Webinar – Having Difficult Conversations Highlights

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We held a webinar last week on ‘having difficult conversations’ with your staff. We’ve shared the top three snippets here!

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Susanna Ritchie

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compliance

Discrimination In The Workplace

Recent conversations around workplace discrimination have taken on more complex tones, reflecting a broader understanding of what it means to foster an inclusive and equitable work environment. In Victoria, the landscape of workplace discrimination is shaped significantly by the Equal Opportunity Act 2010, which clearly defines and prohibits discrimination on the basis of 18 personal characteristics. This legislation, coupled with federal laws, serves as a cornerstone for protecting employees from unfair treatment. However, the distinction between lawful and unlawful discrimination can often be complex, leaving many employees and employers navigating a grey area. The Legal Backdrop Central to Victoria’s strategy against workplace discrimination is the Equal Opportunity Act 2010. This Act highlights protected attributes, such as race, gender, age, and disability. Federally, similar protections exist, reinforcing the rights of individuals across all states and territories. However, arming oneself with just this knowledge isn’t enough. The real-world application of these laws is where the true complexity lies. Not all acts of differential treatment are considered discrimination under the law. For instance, a boss’ performance review or the delegation of tedious tasks, while possibly unfair, doesn’t automatically wave the flag of unlawful discrimination unless it’s explicitly tied to a protected characteristic. Different Treatment vs. Discrimination One of the most challenging aspects of addressing discrimination in the workplace is discerning between simple differences in treatment and actual discriminatory practices. Lawful differentiation in treatment at work often revolves around legitimate business needs, such as performance management processes or task delegation based on skills and job requirements. These actions become problematic only when they are applied inconsistently and are motivated by one of the protected characteristics. This nuanced understanding requires a thorough comprehension of both the intent and the impact of actions within the workplace. The Role of Education and Awareness Navigating the complex terrain of discrimination requires a commitment to continuous education and awareness. Employers need to be proactive in educating their staff about what constitutes discrimination and what does not. Regular training sessions, updated HR policies, and clear, accessible reporting mechanisms can all help create an environment where all employees feel valued and respected. Further, fostering an inclusive culture goes beyond legal compliance. It involves nurturing a workplace where diversity is celebrated, and individuals can flourish without fear of marginalisation for their inherent traits. This culture shift requires continuous effort and commitment from all levels of the organisation. The Way Forward The path towards a truly non-discriminatory workplace is ongoing. Employees and employers alike should actively engage with these issues, challenging their own biases and strive towards more equitable practices. It’s vital for everyone, from the boardroom to the break room, to engage thoughtfully with these concepts to cultivate not just a legally compliant, but a genuinely inclusive, workplace. Workplace Wizards’ consultants and lawyers bring years of expertise in developing comprehensive workplace policies tailored to promote equality and prevent discrimination. We provide guidance to employees and managers on understanding their responsibilities and options in fostering inclusive, respectful environments. Our support includes creating policies that align with legal and modern award obligations, covering areas such as confidentiality, disciplinary procedures, and other critical aspects. Additionally, we can help refresh your understanding with our engaging training sessions on fair treatment at work, featuring real-life scenarios and case studies presented by experienced professionals. For a quick, no-obligation consultation about how we can help your business with this matter, call Workplace Wizards today on 03 9087 6949 today or email at support@workplacewizards.com.au. Our team of Melbourne based employment contract lawyers and consultants can answer your queries, explain the particulars of employment contracts, and discuss what actions your business could be taking.

Harrini Ratnanesan November 15, 2024

compliance

Say Cheese! Understanding Privacy and Surveillance In The Workplace

In the digital age, privacy often feels like a quaint relic of a bygone era. With cameras virtually everywhere and data being traded like currency, understanding the landscape of workplace privacy can feel complicated (to say the least). In this blog, we’re taking a peek behind the lens into the nitty-gritty of privacy law in Australia and understand what’s really allowed in the workplace. The Surveillance Umbrella (this is why it’s complicated folks!) Workplace surveillance isn’t just about security cameras or monitoring emails; it’s an umbrella that covers a variety of monitoring methods, each with its own set of rules and implications. From CCTV in communal areas to tracking software on company devices, the extent and nature of surveillance can vary widely, and so do the privacy expectations. The Legal Snapshot There are a few different pieces of legislation that govern privacy and surveillance in the workplace. How they apply depends on the size of your organisation, the nature of your business and sometimes even your turnover. Some of the rules apply to everyone, some of the rules don’t. However, we know laws don’t always keep up with employee and stakeholder expectations so, even if the laws don’t apply strictly to you, they might one day soon and it’s best to try to avoid a PR nightmare. Federal Legislation Privacy Act 1988 (Cth): This is the primary legislation regulating the handling of personal information about individuals. It includes the Australian Privacy Principles (APPs) which set out standards, rights, and obligations around collecting, using, and disclosing personal information. Fair Work Act 2009 (Cth): While primarily focused on employment terms and conditions, this act also contains provisions that relate to workplace surveillance and privacy, particularly around the use of personal information in employment records. Telecommunications (Interception and Access) Act 1979 (Cth): This act governs the interception of telecommunications and imposes restrictions on the monitoring of phone and internet communications. State and Territory Legislation Each Australian state and territory has its own legislation related to workplace surveillance and privacy which includes: Workplace Surveillance Act 2005 (NSW): This act regulates the use of surveillance devices in the workplace, including cameras, computer surveillance, and tracking devices. Surveillance Devices Act 1999 (Vic): This act regulates the installation, use, and maintenance of surveillance devices such as listening devices, optical surveillance devices, and tracking devices. Invasion of Privacy Act 1971 (Qld): This act deals with the use of listening devices to overhear, record, monitor, or listen to private conversations. Surveillance Devices Act 1998 (WA): This act regulates the use of listening, optical, tracking, and data surveillance devices. Listening and Surveillance Devices Act 1972 (SA): This act regulates the use of listening and surveillance devices, with specific provisions related to workplace monitoring. Listening Devices Act 1991 (Tas): This act governs the use of listening devices to overhear, record, monitor, or listen to private conversations. Workplace Privacy Act 2011 (ACT): This act provides specific regulations regarding the monitoring of employees in the workplace, including computer, camera, and tracking surveillance. Surveillance Devices Act 2007 (NT): This act regulates the use of surveillance devices, including listening, optical, tracking, and data surveillance devices. Other Relevant Legislation Spam Act 2003 (Cth): This act regulates the sending of commercial electronic messages and has implications for workplace communications. Data Retention Act 2015 (Cth) (amending the Telecommunications (Interception and Access) Act 1979): This act mandates the retention of certain types of telecommunications data by service providers, which can affect workplace surveillance and privacy. The Law, Simplified: What Can Employers Do? Under the Privacy Act 1988, employers are allowed to collect personal information necessary for employment purposes, such as employment history, contact information, and financial details. This collection must be conducted transparently, with employers informing employees about the reasons for collecting their information and how it will be used. Employers may monitor workplace communications, including emails and phone calls, to ensure resources are used properly for legitimate business purposes, as long as they comply with the Telecommunications (Interception and Access) Act 1979 and have appropriate policies in place. Surveillance measures such as video surveillance and data monitoring can also be implemented, provided they adhere to the relevant privacy principles and any applicable state or territory legislation regarding workplace surveillance. What Can’t Employers Do? The interception or monitoring of private communications without consent is strictly prohibited under the Telecommunications (Interception and Access) Act 1979. This means employers cannot access private phone conversations or personal emails without lawful grounds and necessary consents. According to the Privacy Act 1988, improperly disclosing personal information without the individual’s consent is prohibited, except where required by law. Employers must refrain from sharing sensitive information both within and outside the organisation without appropriate authorisation. Employers must also ensure that any surveillance conducted is not overly intrusive and respects the reasonable expectations of privacy that employees might have, particularly in sensitive areas such as bathrooms or changing rooms. But it’s never that simple is it….. There are a fair few situations which require a more nuanced and case by case approach to understand whether it’s legally permissible or not. For example, the use of data surveillance to monitor employee performance is legally permissible but requires careful balancing of legitimate business interests against employee privacy rights. Employers must ensure they are transparent about the extent and nature of monitoring. When investigating alleged misconduct, employers must carefully consider the privacy rights of employees while gathering necessary evidence. This often requires a tailored approach based on the specifics of each case and should be guided by legal advice. While many surveillance practices can be legally implemented with adequate policy disclosure, certain types of monitoring might still require explicit consent from employees, depending on the nature of the information being monitored and the context in which it is collected. To ensure compliance with these complex legal requirements, employers are encouraged to develop and communicate clear policies, provide training about these policies to all employees, and seek legal counsel when dealing with intricate cases involving privacy and surveillance. Let’s look

Harrini Ratnanesan November 12, 2024

EBAs

What’s involved in negotiating an Enterprise Bargaining Agreement?

Want to seize control of your employment arrangements? Unfamiliar with concepts such as good faith bargaining, compulsory arbitration and the “Better Off Overall” test? With new significant civil penalties contained in the Fair Work Act 2009 (Cth) (Fair Work Act), it pays not to risk ‘going it alone’ within enterprise bargaining. What is an Enterprise Bargaining Agreement (EBA)? Enterprise bargaining is the negotiation process between management, employees and their bargaining representatives (say, a trade union official) with the goal of striking terms for an enterprise agreement (EBA). An EBA is a document registered with the federal employment tribunal setting out the terms and conditions of employment between a group of employees and their employer. The Fair Work Act establishes a set of clear rules and obligations about how the bargaining process should occur, including rules about bargaining (including the conduct of those negotiating the deal), the EBA content which must (and must not) be included, and how an agreement is made and approved. There have been important changes recently to enterprise bargaining under the Fair Work Act. Notably, the Secure Jobs, Better Pay legislation introduced in 2022 made several updates to streamline the process and ensure fairness. These include: Greater flexibility in the Better Off Overall Test (BOOT), allowing the Fair Work Commission (FWC) to assess agreements as a whole rather than on a clause-by-clause basis. This ensures employees are still better off overall than under their modern award, but simplifies the process for employers Franchisee Collective Bargaining, introduced in 2024, allows multiple franchisees under the same franchisor to negotiate a single enterprise agreement together, making it easier for franchise-based businesses to streamline negotiations How long does it take to negotiate an EBA? Under the Fair Work Act, there are a number of steps an employer must follow to get an enterprise bargaining agreement from initiation to completion. The average enterprise bargaining process is about 8 – 10 meetings from ‘cradle to grave’, and takes at least 2-3 months. Planning for success means doing the work ‘up front’ so that an employer’s management team are prepared for an efficient, productive and focused EBA negotiation. Some structured and organised planning will save managers countless hours and tens of thousands of dollars during the negotiation itself. What are the steps in negotiating an EBA? There are usually 12‐steps involved in getting an agreement to assessment and approval stage: 1. Initiating bargaining Bargaining for the agreement needs to be formally initiated/ agreed to – known as “notification time”. 2. Giving “notice of employee representational rights” to employees Within 14 days of the notification time, an employer must take all reasonable steps to give notice to employees through a “Notice of Employee Representational Rights” (“NERR”). Specific requirements for the NERR are listed in the FW Act and include, for example, informing employees of their right to be represented by a bargaining representative during the negotiations. 3. Determining who the bargaining agents will be The relevant trade union will likely be the ‘default’ bargaining agent for employers unless other bargaining agents are identified. There are strict requirements in the FW Act about a party not being able to refuse to recognise or bargain with another bargaining agent. 4. Striking a deal This crucial step involves the parties sitting down at the bargaining table, trading ideas and reaching an in-principle deal. Once done, if these ideas can be codified into agreement terms then the parties can process to the next step 5. Keeping employees informed Throughout the negotiation, employers are required to give ongoing access to a copy of the proposed agreement and other material incorporated by reference into the agreement (i.e. policies or procedures or the underlying modern award) to employees throughout the process and prior to them voting on the EBA. 6. Explaining key terms Key terms must be explained to “vulnerable employees” such as employees from culturally and linguistically diverse backgrounds, young employees and/or employees who do not have a bargaining representative for the agreement. This includes taking reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained. The explanation needs to provided in an “appropriate manner” for each group of vulnerable employees (such as in multiple languages, or in both verbal and written form). 7. Reaching agreement An employer must be able to demonstrate employees “genuinely agree” to the agreement they are being asked to approve (vote up). 8. Requesting a vote The employer can request employees to vote under the agreement (but must ensure it is seven days or more after providing the agreement, and 21 days or more after providing the NERR to employees). 9. Getting a majority vote in favour of the proposed agreement If an employer has requested a vote by employees on the proposed agreement, if a majority of the employees who vote (not a majority of the employees who are covered by the enterprise agreement) cast a vote to approve the agreement, the vote is successful! Single enterprise agreements are considered to be “made” from this step and no damaging industrial action (such as strikes or work bans) are possible from now. 10. Applying for Fair Work Commission (FWC) approval Within 14 days of the agreement being “made”, a bargaining representative can then apply to the FWC for approval of the agreement, attaching a signed copy of the agreement and relevant declarations and signatures. 11. FWC approval Before the FWC will approve an agreement, it must be satisfied of various requirements, including: the agreement contains the applicable “mandatory terms” (such as a flexibility term allowing for individual flexibility arrangements and a consultation term); the agreement deals only with “permitted matters”; the agreement does not contain “unlawful content” (such as discriminatory clauses, or clauses dealing with unfair dismissal rights, right of entry rights and conditions or OH&S rights other than those in accordance with State laws); the agreement passes the “Better Off Overall Test” (“BOOT”) in that each employee is better off overall by entering into the agreement versus the underlying Award;

Susanna Ritchie September 23, 2024