Issue 17 December 2003
EMLOYMENT AND INSURANCE BRIEFLY
In this issue:
The Work Christmas Party – some commonsense “Do’s” and “Don’ts”
Yes, it’s that time of year again. Law firms and consultants
are releasing propaganda designed to scare you witless about
the risks associated with work Christmas functions in the modern
legislative and litigious environment. Makes you wonder whether
the spirit of Christmas is in fact dead?
To advise you not to do numerous things to celebrate the end
of the year or the festive season with your employees, so as
to avoid the possibility of sexual harassment, bullying, discrimination
or workers compensation claims arising out of conduct at office
Christmas functions is simplistic.
We at Norman Waterhouse do not believe that such advice is at
all useful – if you accepted it, none of you would have
Christmas functions at all.
The fact is that employers will arrange Christmas functions
for their staff. There are positive morale and team building
benefits to be obtained from properly organised and appropriate
celebrations. If an employer exercises some degree of responsibility,
commonsense and, most importantly, maturity in hosting an end
of year function, this will go a long way towards limiting any
potential “liability”.
Here is a list of “Do’s” and “Don’ts” that
we would recommend that you consider as a starting point. (The
list is by no means exhaustive).
Do
- Have a definitive start and finish time for your function
- Monitor any individual alcohol excesses
- Ensure food is provided, and (hopefully) consumed, if alcohol is provided
- Provide cab charge vouchers or alternative transportation methods to driving for employees leaving the function
- Instruct and advise managers, supervisors and/or owners of the business to keep an eye out for (and, if necessary police) inappropriate behaviour by employees towards others
- If “Kris Kringles” are arranged, advise employees to keep their Kris Kringles appropriate and to generally be aware of cultural, religious or other sensitivities that not only the recipients of the gifts may have, but also others who may see the gifts demonstrated
Don’t
- Serve alcohol to staff who are not yet eighteen
- Continue serving alcohol to someone who appears to be intoxicated already
- Continue to provide drinks after the designated finish time
- Allow intoxicated people to drive
- Require employees to sit on Santa’s knee to receive their Christmas gift, or kiss Santa, or “kiss the boss”
- Place mistletoe anywhere
- Allow inappropriate tomfoolery or conduct towards others
For further information about issues covered
in this article, please contact Ian Colgrave on 8210 1203 or
E-mail: icolgrave@normans.com.au.
First Year Casuals Excluded from Federal Act
The recent Workplace Relations Amendment (Fair Termination)
2003 excludes casual employees with less than twelve months service
from the unfair dismissal provisions of the Workplace Relations
Act 1996.
The exclusion of “short term” casuals was previously
contained in the Workplace Relations Regulations, but was declared
invalid following the decision of the Federal Court in Hamzy
v Tricon International Restaurants. The Court in that decision
considered the provisions of the Regulations went beyond the
scope allowed by the Act. The Government has now remedied the
situation by incorporating the provisions of the former Regulations
directly into the Act.
For further information about issues covered in this article,
please contact Cecilia White on 8210 1286 or E-mail: cwhite@normans.com.au.
A New Arrival
The Sex Discrimination Amendment (Pregnancy and Work) Act
2003 has now been enacted by Parliament.
The new Act, which amends the Sex Discrimination Act 1984, incorporates
three of the twelve recommendations contained in the HREOC’s
report Pregnant and Productive. The amendments clarify what can
and cannot be asked by an employer during an interview.
For example, under the new Act, it is unlawful to ask a woman
during a job interview whether she is pregnant or intends to
become pregnant, if that information is requested in connection
with determining whether to offer her employment. However, an
employer may use such information for a purpose connected with
occupational health and safety, but only if doing so does not
amount to unlawful discrimination.
Employers unsure of whether certain questions are lawful or
unlawful should consider the provisions of the new Act, and be
mindful to avoid questioning along lines that may be discriminatory,
thus exposing the employer to unlawful discrimination claims.
For further information about issues covered
in this article, please contact Cecilia White on 8210 1286 or
E-mail: cwhite@normans.com.au.
The Age of Discrimination
On 26 June 2003, the Federal Government introduced into Parliament
the Age Discrimination Bill 2003. Under the proposed legislation,
it will be unlawful for an employer (or person acting or apparently
acting on behalf of an employer) to discriminate against a person
on the ground of that person’s age. The areas of employment
that are covered include those relating to recruitment and to
offers of employment, and also include the actual terms and conditions
of employment with the employer, access to promotion and training,
and dismissal of the employee.
There are, however, proposed exemptions for employers in certain
circumstances. For example, a person cannot succeed in a complaint
of discrimination alleging that they were not given a job which
they in fact cannot do, taking into account the training, qualifications,
experience, performance standards and other matters relevant
to the particular job. In other words the person must be able
to perform the “inherent requirements” of the job.
It is worthwhile for employers to bear these issues of age discrimination
in mind, particularly during the recruitment and dismissal stages
of employment.
For further information about issues covered in this article,
please contact Sonia Albertini on 8210 1266 or E-mail: salbertini@normans.com.au.
Family Matters
As a clear “sign of the times” and of the increasing
focus on the importance of balancing work and family, a Work
and Family Test Case has been launched by the ACTU in the Australian
Industrial Relations Commission.
In response, the Australian Chamber of Commerce and Industry
(ACCI) recently released its Workplace Relationships And
Family Life: ACCI Work and Family Policy. The collective policy statement,
which was developed by the ACCI’s member organizations,
is intended as a guide for dealing with work and family issues
in the workplace.
Coupled with the Policy is the Information Kit and “Solutions
Package on the Work and Family Test Case. The package
of claims seeks variations to employment regulations governing
employees under federal awards across all industries, for example:
- Buying an extra 3.5 days leave rather than being paid a 17.5% leave loading;
- Purchasing up to 6 weeks extra leave through salary discounting;
- More flexible long service leave arrangements;
- Allowing part time and casual work in industries where it is not currently allowed;
- Time off in lieu of overtime payments;
- Agreements for greater use of sick leave for caring purposes.
A copy of the Package is available at www.acci.asn.au. The ACCI’s
paper is in response to the ACTU’s call for variations
to a number of awards across various industries, both public
and private sector. A decision by the AIRC on the Test Case is
expected in mid 2004.
For further information about issues covered in this article,
please contact Cecilia White on 8210 1286 or E-mail: cwhite@normans.com.au.
Seasons Greetings!
The Employment and Insurance Team at Norman Waterhouse would
like to wish you a very Merry Christmas, and a safe and happy
New Year.
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© Norman Waterhouse 2003. All Rights Reserved. You may not
reproduce all or any part of this newsletter without our prior
consent. Requests should be directed to the Editor of this newsletterCecelia
White.
Norman Waterhouse
Lawyers
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