June 2014: Workplace Relations Update for Executives on-the-go

The 2014 FIFA World Cup is upon us!

facebook Twitter LinkedIn RSS

In this edition:

  • 2014 FIFA World Cup – A Workplace Relations Perspective
  • First “officer” charged under model Work Health and Safety Laws
  • TV Wars: how to avoid ending up in court when a valued employee leaves


The 2014 FIFA World Cup is upon us!

As with other national and international events, the World Cup presents workplace risks and opportunities, of which managers should be mindful. Australians come from different backgrounds and for many, football is a genuine part of their culture. Normally, the regular support of one’s local football team does not affect others in the workplace. However for global events like the World Cup when patriotic pride is on the line, the competition goes beyond football and can result in passionate and vocal international rivalry between colleagues. In this context, behaviour which one person views as nationalistic support might be viewed differently by someone who comes from an opposing country and possibly, even be seen as discriminatory.

How should you seek to manage the potential for work-place football emotion to turn into something more serious?

Well rather than adopt an inflexible blanket approach to the management of these risks, we emphasise that the best control is to encourage an open workplace culture but remind all staff as to what you consider to be acceptable behaviour and what you consider to be unacceptable.

You may want to turn your mind to reasonable and sensible approaches to managing employees who may want to watch World Cup matches. You could consider:

  • allowing workers to start later;
  • allowing changes of your roster; or
  • allowing workers to take personal leave.

Of course, it is also important to set your expectations, especially where the safety of your workers is concerned. Drug and Alcohol policies are part of Workplace Health and Safety requirements, and you have a legal duty to follow them.

You should not make your workers lie to you if they want to watch the World Cup. Managers should view the World Cup as an opportunity to boost morale, and be realistic about what your workers may do in their time off.

In the meantime, here’s a roundup of information you might need to know about the World Cup:

The FIFA World Cup…

Is one of the biggest sporting events in the world. This year, it is being held in Brazil. The 2010 Tournament reached nearly 2.2 billion viewers.

Australia will play three group stage matches (in AEST local time) at….

8:00am Saturday 14 June 2014 v Chile

2:00am Thursday 18 June 2014 v Netherlands

2:00am Tuesday 24 June 2014 v Spain

The final will take place at…

5:00am Monday 14 July 2014 (which will probably lead to some late starters)

Australia have sent a young team…

with an average age of 25.7 years old.

Australia’s chances of winning the championship are…

according to some betting agencies, about 750 – 1.


First “officer” charged under model Work Health and Safety Laws

Recent charges laid against a senior company manager in relation to the death of a worker in the ACT provide a timely reminder to all company officers that they can be found personally liable under the model Work Health & Safety (WHS) laws.

Michael Booth, a 48 year old truck driver, was electrocuted while working for Kenoss Contractors Pty Ltd (Kenoss) in 2012. The death occurred when Mr Booth tipped his truck trailer to offload gravel and touched a power line. An investigation by the ACT Work Safety Commissioner found that the power line seemed to be very low.

Last week charges were laid by WorkSafe ACT under the ACT’s Work Health and Safety Act (Act) against Kenoss (as the person conducting a business or undertaking ‘PCBU’) for failing to comply with its obligations to ensure the safety of its workers and to provide a work environment free of risk to their health and safety. A senior manager, alleged to be an ‘officer’ under the legislation, was also charged for failing to exercise due diligence to ensure that the PCBU (Kenoss) complied with its work health and safety duties under the Act.

The alleged failures of Kenoss and the officer to comply with their health and safety duties meant that they were also charged under section 32 of the Act because their failures exposed a person to a risk of death, serious injury or illness. Section 32 is a Category 2 offence under the Act meaning the company and manager face maximum penalties of $1.5 million and $300,000 respectively.

Interestingly, we understand that the officer is allegedly not a director of Kenoss, but a director of a related company. Whether or not the officer is therefore an ‘officer’ of Kenoss as defined under the Corporations Act (Cth) is likely to be an issue for determination at trial – scheduled to start on 17 December.  

Our previous blog and whitepaper explain the due diligence obligations which directors and officers of an organisation are required to comply with the WHS laws. As a quick reminder, all directors and officers have a positive obligation to undertake due diligence to ensure that their organisations are compliant. Directors and officers are also required to ensure their organisations have appropriate resources and processes in place to manage WHS and, critically, to verify that these processes actually work in practice.

Although it’s yet to be seen if the charges against Kenoss and its ‘officer’ will be upheld in court, the fact that these charges have been brought reinforces the importance of having in place WHS policies, procedures, training and testing modules to help managers and staff to know what is expected of them and to ensure they have key tools and information at their fingertips at all times.

Whilst accidents will happen, ultimately it is likely to be the manner in which an organisation has documented and implemented its WHS systems that will come under the spotlight during an investigation.

How would your organisation stand up to close scrutiny of its WHS systems and processes?  Does your executive and board receive regular reports that allow individual officers to meet their due diligence obligations and verify that your WHS systems and processes are actually working in practice?



TV Wars: how to avoid ending up in court when a valued employee leaves

Every business hates to lose valued and talented staff and most businesses will use various measures to try and avoid such staff leaving. But when your efforts to keep staff result in court proceedings you have to ask, how far is too far in the fight to retain talent?

They don’t just compete on ratings….

A highly publicised case between Network Ten Pty Ltd (Channel Ten) and Seven Network (Operations) Limited (Channel Seven) was recently decided in the NSW Supreme Court, whose judgement sheds some light on the law in this area. The case revolved around the movements of a programmer, Mr Stephens, between the two TV channels. Mr Stephens worked for Channel Seven until Channel Ten approached him with a better offer. On 6 March 2014, Mr Stephens signed an employment agreement with Channel Ten and gave notice of his resignation to Channel Seven. He was due to start work with Channel Ten on 9 June 2014 for two years. Channel Seven then responded by making Mr Stephens a better offer, which he accepted. On 10 March 2014, Mr Stephens told Channel Ten he would not be starting employment with it. Channel Ten did not accept his decision and sued.

What legal argument was available to Channel Ten?

Channel Ten argued that Channel Seven had knowingly and intentionally induced a breach of the Channel Ten contract. This argument was based on the tort of inducing a breach of contract or ‘interfering with contractual relations’. Significant damages could result.

For Channel Ten to succeed with establishing this tort it had to prove that Channel Seven:

  • had procured or induced Mr Stephens to change his mind; and
  • had an intention to bring about a breach of his Channel Ten contract.

Ultimately, the NSW Supreme Court held that Channel Seven had induced Mr Stephens to behave in the manner that he did but because the Channel Ten contract had not yet commenced, there had been no breach of it. The NSW Supreme Court also found that the Channel Ten contract remained on foot.

What should employers take away from this case?

This case is another reminder of the importance of signed employment contracts in recruitment battles. In this case although it has not yet started, Channel Ten’s contract is still enforceable.

The case is also a warning to employers to avoid going too far in trying to retain their employees, especially when they have already signed another contract. Any effort to intentionally intervene in those new contractual rights could be seen by a court as meeting the test for the tort of inducement to breach a contract.

Arguably, this case also shows that it’s wise for an employer to avoid making a counter-offer to keep an employee after that employee has already signed a new contract with another employer.

Given the Channel Ten contract is still on foot and Mr Stephens’ employment with it was technically due to start on Monday 9 June 2014, it remains to be seen if Channel Ten seeks to enforce it – assuming Mr Stephens did not turn up for work on Monday (he is currently working for Channel Seven).

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

Financial Services Updates

Financial Services Updates