Workplace Law Update
On 15 March 2017, solicitor, Sally Davies, attended the 3rd Annual Workplace Symposium at the University of NSW.
Sally is Jenkins Legal Services’ workplace lawyer, and this is the second year she has attended the Symposium as she found it provides the most comprehensive overview of updates in the workplace law sphere.
Key points from the course include:
There needs to be careful consideration before a business decides to use an Enterprise Agreement for its workforce as often the same outcome can be achieved using the applicable Modern Award and an employment contract, with much less paperwork and unionism.
Before a workplace investigation is conducted, the issue should be triaged to determine whether the investigation would be better conducted internally or by an external investigator. Most matters are generally better conducted internally, including in relation to misconduct allegations and bullying complaints. External investigations are often quite costly and lengthy, so should be reserved for more serious matters, including if the complaint is not the first against the alleged perpetrator, or litigation is threatened.
The issue of whether someone is an employee or an independent contractor is becoming more blurred as the job market changes. There is no clear definition of “employee” or “independent contractor” with the assessment of the employment relationship to be determined on a case by case basis. There is a lot of discussion of this issue in the US, with speculation as to whether a hybrid position will be recognised which may then be adopted in Australian law (eg. a “Dependent Contractor”).
When an employer is considering whether they want to include a restraint in an employment contract, they must think about what business interests they want to protect with the restraint, and tailor the clause for their needs. There should not be a blanket restraint in all employment contracts issued by the business as the business interests that need to be protected for each position vary greatly.
An employee can lodge a claim for ‘adverse action’ with Fair Work/Federal Court if an employer (a) dismisses an employee; (b) injures the employee in his/her employment; (c) alters the position of the employee to the employee’s prejudice, or (d) discriminates between employees. If proven, the court can make various orders, including for compensation, or reinstatement.
Employee entitlements are set out in the 10 National Employment Standards (NES), which include provisions relating to annual leave, personal leave, maximum weekly hours and flexible working arrangements. The NES apply to all employees in the national workplace system, regardless of any applicable award, enterprise agreement or employment contract.
With the increase in technology in the workplace, there needs to be steps in place to protect privacy of employees. Systems need to be in place to make sure that only those people who need to have access to personal information for the purposes of their jobs, have access to it. Furthermore, a workplace cannot commence surveillance of its employees without first providing them with notice in writing (in accordance with the Workplace Surveillance Act 2005 (NSW)).
Jenkins Legal Services has offices in Newcastle and North Sydney: www.jenkinslegal.com.au. If you need assistance with workplace law, please do not hesitate to contact us (4929 2000, 9929 4258,
) to discuss how we may be able to assist you.