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Bullying and Harassment Claims High in Local Government

Safe Work Australia have identified that local government employees are the third most represented group when it comes to compensation claims for Workplace Bullying and Harassment.

For the three years to 2016, approximately 190 local government employees received compensation for workplace bullying and harassment a year.

Bullying and harassment can take varying forms. It can be subtle or take the form of more overt behaviour.

What is Workplace Bullying and Harassment?

Bullying at work, as defined by the Fair Work Act 2009, occurs when:

  • a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work; and
  • the behaviour creates a risk to health and safety.

However, bullying does not include reasonable management action carried out in a reasonable manner.

Wollondilly Shire Council

David Wilson aged 61 years, plant operator, took his own life the same day that he was informed that his most recent complaint was found to be unsubstantiated.
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Director Record Keeping Duties

Company directors have financial record keeping duties under the Corporations Act and substantial penalties can apply for a failure to maintain adequate financial records.

What are the duties?

All companies are required to keep and maintain accurate financial records which:

  • correctly record and explain the company’s transactions and financial position
  • would enable true and fair financial statements to be prepared

What are financial records?

In essence, financial records:

  • are broadly defined in the Corporations Act and include invoices, receipts, bills of exchange (eg. cheques), promissory notes, documents for prime entry (eg. cash books and journals) and working papers
  • must be retained by the company for at least 7 years after completion of the transactions to which they relate

How are financial records to be kept?

The financial records may:

  • be stored in electronic form provided they can be converted into hard copy within a reasonable period of time
  • be kept in any language, however, an English language translation must be provided within a reasonable period of time if requested by a person entitled to inspect the records
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FWC Reduces Redundancy Payout to Zero

A company has successfully applied to the Fair Work Commission (FWC) to reduce its statutory obligation to pay redundancy pay after helping an employee secure alternative employment with another company.

Statutory Redundancy Entitlement

The National Employment Standards (NES) usually entitle national system employees to receive redundancy pay if their employment ends due to redundancy.

Exceptions

However, various exceptions can apply including where an employer obtains other acceptable employment for a redundant employee.

In that case the employer may apply to the FWC to have the NES redundancy amount reduced to what the FWC considers appropriate including to zero.

The Facts

In Get Started Pty Ltd v Lee:

  • the company employed Mr Lee as a web developer for almost 2 years
  • the company experienced a downturn in business and notified Mr Lee that his position was to be made redundant effective 2 March 2018
  • prior to 2 March 2018, another third-party developer, Levo Group Pty Ltd (Levo), made contact with the company and asked to ‘borrow’ some of its personnel to assist with an increase in work
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NEW! Domestic Violence Leave

NEW! Domestic Violence Leave

The Fair Work Commission has released the final version of the model term to be included in all modern awards to provide for unpaid leave to deal with family and domestic violence.

Start Date

The new clause will apply as and from the first full pay period on or after 1 August 2018.

Key Terms

In essence, the clause:

  • applies to all employees (including casuals)
  • entitles employees to 5 days’ unpaid leave regardless of an employee’s ordinary hours of work (ie, it is not pro-rated for part-time employees)
  • allocates the unpaid leave in full at the commencement of each 12 month period (rather than accruing progressively during a year of service)
  • does not allow the unpaid leave to accumulate from year to year
  • does not require an employee to utilise any available paid leave before applying for the unpaid leave
  • requires an employee to comply with the standard notice and evidence requirements prescribed by the Fair Work Act to support the claim for unpaid leave, however, where such evidence is provided specific confidentiality obligations apply
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Australian Government launches examination into Workplace Sexual Harrassment

In response to growing social pressures driven by the #MeToo movement, the Australian Human Rights Commission has launched a year long  ‘’in-depth examination’’ of sexual harassment in the workplace.  The inquiry aims to determine the main drivers of sexual harassment in the workplace, and the use of technology and social media and its legal framework.

Sex discrimination commissioner Kate Jenkins stated that the inquiry was a “huge step in the right direction” as “we need to continue to create a society where this kind of conduct is unthinkable and where sexual harassment at work is not something people simply have to put up with”. More importantly, the inquiry will provide employees, employers and all members of the public with an opportunity to participate in developing a solution to ensure Australian workplaces are safe and respectable for everyone”.

As it stands, more than 20 per cent of people of 15 years old in Australia have been sexually harassed, with 68 per cent harassed in the workplace. The purpose of the inquiry is aimed to work out solutions to drastically reduce those figures and hopefully lead to an increase in women in top leadership and executive roles.
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What every employer MUST know for 1 July 2018

With the commencement of a new financial year, it brings with it important changes and new rates which will apply from 1 July 2018.

NEW! High Income Threshold (HIT)

With the HIT:

  • it increases on 1 July 2018 to $145,400
  • it impacts:
  • who can make a claim for unfair dismissal (for those not covered by a Modern Award or to whom an enterprise agreement does not apply)
  • the maximum amount of compensation payable in an unfair dismissal claim
  • those on a ‘guarantee of annual earnings’ (a Modern Award does not apply to an employee whenever this guarantee is in place provided it continues to meet the relevant legislative requirements)

NEW! Modern Award Increases

With Modern Awards (including enterprise awards):

  • minimum wages increase by 5% (starting on the first full pay period on or after 1 July 2018)
  • absorption of wage increases into over-award payments is permissible (subject to the terms of the relevant employment agreement and what other amounts are being absorbed into any annualised salary)
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Employment Agreements

The Importance of Comprehensive Employment Agreements
Navigating Australia’s complex employment system can pose significant challenges for employers including when it comes to employment agreements.

Protect and Defend
The importance of comprehensive employment agreements cannot be overstated as they can:

  • afford an employer greater control and power over matters such as remuneration, duties, termination, confidential information, intellectual property and restrictive covenants
  • promote compliance and consistency with the Fair Work Act and relevant industrial laws and instruments
  • assist employees to minimise (and sometimes eliminate) a wide variety of claims including underpayment claims and breach of contract / constructive dismissal claims
  • assist employers to pursue claims for any loss suffered due to an employee breach of a confidentiality, intellectual property and/or restrictive covenant obligation

Depending upon the situation at hand, the costs of not having comprehensive employment agreements in place can be catastrophically high.

Essential Terms
Terms that should be contained in a comprehensive employment agreement include:

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New – Proposed Changes to Single Touch Payroll including Jail Terms

The Federal Government has recently proposed legislation which formalises new payroll reporting obligations and which imposes greater penalties on employers and other individuals who refuse to remit PAYG withholding tax and superannuation contributions.

By way of recap:

  • in 2016 legislation was passed introducing Single Touch Payroll (STP) reporting
  • STP reporting requires employers to report to the ATO payments such as salaries and wages, PAYG withholding and super information at the same time that wages are paid to employees
  • the legislation requires that all employers with 20 or more employees comply with STP reporting obligations from 1 July 2018
  • for initial purposes, the calculation of the number of employees is to be undertaken on 1 April 2018

However, recent legislation proposed by the Federal Government would require all businesses to comply with STP obligations from 1 July 2019.

The proposed legislation also:

  • grants the Australian Taxation Office (ATO) a suite of enforcement tools, including a strengthened regime of director penalty notices for unpaid superannuation and other tax-related liabilities
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