As we head into another new year the effects of COVID-19 on the workplace and in particular employment law has been widely felt. Even for those industries and companies who are seeing growth opportunities now, the initial impact had many in precarious and uncertain positions. The team at NB Lawyers – lawyers for employers assisted a number of Employers, Human Resources teams, People and Culture teams and advisors traverse the difficult immediate issues.
As we start to move on from discussions over JobKeeper (and JobSeeker), stand downs and vaccinations a trend is appearing for many of our clients. Understanding these trends and being ready for some inevitable workplace issues can lead to major strategy plans around prevention, mitigation and legal liability for Employers and Human Resources. Some of the major issues to contend with include:
- A rise in General Protections claims
- Ability to undertake proper performance management
- Underpayment of wages issues
- Flexible working arrangements
A rise in General Protections Claims
The Fair Work Commission recently came out with statistics that General Protections claims have quadrupled with the substantial increase in General Protections claims leading to more conciliation conferences in the Fair Work Commission and hearings in the Federal Circuit and Family Court of Australia and the Federal Court.
The rise could be attributed to a number of factors namely:
- The general rise in dismissals
- A rise in disputes in regard to current employment arrangements
- Employee representatives seeking penalties and in particular penalties against individuals involved in breaches
- The reverse onus of proof putting more pressure on Employers
- New discrimination, sexual harassment and workplace bullying laws being utilised as a way to seek workplace right breaches under the General Protections provisions
General Protections claims come in many different forms, however the main one being when an Employer takes adverse action against an employee because they exercise or propose to exercise a workplace right. Adverse action could be a demotion, suspension or termination of employment.
What is a workplace right?
A workplace right could be as follows:
- Making a complaint or filing a grievance
- An application for workers compensation
- Taking or proposing to take personal/carers leave or annual leave
- Going on maternity leave
- Disclosing a mental illness
- Requesting to work from home or undertake greater workplace flexibility
- Making a query about policy or process
- Disclosing a workplace health and safety breach
However, a right under an employment contract itself is not considered a workplace right. A breach of employment contract would fall under a different jurisdictional issue such as a claim for breach of contract.
The significant key is the word “because” that is, the causal link between an adverse action and workplace right.
Onus of Proof
Once those elements are established by the applicant the onus of proof reverses to the Employer. This is quite nuanced and requires an understanding of the decision makers’ mindset when identifying the adverse action and in particular the action was not taken because of any prohibited reasons.
Costs and Penalties
The other main issue with general protections claims is the exposure to higher costs. Firstly because penalties can be sought per breach of up to $63,000 and up to $12,000 against individuals involved in the breach this can include:
- Human Resources
Secondly, as matters progress outside of the Fair Work Commission jurisdiction (once it goes past the conciliation conference stage) the rules of evidence in the Federal Circuit Court and the Federal Circuit and Family Court of Australia. The matter of Tran v Macquarie University (No.2)  FCCA 2049 led to more than $660,000 being awarded against the employer – more can be read about this matter here https://www.lawyersforemployers.com.au/general-protections-complaint-huge-future-economic-loss-pay-out-due-to-covid-19.
In summary the dangers of general protections matters are as follows:
- The reverse onus of proof
- Penalties (and compensation and damages) are much higher
- Penalties can be sought against individuals
- Rules of evidence attract a cost
Performance Management (and training)
It is important to understand the unique problems that have compounded poor performance management.
A number of cases have succeeded against Employers due to poor performance management by managers and supervisors. This has led to success in:
- Unfair dismissal claims
- General protections claims
- Discrimination disputes
- Workers compensation claims
A focus on performance management training should be a major facet of all training sessions whether this is done face to face or virtually. Performance Management training from an Employment Lawyer like the team at NB Lawyers – Lawyers for Employers is unique because there is a focus not just on the process (which is important) but also the potential results if not done right (which is integral). Here are some quick pointers:
- Ensure there is a performance management policy and update as needed
- Understand the consequences. For managers and supervisors, they need to understand what poor performance management can lead to – yes there is liability for the company but also personal liability (accessorial liability) – case studies are a good way to demonstrate this.
- Consider external training potentially from a specialist employment law firm as they may be able to demonstrate their seriousness much more easily to managers and supervisors (and even board members and executive teams).
Underpayment of wages issues
As directors, business owners and those with key decision making responsibilities the management of staff comes with several difficult issues involving personal liability of directors. Underpayment of wages is one major factor and a number of clients have sought advice from NB Lawyers – lawyers for employers on undertaking an audit of the wages paid to staff to:
- Mitigate the risk of personal liability for directors
- Ensure interpretation of awards or industrial instruments is correct
- Improve or add value to due diligence
- Ensure inherited problems around personnel systems can be identified
- Avoid expensive litigation proceedings
An example of personal liability involved the case of Priority Matters (a patent application processing firm) whom lost a major decision against the Fair Work Ombudsman which found personal liability for the directors. What is interesting in this case was that the directors were not involved in the day to day running of the operation of the business. The underpayments:
- Were not deliberate
- There were cash flow problems in the business due to delayed payment expected from the ATO
- Soon after the nearly $1.9 Million in underpayments occurred (or were revealed) the directors took active steps to rectify
Although the reasoning for the “hold up” in payments was accepted – the Courts found that the following factors did not void the Directors from personal liability (and of course liability for the business):
- the employees had previously received salaries well in excess of their entitlements
- the employees were repaid all monies they would have been entitled to
The main point was that there were non-payments and the directors had knowledge of such. In practical terms, the intention and wilful ignorance may provide some basis to reduce liability, however the personal liability for directors exist all the same and directors must be across the prime issue of ensuring their staff are paid correctly and on time.
Another example involved Macquarie Bank.
The Federal Circuit Court decision saw 48 employees of Macquarie Bank being awarded in total $1.34 Million in underpayment of wages. Ranging from non payment of:
- Annual leave loading
- Periods of annual leave
- Personal/carers leave (sick leave)
- Compassionate leave
- Public holiday leave
This was even though in the context of the Modern Award the employees were paid well above any wage obligations under the Modern Award due to substantial revenue sharing benefits. However, the Court found that Macquarie Bank could not satisfy their statutory obligations leading to penalties ranging from $2,540 to $44,580 and in total more than $1.34 Million dollars.
Flexible Working Arrangements
Work from home (WFH) requests are becoming naturally more prevalent.
Requests to WFH will fall under flexible work arrangements, flexible work arrangements are underpinned by the National Employment Standards.
Although there are some differences between award free employees and award (and enterprise agreement) covered employees there is a general requirement to:
- Discuss any request with the employee regarding the request
- Take into consideration:
- Needs of the employee
- Effect for the employee if arrangements were made
- Reasonable business grounds to refuse.
The key part for employers and HR is the term “reasonable business grounds”. The criteria set focuses on the following key factors:
- Cost (high cost)
- The effect on other employees’ arrangements
- new employees will be required to accommodate the arrangements
- there would be a significant loss of productivity or/and negative impact on client/customer service
To be frank, whatever business grounds put forward Employers and HR need to ensure that those arguments would satisfy a Commissioner in the Fair Work Commission. That is to say, whatever you put into writing (and you have 21 days to respond) a Commissioner will look kindly on the arguments put forward. You will need to consider all of the above to have a chance at a refusal being supported by the Fair Work Commission if it is challenged by an employee (and their representatives).
Consider the case of Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria  FWCFB 305 wherein the Victoria Police were unable to refuse a detective’s request for flexible working arrangements. This is even with the following arguments:
- the arrangement would Impose an unreasonable financial burden as they would need to pay the detective his full salary plus overtime allowances
- a significant increase to the risk of fatigue-related OH&S incidents as the shifts would be longer
- A negative impact to productivity and parity to the colleagues of the detective
Although there were some other issues that hindered the Victoria Police in this matter the arguments would seem to be (on the face of it) wholly justified on reasonable business grounds. The Fair Work Commission found this was not the case.
Taking this case into consideration you will need to go further than the Victoria Police to justify a refusal.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars