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Work Christmas Functions – Avoiding an ‘Unhappy Holiday’

Work Christmas functions provide employers and employees with the opportunity to reflect on the highs (and lows!) of the working year and are a great way to reward staff for their efforts and enthusiasm.

However, the ‘silly season’ can often be a cause of headaches for employers as employees can be prone to engaging in inappropriate conduct which may necessitate taking disciplinary action and/or give rise to an assortment of legal claims.

Employer’s Duty of Care

Employers need to remember that Christmas parties are work functions (even if held away from the workplace) meaning they owe a duty of care to their employees during these events.

What Does the Duty of Care Require?

This duty requires employers to take all reasonable steps to ensure the health and safety of employees including by:

  • if alcohol is available, limiting employees’ consumption of alcohol and ensuring that sufficient food is available to mitigate the effects of the alcohol
  • ensuring illicit drugs are not consumed during the event
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Tougher Penalties under the Australian Consumer Law

The Treasury Laws Amendment (2018 Measures No. 3) Act 2018 (Cth) has introduced new tougher penalties for companies and individuals who breach certain provisions of the Australian Consumer Law (ACL).

What are the new penalties for companies?

The new maximum penalty for companies is the greater of:

  • $10 million; or
  • 3 times the value of the benefit directly or indirectly obtained by the company (and any related companies) which is reasonably attributable to the offence; or
  • if the value of the benefit cannot be determined, 10% of the annual turnover of the company (and any related companies) for the 12 month period leading up to the commission of the offence.

Previously, the maximum penalty for companies was $1.1 million.

What are the new penalties for individuals?

The new maximum penalty for individuals is $500,000 (up from the previous maximum of $220,000).

Multiple Penalties

The maximum penalties will apply to each contravention, so companies and individuals could potentially face massive fines if they commit multiple contraventions of the ACL.
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Directors: Beware of relying on the advice of others!

In the exercise of their duties, company directors often rely on both internal and external sources of advice.  However, directors may be liable if their reliance on the advice of others is “unreasonable”.

What does the Corporations Act say?

Section 189 of the Corporations Act states that a director may rely on information, or professional or expert advice, given or prepared by:

  • an employee of the company whom the director believes on reasonable grounds to be reliable and competent in relation to the matters concerned
  • a professional adviser or expert in relation to matters that the director believes on reasonable grounds to be within the person’s professional or expert competence
  • another director or officer in relation to matters within the director’s or officer’s authority
  • a committee of directors on which the director did not serve in relation to matters within the committee’s authority

provided that:

  • the reliance was made in good faith and after making an independent assessment of the information or advice, having regard to the director’s knowledge of the company and the complexity of the structure and operations of the company
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Employer Wins Request for Legal Representation

In a recent decision the Fair Work Commission (FWC) granted permission for a large-scale national employer to be legally represented in proceedings even though the applicant was unable to afford legal representation.

Restrictions on Legal Representation

Under the Fair Work Act a person may not be represented by a lawyer in a matter before the FWC except with the permission of the FWC and which can only be granted if:

  • it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;
  • it would be unfair not to allow the person to be represented because the person is unable to represent themselves effectively; or
  • it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The Facts

In Slemint v ALH Group Pty Ltd:

  • the applicant commenced unfair dismissal proceedings in the FWC
  • the employer was a large-scale operator of over 300 licenced venues and hotels across Australia employing over 5,300 workers
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Personal Leave – Have You Calculated It Correctly?

Two recent rulings have thrown the workplace arrangements of two large-scale employers of shift workers into chaos as they potentially may result in mass underpayment claims being made against hundreds of businesses around the country.

The Issue

Under the National Employment Standards (NES) full-time employees receive 10 days paid personal/carer’s leave per year of service and each work-day day is calculated as being comprised of 7.6 hours.

The Mondelez Decision

In the Mondelez decision a dispute arose in respect of their enterprise agreement:

  • it provided “80 hours per annum” for paid personal/carer’s leave rather than 10 days per annum under the NES
  • the FWC was concerned the provision would deprive Mondelez’s 10 and 12 hour shiftworkers from receiving the full NES entitlement of 10 days per annum
  • the FWC had to decide whether the NES entitlement meant 10 days x 7.6 hours or 10 days x actual hours worked being either 10 or 12 hours for its shift workers
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Warning! Casual Employee Entitled to Annual Leave

In a major decision, the Full Bench of the Federal Court has held that a worker expressly engaged as a casual was entitled to annual leave and other entitlements upon termination.

In our view, in doing so the Court has cast doubt on decades of accepted industrial practices and the decision threatens to undermine casual employment relationships around the country.

The Facts

In WorkPac Pty Ltd v Skene:

  • the employee was employed by a labour-hire company in the mining industry as a dump-truck operator and the employment was governed by the WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (Agreement)
  • although the letter of employment stated he was a casual, he was subject to a continuous 7 day ‘fly-in, fly-out’ pre-set roster arrangement, worked regular and systematic shifts, stayed in accommodation at/near the mine and was expected to attend each shift
  • an ‘all-in flat rate’ of pay was payable for each hour of work although WorkPac did not specify what entitlements this flat rate of pay purported to absorb
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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
  • Continue reading…