In the modern era of advanced technology, the issue of employee surveillance and privacy in the workplace has become increasingly relevant. Workplace surveillance can take various forms, including video surveillance, computer monitoring, telephone monitoring, email monitoring, and GPS tracking. There are certainly legitimate reasons for employers to monitor their employees using these means, such as ensuring productivity, preventing theft, or maintaining cybersecurity. However, in Australia, employee surveillance is subject to legal regulation, and employees have certain rights regarding privacy and monitoring in the workplace. This article will provide an overview of the legal framework concerning workplace surveillance.

Legal Framework

The legal framework governing workplace surveillance in Australia is a mixture of federal and state or territory legislation. Generally, state and territory law cover the installation and use of CCTV, and some states also have specific workplace surveillance legislation, while federal law provides broader privacy protections.

Under the federal Privacy Act 1988, and the related Australian Privacy Principles (APPs), employees across Australia have a right to personal privacy, even while performing their job duties. Under this legislation, employers should respect the privacy of their employees and ensure that any surveillance measures are reasonable, proportionate, and necessary for the legitimate business needs of the employer. Excessive or intrusive surveillance that goes beyond what is necessary may infringe on employees’ privacy rights.

It is important for employers to know that data that they collect through surveillance of employees is considered personal information. This includes the image of individuals collected through CCTV recording. Employers must take reasonable steps to protect this personal information from misuse, interference and loss, as well as unauthorised access, modification or disclosure. When an employer no longer needs to hold the personal information for the purpose for which it was collected, it must take reasonable steps to destroy the information or ensure that it is de-identified.

Employees who believe their privacy rights have been violated by surveillance undertaken by their employer have the right to lodge a complaint with the relevant authority, such as the Office of the Australian Information Commissioner (OAIC) or the Fair Work Commission.

Employee Consent to Surveillance

In most states it is necessary for employees to be notified about surveillance in their workplace. This can be achieved through clear policies, employment contracts, or workplace agreements. For some forms of surveillance, the employer must not only inform the employee, but also seek consent. When consent is required, it must be freely given, informed, and voluntary.

There are also specific areas of a workplace that cannot be monitored, including toilets, changing rooms and shower facilities. It is essential that any permitted surveillance does not accidentally record an area where an employee has a higher expectation of and right to privacy.

Covert Surveillance

Covert workplace surveillance is surveillance that takes place without the awareness of employees, and it is strictly prohibited in many jurisdictions across Australia. Even where covert surveillance is prohibited, however, there are exceptions for an employer who has sought authority through the courts. In New South Wales, for instance, a magistrate can issue an authority for the purposes of monitoring unlawful activity in a workplace.

Case Study

Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch was a case that considered the use of covert surveillance in the workplace. In New South Wales, the Workplace Surveillance Act 2005 requires that an employee be given at least 14 days’ notice prior to workplace surveillance commencing and, in the case of camera surveillance, there must be signs notifying employees that they may be under surveillance clearly visible in each entrance. In this case, however, surveillance cameras were installed at a gym with no prior notification and no signage.

An employee at the gym was observed acting in a way that his employee considered a reasonable basis for termination. The dismissed employee applied to the Fair Work Commission on the basis that his dismissal was predicated on information gathered through unlawful surveillance.

When the case was first heard, the CCTV footage was excluded because it was recorded in breach of the requirement that employees be given proper notice. On appeal, the Full Bench of the Fair Work Commission held that, even if the employer’s CCTV footage had been illegally or improperly obtained, the Commissioner had erred in automatically excluding such evidence. The Full Bench stated that the proper approach to be applied in considering whether or not illegally or improperly obtained surveillance should be admitted as evidence requires the consideration of the factors in the Evidence Act 1995 (NSW), including the probative value of the surveillance and its importance to the case.

This case illustrates that, although employers in NSW are required to give notice of surveillance, employees should be aware that their conduct can still endanger their employment if it is captured by undeclared covert surveillance.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Employers are responsible for creating safe working conditions for their employees. Most employers are familiar with the need to ensure that their working conditions do not expose their workers to unreasonable physical risk, but employers may be less familiar with the need to reduce psychosocial hazards.

Proactive Duty for Employers to Manage Psychosocial Hazards

From April 2023, employers in Queensland have a positive duty to do what is reasonable to prevent or reduce risk of psychological injury to their workers. This means that it is not enough for an employer to do nothing wrong: rather, an employer in Queensland must take active steps to help to reduce psychosocial risks and hazards. This is an increased duty of care compared to what has existed in the past.

An employer must eliminate psychosocial risks where this is reasonably practicable. If it is not reasonably practicable to eliminate such a risk, an employer must take steps to minimise any psychosocial risk as far as reasonably practicable.

Most employers in Queensland will need to take some steps in addition to their current arrangements to meet this new obligation. The officers of a company must exercise due diligence to ensure that these obligations are discharged. These duties cannot simply be transferred or delegated to another person.

The Code of Practice

The Queensland Government has issued a code of practice to help employers to understand their duty of care in relation to psychosocial hazards. In most cases, following this code will ensure that they are compliant with the safety duties in the WHS Act in relation to psychosocial hazards. Employers should become familiar with the code of practice and seek expert guidance on applying the guidelines in practice.

The code of practice provides guidance to employers on how to identify, assess, and control psychosocial hazards in the workplace. The code can also help workers to identify potential risks in their workplace and provide them with the knowledge and tools to raise concerns with their employer.

What are Psychosocial Hazards?

A psychosocial hazard is any situation in a workplace which may cause psychological harm to a worker. Issues such as workplace stress, bullying and harassment, for example, can affect an employee’s mental health and wellbeing. In extreme circumstances, exposure to psychosocial hazards may lead to suicide.

Psychosocial hazards can be caused by the nature of the work itself. They can also be created by how the work is managed, the environment, or interactions and behaviours with others. Common psychosocial hazards include:

• high or low job demands
• low job control
• poor support
• low role clarity
• poor change management
• low reward and recognition
• poor organisational justice
• poor workplace relationships
• remote or isolated work
• poor environmental conditions
• traumatic events
• violence and aggression
• bullying and harassment

It is important to note that an employer’s duty includes protecting workers from acts by third parties. For instance, an employer must take steps to protect workers in a hospital from hazards created by patients, and workers in a school from hazards created by students.

Reasonably Practicable

An employer must do what is “reasonably practicable” to ensure the health and safety of their employees. It is important to know that what is reasonably practicable is measured objectively (that is, by what a reasonable person would do).

In determining what is reasonably practicable, consideration can be given to:

• the likelihood of the hazard arising
• what the employer knew, or ought to have known, about the hazard
• the degree of harm that might result from the hazard
• the availability of ways to eliminate or minimise the hazard
• the cost of steps that would eliminate or minimise the hazard

An employer should consider all of these matters when determining what they can do to provide the highest level of protection for their workers in all of the circumstances. A business cannot expose workers to a lower level of protection simply because it has fewer financial resources compared to another business facing the same hazard.

Consulting with Workers

As far as practical, employers must consult with workers directly affected about ways to reduce psychosocial hazards in the workplace. Consultation is aimed at improving decision-making processes regarding health and safety, and reducing work-related injuries and illness. For instance, workers may have practical suggestions or potential solutions to address hazards they encounter in their daily work.

In relation to the requirement for consultation, the term “workers” includes anyone carrying out work in any capacity for the business or undertaking, including contractors and their employees, labour hire workers, outworkers, apprentices, trainees, work experience students and volunteers.

Duty of Workers

Not all of the liability for reducing psychosocial hazards rests with employers. Workers must take reasonable care for their own psychological health while in the workplace. In addition, workers must take reasonable care that they do not adversely affect the health and safety of other persons in the workplace. Amongst other things, this involves complying, as far as they reasonably can, with reasonable instructions given by their employers or supervisors and health and safety policies or procedures.

Taking care of their own health can involve a worker refusing to undertake certain tasks. If a worker has a reasonable concern that carrying out the work would expose them to a serious risk to their health or safety, they can cease performing the work or refuse to perform the work in the first place. In that situation, they must notify their employer and carry out suitable alternative work until it is safe for them to resume normal duties.

Conclusion

The code of practice aims to help employers and workers understand what psychosocial hazards are, the risks associated with these hazards, and to provide practical steps to eliminate or minimise these risks.

This information is for general purposes only and you should obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

In 2022, the Australian Government passed legislation to amend the Fair Work Act. Under this amendment, changes were made to some existing rules and a number of new workplace laws were introduced. Some of these changes are already in force, while others will be introduced progressively throughout 2023. A calendar of these amendments can be found here.

Notable changes are outlined below.

Prohibition of Pay Secrecy

Employees now have a protected right to share – or not share – information about their pay and the terms and conditions of their work with their colleagues. While an employee cannot be forced to give this information to another employee, they have the right to discuss their pay if they want to, and to ask other employees about their pay and work conditions.

This right does not apply to employees with an existing contract that includes a pay secrecy clause. However, new employment contracts (including renewals or amendments of existing agreements) cannot include pay secrecy clauses. If such a clause is included, it will have no effect.

Prohibition on Job Ads Including Unlawful Pay Rates

Job advertisements must not include pay rates that breach the Fair Work Act or a fair work instrument (such as an enterprise agreement). Members of the public can make an anonymous complaint to Fair Work if an advertisement includes a pay rate that is less than the minimum for the position.

In addition, advertisements for pieceworker positions where an employee is entitled to a periodic rate of pay must specify the pay rate that applies or state that a periodic pay rate will apply.

Increased Rights to Access Flexible Working Arrangements

From 6 June 2023, workers will have the right to request flexible working arrangements if they are pregnant, or if they (or a member of their family or household) experience family violence. Employers can only refuse such a request in certain circumstances. First, an employer must discuss the request with the employee and make a genuine effort to accommodate it. The employer must also consider the consequences of refusal for the employee.

If the request is refused, a written response must be provided that explains the grounds for the refusal, any other changes the employer will make to accommodate the employee’s circumstances, and information about referring the dispute to the Fair Work Commission. If an employer and employee agree to make changes that differ from the terms originally requested by the employee, the employer needs to confirm these agreed changes in writing within 21 days of the request.

The Commission can hear and make orders about disputes over flexible working arrangements requests if the parties can’t resolve the dispute at the workplace level. For example, if an employer refuses an employee’s request, or does not respond to a request within 21 days, the employee can apply to the Commission for redress.

New Gender Equality Measures

Following the amendments, job security and gender equality are now included in the objectives of the Fair Work Act. In addition, job security and gender equality have been made part of the objectives of modern awards and are two of the principles to be considered when setting minimum wages. This means that when interpreting the legislation, or setting awards or minimum wages, the Commission must strive to promote job security and gender equality. The Commission will also take steps to promote equal remuneration.

The amendments to the Fair Work Act also introduce breastfeeding, gender identity and intersex status as protected attributes. This means employers are prohibited from taking adverse action against current or future employees because of these attributes.

Prohibition of Long Fixed-Term Contracts

From 6 December 2023, changes will come into effect to prevent workers being engaged on long contracts, or successive contracts, rather than as a permanent employee. From this date, employers will have to give employees engaged on new fixed term contracts a “Fixed Term Contract Information Statement” (which will be available on the Fair Work website).

Under these changes, employers can no longer employ someone on a fixed-term contract that is more than two years in duration (including extensions) or issue successive contracts to the same worker performing the same role. In addition, the amendments prohibit contracts that can be extended more than once. In effect, this means that employees can only be engaged on contracts for less than two years.

Employers are prohibited from taking actions to avoid the new restrictions, such as delaying re-engagement of the same employee or engaging someone else on a contract to perform the same role as someone previously on a contract.

Some exceptions apply, such as if the fixed term contract is for a training arrangement, or the employee is covered by an award that allows fixed term contracts.

Enterprise Agreements and Enterprise Bargaining

A number of changes have been made to how industrial instruments and enterprise bargains must be commenced and terminated, and what happens if there are errors in these documents.

Notably, all agreements made before the commencement of the Fair Work Act that are still in operation will automatically terminate on 7 December 2023, although parties to an agreement can apply to extend the agreement for up to 4 years at a time.

Abolition of ABCC and ROC

The Australian Building and Construction Commission (ABCC), the former workplace regulator of the commercial building and construction industry, has been abolished. Its function has been taken up by the Fair Work Commission. The Commission will also now conduct the work of the abolished Registered Organisations Commission (ROC), the former regulator of unions and employer groups.

Conclusion

The Secure Jobs Better Pay reforms are likely to have far-reaching effect. It is important for employers to understand their obligations under these laws and to implement systems, as necessary, to deal with them.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Have you been working from home during the pandemic and are wondering if you are still able to do so, as people return to the pre pandemic world and go back to the office. The answer will really depend upon your particular workplace and circumstances.

This article provides a general guidance for workers as to when it is practical and reasonable to work from home.

Staying safe at work and home

Workplaces can generally allow their employees to work from home at their discretion. Obviously, a workplace must take into account whether there are any health orders mandating that certain employees work from home.

Work health and safety laws require employers to take all reasonable and practicable steps to ensure the health and safety of their workers from the risk of contracting COVID-19 in the workplace.

Employees also have health and safety obligations to minimise any risks when working from home. This may include:

• following work procedures about how your work is performed
• keeping your work equipment in good working order and using the equipment provided by your workplace per employer instructions
• maintaining a safe work environment, such as having a designated work area
• adjusting your furniture to ensure comfortable access, providing adequate lighting and ventilation in the area you are working from and repairing any uneven surfaces or removing any hazards
• continuing to ensure your own in-house safety, such as keeping up maintenance of electrical equipment and smoke alarms
• notifying your employer of any risks or potential hazards present in your workplace
• immediately reporting any changes that may affect your health and safety when working from home

When is working from home practical and reasonable?

This will largely depend on your particular workplace and the facilities available to work remotely and safely from home. When deciding whether working from home is appropriate for your particular situation, your employer should consider:

• your individual role and whether working from home is suitable for your work activities
• workflows, expectations and your workstation set up
• the surrounding environment in which you will be working from, such as ventilation, lighting and noise, and your home environment, such as partners, children, vulnerable people and pets
• any communication requirements such as frequency and type
• your mental health and emotional wellbeing
• the type of safe working procedures and training required

Any existing workplace policies will continue to apply when working from home. Employers must also continue to consult with their employees and any elected health and safety representatives on working from home arrangements.

What happens if I test positive for COVID-19 while working from home?

If you test positive for COVID-19 you must follow the health advice provided by your local public health authority and notify your employer as soon as possible.

Your employer should have discussed your leave arrangements with you prior to you working from home. If you are unsure of your leave arrangements, you should contact your employer and confirm same. It is also possible that you may continue to work from home if you have no symptoms, or only minor symptoms.

When can I be required to return to my workplace?

This is dependent on a range of factors, including:

• any public health requirements
• the individual circumstances of an employee working from home

All employers must ensure return to work arrangements adhere to relevant Australian and local government advice, legislation and that they also undertake a risk assessment and consult with employees before requiring them to return to the workplace.

Conclusion

Whether you are entitled to continue to work from home now that people are returning to the to the office will mostly depend on your type of work and workplace circumstances.

You will also need to continue to have health and safety obligations in place to help minimise any risks when working from home.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

All workers have the right to carry out their employment without being harassed or discriminated against. If you find yourself in this position, you may feel alone and powerless. However, it is important to remember that you have legal protections and rights when it comes to harassment and discrimination.

The discussion below provides guidance for workers on what steps to take if they find themselves being discriminated against or harassed in their workplace.

What is “harassment”?  

Under federal legislation, it is unlawful to treat a worker less favourably on the basis of their particular protected attributes such as, a worker’s sex, race, disability or age.

Below are some examples of behaviour that may amount to harassment;

• telling insulting jokes about specific racial groups
• sending sexually explicit or suggestive emails or texts
• displaying racially offensive or pornographic material
• making derogatory comments or jokes about a worker’s disability
• asking intrusive questions about a worker’s personal life, including their sex life

Some examples of bullying include:

• physically or verbally abusing another worker

• yelling, screaming or using offensive language towards another worker
• purposefully excluding or isolating a worker
• psychological harassment or intimidation of another worker

What is “discrimination in the workplace?”

Discrimination occurs where an employer takes adverse action against a worker or prospective worker because of a “protected attribute.” Protected attributes include:

• race, colour, religion, social origin or national extraction
• sex or sexual orientation
• age
• physical or mental disability
• marital status
• family or carer’s responsibilities
• pregnancy
• political opinion

“Adverse action” is defined as either doing, threatening or organising any of the following:

• firing a worker
• contributing to a worker’s injury as a result of not allowing them legal entitlements such as pay or leave
• making changes to a worker’s job to their disadvantage
• treating a worker differently to their colleagues
• not hiring a potential worker

An example of a recent discrimination case occurred where a labour hire company was found to have discriminated against a worker when they refused to hire the qualified 70 year old due to his age.

What can I do if I’m being harassed or discriminated against?

There are a few options available to you. Initially, you can approach your workplace health and safety or human resources officer or union representative. These people should be able to provide you with helpful advice. You can also report harassment or discrimination to your supervisor or manager.

You can also refer to your workplace policies and procedures which should provide a guide on how your workplace deals with discrimination and harassment, and what prevention strategies are in place.

If your type of employment comes under the jurisdiction of Fair Work Australia, you may also apply to the Fair Work Commission (FWC) for an injunction to stop the harassment or discriminatory behavior. The FWC can also make an order for compensation or reinstatement.

Negotiating with an employer can become overwhelming as there may be a power imbalance. We recommend seeking legal advice from an experienced employment lawyer to ensure you receive the best outcome possible.

Seek legal advice

If you feel that you have been harassed or discriminated against, an experienced lawyer can provide legal advice and options of realistic solutions for your particular situation.

A lawyer can also advocate to protect your current and future earnings and professional reputation by helping you claim compensation for lost income, distress and pain and suffering.

Who else can help me?

The Australian Human Rights Commission (AHRC) has the power to deal with complaints of workplace harassment or discrimination if the harassment or bullying has breached federal legislation. The AHRC resolves complaints through a conciliation process.

Conclusion

Workers who are dealing with harassment and discrimination in their workplace can often feel isolated and overwhelmed. However, it is important to understand the law provides workers with the right to carry out their work, free from discrimination and harassment.

This area of law can become complex and overwhelming, so we recommend you seek advice from an experienced lawyer.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Fixed-term employment contracts are common in many workplaces. Understandably, most employers consider they would be protected from an unfair dismissal claim once the term ends. However, in Saeid Khayam v Navitas English Pty Ltd t/a Navitas English (‘Navitas’) [2017] FWCFB 5162 the Full Bench of the Fair Work Commission found that an employee may have rights to pursue unfair dismissal proceedings even though the employment ends at the expiration of a fixed-term contract.

The case emphasises the need for businesses to remain vigilant in their employment practices and stay abreast of current workplace laws and their interpretation.

The case

Mr Khayam was employed by Navitas to perform teaching duties on a casual basis between 2005 and 2012. He was subsequently offered two consecutive fixed-term contracts, the last for the period 1 July 2014 to 30 June 2016 (the expiry date). This contract was entered despite Navita’s initial reluctance to offer a further term due to concerns over Mr Khayam’s unsatisfactory performance of administrative work.

The contract provided for the automatic termination on the expiry date. The enterprise agreement applicable to Navitas at the time both authorised the fixed-term engagement of employees and provided ‘absolute discretion’ as to whether or not Navitas would offer or renew such contracts.

Navitas informed Mr Khayam a few weeks before the last contract was to expire that further employment would not be offered based on his ‘performance and disciplinary record’. Mr Khayam’s employment ended on 30 June 2016 and he made an unfair dismissal claim with the Fair Work Commission.

Navitas argued that it had not dismissed Mr Khayam, rather his contract had simply ended upon expiry. The Commission initially agreed with Navitis and Mr Khayam appealed.

Termination at the ‘initiative of the employer’

Establishing that he was dismissed was key to Mr Khayam’s appeal. The Fair Work Act 2009 (Cth), at s 386 provides:

• ‘A person has been dismissedif:
  

• the person’s employment with his or her employer has been terminated on the employer’s initiative…
  

• However, a person has not been dismissedif:
  

• the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period…’

Upon reading s 386, it may have been plausible that Mr Khayam had not been dismissed however the Full Bench considered that such a decision was ‘artificially constrained and did not take into account all the relevant circumstances’. Consequently, the appeal was upheld.

The Full Bench declined to determine whether Mr Khayam had in fact been dismissed and the matter was referred back to the Commissioner, who had already heard the evidence and would now be equipped with the Full Bench’s reasoning to re-determine the case.

So, what does this mean?

Employers now face uncertainty as to the effectiveness of a fixed-term contract that is not renewed on expiration, for avoiding an unfair dismissal claim.

Rather than relying solely on the employment contract, emphasis must now be placed on the employment relationship in its entirety (in this case comprising a series of contracts over an ongoing and significant period). The Full Bench stated:

‘The analysis of whether there has been a termination at the initiative of the employer…is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment….

This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment…’

If the termination is initiated by the employer and not agreed by the employee:

‘… the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.’

Whilst not exhaustive, the Full Bench indicated the following factors that may be relevant and / or determinative in such cases.

• The contract itself and whether it may be invalidated or impaired due to:
• misrepresentation, misleading or unconscionable conduct, duress or coercion on the part of the employer;
• serious mistake as to the contents or subject matter, or lack of legal capacity on the part of the employee;
• terms that do not reflect the reality or totality of the terms of employment;
• terms that are inconsistent with an award or enterprise agreement;
• a sham arrangement.
• Where the actual contract is for a fixed term but the employer, during the period of employment, makes representations to the employee or engages in conduct that misleads the employee into thinking the employment would continue in certain circumstances, such as satisfactory performance.

Key takeaways

• Employers may not be protected from an unfair dismissal claim once a fixed-term contract ends.
• Employment contracts should be reviewed to ensure they are enforceable and do not contain voidable terms.
• Processes should be implemented to manage casual and fixed-term employees to limit exposure to an unfair dismissal claim, particularly when determining whether to renew fixed-term contracts.
• Managers and supervisors should ensure that their conduct does not mislead or misrepresent to the employee the true nature of the employment arrangement.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Sexual harassment is unfortunately still a common occurrence in the workplace. The Sex Discrimination Act 1984 (Cth) (Act) describes sexual harassment as any unwelcome conduct of a sexual nature, it also makes sexual harassment in the workplace unlawful.

There are many examples of behaviours that amount to sexual harassment. If you are an employer, you have a duty to prevent, to the best of your ability, sexual harassment occurring in your workplace. There are various things you can do to ensure you meet your responsibilities as an employer and minimise the risk of paying out compensation for sexual harassment claims.

What is ‘sexual harassment’ in the workplace?

The Australian Human Rights Commission (AHRC) has found that 72% of Australians have experienced sexual harassment in their workplace.

As mentioned above, sexual harassment involves any unwelcome or unwanted sexual conduct to an employee while they are working.

Examples of sexual harassment can include;

• inappropriate touching or text messages;
• sexually suggestive taunts or remarks;
• unwanted sexual requests;
• inappropriate questions about a person’s body.

Sexual harassment in the workplace isn’t strictly limited to a place of work, it also includes sexual harassment that occurs at work-related activities or can come from colleagues, managers or customers and clients. Acts of indecent exposure, stalking, sexual assault, obscene or threatening communications may amount to a crime and should be reported to Police.

What can I do to prevent sexual assault occurring in my workplace?

Under Workplace, Health and Safety laws (WHS) an employer must do all they reasonably can to prevent and manage the risk of sexual harassment occurring in the workplace.

The AHRC provides various guides to help employers understand and meet their legal obligations under the Sex Discrimination Act. You can find this helpful information here.

You should also have an accessible and simple complaint process available for employees to report sexual harassment informally, formally, anonymously and confidentially, including a list of information on support services available. You also cannot discriminate against or disadvantage an employee in any way for reporting sexual harassment. Having an effective complaint process can also help to identify ways to improve your workplace procedures and policies. It can also help avoid complaints to external organisations and from employees taking legal action against you.

If you want to ensure you are compliant with the procedures discussed above, we recommend you speak with one of our experienced lawyers.

Can my employee claim compensation for sexual harassment?

Yes! Employers can be ordered to pay compensation to employees who have been sexually harassed in the workplace for anxiety, depression, and other psychological effects caused by sexual harassment. Employers can also be made to pay compensation for economic loss if an employee chooses to leave their employment because of the harassment.

An employee is entitled to lodge a claim for compensation with the AHRC, within 12 months of when the harassment occurred.

The AHRC will then investigate and conciliate the employee’s complaint and determine whether the sexual harassment was unlawful. The AHRC can also arrange for the parties to attend mediation to see if a settlement can be reached.

If no agreement is reached through the AHRC, the employee has 60 days to apply for monetary compensation in the Federal Court.

The Federal Court can award damages for unlawful discrimination which includes sexual harassment. For example, in a couple of recent cases, an employee who was sexually harassed received $100,000 in compensation for the value of loss of enjoyment of life and the mental illness and distress resulting from sexual harassment and $30,000 in compensation for loss of income. In another case, an employee was awarded $120,000 in compensation for loss of income and psychological distress. A further $50,000 in compensation was awarded for aggravated damages because the employer failed to stop or prevent sexual harassment from occurring.

The above examples demonstrate the importance of having effective procedures in place that can prevent and manage sexual harassment in your workplace. If you want to minimise your risk of paying out compensation for a sexual harassment claim, we strongly recommend you speak to our experienced employment lawyers.

Conclusion

Employers have a duty to ensure they take reasonable steps to minimise the risk of sexual harassment occurring in the workplace and to have effective procedures in place to manage any sexual harassment complaints made by their employees.

Putting together effective procedures to minimise sexual harassment and handling sexual harassment claims can be a daunting and overwhelming task. This is why we recommend employers seek advice from an experienced lawyer.

This information is for general purposes only and you should obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

The Fair Work Act (FWA) was recently amended to change workplace rights for casual employees, and places new obligations on employers.

A new definition of casual employment has been introduced, as well as a pathway for casual employees to move to permanent employment, through casual conversion or offer of permanent employment. Essentially, the laws confer a statutory entitlement for long-term casual employees to be offered, or to request permanent employment in certain circumstances.

Employers must also give a copy of the Casual Employment Information Statement (CEIS) to their casual employees.

This information is general only. If you are an employer employing casual staff, you should be aware of your obligations under these laws and obtain professional advice specific to your workplace and circumstances.

Casual Employment Information Statement

Employers are required to give every new casual employee a CEIS before or as soon as possible after they start their new job. They also need to give their existing casual employees a copy of the CEIS as soon as possible. For further information, see Casual Employment Information Statement.

Definition of a “casual employee”

Generally, a person is a casual employee if an employer makes an offer of employment on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work, and the person accepts the offer on that basis.

A person will be considered a casual employee on the basis of the offer and acceptance as indicated above and not on the basis of any subsequent conduct of either party that may imply otherwise

Casual conversion to permanent employment

Subject to some exceptions, employers, other than small business employers (those with less than 15 employees), must offer casual employees conversion to full or part-time (permanent) employment if:

• the employee has worked for them for at least 12 months, and
• during the past 6 months, the employee has worked regular and systematic hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time or part-time employee.

If the employer does not offer casual conversion, they must write to the employee within 21 days of their 12-month work anniversary, advising them of their decision not to offer them the option to convert to permanent employment and their reasons for doing so.

The employer may only base their decision to not offer the employee casual conversion on “reasonable grounds”.

Casual employees may request permanent employment from an employer

Employees may request to convert to permanent employment 21 days after their 12-month work anniversary.

To be eligible to request casual conversion, employees need to:

• have been employed by the employer for at least 12 months;
• worked a regular pattern of hours on an ongoing basis for at least the last 6 months of their casual employment;
• be able to continue working these hours as a full or part-time employee without significant changes.

Employees will not be eligible to make a request if, in the last 6 months:

• they have refused an offer to convert to permanent employment;
• the employer has advised in writing that they will not be making an offer of casual conversion because there was a reasonable ground not to make the offer;
• the employer has refused another request for casual conversion because there was a reasonable ground to refuse the request.

Casual employees eligible to become a permanent employee can make a request for casual conversion every 6 months.

Employers need to respond in writing to an employee’s request within 21 days advising whether they have accepted the request. If the employer refuses the request, they must state the reasons why in their response. The reasons for not accepting a request for casual conversion must be based on a “reasonable ground”.

A “reasonable ground” may include that within the next 12 months any of the following will occur:

• the employee’s position will not exist;

• the employee’s hours of work will significantly reduce;
• the days or times of work will significantly change, and this cannot be accommodated within the employee’s available days or times for work.

Conclusion

Employers should review their employment contracts in line with these laws and the definition of a casual employee, and understand the circumstances under which a statutory right for casual employees to convert to permanent employment will arise.

Processes should be implemented to ensure that existing and future casual employees are provided a CEIS, and to deal with the conversion from casual to permanent employment.

With employment laws constantly evolving, it is important to obtain professional advice to ensure compliance with workplace laws, whilst balancing the resources and operational needs of an organisation.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

There are many stories in the media about inappropriate behaviour at work functions – the more public the ‘offender’, the more likely the incident will attract ongoing attention.

Work Christmas parties provide a great opportunity to mix with fellow colleagues and bosses, reflect on the year’s activities and get to know each other on a more personal level.

With each social function however, employers and employees have certain rights and responsibilities. Understanding these and working together should ensure everybody’s welfare is protected and avoid some of the pitfalls that can arise from poorly managed events. Issues can range from the embarrassment of having ‘one too many’ to serious claims of sexual harassment, bullying and discrimination.

So, while preparing to let your hair down for the end of year celebrations, it’s a good idea to brush up on some essential work function responsibilities so that your next event is not too eventful.

Laying down the law

Despite a work function being held off work premises and out of normal working hours, workplace laws still apply and an employer’s duty of care for its employees remains as if they were at work.

Accordingly, without resorting to becoming the ‘fun police’, it is appropriate for employers to remind their employees about acceptable behaviour, codes of conduct, workplace and social media policies, responsible alcohol consumption and the prohibition of illicit drugs. This reminder should be in writing, issued before the event, and may accompany the invitation.

Employer’s liability

Employers may be liable to compensate an employee if, through a negligent act or omission, they fail in their duty of care to prevent injury and the person suffers harm. This liability extends to work functions and events.

Employers are also vicariously responsible for the behaviour of their employees both in the workplace and at work functions. Vicarious liability is a type of secondary liability whereby a superior (employer) is responsible for the actions of a subordinate (employee). This arises from the common law principle that the employer has a right, ability or duty to control the employee.

An employer can therefore be liable for harm suffered by a worker (such as discrimination, harassment including sexual harassment, and bullying) due to the inappropriate conduct of an employee. The effects of too much alcohol or simply forgetting that the work function is deemed a workplace can often fuel behaviour leading to these issues.

Employee behaviour and misconduct

Employees who behave inappropriately at a work function not only reflect poorly on themselves and their employer but may risk losing their job. An employee can be formally disciplined and, if the behaviour is severe enough, may be dismissed.

Although there are laws to protect employees from unfair and harsh dismissal, several cases have established that misconduct, in some circumstances, is sufficient grounds for termination. Misconduct includes drunkenness, dishonesty, breach of confidence and insulting / objectionable language – all actions that may be exacerbated by a few too many drinks or in a social context.

Social media

Employees should ensure they comply with their work social media policy – just because it’s a party does not mean that the posting of inappropriate images and / or comments will not breach policy. Whether or not a social media policy is in place, the best advice is, if in doubt, don’t.

Top tips for a smooth event

The following checklists for employers and employees should help keep everybody safe and ensure that your next event is enjoyable and runs smoothly for all.

Employers

• Consider your employees’ religious and cultural beliefs, family and caring responsibilities, and travel requirements when planning, to foster an inclusive non-discriminatory event.
• Remind employees before the function that workplace policies and codes of conduct will apply, a breach of which may result in disciplinary action.
• Note that a mere reminder about workplace policies is insufficient if employees do not have access to, and have not had training in, such policies.
• Set specific starting and finishing times, reminding employees that a decision to ‘party-on’ after the event will not be condoned by the employer.
• Ensure sufficient food, non-alcoholic beverages and water are available.
• Liaise with function centre management to ensure that responsible service of alcohol rules will be upheld and that a key employer will be notified of any employee or guest in danger of excessive alcohol consumption.
• Provide employees with access to safe transportation after the party and ensure that they start their journey home from the event safely.

Employees

• Be respectful of others, their opinions and beliefs and conduct yourself appropriately. Try to avoid topics that are likely to become heated and, if discussions get too controversial, walk away and get on with enjoying the party.
• Make sure you are familiar with company policies and codes of conduct.
• Drink sensibly and eat well to slow alcohol absorption.
• Look out for your colleagues and guests and ask for assistance if you believe somebody’s welfare might be compromised.
• Don’t get drawn into office gossip or behaviour that may be perceived as offensive, lude or explicit.
• Be mindful about social media – apart from checking on the children and calling a taxi to get home safely, why not just leave the mobile aside and get on with enjoying the night.

Conclusion

Well-planned end of year work celebrations can be very rewarding and build morale within the workplace. By following some simple steps employers and employees can ensure the party is inclusive and fun for everybody, while keeping professional and personal reputations intact and avoiding legal complications.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Most employer/employee relationships are now governed by the Fair Work Act 2009 (Cth) which sets out minimum standards of employment and provides protection for employees against unfair or unlawful dismissal.

If you believe you have been unfairly or harshly treated in your workplace, you may be entitled to make a claim through the Fair Work Commission.

This article provides an overview of unfair and unlawful dismissal in the workplace. The information is intended to be general only, and we recommend obtaining legal advice relevant to your circumstances.

Termination and unfair dismissal

Termination of employment occurs through the voluntary resignation of a worker or dismissal by the employer on the grounds of redundancy or for other reasons.

When terminating an employee, employers must act in a fair and appropriate manner, otherwise the termination may constitute an unfair dismissal. An unfair dismissal is a dismissal that was:

• harsh, unjust or unreasonable;
• inconsistent with the Small Business Fair Dismissal Code;
• not a genuine redundancy.

If you have been dismissed from your workplace and believe the circumstances surrounding your termination were harsh, unjust or unreasonable, you may be entitled to take action against your employer to enforce your rights. Remember, a ‘dismissal’ may also include situations where you felt compelled to resign due to certain conduct engaged in by your employer. This is known as ‘constructive dismissal’.

In considering whether a dismissal is harsh, unjust or unreasonable, the Commission will consider a range of matters including:

• whether there was a valid reason for the dismissal, including issues of the safety and welfare of other employees, and whether the worker was notified of that reason;
• whether the worker was given an opportunity to respond to issues of capacity or conduct;
• whether the worker was unreasonably refused to have a support person present during discussions regarding the dismissal;
• whether issues of unsatisfactory performance, if relevant, were raised before the dismissal.

The size of the employer’s business and an absence of human resource personnel and how that may have impacted the dismissal processes followed may also be taken into account.

A legal advisor can help determine whether the circumstances leading to your dismissal may have been harsh, unjust or unreasonable.

An employee will not be considered to have been unfairly dismissed if the termination was due to a genuine redundancy.

What is a genuine redundancy?

A genuine redundancy occurs when:

• the employer no longer requires the employee’s job to be done by any other person, or the employer becomes bankrupt or insolvent;
• the employer has complied with any consultation obligations relevant to an enterprise agreement or award; and
• it would not have been reasonable for the employer to redeploy the employee within the enterprise or other associated entity – the employer must ensure there is no suitable alternative position available.

A genuine redundancy can generally be shown by the introduction of new technology which replaces human labour, the discontinuance of the business operations, relocation of the business interstate or overseas, or the restructuring of an organisation.

Subject to the employee’s length of service and type and conditions of employment, the employee may be entitled to receive redundancy pay.

If a purported redundancy is not genuine, then the employee may pursue a claim for unfair dismissal. Depending on the circumstances, a redundancy that is not genuine may be shown, for example, if an employer advertises the same position immediately after terminating an employee.

Who is protected from unfair dismissal and what are the remedies?

If the Commission is satisfied that a person protected under the Act has been unfairly dismissed it may order reinstatement (to the previous position or another position with no less favourable terms) or the payment of compensation.

Employees are generally protected from unfair dismissal if they are covered by a modern award, an enterprise agreement or earn a salary below the (indexed) high income threshold (currently $153,6000) and have:

• completed 12 months’ employment with a small business (a business with fewer than 15 employees); or
• completed 6 months’ employment with a larger business.

Note, small business employers are provided additional protection from an unfair dismissal claim if the dismissal is consistent with the Small Business Fair Dismissal Code.

Although the primary remedy for unfair dismissal is reinstatement, this may not be feasible in the circumstances. In such cases compensation may be awarded in accordance with the thresholds set out by legislation.

Other protections – unlawful dismissal

Sometimes a person may not meet the criteria required to pursue an unfair dismissal claim however there may be other options available to enforce their legal rights.

A worker may take action against an employer for certain unlawful activities (adverse action) under the general protection provisions of the Fair Work Act or for discriminatory conduct, harassment or bullying.

Discrimination may be on grounds of race, colour, gender, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, ethnic, national extraction or social origin.

A claim may be pursued in circumstances where employment is terminated for a range of unlawful reasons such as temporary absences related to illness or injury, union membership, making a complaint or participating in an inquiry or legal proceedings against an employer, or absences during parental leave.

Each matter must be assessed in light of the relevant circumstances. We recommend that all employees experiencing issues in their workplace keep written records of incidents, discussions, negotiations and performance reviews.

Conclusion

If you are confronting a workplace issue, it is natural to feel vulnerable and confused. If you have been terminated and are unsure whether the termination was lawful, or if you are facing disciplinary action in your workplace, obtaining professional advice can help you to understand, and protect your legal rights.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.