For example, you may engage the services of a volunteer worker or a work experience person. A true volunteer is under no obligation to perform the service that you engage them to provide and similarly, you have no obligation to provide them with work or pay them for their services.

If you are planning on inviting someone to participate in a volunteer or work experience placement in your business, you should consider including something to the following effect in the engagement letter or contract:

“We are delighted to invite you to participate in our work experience program on the conditions set out in this letter. Your participation is purely voluntary and you may end your participation at any time. Similarly, [company name] may end your participation at any time for any reason.

During your participation in the program you will not be our employee, contractor or agent and you will not receive any remuneration. If you participate in our program you must comply with the conditions set out below. Failure to comply with these conditions may jeopardise your participation in the program.”

It is important to remember that in certain circumstances, participation in a volunteer or work experience placement will require you to observe workers compensation laws, discrimination laws and occupational health and safety laws even though the work provided is on a voluntary basis.

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Work experience for students

Specific legislation on the subject of work experience as it relates to students is confined to Victoria, Queensland and Tasmania:

• Victoria – Education and Training Reform Act 2006 (the Act)
• Queensland – Education (Work Experience) Act 1996 and the Vocational Education, Training and Employment Act 2000
• Tasmania – Vocational Education and Training Act 1994

The legislation in Victoria distinguishes between “work experience” and “work placement”. Work experience mainly involves Year 9 and 10 students in short-term industry placements, the purpose of which is to broaden their experience and understanding of the world of work and career opportunities . Work placement, or “structured workplace learning”, involves students in structured on-the-job training, during which they are expected to master a designated set of skills and competencies related to a course accredited by the Victorian Qualifications Authority. Part 5.4 of the Act sets the general conditions for work experience and work placements including the maximum durations of the experience/placement.

There is no specific legislation in the remaining States and Territories, rather the subject is dealt with as a matter of policy. For instance in NSW, work experience programs are usually conducted through a registered educational training organisation – like a school, TAFE or university. Students/volunteers on work experience placements are not employees for workers compensation purposes (unless the employer chooses to pay the student) or equal opportunity purposes. However, students will be covered by occupational health and safety (OHS) laws despite the fact that they are not paid workers.

This is an issue that many employers face – and you need to be very careful about the actions you take.

Compulsory retirement is illegal in all Australian States and Territories.

Compulsory retirement is when an employer:

• retires an employee;
• persuades an employee to retire; or
• treats an employee in such a way that they are ultimately forced to retire.

Therefore, you must not sack workers because they are ‘too old’, nor can you ask workers to sign an agreement that they will retire upon reaching a certain age.

Under the Fair Work Act 2009 (FW Act), a forced retirement would constitute unfair dismissal if the employee’s age was the only or predominant reason for the employee being forced to retire. It would also constitute discrimination under federal and state anti-discrimination laws (unless you can prove that he or she can no longer perform the inherent requirements of their position).

The FW Act also prohibits an employer taking “adverse action” against an employee, which includes refusing to employ someone, injuring them in their employment or altering their position to their prejudice, on the basis of age. In other words, you cannot force an employee to retire at a certain age.

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So how can you manage employees who are approaching retirement age?

In the event that you believe an employee, having reached a certain age, is no longer able to perform the duties or requirements of his or her position, you will need to manage the performance of the employee in the usual and lawful way that you would with an employee of any age. A formal performance review system is the best way to handle the situation provided it is applied to all employees on a regular and objective basis.

Remember, you cannot merely state that the employee is unable to perform their duties because they have reached a certain age.

You may also wish to consider implementing a retirement policy. The policy may offer retirement benefits to employees who are approaching an age where succession is a commercial need. Of course, retirement policies require careful drafting so as not to offend the unfair dismissal and discrimination provisions outlined above.

So whenever I see a query pop up that I think a number of people would want to know the answer to, I like to share it.

Today’s question concerns multiple periods of parental leave for the same employee:

What do you do when an employee is already on unpaid parental leave and wishes to take another period of unpaid parental leave immediately after the first due to a second or subsequent pregnancy?

Here’s how our experts at Holding Redlich responded:

An employee who wishes to take a second period of parental leave immediately after another because they are pregnant again is entitled to do so.

If an employee wishes to extend their second period of unpaid parental leave (to 24 months), you must grant the request unless there are reasonable business grounds for not granting the request. For example, effect on the workplace, financial impact on the business and the ability/possibility of recruiting a replacement. If the request is refused, you must provide reasons in writing to the employee.

If you’re a subscriber to the Employment Law Practical Handbook and you have any questions you can’t find the answer to in your handbook, don’t forget you can send them through to the Workplace Helpdesk and get an answer from our experts.

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

You’ll find out when you could be obliged to pay an employee for hours when they are engaging in private activities.

There are some types of work where an employer will be obliged to pay an employee for hours when they are engaging in private activities, such as sleep.

For example, a supervising nurse required to attend and perform a ‘sleepover shift’ at a hospital could be found to have been engaged in ‘work’ rather than merely being ‘on call’.

The question of whether an employee is entitled to be paid for merely being available to perform work depends on how the award, enterprise agreement and employment contract that regulates the employee’s wage entitlement is to be interpreted.  However, generally speaking, if you direct an employee to attend a place of employment for a period of time and be available to provide services at the premises as required by you, the employee is working for you.

A recent case dealt with this issue and concerned a couple employed to fill a single caretaker position at a retirement village. At least one of them was required to be in attendance and to undertake the responsibilities of the position at all times during specified ‘attendance hours’ when the day-time village manager was not present.  The terms of their employment required that they should live together in designated caretaker’s accommodation in the village. They were paid single wage consisting of a weekly net ‘on call allowance’ as well as receiving the benefit of the accommodation.

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However, the Fair Work Ombudsman prosecuted the employer for paying less than the minimum wage applicable to a casual caretaker. In a decision of the Federal Magistrate’s Court (FWO v Kensington Management Services Pty Ltd 2012 FMCA 225), the Court had to determine whether the caretaker attendance hours specified in the employment contract should be treated as hours of ‘work’.

The Court interpreted the relevant award giving rise to the minimum wage and ruled that the statutory minimum wage was payable for all required hours of attendance at the employer’s premises for the performance of passive or active caretaking duties, including those times when the employee was asleep. This was regardless of whether the caretaker was provided with residential accommodation on the employer’s premises, and whether the required hours of attendance included night times or weekends.

The Court expressed the view generally that the occupation of caretaker may not always require activity by way of specific physical or mental exertion during the periods of employment, and that in some situations the employment of a caretaker can include times when they are asleep or not being required to perform actual duties. According to the Court, this is ‘work’ because the caretaker is expected  to immediately wake up as required and perform work at any time.  

This could be necessary for a whole host of different reasons – for example, you may have outgrown your current office space, or you may have higher demand at a particular store and need more employees there.

But whatever the reason, before you relocate an employee you must ensure that it is reasonable to do so.

If you don’t, you could be exposed to a number of claims, including breach of contract, unfair dismissal or redundancy.

So how can you tell when it is reasonable to relocate an employee — and when it isn’t?

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You need to remember that you are generally able to relocate employees provided that the move does not impose unreasonable hardship on them.

But what is unreasonable hardship exactly?

Here are some factors you need to consider when determining whether a relocation will impose unreasonable hardship on an employee:

• The distance of the relocation (e.g. requiring an employee to travel to a different state is more likely to impose unreasonable hardship than requiring them to travel to a location that is only a few kilometres away).
• Whether or not the employee’s contract of employment expressly states that the employer may direct the employee to work elsewhere from time to time. If it does, then the relocation will be less likely to be considered unreasonable.
• The impact on the employees’ remuneration (if any).
• Any adverse effects the relocation could have on the employees’ family responsibility and lifestyle.
• The impact the relocation has on the hours of work available to the employee (including the reduced availability of overtime).

Another way you can help to lessen the impact of a relocation for an employee is to offer them some kind of relocation package. For example, you could offer them a one-off compensation payment or a car allowance for a 6 month transition period, to help with any extra expenses or inconvenience presented by their new work location.

Perhaps as a result of this increased coverage, we’ve had a number of enquiries come through – it seems people are eager to know more about industrial action and how it can affect their business.

When the Fair Work Act 2009 (FW Act) was enacted, it was generally accepted that protected industrial action was unavailable to parties seeking to negotiate an enterprise agreement until some form of good faith bargaining had taken place between the parties.

However, some recent decisions by Fair Work Australia (FWA) and the Federal Court of Australia regarding a dispute between JJ Richard & Sons Pty Ltd and the Transport Workers’ Union (TWU) have challenged this proposition.

The litigation followed a decision by FWA ([2010] FWA 8766) to approve a protected action ballot order that effectively endorsed the right of the TWU and its members employed by the company to take industrial action before bargaining had officially commenced.

In a series of appeals, first to the FWA full bench and then to the Federal Court, JJ Richard argued that the correct interpretation of the FW Act was that a protected action ballot order could not be granted unless bargaining had commenced or, if the employer was unwilling to bargain, until the union had exhausted the steps available to it under the FW Act to force the employer to do so.

Those steps relevantly included seeking a majority support determination under section 237 of the FW Act (i.e. a ballot of relevant employees to determine their support for the negotiation of a collective agreement).

In a landmark decision handed down on 20 April 2012, the Federal Court rejected these arguments (J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53).

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So what can you take from this decision?

There are two things you should take from this decision. Firstly, if an employer refuses to engage in the collective bargaining process, the union can either:

• Seek a majority support determination on the basis that the majority of the employees who will be covered by the agreement want to bargain. (Once a majority support determination is made, FWA can then make orders against the employer to bargain in good faith or seek a protected action ballot order).

OR

• Seek a protected action ballot order which gives rise to pre-emptive protected industrial action to force employers to the bargaining table.

Secondly, if the employer has already agreed to bargain, the union can engage in protected industrial action to advance their claims for agreement during the bargaining process by seeking a protected action ballot order prior to engaging in good faith bargaining.

Those critical of the Federal Court’s decision argue that it allows protected industrial action in circumstances that were not intended by the Parliament in enacting the Fair Work Act bargaining scheme.

In light of these criticisms, it is likely that the decision will be examined by the Federal Government’s Fair Work Act Review Panel. The report of the Panel Review is due to be presented to Federal Parliament by 31 May 2012.

Today, I’m going to go over two more changes this new legislation will result in – and what you need to know about them.

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1. Safeguards for exercise of coercive powers

The FWBI Director will have the power to require a person to provide information, documents or evidence relevant to an investigation. A person who fails to comply with such a requirement will remain liable to a maximum penalty of 6 months imprisonment or $3,300 fine. However, the person would retain the right to claim legal professional privilege or public interest immunity.

In order to exercise the coercive powers to obtain information, documents or evidence, the FWBI Director will need to satisfy a designated presidential member of the Commonwealth Administrative Appeals Tribunal that:

• there are reasonable grounds to believe the person has information or documents or is capable of giving evidence relevant to the investigation;
• all other methods of obtaining the material or evidence have been tried or were not appropriate;
• the information or evidence would be likely to be of assistance to the investigation; and
• it would be appropriate, having regard to all of the circumstances, to impose the requirement.

A person who is being examined will be entitled to be represented at the examination by a lawyer of the person’s choice. The FWBI Director cannot refuse a person representation by a particular lawyer because that lawyer has represented or is also representing another person who has been examined.

The FWBI Director cannot require a person to give an undertaking not to disclose information or answers given at the examination or to discuss matters relating to the examination with any other person. This will mean, for example, that a person cannot be prevented from discussing their experiences at the examination with family members.

A person who attends a compulsory examination is entitled to payment for reasonable expenses incurred by the person in attending the examination. Reasonable expenses will cover matters such as travel, accommodation and legal expenses.

The Commonwealth Ombudsman will monitor and review all examinations and provide reports to the Parliament on the exercise of this power.

2. Option to be exempt from exercise of coercive powers

Under the new legislation, interested persons may apply for one or more building projects to be exempt from the exercise of coercive powers.

These applications will be determined by the Independent Assessor, who must be satisfied that it would be appropriate to make the determination, having regard to the object of the Act and any matters prescribed by the regulations.

According to the explanatory memorandum accompanying this legislation, such matters might include a demonstrated record of compliance with workplace relations laws, including court or tribunal orders, in connection with the building project.

The Independent Assessor must also be satisfied that it would not be contrary to the public interest to make a determination.

We get a lot of helpdesk questions about it so today I thought it might be useful to send out a reminder – because it’s often the little things that become big problems when ignored.

So here we have a question and answer that was sent into our Workplace Helpdesk service from a subscriber, read on…

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Question:

I would just like to clarify meal break requirements under the Fair Work Act. I have heard different claims, e.g. a requirement to have a meal break after 5 hours except in certain circumstances. Are there minimum statutory break entitlements in the FW Act?

Also, does a 15 minute morning tea beak constitute a break or must there still be a lunch break after no more than 5 hours of work including the morning tea break?

Answer:

While there was a statutory entitlement to a 30 minute meal break under the Work Choices legislation that operated prior to 1 July 2009, this entitlement is not provided in the Fair Work Act. Modern awards generally include provisions for meal breaks (some of these are for paid meal breaks if the employee is required to work for more than 5 hours after being given an unpaid meal break) so you can check your specific award.

The standard across the board though, is to provide any employee who works more than 5 hours with an unpaid meal break of a minimum of 30 minutes. Unpaid meal breaks are not included in calculations of an employee’s ordinary hours of work.

Remember, if you are a non-national system employer in WA, you are obliged to recognise minimum statutory entitlements to meal breaks.

Note: There is no statutory entitlement to tea breaks. You need to check the applicable award to see what if any provision is made for this. Tea or rest breaks are generally paid breaks.

The introduction of this new legislation will result in a number of changes.

Here’s one of them:

Integration into Fair Work Act – no separate statutory regime for the building and construction sector

Building unions, their officials, employees, employers and other participants in the building industry will be subject to the same offences and penalties in the Fair Work Act 2009 (Cth) (FW Act) as their counterparts in other Australian industries.

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In other words, there will no longer be a separate statutory regime of more onerous offences and higher penalties for building industry participants.

FWBI inspectors will perform the same functions and powers as a Fair Work Inspector in relation to building matters.

In legal proceedings regarding a building matter, the FWBI Director or inspector cannot initiate or progress proceedings that relate to matters that have settled between the other parties. Consider, for example, a proceeding relating to alleged coercion by a building union of a building contractor to employ a person as union delegate in contravention of s 355 of the FW Act. If the contractor and union settle that matter, the FWBI inspector cannot later seek to prosecute the union for contravening s 355.

The new legislation makes it clear that FWBI will not be responsible for industrial compliance in respect of off-site prefabrication of made-to-order components i.e. manufacturing that takes place in permanent off-site facilities and is separate from the building project. However, pre-fabrication of building components that takes place on auxiliary or holding sites separate from the primary construction site(s) will remain subject to FWBI’s compliance powers.

Stay tuned for next Wednesday’s Bulletin – I’ll be going over two other key changes this legislation will make.

If they engage in conduct that relates to an important matter (not a trivial one) and the conduct breaches these duties, or is destructive of the necessary confidence between you and the employee, you will have grounds for summary dismissal.

However, if you merely suspect this conduct, this is not enough.

If the employee is in a position where his/her personal interests (or those of others) may conflict with the duties of loyalty, honesty, confidentiality and mutual trust owed to you, then the employee must tell you of the relevant facts and circumstances.

If you consent to the employee engaging in the conduct after being told of the conflict, you cannot later seek to treat the conduct as justifying summary dismissal.

Your consent can be implied by your inaction. However, you cannot give proper consent unless the employee has fully informed you of all the relevant facts and circumstances.

Remember, your employee can take steps in preparation for leaving you, even if that involves going to work for a competitor. This does not justify summary dismissal.

While an employee is under a duty to disclose a potential or actual conflict of interest to you in order for you to take steps to protect your business from future harm, an employee is not obliged to “fess up” about past wrongdoing.

Nor is your employee subject to a general duty to report the misconduct of fellow employees, except in certain circumstances when this is required under the employee’s contract with you.

That might be implied if the employee is in a managerial position.

In the Amcor case I’ve been discussing in recent Bulletins, the Court found that a group of senior employees did not disclose their involvement in the purchase of two Amcor businesses. The Court found that this failure destroyed the necessary “confidence” essential to the relationship of employer and employee and was a breach of the employees’ duties to Amcor.

By not disclosing their involvement in the purchase of the businesses, Amcor was unable to take steps to prevent them from influencing the sale process, for example, by putting in place a Chinese wall restricting the flow of information about the sale to any of these managers, dismissing the managers, managing the sale process in a different way or even cancelling the sale altogether.

The fact that these managers did not have any material influence on the terms of the sale agreements or the manner of sale in each case was irrelevant.

The Court also found that a Group General Manager of Amcor’s fibre packaging business, Hodgson, secretly provided consultancy services to an unrelated business, which would have assisted that business to expand its operations in direct competition with Amcor.

The Court found that Hodgson did not inform Amcor of the relevant facts at any time, despite having a conflict of interest between his duty to Amcor and his personal interest. The fact that Hodgson may have been obliged to keep the future plans of the competing business confidential only served to highlight the conflict that Hodgson had placed himself in by his conduct.

The Court found that by withholding this useful information from Amcor, Hodgson, as one of its senior managers, engaged in conduct that was incompatible with the fulfilment of his duty to Amcor, and was destructive of the necessary confidence between Amcor and him.

Click below to view previous Bulletins about Hodgson v Amcor Ltd; Amcor Ltd & Ors v Barnes & Ors [2012] VSC 94

• Why an employee with no roles or duties to perform may not necessarily be redundant
• 4 key principles regarding redundancy that you need to be aware of
• Why offering a separation agreement to an employee may constitute notice of termination
• Why you need to exercise you choices carefully when terminating on notice
• If you have the right to summarily dismiss an employee, use it or lose it!