Described as a “national-leading regulatory reform”, the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 (Amendment Regulation) amends the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation) to introduce specific requirements for persons conducting a business or undertaking to manage the risk of sexual harassment and sex or gender-based harassment at work.

The new regulations will take effect in two stages:

• from 1 September 2024, Queensland employers will be required to proactively manage the risk of sexual harassment in the workplace; and
• from 1 March 2025, employers will be required to implement a written sexual harassment prevention plan to protect workers.

This article will explore the Amendment Regulation, outlining its key provisions, examining the potential impact on persons conducting a business or undertaking, and highlighting the key considerations for effectively implementing the requisite changes.

Legislative History

Prior to the introduction of the Amendment Regulation, managing the risk of sexual harassment and sex or gender-based harassment at work was governed by the general psychosocial risk requirements in the WHS Regulation. These provisions required a person conducting a business or undertaking (PCBU) to manage psychosocial risks, including risks from workplace interactions and behaviours, however, did not explicitly require a PCBU to proactively manage these risks. It was also silent on any specific measures that must be undertaken by PCBUs to fulfil their duty as it relates these risks.

Changes Commencing on 1 September 2024

Effective from 1 September 2024, section 55C of the WHS Regulation (as amended) imposes a duty on PCBUs to manage the risk to the health or safety of a worker, or other person, from sexual harassment and sex or gender-based harassment.

The Amendment Regulation also outlines the relevant matters PCBUs must have regard to when determining control measures to implement, namely:

• matters relating to characteristics of the workers (including age, gender, sex, sexual orientation and/or disability); and
• matters relating to characteristics of the work environment (including culture, system of work, diversity and other matters that may affect a person’s behaviour in relation to a worker).

Broadly, this provision ensures that PCBUs evaluate the specific characteristics of workers and consider the unique factors of their workplace that may increase the risk of sexual or gender-based harassment.

Finally, PCBUs must review and, as necessary, revise the control measures if a person reports sexual harassment or sex or gender-based harassment at work.

Changes Commencing on 1 March 2025

From 1 March 2025, PCBUs must prepare a compliant plan (prevention plan) to manage an identified risk to the heath or safety of workers, or other persons, from sexual harassment and sex or gender-based harassment at work.

Requirements for a Compliant Prevention Plan

The prevention plan must:

• be in writing;
• state each identified risk;
• identify the control measures implemented, or to be implemented, to manage each identified risk;
• identify the matters considered by the PCBU in determining the control measures;
• describe the consultation undertaken by the PCBU;
• set out the procedure for dealing with reports of sexual harassment or sex or gender-based harassment at work; and
• be set out and expressed in a way that is readily accessible and understandable to workers.

Other Requirements

In addition to the above requirements, PCBUs must:

• implement the prevention plan;
• take reasonable steps to ensure workers are made aware of the prevention plan and know how to access it; and
• review the prevention plan as soon as practicable after a report of sexual harassment or sex or gender-based harassment is made or if a health and safety committee for the workplace or a worker’s health and safety representative requests a review of the plan, or otherwise every 3 years.

What your Organisation Needs to do

PCBUs must remain proactive to ensure compliance with these latest changes. Steps that should be taken in furtherance of this include, but are not limited to:

• review your sexual harassment policy;
• review control measures and consider what is required;
• confirm your training is up to date;
• ensure your Board and/or Executives are properly apprised of these changes; and
• commence work now on a Prevention Plan –> Click here for a helpful checklist, as a guide).

Contact Us

With a wealth of collective knowledge and over two decades experience providing insight and advice, Vocare Law is well equipped to assist both institutional and retail clients navigate these new provisions. Please do not hesitate to contact our office if you have any questions on the new legislative changes or would like our office to assist you drafting a prevention plan. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Courtney Linton & Jack Macpherson.

This article looks at the new Fair Work Amendment Bill that deals with the employee rights to disconnect.

Fair Work Amendment Bill 2024

Since 26 August 2024, new amendments to the Fair Work Act 2009 (Cth) will be introduced to change employers’ approach to contacting employees outside of scheduled work hours. The approved Bill “Right to Disconnect” ensures that employees are permitted to refuse any work-related contact when the requests are made outside of work hours. Recent findings suggest that many employees are working additional unpaid hours of work, averaging an estimated 5.4 hours a week, including the need to monitor, read or respond to work-related communications, such as emails. The purpose of the new bill is to ensure that employees feel comfortable to disconnect outside of the appropriate work hours.

Unreasonable refusal

The conditions of an employee’s right to refuse the work will vary for many reasons. To understand what constitutes ‘unreasonable refusal,’ you may consider:

1. The reason for the contact or attempted contact;

2. How the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

3. The extent to which the employee is compensated:

a.   to remain available to perform work during the period in which contact or attempted contact is made; or

b.   for working additional hours outside of the employee’s ordinary hours of work;

4. The nature of the employee’s role and their level of responsibility;

5. The employee’s personal circumstances (including family or caring responsibilities).

Workplace right

The new legal right is also a new workplace right, within the General Protections of the Fair Work Act.  The new section prohibits employers, or their representatives, from taking adverse action against the employee exercising their right not to respond to communications from their employer or third party outside of their ordinary working hours.

Overview of the ‘right to disconnect’

The Fair Work Act 2009 (Cth) now includes the legal right for employees to refuse to monitor, read, respond to contact or attempted contact from their employer outside of their working hours unless the refusal is unreasonable.

The approved Bill encourages employees to set boundaries and expectations with their employer, allowing them to “switch off” outside work hours. This does not mean that the employer is prevented from contacting the employee where, in some circumstances, it is reasonable for an employer to contact an employee. This includes phone calls, emails, texts, MS Teams messages and any other contact by an employer after hours that is not reasonable; further extending to any contact or attempted contact from third parties outside of the employee’s working hours that relates to work matters.

Modern Awards and EBA’s

Modern Awards will also include the right to disconnect.  If an employee is provided with an enterprise agreement with a more advantageous right to disconnect clause than that provided by the Fair Work Act, the agreement’s clause remains applicable to the employee.

Key Takeaways

The new “Right to Disconnect” legislation is intended to manage a healthy work-life balance for all employees. Disconnection from workplace duties is to relieve employees from the pressure and expectation to continue working beyond their scheduled hours. Employees are entitled to refuse any additional work requested outside of work hours unless it is a reasonable request. Company strategies are a great way for employers to assess the risk of taking adverse action, whether intentional or not. All the new updates to the Fair Work Act 2009 (Cth), including the new Right to Disconnect, began on 26 August 2024.

Vocare Law is well equipped to assist our clients struggling with employment issues with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please do not hesitate to contact our office if you have any questions on ensuring your current employment status. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Fran Keyes, Eva Williams and Jack Macpherson.

In Queensland, the Anti-Discrimination Act 1991 (Qld) (the Act) establishes two broad classes of prohibited discrimination – direct and indirect. The former is overt and explicit, often involving clear, intentional actions that treat individuals unfavourably because of a protected attribute.

The latter is more subtle, and often unintentional. In accordance with section 11 of the Act, indirect discrimination on the basis of a protected attribute occurs when:

(1) a person imposes, or proposes to impose, a term—

(a) with which a person with an attribute does not or is not able to comply; and

(b) with which a higher proportion of people without the attribute comply or are able to comply; and

(c) that is not reasonable.

Pursuant to this definition, an institution which imposes a seemingly neutral policy may nonetheless be in breach of the Act if a disproportionate number of individuals with a protected attribute are unable to comply.

A key question arising from this proposition, is how the terminology “not able to comply” should be construed.

In Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249[1], the Tribunal found that the student could not, in keeping with the customs and cultural practices of his race, comply with a uniform policy that mandated “boys must not wear buns or their hair long”.

Conversely, in refusing an application for an interim order, Senior Member Fitzpatrick held in XA (BY ZA) v School [2024] QCAT 15 that there was no evidence that the complainant child was unable to comply with the requirement that he cut his hair, and that his hair length was a matter of personal choice.

In this article we explore the recent QCAT decision of Kos v Deltapath Pty Ltd [2024] QCAT 107 which helps to shed light on the meaning of “does not or is not able to comply”.

Facts

During the height of the pandemic, a Mitre 10 hardware store imposed a requirement that customers wishing to enter the store had to wear a face mask. The complainant, who suffered chronic anxiety and agoraphobia, alleged that this constituted indirect discrimination pursuant to s 11of the Act.

Principles Considered

Citing Waters v Public Transport Corporation (1991) 173 CLR 349, Member Gordon found that the purpose of section 11 is to eliminate discrimination which arises when:

one person appears to be treated just as another is or would be treated, but the impact of such equal treatment is that the former is in fact treated less favourably than the latter.

Expanding on this point, the Tribunal had recourse to the following cases:

• Taniela v Australian Christian College Moreton Ltd – the meaning of ‘can comply’ does not mean ‘can physically’ in the sense of being theoretically possible, but as meaning can in practice[2];

• Hurst v State of Queensland – the real issue was whether the complainant student would suffer serious disadvantage by reason of the requirement or condition imposed[3]; and

• Hickson-Jamieson v University of the Sunshine Coast ­– an inability to comply must be some incapacity to comply, not merely an unwillingness, or a preference for other outcomes. A claim that the requirement gives rise to an inconvenience, or a person would prefer alternatives, does not satisfy this element[4].

Held

The applicant ultimately failed to provide any real evidence to show that he was medically exempt from wearing a mask. Although Mr Kos may well have found wearing a mask uncomfortable and strange, it was held that he could have worn one without additional difficulty arising from his impairment when entering the store building had he wished to do so. As such, he failed to satisfy the first element of his complaint, and his complaint failed.

Takeaways

1. The words “not able to comply” should not be interpreted literally, as this would undermine the purpose of the provision; and

2. A personal preference for an alternate outcome, or a mere unwillingness to comply, will not give rise to a successful claim of indirect discrimination.

Vocare Law is well equipped to assist our institutional clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring your business or organisation is able to adequately comply with the Anti-Discrimination Act 1991 (Qld). Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Jonas Whincop & Courtney Linton.

**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.

Footnotes

[1] A decision subsequently upheld in Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118.

[2] [2020] QCAT 249.

[3] [2006] FCAFC 100

[4] [2023] QCAT 66.

On 27 March 2024, the Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Bill 2024 was introduced before Federal Parliament. If enacted as drafted, it will introduce a framework for mandatory climate related disclosure regime by certain companies.

We have been asked by some charities which are companies whether they are impacted by this proposed disclosure regime. The purpose of this short article is to provide a brief overview of the proposed regime, and its applicability to charities.

What does the Bill do?

The Bill amends parts of the Corporations Act 2001 (Cth), as well as eight other Acts, in order to ‘implement recommendations by the Council of Financial Regulators in relation to Australia’s financial market infrastructure’.[1]

Schedule 4 of the Bill contains the proposed legislation that will introduce the mandatory climate related disclosure regime, and is titled ‘Sustainability Reporting’. Among other matters, it proposes changes to Chapter 2M of the Corporations Act 2001 (Cth).

Chapter 2M of the Corporations Act 2001 (Cth) addresses financial reporting by companies and audit requirements. In particular, Part 2M.3 of that chapter places obligations on various entity types to report to the Australian Securities and Investments Commission (‘ASIC’) each financial year. The proposed changes would add to the recording keeping and reporting obligations by introducing the requirement to:

• keep ‘sustainability records’; and
• prepare and lodge a ‘sustainability report’ each financial year.

The purpose of this is stated to be to establish an internationally aligned mandatory climate disclosure reporting regime in Australia, the intention being to give investors and companies ‘the transparency, clarity and certainty they need to invest in new opportunities as part of the net zero transformation’.[2] ASIC will be responsible for enforcing this proposed regime.

Does the proposed regime apply to Charities?

As drafted, the mandatory climate related disclosure regime will fall within Parts 2M.1 to 2M.3 of Chapter 2M of the Corporations Act 2001 (Cth). In what may offer some relief to charities, the proposed reporting regime will therefore not apply to charities that are registered with the Australian Charities and Not-for-profits Commission (‘ACNC’), as section 111L of the Corporations Act 2001 (Cth) provides that Parts 2M.1, 2M.2 and 2M.3 do not apply to ACNC registered charities.

However, despite the carve out for ACNC registered charities in these proposed changes, the changes reflect a growing concern by governments and the community in general about climate change. It may therefore be prudent for charities to consider the size of their operations, be aware of the reporting requirements that are ultimately introduced within Chapter 2M, and take steps to position themselves to be ready for if such reporting requirements are ever extended to ACNC registered charities in the future.

Vocare Law is well equipped to assist our charity and not-for-profit clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring your charity is able to adequately comply with the ACNC governance standards. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Reece Morrison. 

Footnote

[1] ‘Treasury Laws Amendment (Financial Market Infrastructure and Other Measures) Bill 2024’, Parliament of Australia, Summary, <https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7176>

[2] See the media release from The Hon. Dr Jim Chalmers MP here: https://ministers.treasury.gov.au/ministers/jim-chalmers-2022/media-releases/new-climate-reporting-reforms-stronger-financial-system

Operating in the charity and not-for-profit space comes with many and varied responsibilities. From the time the decision is made to register a charity, and throughout the charity’s life, directors, board members and committee members must meet their obligations to ensure the ongoing prosperity of the organisation and shield themselves against personal liability. In this article we consider some of the main responsibilities required of directors, board members and committee members by the Australian Charities and Not-for-profit Commission (the ACNC).

Overview

Prior to the introduction of the ACNC and the associated regime, directors of charities were primarily governed by the directors’ duties provisions in the Corporations Act 2001 (Cth) (the ‘Corporations Act’). However the Corporations Act did not take into account the nuances of operating in the charity sector, and seemed to impose an ever increasing level of liability on those directors (as seen in the Centro case ASIC v Healey [2011] FCA 717). The introduction of the Australia Charities and Not-for-profit Commission Act 2012 (Cth) (the ‘ACNC Act’) marked a significant shift, and meant that the Centro decision and the related civil penalty provisions of the Corporations Act would no longer apply to registered charities.

Whilst a collective exhale could be heard across charity boardrooms Australia wide, the question remains, what is the standard of diligence required from charity directors and in what circumstances would liability for a charity director arise?

Australian Charities and Not-for-profit Commission

Many reading this article will be familiar with the ACNC, who is the independent regulator of registered charities in Australia. It is prudent here to note that not all charities in Australia are registered charities, and the contents of this article specially relate to people involved with charities that are in fact registered. The ACNC uses the term ‘Responsible People’ to refer to the different roles that attract duties within a registered charity (as each registered charity will have one of several different legal structures). These roles generally include each director of a company limited by guarantee, each of the members of an association’s committee of management of an incorporated association, each trustee of a trust and each director of a corporate trustee[1]. Each of these Responsible People has duties that they must comply with, the most pertinent of which are set out below.

ACNC Governance Standards

There are six governance standards set out in the Australian Charities and Not-for-profits Commission Regulations 2022 (Cth) (the ACNC Regulations) which entities are required to meet (in order to become registered, and on an ongoing basis). According to Governance Standard 5, charities must take reasonable steps to ensure that their Responsible People comply with their duties as follows[2]:

•  To act with reasonable care and diligence. It is the responsibility of the registered charity’s Responsible People to manage the charity. This includes staying informed of the charity’s activities and finances. Whilst is it at times necessary for a responsible person to rely on the expertise of others, this does not alleviate the requirement to make an independent assessment of the information provided.
• To act honestly and fairly in the best interests of the charity and for its charitable purposes. Responsible People are obligated to act in the best interests of the charity in order to further its charitable purposes. It would be a breach of this duty if their dealings were not honestly in the charities best interests, but rather in the best interests of the Responsible People or their associates.

• Not to misuse their position or information they gain as a Responsible Person. Often responsible people will need to make decisions about the finances or other resources of the charity. It would be a misuse of that position to use information for their own benefit or benefit of others such as family and friends.

• To disclose conflicts of interest. A conflict of interest between a responsible persons duty to the charity and their own personal interest, whether actual or perceived, must be disclosed to the other Responsible People of the registered charity. That person should also then refrain from voting on any issue relating to the conflict of interest. A key here is early and full disclosure, even in a circumstance where it may only look as though there is a conflict of interest.

• To ensure that the financial affairs of the charity are managed responsibly. This includes reading financial statements and making enquiries in relation to anything the responsible person doesn’t understand (those familiar with the Centro case may notice a similar representation here). Improper financial management is the most common way in which directors and other responsible persons get themselves into trouble. There is no substitute for taking care to discharge due diligence when it come to the charity’s financial management.
• Not to allow the charity to operate while it is insolvent. If the Responsible Person reasonably suspects that the charity cannot pay all its debts when they become due, then they must take all reasonable steps to prevent the charity from incurring any more debt.

Whilst the ACNC Regulations outline some protections for Responsible People, failure to comply with any of the above requirements of Governance Standard 5 can attract regulatory action by the ACNC and in some more extreme circumstances (discussed below) the criminal sanctions set out in the Corporations Act may apply.

ACNC Compliance Powers

As the national regulator the ACNC has statutory powers to ensure that the regulatory framework is complied with. These powers include the ability to take action against the charities ‘Responsible Persons’ and the registered charity itself. It may suspend or remove a Responsible Person (for example a member of the charity’s board or committee) and also disqualify them from being eligible to be on the governing body of another registered charity. If a person is disqualified they will be listed on the ACNC disqualified persons register.

In relation to the charity itself, the ACNC may issue a warning, a direction (directing the charity to do or not do something) or an enforceable undertaking (these arrangements can be enforced by a court). It may also seek an injunction from a court to make the charity do or not do something. In exceptional circumstances the ACNC may revoke the charity’s registration, which may in turn affect their ability to access government funding, exemptions, and tax concessions. The ACNC can apply administrative penalties if a charity makes false or misleading statements or fails to lodge documents on time. Ultimately it is the responsibility of the registered charity as an entity to ensure that the Responsible People comply with the governance standards, which in turn makes this a collective duty of all of the organisations Responsible People.

Criminal Offences of the Corporations Act

Unlike the civil sanctions that apply to directors for breaching their duties – which are generally not applicable to charity directors – there are criminal offences under the Corporations Act that still apply. Charity directors may face criminal penalties for breaching duties such as acting in good faith, acting for a proper purpose and not misusing their position or information. These sanctions will generally only apply in circumstances where directors are intentionally dishonest or reckless towards fulling their duties.

Furthermore, the duty to prevent insolvent trading under s588G of the Corporations Act continues to apply to directors of registered charities.

Breaching these duties can attract significant penalties. As such it is important that directors and Responsible Persons of registered charities act with a high level of care and diligence.

Practical guidance

There are some steps that you can take to ensure that you limit your exposure to personal liability, and in turn your charities exposure to risk as well, including;

1. 1. Always act with a high level of care and your discharge your due diligence;
   2. Read documents thoroughly, make sure you understand what you’re signing off on;
   3. Ask questions: if there’s something you don’t understand, seek clarification;
   4. If you consult an expert, ensure that you understand and accept their advice, consider their methods, and enquire to ensure they’ve acted according to industry standard;
   5. Keep records: ensure appropriate and accurate records are kept by the charity;
   6. Seek advice: if you are uncertain, seek advice from a qualified advisor before signing off.

The governance standards outlined within the ACNC Act create a minimum standard of operation for registered charities in Australia. Ensuring compliance to the governance standards is a requirement for a charity to maintain its registered status.

Vocare Law is well equipped to assist our charity and not-for-profit clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring your charity is able to adequately comply with the ACNC governance standards.

This article was written by Alice Osborne & Simon Mason.

**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.  

Footnotes

[1] This is a non-exhaustive list. There are other structures of registered charities that will attract duties and other roles within the organisations listed that will also attract duties.

[2] Whilst governance standard 5 relates directly to the duties of Responsible People, there are other related governance standards that Responsible People should also be aware of.

The Queensland Office of Fair Trading has introduced changes relating to dispute resolution procedures and remuneration disclosure requirements for Incorporated Associations, effective from 1 July 2024.

Dispute Resolution Procedures

Pursuant to recent amendments to the Associations Incorporation Act 1981 (Qld), Incorporated Associations are now required to implement and follow the new model rules’ grievance procedure or adopt another compliant procedure into their governing rules. This change has been introduced to ensure that Incorporated Associations have a formal process to handle internal conflicts and reduce the need for members to seek legal recourse in applying to the Supreme Court.

Action steps required for Incorporated Associations

The model rules’ grievance procedure will automatically apply to any Incorporated Associations who follow the model rules – no constitutional change is required. An overview of the procedure can be accessed here.

Incorporated Associations who already have their own grievance procedure or otherwise wish to adopt a custom procedure must ensure that the procedure complies with section 47A of the Associations Incorporations Act 1981 (Qld). This provision requires that grievance procedures must:

• allow a member to appoint any person to act on their behalf;
• give each party an opportunity to be heard;
• allow unbiased mediation if the dispute cannot initially be resolved; and
• ensure a decision-maker is unbiased if the grievance procedure allows a person to decide the outcome of the dispute.

Any current grievance procedures that do not comply with section 47A will be invalid. In this case, Incorporated Associations will be required to follow the model rules’ grievance procedure, until a valid procedure is adopted.

We note that outlining a grievance procedure in internal policy documents rather than in the governing rules of an Incorporated Association will be insufficient for the purpose of section 47A of the Act,  and will arguably cause the grievance procedure outlined in the model rules to apply to the association. As such, Incorporated Associations which currently outline a grievance procedure in policy documents should seek to amend their rules to ensure their preferred procedure continues to apply (subject of course to the requirements of the Act.

Remuneration Disclosure

Incorporated Associations are now required to disclose remuneration and other benefits received by management committee members, senior staff and their relatives at their annual general meeting (AGM). This change has been introduced to promote grater transparency and accountability within Incorporated Associations.

Remuneration and benefits may be disclosed as a total figure given to all persons, so long as the number of persons who have benefited is reported. Reporting is required even where the amount to report is zero.

It is important to note that Incorporated Associations registered with the Australian Charities and Not-for-profits Commission (ACNC) who are exempt from submitting annual financial reports to the Office of Fair Trading are not exempt from this requirement.

For the purpose of the reporting requirements, remuneration includes salary, allowances and other entitlements (eg. free coaching sessions, waived membership fees, or discounted purchases at the association’s club). The meaning of “benefit” is undefined by the relevant legislation, but guidance issued by the Office of Fair Trading suggests that “benefit” will be interpreted as all forms of compensation paid or provided by the Incorporated Association (which is not remuneration) in exchange for services. Examples include:

• Paid leave entitlements;
• Termination benefits;

Non-monetary benefits such as medical care, housing, care and free or subsidised goods and services.

Our team of not-for-profit lawyers are experienced in providing advice to incorporated associations. If your association is looking for advice, please contact us today on 1300 862 529.

This article was written by Sarah Gates & Jessica Lipsett.

An alcohol ignition interlock device is a breathalyser device that is fitted to your car and prevents the car from starting unless no alcohol is detected.

If you are convicted of certain drink driving offences, and your licence is suspended, you will almost always be required to have an interlock installed when you regain your licence. These offences include:

• Driving, or attempting to drive, while under the influence of drugs or alcohol;
• Driving, or attempting to drive, with a blood alcohol concentration of at least 0.1%;
• Dangerous operation of a vehicle while adversely affected by alcohol; and
• Refusing to provide a sample of blood or breath to police for analysis.

If you are subject to an interlock condition, you will need to notify the Department of Transport and Main Roads (TMR) of any cars which you wish to drive, and each of the cars must be fitted with interlocks. Apart from a few exceptional circumstances, you will not be allowed to drive any other cars for a 12-month period.

Importantly, the 12 months does not begin to run until you get your licence back and have a nominated vehicle fitted with an interlock. This means that you can’t simply wait out the 12 months in the hope of not having to get an interlock. However, the interlock period will eventually expire after five years.

Cost

There are a number of costs associated with interlocks. These include the initial cost of the device, the installation fee, periodic calibration fees, and the removal fee. Typical estimates of the total annual cost are in the $1500-$3000 range.

You will need to have your interlock serviced by an interlock provider every few months during the interlock period. Data from the interlock will be collected by the provider and given to TMR.

Financial assistance may be available in exceptional circumstances. You may also be eligible for a discount if you have a Healthcare or Pensioner Concession Card.

Exemptions

If you are (or are soon to become) subject or soon to an interlock requirement, you may be eligible to apply for an exemption. Whether TMR grants the exemption is discretionary, but reasons must be provided and you will be entitled to either seek an internal review of the decision or ask QCAT to review it.

TMR can only grant an exemption where certain conditions are met. These include circumstances where you live in a remote or inaccessible area, where you (or sometimes a family member) have a medical condition that prevents you from giving a sufficient breath sample, or where it is not physically possible to install in interlock in the only available vehicle.

There is also a general provision for an exemption to be granted in cases where severe hardship would be caused to you or a family member. However, both the cost of the interlock and the fact that you may need a car to commute to work must be ignored when assessing hardship.

If an exemption is granted, and your circumstances subsequently change in a relevant way, you will need to notify TMR.

Non-Compliance

If you are subject to an interlock requirement, the interlock period may be extended if you try to circumvent the interlock mechanism. This can occur if you get someone else to provide a breath sample, or remove or tamper with the interlock, or drive when you know that the interlock is not operating properly. Your interlock period may also may be extended if, in the last four months of your interlock period, you provide a breath sample that contains alcohol; even if you don’t start the ignition.

Driving in breach of your interlock requirements could also land you with a hefty fine of up to $4,516 (or $9,678 for a subsequent conviction).

This article provides general information only. To get advice tailored to your situation, submit an enquiry or call us on 1300 862 529 to book an appointment with one of our specialist Criminal & Traffic Lawyers today.

This article was written by Martin Churchill & Luke Borgert.

More than 6 years after the Royal Commission into Institutional Reponses to Child Sexual Abuse (Royal Commission) delivered its Final Report, Queensland is implementing its recommendations with the introduction of the Child Safe Organisations Bill.

Following a five-year inquiry, the Royal Commission presented its Final Report in December 2017. In this report, the Royal Commission recommended that state and territory governments:

1. 1. require relevant organisations to comply with 10 Child Safe Standards; and
   2. establish nationally consistent reportable conduct schemes to provide independent oversight of organisational responses to allegations of child abuse.

The Child Safe Organisations Bill 2024 (the Bill) will deliver the Queensland Government’s commitment to implement the Child Safe Standards and Reportable Conduct Scheme recommendations made by the Royal Commission through the enactment of two protective schemes, which will be monitored, guided and enforced by the Queensland Family and Child Commission.

The Bill’s definitions of “Child Safe Entities” and “Reporting Entities” casts a wide net on organisations that work with children. Organisations that will be impacted by the Bill include (but are not limited to) schools, religious bodies, early childhood care, health services, disability services and community services.

Child Safe Standards

The Child Safe Standards are principle-based and outcome focused standards designed to effectively improve the safety of child in institutions. The Standards are intended to be applied to Child Safe Entities in a flexible way, guided by an organisation’s structure, size, level of risk and characteristics. Many organisations will already have these standards in place as per the Human Right’s Commission’s National Principles which are built upon the work of the Royal Commission. For a list of the Standards as outlined in the Bill, click here.

Reportable Conduct Scheme

The Reportable Conduct Scheme outlines procedure for the reporting of certain conduct, as well as reportable allegations and convictions. Reporting Entities will be required to ensure that systems are in place to prevent, notify and investigate reportable conduct in the prescribed manner.

What action should organisations take now?

The Bill establishes a phased approach for the commencement of enforcing the Child Safe Standards and Reportable Conduct Scheme. Obligations under the Standards will commence for certain sectors from 1 October 2025 and for all Child Safe Entities by 1 April 2026. Obligations under the Scheme will commence for certain sectors from 1 July 2026 and for all Reporting Entities by 1 July 2027.

In preparation for the proposed changes, we recommend that organisations affected by the Bill seek to become familiar with the Child Safe Standards and Reportable Conduct Scheme and consider how these may be applied and enforced within the organisation through an audit of current organisation policies and procedures.

Our team of Charity and Not-for-Proffit Lawyers are experienced in providing advice to organisations that work with children regarding governance, policy and procedure. If your organisation is looking for advice, please contact us today on 1300 862 529.

This article was written by Sarah Gates & Jessica Lipsett.

The Facts and Issues

On 28 June 2024, the Fair Work Commission in Pece Calovski v Opal Packaging Australia Pty Ltd [2024] FWC 1717 ordered the employer to reinstate the employment of Mr Calovski, an employee whose employment it had terminated, to the position in which he was employed immediately before the dismissal, with back pay and continuity of service from the date of termination of his employment to the date of his reinstatement.

Mr Calovski was an employee at Opal when he became involved in a forklift accident on 27 June 2023, which he said occurred as a result of brake failure due to “brakes being a soft-pedal”. Opal conducted a workplace investigation and found instead that Mr Calovski had hit the accelerator causing the accident, and that he had lied about the brake failure. The employer did not accept Mr Calovski’s explanation and terminated his employment on 19 October 2023.

Mr Calovski applied to the Fair Work Commission (FWC) alleging his dismissal was unfair for reasons that included an absence of a valid reason for dismissal. The key issues in the proceedings were whether the brakes on the forklift malfunctioned and whether Mr Calovski was driving in an unsafe manner. There were also issues raised about the independence of the safety report commissioned by Opal.

The FWC proceeded with a hearing allowing legal representation having decided this was the most appropriate avenue provided the nuanced and complex facts of the scenario.

Opal conceded when giving evidence that if Mr Calovski had not lied about the cause of accident it might have decided not to terminate Mr Calovski’s employment. Opal claimed that technicians found no fault with the breaks, and another independent investigator Mr Sporl reported

“It was more likely than not that the brakes had not failed and that the accelerator may have been used by the Applicant in lieu of the brake, resulting in the incident”.

Key Findings

Despite the uncertainty regarding the brake failure Commissioner Matherson found that Mr Calovski was unfairly dismissed as under the Fair Work Act’s meaning of an unfair dismissal (s.385 of the Fair Work Act). Matherson considered that Mr Calovski’s accidental acceleration could not automatically amount to ‘gross negligence’ constituting grounds for dismissal.

Commissioner Matherson gave special regard to the quality and nature of evidence where serious misconduct is considered. Matherson referenced principles established in Briginshaw v Briginshaw where the balance of probabilities remains as the standard of proof but the quality of the evidence considered must reach a degree of reasonable satisfaction. This reasonable satisfaction should not be obtained from inexact proofs like the evidence used regarding the brake failure.

Commissioner Matherson ordered the reinstatement of Mr Calovski with Opal having to repay the difference in the weekly wage earned by Mr Calovski’s between the lapse in his employment and reinstatement less the notice period.

Takeaways

The case importantly highlights that procedural fairness plays a crucial role in the employment sphere. Employers should be aware of all evidential burdens, giving due consideration to policies, procedures and responses to workplace incidents.

Please reach out to our employment lawyers for specific advice. Call us today on 1300 862 529, or email your enquiry via the Contact us link, to arrange an initial consultation. We look forward to meeting with you.

This article was written by William Johnson, Law Clerk, and Fran Keyes, Practice leader (Employment & Discrimination Law)

On 12 July 2024 a decision was handed down by Deputy President Lake in the Fair Work Commission following an application made by employee to deal with a dispute about the right to request flexible working arrangements.

Facts

Mr Peter Ridings was an office worker for FedEx who requested multiple work from home arrangements from 2019-2024 with some agreed upon mutually and other disputed. Mr Ridings was the father of 2 intellectually disabled children with autism whose wife also had had autism and Ehlers Danlos Syndrome, all of whom resided with him. Mr Ridings’ consistent reasons put forward to his employer in his requests to work from home was to support his wife and children.

Mr Ridings was working from home 2 days a week and 2 days in the office between September 2022 and July 2023. He took 9 days of annual leave and 5.5 days of carers leave during this period, coinciding with the days he was required to work in the office.

On 28 June 2023 FedEx advised employees that as at 17 July 2023 employees would now be required to work in the office 3 days a week. Mr Ridings enquired how this would affect part-time employees and was advised by FedEx that the expectation was the same of part-time employees. Mr Ridings made a written request for a flexible working arrangement on 12 July 2023 seeking to work from home 3 days a week and 1 day a week in the office putting forward the same reasons as he had previously provided, providing documents including medical documents in support of his request.

FedEx requested his request on 1 August 2023 based on “business and operational requirements” namely that this proposed arrangement would be “likely to have loss of efficiency or productivity”, and that the company “encouraged intentional and effective collaboration among team members and more in person interactions in office” thus the expectation to work at least 3 days a week in the office.

Nevertheless, on 7 August 2023 FedEx provided Mr Ridings with an alternative stating he could continue working in the office for 2 days a week and work from home for 2 days a week, essentially a continuation of his current working arrangement.  Mr Ridings took issue with this and began taking annual leave one of the office days per week, leaving him with only one day a week in the office.

On 18 September Mr Ridings stated he had sprained his ankle and could not drive. He took unpaid leave until 1 December 2023. On 4 December 2023 Mr Ridings said he was able to work 4 days a week but was unable to drive to the office so asked if he could work from home during this period. On 10 January 2024 he made another request for flexible working arrangement to work from home 4 days a week indefinitely, citing the same reasons as before and providing more documentation including medical.  From 31 January 2024 FedEx tried to contact Ridings to discuss the request and an exchange of emails took place and disagreement ensued regarding the arrangement, and on 23 February 2024 FedEx rejected Mr Ridings’ request to work from home 100% of the time giving written reasons. Mr Ridings lodged an application with the FWC on 23 February 2024. FedEx agreed to continue Mr Ridings’ current work arrangement of 2 days in the office 2 days at home pending the arbitration decision.  Nevertheless Mr Ridings refused to come into the office.

The Findings

The Full Bench of the Commission outlined the 5 requirements for a flexible working application to be validly made in accordance with the legislation (section 65(1), s65B and s65C of the Fair Work Act).  The requirements are:

1. Any circumstance must apply to the Applicant. It must be a present circumstance rather than an anticipated circumstance.

Section 65 allows for a flexible working arrangement to be requested if any of the depicted section 65(1A) circumstances apply.

2. The employee’s desire for changed working must be because of the relevant circumstances under s.65(1A) and the request for a change in working arrangements must relate to it.

Section 65(1A) circumstances include the likes of:

• Pregnancy
• School aged children
• A carer
• Has a disability
• 55 years or older
• Family and domestic violence

3. The employee has a minimum period of service of 12 months.

4. The request must be in writing.

5. The request must set out the details of the change sought and the reasons for the change.

The Commission found that Mr Ridings had satisfied all of the required steps to make a valid flexible working arrangement request.

The Commission then had to determine whether the employer had refused the request. An employer has the discretion to refuse the request “only if” (s65A FWA):

a) The employer discusses the request with the employee.

b) The employer genuinely tries to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate their circumstances.

c) Where the employer and employee have still not reached an agreement, the employer may only refuse the request on reasonable business grounds.

Did FedEx genuinely attempt to reach agreement to accommodate Mr Ridings’ circumstances?

The Commission found that it did. It considered what the meaning of what ‘genuinely attempt to reach agreement’ means in relation to an employer refusing a request for a work from home agreement (as under s.65(3)(a)(ii) of the Fair Work Act).

The Commission emphasized that an employer can only refuse a request with the information that has been presented to them, and that the employer takes reasonable steps to enquire about the employee’s circumstances.

At hearing Mr Ridings raised that his carer demands had increased, calling for this higher work from home need. However, not having been clearly told of the particular details placed FedEx in a position where the commissioner said ‘the employer could have not been properly informed of these circumstances’ limiting the ability of FedEx to have acted unconscionably when dismissing Ridings’ application. The Commission was satisfied FedEx did try to genuinely attempt to reach agreement in understanding Mr Rindings’ circumstances with the information before them.

Did FedEx have reasonable grounds to refuse the request?

The Commission found that it did not. It said that although the legislation does not limit what reasonable business grounds mean, the interpretation and wording of this provision seems to require the employer to demonstrate a likely detriment to the business if they wish to refuse a flexible working arrangement. If there is no detriment to FedEx in accommodating the request, it is in the employer’s interest to accommodate the employee in encouraging employee retention and provide job security.

Section 65A(6) FWA requires an employer to explain how the grounds apply to the flexible working arrangement request. FedEx relied on s65A(5)© FWA for refusing Ridings’ request as approving the request would likely result in a significant loss in efficiency or productivity. If the argument was that the lack of interaction and collaboration would cause a likely detriment to productivity and efficiency, it would need to be substantiated. For instance, if the employee was not meeting targets, difficult to contact, and tasks were not being performed to a specific standard while he or she was working remotely, it would be a reasonable business ground to refuse the request. Another example could have been the lost opportunity to assist an employee to improve performance through collaboration and guidance if working from home 100% of the time. The evidence of Mr Bilic and Mr Michael suggested that this was a potential issue. However, this was never raised by FedEx refusing Mr Ridings’ request.

Another reason which FedEx could have considered was concerns on the Applicant’s wellbeing. Given that Mr Ridings had not been in the office since 18 September 2023, there would be sufficient reason to ensure that Mr Ridings caretaker duties of his wife and children’s conditions were accounted for and the Employer could check from time to time. Work from home arrangements on a full-time basis can be isolating, particularly in a potentially stressful home environment. Ensuring that Mr Ridings would work in the office on in some kind of regular pattern would allow FedEx to ensure there are adequate support processes at work for him.

The Commission found that although it is beneficial for Mr Ridings to have further collaboration with his fellow workers, FedEx fail to consider Mr Ridings’ personal circumstances in their reasoning for refusing their request or how approving the request would be detrimental to the business. Generic and blanket HR answers are not sufficient alone to establish a reasonable business ground for refusing a request. Therefore it was not satisfied that FedEx provided a sufficient explanation for why the request was refused on reasonable business grounds on 21 February 2024.

How would the Flexible Working Arrangement apply?

Generally, it should be open to the employer and the employee to negotiate an outcome which addresses the circumstances. However, the Commission was satisfied that there was no reasonable prospect of the dispute being resolved without making the Order under s.65C(3) of the Act, however stated that with this also comes a great degree of caution to be exercised by the Commission.

Section s.65C(2) of the Act requires to consider fairness between the employer and the employee. Fairness encompasses flexibility, certainty and stability for employers and their employees.36 It is important that the employer has flexibility to be productive and economically viable. The flexible working arrangement should not impede or burden the employer from making decisions. It is also important to recognise employees’ right to access flexible work arrangements under the NES.

Orders made

The Commission ordered the following flexible working arrangement:

• A 3-day work from home and 1 day in the office arrangement when Ridings may be required to work in the office on certain days- Noting the commission stated that Ridings was entitled to take his statutory entitlements on a working from the office day;
• If:
  • Ridings does not attend the office for 2 consecutive weeks;
  • There are performance concerns or
  • There are genuine operational requirements which require Mr Ridings’ attendant

FedEx may lawfully and reasonably request Mr Ridings to work at the office on the days that he is permitted to work from home.

• This Order is valid for 3 months and will expire on 12 October 2024 to allow the parties to review Mr Ridings’ circumstances and provides FedEx the opportunity to assess its operational requirements.
• If Mr Ridings wishes to extend or vary the flexible working arrangement of this Order once it expires, he will need to lodge a new request in accordance with s.65 of the FWA.

Key Take Aways

This case highlights some very important considerations for employees and employers. Communication is key. Careful consideration of all factors and appropriate supporting documentation. Also the limits of Orders. Reaching a mutual agreement is usually the preferable course of action.

Please reach out to our employment lawyers for specific advice about flexible work arrangements. Call us today on 1300 862 529, or email your enquiry via the Contact us link, to arrange an initial consultation. We look forward to meeting with you.”

This article was written by Fran Keyes, Practice leader (Employment & Discrimination Law), assisted by William Johnson, Law Clerk