30 Jan HR Law Newsletter – January 2015

HR ALERT – PRODUCTIVE COMMISSION PAPERS RELEASED

On 19 December 2014, the Australian Treasurer, Jo Hockey, requested the Productivity Commission (the Australian Government’s independent research and advisory body) to undertake an inquiry into the workplace relations framework.

The scope of the inquiry is to “assess the performance of the workplace relations framework, including the Fair Work Act 2009, focussing on key social and economic indicators important to the wellbeing, productivity and competitiveness of Australia and its key people”.

On 22 January 2015, the Productivity Commission released five issues papers, namely:

1. The Inquiry in Context;

Issue paper 1 considers the history of the Workplace Relations system and what might need to change.

1. Safety Nets;

The Second issues paper looks at the Federal minimum wage, the National Employment Standards, the award system and flexibility and penalty rates.

1. The Bargaining Framework;

Issue paper 3 looks at bargaining and industrial disputes. It also considers individual arrangements outside of enterprise bargaining.

1. Employee Protections;

The fourth issues paper considers the protections available to employees, including unfair dismissal, anti-bullying jurisdiction and general protections.

1. Other Workplace Relations Issues.

The final issues paper looks at a several different issues, such as how well the Fair Work Commission and Fair Work Ombudsman are operating, whether competition law is neglected in the Workplace Relations system and alternate forms of employment.

In each of the issues papers, the Productivity Commission seeks feedback on a number of questions, such as, “What are the variations in profit margins and sales over the week, and to what extent does this affect the appropriate design of penalty rate arrangements?” and “Do Australia’s unfair dismissal processes achieve their purpose, and if not, what reforms should be adopted, including alternatives (or complements) to unfair dismissal provisions?”.

A complete copy of each issues paper can be accessed at: http://www.pc.gov.au/inquiries/current/workplace-relations/issues.

The purpose of the issues papers released by the Productivity Commission is to assist parties to prepare submissions to the inquiry. Submissions are to be made by 13 March 2015 and can be submitted by email to workplace.relations@pc.gov.au. The Productivity Commission’s report to Government is due to be provided on 30 November 2015.

The inquiry is important to each employer in Australia as it will likely shape Workplace Relations laws in the future. If you have an opinion or suggestion as to how you would like to see Workplace Relations laws shaped to meet your organisations requirements, now is the time to put that forward.

HR Law would be happy to assist with the preparation of submissions or answer any questions you may have about the issues papers or the inquiry.

Does your Job Application Form contain mandatory fields which amount to discrimination?

IMPLICATIONS: In light of the below decision, employers should review their job application forms and consider whether any fields may be considered discriminatory. Particular attention should be given to mandatory fields and fields which request information about protected attributes, such as gender, age, marital status, disabilities, etc…

On 11 November 2014, Senior Member Oliver of the Queensland Civil and Administrative Tribunal (“QCAT”) found in favour of Mr Steven Willmott holding that Woolworths Ltd’s Job application form contained discriminatory fields.

In December 2013, Woolworths advertised for a console operator position, which Mr Willmott decided to apply for. The job application form required Mr Willmott, amongst other things, to select his gender, age and upload documentation which supported his entitlement to work in Australia. Mr Willmott claimed that he was “sickened beyond belief” at Woolworths disregard for the anti-discrimination laws in Australia and instead of completing the job application form he filed a complaint with the Queensland Anti-Discrimination Commission.

Woolworths conceded that, prima facie, the request for private information could amount to discriminatory conduct, but stated that the information was reasonably necessary for purposes which did not involve discrimination. Woolworths raised the following matters in defence of Mr Willmott’s discrimination claim:

1. Date of Birth

Woolworths claimed that an individual’s date of birth is required because some positions (such as liquor outlet positions) require employees over 18 years. It also stated that its Enterprise Agreement contains junior rates of pay for employees under 21 years and as such it required this information to determine the perspective employee’s remuneration entitlements.

Senior Member Oliver rejected Woolworths’ arguments stating that while it might suit Woolworths’ administrative purposes to collect this information at an early stage, it was not reasonably necessary. The Senior Member also stated that it would be sufficient to have candidates select whether they are over 18 years of age, if such a requirement was relevant for the position.

1. Gender

Woolworths’ justification for requiring candidates to select their gender was said to arise out of a Commonwealth Government directive to collect data about job applicant’s gender.

In rejecting this argument, Senior Member Oliver stated that the directive only required Woolworths to provide data which was available, it did not impose an obligation on applicants to nominate their gender.

1. Right to Work Information

Woolworths claimed that the Migration Act 1958 (Cth) (“Migration Act”) imposed an obligation on employers not to employee any person who did not have an entitlement to work in Australia. In reliance on this Woolworths alleged that as the Migration Act conflicted with the Anti-Discrimination Act 1991 (Qld) (“AD Act”) that the Federal act prevails to the extent of the inconsistency.

Senior Member Oliver found that the sensible approach would be to ask the application to nominate the basis on which they have a right to work in Australia. Then, if an interview is held, the applicant can provide copies of the relevant supporting documentation. The Senior Member stated that this method avoids the result of thousands of documents containing confidential information remaining stored in Woolworths’ database.

The Senior Member rejected Woolworths’ argument finding that there is no legal requirement under the Migration Act for an employer to require proof, at the application stage, of an applicant’s right to work. Secondly, Senior Member Oliver held that the collection of the information was not reasonably required at the application stage.

Ultimately, Woolworths’ conduct of requiring an applicant to provide a date of birth, their gender and upload proof of work documentation was in breach of section 9 of the AD Act. Willmott was awarded a nominal amount of $5,000.00 for embarrassment, humiliation and loss of chance.

Woolworths has now amended its online job application form. Applicants are no longer required to insert their date of birth, the gender field is no longer mandatory and contains a “no selection” option and proof of work documentation is no longer required to be uploaded but is rather noted as being necessary for the interview stage.

HR Law would be happy to assist you to review your job application form/s and address any potentially discriminatory fields. Please contact us if you have any questions in regards to the above case or your job application form/s.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

What ‘at work’ actually means

Under the now 12 month old Federal anti-bullying legislation, section 789FD of the Fair Work Act 2009 (“FW Act”), provides that “A worker is bullied at work if:

(a)       while the worker is at work in a constitutionally-covered business:

(i)         an individual; or

(ii)        group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b)       that behaviour creates a risk to health and safety”.

There has been much speculation about what ‘at work’ means and whether unreasonable behaviours which occur outside of the workplace, such as on social media or at a work function, fall within the scope of section 789FD of the FW Act. On 19 December 2014, the Full Bench of the Fair Work Commission put an end to the speculation by deciding what ‘at work’ actually means.

In brief, in the matter of Bowker, Coombe, Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, the Victorian Branch and Ors [2014] FWCFB 9227, the Full Bench was required to determine what constituted ‘at work’ in light of the Applicants in the matter raising a number of alleged unreasonable behaviours which occurred outside of the workplace, the inclusion of which were objected to by the Respondents. The alleged unreasonable behaviours included that:

1. “an employee of DP World and a member of the Maritime Union of Australia (“MUA”), in a telephone call to another DP World employed, had described one of the Applicants as a scab;

1. various Facebook posts have been made by employees of DP World who are members of the MUA, and by MUA officials, making various unreasonable and insulting allegations and comparisons of two of the Applicants; and

1. an official of the MUA failed to provide representation and advice to two of the Applicants”.

It was the Applicants’ contention that conduct occurs ‘at work’ if the conduct has a substantial connection to work. The Respondents on the other hand submitted that conduct occurs while the worker is ‘at work’ if it occurs at any time that the worker is performing labour (including all necessary attendances involved in the performance of that labour) regardless of the time of day or location of such work.

The Full Bench ultimately found that “the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor, their principal (such as being on a meal break or accessing social media while performing work)”.

In reaching its decision, the Full Bench made it clear that there is a distinction between the worker needing to be ‘at work’ in order to meet the requirements of section 789FD of the FW Act and the individual who engages in unreasonable behaviour, who is not actually required to be ‘at work’ at the time they engage in that behaviour.

Interestingly, the Full Bench found that if a worker accesses comments on social media, which constitute unreasonable behaviour, at a time when they are not ‘at work’ (as defined above) then the behaviour will not fall within the scope of section 789FD of the FW Act. However, the Full Bench did find that the behaviours will continue as long as the comments remain on social media and if the worker accesses those comments while ‘at work’, then the comments will be captured by section 789FD of the FW Act.

It is obviously the best practice to educate all employees about bullying, in addition to ensuring that it is made clear that bullying will not be tolerated under any circumstances. What is more difficult is ensuring individuals who are not employees, do not engage in unreasonable behaviours towards your employees. In light of Full Bench clarifying what ‘at work’ means, employers who allow employees to access social media while ‘at work’ should consider whether this continues to be permitted.

HR Law would be happy to answer any questions you may have about the Full Bench decision or the anti-bullying Jurisdiction generally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Do you need to register your Employee Agreements?

Prior to the Real Estate Industry Award 2010 (“Modern Award”), the Queensland state award required employers to register written agreements with employees employed under a property or strata management classification covered by the award. Registration in Queensland is through the Queensland Property Industry Registry (“QPIR”).

The requirement to register written agreements was initially preserved in the Modern Award by Schedule E.  On 31 December 2014, Schedule E in the Modern Award ceased to operate. This means that written agreements with employees entered into from 1 January 2015 are no longer required at law to be registered with the QPIR. This does not mean that written agreements cannot still be registered, rather this means that registration is no longer mandatory.

The reason registration has previously been mandatory has been to ensure agreements are compliant, particularly where it comes to employees employed on a commission only basis. As such, registration aside, employers must still ensure that written agreements with employees comply with Modern Award requirements.

The Modern Award contains a number of specific requirements which must be met when an employer enters into an agreement with an employee about payments, such as commissions, incentives and bonuses. Although registration of the written agreement is no longer mandatory, there may be serious consequences (such as, an employer being required to pay a commission only employee a base wage in addition to their commissions) if the agreement reached fails to comply with the Modern Award requirements.

It is important to remember that an agreement made with an individual employee (excluding Individual Flexible Agreements) cannot override the terms of the Modern Award, rather, the agreement sits alongside the Modern Award.

HR Law can assist in the preparation of your written agreements to ensure they are compliant with Modern Award requirements. If you require any assistance, or have any questions, please do not hesitate to contact HR Law.