A big announcement was made recently as Brisbane, Queensland, Australia was awarded the right to host the Olympic Games in 2032. This is an amazing result – with the thoughts of the tourism that it will attract and the world’s best athletes frequenting places like the “Gabba”.
What gets missed out in the conversation is the more than decade of years leading to the Olympic Games which will bring infrastructure builds and every year a different type of competition being hosted.
As an example the BMX World Championships will be hosted in 2026, the FIBA Women’s World Cup in basketball in 2022 and FIFA Women’s World Cup in football in 2023 will be held and hosted in Brisbane (and other parts of Queensland).
This will lead to a number of tender opportunities for business in industries such as:
- Manufacturing
- Construction
- Building
- Health
- Allied Health
- Transport
- Tourism
- Hospitality
- Professional Services
How do you get “Olympic ready?” there will be a number of facets that tenders will be reviewing as part of their due diligence. Here are 6 obligations you must comply with to get the business Olympic ready:
1. Policies and Procedures need to be implemented and improved
Policies will be in most tenders a requisite requirement – such documents may even be required to be attached to the tender proposal.
Workplace policies are statements of principles and practices that guide how your staff manages your organisation, handles operational problems and complies with legislation and codes of practice.
Policies are organic documents, in practical terms they do not require employees to agree with the policy to be implemented. However, the policy needs to be known to the employees, accessible and if required training provided on the policies in place.
Workplace policies are organic documents that set out:
- Expected standards, behaviour and conduct
- Conditions of employment
- Statements of purpose
- “Common Sense”
- Unique and “unspoken rules” of the company
There are a number of policies to get in place however the basic ones include:
- Code of Conduct
- Workplace health and safety
- Social media
- Disciplinary procedures
- Complaint handling
- Discrimination
- Workplace bullying
- Sexual harassment
- Leave
- Company property
Providing a suite of policies that the organisation has in place will assist in any tender applications and demonstrate ability around dealing with workplace related issues.
2. Modern Slavery Compliance
If your company has a consolidated revenue of more than $100 Million you are already probably aware of the Modern Slavery Act reporting obligations. Modern Slavery was enacted so larger enterprises had an understanding, awareness and were pro active in regards to their supply chain. Some of the practices captured under this reporting include:
- Unreasonably withholding wages;
- Underpayment of wages;
- Excessive overtime;
- Excessive recruitment fees;
- Debt bondage;
- Significantly vague contractual clauses around overtime, wages and leave;
- Workers required to give their passports to employers;
- Unsafe work; and
- Low standard accommodation conditions
These legal obligations have also flowed towards companies contracting to larger enterprises with regular contractual clauses including warranties and indemnities around workplace and employment law compliance.
Engaging lawyers who understand the Modern Slavery legislation and the compliance required especially around the employment law obligations will usually lead to a letter of advice which provides for:
- Risks and liability regarding non-compliance issues;
- Reporting obligations;
- Contractual obligations;
- Recommendations for compliance.
NB Lawyers – Lawyers for Employers have the ability to give employers best practice advice on modern slavery and are happy to sit down with Employers for an obligation free consultation.
3. Wages and wage compliance
Underpayment of wages issues have caught companies such as Woolworths, Chatime, Grill’d and Macquarie Bank in multi-million dollar law suits.
As an example, Macquarie Bank lost an underpayment of wages claim in the Federal Court and were penalised $1.34 Million dollars. This decision was mainly due to the following factors:
- Lack of an off-set clause in the employment contract;
- Payroll system errors;
- Unintentional misinterpretation of a Modern Award.
In any tender application for the Olympics there will be a requirement to ensure in no uncertain terms that the wages paid to employees is compliant with industrial instruments such as modern awards or enterprise bargaining agreements, legislation such as the Fair Work Act 2009 (Cth) and the employment contracts of the employee.
Here are some questions to ask:
- What award are applicable to my employees?
- Are any other industrial instruments applicable or potentially useful – EBAs, IFAs or other awards?
- Have you interpreted the award correctly?
- Have you correctly classified employees under the award?
- What does overtime, penalty rates and allowances do to my margins and bottom line? Will you need to redo your budgets, pricing and rosters to ensure compliance with wage payments?
- Are you keeping correct records – is your bookkeeper or/and accountant or CFO assisting you with this?
Read more in our previous articles on this topic Our previous articles on underpayment of wages 3 Tips For Minimising Risk In Underpayment Of Wages and “We Have Never Had An Issue Before” – How Masterchef And Chatime Have Showed The Perils Of Underpayment Of Wages and Top 3 Tips – Employers Can Avoid A $1.34 Million Underpayment Claim and How Employers Can Learn From 5,700 Employees Underpaid By Woolworths – Top 4 Tips For Employers.
4. Contractual documents – employment contracts and contractor agreements
A requirement to ensure employment contracts and even contractor agreements are in order may even require copies of the contracts to be provided.
The contracts we at NB Lawyers – Lawyers for Employers see on a daily and weekly basis for the most part are not fit for purpose. This is usually because they have not been updated for sometime, investment has not been made to have them properly drafted or they are seen as little more than an afterthought.
Employment contracts and contractor agreements are integral as they set out the contractual and agreed conditions for the worker.
Well-drafted employment contracts will have clauses surrounding the following:
- the scope and duties of the employee;
- remuneration;
- hours of work (including reasonable additional hours);
- a restraint of trade clause (ROT);
- confidential information clause;
- Notice clause;
- Off set or absorption clause;
- Special conditions;
- Bonuses;
- the rights of an employer to vary or terminate the contract; and
- lawfully permitted deductions.
For more information check out the following articles:
- The “Honeymoon Period” Of The Employment Relationship
- Why You Can’t Afford To Take Your Eye Off The Ball When It Comes To Old Contracts
As for contractor agreements sham contracting is an area of great risk. Ensuring your contractors are not engaged in a sham is paramount. Breaches around sham contracting can lead to penalties for the company as well as individuals involved in the breach.
A health and home care provider were recently penalised for $216,000 and the director fined almost $15,000 for breaches including sham contracting. Read more here in this article.
If you engage contractors, we recommend asking yourself the following questions:
- How much control do I exercise over my contractors? – you may wish to consider whether you have made it clear to your contractors they are free to reject work.
- Do I allow my contractors to work for other businesses? – you may wish to ask your contractors if they are performing work for other businesses and make it clear that they are permitted to. If they do perform work for other businesses, you may wish to make a note of which business they work for.
- Do I require my contractors to provide their own tools and equipment? – contractors generally provide their own tools and equipment in addition to any applicable insurance.
- Do I allow my contractors to sub-contract? – contractors are generally allowed to delegate their services to another contractor.
- How am I paying my contractors? – contractors are generally paid on a task basis as opposed to being paid for their time (e.g. a cleaning contractor might be paid for each square metre they service as opposed to being paid by the hour).
5. Staff Training
An element of training will be required to be either demonstrated or showcased in any tender document for the Olympics.
Staff training and development around products and services are clear and relatively straight forward. Internal human resources training should also be part of your agenda. It can sometimes be difficult to allocate a budget for staff training especially around issues such as:
- Sexual harassment
- Leadership, culture and diversity
- Performance Management
- Dealing with complaints and grievances
- Reasonable management action
We have been requested to undertake management training for a number of clients who feel they need a legal perspective to areas which sometimes does not get enough serious thought.
Take Sexual harassment for instance.
To put these all in context, sexual harassment in Queensland is any unwelcome conduct of a sexual nature that is done either to offend, humiliate or intimidate another person, or where it is reasonable to expect the person might feel that way.
Considering this definition, it does not consider whether these acts or conduct is repeated or continuous to be against the law.
That is, in circumstances where it has been the norm to engage in friendly “banter” when it was considered “a long running joke” or “comradery” – however arguably such conduct could be considered sexual harassment or even workplace bullying.
In a recent case involving Emmanuel Montes v The Star Casino [2020] FWC 874 (Star Casino Case), it looked at an issue where an employee who believed that they were engaging in long running jokes or comradery was unfairly dismissed.
In this particular case, Mr. Montes had been employed by the Star Casino for around nine (9) months. In that time, Mr. Montes received a warning and two complaints about his behaviour.
The complainants were unrelated and the complaints were of 3 differing circumstances.
In one of the instances, Mr Montes was engaging in “friendly banter” with an employee. In his defence, the other employee had also engaged in friendly banter with Mr Montes. Mr. Montes took it too far when he grabbed the tray that he had in his hands and smacked the other employee on the bottom. When a complaint was made by the other employee, the other employee said that she felt his actions were “extremely rude and disrespectful”. Mr Montes replied where he said, “come on, I’m only joking”.
In his view, the smacking of her bottom was just part of the spirit of comradery between the two after they’ve been engaged in friendly banter over a period of time.
When confronted with this allegation, Mr Montes showed no remorse and felt that the complaint was frivolous and had no merit.
Amongst other issues, Mr Montes also had a previous warning in regards to his behaviour, had breached a number of policies and also had engaged in further inappropriate commentary with another employee about her being “attractive”.
Of course, it did not help that Mr Montes did not show any remorse whatsoever.
In particular, the Commission found that his lack of understanding was so deeply ingrained. He never really believed he had done anything wrong. His application failed.
Cases such as the Star Casino Case showcases to Directors, Boards, Managers and Supervisors some of the aspects the Fair Work Commission will look at when dealing with sexual harassment.
Workplace training can assist in this discussion and ultimately process development and importantly implementation that is followed.
6. Whistleblower compliance
Does your business have more than 100 employees?
OR
Is your revenue in excess of $50 Million?
OR
Do you have gross assets worth more than $25 Million?
The Whistle-blower laws are a commonwealth amendment (Treasury Laws Amendment (Enhancing Whistleblower protections) Act 2019. These laws are designed to expand whistle blower protection and enforce penalties on eligible companies.
Many tenders require compliance with Whistleblower laws.
More specifically the whistleblower laws cover:
- Breaches of legislation in the financial and credit sectors and any corporate breaches including under the Corporations and ASIC legislation;
- Any breaches of commonwealth legislation punishable by imprisonment of 12 months or more; and
- Behaviour which represents a danger to the financial system or the public.
If you are a company who needs to comply with the whistleblower laws then compliance is mandatory and you will need:
In practical terms, the legislation requires two important actions to be taken by an Employer:
- To Develop a whistle blower policy which specifically provides protections for whistle blowers and to whom the disclosures can be made; and
- Develop a plan of attack when investigating the disclosures.
Developing or reviewing the policy is an activity that should be undertaken on a regular basis.
In regards to investigations, it is integral that your employment lawyer law firm such as NB Lawyers – Lawyers for Employers are involved in the discussions so that if need be legal professional privilege may apply.
What to do?
Getting your business ready for the Brisbane Olympics opportunity?
Get in contact with NB Lawyers – Lawyers for Employers now and start planning – we are happy to help.
Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.
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Written By
Director
NB Lawyers – Lawyers for Employers
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 where his expertise is invaluable as a leader in this area as a lawyer for employers.