the negotiations leading up to a settlement,
- the terms of the agreement; and
- any conduct that led to the entering into of the settlement agreement.
A well-drafted agreement will not only include a non-disclosure clause, but also contain a release which ensures that the parties cannot pursue any further claims arising out of the subject matter of the settlement agreement.
It is less common in the Australian employment context to have a standalone non-disclosure agreement (“NDA”). However, such an agreement may be entered into where the parties agree to keep confidential certain matters either of a sensitive commercial nature or where wrongdoing may have occurred, but no other matters requiring settlement terms are involved. Such an agreement might also be used regarding commercially sensitive information where contractors or consultants are engaged.
Obligations to disclose wrongdoing
In the case of sexual harassment that amounts to, for example, sexual assault, an employer may be subject to a positive obligation to report such conduct if the employer has “knowledge or belief” of the commission of a “serious indictable offence”, defined as an offence which is punishable by a sentence of imprisonment of five years or more. Offences of that nature could include sexual assault.
In New South Wales, section 316(1) of the Crimes Act 1900 (“Crimes Act”) provides that it is a criminal offence for an individual or a corporate entity to fail, without reasonable excuse, to report a “serious indictable offence”. Relevant to establishing the requisite state of knowledge or belief, is an awareness that the offence has, or may have, been committed, or the holding or withholding of information which might be of material assistance in securing the apprehension or conviction of the offender. The application of the Crimes Act’s obligation to legal practitioners has always been a contentious area, given client confidentiality.
Misconduct in the workplace may also come to light by way of a whistle-blower disclosing events or past misconduct. The Corporations Act 2001 (Cth) (the “Corporations Act”) provides some protection for whistle-blowers, as it makes it a criminal offence to victimise a whistleblower or terminate their employment based on the disclosure of certain information. The Corporations Act provides protection from any civil or criminal liability for making the disclosure and no contractual remedy or other right may be exercised against a person on the basis of the disclosure.
However, the protection offered by the Corporations Act is narrow, as it only protects current officers, employees, contractors and employees of contractors. Its protections do not extend to individuals who may have had their employment recently terminated. Further, the relevant disclosure can only be made to the Australian Securities & Investments Commission or the company’s auditor, director, secretary or senior manager or a person authorised to receive whistleblower disclosures. Finally, the legislative provisions only apply when the whistleblower has reasonable grounds to suspect that the company, or an officer or employee of the company, has or may have contravened the Corporations Act.
Intervention by the courts
The role of the courts in overseeing agreements that have been reached in respect of non-disclosure, was considered in the case of Seven Network (Operations) Ltd v Harrison.1
Ms Harrison was employed by the Seven Network as an executive assistant. During her employment she formed a consensual relationship with the Chief Executive Officer of the Seven Network. The relationship ended in 2014, and around a similar time as an investigation into Ms Harrison’s expenses on the company credit card. On 1 August 2014, Ms Harrison entered into a deed with the Seven Network (the “First Deed”). The First Deed effected a role transfer of Ms Harrison within the company and an undertaking to repay $14,000.00 worth of expenses back to the company. Ms Harrison was ultimately terminated from her employment in late 2014 by way of a deed of release between Ms Harrison and the Seven Network (the “>strong>Second Deed”). The Second Deed imposed strict obligations on Ms Harrison that included, among other things, non-disclosure of information regarding the relationship with the Chief Executive Officer and that Ms Harrison discharge Seven Network from any claims that she could have against them.
In March 2015, the Seven Network suspended payments to Ms Harrison under the Second Deed on the basis that Ms Harrison had refused to comply with her obligation under the deed to return certain company property when requested to do so by the Seven Network.
Ms Harrison alleged that the suspension of payments amounted to a repudiation of the deed. By way of accepting the repudiation, in May 2015 Ms Harrison lodged a complaint with the Australian Human Rights Commission (“AHRC”) alleging sexual harassment, discrimination and victimisation.
Between November and December 2016, Ms Harrison shared information publicly about her relationship with the Chief Executive Officer and aired various grievances she had in relation to her former employer. In December 2016, a media release that detailed confidential information contained in the Second Deed and the facts that led to the creation of the two deeds was released. In response, the Seven Network applied to the Supreme Court for an interlocutory injunction to restrain conduct it alleged was in breach of the deeds.
The Court found that the Seven Network’s suspension of payments was a response to Ms Harrison’s refusal to return company property and as such did not amount to a breach of the Second Deed. Further the Court noted that even if this was a breach, the obligation of non-disclosure was not conditional on the Seven Network’s performance of their obligations.
In response, Ms Harrison argued that her case was a matter of public interest, arguing that the enforcement of the non-disclosure obligation would stifle freedom of speech and the open reporting of matters of public interest. She also claimed that the dispute was in the public interest as it involved the interests of the Seven Network and its shareholders, both in a financial sense and because the dispute could shed light on the way in which the Network conducted its corporate governance.
While it was accepted by the Court that the case involved an element of public notoriety and by virtue of that, was in the public interest, the Supreme Court held that the Seven Network’s legitimate interests under the agreement outweighed any public interest in the matter. The Court made clear that where private parties enter into agreements freely, courts will be reluctant to interfere. Hence the court granted the Seven Network an interlocutory injunction preventing any disclosures that came within the terms of the agreement, stating that “if parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done… the thing shall not be done”2. The Court emphasised that it requires “compelling discretionary reasons” to refuse to grant injunctive relief where a breach of a negative covenant has occurred 3.
Is there too much cover-up?
The recent commencement of the Royal Commission has re-ignited discussion around the use of non- disclosure terms in agreements to prevent parties revealing misconduct or other wrongdoing.
The Royal Commission has been set up to, among other things, inquire into misconduct and questionable behaviour within the finance sector. One difficulty the Royal Commission faces is that many victims or witnesses to misconduct are subject to non-disclosure terms. As a consequence, unless the Royal Commission exercises its power to secure information or the corresponding party to the agreements waive their rights, these individuals face the prospect of proceedings alleging a contractual breach should they choose to disclose information to the Royal Commission.
Prior to the start of the Royal Commission, the Australian Council of Trade Unions (“ACTU”) launched a campaign seeking to secure agreement that banks and other financial institutions would waive their rights with respect to disclosure of information relevant to the Royal Commission. The “Big Four” Australian banks have confirmed that customers and former employees who had signed an agreement as part of a settlement are free to give evidence to the Royal Commission, without the threat of legal action.
Limitations, however, have been placed on the waiver. In particular, the Commonwealth Bank has signaled that the waiver is limited to disclosures to the Royal Commission, and has warned that disclosures outside of this forum may still potentially give rise to a breach.
Outside the Big 4, the position of other financial institutions, including regional banks and life insurance companies, is not as clear. In response to this, the Commissioner, the Honourable Kenneth Madison Hayne AC QC, reminded financial institutions of the Commission’s power to secure information:
“First, the commission would be very likely indeed to exercise its compulsory powers to secure the information in question…. Second, the very fact that an institution sought to inhibit or prevent the disclosure of the information would excite the closest attention, not only to the lawfulness of that conduct but also what were the institution’s motives for seeking to prevent the commission from having that information.”4
While recent developments show that courts may be reluctant to interfere with private agreements that have been made for consideration, caution needs to be exercised. There is still the risk that the information may eventually come to light at some point in time, and the enforcement of strict non-disclosure obligations where wrongdoing is systemic can have considerable reputational consequences.
Factors to consider in framing non-disclosure terms include:
- What are the legitimate interests of the parties that should be protected?;
- Would a non-disclosure term simply conceal a culture that will do long term damage to the organisation?; and
- Does the agreement contemplate limited circumstances where disclosure may be permissible to further the public interest?
PCS strongly recommends that you seek advice when preparing documents containing confidentiality obligations.
1  NSWSC 129.
2 Otis Elevator Co Pty Ltd v Nolan  at 30 referencing Doherty v Allman (1878) 3 App Cas 709, 720.
3 Otis Elevator Co Pty Ltd v Nolan  at 17.
4 Sue Lannin, ‘What we did (or didn’t) find out about the banking royal commission’, ABC News (online), 12 January 2018
Michael Starkey, Associate
Rohan Burn, Graduate Associate
With the Alcohol and Drug Foundation reporting that alcohol and drug misuse costs Australian workplaces approximately $6 billion per year in lost productivity, it is understandable that many employers will seek to implement a framework for dealing with drug and alcohol usage in the workplace. Ensuring that employees are not impaired by the effects or after-effects of drug and alcohol use is an important part of driving a high-performance culture, meeting an organisation’s responsibilities regarding the health and safety of employees, protecting an organisation’s reputation, and encouraging employee wellbeing. However, introducing a drug and alcohol policy into the workplace is often not an easy task. For any organisation, determining where to draw the line on drug and alcohol use (for example, whether the policy should be “zero-tolerance” or adopt a different approach) will depend on a number of factors, including the work health and safety context in which the organisation operates (“high-risk” or “low-risk”), and the nature of the work undertaken in the organisation. Just as importantly, when enforcing drug and alcohol policies, employers also need to consider a number of legal risks that may arise, including under anti-discrimination and unfair dismissal laws.
When it comes to drug and alcohol policies, what does a best practice approach look like?
While any employer is likely to receive some pushback when seeking to implement a drug and alcohol policy, it is possible to mitigate this by adopting an approach focused on obtaining the “buy-in” of the workforce. The rationale for the policy should be clearly communicated, and it may be appropriate to develop the terms of the policy in consultation with the workforce. Further, best practice policies tend to take a holistic approach, rather than simply a focus on punitive outcomes. A holistic approach includes an emphasis on providing support, counselling, and education, rather than seeking to “catch out” workers. In addition, it recognises the reality that many employees take prescription medications, and will encourage responsible use and disclosure. Moreover, the policy should seek to build an understanding of the impact of alcohol or drug misuse in the workplace, as well as the likely disciplinary consequences. This is important from both a cultural and legal perspective. Policies framed in this way are more likely to be accepted by a workforce, and more likely to be looked at favourably by courts and tribunals.
What is a zero-tolerance drug and alcohol policy?
In most cases, the term zero-tolerance is used to refer to a drug and alcohol policy which sets “cut-off” levels, and stipulates that testing which reveals a breach of the policy will result in disciplinary action. The levels specified in a policy will often depend on the nature of the work carried out in the organisation. For example, in high-risk industries such as manufacturing and mining, where the potential safety ramifications of a breach of the policy are significant, a zero-tolerance policy is likely to be the most appropriate response. Conversely, in industries which depend on entertaining and interacting with client (for example, because employees may reasonably be expected to consume some alcohol while entertaining clients) policies might be tailored to cover how employees are expected to behave in situations where alcohol is being consumed, while prohibiting other conduct outright, such as illegal drug use. Ultimately, employers have a right to set what they regard as reasonable standards for drug and alcohol use within and affecting their workplaces, and to enforce those standards.
While, on their face, zero-tolerance policies prohibit certain conduct, they also serve the function of educating employees on their responsibilities and the organisation’s behavioural expectations. They should detail the method of testing to be used, and outline the steps involved in any disciplinary process. Where a breach of a drug and alcohol policy is established, any disciplinary outcome needs to align with the terms of the policy and take into account all the surrounding circumstances of the employee in question. This will maximise the likelihood of an employer being in a position to defend the decision in the event that an employee pursues legal action.
What is the role of the Australian Standards?
In a number of recent Fair Work Commission (“FWC”) decisions, the FWC has indicated that reference to the relevant Australian Standards can be an appropriate way to communicate and implement a drug and alcohol policy effectively. The FWC has also commented that while compliance with the Australian Standards is not mandatory, it can enhance the integrity of a drug and alcohol policy. The Australian Standards provide guidance on the processes required for drug testing to be performed in a valid and reliable manner. In one case, an employer implemented a zero-tolerance policy in which it defined the expression “free from the presence of other drugs whilst at work” as a reference to not having a reading in excess of the relevant Australian Standard cut-off level. The effect of linking it to the Standard was that the organisation communicated clearly to employees that they were not permitted to work with any concentration of drugs to the extent that this could be detected by the processes set out in the Standard.
What method of testing should be used?
There is a separate Australian Standard for urine, saliva, and alcohol testing, and employers need to consider which method of drug testing is appropriate for the circumstances of their business. Historically, the preference of unions has been for saliva testing to be used, on the basis that a mouth-swab is more indicative of present levels of impairment, while a urine sample is more likely to detect historical drug use. However, recent decisions of the FWC have indicated that employers are able to utilise either or both methods of testing, provided adequate protections are implemented to protect the privacy of the employee being tested (for example, it may be inappropriate for a urine sample to be taken by an employee’s colleague). In one case, the FWC rejected the submission that urine testing is unnecessarily invasive because it has the potential to reveal information about an employee’s out-of-office conduct that an employer should not need to know or try to control.
How should disciplinary action for breaches of a drug and alcohol policy be managed?
Disciplinary action should be approached on a case-by-case basis. Just because a policy provides for termination of employment in particular circumstances, does not mean that termination will always be appropriate when those circumstances eventuate. Employers should take a broad approach and consider all the circumstances of the individual employee, including an employee’s record of service. For example, terminating the employment of an employee with a “clean” and long record of service for a minor breach of a drug and alcohol policy may give rise to a successful unfair dismissal claim on the basis that the dismissal was harsh or unjust if it is in a “low-risk” industry. Additionally, the circumstances of an employee’s drug or alcohol use should be considered, including whether this may be a result of an addiction. Where addiction is an issue, it may be more appropriate to approach drug and alcohol use as a “fitness for work”, rather than “misconduct” issue, although it is always advisable to seek legal advice in such circumstances, particularly around the safety aspects that may arise. In order to build a solid foundation on which to take disciplinary action in the right circumstances, employers should ensure that all employees receive adequate training on the relevant policy and understand what the organisation expects from them.
- Employers should tailor their drug and alcohol policies to their industry and workplace.
- Develop policies that set standards of expected behaviour, are focused on safety and wellbeing, and build a culture of compliance, not policies that only seek to punish.
- Consider referring to the relevant Australian Standard to bolster the integrity of your policy.
- Make your policy well known and ensure employees receive adequate training.
- Consider disciplinary action on a case-by-case basis, taking into account the circumstances of the employee involved.
PCS assists clients in policy development and review and conducts training for managers on these and other WHS issues.
The Federal Government has released an exposure draft of a new Bill on taxation and superannuation guarantee integrity measures. The Bill requires all employers to implement Single Touch Payroll (“STP”) reporting, grants the Australian Taxation Office (“ATO”) stronger enforcement powers, and sets out when new offences may have been committed.
Currently the STP reporting framework comes into effect from 1 July 2018 for entities with 20 or more employees. The STP is intended to facilitate the ATO in detecting, monitoring, and preventing the non-payment of superannuation. The technology enables and requires employers to provide the ATO with real-time reporting of superannuation and payroll information, such as withholding payments, employee wages, and superannuation contributions.
The Bill introduces additional reporting requirements, and will extend the STP rules to all employers from 1 July 2019. This will provide the ATO with greater visibility and address the “significant proportion” of superannuation guarantee non-compliance attributable to small businesses. This was one of the recommendations of industry and government reports in 2016 and 2017. The reports called for additional resources and powers for the ATO to ensure employer compliance with superannuation guarantee obligations and to recover unpaid entitlements.
New enforcement and compliance measures
The Bill gives the Commissioner of Taxation the ability to direct an employer to:
- pay unpaid and overdue superannuation guarantee charge liabilities;
- undertake educational courses relating to superannuation guarantee obligations; and
- provide a court ordered security deposit for the payment of existing or future tax related liability.
The Bill also allows the Commissioner to disclose a current or former employer’s suspected non-compliance to an affected party.
With some exceptions, the Bill creates offences for the failure to comply with the directions set out above.
Notably, an employer is not exempt from administrative penalties and/or criminal liability even if it took all reasonable steps to comply with the direction to pay, if the employer cannot establish that all reasonable steps were also taken to discharge the liability before the direction was made.
Before issuing a direction to pay, the Commissioner of Taxation must consider the employer’s history of compliance with taxation laws, the steps the employer has taken to discharge or dispute the unpaid liability, and whether the amount is substantial, having regard to the size and nature of the business.
Key takeaways if the Bill is enacted
Roseanna Smith, Graduate Associate
The Fair Work Commission (“FWC”) has held that a lockout constituted an “excluded period” of service under the Fair Work Act 2009 (Cth) (“FW Act”), and consequently that the employees affected by such action did not accrue annual leave or long service leave during this period.
What is an “excluded period”?
The FW Act provides that a period of service is a period during which the employee is employed by the employer, but does not include an “excluded period”.
An excluded period is defined to include any period of unauthorised absence or any period of unpaid leave or unpaid authorised absence (other than certain specified categories).
When calculating leave entitlements, an excluded period will not be included in a period of service, although it does not break the employee’s continuous service.
In April 2017, after a year of enterprise agreement negotiations, an employer locked out its employees in response to notified industrial action that was to take the form of work bans and four-hour stoppages. A dispute then arose as to whether the lockout constituted an “excluded period”.
The FWC decided that a lockout was an unpaid authorised absence, as it was an absence “that is endowed with authority or approval” by the employer. The FWC determined that it did not matter whether the employees who were absent “agreed or wished to be absent”; what is relevant is that the absence was authorised by the employer.
The FWC was of the view that because the FW Act expressly deals with the situation where employees are stood down as being included in a period of service, it considered that the legislature had turned its mind to the issue. Hence, if a lockout period was meant to be included for the purpose of calculating leave entitlements the legislature would have expressly included that within the FW Act provisions.
Long Service Leave
Both the relevant Modern Award provisions and the relevant state long service leave legislation (Long Service Leave Act 1992 (Vic) (“LSL Act”)), referred respectively to an “unbroken contract of employment” and “continuous employment”. The Modern Award and the LSL Act provided for exclusions when calculating long service leave, including “service interruptions”, such as industrial disputes. The Commission agreed with the employer that the ordinary meaning of industrial dispute included disputes arising from enterprise agreements and lockouts. Consequently, during the period of the lockout the accrual of long service leave was effectively paused.
The decision is significant because it highlights that the consequences of industrial action can extend to employee entitlements. It remains to be seen whether the decision will discourage industrial action by employees.
Roseanna Smith, Graduate Associate
Many employers choose the flexibility of maximum term contracts when engaging employees for specific tasks or short-term employment, and assume that their time-limited nature means that they cannot give rise to an unfair dismissal claim. A recent decision by the Full Bench of the Fair Work Commission brings this into question.
A maximum term contract is a contract that states the latest point at which the employment contract is to expire, but it may also provide a right for either party to terminate the employment contract prior to the nominated date with notice. This distinguishes it from a “true” fixed term contract, where neither party has the ability to terminate the employment contract prior to the nominated expiry date.
The Fair Work Act 2009 (Cth) (“FW Act”) requires that an unfair dismissal application be based on a termination of employment at the initiative of the employer. This generally does not include where the employment comes to an end merely through the effluxion of time.
Until recently, the leading authority on maximum term contracts and unfair dismissal was a decision involving an employee who had been employed on successive maximum term contracts over a period of seven years, with an on-going expectation of renewal. The Australian Industrial Relations Commission found that an unfair dismissal claim could not be brought on the basis of the non-renewal of her contract, as the termination was simply due to the effluxion of time, and therefore was not at the initiative of the employer.
In December 2017, the Full Bench of the Fair Work Commission departed from this approach. The case involved an employee who had been employed on a succession of back to back maximum term contracts, with an expectation of renewal, spanning over four years. At the expiration of the employee’s last contract, the employer did not offer him another employment contract due to his alleged poor performance.
The Full Bench determined that the correct approach was to look at the entire employment relationship, rather than simply having regard to the termination of the last of a series of employment contracts.
As a consequence of this approach, an employee may be able to bring an unfair dismissal claim if they were employed on a maximum term contract where the nature of the arrangement suggests on on-going relationship. Where the time-limited contact reflects a genuine agreement between the employer and employee that the employment relationship would not continue after a specified date, then in the absence of any vitiating factors, representations or sham agreement, there is unlikely to be a termination at the initiative of the employer.
A “true” fixed term contract continues to be protected from an unfair dismissal claim at the expiration of the fixed term. But if the time-limited contract does not in truth represent an agreement that the employment relationship will end at a particular time, the factual circumstances need to be examined to determine whether any actions of the employer were the principal contributing factor resulting in the termination of the employment, and therefore could be regarded as being at the initiative of the employer.