What is keeping us up at night – at the moment

We often like to ask our clients, “what keeps them up at night?” The chances are that what keeps them up, is what keeps us up.

Mandatory vaccination policies and health orders

Many of our clients are navigating health orders in Victoria and New South Wales, and working out, in addition to their obligations under the health orders, what types of vaccination policies they can implement to apply to their entire workforce, particularly when they run operations across Australia. Are the circumstances in Western Australia the same as say, Victoria or New South Wales, in so far as the risk of getting COVID-19, and thus, does this impact the type of policy to be rolled out? Mandatory health orders and implementing a vaccination policy are also intertwined with privacy obligations and how employers are required to manage sensitive vaccination information. We are helping our clients work their way through the risks and the communications with staff.

New protections to dealing with sexual harassment

Recent legislative change means policies and training (for both employees and managers) need to be reviewed to ensure they account for these new protections. Put simply, the Fair Work Act now provides an avenue for an employee to go to the Fair Work Commission to seek an order to stop sexual harassment (similar to what exists for bullying). Sexual harassment has been expressly added as a valid reason for dismissal. The Commonwealth Sex Discrimination Act now has wider coverage, applying to members of Parliament, independent contractors, volunteers, interns and self-employed persons. Further, there is a new type of unlawful harassment, where it is based on sex. These types of complaints were not typically captured by “sex discrimination” or “sexual harassment” in the past. Now complaints that will be covered include:

  • asking intrusive personal questions based on a person’s sex
  • making inappropriate comments and jokes to a person based on their sex, and
  • displaying images which are sexist, misogynist or misandrist.

Whistleblower policies and complaints against senior employees

These policies are in the spotlight because ASIC has identified that many are not currently as compliant as they should be (see ASIC Commissioner Sean Hughes’ speech of 11 November 2021 here). Also a recent case in the headlines, regarding the potentially poor handling of a complaint of bullying brought by a CFO against a CEO, suggests boards need to continue to be educated about what is in their whistleblowing policies and what best practice complaint management looks like.

We have recently been working with boards to assist with the handling of (mostly bullying) complaints brought against CEOs, board members and senior executives. These situations require not only an understanding of the organisation’s policies, and how to fill the gaps that exist in some of those policies, but an astute understanding of the complexities and sensitivities for all concerned. We have seen these situations ratchet up quickly in other organisations, turning into tense and often high stakes combat. This does not need to be the case. Our Justitia approach utilises our skills acquired from our work as mediators and arbitrators, as well as workplace investigators, to help set up processes and conversations that avoid some (if not all) of the common fall out from these situations.

Mediation and alternative ways to resolve workplace disputes               

Justitia is an advocate of alternative dispute resolution. When briefed on litigious matters, we will always help clients examine all the alternatives. This may include inviting the parties into a facilitated discussion, formal mediation, or ‘without prejudice’ discussions. Some of our practitioners are sought out for Court litigation related mediation, or alternatively for mediation skills that require not only an employment lawyer’s touch, but a less formal and more compassionate disposition. It is always a case of horses for courses, and determining who is going to be the right fit for the particular set of issues. Our clients have access to our extensive network of trusted advisers, whether they be other employment lawyers (where we have a conflict), mediators or facilitators with counselling and/or psychology backgrounds, or other specialists (e.g. in governance, unincorporated associations, or HR consultants). We find that a multi-disciplinary approach can achieve fast, low cost outcomes for clients – as counter-intuitive as that may sound.

Casual employees

Back in March 2021, a new definition of casual employment was inserted into the Fair Work Act to provide a clear statutory definition. This was required to provide certainty about casual employment arrangements from commencement. Justitia has been drafting amendments to our client’s casual contracts of employment in light of the statutory changes to ensure that employers are not subject to future claims for employee entitlements reserved for permanent employees, such as annual leave, which we were seeing arise time and time again before the amendments to the Act. We have also seen issues arise where an enterprise agreement approved and operative before the amendments to the Fair Work Act does not incorporate the new definition of casual employment. Some clients will benefit from seeking assistance from the Fair Work Commission to vary a pre-existing agreement to deal with any difficulty or uncertainty in relation to the definition of casual employment.

The amending legislation also includes a statutory pathway to converting casual employment to permanent employment in certain situations.

If you would like to have a chat about your situation, or discuss a different approach, we welcome your call to any of our lawyers.

Sarah Rey, Managing Partner, can be contacted on (03) 8621 4500.