The Fair Work Amendment (Closing Loopholes No 2) Bill was recently passed, making significant changes to the Fair Work Act 2009 (FW Act). Among these changes is a new definition of ‘casual employee’ which will come into effect on 26 August 2024. 

Previously, under section 15A of the FW Act, the definition of casual employment was if:

1. An offer of employment by the employer is made on the basis of no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
2. The person accepts the offer.  
3. The person is an employee as a result of the acceptance. 

The new definition of casual employment considers the practical reality of the relationship, as opposed to merely the terms in the employment contract (as was previously the case). Broadly put, the new definition encompasses an absence of a firm advance commitment to continuing and indefinite work, and in circumstances where the employee is entitled to a casual loading or specific rate of casual pay under an industrial instrument. 

There are a broad range of considerations to determine whether there is an absence of firm advance commitment to continuing and indefinite work, including the real substance, practical reality and true nature of the employment relationship, and whether: 

• There is an inability of the employer to elect to offer work, or an inability of the employee to accept or reject work.
• It is reasonably likely there will be future availability of continuing work.
• There are full-time or part-time employees performing the same kind of work.
• There is a regular pattern of work for the employee.
• These amendments acknowledge a firm advance can take a range of different forms, including in an employment contract, but importantly, through a mutual understanding or reasonable expectation.

New pathways for casual workers to convert to permanent employment

The changes also include a new pathway for employees to change to permanent employment status, previously known as casual conversion. The new pathway replaces the existing right to casual conversion. 

If an employee has been employed for six months (12 months in a small business), they can choose to change their employment status to permanent. There must be a specific event which clearly shows the transition, and it’s now up to the employee to initiate the shift to employment. 

The upside is that the onus is no longer on the employer to review and offer casual conversion.

“The new definition of casual employment considers the practical reality of the relationship, as opposed to merely the terms in the employment contract.”  

Akin to requests for flexible work arrangements, casuals can write to their employer to notify them that they’d like to change their employment status, and employers are required to respond within 21 days. 

An employer may refuse a notification on any one of the following grounds:

• They believe the employee has been correctly classified as a casual employee, e.g. they aren’t working on a systematic basis.
• There are fair and reasonable operational grounds for not accepting the notification, such as if substantial changes would be required to the way work in the business is organised to allow the employee to convert. 
• A change of employment status to full-time or part-time would not comply with a recruitment or selection process required by law, such as the Public Service Act 1999, which outlines that casuals cannot convert without a competitive selection process.

Avoidance penalties to be aware of

The changes will also introduce new anti-avoidance provisions to prevent employers from improperly engaging casual workers. This means employers must not: 

• Dismiss or threaten to dismiss an employee with the plan to then re-engage them as casual. 
• Make false statements to persuade an individual to enter a casual employment contract, such as telling them they will be financially better off.
• Misrepresent employment as casual.

Breaching these provisions can attract civil penalties. The maximum payable under the FW Act increased by 500 per cent for both standard civil contraventions and serious contraventions from 27 February 2024. Companies can now face fines of $469,500, or $4,695,000 for serious contraventions.

Implications for employers engaging casual workers

HR professionals should get across these changes and update their casual conversion processes and procedures to ensure a smooth transition and compliance with the new regime.  Factors to consider include: 

• While not having a firm advance commitment to continuing work is a consideration in determining whether an employee is casual, employers should still consider any conduct on their behalf which could suggest the employee is not a casual (e.g. while a contract says there will not be commitment, sending a text to the casual promising to give them a specific shift every week).
• Ensuring casuals are paid a casual rate or casual loading where they would otherwise be entitled to one under an industrial instrument.
• Being aware that casuals can now request conversion to permanency, and considering what grounds (if any) an employer has to reject such a request.

Fay Calderone is an Employment Partner at Hall and Wilcox. 

A version of this article was first published in the June 2024 edition of HRM Magazine.

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Five years have passed since the #MeToo movement exposed the use and some say abuse of non-disclosure agreements (NDAs) by employers to cover up sexual harassment by silencing the voice of survivors.  

Despite the pleas for reform by survivors, unions, employer associations and the community at large, many Australian jurisdictions still allow this practice to continue. Indeed, NDAs have, for many years, been standard practice for employers dealing with sexual harassment complaints in Australia.

However, a recent legislative proposal from the Victorian government could soon change things. More on that in a moment. First, let’s look into the ways in which NDAs have been potentially misused in the past.

What is an NDA?

In the context of sexual harassment complaints, a non-disclosure agreement is a legally enforceable confidentiality agreement whereby a financial sum is provided to the complainant by the organisation in settlement of the matter. In exchange, the complainant agrees not to discuss the matter publicly or take legal action against the organisation. 

NDAs have historically been attractive to employers to avoid short-term reputational issues, maintain share price and minimise liability. Longer term, however, they are increasingly being recognised as a way to mask the often toxic company culture that enabled the harassment to take place.

Unless deliberate strategies and culture change projects are deployed to address this, such behaviours will permeate and dysfunction will perpetuate. Further, repeat offenders are emboldened and hidden behind closed doors – often kept in the same or similar position with limited consequences for their actions.  

Voiceless victims, no transparency and inability to work

There are myriad concerns to arise from the use of NDAs in sexual harassment claims. The most apparent issue is that victims are silenced in perpetuity. 

They do not have agency over the narrative of what happened to them, even where allegations have been substantiated, and are unable to talk to colleagues, friends, family or prospective employers about the harassment should they wish to.  

“If passed, [Victoria] will be the first Australian jurisdiction to implement such prohibition to ‘break the silence’ of victims of sexual harassment in the workplace. 

This often leaves them feeling isolated and distressed. By silencing the discussion, awareness of the prevalence of sexual harassment is reduced and social change is inhibited. Employers in turn often miss the opportunity to fix systemic and long-term work health and safety challenges presented by the misconduct and to send a clear message about inappropriate behaviour to employees, stakeholders and the broader community. 

Separately, some survivors claim it is difficult for them to find employment following the use of NDAs as they are unable to disclose the real reason they left the organisation, sometimes with only a short period of service. This can look like a blemish on their record and employers might assume they’re “flighty” or lack loyalty.         

This may drive women out of the workforce, given the gendered nature of sexual harassment (in the Victoria Equal Opportunity and Human Rights Commission inquiry into sexual harassment, 92.5 per cent of respondents were female).  

Victoria unveils new form of NDA

In a ground-breaking moment in Australian history, the Victorian Government has accepted in principle the recommendation made by Ministerial Taskforce on Workplace Sexual Harassment (Taskforce), prohibiting the use of a non-disclosure agreement in workplace sexual harassment matters.  

If passed, this will be the first Australian jurisdiction to implement such prohibition to ‘break the silence’ of victims of sexual harassment in the workplace. 

The Taskforce recommended Victoria adopt a similar approach to Ireland’s model contained in the Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 (Irish Bill). 

Although not yet enacted, the Irish Bill prevents employers from entering NDAs in circumstances where an employee has experienced or made allegations of sexual harassment or unlawful discrimination, other than where this is the expressed wish and preference of the employee.  

An NDA entered at the employee’s preference will not apply in relation to communications between the employee and specified persons (including legal professionals, medical professionals, mental health professionals, prospective employers and the employee’s friends and family). To be enforceable, the following criteria must be satisfied:

• The employer has offered the employee independent written legal advice, at the employer’s expense
• The employer has not made undue attempts to influence the relevant employee in respect to the decision to include a confidentiality clause
• The NDA does not adversely affect the future health or safety of a third party or the public interest 
• The NDA includes an opportunity for the relevant employee to decide to waive their own confidentiality in the future
• The NDA is of a set and limited duration.

Allowing the victim to tell their story and not imposing a blanket prohibition on its disclosure, means they have agency to decide whether they sign an NDA should they wish to maintain their privacy, or feel doing so is in their personal best interest. The choice they have to sign an NDA, posing an increased risk of conduct being exposed publicly, may also deter some harassers.

Champions of Change Coalition further suggested that a new form of NDA should expressly carve out the right of the organisation to disclose, in a de-identified way, that a complaint has been made and how it had been dealt with, as well as any substantiated outcomes to increase transparency and accountability. 

As this form NDA is relatively new, therefore there is limited information on how common its use is by employers in Australia. Nevertheless, once the Victorian legislation is passed, there will be increased pressure on all States and Territories to follow suit.

Ending the silence

In light of the strong stance against sexual harassment taken by Victoria and reports such as Respect@Work and Set the Standard, Australian employers should proceed with caution when using NDAs in sexual harassment matters.  

Employers may be proactive and amend their NDAs to permit survivors to discuss their experiences and only seek confidentiality on key sections of a settlement agreement, such as the terms of settlement, including payments made.

Employers are beginning to consider and accept that the voices of survivors need to be heard to eliminate sexual harassment in the workplace and to hold perpetrators accountable. 

The proposed Victorian legislation will mark an important first step in breaking the culture of silence in Australia. If other states do not introduce similar laws, it may be that employers pivot to effectively nationalise the proposed Victorian NDAs in their workplaces by implementing national policies that reflect the Victorian laws.

If they do not, the unpalatable result will be that survivors in Victoria will have more agency while survivors in other jurisdictions will remain silenced. 

Fay Calderone is a Partner at Hall and Wilcox law firm.

Creating a new non-disclosure agreement process is just one way to fight against sexual harassment at work. AHRI’s short course on bullying and harassment will equip you with more preventative tools. Sign up for the next course on 8 September.

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The NSW Court of Appeal has recently upheld the case of an employee, who claimed sexual harassment against her employer and a contractor over her depiction in a work health and safety poster.

The poster, as HRM earlier reported, showed a picture of the employee with her arms outstretched, gesturing towards the words “Feel great –” and, in even bigger letters, “Lubricate!”. The employee complained about the poster after it was displayed at the company’s various workplaces, and after being contacted about it by her (mostly male) colleagues.

The employer and the contractor – an occupational health service – both apologised and removed the poster, but the employee still brought actions alleging sexual harassment and sex discrimination.

Speaking to HRM, a spokesperson on behalf of the contractor said: “The template safety poster in question had been used by our client in numerous workplaces without incident or complaint.

“In this instance the poster was prepared by an all-female team who had no intention of using the physiological concept of joint lubrication in any other way than to convey the importance of moving the body – hence [the employee] (fully clothed & wearing a hard hat) stretching upward. Our client is saddened that its important message of workplace safety has been misinterpreted following a crass joke by her workmate.”

The NSW Civil and Administrative Tribunal, both at first instance and on appeal, heard submissions from the employer and contractor that intention was not to sexually harass the employee, and that the term ‘lubricate’ in the poster was meant to refer to “the generation of synovial fluid upon movement of the joints by [the employee] performing a stretching exercise.” 

However, the tribunal agreed that the poster was unwelcome conduct of a sexual nature, which could be anticipated to offend or humiliate, emphasising that whether sexual conduct was unwelcome was to be assessed subjectively.

The contractor appealed to the NSW Court of Appeal, but was unsuccessful, with the court unanimously upholding the tribunal’s findings, and making some strong statements on the way sexual harassment in the workplace has developed. 

These comments from the court, which recognise that sexual harassment can be subtle and indefinite just as it can be gross and intrepid, are welcome, in the context of soon to be amendments to workplace and discrimination legislation.  

With the Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 currently before the senate, employers will need to ensure they are suitably equipped to identify all forms of sexual harassment in the workplace, as well as address it adequately.

The appeal in a nutshell

The court rejected the contractor’s attempts to avoid responsibility for the conduct, reinforcing that the contractor and employer (who did not join the appeal) had been jointly responsible for the poster.

The court considered that the design, publication, display and distribution of the poster was “done by [the contractor] with the approval of [the employer]”.  Just because [they were] contracted to provide work health and safety training and services to the employer, did not mean they could avoid liability for the poster, the court ruled.  

The court emphasised that whether conduct was unwelcome was to be assessed subjectively by the person being harassed, and that a harasser couldn’t justify their actions by claiming their conduct was not ‘sexually explicit’.

Justice Lucy McCallum in particular criticised the suggestion that a woman feeling “great” because she lubricates couldn’t be sexual harassment because the message was not explicitly sexual, saying “the sexualisation of women in the workplace often isn’t”. 

Justice McCallum considered that all kinds of behaviour that was less explicit could amount to sexual harassment, including “innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod”.

Large damage orders

The contractor’s appeal was unanimously rejected, and the damages orders of the tribunal were upheld.

In a separate decision, the tribunal decided that the employee had suffered psychological injury, and that following her resignation, the employer and contractor should be responsible for her inability to earn wages.  

The tribunal would have ordered almost $320,000 in damages against the two companies, but was capped by statute such that the employee was awarded $200,000 for her ordeal.

The tribunal also agreed that the contractor’s apology, which was full of “weasel words” and attempts to avoid responsibility, should attract aggravated damages of $5,000.  The contractor was also ordered to pay the employee’s costs of the recent appeal.

Key lessons for employers

The court was willing to recognise joint responsibility of an employer and contractor. Even though the poster was actually put up in the company’s workplaces, the contractor was given authority to design it, and directed its placement after printing.  

The ‘joint responsibility’ finding of the court shows that employers need to broaden their scope when considering sexual harassment risk.  As employment moves away from “traditional models”, so too will the relational connection required to found a sexual harassment claim broaden.  

HR managers will need to consider the risk posed by agents and other entities when assessing the risk of sexual harassment in their workplace.

The ruling of the Court of Appeal shows that as society’s understanding of sexual harassment in the workplace evolves, so too does the range of conduct and behaviour which the courts will penalise.  

HR managers need to be aware of, and have systems in place to identify and respond to, all forms of sexual harassment in the workplace, whether or not that conduct is intended as a joke, or is seemingly innocuous.  

As this case demonstrates, employers could be on the line for significant damage awards for failing to take action against conduct which is unwelcome, whether or not it was of an explicitly sexual nature.

HR Managers should also keep in mind that this shift applies just as much to the conduct of employers as it does to employees; this case is an important example of sexual harassment not arising from conduct of an employee, but from the conduct of the employer.

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The Fair Work Commission (FWC) has recently held that a worker who was employed under eight separate successive contracts spanning over two and a half years was not continuously employed, and therefore not entitled to remedy for unfair dismissal. This is just one example of many in which confusion arises over the difference between an employee and a long-term contractor.

Fixed-term contracts are common in many workplaces, especially those that rely on government funding or offer project based support to clients.  

Employers have to treat successive fixed-term contracts with caution, as where renewal of these contracts becomes a mere formality, or where a reasonable expectation of ongoing work develops, there is a risk that the successive contracts would be considered continuous employment, entitling a worker to make post-employment claims.

This recent FWC decision provides some reassurance for employers relying on successive fixed-term contracts (colloquially known as a rolling contract) spanning over a long period of time, provided:

• The decision not to renew them is due to genuine operational needs of the organisation; and
• The parties were sufficiently clear about the nature of their arrangement.

The history of the rolling contract

The contract worker was employed by Mondelez from 2 July 2018 to 31 December 2020. During that time, his employment comprised eight separate fixed-term contracts, each with a length ranging from one month to 12 months at a time.  

When his eighth and final contract ended, he was not offered a renewal. He then put in an official claim to the FWC stating the termination of his employment was an unfair dismissal, and seeking reinstatement of his employment with Mondelez. 

He argued his employment had continued seamlessly over the previous two and a half years, with the contracts rolling over in a ‘perfunctory way’.  

The contract worker also submitted that the area manager at Mondelez had, on a number of occasions, made verbal representations to him that he would continue to be employed after 31 December 2020, when the eighth contract expired. 

He also submitted that the fact that he’d been issued with a separation certificate, which indicated he had been employed for two and a half years, was further proof that his employment had been continuous.

Ultimately, FWC deputy president Young preferred the evidence submitted by Mondelez which stated that no such representations or promises had ever been made to the contract worker regarding further employment.

Further, Young accepted that at each renewal of his contracts, it was emphasised to him that his position was temporary, that the contracts would not be subject to automatic renewal, and that in the absence of the need for temporary employment, he would not be offered a further contract. 

In light of this, the separation certificate provided was not determinative, Young found.

Was contract renewal a ‘perfunctory’ matter?

In assessing the reality of the contract worker and Mondelez’s employment relationship, Young held that each of the eight contracts was clearly worded as to only cover a fixed period of employment in a temporary position, and that the worker had signed and understood each of the eight contracts. 

Young accepted that the worker’s employment was temporary, in each of the eight cases of contract renewal, in response to a genuine operational need for temporary workers at Mondelez. 

This decision was further evidenced by the fact that the worker was deployed across multiple departments in varying roles (night shift, day shift) as the need arose.  

The worker submitted that Mondelez had breached his enterprise agreement, which defined fixed-term contracts under clause 17 as being for ‘a period, project, season or job’, as his contractual arrangement was of ‘repeated extensions’ without ‘integration with a given project’. 

He said fixed-term contracts under his enterprise agreement could only refer to a singular engagement.

Young rejected this interpretation stating that nothing in the enterprise agreement was consistent with limiting contractual employment to single engagements. In any case, each of the contracts offered would constitute a separate ‘period’ in terms of clause 17. 

The court held that if it was really the intention of the parties for the contract worker to be permanently employed, then this would have been reflected in the agreements. Instead, his contracts unambiguously stated that his was a temporary position.

Ultimately, the decision not to renew the final contract was made because the business no longer had a need for temporary employment, and had a lack of work in other departments. This termination was due to the ‘effluxion of time’, and was not a termination at the employer’s initiative. 

Therefore, the contract worker was not dismissed for the purposes of his unfair dismissal claim. 

A Mondelez spokesperson told HRM, “We’re pleased that the matter has been resolved and provided clarity for all.”

What’s the HR takeaway?

This case provides some reassurance to employers that despite the length of employment under fixed-term contracts, the FWC will always look to the reality of the employment relationship. 

So long as the worker was clearly engaged temporarily, in response to a genuine operational need, the FWC will likely uphold the temporary nature of their contract.

Employers who rely on temporary workers under fixed-term contracts will need to ensure their contracts clearly, and unambiguously reflect the temporary nature of the engagement. In this respect, standard form agreements should be treated with caution, as they may not adequately protect employers who do not wish to employ workers more permanently.  

Each and every contract renewal should be discussed with the worker to ensure they understand the temporary nature of the position, and communications to workers should be consistent in this respect. 

 Employers are also encouraged to take contemporaneous notes of discussions with workers.

This case provides guidance on minimising exposure from unfair dismissal claims. Other authorities need to be considered regarding other entitlements such as the ordinary and customary turnover of labour exemption to redundancy, which you can read about in our previous HRM article here.

Fay Calderone is a partner at Hall and Wilcox law firm.

Want to learn more about the legal landscape, such as how to manage a contract worker? AHRI’s short course, Introduction to HR Law, is a great place to start.

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The global shift in flexible work has been a great step towards building healthy, inclusive workplaces, and ensuring business continuity and employment during the COVID-19 pandemic.

However, it also means many organisations need to quickly and effectively bolster their protection of confidential information.

Having employees and contractors working remotely can present a risk that confidential information could be accessed, read or overheard by people living with them or sitting near them in public places, such as cafes.

Consideration also needs to be given to deliberate misuse, theft and disclosure of confidential information. But how do you determine that? Prior to the pandemic, an employee sending a document to a personal email constituted a smoking gun. Now it’s not so cut and dried. 

Who hasn’t forwarded documents to their personal email to print from a home office printer before? Or perhaps you’ve saved things to a separate location to access when the system is down, or uploaded documents to a Google drive for group editing.

It’s much harder to identify information leak risks in your organisation in a remote environment and the uncertainty of the pandemic – and the workplace actions taken as a result of that – is only making it harder.

Disgruntled thieves

In a climate of pay cuts, stand downs, long periods of stress and uncertainty about future employment, we have seen a rise in aggrieved employees engaging in theft of confidential organisational information on their way out of the business.  

Why is this the case? An article by the Australian Institute of Criminology describes two themes common in instances of employee theft, including:

1. Perceptions of unfairness; and
2. Perceptions of ownership over work where “employees, especially those in large organisations, may presume personal ownership or entitlement by virtue of occupation (of a position or space) or through regular use/access. The resource becomes ‘my office,’ ‘my computer,’ and ‘my budget.’ This, in turn, seems to provide moral justification for taking the resource for personal use,” according to the article.

A 2012 study by the Carnegie Mellon University’s Software Engineering Institute analysed hundreds of malicious insider activity cases in the US, including theft of intellectual property for business advantage (i.e. stealing information to take to a new job).

The study found many cases were precipitated by a particular event or opportunity, and motivated by a sense of entitlement and ownership of the stolen information. 

“The entitled independent tends to believe that he or she owns the IP,” the study outlines. “This sense of ownership increases with the amount of time and effort the individual spends developing the IP. The insider usually has authorized access to the entire product suite or information. An event or condition in the workplace usually creates dissatisfaction on the part of the individual and increases his or her desire to leave and take information prior to departure.”

So what should you do?

Every organisation faces some level of risk. Even those that go to great lengths to appear fair may appear unfair in the eye of a disgruntled employee.

(Read HRM’s guide on how to manage disgruntled employees).

Organisations need to have clear contractual provisions to protect confidential information and intellectual property. They also need policies and procedures around the use, storage and monitoring of information used by employees and contractors. These policies and their rationale must be clearly communicated to employees, and compliance must be actively promulgated at all times.

What the research, and our experience, also tells us is that leaders need to invest time and energy into remaining connected with their employees – even if the employment comes to an end. Employees need to be treated with dignity and caution on the way out to ensure the protection of information. 

It’s also critical to monitor employee activity when working remotely and to provide appropriate notice of termination to employees, as per your state’s legislation.

Beyond that, if difficult conversations are to take place with employees, such as notice of their termination, it’s important to put the wheels in motion to first protect company information and monitor activity before that conversation takes place.

Employers have legal remedies to seek an injunction preventing misuse of information and to recover damages if they have already been suffered, but these remedies often come at a significant cost to the business. 

Understanding the ‘why’ of human behaviour and taking proactive steps to manage people risks will allow prudent employers to act before the horse has bolted.

Want to get better at having difficult conversations at work? AHRI’s short course on will equip you with the necessary skills.

Fay Calderone is a partner and Veronica Lee is a lawyer at Hall & Wilcox.

This article originally appeared in the March 2021 edition of HRM magazine.

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It’s no surprise that employers have been responding to the economic impacts of COVID-19 by making staff redundant. 

Despite the pandemic being unprecedented, the Fair Work Act 2009 Cth (Act) still requires that every redundancy is genuine, and a fair process be followed when making an employee redundant. Specifically, a dismissal is considered to be a genuine redundancy where an employer meets the following requirements:

1. the organisation no longer requires the job to be performed by anyone due to changes in the operational requirements of the business; 
2. the organisation complies with all consultation requirements existing in an award or enterprise agreement; and 
3. it was not reasonable in all the circumstances for the person to be redeployed, either within the business or to another role within an associated entity.

The test focuses on whether the role has survived the restructure as opposed to a consideration of whether or not there is still a need for the specific duties to be performed. Therefore, an employee’s role may still be genuinely redundant even if there are some parts of their duties that are being performed by other employees. If a redundancy is not genuine, employees may make an unfair dismissal claim with the Fair Work Commission (FWC).  

The recent FWC decision in ASU v Auscript Australasia Pty Ltd serves as a timely reminder of the importance of consulting with impacted employees before reaching a decision to terminate employment. Auscript made a portion of its workforce redundant in two tranches this year: the first following closures of offices in Adelaide, Sydney and Hobart and the second due to the adverse impacts COVID-19 had on its business. While Auscript did meet with the impacted employees in the second tranche, it was found that it failed to genuinely consult and give due consideration to other options such as redeployment. This was in breach of its enterprise agreement.

Consultation requires meeting with each employee considered for a redundancy to explain the possibility that their role may cease to exist, albeit that no final decision has yet been made. Employers must give employees an opportunity to provide feedback and input as to options to preserve their employment as well as involve unions where required by an award, industrial instrument or the law. They must also give due consideration to such feedback.

JobKeeper

While JobKeeper has given businesses in the worst affected industries a critical lifeline, it’s not a silver bullet or a permanent solution. Boeing is one organisation that has been particularly hard-hit.  

The pandemic has all but wiped out demand for the production of new aircraft in the foreseeable future. While the business confirmed redundancies would be made among factory workers in April, Boeing has since qualified for, and is claiming, JobKeeper. Nevertheless, the company anticipates the redundancy process will resume and continue until late this year. This means workers remain employed, are tagged for redundancies, but have little useful work to do in the meantime. 

Conceivably, this situation could mean employees have no incentive to resign from employment while receiving JobKeeper and with pending expectations of redundancy pay.

The temporary amendments in Part 6-4C of the Act allow employers to make JobKeeper enabling directions and stand down staff on reduced or nil hours where they are unable to be usefully employed.  In early September, legislation was passed to extend these amending provisions to align with the extension of JobKeeper payments until 28 March 2021. 

The amendments assist employers who do not qualify for JobKeeper payments under the amended scheme, but are still suffering a downturn in business due to the adverse economic effects of COVID-19. Employers will need to carefully examine whether they can issue JobKeeper-enabling directions under the extended provisions, particularly in light of the toughener penalty regime, and consider alternate measures to reduce labour costs where they do not meet eligibility requirements.

It’s crucial organisations start casting projections and planning ahead for when JobKeeper subsidies are reduced for a second time on 4 January 2021 and then when they cease entirely in March next year. 

Many organisations are revisiting their structures and redundancy processes and considering broader workplace planning strategies in preparation.

There remain, of course, a number of other options organisations can consider in order to control employment costs before resorting to making staff redundant. Redundancies produce legal risk when processes are not followed properly and can create cash flow challenges in and of themselves. It can also mean that once operations stabilise, businesses are faced with a need to recruit, train and mobilise talent, which can be quite timely, high effort and costly. 

Organisations should carefully weigh up proposals to make staff redundant in accordance with the requirements in the Fair Work Act and against cash flow projections and future workplace planning strategies.

A version of this article originally appeared in the September 2020 edition of HRM magazine. The information in this article was up to date as of October 2, 2020.

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The law is clear on who can request to work from home. It is also clear on the process that must be followed. Whether or not requests have to be accommodated is when it wanders into a grey area.

Employers are entitled to refuse requests on reasonable business grounds. That entitlement gets murkier when we consider COVID-19 and the impact it has on what’s “reasonable”.

Under the Fair Work Act 2009 (FWA), full-time and part-time employees with at least 12 months of continuous service, and casual employees who have the same and a reasonable expectation of ongoing employment, are eligible to make flexible working requests, such as working from home, if they meet any of the following criteria:

• They are the parent, or have responsibility for the care, of a child who is of school age or younger.
• They are a carer (within the meaning of the Carer Recognition Act 2010).
• They have a disability.
• They are over 55 years of age. 
• They are experiencing violence from a member of their family. 
• They provide care or support to a member of their immediate family or household who requires care or support because they are experiencing violence from their family.

Catering for new expectations?

As organisations become more familiar with managing working-from-home arrangements due to COVID-19, and some staff find that they both prefer it and are more productive while working at home, it’s likely many employers will be expected to mainstream flexibility. 

The cultural demand for flexibility could move far beyond the eligibility requirements. Offering flexible work is already considered best practice to build more diverse, inclusive and engaged workforces.

The legislation will still be in force and employers should remember they can only deny requests from eligible employees after following a process prescribed by the legislation and applicable awards.

While the FWA doesn’t provide a mechanism to scrutinise whether business grounds were “reasonable”, if an employee considers they have been discriminated against on grounds such as family responsibility, gender or disability, they may make a complaint to a state or federal discrimination tribunal. Discrimination tribunals will consider an organisation’s resources, disruption to the business or other employees, and the effect on an employee’s ability to work efficiently. 

Arrangements that were once considered unfeasible may not be considered so in a post-pandemic world. 

It will be less reasonable to argue that flexible arrangements are impractical and too costly after an employer has already invested in their flexible work infrastructure, worked with employees to maximise business continuity, leveraged technology and accommodated changes in hours for employees home-schooling children. The onus is on employers to explain why these arrangements would suddenly be unjustifiable post-pandemic. 

What is an unjustifiable hardship is relative to the size of the workforce and resources available to the employer. What may pose an unjustifiable hardship for a small business may be an entirely reasonable change for an ASX-listed business.

With the aid of highly capable technologies, interaction with staff and effectively performing duties from home is undoubtedly achievable. While the inherent requirements of a role must be assessed case by case, the circumstances in which an employer can deny a request on reasonable business grounds will likely shrink post-COVID-19. 

As a silver lining, many employers seem to be marvelling at the productivity and costs benefits of more staff working from home.

In a world where remote working has quickly been normalised, employers should keep all this in mind when assessing an employee’s request. Any refusal to accommodate such requests for eligible employees must be carefully considered and may be open to increased scrutiny. 

This article first appeared in the June 2020 edition of HRM magazine.

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In Myers v Arenco Holdings Pty Ltd & Ors [2019] the Federal Circuit Court of Australia (FCC) found Arenco Holdings Pty Ltd & Ors (Arenco) to be liable and a human resources advisor and supervisor accessorily liable for the unlawful dismissal of an employee. 

The employee was employed as a fitness instructor and administration assistant on a part-time basis. On 2 July 2018, the employee was asked by the human resources advisor and supervisor to provide her ideal teaching roster in writing by the morning of 3 July 2018. 

Upon checking the Fitness Award, the employee queried whether she had been paid or rostered correctly and subsequently raised such concerns with the supervisor by text and explained in person that she needed to clarify the award rates before confirming her ideal work roster. 

On the morning of 3 July 2018, the employee informed her supervisor by text that she was being underpaid in breach of the Fitness Award. When she arrived at work that afternoon she was advised her permanent part time employment would be terminated “because [she] had been employed one less day than three months and therefore still on probation, Om Yoga can do whatever it wants”. The next morning she received written confirmation of the termination of her employment.

The employee commenced proceedings against the employer, human resources advisor and supervisor alleging her dismissal constituted adverse action against her for proposing to exercise a workplace right under section 340 of the Fair Work Act 2009 act.

Revenge of an earth sign angel

The Respondents defended the dismissal and alleged the employee’s performance was ‘careless and sloppy’ and that, at times, she had a poor work ethic and negative attitude. The FCC found it unconvincing that, while allegedly acting in concert with the HR advisor to manage a deteriorating employment situation over some months, the supervisor would neither make a note of any relevant complaint about employee’s performance, or otherwise write down in report form her complaints about such lack of performance. 

Further there was evidence of appraisals by the supervisor of the employee in texts and social media that referred to the employee as ‘an earth sign angel’, which the supervisor conceded was used astrologically for people who are “very hardworking and very efficient”. Such appraisals were considered to be inconsistent with the allegation. 

Judge Egan observed: “The texts and Facebook posts. . . clearly do not reflect the level of work dissatisfaction with [the employee’s] work performance which was said by [supervisor] to have existed since the commencement of [the employee’s] employment…”

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Zen supervisor conceded she abhorred confrontation 

The FCC found the decision to terminate was made by the HR advisor in consultation with the supervisor. The supervisor in cross-examination conceded that rather than being a manager she was a coordinator and the employer was criticised for placing her in a position where she was unqualified in matters of human resource management. The supervisor admitted she abhorred confrontation. 

The FCC held the employee’s termination constituted adverse action taken by Arenco as a result of the employee asserting that the Fitness Award had not been complied with. The human resources advisor and supervisor were each ‘involved in’ the said contravention and are accordingly accessorily liable for such contravention of the Act. The FCC found that the human resources advisor and supervisor sought to portray the termination as based on work performance issues, when in fact they were motivated by a desire to avoid the financial consequences which would be suffered by the employer if it was required to pay to her due entitlements.

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The momentum built by the powerful #metoo movement has led to more conversations about sexual harassment and increasingly a propensity by decision makers to not tolerate it in their workplaces. With the exception of a select few, most people sharing their stories as part of the #metoo movement have been female. However, research shows men are hardly immune to harassment and the consequences can be severe.

Nearly 20 per cent of workplace sexual harassment complaints with the US Equal Employment Opportunity Commission come from men.

Sexual harassment at work has been scientifically linked with depression, anxiety and post-traumatic stress disorder. In an effort to cope, victims sometimes resort to unhealthy habits such as problematic drinking.

Twenty-six per cent of Australian men experienced sexual harassment between 2013-2018, according to the Australian Human Rights Commission’s (AHRC) fourth national survey on workplace sexual harassment. Fifty-eight per cent were sexually harassed by one or more male perpetrators and 47 per cent by one or more female perpetrators (respondents could report multiple incidents of harassment).

In incidents with a single perpetrator, 52 per cent of the time the perpetrator was a man and 47 per cent it was a woman.

“Nearly 20 per cent of workplace sexual harassment complaints with the US Equal Employment Opportunity Commission come from men.”

Us too?

Recently, the International Bar Association released its Us Too? report into bullying and sexual harassment in the legal profession. The results are startling.

Of 6980 respondents, only 53 per cent had policies and only 22 per cent offered training to address bullying and sexual harassment. Seventy-five per cent of people who experienced sexual harassment never reported it, with men significantly less likely to do so. Quotes from reporting victims give you some idea as to why they felt this way. 

One anonymous respondent said, “Even if a company says all the right things, it’s very easy to be branded as someone who is a ‘troublemaker’, especially if the perpetrator has a record of long service at the firm or is a senior member of staff.”

Another said, “I didn’t report because who believes that a man says ‘no’ to sex?”

The report found some men don’t report harassment because they don’t recognise it at the time it occurs. For example, a respondent from a Swedish firm said, “At an office party a female lawyer was intoxicated and approached me, touching me in a sensual way and suggesting that we go home together. I repeatedly told her ‘no’. She ignored this and put her hand on my crotch. I would probably never have reflected on the incident as sexual harassment had it not been for women’s testimonies of similar incidents as a result of #metoo.”

It’s true the sexual harassment men experience is often less intrusive. According to the AHRC, 19 per cent of harassment of men constituted sexually suggestive comments or jokes, and 10 per cent was intrusive questions about their private life or physical appearance. 

Employers need to make it clear that this type of harassment is not acceptable. It can still constitute unlawful sexual harassment where it is unwelcome conduct of a sexual nature that makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.

“I didn’t report because who believes that a man says ‘no’ to sex?”

Ten recommendations for employers

Organisations need to take positive steps to address their workplace culture and how they deal with sexual harassment. The Us Too? report provides the following recommendations for change, the utility of which extends to the protection of all workers in all industries:

1. Raise awareness – spreading the word is the first step towards achieving change.
2. Revise and/or implement policies and standards around harassment.
3. Introduce regular, customised training.
4. Increase dialogue and best-practice sharing on what works and what doesn’t.
5. Take ownership – this is everyone’s problem. We need to work towards a more harmonious workplace.
6. Gather data about the nature, prevalence and impact of sexual harassment and improve transparency. 
7. Explore flexible reporting models – employees do not report sexual harassment often enough.
8. Engage with younger staff, who are disproportionately impacted. 
9. Appreciate the wider context – sexual harassment does not occur in a vacuum. Mental health challenges, a lack of workplace satisfaction and insufficient diversity are all related issues. These dynamics need to be understood and addressed collectively.
10. Maintain momentum

Change is by no means inevitable, but it is possible. To achieve cultural change: education is required, bystanders must act, policies must be promulgated and indiscriminately enforced, and leaders must not tolerate sexual harassment in the workplace against any employee, at any time, for any reason. 

Fay Calderone is a partner at Hall and Willcox. This article originally appeared in the July 2019 edition of HRM magazine.

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The anti-bullying provisions of the Fair Work Act 2009 were established to prevent harm caused by workplace bullying by providing “a quick and cost-effective remedy to individuals”.

According to Bill Shorten, the Minister for Employment and Workplace Relations at the time the provisions were introduced, they “encourage early intervention to stop the bullying, to help people resume normal working relationships, and to prevent further episodes of bullying in the workplace into the future”.

At the time the legislation was introduced, employers were concerned by the potential for the jurisdiction to be misused by workers to fetter management prerogative in their lawful and reasonable dealings with their workers. In Tanka Jang Karki [2019], deputy president Sams of the FWC confirmed employer concerns were warranted and have materialised, noting that employees are increasingly filing stop bullying applications for an “improper purpose… as a deflection, or diversion, or even to overturn a justified disciplinary action or legitimate performance improvement processes, implemented by an employer as a reasonable management response to incidents of misconduct or poor performance.”

Employee claims

Mr Karki was a bellman at Star City Casino (The Star). He alleged that the four incidents below amounted to bullying by The Star and the front office manager, Ms Sykes, and applied for a stop-bullying order from the FWC.

1. The driveway incident

On 27 August 2018,  Sykes arrived at The Star in an Uber and saw  Karki on his mobile phone whilst on duty, contrary to The Star’s mobile phone policy. Karki claimed Sykes yelled at him for using his phone, which was “a kind of threat” that publicly embarrassed him and constituted both abuse and harassment.

Further, he alleged that because she was not on duty, she could not enforce company policies. To counter the allegations, The Star tendered CCTV footage that evidenced Sykes had not yelled at  Karki or otherwise been loud or aggressive.

2. First meeting

On 30 August 2018, Sykes arranged a meeting with Karki to discuss the mobile phone incident. During this meeting, she raised other issues such as Karki not smiling or interacting with guests or demonstrating ‘Star quality’. He claimed that this amounted to harassment as he was being treated differently to others.

3. Second meeting

On 3 September 2018, Sykes informed Karki that there would be a meeting to discuss the CCTV footage in relation to the mobile phone incident. Karki believed this constituted further intimidation by Sykes as she was not his supervisor.

At this meeting he received his first written warning for breaching The Star’s mobile phone policy. He claimed this was unreasonable, unjustified and constituted inappropriate management action that needed to be withdrawn.

4. The spitting incident

On 30 December 2018 – after  Karki had made his stop bullying application – he got a final written warning from the general manager, Mr Cameron, who saw Karki spitting in a rubbish bin in one of the casino’s public areas. CCTV footage confirmed that he spat in the bin three times.

Karki claimed that he did so due to bleeding gums and the fact that nearby construction was creating dust. Further, as there were no policies or warning signs against spitting, he believed he was being “specifically targeted” as a result of his stop bullying application. No evidence was tendered in relation to the alleged gum problem or that he sought dental or first aid assistance in relation to these.  

Disciplinary action

According to the FWC, the actions taken by The Star and Sykes constituted reasonable management action carried out in a reasonable manner and therefore Karki could not have been “bullied at work”. In a reassuring judgement for employers, deputy president Sams said:

“Any employer which has concerns about an employee’s conduct and is able to prove that conduct occurred (as here by the CCTV footage and Mr Karki’s own admissions) is perfectly entitled to conduct a disciplinary process and make a disciplinary outcome. In the case of The Star’s policies and procedures, The Star has a comprehensive and detailed regime for dealing with such matters and ensuring fair and reasonable outcomes.”

He was highly critical of Karki’s failure to utilise The Star’s “comprehensive and detailed” anti-bullying regime. He stated that the Commission would not normally intervene in a bullying grievance unless the employee had “initiated and/or completed” the internal process, particularly if the company “has a comprehensive and commendable bullying policy applying to its workplace”. He noted this is a matter he must take into account under the Fair Work Act.

Further, Karki’s abuse of the bullying jurisdiction was criticised by the Commissioner who found:

• he presented evidence that was “fanciful or implausible and for the most part entirely made up” and “according to his own narrative, which was far removed from reality”;
• he made submissions in relation to the spitting that were “nonsense… one does not need a policy, or direction that you do not spit in a public area at a venue such as The Star… while on duty, or otherwise”; and
• the application was contrary to the anti-bullying legislation’s purpose of protecting against harm as “he had produced no medical evidence of being harmed by any of [the alleged] incidents. His only evidence to this effect was his claim that he was taking sleep medication.”

Not good enough

The Commissioner stated, “it is not acceptable to use the stop bullying jurisdiction of this Commission as a shield or stalking horse, to prevent, delay or deflect justifiable disciplinary outcomes, or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying. It demeans and undermines the important work of the Act’s ‘stop bullying’ provisions to prevent workplace bullying. On one view, such conduct might be said to be perilously close to an abuse of process.”

With decisions like these, employers with well documented policies that they promulgate and procedures that they meticulously follow may proceed with a level of confidence that they can defend stop the bullying applications that are brought without proper justification.

Employers are entitled to organise their workplaces, counsel and discipline their employees in accordance with their operational requirements, policies, values and directions that they lawfully and reasonably issue to employees. Employers demonstrating that their actions are reasonable (and taken in a reasonable manner) can successfully defend any such application and should not be hamstrung in their management of employees under threat of such claims.

Fay Calderone is a partner at Hall & Willcox.

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