Time to celebrate but never forget – legal risks are still in place

End of year work function is a great time for your team and business to celebrate success and achievements of the last 12 months.

In the midst of a jolly season, it's worth remembering though: Your function needs to run as a ‘work’ function without breaching your workplace health and safety obligations, your Human Resources policies and other legal obligations that your business must comply with.

Minimise the Risks

As a business, you should take steps to minimise the risks at your end of year function. Make sure you:

• educate your employees about the expected standards of behaviour
• ensure you have key steps in place to prevent undesirable issues emerging during the function, or if they do, to properly manage them to avoid claims and litigation and starting your New Year off with the wrong kind of bang.

If employees become intoxicated at your end of year function or engage in inappropriate or unruly behaviour, your business should have a plan in place to deal with that.

Remember: as the employer, your business can be held vicariously liable for the conduct, or rather misconduct, of your employees even at your off site and outside of normal business hours end of year work function.

It is a good risk management practice to remind your employees of their obligations and, at the same time, still encourage them to celebrate their successes for the year and have a good time. This is a balancing act for everyone attending.

Steps to Prepare Your Business for End of Year Work Function

Before end of year functions

• Make sure your business has the necessary Human Resources policies in place to address issues that may occur at end of year functions such as a Code of Conduct, ...

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With the My Health Record system expanding, it is time for health care providers to review and update their Privacy Policies. Necessary changes will likely include amendments to how personal information is collected, used and shared.

Notably many Privacy Policies claim they do not share information with any third parties, this may no longer be true if a patient’s information is being uploaded to the My Health Records system. Similarly claims that the provider only collects information from the patient directly, will not be accurate if the provider accesses information from the My Health Record system. Furthermore, the My Health Record Act defines ‘use’ to include accessing, viewing, modifying and deleting information. As such, representations regarding how you use patient’s information may need redefinition.

While it is mandatory for health care providers, who hold health information, to have a compliant Privacy Policy many are falling short of their obligations. Often Privacy Policies are implemented by a web developer when the website is built. These Privacy Policies usually refer to the collection of personal information via the website. However, its far more likely the bulk of the personal information held is derived from sources including, paper forms filled out in waiting rooms, records generated in providing the health services and telephone conversations with patients.

Privacy Policies relate to how businesses deal with personal information from all sources, not just that derived from their websites.

With the notifiable data breach scheme in full force, the last thing you want to do is rush to get compliant during a data breach event before you are required to notify the commissioner.

Get in early, get compliant and avoid the $420,000 maximum penalties. ...

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There has been quite a bit happening with regards to casual employees of late that businesses should take stock and review all casual employment arrangements they currently have in place.

Whilst casual employees are not entitled to annual leave under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act), the recent Full Federal Court decision of WorkPac Pty Ltd v Skene [2018] FCAFC 131 (the Skene decision) has looked closely at when an employee is really a casual for the purposes of the NES and therefore entitled to annual leave.

We recommend that all businesses now take stock and do the same, considering whether their casual employees really are casual employees.

In the Skene decision, the employee, fly in fly out worker, was placed on a roster which was set 12 months in advance. He worked regular, fixed shifts and was paid a flat hourly rate, with no separately identifiable casual loading.

When he was terminated, the employee argued that he was a permanent, not a casual, employee, and therefore entitled to be paid out annual leave on the termination of his employment.

The Court closely reviewed the true nature of the employment relationship in the Skene decision.

They found that the employee had no choices with regards to the days and hours he could work and that his roster was set 12 months in advance, meaning his working arrangements were clear and predictable and he worked regular and certain shifts.

The Court agreed that the employee, despite being paid by the hour, was not engaged as such, and was not a casual employee for the purposes of annual leave entitlements under the NES and therefore he was entitled to such annual leave on the termination of his employment.

Employees may therefore not necessarily be regarded as casual employees for all purposes, and there is now a real risk that, depending on the true nature of the engagement, that a casual employee, despite being paid a ...

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Don't get Grill'd over your traineeship agreements

Grill’d, the popular fast food burger chain was recently in the media over allegations by the Young Worker’s Centre (YWC) of Victoria that Grill’d is prolonging it’s traineeships as a way to reduce their employees’ hourly wage.

YWC made the allegation on behalf of a current Grill’d employee.

Following the allegations, the founder of Grill’d, Simon Crowe, released a statement standing behind the company’s practices.

What is a traineeship?

A traineeship is a program provided by an employer to employees to learn on-the-job skills related to the industry the employee is employed in.  At the completion of a traineeship, the employee will earn a certificate in the relevant area.

The time to complete a traineeship varies depending on the classification of the employee.

Part-time Grill’d employees, according to Crowe, generally complete the traineeship within 12 to 18 months and upon completion, the employee earns a Certificate III in Hospitality.

Did Grill’d pay their employees less?

When employed as a trainee, an employee will be paid the trainee rate as provided for in the relevant award or enterprise agreement.  Each award or enterprise agreement sets out how to calculate the rate of pay for the different classes of employees.  For example, a casual employee’s rate of pay is calculated differently than a full-time employee.

Once an employee completes a traineeship, the employee’s rate of pay is adjusted in accordance with their level of training (e.g. completion of a certification III) and type of employment (e.g. casual or full-time).

In the case of Grill’d, the concern relating to the rate of pay is that Grill’d, in the opinion of the employee, is prolonging the traineeship in order to continue to pay the trainee ...

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Social Media Policy For Employees-  Why You May Still Be Vulnerable
Social media is embedded in our society as a means of engaging and interacting with others in a professional and personal capacity. There are many social media sites with large numbers of users (including Facebook, Instagram, Twitter, Snapchat, LinkedIn, Youtube, Google+, Whatsapp, Tumblr and Pinterest – to name a few) and the list is growing.

All business’ should consider implementing a social media policy as part of the business’ human resource policies.

Social media policies serve two purposes:

1. To provide guidance to employees on how to use social media
2. To provide employers recourse to disciplinary action if the employee breaches the policy

Employees’ use of social media outside the workplace can have a significant impact on their employer. Therefore, it is prudent for social media policies to include social media use outside working hours, in addition, to use while the employee is at work.
Clauses to include in your social media policy
A social media policy should cover the following:

1. Who the policy applies to
2. What is acceptable and unacceptable use of social media
3. Use of the employer’s internet connection and devices to access social media
4. Whether any use of social media during work hours is permitted
5. Consequences of breaching the social media policy such as disciplinary procedures

What sort of behaviour can I address in the social media policy?
Your social media policy needs to be lawful and reasonable, and should support employees who choose to use social media. Any restrictions that you place on employee behaviour need to be in place to protect your business. This can include your business’ reputation, confidentiality and security. Examples of behavior more commonly prohibited by social media policies include:

1. Posting or ‘sharing’ offensive, obscene, ...

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Employer Tips: How To Minimise Or Prevent Unfair Dismissal Claims
In 2015, the Fair Work Commission reported close to 15,000 applications were lodged for unfair dismissal.
There are a number of simple steps we find are often overlooked by employers that can minimise or prevent unfair dismissal claims.
1. Clear pre-employment communication
From the outset, employers need to be clear about what is expected from their employees. Coherent and unambiguous employment agreements are vital. In conjunction with an employment agreement, any relevant policies and procedures regarding workplace issues should also be given to the employee. By providing a clear guide of the expected behaviours, and what constitutes a breach of these expectations, employers reduce their risk of claims.
2. Maintain written records
Employers should keep written records of all dealings with employees. This is particularly important when issuing warnings. Previous warnings issued to employees are a relevant consideration in these matters. The maintenance of written records will not only satisfy employers’ legislative requirements, but will also assist in terms of evidence should the employer face an unfair dismissal claim.
3. Exercise procedural and substantive fairness
According to employment law in Australia, dismissal is unfair if the dismissal was harsh, unjust or unreasonable. In responding to an application for unfair dismissal, an employer must demonstrate that there was a valid reason for dismissing an employee. Additionally, employers should also establish that the following occurred prior to termination:
1. the employee was notified clearly of the reason for dismissal

2. the employee was provided an opportunity to respond

3. during discussions surrounding the potential dismissal, employers allowed the employee to have a support person present.
4. Obtain advice before dismissal
In some circumstances (theft, fraud, violence and serious breaches of Workplace Health & Safety ...

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Can you enforce a restraint of trade clause?

A short answer: Restraint of trade clauses are enforceable to the extent that the restraint is reasonably necessary to protect the legitimate business interests of the employer. This is assessed on a case by case basis.

What is a Restraint of Trade Clause in an Employment Contract?

A restraint of trade in an employment contract is a clause designed to restrict an employee's ability to carry on trade in the future with persons other than the employer in a manner an employee might choose (see Petrofina (Great Britain) Ltd v Martin [1966] Ch 146, 180).

Restraint of trade clauses in employment contracts protect legitimate business interests of an employer. For many businesses, a restraint of trade clause in an employment contract is an important contract feature, particularly where an employee moves to a competitor or starts their own business.

Valid Employment Contract

In order to enforce a restraint of trade clause, the employment contract itself must be valid and enforceable.

It is not unusual for the scope of an employee’s role to change throughout the course of their employment with an employer. A failure to ensure that the employment contract accurately reflects the relationship between the employer and the employee at the time of termination can result in repudiation of the contract, as seen in Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531.

The Fishlock Case

In the Fishlock case, the NSW Supreme Court found that an advertising agency was unable to enforce an otherwise valid restraint of trade clause against a former employee, Mr Fishlock.

During Mr Fishlock’s employment at The Campaign Palace, the employer unilaterally changed Mr Fishlock’s duties and responsibilities. The Court held that as a result of the change in duties and responsibilities, The Campaign Palace had ...

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