Workplace policy and process

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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One of the more interesting recent developments in relation to work has been the continual rise and development of the gig economy – that is, workers developing niche areas of specialist expertise, but having careers characterised by a series of interactions with various organisations, rather than being employed by one company for many years. This doesn’t just mean a person working in multiple jobs over the course of their life, but that they are much more likely to be running their own independent business providing services to customers.

Over the last 15 – 20 years, many businesses have made the distinction between core and non-core functions, using that distinction to drive and make judgment calls about the nature and form of their relationships with those contributing to their business (including employees, contractors, suppliers or others). With the development of the gig economy, businesses will need to be more sophisticated in their analysis, taking a much more fundamental and holistic view of how they want the business actually to operate – entrepreneurs, leaders and managers need to consider how the emerging gig economy will impact on the structure of the business’s relationships with its contributors.

So, how can your business make the most of the opportunities that a gig economy offers, while also managing the legal, reputational and business risks of dealing with multiple independent contractors?

Employment and industrial law may be slow to catch up with these developments – indeed, it has only been within the last five to seven years that the industrial tribunal in Australia revisited the whole way in which awards work (with the result that a simplified system has been developed, albeit one still focussed on a traditional employment model). But sophisticated businesses with an eye on long-term success will be looking at a range of issues now to make sure they are ahead of the gig movement:

  • how to ensure that customer experience (“CX”) remains consistent over time if customers interact with different personnel each time (perhaps, for example, by using CX metrics as part of the contractor reward system)
  • how to ensure that the business is properly resourced and able to respond to urgent customer demands with a workforce that does not necessarily have any particular loyalty
  • which labour markets the business will use to source gig workers – will we have a “Beta vs VHS” winner or live with an “Apple vs Android” solution? Will the business accept the standard terms associated with using markets like Airtasker?
  • whether to develop a standard form for the engagement of contractors/gig workers, and how to ensure that the right type of engagement is used in each circumstance
  • how safety systems and processes need to adapt as the pendulum swings from workers being employees to workers only lightly touching the periphery of the business from time to time – will you need to re-evaluate your risk profile?
  • how the legal risks associated with gig workers are managed and ensuring that systems insulate the business as far as possible from legal claims, such as sham contracting
  • the increased interest by regulators in how businesses are interacting with their workers.

Our ‘future of work’ series has been considering the ways in which businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while Increased communications potential has meant that many workers are able to perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

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The Victorian Supreme Court recently issued a stunning decision awarding an employee over $600,000 comprising $210,000 for pain and suffering and the balance for lost past and future income, despite the employee having a significant pre-existing psychiatric illness and a finding that no bullying had occurred.   Continue Reading Damages in bullying claims – the stakes are rising even higher

boxing-gloves-375473Ronda “Rowdy” Rousey was at the top of her field, training hard and winning harder.  Her success had built her brand.  So much so that she diversified into acting with parts in two big budget, big publicity movies. Then it happened. Her reputation did not match her performance. Immediately the questions started – would she come back?

As the saying goes ‘the bigger you are the harder you fall’.

The shock and self-doubt experienced by Rousey and the public commentary about her performance and her future are also experienced by organisations and industries following a significant or catastrophic workplace incident. 

There is the shock. That a colleague, friend or someone on their watch has suffered serious injury, or lost their life. There are questions about why the systems and the commitment to safety were not enough to prevent the occurrence. Your performance has not met your own expectations and the expectations of others.

Then comes the uncertainty about what comes next. Uncertainty about what an investigation will reveal about the failure, the associated consequences and the future cost of prevention. You will question if you are going in the right direction, including whether your systems and processes are adequate. The safety solution is not the only area of uncertainty for business – it extends to how to re-build trust, how to re-build brand and how to re-build performance.  In short, how will you get back in the ring?

Like Rousey the business has to persevere. It has to assess what happened, what needs to be reinforced, what needs to be improved and what needs to change. Was there over training? Or undertraining? The wrong preparation? The wrong support team? Is there new technology or new techniques that can assist? Are there improvements that can be made to the system of work? Do you need a new coach? Or a new approach? In reality it is probably a combination of all these things (and more) for the business to get “back in the ring”.

Then the hard work needs to start again. Not from the beginning, but building on what was implemented before the incident and incorporating the lessons learnt. We often find that organisations that have experienced a significant or catastrophic incident take a different approach to risk control than those that haven’t. They keep a healthy level of vigilance on the performance of their critical controls and they drive the commitment to safety through all levels of their business. They use a variety of levers to engage and embed an incident prevention mindset – they are not afraid to bring in outside expertise to give them the edge to get back on top.

And like Rousey, it is important to take your time, consider your options and develop the right strategy to get you back in the ring.

As the Beliebers of Australia will tell you, tickets for Justin Bieber’s 2017 “Purpose World Tour” were released in Victoria on Wednesday, 12 October at precisely 1pm.  In a frenzy, fans across Victoria were using their employer’s time and resources to purchase (or miss out on) tickets.

Beiber imageAs society becomes increasingly digitalised, it’s now common for employees to use their employer’s internet access for non-work related purposes. Referred to as ‘cyber slacking’, can be a source of frustration for many employers who endeavour to limit recreational internet usage for staff. On the other hand, many employees feel that due to the increasing demands of work life, such as long hours and weekend work, personal internet usage ‘on the job’ should be accommodated. Is workplace flexibility just about leaving work 15 minutes early for an appointment, or does it include personal admin tasks that are done during working hours?

In an age where flexible workplace arrangements are becoming increasingly popular, how far should this leniency stretch, and perhaps more importantly, what is deemed as “appropriate” personal administration? Is personal banking OK? How about perusing the latest shoe sale? Facebook? Trawling Broadsheet in search of Melbourne’s most perfectly poached 63° egg? Reading the newspaper online? Does the scope extend further to include personal printing of documents? Home calls on company phones?

For employers, drawing the line can be difficult. Frustratingly, there are no hard and fast rules on how to deal with employees using work resources for personal reasons. But, employers are entitled to impose and specify reasonable limits. In assessing how to balance these competing interests, it is important to take a practical and realistic approach. Employers are able to maintain some control over employee’s personal admin tasks through workplace policy and lawful and reasonable direction. All organisations are different and time apportioned will depend on the culture of the business.

What is clear is that it is unrealistic to never-say-never to employees in relation to personal admin tasks performed during working hours. Just as employees are increasingly expected to answer emails out of traditional working hours, employees expect employers to allow for some aspects of their personal life to intrude into work hours.

How is your organisation dealing with these challenges? We look forward to hearing from you.

‘Snapchat is about sharing moments and having fun’ reads the tagline of the mega-app that has the fastest-growing social network in the world. But despite its phenomenal popularity, what potential impact might Snapchat have on your workplace?White phone

If you don’t use Snapchat, here’s a quick overview: it is a mobile-only app estimated to be valued around USD $20 billion and according to Snapchat’s website, on any given day, Snapchat users watch over 10 billion videos with Snapchat reaching around 41% of all 18 to 34 year-olds in the United States. Snapchat is definitely the medium of the moment and utilises “auto-destruct technology” allowing its user to:

  1. Send a photo or video (with filters or text added to it) to one or more contacts for up to 10 seconds (the contact must also have downloaded the Snapchat app in order to receive the photo or video);
  2. Post a video or photo to a ‘story’ which contacts can then view for a period of 24 hours (unless the user deletes it before then); and
  3. Instant message and video call a contact (but the messages will disappear when the user leaves the conversation unless they immediately save the content or take a screenshot).

Snapchat is also being increasingly used for mobile storytelling and organisations can pay to purchase the right to post a story or sponsor a filter that end users can choose to view or use. There are also event-based stories and filters that Snapchat creates. For example, during the Australian Federal Election there were special election filters and users could submit personal photos or video to the official Election Day story that could then be viewed by users. It’s predicted that over the next few years more advertising content will also be included and companies will increasingly use Snapchat for marketing and recruitment purposes.

The reason it is called auto-destruct technology is because after the time specified, the content disappears. Its distinguishing point is its impermanence, unless of course, in the case of a photo, a viewer takes a screenshot, but that requires some serious quick-draw screenshot skills and often a fumble can lead to a black locked screen of shame. As for videos, you can’t save them so once you see them, they disappear. The only other option is to replay content, but you can only do this once a day unless you pay to purchase extra replays. Even then, you can only replay any single item of content once.

Since it is a platform where content is temporary, it’s easy to imagine its appeal to a person who wants to bully or harass others in the workplace. It is much harder to collect evidence in relation to conduct occurring on Snapchat – at least, much harder than Instagram, Twitter or Facebook where content can be easily shared and captured. Snapchat’s fleeting nature potentially encourages more inappropriate and/or high-risk behaviour and people often deliberately use Snapchat to share photos and videos that they wouldn’t dare to post on Facebook or Instagram.

While it is true that all digital content leaves some kind of footprint, in order to access Snapchat content after it disappears, you would have to convince Snapchat to hand over data (which is virtually impossible). The alternative would be to hire a digital forensics team to try and recover some traces of content. But where does that leave employers when someone makes allegations of bullying, sexual harassment or discrimination that have occurred in the workplace via Snapchat and no evidence can be collected to prove that the conduct took place? Unfortunately it will probably result in a situation that is all too common in such scenarios – one person’s word against another.

It is estimated that by 2020, millennials will make up 50 percent of the global workforce. When you consider that Snapchat shapes the communication preferences of this generation, its inappropriate workplace use is something employers should be aware of when updating their social media policies or conducting training. Particularly for younger managers, it may be better to keep Snapchat and work colleagues separate completely. Or maybe this is impossible as more millennials and post-millennials (Generation Z) pour into the workforce.

We welcome any suggestions or thoughts.

In the last five years, with the development of information technology and mobile devices, the distinction between being “at work” and “off work” has been profoundly altered. Working time is no longer confined to being in an office and working days are both more intense and infinitely extendable, making monitoring working times even more complex.Switching off

Coupled with a global economy, many employees feel that they are permanently connected to their work, irrespective of time zones and local laws.

EU working time laws are rapidly developing to deal with this trend and the negative impact it’s having on employee health and wellbeing. The sanctions for employers breaching these laws are potentially serious. This means that one of the most challenging issues facing global companies today is juggling time zones effectively and responding to business 24/7 without falling foul of working time laws.

Trying to figure out the local time of employees based in different time zones is a complex task in itself. Thankfully, there are a variety of user-friendly apps that can do the maths for you. But understanding the labour law rules when employees are operating in a different time zone is even more daunting, and unfortunately, no app is available to crunch this data for us.

For example, employees working on global projects will often be expected to dial into calls outside their regular local business hours and/or to respond to emails late at night. Though most internationally-minded employees may be willing to accommodate the requirements of their manager or client based overseas, in the EU, asking employees to work beyond their standard hours poses many challenges for employers in complying with working time regulations.

The EU Directive on Working Time (2003/88/EC) of 4 November 2003, directly connects working time to health and safety matters. For this reason, it specifies a series of principles employees should respect to preserve their sanity:

  • a maximum of 48 working hours per week;
  • a minimum rest period of 11 hours, every 24 hours;
  • a minimum weekly rest period of 24 uninterrupted hours for each 7-day period (in addition to the 11 hours above); and
  • paid annual leave of at least 4 weeks per year.

There are additional working time arrangements for specific industries such as the transport sector and sea workers, and to make things more complex, each jurisdiction within the EU has supplemented the Directive with its own laws and sector specific agreements, so the variations are quasi-infinite.

The potential sanctions for non-compliance are high-stakes for employers. They include penalties and claims for overtime payments (sometimes over several years prior) and can extend to criminal records for the company’s representatives, damages for breach of contract or liability for work-related injuries and harassment.

In recent debates, it has been suggested by the EU commission and selected EU countries that not recording all workers’ working hours might constitute an offence of undeclared work, which in turn is connected to modern slavery, and can have a severe impact on an organisation’s reputation and brand.

France, a pioneer in intricate working time laws, introduced a new Labour Law on 2 August 2016, safeguarding an employee’s ‘right and duty to switch off from work’. This right was previously found in the Syntec collective bargaining agreement governing most software companies in France and was utilised in a handful of workplace agreements of major French groups and even some German groups. They have made this part of the labour code, thus obliging all employers in France to include this topic in their annual negotiations effective January 2017.

In practice, French employees will still be allowed to occasionally join late calls or work with colleagues in different time zones, but employers should avoid expecting this routinely from their employees and managers. Though it is still unclear how the reform will fully play out, we anticipate employers will, beyond the negotiation obligations explained above, need to implement a mechanism, and, for those employing more than 300 employees, launch a corporate policy, ensuring such a right is effectively recognised and takes into account specific business working patterns and requirements.

Some employers may choose to simply pay lip service to the reform, yet it clearly states that from 1 January 2017 companies will have a duty to actively support the employee’s right to switch off their devices: this will include, as a strict minimum, verifying employees comply with rest periods and stating that they are allowed not to respond to emails during rest periods – or even ensuring software supports compliance.

A straightforward approach could be to adopt a policy allowing employees who work internationally to start work later or earlier, raising awareness of the virtues of having a healthy work life balance, creating group discussions to propose practical solutions to achieve work life balance, and monitoring with employees’ input any issues relating to excessive connections to their work device.

For companies who have a health and safety committee, they must be closely involved in the design and monitoring of the company’s plans.

Ming Henderson is a partner in our International Employment Law practice based in the London office. She is a qualified practitioner in both France and the UK.

Working from homeThere are lessons to be learnt about the future of work in one of my favourite episodes of The Simpsons titled ‘King-size Homer’, from the seventh season which aired over 20 years ago.

As you may recall, Mr Burns tries to get employees at the nuclear power plant ‘in shape’ by leading a workplace exercise program. As expected, however, Homer avoids this by taking advantage of the rule that someone who weighs more than 300 pounds will be classified as disabled and can then work from home. Unsurprisingly, he manages to gain the necessary weight and a computer terminal is installed in the Simpson house to allow him to do his very safety-critical work (monitoring a nuclear reactor!) remotely.

Homer cleverly works out that he can set up a ‘drinking bird’ to operate the computer for him while he is out. He arrives home from a visit to the cinema to find that his assistant bird has toppled over and a nuclear meltdown is imminent.

The Simpsons is notoriously prescient in the stories it tells (see the episode aired in 2000 that portrays Donald Trump as President of the United States …). While ‘King-size Homer’ is now more than 20 years old, the story raises some thought-provoking issues that continue to be relevant for HR and IR practitioners and managers more generally in the current workplace:

  • are workplace health and fitness programs valued by employees?
  • how should disabled employees be accommodated? Do they need to, or should they, be allowed to work from home?
  • which parts of an employee’s role can actually be safely automated?
  • what controls and processes are necessary when allowing employees to work from home?

The last two of these are particularly relevant when thinking about some of the emerging trends around how work might be performed in the future. As discussed in our recent blog ‘The future of work – what are the lessons for employers‘, two of the trends identified were:

  • the use of robotics to perform tasks more quickly, safely and efficiently than humans; and
  • telecommuting and remote working will become the norm (rather than the exception) in some industries.

So what does looking back at an old Simpsons episode tell us about these? There are a couple of valuable points to keep in mind:

  • employers will need to give careful thought to which tasks can be automated and what the ongoing role of humans is in ensuring that those tasks are completed safely and efficiently – it won’t be enough to set up a drinking bird and leave it be. In many cases, human oversight will be required. What training and skills will employees need to make sure the equipment functions correctly and – perhaps more importantly – what can be done to engage with and motivate employees in these situations to ensure that boredom doesn’t set in?
  • employers will need to develop and implement comprehensive and flexible systems to monitor and manage employees who are working from home to ensure that:
    employees are performing the work they have been assigned in a productive, efficient and responsible manner; and
  • the health and safety of those workers is not compromised by the home environment – and, conversely, that the health and safety of other workers in the employer’s workplace is not compromised by those working from home, like Homer did.

Homer is definitely not the shining light for the work of the future – but his behaviour gives food for thought about what we need to think about when structuring working arrangements.