INDUSTRIAL RELATIONS
Local Government Workers in NSW to be 'De-Corporatised'
The Rees Government has introduced legislation to de-corporatise councils.

The Local Government Amendment (Legal Status) Bill 2008, among other things, removes the possibility that a council might be characterised as a constitutional corporation and therefore as an employer pursuant to the Workplace Relations Act 1996 (Cth).

We will keep you informed of the progress of the legislation through Parliament.

OCCUPATIONAL HEALTH & SAFETY
OHS Risk & Employee Language Barriers
In July this year, a Victorian employer was prosecuted and fined $100,000 by WorkSafe Victoria for failing to provide safe plant and safe systems of work, and for failing to provide the necessary information, instruction, training and supervision to enable workers to work safely.

At the Victorian factory, two Chinese workers, employed under s.457 work visas, and who spoke minimal English, were injured whilst at work.  In the first incident, a worker’s arm was crushed in an unguarded printing press.  The second incident involved another worker who had both his arms broken – his right wrist was broken when he fell off a ladder, and then on his return to work he suffered a second broken left wrist when he was instructed by the employer to undertake work using a two-handed drill.

What Have We Learned?
This Victorian case reminds us that proactive risk management extends not only to minimising the risks of unsafe plant and equipment but also to the risks associated with the language barriers (and related competencies and skills) of workers with limited English language skills.

The case also highlights the importance of both supervision and instruction of foreign workers – they need instruction in their own language if necessary and they must be supervised.  Non-English speaking workers may not fully understand Australia’s safety requirements and are at a disadvantage because of their cultural background and/or circumstances of employment.

If you would like more information on how to go about proactively managing language risks in your business, contact Workplace Law.

EMPLOYMENT
Facebook & MySpace - Implications for Employers

Example 1:
A story recently reported in the media highlights some of the modern perils associated with websites such as Facebook and MySpace.

The story starts innocently enough with the worker telling his employer AAPT that he was sick and would not be coming into work.  Unfortunately the employee made the mistake of then logging onto his Facebook page and posting that he was “still trashed… sickie … woo!!”  His manager at AAPT saw the post on his Facebook page and then e-mailed the employee and asked him to provide a medical certificate confirming his reason for his sick leave.

The employee tried to be to clever and responded by telling his manager that he would not be producing a medical certificate because his contract stated that for one day’s leave of absence a medial certificate was not required.  The employee said that he was simply on leave “for medical reasons”.

His manager replied that the one day of leave was for “genuine medical reasons” only.  His manager than advised the worker that leave would not be granted for that one day because the company had determined that his leave was not due to genuine medical reasons.

Still unaware that his employer knew about what was posted on his Facebook page the employee remained defiant saying that his leave was for medical reasons and that in the absence of proof otherwise his leave should be approved as requested.

The employee then became aware that management knew about his post on his Facebook page.  The employee confessed that he had been “sprung” leading to an internal investigation by the employer into the whole incident.

Lessons to Learn
Facebook and MySpace are not as private as some may think - they are social networking sites for anyone to use … so privacy is difficult to protect.

Employees should be careful about what they actually post on the social networking sites.

Employers now have another method of checking up on their employees, particularly in situations where the employee calls in sick or absent from work for unexplained reasons.

Example 2:
Virgin Atlantic recently sacked 13 cabin staff for criticising the company and making derogatory comments about some of its passengers.

After investigating the comments posted by the staff on Facebook, Virgin decided that the staff had broken company policies.  Virgin was of the opinion that the comments and discussion on Facebook brought the company into disrepute and insulted some passengers.  The company went on to say that whilst there was a time and place for Facebook it was not to be used to criticise the company or its customers.

Food for Thought
You may want to review your policies and update them to take into account the use of Facebook, MySpace, Blogs and other new technology by your staff.  If you require assistance please contact us.

Flexible Working Arrangements

As we have already discussed in previous e-updates, the Rudd Government has proposed that from 1 January 2010 under the new NES, employers will no longer be able to unreasonably refuse to let workers (who are “parents”) vary their hours, if their children are under five years of age.

We can now advise that the Victorian government has recently extended the right of flexible work to parents, guardians and carers – irrespective of the age of the dependents in their care.  Consequently, Victorian employers now have an obligation  to accommodate such requests, rather than the previous requirement to make sure that such workers are not discriminated against on the grounds of parental or carers responsibilities.

Under the new legislation, Victorian employers must give serious consideration to requests for changes of:

• hours of work;
• break times;
• rosters;
• overtime;
• leave arrangements;
• the scheduling of staff meetings;
• work travel
• work location; and
• access to other work areas.

DISCRIMINATION
Complaints of Disability Discrimination on the Increase
The Australian Human Rights Commission (AHRC) (formerly known as the Human Rights and Equal Opportunity Commission - HREOC) 2007-2008 Annual Report shows that complaints about disability discrimination rose higher than any other category of discrimination.  The Disability Discrimination Act 1992 (Cth) (the DDA) makes disability discrimination unlawful and aims to promote equal opportunity and access for people with disabilities.

One of the roles of the AHRC is the investigation and conciliation of complaints of alleged discrimination in the areas of sex, race, age and disability, as well as breaches under the Federal Human Rights and Equal Opportunity Commission Act 1986 (Cth).

Complaints to the AHRC have risen by 17% on last year, with disability discrimination complaints far exceeding all other categories.  The Report indicates that of the 2,077 complaints received, 48% were lodged under the DDA – more than twice the complaints lodged under the Sex Discrimination Act 1984 (Cth).  Of the remaining complaints made, 18% related to racial discrimination and 6% to age discrimination.

Of all the issues raised in complaints received by the AHRC, one of the biggest relates to unfair dismissals and industrial matters.

Increase in Damages to Victims of Discrimination in NSW
This month saw the amendments to the Anti-Discrimination Act 1997 pass through the NSW Parliament.  Consequently, the NSW Attorney General John Hatzistergos was able to announce an increase in the maximum amount of compensation to be awarded to victims of unlawful discrimination by the Administrative Decisions Tribunal (the ADT).

If the Tribunal finds an individual has suffered discrimination, such as on the basis of gender, sexuality, disability or race, up to $100,000 in compensation could be awarded.  This is a significant increase (from the previous cap of $40,000) in the maximum amount that can be awarded to victims and will better reflect the seriousness of the consequences of discrimination.  Such an increase will also reinforce the importance of ensuring that discriminatory conduct will not be tolerated in NSW.

WORKERS COMPENSATION
Social networking sites (as discussed in “Employment” above) can also be used in workers compensation matters.

For example, if a worker gives a statement saying that he does not perform certain sporting activities or does not socialise much due to an alleged injury, then looking at a MySpace or Facebook page may often reveal what the worker has actually been doing.

These sites encourage users to talk about what they have been doing, who they have been seeing and things that interest them as part of their “Profile”.  This can be very useful to compromise a worker’s creditability.

JOKE OF THE MONTH
If you've ever worked for a boss that reacts before getting the facts and thinking things through, you will love this!

A large company, feeling it was time for a shake-up, hired a new CEO.  The new boss was determined to rid the company of all slackers.

On a tour of the facilities, the CEO noticed a guy leaning on a wall.  The room was full of workers and he wanted to let them know that he meant business.

He walked up to the guy leaning against the wall and asked, "How much money do you make a week?"

A little surprised, the young man looked at him and replied, "I make $400 a week.  Why?"

The CEO then handed the guy $1,600 in cash and screamed, "Here's four weeks' pay, now GET OUT and don't come back.”

Feeling pretty good about himself, the CEO looked around the room and asked, "Does anyone want to tell me what that goof-ball did here?"

From across the room came a voice, "Pizza delivery guy from Domino's!”