Welcome to our monthly Workplace Relations Update for Executives-On-The-Go.
In this update we cover:
- The introduction of Dad and Partner Pay
- Changes to Parental Leave
- Work Health & Safety: International and Remote Travel
- Investigating Suspect Workers’ Comp Claims: Adverse Action?
- Protecting your Intellectual Property: Contract and Practice
Dad and Partner Pay
Commencing 1 January 2013, Dads and partners (including same sex) are entitled to a federal government payment equivalent to two weeks on the minimum wage, if they take leave within 12 months of the birth of their child, or the adoption of a child, provided that they:
- Earned less than $150,000 in the previous year
- Worked continuously for at least 10 of the preceding 13 months, and have worked at least one day per week in that 10 month period
- Be on unpaid leave at the time they receive the payment (i.e. not on annual leave)
- Use the leave to provide care for the child whether jointly, or as the primary carer.
Dads and partners who satisfy those conditions will be able to lodge claims (for payment commencing 1 January 2013) from 1 October 2012.
Changes to Parental Leave (Fair Work Act)
Some relatively minor changes to the Parental Leave provisions of the Fair Work Act, which become effective immediately are:
- Temporary employees who are hired to cover employees on parental leave must be advised that their employment is temporary and may be terminated earlier than expected under certain circumstances e.g. if the employee they are replacing experiences an infant death.
- “Keep in touch days” while the employee is on parental leave cannot commence until 42 days after the birth (or adoption placement) unless requested by the employee. The employee can only request “keep in touch days” after 14 days following the birth or placement.
- A pregnant employee may commence unpaid parental leave more than six weeks before the expected birth date, provided the employer agrees.
- If the pregnant employee has a still birth or infant death, they are entitled to return to work early from parental leave provided they give 4 weeks’ notice, or the employer gives them 6 weeks’ notice.
Investigating Suspect Workers’ Comp Claims: Adverse Action?
Adverse action claims under the Fair Work Act are gathering momentum as lawyers find evermore creative ways of using this remedy.
An employee who claimed workers’ compensation was investigated by the employer after rumours began to circulate about the extent of his injury. The employee took action in the Federal Magistrates Court when the employer suspended him after finding evidence pointing towards rorting of the system. The employee claimed the adverse action (suspension) occurred as a result of claiming his entitlement to workers’ compensation, a prohibited ground of discrimination, and hence the employer was in breach of the law.
In good news for employers the Federal Magistrate found that investigating whether someone in fact had a legal entitlement (and then taking action) did not constitute “adverse action for a prohibited reason”.
Adverse action claims carry maximum penalties for breach of over $30,000 for organisations and $6,600 for individuals.
Work Health and Safety: Risk Assessing Travel
A recent study by the medical and security services company, International SOS, found that less than 40% of Australian companies had conducted risk management on their international business travel. It is not just travel to obvious war zones such as Afghanistan or Syria, or African countries with governments of dubious legitimacy, that requires planning. The three countries highest ranked for security incidents in 2011 were Japan, Egypt and India, closely followed by Brazil, Russia and China.
Workplace Safety laws mean that an employer carries a duty to control reasonably foreseeable risks to the health and safety of not only employees, but contractors, sub-contractors and their employees. To satisfy this duty a risk assessment must be conducted, and controls put in place. This duty cannot be waived just because an employee (or contractor) is a seasoned traveller
Once the risks have been assessed, procedures must be put in place which address situations ranging from emergency communication and evacuation in case of natural disaster or major terrorist events, as well as addressing micro-level risks, such as being aware of an individual’s specific health risks and having plans in place for not just evacuation, but in-country medical support. And don’t forget the vaccinations!
If you think the answer is to limit travel to domestic, a company was recently fined $50,000 in the Kalgoorlie Magistrates Court for failing to safeguard the health and safety of two of its employees who became lost while travelling to a remote Aboriginal community in the desert, 600km north of Kalgoorlie. Their employer had not provided a GPS, their satellite phone did not work, there was no system for regular communication, and they had not received any training in remote travel. The new WHS regulations (not yet enacted in WA) specifically require the PCBU (aka the employer) to ensure “effective communication system” for remote workers.
Protecting Intellectual Property: Contract and Practice
Protecting your organisation’s intellectual property is a critical business risk, however, even contract of employment provisions can be undermined by inconsistent practice in the workplace. This points to the need for policies and awareness by managers to understand their role in safeguarding an organisation’s intellectual property.
In a convoluted saga, a researcher from the Victorian Ministry of Education developed a questionnaire as part of his private research, but used data obtained in the course of his employment, with additional work resources, including assistance from colleagues. He then used the questionnaire as the key tool in a private company that he established. His employer (through a number of evolutions) also used the questionnaire in its work. Under Victorian law (and the usual position in most jurisdictions), where a person creates a work “in pursuance of the terms of their employment,” then the copyright is deemed to belong to the employer.
In this case the Federal Court found that the copyright was owned by the employee, not the employer, because:
- There was an oral agreement with his immediate supervisor that the questionnaire belonged to the employee, and that he could use the departmental data for his own purposes
- The development of the questionnaire was not actually required as part of the individual’s employment
- There was no clear provision in the contract that claimed copyright for the employer where the person used data obtained in the course of their employment.
How CompliSpace can help
All of the recent cases highlight the need for employers to have:
- legally compliant policies which are regularly reviewed for currency and relevance
- employee inductions, training, and testing to implement and embed those policies
- regular communication with employees to remind them of the policies
- a means of obtaining assurance that the policies are actually being followed.
CompliSpace’s comprehensive range of cost effective human resources policies, procedures, training and testing modules, ensure that managers and staff know what is expected of them and have key tools and information at their fingertips at all times. This enables a business to meet its workplace relations obligations while building a positive corporate culture, capturing knowledge and saving time. For more information, contact us on the details below:
P: +61 (2) 9299 6105 (Sydney) / +61 (8) 9288 1826 (Perth)