Australia: The ten key things in a To-Do list for every HR Manager in 2018

Last Updated: 26 February 2018
Article by Michelle Dawson

Welcome to this year's edition of our now renowned annual HR Manager's "To Do" List. Workplace Relations Partner Michelle Dawson outlines the 10 key things she believes should be on every HR Manager or Business Owner's list of things to do in 2018.

  1. Assess sexual harassment policies, training and protocols

With the emergence of the Harvey Weinstein allegations and the "#metoo" campaign, recent months have certainly shone a significant light upon workplace sexual harassment. In the wake of this and in a legal landscape where an upward trend in the quantum of damages for sexual harassment continues, sexual harassment is likely to be a front-running issue for employers in 2018.

ACTION: Employers should ensure that they have in place suitable, up to date sexual harassment policies and should note that it is not enough to just have such policy in place. It is critical from the perspective of legal claims risk management for employers to ensure that they are in a position to demonstrate that they took reasonable precautions to prevent an offending employee from breaching the policy obligations. This means that the employer must also properly train (and record having trained) its employees as to the policy content and the type of conduct which will not be tolerated. Employers should also ensure that they have in place proper protocols for dealing with complaints.

  1. Assess workplace relationship policies

Even before the Barnaby Joyce scandal, news of workplace romances going wrong was rife. There is no better example than the 2017 issue of the romantic relationship between Seven West Media CEO Tim Worner and his former executive assistant Amber Harrison. That relationship culminated in claims of bullying and breach of contract and undoubtedly came at a significant cost to all involved. And let's not forget the other high profile 2017 issue of two male AFL executives who resigned, very embarrassed, following a public shaming over their affairs with lower-ranked female staff. Whilst clearly workplace relationships have a propensity to perhaps not end well, unless you're the Prime Minister, intruding into the private lives of employees so as to prohibit them from being in personal relationships with one another will generally go beyond the scope of an employer's rights to issue "reasonable and lawful" directives and may even infringe anti-discrimination legislation. Even asking for disclosure of these types of relationships can be problematic unless a conflict of interest situation arises. Something that is generally within the rights of an employer to do however, is to prohibit and take action against public displays of affection in the workplace.

ACTION: Employers should ensure that any workplace relationship policy which they have in place is suitable and properly fashioned. If a policy is in place and it prohibits workplace relationships, specialised advice should be promptly sought as to whether the policy is appropriate and without legal risk.

  1. Know your obligations under the new data breach notifications laws

If your business holds personal information, prepare for a whole new world under the new data breach notification laws. The laws, which came into effect on 22 February 2018, strengthen individual privacy rights and improve transparency surrounding data breaches and how businesses notify those affected. For anyone not compliant, beware! Serious penalties exist.

ACTION: Ensure employees are aware of the new laws and are trained in the correct handling of information and recognition of data breaches. It is important that management and IT teams have adequate systems and procedures in place that are compliant with the new regime. For more information, stay tuned for the upcoming edition of our WPR Insights newsletter and, in the meantime, visit the LexisNexis white paper authored by Madgwicks Technology Partner Dudley Kneller available here.

  1. Assess and ensure Award/Enterprise Agreement and Fair Work Act compliance

Again increasing activity around prosecution for Fair Work Act and Award/Enterprise Agreement compliance in 2017, the Fair Work Ombudsman and the Courts are sending clear and formidable messages to employers who are not complying with their minimum Award/Enterprise Agreement and/or Fair Work Act obligations. With an increase in 2017 of the civil penalties applicable to parties (employers, Directors, Managers etc) found to have breached their obligations (from 1 July 2017, for contraventions occurring on or after that date, the maximum penalties applicable to a single breach became $63,000 for a corporation and $12,600 for an individual) and new legislation having been enacted to combat worker exploitation and employer corporation 'phoenixing', it is now more important than ever, from a risk management perspective, for employers to ensure that they are complying with their obligations.

ACTION: Employers and (where applicable) their Directors and Managers should, in the least:

  • properly analyse wages and payroll procedures to ensure that amounts which are paid to employees are sufficient and compliant under the relevant Award or Enterprise Agreement;
  • ensure familiarity with the Award/s and/or Enterprise Agreements which apply to employees, in order to readily identify (and quickly address) any instances of non-compliance;
  • ensure that proper record-keeping (to accord with the Fair Work legislation and regulations) is occurring;
  • ensure that good quality guidance and advice from expert professionals is available and sourced to assist when it comes to understanding and navigating Awards/Enterprise Agreements and the Fair Work legislation and regulations, and managing appropriate risk.
  1. Ensure that confidential information is protected

The line of cases in relation to employee post-employment confidential information misuse is ever-growing. Confidential information (which includes things like client/customer/supplier lists, sales/pricing information, certain business methodologies, financial information etc) is often a business' biggest asset. Litigation (which is reactive) is rarely an ideal solution to protecting confidential information from misuse by former employees. Proactivity and pre-emptive action will usually be a better solution.

ACTION: Pre-emptive action toward protecting confidential information involves ensuring that properly prepared employment contracts (with clauses legally reviewed to ensure maximum effect) and policies exist (and that the day-to day practices of your business align with the policy expectations). It also involves your IT systems and processes being able to trace the dissemination of information and to monitor things like printing and external device and cloud activity.

  1. Check and revise contract provisions as to notice of termination

Reasonable notice claims are regulars on the case lists in many a Court. A risk of a reasonable notice claim arises where an employment contract is silent, or less than definitive, when it comes to the amount of notice to be given to employees. In terms of "less than definitive", that includes any contract which references the period of notice of termination back to the National Employment Standards. That is because the National Employment Standards prescribes a minimum period of notice and not a definitive period of notice.

Employees can bring a claim for "reasonable notice" when their employment is terminated and the employment contract is silent, or not definitive, as to the period of notice of termination (and when an Award or enterprise agreement providing for notice does not apply).

"Reasonable notice" is determined by the Courts and can be 12 months or more in some circumstances. That can mean that where an employment contract is deficient in respect of the notice of termination, employers could find themselves on the wrong end of a claim for damages in an amount of 12 months salary/wages or more.

ACTION: Employers should check their employment contracts and obtain advice and assistance toward ensuring that the termination notice period is clearly stated and properly definitive so as to avoid the risk of legal claims.

  1. Assess contractor arrangements

If you engage contractors and you do this without having obtained specialised advice as to the arrangements, there is a very good chance that you are exposing your business to significant legal risk. Contractors (persons/entities often running their own businesses, engaged to perform a service or series of services) are not employees. Employers are not permitted to engage as contractors persons who, on the basis of the arrangement as a whole, ought to have been engaged as employees. It is an offence under the Fair Work Act to misrepresent employment as an independent contracting arrangement.

ACTION: Any party engaging contractors should ensure that they have obtained proper professional advice around whether those contractors have been properly engaged, ensuring that the "contractors" ought not to have been engaged as employees in the circumstances, and making sure that they are satisfied that the arrangements in place are not subjecting their business to relevant risk.

  1. Review post-employment restraint provisions

Where a post-employment restraint provision purports to provide protection which is more than is reasonably necessary to protect an employer's legitimate business interests, it is generally unlikely that the provision will be enforced by a Court. As a general rule, because of the fast pace of the law around restraints, post-employment restraint provisions should be reviewed regularly and, where they are of particular importance to the protection of your business, properly tailored.

ACTION: Employers who may seek to have post-employment restraints enforced against departed employees should ensure that their restraint provisions have been properly professionally tailored and that the provisions have been, and will be, regularly reviewed.

  1. Consider garden leave provisions

If you employ senior or sales staff and are not using "garden leave", you probably should be. Employers can place employees on garden leave after notice of termination or a resignation has been given. It is leave in lieu of an employee working during the notice period and it prevents the employee not only from liaising with clients and stakeholders and accessing confidential information, but also from working elsewhere during that time. Importantly, employers can only properly use garden leave where an employment contract specifically enables it.

ACTION: Employers who do not currently have a garden leave provision in their contracts of employment should consider having one incorporated, particularly in contracts for senior and/or sales staff, and should enlist specialised assistance toward doing so.

  1. Ensure that the new form of Employee Notice of Employee Representational Rights is being used

A new Notice of Employee Representational Rights form was issued in 2017. It is imperative that employers use this new form when commencing bargaining as the case law to date has shown that a failure to use the correct and specific form of Notice of Employee Representational Rights can result in a bargaining process necessarily having to be recommenced.

ACTION: Employers should ensure that they are using the up to date and otherwise appropriate version of the Notice of Employee Representational Rights form. An appropriate form (current as at 21 February 2018) can be downloaded here: https://www.fwc.gov.au/download-notice-employee-representational-rights

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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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