Partner Derek Luxford will present a paper focusing on managing marine threats and security at the Fifth Annual International Maritime Law 2010 Conference to be held in Singapore on 28 - 29 April.

Conference organisers also invited Derek to be a panel discussion moderator and a program advisor. The conference will be held in conjunction with Singapore's Maritime Week.

In his presentation titled Law or Anarchy at Sea? Old Perils and New Threats for the Shipowner in the Age of Modern Piracy and Anti-Whaling Activism, Derek will discuss the following topics -

• assessing the factors threatening the safety at sea of ships and mariners which are supposed to be protected by a raft of private and public law, ie. pirates and anti-whaling activists engaged in illegal and other criminal activities on the high seas and national waters
• understanding how flouting of international conventions without sanction is rife with seafarers and vessels deliberately imperiled and subjected to violence
• clashing legal, national, economic, social and political systems are difficult to reconcile. Whose law, if any, applies?
• anarchy appears to reign with limited will, resources or authority to solve the problems and restore the rule of law to the seas
• is there a workable solution? Can the law provide one?

Derek will also moderate a panel discussion on green shipping titled Assessing the Cost-Benefits and the Legal Implications of Green Initiatives in Maritime Industries.
 
For further information, please phone Partner Derek Luxford on +61 2 9293 5474 or email derek.luxford@hicksons.com.au

WORKPLACE UPDATE

Union Schadenfreude (for the moment)

We think clients should be closely monitoring the workplace changes being wrought by the use of bargaining orders and so called good faith bargaining tactics under the Fair Work Act 2009 (the Act). Those that are not gearing up for the inevitable request to commence bargaining from a union or employees will likely be very surprised to find that “no” is not an acceptable response. Being unprepared is also a mistake. The bargaining provisions of the new Act aren’t enigmatic. Just ask Cochlear and Total Marine.

Our feedback suggests that unions are seizing upon the golden opportunities under the Act to increase membership and gain footholds in workplaces where there is nil or minimal membership. Carpe diem with majority support applications, good faith bargaining orders, scope orders and the like which are now part of the solution the industrial umpire can offer bargaining representatives in its new ‘general role (of) facilitating bargaining’ [under the Act].

Additionally, Fair Work Australia (FWA) has felt the need to further meddle with workplace relations by interpreting the Act as requiring that dispute clauses in enterprise agreements provide a pivotal role for FWA to arbitrate disputes even if a party does not agree to such role. This decision is under appeal.

FWA has also taken a very formal approach to the procedural rules attaching to the processing of enterprise agreements and it would appear the new BOOT test will be a tougher test to satisfy than the previous no disadvantage test. For example, an enterprise agreement, which sought flexibility in rostering and hours, was rejected by FWA notwithstanding a majority of the workplace participants, including the relevant unions, agreed to the proposed changes. This is another decision under appeal.

One has to wonder how a third party would know better than those working in the enterprise about what employment conditions are best suited. It is not a matter of blaming the new Act because it contains wriggle room in the form of discretion and a stated object of less technicality and relaxation of strict legal rules.

It would appear some people are still bringing pre-Work Choices logic to the table when IR life was simpler and some workplace participants less willing to take control of their own destiny given the (then) predominance of the AIRC, National Wage Case Principles and industry associations. Maybe it’s all a sign that those days and players are returning to positions of influence under the Act.

Additionally, it could also be argued that the Act has proven to be ineffective when serious industrial disputes develop as we recently witnessed in Western Australia. The maritime industry dispute was settled when an employer collapsed under the weight of the costly industrial action and employee demands. The employer was reported as stating that there were no productivity trade-offs to fund the (so called) enterprise agreement, and that it will mean cost increases to consumers to fund the substantial wage and allowance increases. A maritime union official was quoted in a newspaper as stating that people who thought productivity trade-offs were still necessary in such agreements were ‘dinosaurs’.

For many of you, this somewhat ironic, blunt response to the bargaining quest should send a chill up the corporate spine. The very next day, The Australian newspaper headline of 5 February screamed “Rio warns of Pilbara IR war”. The New Year has only just begun. Whatever happened to the GFC? Some people have short memories.

The government was, not surprisingly, reported as supporting the agreement. This agreement looks likely to flow through the maritime industry (pattern bargaining at its best). Not all these cost increases will be absorbed by the maritime employers. More likely, all of us will bear the brunt in one way or another.

Clients are questioning whether business is witnessing a return to the bad old days of industry wide bargaining, a halt to productivity trade-offs funding wage increases, and some utter stupidity thrown in for good measure. Who could forget the dispute during the construction of Darling Harbour when employees walked off the job seeking an allowance to compensate them because they could smell Chinese food from Chinatown? For many of you who attended our IR forums on the Fair Work Act last year, these comments are nothing new.

Unions would be under no illusion that they have, maximum, two terms of government to get their membership numbers sorted and themselves cemented into workplaces through enterprise bargaining, associated orders and dispute clauses. The modern awards will also help to open the breech given the extended reach of those awards under the State Governments’ referral of many unincorporated employers into the federal system, other than public sector and local government employees.

The new industrial environment means that workplace relations strategies need a good rethink using lots of experience gathered from the past. We suggest you don’t wait for an invitation to bargain but get out there and initiate it yourself. If you don’t, the union will claim bragging rights in its communication plans to your employees. Employers must enter negotiations with clear, modern strategic goals, simple but focused communication plans, reliable analysis / costings of the productivity trade-offs, and be tooled up with the necessary industrial and legal responses should negotiations suddenly head south.

Part of the change, as we see it, is generational. Many HR practitioners and industrial lawyers are likely to have professionally grown up under Work Choices, which incited minimal use of any form of IR strategy, and created an environment in which some HR practitioners have never seen a union official, let alone an enterprise bargaining strategy. This new Act is a very different piece of legislation and demands from HR a very coherent, deep rooted approach to workplace relations (or for some, a revised approach) to enable their workplaces to overcome change resistance and advance in a proactive rather than reactive way. Don’t hesitate once you commit to workplace reformation because you may find yourself on the back foot from day one.

If you need any help developing your IR/workplace strategy please give us a call. We are passionate about advising our employer clients on how to deal with enterprise bargaining, bargaining disputes and developing workplace/IR strategies that can move your business forward. We have been doing it since 1987.

Upcoming CLA Seminar

Hicksons will sponsor and present at the upcoming Commercial Law Association (CLA) seminar on workplace relations and the impact of the Fair Work Act.

Brad Swebeck, Sarah Jones and other experts in the field will present at the half day seminar which is set to tackle emerging issues brought on by the Federal Government's new workplace and IR regime under the Fair Work Act. The seminar will be held on Friday 14 May (from 9.15am to 12.30pm) in the Dixson Room, NSW State Library, Macquarie Street, Sydney.

Stay tuned for more details about this seminar in our next Workplace Update bulletin.

For a PDF copy of this Workplace Update, click here.

For further information please phone Partner Brad Swebeck on +61 2 9293 5450 or email brad.swebeck@hicksons.com.au or phone Partner Sarah Jones on +61 2 9293 5420 or email sarah.jones@hicksons.com.au

WORKPLACE UPDATE

Julia Says... "Touch Your Toes"

Was one of your New Year’s resolutions to be more flexible? If not, you need to quickly get your yoga mat out or else the first flexible work request you receive this year might get you tangled. Worst case? You end up in tears before Fair Work Australia facing an adverse action claim (with the added coup de grace of a reverse onus) and a potential penalty of up to $33,000. Hasta La Vista good intentions and any more of the ‘kaizen’ logic.

Under the National Employment Standards (NES) of the Fair Work Act 2009 (“the Act”), which took effect on 1 January 2010, all eligible national system employees have a new right to request flexible working arrangements. This right to ask for flexibility is covered by only two sections of the Act but those two sections open Pandora’s Box.

There is also a much greater reach of the NES than many employers thought toward the end of 2009. The NES now touch many employers in States, such as NSW, where the respective governments agreed that employees of employers, other than the public sector and local councils, could access the new NES (and other rights) under the Fair Work Act from 1 January 2010.

The Basics

Employees who have completed 12 months service (including some casuals) who are the parent of, or care for, a child under school age or a child under 18 with a disability, can make a flexible work request.

The request must be in writing and must set out the reasons for and details of the change sought, for example, changes in hours of work, changes in patterns of work or changes in location of work.
 
The Act requires employers to respond to requests within 21 days stating whether the request is refused or granted. If refused, reasons must be given noting that requests can only be refused on reasonable business grounds.

“Reasonable business grounds” is not defined but according to the explanatory memorandum to the Act would include:

• the effect on the business of granting the request including the financial impact of doing so or the impact on efficiency, productivity and customer service
• the inability to organise work among existing staff, or
• the inability to recruit a replacement employee or the impracticality of arrangements that would need to be put in place to accommodate the request.

We believe that this list will grow as the case law develops out of Fair Work Australia as to what does or does not constitute reasonable business grounds.

What if the Employee doesn't like Your Decision?

This is where it starts to get tricky. The NES themselves don’t provide any right of appeal against an employer’s decision not to grant a flexible work request. Employees will need to get inventive and the most obvious course of action is an adverse action claim under the general protection provisions of the Act, or an action seeking interim orders to stop a decision made by the employer which may have an adverse impact being implemented.

For example:

• an employee may allege he/she has been discriminated against on the basis of carer’s responsibilities if a flexible work request is refused, or
• an employee who makes a flexible work request (whether granted or refused) and is subsequently dismissed, demoted, performance managed (or otherwise adversely acted against) may allege that a reason for the adverse action was the exercise of the workplace right of making a flexible work request.
  

The onus falls on the employer to prove that the decision to refuse a flexible work request was not made on discriminatory grounds or that subsequent action taken against the employee was in no way motivated by the flexible work request.

Fair Work has power to make wide ranging orders including the granting of injunctions, imposing penalties (up to $33,000 per breach for corporations), ordering reinstatement or compensation.
 
While employees may have rights under the various anti discrimination statutes, in our view the new rights introduced by the Act and NES pose far greater risks and penalties for employers because they are easier to access and the onus shifts to the employer from day one.

You also need to think long and hard about the disputes clause in your next enterprise agreement. Whilst the clause is mandatory for approval of an agreement by Fair Work Australia, the right to have any decision you make about flexible work requests scrutinised by Fair Work Australia is optional. We would suggest you think long and hard about exactly what matters you want reviewed by an independent umpire under your disputes clause.

What should you do?

• Educate your managers about employees’ rights before, during and upon termination of employment to ensure no discriminatory or other adverse action is taken at any stage of the employment process;
• Ensure you have in place policies and procedures for dealing with flexible work requests and that these are followed consistently and fairly;
• Document and keep records of all requests for and responses to flexible work requests including the rationale behind any decisions made so that these can be produced if these decisions are questioned in the future;
• Document and keep records of any decisions made that may adversely affect an employee (and the rationale behind them) so that you can prove they were not made for a prohibited reason; and
• Call us if you have any concerns about any of these issues or need assistance drafting the relevant policies and procedures.

For a PDF copy of this Workplace Update, click here.

For further information please phone Partner Brad Swebeck on +61 2 9293 5450 or email brad.swebeck@hicksons.com.au or phone Partner Sarah Jones on +61 2 9293 5420 or email sarah.jones@hicksons.com.au

Legal Implications of Bullying and Cyber-Bullying in Schools - Presentation by Partner Robert Horton

Partner Robert Horton discussed the legal implications of bullying and cyber-bullying in a well-received presentation to principals and other representatives of private and public schools as well as lawyers at a seminar on school law held at Sydney’s Hilton Hotel on 11 November.

Robert’s presentation generated thought provoking questions and very positive feedback from attendees, most of whom rated the content highly.

An abstract for the paper appears below:

Bullying in schools is an issue generating much interest at the present time including a high level of media attention. Public concern has been heightened by the introduction and publicization of cyber-bullying as an additional aspect of the threat bullying poses to the well being of pupils. This paper discusses the legal implications for school authorities of bullying by considering in turn, the definition of bullying, the harm caused by it and the possible bases of liability that could arise from it for a school authority.

There are few reported legal decisions on damages claims arising from bullying and five case studies are presented (2 UK; 3 Australian) demonstrating how such claims have been dealt with by the courts and from which some statements of principle are extracted. The area of cyber-bullying is next specifically discussed including common forms of cyber-bullying and the basis upon which a school authority could be liable for it. The cases demonstrate that a court will always look at the steps taken by a school to prevent harm to a student that was reasonably foreseeable and the paper concludes with suggestions in relation to the development, review and application of appropriate policies to minimise the risk of legal claims.

If you would like further information about the legal implications of bullying or cyber-bullying for school authorities, please contact Partner Robert Horton on +61 2 9293 5434 or email: robert.horton@hicksons.com.au

To receive a copy of the complete paper, please contact David Zipf on +61 2 9293 5435 or email: david.zipf@hicksons.com.au

Note: The information in this news item and in the paper is not intended as legal advice and should not be regarded as comprehensive for your particular circumstances without further reference to Hicksons lawyers.

WORKPLACE UPDATE

Urgent Update:  Say Goodbye to Hollywood

Are you a private sector NSW employer that is, say, a partnership, sole trader, charity or State Owned Corporation? Well, if you are, you will be waking up to a very different IR dawn on New Year’s Day.

The NSW Government has just passed a “referral” bill which, when it becomes law, will mean you and your employees will be covered by the Fair Work Act 2009 from January 2010. The only employees who will still be covered by the NSW IR system will be the public sector rump and local government employees.

The referral of rights includes termination, industrial action, minimum terms of employment, terms in awards and other industrial instruments, enterprise bargaining and transfer of business.

Matters that will remain regulated by the relevant NSW laws are discrimination, workers compensation, long service leave, OH&S (for the time being) and superannuation. We think the retention of discrimination does not include an adverse action claim brought under the Fair Work Act that includes an element of discrimination (see our September Workplace Update).

In the second reading speech associated with the Bill, the NSW Attorney General stated on 1 December 2009: “Workplaces such as childcare centres, cafes, small shops and hairdressers have not been prominent in the bargaining stream so far. These provisions give employees in these kinds of workplaces a new and unprecedented opportunity to bargain with their employers ….. employees get a chance to improve their pay and conditions.”

This means all those IR articles you have been noticing (likely from us if you are reading this) on things like modern awards, adverse action, national employment standards (NES), good faith bargaining guidelines, union rights of entry, unfair dismissal laws and other, new IR additions under the Fair Work Act, will soon apply to you.

Your employees will also gain access to new rights and, in some cases, your once award free workforce may well be covered by a new federal modern award such as the Clerical Award (without the wage exemption applying since the recent variation to this award by Fair Work Australia), or the far reaching new Miscellaneous Award which covers most occupations not covered by the other modern awards.

The independent umpire in your workplace disputes about a range of matters such as the NES, enterprise bargaining and dismissals will be Fair Work Australia. NSW Commission members will retain an active role in these matters under the proposed laws by being able to be nominated as dispute resolution providers in federal enterprise agreements. This means you may need to focus on an agreement sooner than later.

Your State award entitlements will be retained for 12 months, other than the immediate application of the NES, and the transition into modern awards will be complete by 2015. This means that the modern awards will apply from whenever they are proclaimed to start in early 2010 but that some aspects will be phased in. Fair Work Australia will, however, be able to make take-home pay orders to ensure no employee will suffer a reduction in net pay by moving to a modern Federal award.

The new bargaining rules, however, will immediately apply which means you can be the subject of a majority support application or scope order by a union or employee bargaining representative. As we stated in our August Workplace Update, the word “no” to a request to bargain with a union is no longer an option for employers.

It may sound daunting but we are here to assist you in making the transition as seamless as possible. We are happy to advise as to what modern award may apply to your employees, and to review your contracts, policies and procedures to ensure they comply with the NES and any such modern award. We can help you in your negotiations with your employees or union in relation to new agreements.

For a PDF copy of this Workplace Update, click here.

For further information, please phone Partner Brad Swebeck on +61 2 9293 5450 or email brad.swebeck@hicksons.com.au or phone Partner Sarah Jones on +61 2 9293 5420 or email sarah.jones@hicksons.com.au

WORKPLACE UPDATE DECEMBER 2009

Lessons from the Front Line - The Next War for Talent

We are all still emerging from the aftermath of the so called GFC – indeed some countries are still a long way from being over the worst economic conditions the world has faced in more than 50 years. The period of global upheaval has resulted in fundamental changes being made to the workplace by many organisations locked in survival mode. As with any downturn, jobs disappeared as demand for various services dried up. Discretionary spending went out with the bath water (ipso facto).

Prior to the GFC, organisations were competing with each other to attract and retain talent during a time of historically low unemployment. The GFC gave new meaning to consultant speak such as “right sizing”, “involuntary career moves” or “equalising” staffing levels to cope with the difficult environment in which they operated. Many organisations inevitably lost real talent.

Current signs indicate the Australian economy is about to embark on a period of strong growth. We think this will kick start a new war for talent as companies regroup and realign their workforce to meet the growing demand for new business services.

The danger is that in the hunt to secure the best talent some organisations may forgo basic pre-employment screening or let their guard down once employees are on board. HR must therefore implement a robust employment screening program to protect the organisation against fraudulent activities by employees or former employees, or poaching by competitors.

There is general consensus that fraud and unethical behaviour have been behind some of the world’s largest corporate collapses. We think it crucial that HR conduct thorough background enquiries into potential employees.

The emerging business environment post-GFC will mean that competition for client/customer contracts will be intense. We think that companies must be extra vigilant to protect themselves against exploitation by competitors. It is not unusual in the war for talent for organisations to try to poach entire teams to rebuild areas of their business which have been depleted during a downturn. These staff can take with them valuable IP and confidential information belonging to their previous employer, including commission rates, client contact details, investment strategies and marketing plans.

It is therefore important that organisations develop strategies to ensure the right employees are hired and to reduce the risk of losing valuable IP in the event of employees leaving.

For a copy of the complete Workplace Update December 2009 bulletin, click here.

For further information, please phone Partner Brad Swebeck on +61 2 9293 5450 or email brad.swebeck@hicksons.com.au or phone Partner Sarah Jones on +61 2 9293 5420 or email sarah.jones@hicksons.com.au

WORKPLACE UPDATE

Urgent Stop Press:  Taking the Devil out of the Detail

It is now less than two months until the:

• modern award system, and
• National Employment Standards (NES)

begin operation.

From January 2010 your enterprise agreements, HR policies, contracts of employment, letters of appointment and the like must be no less beneficial than the NES or modern award.

Modern awards are likely to apply to a whole range of occupations not previously covered by old awards because modern awards are now occupation rather than respondency based. This means that some of your employees who were award free may be covered by one or more of the new awards come January next year.

For example, many employees were not covered by the old State, occupation based awards, such as those working in IT. They were also not covered by the old federal awards because those awards operated on a named employer basis, that is, if you were not a named respondent or a member of an employer organisation so named, the federal award didn’t apply. This is no longer the case.

You will need to check your employees’ occupations against the modern award classifications to determine coverage. If a modern award applies, you cannot contract out of those award provisions simply because inter alia you might pay an hourly rate that exceeds the proposed award rate, unless (in some circumstances) a guarantee of earnings at or above the “high income threshold” is given.

For genuine, award free employees, HR must still ensure that the contracts and HR policies reflect the new employment standards. Any terms that do not meet the NES standards will be unenforceable and, if you try to enforce them, you will be breaching the Fair Work Act which attracts substantial penalties.

The message we are hearing is that many employers are likely to be caught short come 1 January 2010