No Comments

New Laws – Criminal Records and Discrimination

What has changed?

As and from 1 October 2019, employers will now be able to reject jobseekers if they have a criminal record “relevant to the job” which they have applied for.

Previously, employers were required to show that the jobseeker’s criminal record meant that they could not perform the inherent requirements of the position.

Catalyst for change

The catalyst for change was prompted by a case in 2018 where:

  • Suncorp argued that a jobseeker’s criminal record for child pornography offences tainted his integrity and as such he could not be trusted to work unsupervised from home with sensitive client data

 

  • the Australian Human Rights Commission, however, held that his child pornography convictions were not offences of dishonesty and that Suncorp had unlawfully discriminated against the jobseeker by withdrawing a job offer upon learning of his child pornography offences

In a media release on 3 October 2019 the Attorney-General for Australia and the Minister for Industrial Relations, the Hon Christian Porter MP, commented that:
Continue reading…

No Comments

Beware of Personal Guarantees

A director or shareholder of a company is often asked to provide a personal guarantee of a company’s obligations.

Any person who is considering giving a personal guarantee must be aware of the risks and pitfalls of doing so.

Types

An agreement based personal guarantee is usually either:

  • set out in a separate document (eg, a deed of guarantee and indemnity)

 

  • incorporated into the main document

Traps

Whilst in the first category above it will be obvious that a personal guarantee is requested, in the second we have reviewed many contracts where the guarantee clause is ‘buried’ in the fine print of the document.

For example, we have seen clauses in supply contracts which in effect state ‘the person signing this document on behalf of the company is giving a personal guarantee’.

Therefore, a director may sign a contract on behalf of a company and unknowingly be giving a personal guarantee at the same time!

Risks

The obvious risk in giving a personal guarantee is that the assets of the individual (which may include the family home) could be at risk if the company defaults on its obligations under the relevant contract.
Continue reading…

No Comments

Social Media and the Workplace – A Recent High Court Decision

Can Employees Express their Political Views through Social Media?

The High Court has recently struck down a ruling that a Federal Government department unjustifiably trespassed on the implied constitutional rights of an employee when her employment was terminated over making political tweets.

In essence:

  • the employee brought an unlawful termination claim after her employment had been terminated for making political tweets about her employer, the Department of Immigration and Border Protection
  • the employee argued that her employer had imposed an unreasonable burden on the employee’s implied freedom of political communication
  • the employee had previously succeeded in bringing a claim before the Administrative Appeals Tribunal that dismissing her for anonymous tweets highly critical of government policy trespassed on her implied constitutional rights and failed the “reasonable management action” test
  • the High Court though affirmed the decision by Comcare to deny the employee’s claim for compensation for a psychological condition allegedly aggravated by her dismissal and ruled that it did not constitute an injury because her employer took “reasonable management action
  • Continue reading…

No Comments

Adverse Action – Employee Wins Their Job Back and Back Pay!

Following an initial decision in 2018, the Federal Circuit Court has ordered that a company:

  • reinstate a senior executive
  • pay him almost $1,000,000 in back pay

after it had dismissed the executive for making complaints about a lower level employee.

The Court rejected the company’s arguments that:

  • it was inappropriate to reinstate the employee because his role had been filled
  • no other vacancies existed within the company’s organisation

The Facts

In essence:

  • the employee was a South Pacific and South-East Asia Regional Leader
  • the employee began experiencing difficulties with the region’s HR Manager who regularly disregarded his reasonable instructions and was uncooperative and hostile towards him
  • the employee complained to the company’s senior management who blamed him for his devolving relationship with the subordinate HR Manager
  • the HR Manager placed the employee on a performance improvement plan
  • the company subjected the employee to an ethics investigation and ultimately dismissed him on performance grounds
  • the employee alleged that the performance improvement plan, ethics investigation and dismissal were motivated by his complaints about the HR Manager
  • Continue reading…

No Comments

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
  • Continue reading…

No Comments

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.
Continue reading…

No Comments

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
  • Continue reading…

No Comments

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
  • Continue reading…