Australia introduces unpaid domestic and family violence leave into Modern Awards

Employees in Australia, to whom a Modern Award applies, now have access to 5 days unpaid domestic and family violence leave a year, following a ruling made by the Fair Work Commission earlier this year as part of its four-yearly review.

All Modern Awards have now been amended to include a new clause about family and domestic violence.  The clause, which came into effect on 1 August 2018, provides that unpaid leave may be taken by an employee if they are experiencing domestic and family violence and need to deal with the impact of such violence – such as, making arrangement for their safety or the safety of their children or to attend court hearings – in circumstances where it is impractical for them to do so outside of their ordinary hours of work.

The entitlement to 5 days leave is available in full for all employees (including part-time and casual employees) at the commencement of each 12 month period of the employee’s employment, rather than accruing progressively during the year of service or being calculated on a pro-rata basis based on hours of work, and will not accumulate from year to year.

While there is currently no entitlement to domestic and family violence leave under the Fair Work Act 2009, the Federal Government has indicated an intention to amend the Fair Work Act 2009 in line with the new clause inserted into Modern Awards to ensure that the entitlement to unpaid domestic and family violence leave can be accessed by all national system employees.

Cannabis and the U.S. border – a complex relationship

Recreational cannabis will become legal in Canada effective October 17, 2018.  However, taking cannabis or any product containing cannabis (whether medicinal or recreational) across Canada’s international borders will remain illegal and can result in serious criminal penalties both domestically and abroad.  This prohibition applies equally to individuals travelling to or from a jurisdiction where cannabis has been legalized or decriminalized.

Cannabis is illegal in most countries.  As such, the Government of Canada has warned that previous use of cannabis, or any substance prohibited by local law, could result in a traveller’s being denied entry to their destination country.

In addition, the United States Customs and Border Protection has issued a Statement on Canada’s Legalization of Marijuana and Crossing the Border (the “Statement”) advising that “although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production, and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law”.  The Statement further advises that “working in or facilitating the proliferation of the legal marijuana industry in U.S. states where it is deemed legal or Canada may affect admissibility to the U.S.” Media reports  indicate that individuals with investments in the cannabis industry have been denied entry to the United States as a result.

The Government of Canada has accordingly warned: “Even after cannabis is legalized in Canada, do not attempt to cross the Canada-U.S. border with any amount of cannabis in any form, even if you are travelling to a U.S. state that has legalized possession of cannabis.  If you do so, you can expect legal prosecution and fines, and possibly jail time.”

Companies with employees who travel internationally as a condition of their employment should consider advising such employees of these developments by way of an amendment to an existing workplace drug and alcohol policy or a standalone notification.  The advisory should warn that any employees who are denied entry at an international border for violating cannabis-related immigration laws may be subject to administrative or disciplinary action including the deemed frustration of employment or discipline up to and including termination of employment for cause.  Encourage employees requiring accommodation to communicate their needs and restrictions forthwith and prior to engaging in any business-related cross-border travel.

Direct Discrimination – how far can this go?

The recent case of Lee v Ashers Baking Company Limited and Others has hit the headlines in looking at what amounts to direct discrimination in terms of the provision of services to individuals.  What effect does this case have on discrimination in the employment field?

The case involved a family owned bakery, whose owners strict religious beliefs include opposition to gay marriage. They were asked to provide a customised cake with a photograph and wording stating “Support Gay Marriage”.  They cancelled the order due to their religious belief and provided a refund to the customer.

The individual brought a discrimination claim on the basis of direct discrimination on grounds of sexual orientation and political belief. He was successful at first instance and at the Court of Appeal. However, the Supreme Court in the UK has now overruled those decisions and held that it is not directly discriminatory for an organisation to refuse to provide a service supportive of a belief contrary to their own beliefs.

The Supreme Court held that the baker’s refusal was not because of the individual’s sexual orientation – that was irrelevant to their decision. The reason for the less favourable treatment was the message that the individual wanted to have iced on the cake.  The individual also sought to claim that the refusal was a case of associative discrimination.  Associative discrimination arises where there is discrimination against the individual because of their association with a certain group or community and the protected personal characteristic within that community.  Again, the argument was that the discrimination was not with a particular person or discrimination due to that association it was related to the message. As such, the individual did not succeed in his claim for discrimination on the basis of sexual orientation.

The court also considered discrimination in relation to political belief and in particular considered Articles 9 (freedom of religion and belief) and 10 (freedom of expression) of the European Convention on Human Rights. The Court agreed that obliging a person to manifest a belief which they do not hold is a limitation on their article 9 rights.  The right to freedom of expression in Article 10 includes a right not to express an opinion.  As such, the bakers could not be obliged to supply a cake with a message with which they profoundly disagreed.

The court did make it clear that there is a clear distinction between an objection to a message and an objection to the customer who wants to support that message. The court made it clear in their judgement that they did not seek to minimise or disparage the very real problem of discrimination against gay people.  However, this shows the difficulty in balancing the different beliefs of parties in transactions.

How does this affect employment law?

Where a service is being provided it may be possible to draw a distinction between the individual and the service being provided. However what happens if an employee refuses to provide services on the basis of their political beliefs or religious beliefs?  In Ladele v London Borough of Islington [2010] a Christian registrar refused to carry out civil partnership ceremonies on the basis that same sex relationships were contrary to her religious beliefs.  The council disciplined the registrar and she failed in her claim for direct discrimination on the basis that her comparator, would have been treated the same way.  The registrar also brought a claim to the European Court of Human Rights based on Article 9 and Article 14 (that the rights and freedom set out in the convention shall be secured without discrimination).  However, the majority of the court held that the Council’s requirement for all registrars to conduct civil partnerships was legitimate and proportionate and the courts allow a wide margin of appreciation when balancing competing convention rights.

The recent bakery case shows that balancing opposing rights continues to be an issue, not only in the provision of services, but also in employment.

Workplace relations under a Federal Labor Government

A federal election is due by mid-2019 and it is shaping up to be one where, for the first time in a long time, there might actually be substantive differences between the employment and labour policies of the Labor Party and those of the Liberal National Coalition. Were Labor to win, and have a Senate that is more amenable to its workplace relations policies than the current Senate is to the Coalition Government’s policies, what might this mean for Australia’s employers and 12.5 million workers?

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Employee rights on bereavement

In the UK, compassionate leave for employees in the event of bereavement has until now been dealt with by way of employment policies. There have been no specific legal rights on bereavement, whether in relation to the death of a family member or anyone else close to the employee. Any rights which they have to leave and/or pay in these circumstances are dependent on what is agreed with their employer, either by way of contractual rights or rights set out in a workplace policy.

However, following a period of consultation, the Parental Bereavement (Leave and Pay) Act 2018, which for the first time introduces rights for bereaved parents, became law on 13 September 2018. However, the Act’s provisions will not become effective until regulations under the Act (the Regulations) are finalised. This is expected at some time during 2020.

Parental Bereavement (Leave and Pay) Act 2018 (the Act)

The Act sets out the key elements of the new rights, with some of the finer details to be set out in the Regulations.

Statutory right to parental bereavement leave

The Act first creates a statutory right to parental bereavement leave. This entitles an employee who is a “bereaved parent” to be absent from work for a period of at least two weeks.

An employee will be a “bereaved parent” if they satisfy the conditions to be specified in the Regulations as to their relationship with a child under the age of 18 who has died. (This includes a child who is stillborn after 24 weeks’ of pregnancy). Those conditions may relate to the employee’s care of the child before their death. Whilst not specified, it is likely therefore that the employee will not necessarily have to be either the biological or adoptive parent of the child.

The Act specifies that the leave must be taken before the end of a period of at least 56 days after the child’s death but exactly when the leave may be taken will be set out in the Regulations.

If an employee is eligible for leave as a result of the death of more than one child, then they will be entitled to leave in respect of each child.

The terms and conditions of employment will continue during the leave to the extent set out in the Regulations, but these will not include the right to remuneration.

Statutory right to parental bereavement pay

The Act goes on to create a statutory right to parental bereavement pay to be paid during the weeks of parental bereavement leave, which do not necessarily have to be consecutive weeks.

This is subject to a minimum qualifying period of employment of 26 weeks.

Statutory parental bereavement pay will be payable at a fixed rate to be specified in the Regulations. If an employer pays an employee enhanced contractual bereavement pay, then the statutory fixed rate payable can be offset against this.

These new rights relate to leave and pay in the event of parental bereavement on the death of a child only. They do not apply in the event of the death of an adult son or daughter, or of another close relative or friend. For now, any such rights will continue to be dealt with in accordance with the terms of the employee’s contract and/or workplace policy.

New York State issues final guidance on anti-sexual harassment law and delays mandatory annual training deadline

In September 2018, we reported on New York State’s issuance of draft guidance under the recently enacted New York State law aimed at preventing sexual harassment.  New York State has now issued final guidance under this law.  This includes final guidance regarding:

  • The anti-sexual harassment policy that every New York State employer (regardless of size and including those who employ only domestic and household employees) must adopt by October 9, 2018; and
  • The mandatory interactive anti-sexual harassment training that every New York State employer is required to conduct for all employees annually.

Final Guidance Delays Deadline to Conduct First Annual Mandatory Training

Note that, under the prior draft guidance, the first annual interactive anti-sexual harassment training was required to be conducted before January 1, 2019.  The final guidance delays the requirement to conduct the first annual interactive training until October 9, 2019.  The final guidance also seemingly relaxes the timing requirement for training new hires.  Whereas the prior draft guidance specified that new hires had to be trained within 30 days of beginning employment, the final guidance encourages training new hires as soon as possible, but does not impose a deadline.

October 9, 2018 Deadline for Adopting Compliant Written Policy

The October 9, 2018 deadline for New York State employers to adopt an anti-sexual harassment policy that complies with the new law is only days away.  New York State employers who do not adopt the model policy issued by New York State can adopt individually tailored policies, as long as they meet the minimum requirements of the New York State law.  Note that there are certain provisions in the New York State model policy that go beyond the minimum standards required of New York State employers, so for this and other reasons, employers may prefer to customize their own policies.  Continue reading

Accessorial Liability – Third Party Advisors

The recent case of EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 demonstrates the broad reach of the accessorial liability provisions under the Fair Work Act 2009 (Cth) (the Act).  In this case the Full Federal Court (FFC) dismissed the appeal of an accounting firm which was found by the Federal Circuit Court (FCC) to have been “involved in” its client’s contraventions of the Act relating to underpayment of staff.

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Changes to Australia’s Heavy Vehicle National Law

Changes to Australia’s Heavy Vehicle National Law (HVNL) will come into effect on Monday, 1 October 2018.

The changes align the HVNL more closely with the model Work Health and Safety Act, by introducing:

  • a new primary duty on every party in the “heavy vehicle supply chain” to ensure the safety of transport activities; and
  • a new due diligence obligation on “executive officers”.

The parties in the heavy vehicle supply chain include any business that dispatches, packs, loads or receives goods by heavy vehicles or that drives, operates or schedules deliveries by heavy vehicles, if they exercise (or have the capability of exercising) control or influence over any transport task.  Under the changes to the HVNL, all of these businesses and their executive officers will be subject to new primary duties and may face severe penalties for non-compliance.

Further changes being introduced on 1 October include the option to use enforceable undertakings as an alternative to prosecution for certain offences and additional information gathering powers for authorised officers.

To prepare for the upcoming changes, parties in the heavy vehicle supply chain should educate management and staff regarding the changes and consider what steps could and should be taken to manage the risks associated with their transport services so far as is reasonably practicable.

More information about the changes is available here: https://www.nhvr.gov.au/safety-accreditation-compliance/chain-of-responsibility/changes-to-cor

 

 

Dismissal for misconduct cannot be based (solely) on anonymous reports

Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.

This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).

It is only very recently that the French Supreme Court had to resolve a case involving an employee dismissed on the basis of anonymous reports.

In this case, several employees of one of the most well-known French public transportation companies raised concerns regarding another employee to the company’s Ethics Committee, in early February 2013.

The company initiated an internal investigation regarding the alleged behaviour, and in this context, several employees were interviewed under the seal of anonymity. The Ethics Committee then prepared and circulated a report regarding the alleged behaviour in early September 2013.

On the basis of the report, the company notified the employee on 18 September 2013 of an immediate suspension of his employment contract together with an invitation to a hearing before the internal disciplinary committee.

The employee was then notified his dismissal for serious misconduct on 25 September 2013, based on the following terms: “In the investigation report circulated by the Ethics Committee on 9 September 2013, the following facts are alleged: words and attitudes characterizing insubordination or disrespect vis-à-vis your hierarchy; insulting comments and aggressive behavior against your colleagues, even causing suffering at work for some of them; racist comments about a Muslim member of your team; recurrent sexually suggestive words and inappropriate attitudes towards female colleagues”. The dismissal letter also pointed out the fact that the employee’s behaviour was contrary to the ethical values ​​that the company sought to promote, constituted a lack of loyalty and endangered the physical and moral health of the employees’ colleagues.

The employee challenged his dismissal on the basis of several grounds, one of which was that the dismissal could not be based solely on the report of the Ethics Committee since this document was not signed, did not mention the identity of the authors of the report and that the statements of the various persons contained therein were anonymous, which deprived him of his right to defense.

The Court of Appeal dismissed the employee’s claim particularly on the ground that the employee had been able to read the report issued by the Ethics Committee and to make comments thereon.

Quoting the European Convention for the Protection of Human Rights and Fundamental Freedoms, the French Supreme Court reversed the decision of the Court of Appeal, holding that its decision breached such Convention, which guarantees all individuals the right to a fair trial. The Supreme Court held that courts cannot solely or significantly base their decision on anonymous reports.

In other words, if the company had been able to obtain identified witnesses, or if the anonymous reports had been supported by objective and material evidence (such as emails, or signed written documents), the dismissal might have been valid.

Enterprise bargaining and the 7 day access period

There are a number of timelines under the Fair Work Act 2009 (Cth) (FW Act) to be aware of when making and applying for approval of a single enterprise agreement.  If these timelines are not complied with, it is likely that the agreement will not be approved by the Fair Work Commission (FWC).  One such timeline relates to the access period.  The access period is the 7-day period ending immediately before the start of the voting process for the proposed agreement.

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