Last week, a rather interesting case caught my eye…

It involved Australian fashion chain Cotton On, who admitted to failing to pay 3289 employees for attending training sessions and staff meetings outside of work hours over an 11 month period in 2008.

The company voluntarily paid back $278,000 to the under payed employees and will now report to the Fair Work Ombudsman (FWO) each year for the next three years about the wage rates and entitlements it pays its employees.

Cotton On will also display A3 sized statements apologising for the underpayments in each of its stores for the next 30 days and put all of its HR managers through a workplace relations compliance program.

So why did this particular case catch my eye, I hear you ask?

Because it draws attention to a common misconception held by many employers…

Continues below…

How to avoid underpaying your employees

Under the Fair Work Act, you are only required to pay an employee overtime if an entitlement arises under a modern award, enterprise agreement or employment contract.

However, many employers forget that even if an employee is not entitled to overtime under the Fair Work Act, they must still be paid for each hour that you request or require them to work.

This includes things like training sessions and staff meetings outside of work.

For more information about reasonable hours of work, check out chapter M3 Minimum Conditions of Employment – Hours of Work in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Until next time…

Claire Berry
Workplace Bulletin

But you need to be sure that you never discriminate against anyone in your workplace in any way.

So I thought today would be good chance to recap exactly what is meant by discrimination.

In short, discrimination occurs when you treat a person or group with an identified attribute or personal characteristic less favourably than others.

But sometimes discrimination is not as cut and dried as you might think. For example, you can discriminate against an employee directly or indirectly.

Direct discrimination occurs when you treat an employee or group of employees differently because of a particular personal characteristic. For example, if you do not hire women on the basis that they may have children at some stage in the future, you would be directly discriminating against them.

Indirect discrimination happens when a policy, work requirement or company practice that appears neutral actually results in a particular person or group of people being unfairly disadvantaged.

For example, if you specify that fluent English is a requirement for a job, but only basic English is actually necessary to successfully perform the role, you would be indirectly discriminating against people who do not speak fluent English.

For more information about discrimination in the workplace, check out the Discrimination chapter in your copy of the Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

The Guthrie case is not a claim of unfair dismissal under the Fair Work Act – it is a claim based on implied terms in an employment contract, which Mr Guthrie claims gives him a “backdoor” right not be unfairly dismissed.

Implied terms (or unwritten terms) are terms that are not expressed in writing in a contract, but are considered by courts to be part of it.

Don’t let them catch you out!

How to tell if your employment contracts contain implied terms

A term can be implied into a contract:

1. By Custom

If you have a custom or practice in your workplace, (for example you have always paid an extra week of redundancy pay to retrenched employees), then this will be an implied term of your employees contracts, even if it is not expressed in writing.

2. By Law

Courts and tribunals consider that there are certain terms that must be contained in an employment contract in order for the employment relationship to operate, regardless of whether they are actually contained in contract or not.

For example, some terms implied by law are:

• your employee’s obligation to be honest with you;
• your employee’s obligation to honestly answer all reasonable questions you ask them;
• your employee’s obligation to comply with your lawful and reasonable directions;
• your employee’s obligation to exercise skill and care when performing their duties;
• your obligation to give an employee reasonable notice of termination of employment (in the absence of an express term about notice or circumstances warranting summary dismissal);
• your obligation to provide a healthy and safe working environment to your employees; and
• your obligation not to unreasonably destroy the relationship of trust and confidence that is needed for the employment of your employee to continue (this is the centre of the litigation in the Guthrie case).

3. By Legislation.

If your contracts include a term that is contrary to what legislation dictates, the legislation can override that term. For example, the Fair Work Act provides that terms in employment contracts that unreasonably require an employee to make a payment to their employer are ineffective.

For more information on implied terms and other, keep an eye out for the brand new Employment Contracts chapter in your next Employment Law Practical Handbook update. It’s due on your desk next week.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

In the case, the Court rejected a senior Bendigo TAFE teacher’s claim that the TAFE had unlawfully taken adverse action against him. The teacher was also the Australian Education Union’s Sub-Branch President.

Bendigo TAFE suspended the teacher on full pay for two weeks after he sent an email claiming that fellow AEU members had witnessed the production of false documents for the TAFE’s upcoming audit.

The TAFE’s chief executive decided that the email’s content could cause serious damage to Bendigo TAFE’s reputation and suspended the employee after writing to him and asking him to explain his behaviour.

The employee and his union alleged that his suspension constituted unlawful adverse action because the action was taken due to his involvement in industrial activity and his position as a union officer.

However, the Court decided that although the TAFE took adverse action against the employee, they did not take it for the unlawful reasons the employee claimed they did.

So what can you learn from this case?

Firstly, you must document the reasons behind every decision you make that affects employees in your workplace.

If you take adverse action against an employee, you must be able to prove that you took the action for a lawful, proper reason, not a prohibited one.

The key question a Court will be seeking to answer in an adverse action case is why you took the adverse action. If you can prove, via evidence and documentation, that you took the action for a lawful reason, you will go a long way towards defending a claim.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

There’s no doubt about it – employees who accrue too much annual leave can place a huge strain on your business.

Why? Because if too much accrued liability builds up, it can cause your business significant cash flow problems.

But there are ways you can get around this happening in your workplace…

How to stop accrued annual leave being a burden on your business

One way of getting around the issue of accrued annual leave liability is to direct employees to take annual leave.

For example, if your employees are covered by a modern award or enterprise agreement, there may be a provision allowing you to direct them to take annual leave – even if they don’t want to!

If your employees are award or agreement free, you can also direct them to take annual leave – but only if the requirement is reasonable.

Generally, a requirement will be considered reasonable if the employee has accrued an excessive amount of leave. Excessive can mean anything more than 6 weeks.

However, if you do direct an employee to take annual leave, you must give them sufficient notice. As a general rule, giving an employee 4 months to make necessary arrangements will be reasonable.

But directing an employee to take annual leave is just one way you can reduce accrued liability in your workplace…

Check out Charles’ article below for more ways you can stop your employees accruing too much leave.

And, for even more great tips on annual leave, just refer to the Annual Leave chapter in your Employment Law Practical Handbook.

Not yet a subscriber? Click here for more information.

Until next time…

Claire Berry
Workplace Bulletin

Lately in the Bulletin, I’ve been reminding you about all the changes the Fair Work Act has introduced and how to make sure you comply with them.

You know the ones I mean – Modern Awards, the National Employment Standards, Enterprise Agreements, the changes to dismissal and redundancy laws, etc…

But today I thought I’d focus on a change you may not know about – your obligation not to make “sham” independent contractor arrangements.

How to make sure you don’t discriminate against independent contractors

You’ve no doubt heard that the Fair Work Act has introduced new legislation known as “general protections”. In a nutshell, it means that your employees are protected by law in a heap of new ways.

But you need to remember that general protections legislation doesn’t just protect your employees – it also protects your independent contractors.

Under general protections legislation, it is unlawful for you to make what is known as a “sham” independent contractor arrangement.

A “sham” independent contractor arrangement is made when you misrepresent an employment arrangement as an independent contractor arrangement. In other words, if you employ someone as an independent contractor, but they are actually an employee, you will breach general protections legislation and leave yourself open to prosecution.

So how do you tell the difference between an independent contractor and an employee?

Telling the difference can be a difficult task, but there are a number of things that can help you distinguish between them.

Charles’ article below has some great tips on how to tell the difference between an independent contractor and an employee.

You can also check out the General Protections chapter in your Employment Law Practical Handbook for more information on how to make sure you don’t enter into any “sham” independent contractor arrangements.

Not yet a subscriber to the handbook? Click here for more information.

Until next time…

Claire Berry
Workplace Bulletin

When it comes to enterprise agreements, there are so many things you need to be up to speed on.

For starters, you need to choose the right type of enterprise agreement… then you have to decide what you want from it… negotiate with your employees and their bargaining representatives in good faith… choose the content of the agreement… not to mention get it properly approved by Fair Work Australia.

And that’s not even the half of it…

For example, did you know you could breach your good faith bargaining requirements if you fail to consult with a union during the bargaining process?

If a union is your employee’s bargaining representative, you MUST recognise them while enterprise bargaining.

Check out Charles’ article below to find out why.

For even more information on enterprise agreements and the bargaining process, keep an eye out for your next Employment Law Practical Handbook update, due in your mailbox shortly.

It contains an updated version of chapter E2 Enterprise Agreements which will show you exactly how to make, vary and terminate an enterprise agreement in 2010.

Not yet a subscriber to the handbook? Click here for more information.

How to make sure you stay on top of the Fair Work Act

Don’t forget about Charles’ breakfast seminars I told you about last week…

They will cover the implications of the Fair Work Act changes and offer a heap of practical methods for ensuring your business is compliant with the Fair Work Act.

So make sure you don’t miss out! Click here to book your place at these great free seminars.

And remember, by attending, you are guaranteed to come away with information you can start putting into practice in your workplace straight away.

Until next time…

Claire Berry
Workplace Bulletin

And remember, unions can also be bargaining representatives if they are eligible to cover the employee represented. And not only that – if employees who are union members fail to actively appoint someone other than their union to be their bargaining representative, then the union will become the bargaining representative by default.

If you know that the union is a bargaining representative for some or all of the employees who will be covered by the agreement, you cannot fail to recognise the union. If you do so, you may breach your good faith bargaining requirements under the Fair Work Act.

Take this recent case for example:

In Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd [2009] the Queensland Tertiary Admissions Centre Ltd was found to have breached their good faith bargaining requirements by largely excluding the union (as the employees’ bargaining representative) from the bargaining process. They had only one brief meeting with them and were found instead to have bargained directly with their employees.

However, this doesn’t mean you can’t talk to your employees about the agreement directly. So long as you are willing to discuss the agreement with the union, you are free to hold meetings with your staff about the agreement without the need for the union to be present.

For more information on enterprise agreements and the bargaining process, check out the brand new version of chapter E2 Enterprise Agreements, due out in your next Employment Law Practical Handbook update.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

There are also other steps you should take to prevent bullying, discrimination and harassment occurring in your workplace:

1. Make sure you encourage respectful and courteous behaviour in the workplace. One way of doing this is showing your employees that you do not support bullying.
2. Put in place a thorough workplace bullying policy. Ensure that everyone in your workplace is given a copy of your bullying policy, and that you remind people about it often. (For more information on what should be included in a workplace bullying policy, please refer to last Tuesday’s Bulletin here.)
3. Make sure you understand what constitutes bullying – and make sure everyone else in your workplace does too. Your employees need to know exactly what is acceptable behaviour and what is not.
4. Respond as soon as possible to any evidence of inappropriate bullying behaviour.
5. Monitor your workplace for any bullying constantly. You can’t just assume that bullying is not occurring in your workplace. You need to keep an eye out for warning signs, like employees taking excess amounts of leave or becoming withdrawn or looking stressed.
6. Train your supervisors and managers about your workplace bullying policy, and encourage them to address any problem behaviour as soon as possible, regardless of whether or not a formal complaint has been filed.

Regards,

Charles Power

Editor-in-Chief
Employment Law Practical Handbook

How are you coping with the new Fair Work Act?

If you’re anything like me, getting the hang of all the changes it has introduced is probably taking a while.

And who can blame you? There are just so many things you need to get your head around.

But there is a way you can make sure you are completely informed about the Fair Work Act and how it affects your business.

How to stay up-to-date with the Fair Work Act

Editor-in chief of the Employment Law Practical Handbook, Charles Power, is leading a series of free breakfast seminars on the Fair Work Act this March.

These seminars will cover:

• the implications of the Fair Work Act changes;
• methods for ensuring your business is compliant with the Fair Work Act;
• the impact of the Fair Work Act on the Media, Advertising and Entertainment industry;
• how the Building and Construction industry has been affected by the Fair Work Act;
• the significant changes the Fair Work Act has made to collective bargaining and industrial action;
• and much more.

By attending, you are guaranteed to come away with information you can start putting into practice in your workplace straight away!

To find out more about how these free seminars can benefit you and your business, click here.

Until next time…

Claire