This is not a locker room: Do not publicly criticize your employees

Toronto Raptors head coach  recently made headlines for unfiltered comments about his team members. This season, he has publicly called out a number of them for their poor performances. Some have commended him for giving team members the motivation they needed to perform better – by providing them with “tough love” instead of sugar-coating the truth about their lacklustre performance. However, the reality is very different when it comes to managing employees in the workplace. Indeed, publicly criticizing your employees may form grounds for a harassment complaint.

In Ontario, the Occupational Health and Safety Act outlines an employer’s responsibilities in addressing and investigating workplace harassment. According to Ontario’s guide on workplace violence and harassment, workplace harassment can involve unwelcome words or actions that are known or should be known to be offensive, embarrassing, humiliating or demeaning to a worker or group of workers in a workplace. Public criticism of an employee falls within this category and, as such, may constitute workplace harassment. In addition, public criticism may form grounds for a claim of intentional infliction of mental suffering.

Trends in the case law indicate that judges and other decision-makers are increasingly sensitive to harassment-related claims in the workplace. For example, in Iluyomade v Toronto Community Housing Corp., 2018 ONSC 7727, the Toronto Community Housing Corporation (TCHC) dismissed an employee. The employee sued a number of TCHC’s executives, management and employees for intentional infliction of mental suffering . One aspect of the harassment faced by the employee involved the manager criticizing him in front of other staff members. The employee argued that the harassment he faced caused him stress, anxiety and depression. In this decision, the defendants’ motion to strike the employee’s statement of claim was dismissed.

Needless to say, running a basketball team and managing employees in the workplace are two different things. Employers should be mindful of how they are delivering criticism to their employees. They should ensure that the criticism is constructive and is not publicized, embarrassing, humiliating or demeaning. Otherwise, employers run the risk of being hit with a harassment complaint.

The UK proposes a new points based immigration system

On 19 February 2020 the UK Government published its policy statement setting out its proposals for a new points-based immigration system. Following the UK’s exit from the EU, free movement of workers will cease and all EU and non-EU citizens will be treated equally from 1 January 2021.  The Government will introduce a new immigration system which will be a points-based system giving priority to highly skilled migrants.  This arguably has particular implications for certain industry sectors such as construction, hospitality and social care where many people employed by those sectors are low-paid workers and a significant number of them are from the EU.

Points based system and skilled workers

In terms of skilled workers, the UK will utilise a Points Based System. All applicants under that system must:

  • Have a job offer from an approved sponsor. The job offer must be at the required skill level. This skills threshold is brought down from RQF6 to RQF3 meaning that it will include those educated to A-level/Scottish Highers equivalent not just graduate level which is currently the case; and
  • Speak English at the required level.

These characteristics are “non-tradeable” and will add up to a total of 50 points. Other characteristics will be “tradeable”.  For example, in addition to those characteristics above and, in order to obtain the additional 20 points to reach the 70 points required, the applicant must, in most cases, earn more than the salary threshold of £25,600.  This threshold has been lowered from the £30,000 threshold.  However, earning a salary of less than £25,600 (but more than £20,480) may still earn the individual points if the applicant can also show that their job offer is in a “specific shortage occupation” as designated by the Migration Advisory Committee (the MAC) or that they have a PhD relevant to the job.

The UK Government has indicated that there will be no regional salary thresholds and that only base salary will be used to determine if the salary threshold is met (i.e. this will not include location or other allowances and pension contributions). In addition, there will no longer be an overall cap on the number of skilled workers who could come into the UK and the resident labour market test will be abolished.

From January 2021, the Government proposes to extend the current Global Talent route on the same basis as non-EU citizens and so such migrants will be able to come to the UK without a job offer if they are endorsed by a relevant body. This scheme has recently been expanded to be more accessible for those from STEM backgrounds.

In the future, in line with the recommendations by the MAC, the UK will also create a broader unsponsored route within the PBS to run alongside the employer led system. This route would be capped and take longer to implement.

Lower-skilled workers

The area which has had the most press attention is the decision by the UK Government not to introduce a general low-skilled or temporary work route. Their view is that the focus should be moved away from cheap labour from Europe. Employers in the UK must adjust and invest in technology and automation and rely on the retention of the existing workforce via the EU Settlement Scheme (which has already received 3.2 million applications) to meet the requirements for low-skilled workers. The only area of change is that the Government has quadrupled the places under the scheme for seasonal workers in agriculture to 10,000. The Government also points to “youth mobility arrangements”, which allow 20,000 young people to come to the UK each year. However, there is no suggestion in the Policy Statement that this be extended over and above the current 8 countries to which it applies.

This decision not to implement a route for lower-skilled workers will cause concern for a number of industries (e.g. food manufacturing, hospitality, warehousing, low skilled construction) which are all reliant on lower skilled EU migration. It is unlikely that the removal of the migration cap, and the lowering of the salary and skills thresholds will ease this for employers in these sectors to the extent which may be required. The UK Government’s view is that the gap can be plugged by training what it suggests are the 8. 5 million people categorised as “economically inactive”.

The visa process

In terms of the visa process, other than short term visitors and short term students, migrants will need to obtain a visa.  Applications will be made on-line using smart phone self-enrolment (non-EU citizens will still need to visit a Visa Application Centre) and most EU citizens will be issued with an e-visa.

For employers sponsoring migrants, the process is to be made simpler and quicker for employers (the Policy Statement refers to a reduction in time of up to 8 weeks to sponsor a migrant which will be welcome news for employers).    Importantly, the Policy Statement suggests that employers who are not currently approved by the Home Office to sponsor migrants should consider doing so now if they think they will want to sponsor skilled migrants from 2021.

The UK Government has said the it intends to open the key routes by Autumn 2020 to enable people to apply ahead of the system coming into effect.

Further details of the new system will be published throughout the year.

Coronavirus and Discrimination: The balance between protecting the workforce and community and avoiding unlawful discrimination  

Last week a Malaysian student of Chinese descent returned to her rented home in Perth’s southern suburbs after visiting family in Malaysia for a few weeks. Upon arriving home, she found the locks had been changed and a handwritten sign was on the door, notifying her she was no longer welcome in the house given the coronavirus “emergency”. Continue reading

La modération a bien meilleur goût – Retour sur l’affaire Syndicat de la fonction publique et parapublique du Québec inc. et Société des établissements de plein air du Québec (SÉPAQ)

Dans une récente décision[1] du Tribunal administratif du travail (TAT), le juge administratif Sylvain Allard  a jugé que le contenu des communiqués de la Société des établissements de plein air du Québec (SÉPAQ) exprimant, en période de négociations, son mécontentement relativement à un avis de grève et aux demandes syndicales violait l’article 12 du Code du travail (C.T.). Il a par ailleurs ordonner à la SÉPAQ de verser des dommages punitifs au Syndicat de la fonction publique et parapublique du Québec (Syndicat).

FAITS

Les faits donnant naissance au litige opposant la SÉPAQ et le Syndicat sont simples. Les conventions collectives liant les parties sont échues. Dans le cadre de la négociation du renouvellement de celles-ci, les parties en arrivent à une entente de principe. Or, cette entente est rejetée par la majorité des membres du Syndicat. Suite à ce rejet, un avis de grève est transmis à la SÉPAQ et le Syndicat transmet de nouvelles demandes représentant une augmentation monétaire substantielle en comparaison avec l’entente de principe conclut précédemment.

En réponse à cet avis de grève et à ces nouvelles demandes, la SÉPAQ publie des communiqués sur le fil d’actualité de son intranet. La SÉPAQ qualifie l’attitude du Syndicat dans le cadre des négociations de « cavalière » et déplore« le caractère irréaliste et déraisonnable » des nouvelles demandes syndicales. Un lien vers un communiqué public  contient en outre le message suivant :

« Les demandes syndicales sont tellement exagérées qu’il y a lieu de s’interroger sur la stratégie et les motivations derrière une approche aussi contreproductive. »

Selon le Syndicat, la publication de ces communiqués constitue une entrave et de l’ingérence illégale de la part de la SÉPAQ dans ses activités violant l’article 12 C.T. La SÉPAQ se défend, invoquant qu’il s’agit plutôt de l’exercice légitime de son droit de gérance et de sa liberté d’expression. Toujours selon la SÉPAQ, les communiqués faisaient état « [d’]informations véridiques, justifiées et proportionnelles à la situation intenable créée par le comportement du Syndicat. »

DÉCISION

Le juge Allard fait droit aux prétentions du Syndicat et conclut que la SÉPAQ s’est ingérée dans les activités du Syndicat en minant sa crédibilité

Le juge retient qu’en critiquant le choix d’exercer son droit de grève (alors que celui-ci est pourtant légitimement acquis), en remettant en question la stratégie et les motivations du Syndicat et en laissant entendre que ce dernier a créé une impasse dans les négociations, les communications de la SÉPAQ « ne sont pas empreintes de sage modération, se font menaçantes et ne respectent pas le rôle exclusif du syndicat comme agent négociateur, lui permettant d’invoquer son droit à la liberté d’expression. »

Il octroie des dommages punitifs de l’ordre de 5 000$ au Syndicat en qualifiant les gestes de l’employeur d’illicites et intentionnels.

À RETENIR

Cette décision constitue un rappel des limites de la liberté d’expression des employeurs en période de négociation. Les employeurs doivent faire preuve de prudence et de modération dans leurs communications avec leurs salariés et le public en général en période de négociations. Si un employeur juge que le syndicat ne négocie pas de bonne foi, il doit recourir aux moyens que lui offre le C.T., et non pas se faire justice soi-même en critiquant la position syndicale auprès des salariés et du public.

[1] 2019 QCTAT 5358.

Criminal negligence causing death – Employer gets a stiff sentence

In a recent decision[1], the Court of Québec (Criminal and Penal Division) handed down a sentence against C.F.G. Construction Inc. The business was found guilty [2] of criminal negligence causing the death of one of its workers pursuant to the provisions of the Criminal Code[3] governing criminal responsibility, a statute better known as “Act C-21” (or “Bill C-45”).

FACTS

In September 2012, one of C.F.G. Construction Inc.’s workers died in an accident involving a heavy-duty truck that belonged to the business.

On that day, the worker was instructed to pick up steel scraps and load the cargo container to maximum capacity. The worker died when he lost control of the truck in a curve at the bottom of a sloping forestry road.

At trial, the maintenance of the truck and condition of its system were at the heart of the dispute. The evidence revealed that the truck’s entire brake system was in an advanced state of wear and bore signs of significant anomalies and a major imbalance. The truck’s mechanical problems were known to the employer, as the worker himself had informed it a number of times of the truck’s dilapidated condition. What is more, the maintenance mechanic’s skills and the garage manager’s recklessness were also at issue.

DECISION

In its decision, the Court of Québec imposed a $300,000 fine on C.F.G. Construction Inc., a 15% victim fine surcharge bringing the total up to $345,000, and a three (3) year probation order with multiple conditions having a considerable financial impact on the business; these conditions included retaining the services of an external consultant to evaluate the appropriate remedies every year throughout the probation order period and providing all employees with annual training on the obligations and responsibilities of heavy-duty truck users and operators. Some of the aggravating factors the Court of Québec took into considerable include the consequences on the victim’s family, the long period over which the offence was committed, knowledge of the risk, past regulatory infractions both before and after the events, and the risk of re-offending.

That said, the Court of Québec did consider the changes that the business made to the physical location for maintaining and repairing vehicles and machinery to be a mitigating factor.

TAKE-AWAYS

This decision is an important reminder of the occupational health and safety obligations of employers. Since it came into force in 2004, Act C-21 (or Bill C-45) makes it easier to bring criminal and penal proceedings against organizations as well as their agents and officers where well-established breaches or negligent acts result in a serious bodily injury or the death of a person in the workplace. It is therefore crucial that all necessary means be taken to exercise due diligence, notably by adopting a proactive approach when an occupational health and safety issue is reported.

[1] R. v. C.F.G. Construction Inc., 2019 QCCQ 7449. (French only)

[2] R. v. C.F.G. Construction Inc., 2019 QCCQ 1244. Note that this guilty verdict has been appealed (C.F.G. Construction Inc. v. R., 2019 QCCA 514). (French only)

[3] R.S.C. (1985), ch. C-46.

An employer’s duty to its employees in the context of Coronavirus

The World Health Organisation has declared that the Coronavirus is a public health emergency of international concern and the first reported cases have appeared in the UK. What steps should employers be taking in relation to their employees?

Travel to affected areas

Employers owe a duty of care to their employees to take reasonable steps to protect their health and safety and to provide a safe place and system of work. Employers should therefore not insist that an employee travels to an area affected by the virus for work related purposes.  Government advice should be followed, particularly for those UK employees who have travelled to affected areas on business.  These employees may also find it difficult to return to the UK and employers will have to have processes in place to assist employees who find themselves in this position.

Employees who have returned from affected areas

As mentioned above an employer owes a duty of care to employees, but does this extend to preventing employees from returning to work if they have returned from holiday or work in areas known to have experienced incidences of Coronavirus?   The Government guidance suggests that people who have travelled from affected areas to the UK in the last 14 days should self-quarantine, stay indoors and avoid contact with other people as they would with the flu even if they do not have symptoms.

Where an employee has symptoms then an employer may be justified in suspending an employee as a precaution. If the employee is suspended then the employer will have to suspend them on full pay unless the contract gives the employer a right to suspend without pay for this reason.  It could also instruct the employee to take a medical examination.  If there is no contractual right to request an employee to take a medical examination then the employer may not have the right to do so.  If there is a contractual right and the employee refuses to agree then the refusal may be treated as a disciplinary issue.

Where the employee does not have symptoms, the employer will need to follow health advice from the Government on what actions need to be taken in relation to those returning from an affected area . It may be that the employer can agree that the employee works from home during the quarantine period. If this is not possible, the decision whether to suspend the employee for that period must be taken.

Employees absent due to the virus

There may be different forms of absence during the period. Obviously employees who have the virus must be absent from work. This may also extend to those who are required to care for an immediate family member who has Coronavirus.  In addition there may be employees who are in “quarantine” as a result of having been in contact with individuals or who have just returned from an affected area.  Employees may also refuse to report to work for fear of being contaminated at work.

If an employee is absent with the symptoms, they will be entitled to sick leave and sick pay. In the UK statutory sick pay is payable to qualifying employees for up to 28 weeks in a three year period.  An employer may also have contractual sick pay in place.

Employees who are at most at risk if exposed to the virus because they have particular health conditions will need to be considered. Employers are also under special duties in relation to pregnant employees and disabled workers.  In relation to pregnant employees there is a duty on employers to conduct a risk assessment if working conditions could involve risk to a new or expectant mother or their baby.  This may mean that the employer needs to consider alternative working conditions or hours and, if this is not possible, they may need to be suspended from work on maternity grounds.  Some employees who have a disability may also be particularly at risk and therefore employers will be under a duty pursuant to the Equality Act 2010 to make reasonable adjustments.

If an employee is absent due to a fear of contracting the virus an employer must consider the risks and consider whether the employee is a vulnerable employee.  Where there is no increased risk for the employee, the employer can request them to attend work.  An employee who continues to be absent from work in these circumstances may be subject to disciplinary action for unauthorised absence.

Additional duties for other employees

If a large number of employees are absent, what is the duty on the employer to those employees who may need to work extra hours during the period? Whether an employer can require its employees to work extra hours will depend on the terms of the contract.  Any contractual right needs to be exercised fairly and reasonably so as not to breach the implied term of trust and confidence.  An employer should consult with its employees to ensure that they agree to any changes to their terms.  An employer will also have to ensure that, if an employee does work additional hours, that does not breach the employee’s weekly working hours (unless he or she has entered into a voluntary opt out) or his or her daily or weekly rest periods.

Steps an employer should be taking

An employer should:

  • Educate and provide guidance to employees on the symptoms of the virus and precautions which should be taken to prevent the spread of the virus;
  • Provide a safe working environment for employees (for example, by ensuring access to hand sanitisers) and ensure thorough cleaning of offices and workplaces;
  • Assess the risk of exposure;
  • Encourage self-quarantine for those returning from affected areas;
  • Provide advice to employees concerned; and
  • Evaluate processes for response if the workplace is affected.

For the wider implications of the Coronavirus in the infrastructure, mining and commodities sector please see Coronavirus outbreak: the legal implications

A new immigration landscape: Migration Advisory Committee Recommendations

The Migration Advisory Committee (MAC) published its widely anticipated report on 28 January 2020, setting out its recommendations for a new UK immigration system to be launched in time for the end of free movement of people on 31 December 2020. The Government will be considering the recommendations in the context of its Immigration Bill, expected to be published in March 2020. The main recommendations are set out below.

Possible role of a points based system

 

1. Skilled worker route for entry with a job offer. The current Tier 2 General category should be retained and apply to both EEA and non-EEA citizens as overall it appears that stakeholders consider that the ‘combination of skill eligibility and a salary threshold, works well for an employer driven system’. However:

  •  The MAC does not see the value in adopting an Australian model and recommends keeping the system simple, regarding the use of a small number of clear criteria as an advantage.
  • The current packaging as a points based system could change as points are not tradeable and applicants have to meet all criteria and there is no flexibility on how an applicant can qualify.
  • The route should be expanded to medium-skill jobs (RQF level 3 and above).
  • The Tier 2 (General) cap should be abolished.
  • The resident labour market test should also be abolished.
  • A simplified process should be introduced.

2. A work route for those without a job offer. If the Government wants to introduce a points based system, MAC recommends modifying (or replacing) the current Tier 1 (Exceptional Talent) route (which has been widely criticised as setting the bar to entry too high, resulting in very few applicants entering the UK under this visa type) into a more accessible points route for skilled workers who wish to enter the UK without a job offer. This would involve including an overall annual cap on those admitted and requiring those who wish to enter the UK under this route to submit an ‘Expression of Interest’ to create a pool of migrants to be selected for entry to the UK. Invitations to submit a full application could be on a monthly basis with a quota. The selection of those invited to apply would be based on those who have the highest number of points in the pool using a points based system (using characteristics the Government wants to attract including qualifications, age, studying in the UK and priority areas such as STEM and creative skills) and there should be an absolute minimum number of points. The focus should be on exceptional promise, not exceptional talent, recognising that in some cases promise does not deliver (the UK’s historic experience with the Highly Skilled Migrant Scheme and Tier 1 General suggesting that a sizable proportion of migrants entering the UK via those routes did not end up working in highly skilled jobs as was intended).

Separately, readers should note that on 30 January 2020, the Home Office rebranded Tier 1 (Exceptional Talent) to the Global Talent Category. Further details have now been published regarding the new visa system. This category will not be subject to a cap in numbers. Otherwise, the differences between the Exceptional and Global Talent routes seems limited, particularly so for those in the areas of digital technology, arts and culture.   For those applying in the fields of science and medicine, engineering and humanities, an additional accelerated route has been introduced, in addition to a quicker route to settlement after 3 years (instead of 5 years) with additional flexibility around absences from the UK for research purposes.

3. Settlement. MAC notes that Australia and other countries use a points based system for deciding who should be given settlement. It regards the current UK system as inflexible but feels that it cannot opine on whether it works well due to a lack of data. However, it recommends a review of the criteria for settlement be undertaken if better data is available and, if there are to be changes, a points based system is one option.

Appropriate level and design of salary thresholds in Tier 2 (General)

  1. Retention of salary thresholds. The report recommends that salary thresholds are retained, highlighting the importance of salary thresholds for 3 key reasons:
  • to prevent undercutting in the UK labour market;
  • helping the realisation of the UK as a high wage, high skill, and high productivity economy; and
  • improving the UK’s public finances.

Remember in this context that, unlike Australia, Canada and New Zealand, population growth is not a stated aim of the UK Government and salary thresholds would be expected to lead to lower migration.

2. Level of salary thresholds. The report recommends:

  • Retaining the current structure where the relevant threshold is the higher of a general salary threshold (currently £30,000 or £20,800 for new entrants) or an occupation specific salary threshold (based on the 25th percentile of full time annual earnings distribution each). To take into account the expansion of eligible jobs to medium skilled occupations, this would mean a reduction in the minimum salary threshold from £30,000 to £25,600.
  • A simplified way of calculating the new entrant rate of 70% of the experienced worker rate for both the general and occupation specific threshold, and a wider definition of new entrant should be used. This rate should be applicable for 5 years (including any time spent on the post study work route), not 3 years.
  • For most eligible occupations in the NHS and schools, MAC recommends the use of national pay scales as the relevant thresholds, recognising that salaries may not reflect the high public value of the work undertaken, ensuring they can hire migrants. If implemented, this will be a welcome move to employers in the health and education sectors, though the MAC does note concerns over it holding down public sector pay and resulting in lower pay for migrants in those sectors.
  • Salary thresholds should not be pro-rated for part-time workers (despite concerns that no doing to may disadvantage women), though there should be more options for existing visa holders swapping to part-time work when they become parents.
  • In respect of the Shortage Occupation List (SOL), salary thresholds should not be lower for occupations on the SOL for entry as MAC feels that this would have the effect of perpetuating the shortage. In addition, no SOL review will take place at this time for medium-skill jobs. The main current advantages of the SOL are removed by the abolition of the cap and resident labour market test. A review of the whether the SOL will be needed after the new immigration system is introduced (but not before), and if the conclusion is that the SOL is still needed, only then will there be a review of which occupations are on it.
  • Only salary on the main job should be used to determine whether the salary threshold is met as this is easiest to verify and least open to exploitation. Allowances, equity and employer pension contributions should not be included. However, the rules on Tier 2 (General) visa holders owning equity in the employer sponsoring them (currently capped at 10% of their sponsor’s value) should be reviewed as this can penalise certain industries, as well as start-ups.

3. Geographical variations. The MAC has not recommended that the general salary thresholds are varied based on regional/geographical location of the job role; a single salary threshold across the UK should remain. However it has suggested that there should be a separate visa pilot for ‘remote’ areas of the UK which caters for these areas’ specific needs rather than altering the whole UK system.

MAC regards issues with data as an on-going problem and makes recommendations to the Government to improve data availability and access, fearing that without it the UK will be unable to steer a steady path between an unduly open and an unduly closed migration policy. To this end, one of the main concerns held by the business community in the wake of Brexit and the end of free movement of people from the EEA to the UK, is the anticipated loss of a low skilled labour pool in the UK. The MAC advises that a points based route is not suitable for low skilled migration. If the lack of low skilled workers is a concern, the Government could address this through another route. For example, the temporary worker route enabling individuals deemed to be of low risk to come to the UK for up to a year without the need for a job offer, or via sector based schemes, as well as the graduate visa scheme; recognising however that this would reduce the likely overall benefits of moving to the new system. As the MAC notes, “there are trade-offs and no perfect system exists”. Of course, the Government is not obliged to accept the recommendations. We await with interest whether or not the Government decides to rely on the above recommendations when devising the UK’s new immigration system.

Négligence criminelle causant la mort – Peine sévère imposée à un employeur

Dans une récente décision[1], la Cour du Québec (Chambre criminelle et pénale) s’est prononcée quant à la détermination de la peine à l’encontre de l’entreprise C.F.G. Construction inc. Cette entreprise avait été déclarée coupable[2] de négligence criminelle causant la mort de l’un de ses employés, en vertu des dispositions du Code criminel[3] traitant de la responsabilité pénale des organisations, et mieux connu sous le nom « Loi C-21 » (ou encore, « Projet de loi C-45 »).

FAITS

En septembre 2012, un travailleur de l’entreprise C.F.G. Construction inc. décède lors d’un accident impliquant un camion lourd appartenant à l’entreprise.

Ce jour-là, le travailleur est mandaté pour récupérer des rebuts d’acier et reçoit pour directive de charger le conteneur au maximum de sa capacité. Or, il perd le contrôle de son camion dans une courbe au bas d’une pente d’un chemin forestier et y trouve la mort.

Lors du procès, l’entretien et l’état du système du camion ont été au cœur du litige. En effet, la preuve a démontré que l’ensemble du système de freinage du camion était dans un état d’usure avancée, présentant des anomalies importantes et un déséquilibre majeur. Les problèmes mécaniques du camion étaient connus de l’employeur, le travailleur ayant d’ailleurs lui-même dénoncé à plusieurs reprises l’état dégradé de son camion. De plus, les compétences du mécanicien responsable de l’entretien ainsi que l’insouciance du dirigeant du garage sont en cause.

DÉCISION

Par sa décision, la Cour du Québec impose une amende de 300 000 $ à l’entreprise C.F.G. Construction inc. avec une suramende de 15 %, totalisant 345 000 $, à laquelle s’ajoute une ordonnance de probation de trois (3) ans assortie de multiples conditions ayant un impact financier important pour l’entreprise, notamment, celles de retenir les services d’un consultant externe aux fins de l’évaluation des correctifs appropriés, et ce, annuellement pendant toute la période de l’ordonnance de probation ainsi que de fournir annuellement une formation à tous les employés au sujet des obligations et responsabilités des utilisateurs et exploitants de véhicules lourds. À titre de facteurs aggravants, la Cour du Québec a notamment considéré les conséquences pour la famille de la victime, la longue période pendant laquelle l’infraction a été commise, la connaissance du risque, la présence d’antécédents d’infractions réglementaires avant et après les événements ainsi que le risque de récidive.

La Cour du Québec a néanmoins considéré que les changements apportés par l’entreprise au lieu physique où s’effectuent les entretiens et les réparations de véhicules et machineries constituaient un facteur atténuant.

À RETENIR

Cette décision constitue un rappel important des obligations de l’employeur en matière de santé et de sécurité au travail. En effet, depuis son entrée en vigueur en 2004, la « Loi C-21 » (ou « Projet de loi C-45 ») facilite les poursuites pénales et criminelles contre les organisations, leurs agents et leurs dirigeants lorsqu’il est établi que des manquements ou des actes de négligence entraînent des blessures corporelles graves ou le décès d’une personne en milieu de travail. Il est ainsi essentiel de prendre tous les moyens nécessaires afin de faire preuve de diligence raisonnable, notamment en adoptant une approche proactive lors d’un signalement concernant la santé et la sécurité au travail.

[1] R. c. C.F.G. Construction inc., 2019 QCCQ 7449.

[2] R. c. C.F.G. Construction inc., 2019 QCCQ 1244. À noter que ce jugement sur la déclaration de culpabilité a été porté en appel (C.F.G. Construction inc. c. R., 2019 QCCA 514).

[3] L.R.C. (1985), ch. C-46.

Coronavirus: what should employers be doing?

Australia, like many countries, is closely monitoring an outbreak of respiratory illness caused by a new coronavirus first identified in Wuhan, Hubei Province, China in December 2019.

In order to meet their duty of care to workers, there are a number of steps employers should now be taking. Continue reading

Australia – What to look out for in employment law in 2020

2019 saw many legislative and jurisprudential developments in employment law which should be top of mind for employers moving forward in 2020.  In this article, we summarise the main issues to watch in 2020.

The underpayment crisis – “wage theft”

The recent spate of very public self-reported wage underpayments by businesses has resulted in increased scrutiny into “wage theft”.  The Fair Work Ombudsman (FWO), for example, has prioritised issues of wage underpayment and non-compliance with awards and the National Employment Standards (NES).  The FWO will also take a stronger approach to enforcement in relation to non-compliance, even against businesses that self-report underpayments and non-compliance.

The Federal Government has announced that new legislation is currently being drafted which aims to introduce a new offence and penalty regime, with potential criminal sanctions for the most serious forms of conduct.  On 12 November 2019, the Senate also approved a wide-ranging inquiry into wage and superannuation “theft” by employers.  The report, due in June 2020, is also likely to make recommendations for reform.

In light of increasing scrutiny on often inadvertent instances of serious underpayment with serious reputational and penalty risks, our team can help you navigate and ensure compliance with your legal obligations.

Whistleblower laws

New whistleblowing laws came into effect on 1 July 2019 covering the corporate, financial and tax sectors across Australia.  The laws amended the Taxation Administration Act 1953 (Cth), enabling disclosures relating to misconduct and improper conduct regarding tax affairs and apply broadly to all kinds of legal persons.  Changes to the Corporations Act 2001 (Cth) consolidate and expand the whistleblower protection regime and affect the majority of businesses.  For more information on the changes that came into effect from 1 July 2019, see our earlier post on the new whistleblowing obligations.

The new laws require companies to have compliant whistleblowing policies by 1 January 2020.  Public companies and large proprietary companies are now expected to have a compliant policy.

Employers should review their current whistleblower arrangements and/or implement new policies to ensure they comply with the new laws. Failure to have a compliant policy is a criminal offence, with a maximum penalty of $126,000.

Annualised salary clauses

The Fair Work Commission introduced new model annualised salary clauses for a number of modern awards which take effect from 1 March 2020.  A broad range of industries will be affected by the changes including mining, banking, hospitality and legal services.

The key obligations facing employers include: annual reconciliation to compare the amount payable under an award and the amount actually paid through the annualised salary, record-keeping of start/finish times and unpaid meal breaks, and the specification of the method of calculating the annualised wage and the “outer limit” on hours (over which overtime or penalty rates apply).

Employers paying annual salaries to employees under affected awards need to ensure they comply with these new conditions. Failure to comply will risk fines of up to $63,000. For a detailed examination of these obligations, see our earlier blog post on annualised salary clauses.

Religious Discrimination Bill

The introduction of the Religious Discrimination Bill 2019 (the Bill) formed part of the campaign platform of the re-elected Morrison Government in 2019 and its potential enactment in 2020 presents major implications in employment law nationally. A second revised draft was released for public consultation in December 2019.

If enacted, the Bill will make it unlawful for employers and employment agencies to discriminate against a person in employment on the basis of their religious beliefs or activities. Following the scheme of existing anti-discrimination laws, discrimination could be both direct and indirect.  An employer will engage in indirect discrimination if they impose or propose to impose unreasonable conditions, requirements or practices which have the effect of disadvantaging persons holding religious belief or who engage in religious activities.  Employers will also be prevented from imposing conditions or requirements relating to standards of dress, appearance of behaviour of employees that restrict an employee making a statement of belief in their personal capacity unless it would result in unjustifiable financial hardship, or is an essential requirement of the profession, trade or occupation. This latter provision was apparently introduced in response to the much-publicised case of Israel Folau, who settled discrimination proceedings against Rugby Australia for an undisclosed amount in December 2019.

Public consultation on the revised draft of the Bill will continue until 31 January 2020. It is not yet known when the Bill will be introduced to Parliament.

Calculation of personal/carer’s leave

In a significant decision last year, the Full Federal Court confirmed that shiftworkers are entitled to 10 days of personal/carer’s leave, to be taken and accrued by reference to the employee’s “working day” rather than based on a “notional” number of average hours. For an in-depth look at the case, see our earlier blog post on the Full Federal Court decision.

However, uncertainty remains in the calculation of personal/carer’s leave. The High Court of Australia recently granted special leave to appeal the Full Federal Court decision, which will ultimately have major implications for employers, particularly those engaging shiftworkers, due to the potential for significant back pay claims. The appeal will likely be heard in the first half of this year. Until then, employers should ensure their payroll systems accrue and account for leave as a daily, rather than hourly, entitlement.

Casual entitlements: Workpac

The decision of Workpac Pty Ltd v Skene [2018] FCAFC 131 (Skene) found that an employee engaged as a “casual” under his contract was in substance, a permanent, full-time employee, on the basis of his relatively certain and inflexible working arrangements.  The employee was entitled to annual leave under the NES and the enterprise agreement.  Skene has significant implications, with employers at risk of substantial back pay claims and changes to methods of engaging casual employees.

Two class actions against Workpac have now been filed on behalf of mineworkers as a direct result of Skene.  However, both have been placed on hold pending the decision in Workpac Pty Ltd v Rossato (Rossato) which will further clarify what constitutes casual employment and whether casual loading payments set off any leave entitlements.  Judgment has been reserved on Rossato and a decision will likely be handed down later this year.

Employers should keep an eye out for the decision in Rossato and any legislative changes made in response to Skene.

Potential changes to enterprise bargaining

In November 2019, the Federal Government indicated to the Senate that reforms to the enterprise bargaining process and national award system to remove “administrative clutter” may be in the pipeline.  The Federal Government suggested it will issue a discussion paper on the operation of the enterprise bargaining system in 2020, with a focus on simplifying the making and approval of enterprise agreements.

Key takeaways

  • Whistleblower laws: A new whistleblower regime has been in place since 1 July 2019. From 1 January 2020, public companies and large proprietary companies must also have a compliant whistleblower policy.
  • Annualised salary clauses: From 1 March 2020, model annualised salary clauses take effect for a number of modern awards. Relevant employers need to ensure they comply with the new obligations.
  • Wage theft and compliance: The FWO is prioritising these issues and has indicated a stronger stance towards enforcement of compliance.  Legislative changes to penalty regimes for breaches of the FW Act are currently being drafted.
  • Religious Discrimination Bill: A revised draft has recently been released and further public consultation is planned, after which, the Bill is likely to be introduced into Parliament.
  • Calculation of personal/carer’s leave: Uncertainty will remain until the High Court hands down its judgment in the case referred to above.  Employers should reduce risk by ensuring payroll systems accrue and account for leave as a daily, rather than hourly, entitlement.
  • Casual entitlements: Employers should keep abreast of developments relating to the Skene decision, including Rossato, the pending class actions and any future legislative changes.
  • Changes to enterprise bargaining: No concrete reforms have been laid out, but a discussion paper will likely be issued this year.

Special thanks to our Summer Clerk, Christy Lee, for her assistance in preparing this article.

LexBlog