Issue 20 August 2004
EMPLOYMENT BRIEFLY
In this issue:
Redundancy Test Case
– Severance Pay Standards Increased
(Federal)
Further to our August 2003 edition of Briefly, the decision
of the Australian Industrial Relations Commission on the Redundancy
Test Case was handed down late in March this year, resulting
in substantial changes to the redundancy safety net for parties
bound by Federal awards.
Previously, the maximum standard for severance pay in Federal
awards was 8 weeks pay, after 4 years service. Following the
March decision, that has been increased to 16 weeks pay after
6 years service. Under this decision, entitlements will continue
to accrue until the completion of 10 years service, when the
entitlement "drops away" to 12 weeks pay (to take
into account an offset in respect of Federal long service leave
entitlements also payable to those employees with 10 years service).
The existing exemption of casual employees from severance pay
entitlements has been retained.
Obviously, this decision impacts most predominantly upon employers
bound by Federal awards. These employers should determine when
the new standard provisions commence operation in their award.
Whilst parties bound by State awards are not directly affected
by the standards, it may be that enterprise bargaining negotiations
with respect to redundancy entitlements will be influenced somewhat
in light of the new Federal standards.
Bad Tempered DJ Fined for Bullying
In a matter recently before the Ballarat Magistrates Court,
a radio announcer became the first individual in Victoria to
be convicted of a bullying charge that did not involve physical
violence.
The announcer, who pleaded guilty to failing to take reasonable
care for the health and safety of others in the workplace, was
dismissed and subsequently prosecuted following attacks on six
co-workers. He was found to have used foul and abusive language
towards co-workers, as well as having made threats of physical
violence to one co-worker. He claimed that his behaviour was
the result of his bad temper and frustration at being the "front
man" when mistakes went to air.
The Magistrate held that the allegations were of a serious nature
and convicted the DJ, who was fined $10,000.00 and ordered to
pay costs.
The case is an interesting one in terms of the way in which
the Victorian Occupational Health and Safety legislation was
utilised to prosecute an individual for verbal bullying (the
employer was also prosecuted). It may lead the way for similar
prosecutions not only in Victoria, but in South Australia under
the Occupational Health Safety and Welfare Act 1986 and in other
states.
Proposed Smoking Bans for SA Workplaces
The recent Tobacco Products Regulation (Further Restrictions)
Amendment Bill 2004 proposes to ban smoking in South Australian
workplaces, imposing fines not only on the offending smokers,
but also on the employer with responsibility for the workplace.
A "workplace" is given the same meaning in the Bill
as contained in the Occupational Health Safety and Welfare
Act 1986, namely any place where an employee or self employed
person works and includes any place where such a person goes
while at
work.
The proposed fine for individuals caught breaching the regulations
is $200, and $1250 for employers. There is a defence available
for employers, however, if they are able, firstly, to prove
that they did not provide anything designed to facilitate
smoking (such as cigarette vending machines, ashtrays, matches
and
lighters) and secondly, that either the employer was not
aware that the contravention was occurring, or that the employer
requested the person to stop smoking and informed that person
that they were committing an offence by doing so.
If the Bill is passed, employers will need to be mindful to
review their existing workplace smoking policies and workplace
signage to ensure that all employees and visitors to workplaces
are made aware of the consequences of smoking in the workplace
in contravention of the regulations. Further, employers should
also ensure that items such as matches, lighters and ashtrays
are not provided in the workplace.
We will keep readers informed of the progress of the Bill.
Not-so Candid Camera (NSW)
The draft Workplace Surveillance Bill 2004 recently released
for public comment by the NSW government proposes to prohibit
covert surveillance of employees by employers, when the surveillance
is conducted without notification to the employees.
However, under the draft Bill, employers may seek authorisation
from a magistrate to conduct covert surveillance for the purpose
of establishing whether or not an employee is engaged in unlawful
conduct.
The proposed legislation also prohibits employers from blocking
email and Internet access, unless this is done in accordance
with the employer's internal email and Internet policy.
However, the policy must be one of which employees have been
previously notified.
Essentially, the Bill focuses on the requirement of notification to employees of surveillance and Internet or email blocking,
and sets out a requirement for "visual prompts" in
order to provide that notification, such as a "pop up" on
employees' computer screens when logging on, or signage
in the workplace alerting employees to the fact that they may
be under surveillance.
The issue of the "privacy" of employees whilst at
work is becoming a significant issue for employers across the
country, and the introduction of such legislation in New South
Wales may lead the way for similar developments elsewhere.
A copy of the draft Bill can be found at
www.lawlink.nsw.gov.au/lap.nsf/files/Draft_Workplace_Surveillance_Bill.pdf
For further information about any issues covered in this issue
of the Briefly, please contact Ian Colgrave on 8210 1203 or icolgrave@normans.com.au,
Sonia Albertini on 8210 1266 or salbertini@normans.com.au or
Cecilia White on 8210 1286 or cwhite@normans.com.au.
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