Labour and employment law manual

157 Pages·2020·3.944 MB·English

by  Joydeep Hor, CCH Australia Limited,

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Cataloguing-in-Publication Data available through the National Library of Australia
First edition....................................2016
Second edition....................................2017
Third edition....................................2020
ISBN 978-1-922347-48-0
© 2020 CCH Australia Limited
All rights reserved. No part of this work covered by copyright may be reproduced or copied in any form or
by any means (graphic, electronic or mechanical, including photocopying, recording, recording taping, or
information retrieval systems) without the written permission of the publisher.
Preface
The Labour and Employment Law Manual is a unique book that deals with the complexity of Australian
HR legal issues in a highly practical way.
Through the use of case examples, flowcharts and checklists, in addition to a comprehensive legal
commentary, the Manual provides anyone dealing with people- related issues with the means to do so in
a strategic and legally compliant manner.
The Manual addresses people-related issues throughout the employment lifecycle including:
• recruitment and selection
• employment entitlements
• performance management
• conduct issues
• complaints and grievances
• ill and injured employees
• termination of employment
• dealing with third parties
• work, health and safety
• post-employment issues, and
• information, collection and management.
This third edition of the Manual has been updated to include some of the significant decisions and
legislation passed since the last edition. While 2020 has been dominated by the COVID-19 pandemic,
and the consequent introduction of legislation to assist employers to deal with it, that has not been the
only area of significant development in people management.
Some of the more pertinent areas in which employers will have to keep abreast of future developments as
gleaned from previous years include:
• the gig economy and the status of workers
• how causal employment is regulated
• working from home and its prevalence and pitfalls, and
• freedom of speech, particularly through social media.
I trust the Manual will provide its readers with a critical resource for dealing with people-related issues at a
complex and evolving time.
Joydeep Hor October 2020
Wolters Kluwer Acknowledgments
Wolters Kluwer wishes to thank the following who contributed to and supported this publication:
Director, General Manger, Research & Learning, Wolters Kluwer Asia Pacific: Lauren Ma
Head of Legal Content, Wolters Kluwer Australia: Carol Louw
Books Coordinator, Wolters Kluwer Asia Pacific: Alexandra Gonzalez
Marketing Executive, Wolters Kluwer Australia: Matt Davies
About the Author
Joydeep Hor is the Founder & Managing Principal of People + Culture Strategies.
Joydeep is a Graduate of Harvard Business School’s Owner-President Management Program and one of
Australia’s most high-profile lawyers and legal entrepreneurs. He is a Fellow of the Australian Human
Resources Institute and a Chartered Fellow of the UK’s CIPD.
The highly regarded “Who’s Who Legal: Labour, Employment & Benefits 2020 Edition” recognised
Joydeep as a Global Elite Thought Leader in this area of the law, one of only two lawyers in Australia and
six in the entire Asia-Pacific region. It says: “People + Culture Strategies’ ‘amazingly good lawyer’
Joydeep Hor is enthusiastically recommended by peers who describe him as ‘incredibly strategic: a lateral
thinker who is entrepreneurial in his approach, which clients appreciate’.”
Having completed his undergraduate studies at the University of Sydney where he majored in English
literature together with his Bachelor of Laws (with Honours) degree, Joydeep went on to complete a
Master of Laws at the same institution, focusing on labour and employment law. Joydeep has been
ranked as a leading lawyer in Chambers every year since 2010.
Joydeep started his career at one of Australia’s largest commercial law firms, before moving to a
specialist workplace relations firm where he was made an equity partner at the early age of 28. He was a
Managing Partner of that firm from 2005 to 2010. Joydeep’s first book Inside Employee Screening was
published in 1999 and he has authored several books since that time, including Managing Workplace
Behaviour, Managing Termination of Employment and Finders Keepers: A Guide to Attracting and
Retaining Great Employees. He has been a keynote speaker at countless conventions, conferences and
industry events and for many years has been appearing on television programs for Channel 7, the ABC,
Sky News and most recently on ausbiz.tv as a thought leader and commentator in his areas of expertise
(most videos are available in this site’s “Resources” section). Since 2016, Joydeep has represented
Australia at the prestigious International Forum on Employment Law and he regularly presents at
International Bar Association conferences. He is the only Australian lawyer to be invited to be on the
American Employment Law Council.
In July 2010, Joydeep founded PCS as a groundbreaking practice in the legal industry. PCS was
established to be unlike any other legal firm given its emphasis on working with its clients to prevent
disputation and legal problems arising within their organisations, as opposed to a mere “reactive”
provider. PCS now services hundreds of employers (with a strong reputation particularly in handling
sensitive employee separation issues, matters of workplace bullying and harassment and developing
strategic solutions to organisation’s people management challenges).
Glossary
AEC Australian Electoral Commission
ADAQ Anti-Discrimination Act 1991 (Qld)
ADCQ Anti-Discrimination Commission Queensland
AHRC Australian Human Rights Commission
APPs Australian Privacy Principles
CEPU Communications, Electrical, Plumbing Union
CFMEU Construction, Forestry, Maritime, Mining and Energy
Union
FW Act Fair Work Act 2009 (Cth)
FW Regulations Fair Work Regulations 2009 (Cth)
FWA Fair Work Australia
FWC Fair Work Commission
FWO Fair Work Ombudsman
IFA Individual Flexibility Arrangement
NES National Employment Standards
QCAT Queensland Civil and Administrative Tribunal
VCAT Victorian Civil and Administrative Tribunal
WHS Work Health and Safety
Recruitment and Selection
Introduction
Getting the recruitment and selection process right is crucial to building a strong team and culture within
any business. This Chapter highlights the legal issues and risks that an employer must consider in
recruiting and selecting employees including those relating to:
(a) designing a role
(b) drafting advertisements
(c) shortlisting applicants
(d) conducting interviews
(e) selecting successful applicants, and
(f) formulating appropriate employment contracts.
In focusing on the legal issues and risks in the recruitment and selection process, we do not intend to
detract from other issues and risks to which an employer may be exposed in connection with recruitment
and selection, including financial, commercial and reputational risks.
The legal risks referred to in this Chapter therefore should not be considered in a vacuum.
This Chapter also addresses the important distinction between engaging an employee or an independent
contractor to perform a particular role. The decision as to whether an employer engages a successful
candidate for a role as an employee or an independent contractor is one that should be made early in the
recruitment and selection process. There may be significant ramifications for a business if the intention is
to engage an independent contractor and that relationship is not established effectively.
Legal risks in recruitment and selection
There are a number of significant legal risks attaching to the recruitment and selection process that an
employer should be aware of and seek to manage at each stage of that process.
These risks include, but are not limited to:
(a) discrimination claims under the relevant discrimination legislation
(b) misleading representation claims under the Competition and Consumer Act 2010 (Cth) (Competition
and Consumer Act), and
(c) general protections (adverse action) claims under the FW Act.
These risks, how they may arise in each step of the recruitment and selection process and how they may
be managed, are discussed in further detail below.
Discrimination claims
Federal, State and Territory anti-discrimination laws prohibit an employer from engaging in discriminatory
conduct when advertising for positions, determining who should be offered employment and the terms
and conditions on which any offer of employment is made.
The grounds on which it is unlawful to discriminate against a person vary from state to state, but generally
include:
In addition, employers should be aware that there are a range of “other” prohibited grounds of
discrimination under Federal, State and Territory anti-discrimination laws. These grounds are set out in
the table below.
Also relevant to the recruitment and selection of employees is that some anti-discrimination legislation
provides that it is not unlawful to discriminate against a person who cannot perform the inherent
requirements of a particular position, subject to the obligation to make “reasonable adjustments” to enable
a person to perform the inherent requirements in certain circumstances. The “inherent requirements” of a
position are the essential activities of that position and the core duties that must be performed to fulfil the
position successfully.
A successful discrimination claim may result in damages being awarded against the employer.
Historically, the damages awarded in discrimination matters have, with notable exceptions, been relatively
low. However, decisions such as Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
and more recently, Hill v Hughes [2019] FCCA 1267 which both related to sexual harassment claims are
evidence that the courts and tribunals may be willing to award higher levels of damages as a deterrent to
this kind of conduct than they have previously.
Claims under the Competition and Consumer Act
In the context of recruitment and selection, the Competition and Consumer Act specifically provides that it
is unlawful for an employer to engage in conduct that is likely to mislead job applicants about the
availability, nature, terms or conditions of, or any other matter relating to, the employment.
The legislation also broadly prohibits any misleading or deceptive conduct or representation in connection
with offers of employment. Breaches of these provisions may result in the employer being ordered to pay
the relevant individual damages for any loss arising from that conduct or representation.
Case example
Competition and Consumer Act claims
Rakic v Johns Lyng Insurance Building Solutions (Vic) Pty Ltd (2016) FCA 430
Background
The employee was employed by Johns Lyng as a General Manager. During pre-employment negotiations, the employee was
offered a significantly reduced base salary in exchange for a 2.5% share of the business’ profits. The employee alleged that she left
her previous job, in which she was earning close to $100,000 more than the base rate offered by Johns Lyng, in reliance upon the
representations made by the business concerning its profitability. The employee alleged that Johns Lyng had engaged in misleading
and deceptive conduct in breach of s 18 and 31 of the Competition and Consumer Act.
Findings
The Supreme Court found that the business had engaged in misleading and deceptive conduct. Johns Lyng had made
representations that it was likely to “meet or exceed its profit or sales” from the previous two financial years. The court rejected the
submission that the business would escape liability if it demonstrated that employees acted reasonably in passing on information
they believed to be correct to the employee. Johns Lyng was ordered to pay $333,422 in damages in respect of the representations
it made to induce the employee’s entry into the contract. Additional damages of $16,529 were ordered in respect of the net profit
clause.
General protections claims
Under the FW Act, prospective employees may lodge a general protections claim if they feel that the
prospective employer has taken some form of adverse action against them (eg by refusing to employ
them or discriminating against them in the terms and conditions of employment that they are offered),
contrary to the protections that are afforded to them under that legislation.
The protections under the FW Act include protections in relation to:
(a) workplace rights
(b) discrimination, and
(c) participation in industrial activity.
The courts have broad discretion in relation to the orders they may make in successful general
protections claims, including but not limited to orders for reinstatement or compensation (including
compensation for hurt and humiliation).
Breaches of the general protections provisions of the FW Act may also result in monetary penalties being
ordered against the party responsible for the breach. As at the date of publication, the maximum penalties
for a breach of the relevant provisions of the FW Act are $66,600 for a body corporate, and $13,320 for
an individual.
Managing legal risks
The legal risks in relation to recruitment and selection identified above have the potential to arise at each
step of the process.
Some of the key aspects of the recruitment and selection process that may give rise to legal risks,
together with strategies that employers may adopt in managing those risks, are discussed below.
Role design
Role design is a crucial, and sometimes overlooked, aspect of the recruitment and selection process
when considering legal risks and how to manage those risks.
Once an employer has identified a need for a new role with their business, the role should then be
designed consistent with the business’ operational requirements. That process includes consideration of
the purpose and scope of the new role, and the inherent requirements of that role. It also involves
consideration of whether the role will be filled on a permanent, casual or contract basis. These
considerations will then typically form the basis for the position description and selection criteria for the
role.
More often than not, employers find themselves exposed to legal claims in respect of a recruitment and
selection process because the role and, in particular, the purpose and inherent requirements of that role,
have not been adequately defined from the outset. Consequently, these requirements may not be
communicated effectively to the relevant stakeholders, including the prospective employee, throughout
the process.
If an employer is able to identify and articulate the purpose of the role and develop a position description
and selection criteria that clearly distinguish the attributes, a successful applicant is required to have (the
“must-haves”) from those that the employer would merely prefer them to have (the “nice-to-haves”), this
will then assist in maintaining consistency in how the role is advertised, in how interviews are conducted
and in how successful candidates are selected.
The role design stage of the recruitment and selection process is also the appropriate time to consider
whether the role would be more appropriately performed by an employee or an independent contractor.
The distinction between employees and independent contractors, and the risks and benefits attaching to
each of those arrangements, is discussed in further detail later in this Chapter.
The nature of the legal relationship that the employer intends to create with the person who is engaged to
perform the new role, is a relevant consideration in the role design stage as, for example, the extent of the
control that the employer wishes to maintain over how and when the work is performed, may directly
impact on how that role is designed.
Tips for developing selection criteria
• To the extent possible, base selection criteria on objective facts, such as an applicant’s work experience and qualifications for
the role.
• Ensure the selection criteria and the position description created in respect of the role are consistent.
• Be clear on the purpose of the role, including how it is intended to fit within the organisational structure and what strategic
objectives attach to it.
• Be clear on the inherent or essential requirements of the role. Only the inherent requirements of a role should be considered in
determining an applicant’s ability to do the job, subject to “reasonable adjustments” being made where relevant.
• Consider whether application of, or reliance on, the selection criteria will or may result in discriminatory outcomes. If there is
likely to be a discriminatory outcome, is the criterion an inherent requirement of the role or, alternatively, are there exceptions
under anti-discrimination legislation that would apply?
• Ensure that the qualifications and experience attaching to the role can be justified with reference to the inherent requirements
of the role.
Advertising
Once the scope of the new role has been defined through the role design process, the next step is to
attract an appropriate candidate to fill that role.
This is typically achieved through job advertisements — either internal advertisements seeking
candidates from within the business, external advertisements (when the employer may be seeking to
widen the pool of potential candidates), or a combination of both.
In order to manage the legal risks associated with this aspect of the recruitment and selection process, it
is recommended that the content of the job advertisement be guided by the selection criteria developed in
the role design process, with the inherent requirements of the role featuring prominently.
Particular care should be taken when developing the job advertisement to:
• avoid the use of discriminatory language which may be in breach of anti-discrimination legislation
and/or legislation that otherwise prohibits discriminatory advertising, and
• avoid making statements about the role or the nature or benefits of employment with the employer
which could give rise to misleading representation claims under the Competition and Consumer Act if
the benefits do not actually crystallise.
Case example
Job advertisement
Gardener v Norcott [2004] QADT 39
Background
An advertisement appeared in a local newspaper for a chef, “CHEF [sic] REQ for day work, classy restaurant/coffee, young team.”
The complainant called the telephone number in the advertisement and spoke with the first respondent’s director, Ms Norcott. She
asked the complainant how old he was and he replied he was over 21. Ms Norcott said the complainant could drop off his resume at
the cafe, which he duly did. While there, Ms Norcott once again asked the complainant his age. He told her he was 46 years old.
The complaint’s application was unsuccessful, and he brought a complaint of unfair discrimination based on his age.
Findings
The Tribunal found that the wording of the advertisement together with Ms Norcott’s repeated enquiry of the complainant’s age was
evidence of the first respondent’s interest in his age to decide whether he would be offered the job. The Tribunal concluded that the
first respondent did treat the complainant less favourably in that process than if he had been a younger person in exactly the same
circumstances.
Recruitment process
Willmott v Woolworths [2014] QCAT 601
Background
While applying for a position in a local petrol station, Mr Willmott noticed that Woolworths required applicants to provide their gender,
date of birth and upload proof of their right to work in Australia.
Mr Willmott, offended by these questions, did not complete the application. Mr Willmott later lodged a complaint with the ADCQ who
referred the complaint to the QCAT.
Woolworths argued that this information was necessary for several reasons:
• it was a requirement for employees to be over the age of 18 to sell cigarettes and alcohol
• the employee’s date of birth was needed to determine their rate of pay
• the employee’s gender was required to fulfil obligations under a government initiative to gather statistics on the gender of
applicants, and
• it required right-to-work documentation in order to comply with migration legislation.
Findings
Woolworths’ arguments were rejected by the Tribunal, which held that knowledge of an applicant’s gender or specific age was not
reasonably required. The Tribunal stated that Woolworths could have inferred the applicant’s gender based on their name and could
have simply asked whether the applicant was over 18, if this information was relevant to the role.
Tips for job advertisements
• Use gender neutral terms to describe an occupation where available (“mailperson” not “mailman”).
• Use the selection criteria in the job advertisement, clearly distinguishing between inherent requirements of the role and
preferred attributes of the applicants.
• Do not request photographs or other information that does not directly relate to the position, cannot reasonably be inferred or
otherwise be asked in a non-specific way.
• Avoid references to the age of an applicant unless it is an inherent requirement of the position and, even then, care should be
taken to ask non-specific questions that relate to the role (eg whether the applicant falls within a particular age bracket).
• Consider how and where the position should be advertised to reach the broadest range of target applicants, including but not
limited to the medium or platform to be used.
Shortlisting applicants
Once the closing date for applications for the role has passed, an employer must then assess the
applications and, where necessary, make a decision as to which applicants to shortlist for interview, if
interviews form part of the assessment process.
To avoid discrimination, or a perception of discriminatory behaviour in connection with that shortlisting
process, an employer should assess the applicant’s skills and qualifications objectively against the
selection criteria published in the job advertisement and reflected in any position description.
Where there is a need to consider subjective criteria in the shortlisting process, it is important that those
undertaking the assessment are clear as to why these criteria are relevant and why the employer has
chosen to apply those criteria in the manner that they have, in selecting candidates for the shortlist
(including the weight they give to these criteria in their decision-making).
Assessing applicants for a role
The process of assessing applicants for a role is another aspect of the recruitment and selection process
that is inherently risky for an employer, and which requires awareness and acknowledgement of the risks,
and careful and deliberate planning to ensure the risks are appropriately managed.
Areas of particular risk for an employer in relation to the assessment process are:
(a) the assessment process itself, and whether that process may result in discriminatory outcomes
(b) if interviews form part of the assessment process, the questions that are asked of applicants, and
(c) statements made by those conducting the assessment process on behalf of the employer in
explaining the role, or in response to queries from applicants about the role and the terms and
conditions attaching to that role and/or employment with the employer more generally.
The assessment process
In determining the process for assessing potential applicants for a role (whether it be by way of interviews
or a more comprehensive assessment process), an employer must consider whether that process may
result in discriminatory outcomes amongst the potential applicant base. This is particularly the case if the
assessment process is likely to involve assessment of applicants against subjective selection criteria (eg
an applicant’s “cultural fit” with the employer).
The following case provides a useful example of the risks to an employer in not appropriately considering
the impact of the assessment process.
Case example
Assessment processes
Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 75
Background
Eight female applicants aged between 36 and 56 unsuccessfully applied for cabin crew positions with Virgin. They argued before the
Queensland Anti-Discrimination Tribunal that Virgin had used a subjective assessment process that had the impact of discriminating
against applicants aged over 35. The selection process included a behavioural competency test known as “Virgin flair” which tested
the applicants’ skills to make the flying experience fun for the customer. It required applicants to prepare and perform a dramatic
routine in front of the assessors. The applicants argued the interview process caused the assessors unconsciously to prefer younger
applicants to older applicants. The statistics indicated that out of more than 750 people aged over 35 who had applied for the cabin
crew position during the survey period, only one applicant (aged 36) was successful.
Findings
The Tribunal concluded the assessment process had the effect of discriminating on the basis of age. The employees involved in the
selection process tended to be young and lacked sufficient training, and appeared to identify people in their own age group as more
likely to have “Virgin flair”. Virgin did not cross check whether older applicants with the behavioural competencies it was seeking
were being rejected. Therefore, it could not demonstrate that the process worked as it was intended to. On appeal to the
Queensland Supreme Court, the Tribunal decision was upheld and the airline’s appeal dismissed. The behavioural competency test
was not inherently discriminatory; however, it had the effect of indirectly discriminating against the applicants on the basis of age.
Interview questions
To manage this potential area of risk, an employer must take care to ensure that questions asked of
applicants during interviews conducted as part of an assessment process are relevant and appropriate to
the nature and requirements of the role.
In particular, any question that relates to a protected ground can give rise to a complaint of discrimination
and should be avoided unless it relates to an inherent requirement of the job. If the process has been
designed correctly, then these matters would likely have been ascertained in the earlier stages of the
recruitment and selection process including, but not limited to, any advertising.
Examples of interview questions that may be asked of applicants, together with examples of questions
that should be avoided, are set out in the “Tips” below.
As a matter of best practice, it is recommended that the same questions are asked of all applicants for the
same role, and that an employer keeps a written record of the responses provided by each applicant to
those questions. If additional questions are asked during the interview, they too should be noted on the
written record for completeness.
Employers should carefully plan interview questions to ensure that they do not discriminate unintentionally
against applicants.
Tips for interview questions
Questions should not be directed towards a Questions should instead be directed towards
prohibited ground, eg: the specific requirements of the position, eg:
✕ How old are you? This role will from time-to-time require late
nights and weekend work (or refer to other
✕ What sex are you?
more relevant inherent requirements of the
✕ Are you married? Are you single? ✓ position). Would you have any difficulty in
meeting these requirements?
✕ Do you have any children?