Workplace policy and process

Modern slavery legislation at the Commonwealth level in Australia is getting closer.

The Modern Slavery Bill 2018 (Cth) passed the Lower House last week. The Opposition pushed for several amendments to the legislative framework including establishing an Independent Anti-Slavery Commissioner to oversee implementation and enforcement of the legislation, the introduction of penalties on companies for non-compliance with their reporting obligations, and an obligation on the Minister to report annually on compliance by reporting entities. While none of these passed, the Opposition nevertheless supported the passage of the legislation as it currently stands.

The Bill has been introduced into the Senate with debate adjourned until the next period of sittings in mid-October 2018.

Notwithstanding the recent change of Federal Minister responsible for the Australian Government’s strategy to combat modern slavery, there remains broad and bipartisan support for the Bill and the Federal Government remains committed to having the legislation passed this year.

If you’re not at the table, you’re on the menu

Modern slavery has become one of the highest-profile business and human rights issues in Australia, with significant engagement from investors, scrutiny from civil society, and interest from across the political spectrum. Meeting the legislative requirements – and satisfying the growing market standards – will require a proactive and strategic approach to modern slavery risk assessment, due diligence, and external reporting.

To get ready for the Commonwealth legislation, which is likely to take effect in January 2019, see our Modern Slavery Action Plan.

NSW legislation

Since our blog in June 2018, there have been no updates on the NSW Modern Slavery Act 2018 – which still has not commenced operation despite being passed by the NSW Parliament on 21 June. This is likely due to stakeholder lobbying for one nationally consistent modern slavery reporting regime across Australia. In our view, this would make sense for businesses so that they do not have to comply with competing obligations under State and Commonwealth regimes (subject to any Constitutional inconsistency arguments).

The reporting obligations under the NSW and Commonwealth legislation are largely, although not entirely, overlapping. The NSW legislation allows for the NSW government to prescribe, among other things, that the NSW reporting obligations do not apply if an organisation is subject to obligations under a corresponding law of the Commonwealth. However, the big sticking points for NSW in deciding whether to cede entirely to the Commonwealth in this space are likely to be:

  • there are substantial penalties under the NSW legislation, but none under the Commonwealth regime and
  • the NSW scheme applies to organisations with a total turnover in a financial year of at least $50 million whereas the Commonwealth Bill, when passed, will only impose mandatory reporting obligations on organisations with an annual revenue of over $100 million.

We are already working with our clients to ensure they comply with their modern slavery reporting obligations – contact us if you would like to know more.

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Over 40 million people around the world are trapped in conditions of modern slavery, according to research from the Walk Free Foundation and the International Labour Organization. The fight against modern slavery is fragmented. Governments, non-governmental organisations (NGOs) and law enforcement agencies are engaged in their own fights at various levels (local, regional, national, global) with little collaboration.

In increasingly globalised markets, there is growing regulatory and consumer pressure on businesses to eliminate the exploitative practices of modern slavery in their operations and global supply chains.

Businesses have the chance to lead the way in the growing global effort to eliminate the exploitative practices of modern slavery; they are uniquely positioned to educate the largest constituency—their employees and business partners. By taking action, businesses can meet increasing investor, shareholder and social expectations; manage legal, reputational, financial and operational risks; and demonstrate corporate leadership on an urgent human rights issue.

However, they cannot do it alone and, to be effective, businesses will need to go beyond mere compliance efforts centred on due diligence/disclosure and focus on transparency and collaboration with government and NGOs. Technological advancements are providing real and substantial opportunities for improvement.

Using technology for greater transparency

Governments and NGOs are starting to take advantage of technology to spread knowledge and tools for those in the private sector and communities to educate themselves and learn how they can take action.

For example, the U.S. Department of Labor has created two apps—Sweat & Toil and Comply Chain—that each have a different focus. Sweat & Toil is a resource companies can use in their risk assessments to identify whether goods used are produced with child or forced labour. It consolidates information on other countries’ legal and enforcement standards, among other things. Comply Chain creates a standard of set practices to reduce the likelihood of goods being produced with child or forced labour. It provides a blueprint for businesses to create or enhance a social compliance system.

NGOs like Stop the Traffik, a global organisation focused on prevention of modern slavery, has created a Center for Intelligence Led Prevention, in partnership with IBM, to collect, analyse and disseminate information about modern slavery routes and risks. With the dissemination of such information, the efforts in this fight can become less fragmented.

Likewise, for businesses to really make a difference as they embark—voluntarily or involuntarily—on responding to a new regulatory scheme, technological advancements will give them an opportunity to support their actions in working towards transparency and ethical supply chains. For example:

Worker voices – Utilising mobile platforms allowing two-way, real-time communication for workers throughout the supply chain.

Traceability of materials and supplies – Using blockchain to trace products along their journey from producer to consumer.

Supplier and worker engagement – Equip and use data analytics to monitor labour-related risks in real-time, creating more responsible global supply chains.

Risk assessments – Mining data (for example, from mobile phones, media reports and surveillance cameras) which can be analysed using artificial intelligence and machine learning to extract meaningful information and identify risks in the supply chain.

Employee engagement – Using internal communications tools to allow employees to engage and become educated, particularly in recruiting.

Technology can only be as good as the purpose for which it is used and how carefully the information acquired from it is leveraged. If effective tools are used to educate and learn from the different actors within the supply chain, there is opportunity for businesses to work with governments and NGOs to build and share knowledge.

The compliance framework

In addition, there is a growing body of international laws and norms requiring corporate reporting and due diligence on modern slavery and human rights issues.

These include the UK Modern Slavery Act, the French Corporate Duty of Vigilance Law, the Swiss Responsible Business Initiative, the U.S. Federal Acquisition Regulations, and the California Transparency in Supply Chains Act. Legislatures in Canada and Hong Kong are also currently considering modern slavery laws, alongside Australia’s proposed Modern Slavery Act and NSW’s Modern Slavery legislation.

The compliance steps for meeting legislative requirements will not be unfamiliar to businesses; the these steps will be much like actions taken for compliance with anti-bribery laws.

Between the growing global compliance framework, technology and the willingness of business to honestly review their operations, comes the potential for a new level of transparency and commitment, helping to build on efforts to fight modern slavery and more holistically bring this largely hidden crime to light.

We are already working with our clients to ensure they comply with their modern slavery reporting obligations – contact us if you would like to know more.

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The introduction of the Commonwealth Modern Slavery Bill 2018 on 28 June 2018 sets an imperative for businesses operating in Australia to know, and show, how they are identifying and addressing the risks of modern slavery.

Reporting Requirement

At the centre of the Bill is the Modern Slavery Reporting Requirement: a mandatory requirement that entities based, or operating, in Australia, which have an annual consolidated revenue of more than AUD $100 million, report annually on the risks of modern slavery in their local and global operations and supply chains, and take actions to address those risks.

Any ‘reporting entity’ meeting the threshold—and any other entity that volunteers to comply with the legislation—will need to publish an annual statement, within six months of the end of their financial year, describing the risks and actions it has taken in relation to modern slavery: a term broadly defined to include all forms of trafficking in persons, slavery and slavery-like practices, and the worst forms of child labour.

Modern slavery statements, which must be approved by an entity’s principal governing body and submitted to a public, government-run register, will need to:

(a)       identify the reporting entity;

(b)       describe the structure, operations and supply chains of the reporting entity;

(c)        describe the risks of modern slavery practices in the operations and supply chains of the reporting entity, and any entities that the reporting entity owns or controls;

(d)       describe the actions taken by the reporting entity and any entity that the reporting entity owns or controls, to assess and address those risks, including due diligence and remediation processes;

(e)       describe how the reporting entity assesses the effectiveness of such actions;

(f)        describe the process of consultation with any entities that the reporting entity owns or controls, or entities with which it gives a joint modern slavery statement; and

(g)       include any other information that the reporting entity, or the entity giving the statement, considers relevant. 

Action Plan

Businesses should develop an action plan—guided by the legislative criteria, and in line with the UN Guiding Principles on Business and Human Rights—that establishes a comprehensive modern slavery and human rights due diligence process:

  • Policy commitment: Formulate a high-level, public statement that outlines the business’s commitment to meeting its responsibility to respect human rights, including a rejection of any form of modern slavery in its operations and supply chains. This should be approved by the entity’s principal governing body, informed by expertise, and clearly communicate the organisation’s expectations as to how all personnel, business partners and other stakeholders should act.
  • Risk assessment: Map out the business’s operations and supply chains in order to identify key areas of modern slavery risks by location, industry and supplier. In doing so, businesses should assess actual and potential modern slavery risks associated with their operations, supply chains and business relationships. This process may involve conducting human rights impact assessments, internal investigations, and ongoing engagement with affected stakeholders.
  • Take action: Integrate findings from risk assessments into corporate governance strategy and core business decision-making.. Effective action requires that businesses embed their policy commitment across all relevant internal functions, create oversight processes, and take direct, informed action to prevent, mitigate and remediate any identified modern slavery risks and impacts.
  • Provide training: Develop training programmes for management, staff, suppliers and other stakeholders in how to practically identify, assess and address modern slavery risks across the business’s operations, supply chains and relationships. Training should be informed by research and consultations, and can be further embedded through codes of conduct and contractual provisions.
  • Track progress: Verify whether adverse modern slavery impacts are being addressed by using appropriate qualitative and quantitative indicators—including reviews, surveys, audits, and other data—and by drawing on internal and external feedback, particularly from affected stakeholders.
  • Report: Communicate publicly how the business is addressing modern slavery risks and impacts, including via the criteria set out in the Modern Slavery Reporting Requirement.

There is a growing, global effort to eliminate the exploitative practices of modern slavery—one that is now likely to materialise into a formal legal requirement for businesses operating in Australia. By taking action, businesses can meet increasing investor, shareholder and social expectations; manage legal, reputational, financial and operational risks; and demonstrate corporate leadership on an urgent moral issue.

Establishing the Modern Slavery bill

This bill has been released following a consultative process, that included a report from the Joint Standing Committee on Foreign Affairs, Defence and Trade from its inquiry into establishing a Modern Slavery Act in Australia.

The broader international context

Australian’s approach fits into a growing body of international laws and norms requiring corporate reporting and due diligence on modern slavery and human rights issues – these include the UK Modern Slavery Act, the French Corporate Duty of Vigilance Law, the Swiss Responsible Business Initiative, and the California Transparency in Supply Chains Act. Legislatures in Canada and Hong Kong are also currently considering modern slavery laws. In addition, New South Wales has passed its own modern slavery legislation.


We are already working with our clients to ensure they comply with their modern slavery reporting obligations – contact us if you would like to know more.

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Automation is a game changer that is altering the industrial landscape. A Committee for Economic Development of Australia publication estimates that over the next 10 to 20 years, 40% of jobs in Australia have a high probability of being susceptible to computerisation and automation.

Smart businesses will approach the automation process from the front end and engage with their workforce in a manner that ensures the business is able to harness all of the productivity benefits from automation, without suffering the industrial dissention and dislocation which so often coincides with dramatic workplace change.

Planning and practical implementation is critical

McKinsey recently published “A CEO action plan for workplace automation”, highlighting the benefits of business harnessing automation processes within their workforces. However, it cautions the need for an appropriate plan of action.

From an industrial relations standpoint, preparing for automation sooner rather than later can provide a business with payoffs down the track.

Where the opportunity presents itself for a business to enter into a carefully tailored enterprise (or greenfields) agreement prior to implementing automation measures, such an opportunity should be seriously considered. If timed properly, this will minimise the impact on the business from workplace change, and maximise workplace flexibility to allow the business to easily transition, saving time, cost and mitigating the risk of workplace disputes arising.

Left to the last minute, an enterprise may face pitfalls in implementing technological change. For instance, should a round of enterprise bargaining be imminent, employees and their representatives will push for greater job security during bargaining through superior redundancy and retention type arrangements. These could slow change, and add cost and complexity. Late engagement and consultation may also create resentment and cause further disputes and delays.

Where workforce engagement occurs early, these issues may not be so prevalent, and a business can ensure that it has the appropriate flexibility mechanisms in place to easily transition. As reported in The Australian recently, NAB’s Andrew Thorburn reflects on the importance of planning for NAB to “retrain and redeploy” workers post-automation. Clearly, planning can deliver the best outcomes for all stakeholders.

Enterprise bargaining in the post-automation world

There are implications on an employer bargaining for a new enterprise agreement (or for a greenfields agreement over a new enterprise) that will cover the business post-automation.

For example, the ability to influence new roles that will be required from technological advances comes with the ability for an employer to:

  • effectively bargain for terms and conditions off a fresh slate as post-automation roles may result in coverage of employees with vastly different terms and conditions
  • use a different modern award (if any) as a base for terms and conditions
  • provide an employer with greater leverage in bargaining through dealing with a smaller, more specialised workforce
  • bargain in circumstances where the agreement’s coverage will dictate which union (if any) has a right to represent employees.

Of course, the need to engage workers with a different skill set may also provide a business with an opportunity for workers to grow in their careers, and present an environment in which cultural change might be effectively promoted and achieved. Viewed through this lens, technical change need not be seen as a negative from an employee relations perspective.

Implementation of process

‘Redundancy’ is the word that comes to most employees minds when they catch wind of an employer taking steps to automate elements of their work.

However, despite many claims made to the contrary, major technological change does not necessarily result in a workforce being decimated. Opportunities are inevitably presented from change for employees to upskill in order to fulfil different roles in the business (or elsewhere).

Unfortunately downsizing a workforce is, in a number of cases, a necessary step in achieving the full productivity benefits that are so attractive in implementing technological change. Again, early and effective planning can minimise forced job losses, and maximise opportunities to upskill.

Transparency and appropriate engagement with employees is critical during the process, as is implementing an appropriate consultation plan.

In a world where so many businesses are moving to automation, failure to take these steps may result in your business falling behind its competitors, change (and its benefits) being seriously delayed, or the often significant capital costs required blowing out.


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Recently a number of stoushes about the enforcement of post-employment restraints of trade – including one that captivated the legal industry for many months last year – have played out publicly.

Their high profile nature means it is timely for big business to re-evaluate their restraints of trade to make sure they are effective – emphasised by the fact we are seeing movement in many industries (including the legal industry) picking up pace as teams relocate as a result of mergers and the continued impact of globalisation.

Restraint of trade provisions are common in many employment contracts, but whether or not a business takes steps to hold an outgoing employee to account is a different question. This can be for a range of reasons – for example, not wanting to be the “bad guy”, or where the relationship has fractured to a point where culturally, both parties are happy to move on.

But more commonly, it comes down to the fact that when the rubber hits the road, a closer inspection of the applicable restraints shows that the business doesn’t have a good case to enforce the restraints or that – even if they are enforceable – they don’t give the business the protection it really needs.

There are 3 key strategies to increase the chances that your restraints are effective – keeping you out of court and off the front pages:
  1. tailor your restraints to your business and to the employee – the cases highlight that restraints should be designed carefully to reflect what is actually important to the business and the job of the particular employee. While there is a superficial attractiveness to broad restraints, you need to think about what aspects of the employee’s role justify restricting them in some way after they leave – the courts don’t often like boiler-plate or broad-brush provisions to which no thought has been given.
  2. don’t be blinded by love – we all know the feeling of meeting someone new, making a connection, and thinking about how great your lives will be together. We ignore the faults that stare our friends in the face – because we can’t possibly think of how the relationship would ever turn sour. When it comes to recruitment, that applies too. You should very carefully consider any employee’s request to delete or modify key aspects of the restraint provisions (including, for example, reducing restraint periods, or waiving restraints if certain things happen) – because we all know some relationships just don’t last.
  3. re-evaluate contracts during the employment relationship – you would expect productive and valuable employees to progress and succeed in your business. However, promotions – and particularly senior promotions – often mean the employee has increased access to confidential information/business strategies, key clients/customers and talented fellow employees. Consider promotions as a good opportunity to look carefully at whether the existing restraints are sufficient to protect the company’s interests – it might be worth issuing an updated contract with new restraints at that point.

All our tips on restraints can be found here, along with our map of Post-Employment Protections.


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It is common for employers to bring on employees for limited term employment, where work may not be ongoing. Traditionally, “outer limit” contracts have allowed for the employment to end on an agreed date without a resignation or dismissal. A recent decision of the Full Bench of the Fair Work Commission may have pushed “outer limit” contracts closer to their own expiry date.

The key takeout is that if the employee does not voluntarily leave employment and the driving force causing the employment to end is a decision or act of the employer, it could be a “dismissal”, even if the employment ends on the agreed expiry date. In addition to unfair dismissal, this change could also have broader impacts, for example:

  • Does an employer have to provide notice or pay in lieu even if the employment ends on the agreed date?
  • If the contract is not renewed because there is no ongoing work, is this a redundancy?
  • If the employee does not wish keep working, is that a resignation?
Termination may now be considered dismissal 

Where employment ends at the agreed expiry in an “outer limit” contract, this has traditionally been regarded as expiry due to the effluxion of time rather than a “dismissal” which could give rise to a claim under the unfair dismissal provisions of the Fair Work Act 2009. In December 2017, by majority, the Full Bench of the Commission overturned the previous authority on this point.

The majority held that expiry of an “outer limit” contract which allows for termination on notice can amount to a “dismissal”. The majority said that not every contract expiry will be a “dismissal”: this depends on a range of factors including the context of the employment. In the case considered by the full bench, the employee had been employed on a series of ‘outer limit’ contracts and was not offered a further contract due to performance concerns. The outcome may have been different if there was a single contract, with a justifiable basis for the nominated end date.

Changes to how you use “outer limit” contracts

Employers may need to consider treating decisions to end outer limit employment on the expiry date as if this was a decision to dismiss. They should also ensure that “outer limit” contracts are only used where there is a legitimate reason to do so – eg expressly linked to short term funding or role requirement and not as a routine way of engaging people, particularly where such contracts are routinely rolled-over.

An employer may also wish to ensure the employee understands the nature of the contract and the reason it is in place for a limited period of time.

Unfortunately, this change is likely to result in increased administration and costs for “outer limit” contracts, which may undermine their utility – and bring them closer to their own expiry.

***

Fixed term versus “outer limit” contracts: Speaking technically, a fixed term contract locks both the employer and employee into working for the full fixed period, without the possibility of earlier termination (other than for serious misconduct or other serious breaches of the contract warranting termination without notice).

It is more common to see “outer limit” contracts, which come to an end on a specified date or event (the “outer limit” of the contract), but allow either party to terminate the contract before that date. This provides both parties with more flexibility.


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The Australian Government’s inquiry into establishing a Modern Slavery Act reflects a growing domestic and international commitment to eliminate the exploitative practices of modern day slavery, and recommends new reporting and due diligence obligations for businesses operating in Australia.

Hidden in plain sight

Over 40 million people around the world are trapped in conditions of modern slavery, according to estimates from the Walk Free Foundation and International Labour Organization, including an estimated 4300 victims “hidden in plain sight” in Australia.

Modern slavery—a term that encompasses slavery, servitude, forced labour, trafficking in persons, forced marriage, child trafficking, debt bondage, child labour and exploitation, and other slavery-like practicesexists both at home and abroad; across a range of local industries, and in the global supply chains of organisations and businesses operating in Australia.

Global supply chain reporting

Released last week, the final report of the Joint Standing Committee on Foreign Affairs, Defence and Trade in its inquiry into establishing a Modern Slavery Act in Australia sets out 49 recommendations, including the introduction of an Australian Modern Slavery Act and the establishment of an Independent Anti-Slavery Commissioner.

Similar to the United Kingdom’s Modern Slavery Act 2015, the final report recommends a mandatory supply chain reporting requirement that would require all entities operating in Australia with an annual revenue of over $50 million, regardless of where they are headquartered, to report on modern slavery risks in their global supply chains.

Companies, businesses, organisations, governments and other bodies that meet the threshold will, according to the report’s recommendations, need to publish annual Board-approved modern slavery statements within five months of the Australian financial year ending, detailing:

  • the organisation’s structure, its business and its supply chains
  • its policies in relation to modern slavery
  • its due diligence and remediation processes in relation to modern slavery in its business and supply chains
  • the parts of its business and supply chains where there is a risk of modern slavery taking place, and the steps it has taken to assess and manage that risk
  • its effectiveness in ensuring that modern slavery is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate
  • the training about modern slavery available to its management and staff
  • any other actions taken.

While premised on the supply chain reporting requirements in the UK Modern Slavery Act 2015, the report goes several steps further: recommending a central repository of modern slavery statements, a requirement that the Australian Government only procure from entities that publish a modern slavery statement, and the introduction of penalties and compliance measures for entities that fail to abide by the reporting requirements.

The recommendations are aligned with the ‘Protect, Respect and Remedy’ framework of the UN Guiding Principles on Business and Human Rights. In particular, the requirement to report on due diligence processes relating to modern slavery risks echoes the UN Guiding Principles’ parameters for human rights due diligence—a process that includes assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.

Impacts on the corporate landscape

The report signifies a groundswell of support for measures to address worker exploitation and modern slavery—issues already front of mind in Australia with the recent passage of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, and situated within a growing domestic and international agenda on the human rights risks and responsibilities of businesses.

2018 portends to be a landmark year in the worldwide effort to eliminate modern slavery, with an expanding legislative and regulatory focus on the domestic labour practices and global supply chains of organisations, businesses and other entities operating in Australia.

For details of the NSW Modern Slavery Bill 2018 see NSW passes Modern Slavery legislation – key obligations for businesses.


Pete Talibart, Managing Partner of Seyfarth’s London office and a world-renowned expert on modern slavery, will be authoring blogs on the subject over the coming months and sharing his insights through direct involvement in the establishment of the UK Act.

To follow Seyfarth Shaw’s updates on the scope and substance of the proposed Australian Modern Slavery Act—and its implications as it develops into draft legislation in early 2018—please subscribe to our Workplace Law & Strategy blog.

Does an employer have to let a union official in?
Only if they have a permit!

Right of entry disputes are common – partly because of the multiple laws that at a glance seem to overlap in a way that can be confusing. The latest chapter in this saga has recently played out in the High Court. The good news is there is now additional clarity that can be applied in practice when the union comes knocking.

Why is this issue controversial?

Employers want to conduct their business without interference. Union officials want to represent their members in the workplace. This results in a natural degree of tension – which can be stressful when there is a health and safety concern.

The laws provide a rulebook that regulates both unions and employers if they can’t agree on entry. Unfortunately the laws are complex and there is an overlap which has been confusing in practice. Under the Occupational Health and Safety Act 2004 (Vic) (and similar provisions in the Model WHS Act) health and safety representatives (HSRs) can request assistance to help them fulfil their duties. But what if the assistance is from a union official without a Fair Work Act 2009 right of entry permit?

Both sets of laws have a long history – reflecting different policy imperatives. Safety laws prioritise HSRs getting assistance to resolve an issue. Right of entry permit laws ensure that the right is exercised consistently with the objective of balancing union interests and employer interests. The permit regime results in ongoing regulation of permitholders and the right to enter can be removed if the person in question behaves inconsistently with that privilege, eg, by breaching workplace laws.

Until now there was a question about how to deal with the situation if the union official was seeking to enter under state WHS laws, eg, if the site HSR asks a union official to “assist”. At first glance, these state provisions sit entirely outside the “right of entry” regime. Does that mean the official without a permit can lawfully come in? Are they trespassing? Is the employer entitled to have them removed (and will the police assist)?

A victory for common sense – Powell v Australian Building and Construction Commissioner

Highlighting the need for a practical solution, in the recent case, the Federal Court decided that the CFMEU official still had to comply with the entry permit regime, even where he had been invited into the workplace by the HSR under the Victorian OHS law. The Judges found there was no reason of common sense or policy why different arrangements would apply depending on the reason for entry – noting that this could lead to confusion in practice, undermining the utility of the entry permit regime.

WorkSafe Victoria and the CFMEU official sought to appeal the decision on the basis that this excludes the capacity of HSRs to seek assistance from union officials outside the right of entry rules. The High Court dismissed the application for special leave to appeal– meaning the decision of the Federal Court stands.

Know the rules and be ready to act!

Health and safety issues can flare up quickly requiring an immediate response – with everyone under pressure. Nobody is doubting the importance of ensuring that HSRs can deal with health and safety concerns including having access to specialist assistance as required as quickly as possible. This is why it is important to have clear rules that everyone can follow.

The state legislation (and the guidance that may be issued by regulators or inspectors) will not necessarily present the full picture because you need to consider both sets of laws. Recognising that it can be difficult to “stand your ground” in a high pressure situation, employers should have a protocol in place which deals with all the issues and ensure that managers are prepared to respond when a union official arrives. The legal position is now clear: a union official will always need a right of entry permit even if they are seeking to enter under state laws.

This outcome is a win for common sense. It means that the rules are clear – which is good for both industrial relations and for achieving a quick resolution of health and safety concerns.


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The impact of technology on the workplace is undeniable, and its effect on how employees will communicate in the workplace of the future cannot be overstated.

Impacts are emerging in workplaces, globally. We thought we would share the thought leadership of our colleague, Karla Grossenbacher, a partner in our Washington, D.C. team. It seems to us that her insights on these issues are equally applicable to Australian workplaces and we hope you find them of value.


As Generation Y begins to enter the workforce, many believe their preference for using texts instead of email to communicate will cause a fundamental shift in the workplace of the future, in which texting will replace email as the primary method of electronic communication. Employers need to prepare now for how they will be able to access and monitor workplace texts in the same way they do email, and preserve those texts as necessary to fulfill any legal obligations they have to preserve workplace communications.

Texting is becoming more common in the workplace. Most employees use company-owned or personal phones to communicate in the workplace to some degree, and with phones comes texting. Even if email is the sanctioned form of communication in the workplace, employees will text. Some employers may not even be aware their employees are texting with each other or to what extent. Other employers may be aware and actually permit texting in the workplace or simply tolerate it because they feel they cannot prevent it from happening.

Yet, if employers allow employees to text in the workplace, they will need to think about how they will access, view and preserve employee texts in the same manner that they do with emails. Lawyers in employment cases are beginning to demand that text messages be produced along with emails during discovery. If the texts are made from company phones, the basis for such a request would seem to be well-founded assuming the substance of the texts is relevant to the claims and defences in the case.

However, when the texts are sent or received on personal devices used by employees in the workplace, the issue becomes more complicated. In such cases, employers typically argue that they are not required to produce texts from their employees’ personal devices because such devices are not within the employer’s custody or control. But if employees are using personal devices at work pursuant to a Bring Your Own Device program, the argument that such devices are not under the employer’s custody or control is undercut. Often BYOD policies allow for the employers to take custody of the employee’s personal device for various legitimate business purposes, which would include responding to discovery requests in litigation.  Continue Reading Are your employees texting? Risks to employers taking workplace communications offline

LinkedIn is the biggest online network of professionals in the world. Many employers encourage staff to use LinkedIn to promote their organisation.

While employees may share content relating to their organisation, they tend to think of their profile as personal to them, like a resume, which is available to recruiters, colleagues and clients.

Yes, the LinkedIn account belongs to the individual, but that doesn’t mean that ‘anything goes’.

On signing up, you agree with LinkedIn to provide truthful information and to not misrepresent your current or previous positions or qualifications. Even so, we have all noticed information on LinkedIn that isn’t 100% accurate.

You may have had a similar experience where you look up a contact on LinkedIn, and their profile shows them at a job they left months ago.

Perhaps they are on gardening leave, or they have been exited against their will and don’t want to say they are unemployed. There is the potential that their account was connected to a work email address that they can no longer access, and signing back in has become too problematic.

But in more concerning circumstances, some people use their LinkedIn profile to paper over gaps in a resume – this is an age-old issue, but with LinkedIn and online platforms, it is increasingly visible.

Other than getting frustrated, what can employers do when an employee fails to update their LinkedIn profile?

There are options to manage this risk as an employer:

  • Writing to the employee and asking them to correct the details
  • Using the LinkedIn feature to ‘disconnect’ that contact from your organisation, removing them from search results and the list of employees
  • Reminding departing employees of expectations in exit interviews
  • Including a term of a release agreement or deed which can be specifically enforced if necessary.
Is it worth the trouble from a commercial perspective? The answer may well depend on the individual involved. It is always a balancing act, but when rights and obligations are clearly defined, resources like LinkedIn are proven to work in everyone’s interest.

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