Employers are entitled to direct and control how employees carry out their work and to provide feedback on employee performance. But employers (and senior employees) should be mindful not to “let the power go to their heads” and tip the scale from constructive criticism to workplace bullying.
Workplace bullying can be difficult to define, but is generally classified as repeated unreasonable behaviour that threatens, intimidates or humiliates a person in the workplace and usually has negative effects on the bullied persons’ health and safety.
Bullying can be quite overt, such as physical assault or being demeaned and patronized in front of colleagues. However, it is common for the bullying behaviour to be subtle and only directed at the victim out of the hearing of others in the workplace.
The perpetrators of bullying usually employ the less overt techniques of trivial criticism, lack of acknowledgment, isolation, withdrawal of work and setting of unrealistic targets in order to ‘fly under the radar’ whilst fulfilling their own misguided desire to wield power or play puppetmaster.
Employees affected by bullying suffer from stress and anxiety, loss of self esteem and feelings of isolation at work. Apart from the negative health & well-being effects on the employee, a worker who is the subject of bullying will not be operating to their full working capacity which in turn affects the profitability of a business.
Employers should be mindful of the ways in which the incidence of workplace bullying can be reduced, including:
developing a workplace bullying and harassment policy, as part of an overall OH&S policy.
educating employees as to what constitutes unacceptable behaviour, and encouraging respectful behaviour in the workplace
being responsive to allegations of bullying by providing avenues for employees to make complaints (without suffering ramifications for whistleblowing)
monitoring the workplace for signs of bullying behaviour (such as employees taking excessive amounts of leave)
Employers need to be aware that in some cases, depending on the nature of the harassment, employees can commence legal action against their employer for failing to prevent bullying in the workplace.
It is therefore important that employers have the necessary policies in place to prevent bullying and create a safe & productive workplace environment.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from policy updates to termination of employees, contracts of employment to redundancy correspondence, warning letters to application of the Modern Awards because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
On 7 June 2011, the Work Health & Safety Act2011 became law in NSW. The WHS Act repealed the Occupational Health & Safety Act2000 and made three significant changes to the old law.
First, the new Act does away with the reverse onus of proof, which under the old law, meant, in effect, that all the prosecution had to prove was a work accident and then the onus shifted to the defence, which had to prove that the actions, that might have been taken to avoid the accident, were “not reasonably practicable”. This statutory reversal of the onus of proof was an assault on that principle of English criminal law, which Rumpole called the “golden thread”, namely that the prosecution must prove beyond reasonable doubt every single element of the crime charged and the defence does not have to prove a thing. Under the new Act, the prosecution must prove all of the elements of the offence including that the measures, that are asserted should have been taken to avoid the accident, were reasonably practicable. This will be easy if the risk of the accident was obvious e.g. unguarded machinery but, if the risk was not obvious, then the prosecutor will have to think twice about the evidence required.
Secondly, the new Act does away with the provisions which deemed as guilty officers of a guilty corporations. In their place are provisions imposing upon officers a duty to exercise all due diligence. The definition of officers is the same as the Corporations Act. Exercising due diligence includes taking steps to have knowledge of OHS matters, understanding hazards, ensuring that they are eliminated and the like. Some insurance companies offer cover for fines imposed on officers for OHS breaches but lawyers suggest that there are public policy difficulties about this because it is analogous to arranging for one person to do the time for another person’s crime.
Thirdly, the new Act does away with a trade union secretary’s right to prosecute an employer for an OHS breach. Not surprisingly, there was hot debate from the Opposition in the NSW Parliament about this change and the Government was always going to have its way.
Will the changes to OHS law make work places safer or affect the frequency of prosecutions or make it easier to defend a prosecution? The answer is, as the late Zhou En-lai, formerly Premier of China said, when asked what effect he though the French Revolution had had on the course of European history: “Too early to say”.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace issues from OHS obligations, contracts of employment and policy updates to termination of employees, redundancy correspondence and warning letters because Helping You is Our Business.
Many employers use employment contracts that are out-dated, or may not have employment contracts for their staff at all. Are the employment contracts your business uses up to scratch?
Employers need to ensure their employment contracts comply with the current legal requirements. This means contracts need to be compliant with the National Employment Standards and the applicable Modern Award.
The National Employment Standards provide for minimum entitlements, such as hours of work, leave entitlements, flexible working arrangements and more.
For example, Business Pty Ltd is employing a new full-time administrative assistant. All Business Pty Ltd’s full-time staff work a 40 hour week. Business Pty Ltd has been using the same style employment contract since 2003. The employment contract states that the new administrative assistant must work 40 hours per week, and anything more than that is considered overtime.
Business Pty Ltd hasn’t realised that the National Employment Standards provide that full-time employees are to work a maximum of 38 hours per week. While an extra 2 hours work per week will likely be considered to be ‘reasonable additional hours’ which the employer may reasonably ask the employee to work, the appropriate award overtime provisions will apply to those 2 hours.
For example, if the new administrative assistant will be covered by the Clerks – Private Sector Award, then he or she will need to be paid time and a half for those extra 2 hours of work every week.
Business Pty Ltd needs to ensure that their employment contract is amended to meet these minimum requirements.
So, are the employment contracts your business uses up to scratch?
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from contracts of employment and policy updates to termination of employees, redundancy correspondence and warning letters because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
Privacy protection seems to be one of the new sexy terms that pops up in all walks of life. In my experience it seems to be an excuse for somebody or some organisation not providing information requested, but perhaps I am just a cynic.
Privacy laws sound wonderful and large organisations are eager to tell you how protected you are and attach a copy of their privacy policy. Unfortunately when the shoe is on the other foot, this is far from the case.
A recent matter involved a lady, who we will call Jane. Jane was struck by a motor car and completed a claim form. All claim forms just above where it needs to be signed, have an authority allowing ‘relevant’ companies to obtain information. This could allow the insurance company the ability to obtain information from all manner of people including doctors, hospitals, police etc. The claim form and the authority are one and the same document. Although the word relevant has been inserted into more recent authorities such authorities generally disclose a lot of irrelevant information. What one person considers as irrelevant, a lot of other people consider imperative.
Back to Jane. Although having signed the authority, she was most concerned that the insurance company could access all of her private details which were unrelated to the claim and she filed an application with Federal Privacy Commission Office. The Federal Privacy Commissioner’s primary role is to consider complaints. Only very rarely do they make determinations. Up until 2010, in the six years prior, the Federal Privacy Commission had yet to make a determination only assisting in conciliating matters. This would appear to make a mockery of these privacy laws and the so called protection of individuals and has not given Jane any satisfaction.
The other point to note is that even if the Commission did make a determination, it is not binding on either party.
People should also realise that individuals should take others privacy seriously and if an employee breaches another person’s privacy it will often lead to instant dismissal.
A persons privacy is of the utmost importance and although a Federal Privacy Commission might be a good start, it would appear to lack the teeth that can make any real difference. At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
If you have some connection with a Family Trust, Centrelink will attribute to your assets, for the purpose of assessing your entitlement for a pension, all the assets of that Trust. This is so, even if you have never had any ownership or entitlement to the assets of the Trust.
If the assets are substantial, then attributed to you will be all those assets and hence you will be unable to qualify for those benefits from Centrelink which require you to satisfy the assets test.
Recently, there was a case which challenged this fact. The case involved a couple who were in receipt of a pension which they lost because Centrelink attributed to them the value of the assets of a controlled private trust.
They appealed that decision. The matter was reviewed, firstly by the Social Security Appeals Tribunal which found in favour of the couple, secondly by the Administrative Appeals Tribunal which held that the couple were not eligible to receive the benefits they sought, and lastly by the Federal Court of Australia which upheld the original decision. Accordingly, the couple were able to retain their pensions.
While the issues raised by the case are somewhat technical, the practical effect of the pensioner’s argument was that, until the trustees exercised their discretion to make payment out of the trust fund to them, they had merely a right to invoke the equitable jurisdiction of a court to ensure that the trust was duly administered and that the trustees exercised their discretion properly.
The Commonwealth Government have subsequently amended the Social Security Act to remove the practical effect of the court decision. The amendment made states that an individual passes the control test if it could reasonably be expected that the trustee of the trust would make an application of the capital or the income of the trust to the individual if the individual could not meet his or her reasonable costs of living.
So, we are back to where we started. That is, if you have some connection with a family trust, Centrelink will attribute to your assets, for the purpose of assessing your entitlement for a pension, all the assets of the trust.
The law, and its application, is not simple. We have the expertise to assist you in understanding the law, because Helping You is Our Business.
With a new financial year approaching, it is now an opportune time for business to review industrial relations policies and make any necessary changes to comply with the Fair Work legislation.
1 July 2011 will see the new minimum wage rate become effective
Fair Work Australia has determined a $19.40 per week wage rise for those workers earning the minimum wage. Employers must ensure the new financial year pay packet for their employees receiving the minimum wage is calculated at a rate no less than $15.51 per hour.
July 1 will also see the commencement of employer facilitated paid parental leave (PPL) through the business payroll
Mothers or primary carers eligible for the government-funded parental payments are entitled to receive a maximum of 18 weeks pay at the national minimum wage.
From 1 July 2011, the Family Assistance Office will transfer the PPL funds to employers for the processing of payments to eligible employees. Employers are required to provide payslip advice to eligible employees and retain such records for seven years.
Preparing for OH&S overhaul
Australia currently has ten occupational health & safety jurisdictions operating across the country, with more than 400 associated regulations and codes of practice. The States and Territories are now working with the Commonwealth Government to draft uniform laws to cover all employers and workers in Australia.
The harmonisation of the existing OH&S laws is scheduled for 1 January 2012.
The new laws will require business to review existing OH&S policies to ensure best practice management systems are introduced, and that both employers and employees comply with the policies adopted by business.
Is your business ready to implement these changes?
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from policy updates to termination of employees, contracts of employment to redundancy correspondence, warning letters to application of the Modern Awards because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
A recent case in the NSW Supreme Court provides a timely reminder of the potential problems that can be encountered if a Contract does not spell out all of the terms agreed upon by the parties. In this case the irrigated farming land sold recorded the sale of the land but was silent in relation to the water entitlements.
The Walsh family had farmed irrigated land since the 1950s. Family members were involved together in farming partnerships until 2000 when it was decided that those partnerships would be dissolved and the irrigated farming land would be sold.
Prior to selling the land, Graham and Maurice were co-owners of the farm. By Contract for Sale of Land, Graham sold his interest in the farm to Maurice. At the time of this sale Graham and Maurice also jointly held shares in the water entitlements used to irrigate the farming land. Both Graham and Maurice treated Graham’s interest in the water entitlements as having been transferred with the land. However following the sale of land, it was discovered that the water entitlements had not been transferred to Maurice and there was no express reference to the transfer of water entitlements in the Contract.
Maurice claimed that the Contract transferred the water entitlements from Graham to Maurice at the same time as the title to the farm was conveyed between them.
Graham claimed that he still held a half interest in the water entitlements.
Ultimately the court found in favour of Maurice that Graham held his interest in the water entitlements in trust for Maurice, who was then entitled to an order for the transfer of that interest to him.
Whilst a favourable result was achieved for Maurice in the end, it was a time-consuming and stressful process for Maurice to undergo. A lot of turmoil can be avoided by ensuring that matters are not left to chance and the terms of your agreement are clearly recorded in the Contract before you sign it.
At Everingham Solomons, we have the expertise to assist you with all aspects of your sale or purchase of land because Helping You is Our Business.
Click here for more information on Lesley McDonnell
There have been some concerns in recent years regarding the notion of “equitable” rights over property. That is, the claim that one party holds a property “on trust” for the other party due to an alleged promise that the property would one day be passed on. This issue has been raised particularly where one party has been allowed to live in a house (and undertake renovations etc), with the often argued expectation that the house would one day be theirs.
In the recent case of Wheeldon [2011], the wife in a family law dispute sought a declaration that the husband’s parents held a property on trust for the husband. Following this the wife also sought orders that the property be transferred to the husband and a half share be transferred to the wife.
The wife claimed that a month before the marriage, the husband’s father told the couple that they could live at the property if they paid its rates. They lived there for 26 years and raised two children there. The wife argued that the property was held in trust because they were encouraged that the property was a gift.
In taking into account the husband’s parents denials of any conversations that may have promised a gift of property, Fowler J rejected the wife’s claims and found that the husband and wife had been “given permission to occupy the property and no more.”
This case should act as a reminder to anyone entering into an arrangement for the occupation of a home to ensure that the terms of the occupation are well defined and preferably documented. The legal owner of the house should be very wary about anything that is said or alluded to, which may encourage the occupier to believe the property will be theirs. Similarly, the occupier of a home that may be of the belief the property will be theirs should be cautious with any money they spend on improving the property on the (mis)understanding that the property will pass to them.
Should you require advice in relation to the ownership of property or what constitutes the assets of a marriage, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
In an earlier article I spoke about the rules that govern a corporation. These can be either a specifically designed set of rules called a “Constitution” or a set of standard rules call “Replaceable Rules” set out in the Corporations Act 2001.
The question arises which is better?
In my view using a specially designed Constitution has many advantages over being governed by the Replaceable Rules set out in the Act including:
A Constitution enables you to have several classes of shares with different voting rights, dividend rights and rights to capital upon winding up which can be useful in achieving objectives like income splitting, dividend streaming and selective control. This is not available under the Replaceable Rules.
The Constitution normally contains comprehensive rules regarding the calling and holding of meetings, passing of resolutions, whereas these provisions are not contained in the Replaceable Rules.
A Constitution can contain comprehensively drafted guidelines on the day to day management of the company as compared to the brief provisions in the Replaceable Rules.
The Replaceable Rules are not applicable to proprietary companies with the same person as the sole director and shareholder.
The Replaceable Rule provisions regarding the appointment of directors can allow one group of shareholders to take control of a directors meeting in the absence of the usual directors which can be undesirable.
The Constitution provides a comprehensive published document which is easily assessable by its members and available to the company’s bankers and other parties.
The Replaceable Rules cannot be used for special purpose companies such as superannuation trustee companies.
A company’s Constitution can be modified and amended in accordance with the wishes of its members by the calling and passing of a special resolution.
Simply put, a Constitution give it’s shareholders flexibility and greater certainty.
If you have questions regarding the operation of a corporation please contact our business law team at Everingham Solomons where Helping You is Our Business.
If you are an employer faced with the difficult task of making employees redundant, it is important to know what obligations you have and what steps you ought to take to meet those obligations.
If you are an employee faced with redundancy, it’s important to know your rights and ensure you receive the correct entitlements.
What does redundancy mean?
A redundancy occurs when employment is terminated because the employer decides they no longer want that person’s job to be done by anyone, or because the employer becomes insolvent or bankrupt.
In order for a redundancy to be a ‘genuine redundancy’, it must be shown that:
The job will not be done by anyone else and the position will not be filled by any other person.
The requirements in the applicable modern award, enterprise agreement or industrial instrument to consult with the employee about the redundancy have been followed.
Redundancy pay
Redundancy pay may be up to 16 weeks of ordinary pay and is calculated upon the length of service. There is no legal requirement to pay redundancy pay to employees who have been employed for less than one year. Redundancy pay is paid in addition to any other entitlements, such as outstanding wages and accrued leave entitlements.
Steps to redundancy
Firstly, an employer ought to consider all options and alternatives to redundancy, like redeployment, job sharing and reduced overtime.
Secondly, an employer should meet with the employee who is to be made redundant to explain the situation and give him or her opportunity to ask questions.
Thirdly, written notice of the redundancy ought to be given to the employee.
Whether you are an employer or employee, Everingham Solomons will be more than happy to assist you with any employment queries because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
Employers are entitled to direct and control how employees carry out their work and to provide feedback on employee performance. But employers (and senior employees) should be mindful not to “let the power go to their heads” and tip the scale from constructive criticism to workplace bullying.
