16 December 2014: Workplace Relations Update for Executives On-the-Go

2014 in review

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In this edition:

  • 2014 in review; and
  • five fast facts for festivities.

2014 in review

2014 has been a year of change. With the amendments to the Privacy Act 1988 (Cth) taking effect at the start of the year, privacy has been on the minds of many. Our articles on the privacy procedures, practices and systems (Part 1, and Part 2) you need to implement to comply with the new laws were widely read, and useful as a plain English explanation of the new laws.

In Human Resources and Employment Law, this year’s theme has been that employers should be wary of dismissing someone for the right reasons, but in the wrong way. Providing employees with the right to respond to allegations, an opportunity to have a support person, and conducting an appropriate investigation, all help to protect an employer from unfair dismissal claims. The importance of managing employment policies, in order to rely on them when making decisions, was also featured this year. In one case we noted, two flight attendants whom Qantas claimed had mis-used CabCharge vouchers, were reinstated because Qantas could not show evidence that the employees knew and understood the policy that they had purportedly breached.

Significant court decisions have also turned attention to employers and their responsibilities in dealing with workplace sexual harassment and sex discrimination. In this year’s landmark decision of Richardson v Oracle Corporationthe Federal Court of Australia quadrupled damages awarded to a woman who was sexually harassed, referencing ‘prevailing community standards’. This represents a large stick to employers to ensure that their anti-discrimination and sexual harassment policies are up to scratch. At a minimum, staff should receive training on what constitutes acceptable and unacceptable behaviour, managers must monitor behaviour, and once a complaint has been made (or inappropriate behaviour witnessed), it must be addressed promptly and appropriately.

This year has had some good news for employers. The High Court, in Commonwealth Bank of Australia v Barkerhas clarified that no implied term of mutual trust and confidence exists in contracts of employment in Australia. This case also clarified that a company’s policies do not become a part of the employment contract unless the contract says so or it is implied by law.

There has also (finally) been some progress by the WA government in joining the national (model) work health and safety system. In October, the WA Government introduced legislation, based on the national model legislation, for three months of public comment (a ‘Green Bill’). Over the last three years, all States and Territories except WA and Victoria have passed essentially the same work health and safety legislation.

The commencement of the Fair Work Commission’s anti-bullying jurisdiction has not spelt the end of the world. It’s first quarterly report on anti-bullying actions revealed that of the 151 stop-bullying applications, only eight went to a full hearing and decision. Of these seven were dismissed and only one was successfully upheld. In the latest quarterly report, 15 out of 189 applications went to a decision of the FWC, and all 15 were dismissed. The vast majority of applications were resolved between the parties prior to hearing.

Finally, social media and its perils has continued to be an issue for employers. This year’s lesson however, is for employees. Various decisions have shown that an employer can impose restrictions on the private behaviour of employees, where it can be shown that there is a reasonable connection to protecting the legitimate needs of the employer. Contemporary work practices mean that employment does not necessarily end for the day at 5pm, so an employee’s purportedly private posts on job ratings sitesLinkedIn connections and Facebook posts could all lead to his or her downfall.

Five Fast Facts for Festivities

Lest employers be visited by the disgruntled ghosts of dissatisfied employees past, present and future, there will inevitably be Christmas celebrations happening around the country. With that, here are five quick tips to help you achieve a litigation-free holiday season.

  1. Your workplace does not end at the front door of your office. As we previously wrote, the pub across the road can be a person’s ‘workplace’ if there is a work-related reason for being there.
  2. Your obligations don’t end as soon as the bar tab stops. Measures such as providing cab charges are a risk mitigation strategy for making sure everyone gets home safely, not just a perk.
  3. Drug and alcohol policies matter. There are a range of reasons for this, but as a minimum – if you did not have a written drugs and alcohol policy in place, how do your employees know what is acceptable and unacceptable behaviour and how can you react in response to an incident?
  4. Sexual harassment (and racial harassment and bullying) policies apply at all work-related events, including your Christmas party, and any other work-related functions that your employees may attend such as client and supplier end of year events. Policies must be communicated, understood, and enforced. Being under the mistletoe is no excuse.
  5. Social media could be your undoing. Remember, especially if you work in a publicity-sensitive workplace, that any off-colour behaviour by employees can pose a risk to your client relationships. Take the time to remind your staff that social media policies continue to apply.

Compliance with Current and Future Child Protection Laws – Embedding a Child Protection Culture. How can this be achieved?

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