Facts

The applicant was a woman in her early twenties, who had been a long-term employee of the respondent as an Assistant Restaurant Manager. The respondent is part of the Southern Restaurants Group, the largest private KFC franchise owner in Australia.

The applicant submitted to the Tribunal that she planned to return to work from parental leave in November 2021 with flexible work arrangements to accommodate for her breastfeeding needs. Pursuant to the Fair Work Act 1998 (Cth),[1] she requested she be provided with a private and clean room with a comfortable chair, a refrigerator in which to store expressed milk, sufficient time to express, and facilities to wash and store equipment.

The respondent provided the applicant with a pop-up tent in a back storeroom with a chair. The storeroom was a small space without a door and therefore no privacy. The applicant believed that the sound of her expressing milk was audible to other staff. A staff member could enter the storeroom at any time. The respondent submitted to the Tribunal that it could not provide a private room due to the store layout and lack of private rooms. Further, any changes to store layout would have incurred to the respondent significant costs.

Due to the unsatisfactory work environment, the applicant began to leave site to express her milk at a local mall during unpaid meal breaks, but only when there was another manager on site. The respondent submitted that it could not permit the applicant to leave the store when she was operating in her management role, due to the policy that there must be at least one manager on site at any given time to respond to health and safety matters. It was further submitted it was too costly and inefficient to regularly ensure that there were two managers on site for the applicant’s shifts. Regularly, no other managers were present on site and therefore she could not take breaks to express milk. This caused the applicant significant pain and discomfort.

The applicant further proposed she be transferred to a nearby KFC restaurant, where more suitable facilities to express milk were available. This was initially declined by the respondent, to which it submitted would be disrupting to staff arrangements. Eventually, a transfer was agreed upon when the store could accommodate another manager, but the applicant resigned before the transfer occurred.

The applicant submitted to the Tribunal she felt ultimately “trapped and pressured to discontinue breastfeeding”[2] due to the respondent’s response to her ongoing requests and issues raised. She further submitted to the Tribunal that the respondent was ill informed regarding breastfeeding, and that the respondent had suggested that she step back to a casual role on multiple occasions to accommodate for her breastfeeding needs, which would be a demotion.

Findings

The Discrimination Act 1991 (ACT) (“Discrimination Act”) protects persons with protected attributes from direct and indirect discrimination[3] in certain areas of public life, including employment[4]. One of the protected attributes is breastfeeding.[5] Queensland offers similar protections for breastfeeding at work under the Anti-Discrimination Act 1991 (Qld).[6] The applicant alleged that she was indirectly discriminated against as per section 8(3) of the Discrimination Act.

The Tribunal referred to the case of Australian Capital Territory v Wang[7] as a framework for applying section 8 of the Discrimination Act. Under this framework and the Act, the applicant is required to establish in evidence that the respondent had been imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantage due to her protected attribute. If successful, the onus is then on the respondent to demonstrate that the effect of the disadvantage was not due to her protected attribute, or alternatively that the condition or requirement imposed was reasonable in the circumstances.

Was there a particular condition or requirement in the circumstances of this application?

The Tribunal found that the respondent imposes as a condition of employment upon mangers of its stores, in that they may not leave the store unless there is another manger on site, trained in work health and safety.

Was the condition imposed by the respondent?

The Tribunal found that the respondent imposed the condition upon the applicant, as a manger of one of the stores, and insisted upon her compliance. The condition was not mandated by law or any work place regulation, rather, a term of employment imposed for commercial reason. The respondent was found to have resisted variation or flexibility relating to the condition.

Was the effect of the condition to disadvantage certain people with that attribute?

The Tribunal found that the effect of this condition was disadvantageous upon employees with the attribute of breastfeeding, and that the disadvantage arose because of the imposition of the condition of the respondent, and their failure to make appropriate alternative arrangements.

The Tribunal further noted that the respondent’s submission that it let the applicant leave the store “most of the time” to express milk was not a sufficient accommodation.

Did the detriment occur because the applicant had that attribute?

The Tribunal was satisfied that that the imposition of the condition upon the applicant resulted in her ill health, arising from the workplace response, due to her attribute of breastfeeding.

Was the condition reasonable in all the circumstances?

The Tribunal was not satisfied that the condition imposed by the respondent was reasonable, nor were the alternatives suggested by the applicant unreasonable.

Conclusion

The Tribunal was ultimately satisfied that the applicant had been indirectly discriminated against by the respondent, on the grounds of her status as a breastfeeding mother, by imposing upon her a condition which was disadvantageous and not reasonable.

The Tribunal concluded that the respondent’s condition imposed upon managers to not leave the site was “not a reasonable response to the needs of a modern workforce”;[8] nor when applied in actual effect would achieve the outcome that the respondent sought:

“The respondent insists on the condition being enforced so that a manager trained in work health and safety would be available in an emergency, but the Tribunal questions how an employee half undressed, on a chair, in a tent could be a responsive manager in any emergency in any case.”

The Tribunal further commented on the duty of employers to appropriately accommodate for persons who are breastfeeding in the workforce:

“Catering to the needs of breastfeeding employees is not an outlandish demand. Women remaining in the workforce after giving birth has become a commonplace occurrence. In the future, there will be other employees who will wish to breastfeed their child. It is an unavoidable workplace issue which needs to be met and dealt with in an appropriate fashion.”[9]

The matter was listed for further direction.

Appointment

If you feel like you have been discriminated against in the workplace, please contact us on (07) 3252 0011 to book a consultation with one of our employment team today.

This article was written  by Luke Borgert  and Sarah Gates

[1] Fair Work Act 1998 (Cth) s 65.

[2] Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2003] ACAT 57, 12.

[3] Discrimination Act 2011 (ACT) s 8.

[4] Discrimination Act 2011 (ACT) s 10.

[5] Discrimination Act 2011 (ACT) s 7(1)(d).

[6] See s 7, 9 and 15.

[7] Australian Capital Territory v Wang [2019] ACAT 65.

[8] Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2003] ACAT 57, 36.

[9] Ibid, 36.

Can social media posts be considered workplace bullying?

YES – An online post from your personal social media can be grounds for establishing workplace bullying. The following cases highlights the importance of understanding how your private social media posts and activity can affect you at work.

How does a Facebook Post amount to bullying?

Case

Bowker & Ors v DP World Melbourne Limited T/A DP World; MUA and Others [2014] FWCFB 9227

Facts

• Allegations were brought (amongst others) that various unreasonable and insulting Facebook posts were made by the respondents about the applicants.

• The applicants in Bowker pursued a Fair Work Commission complaint seeking an order for the bullying to stop.

Issue

• Did the posts constitute workplace bullying as defined by section 789FD of the Fair Work Act 2009 (Cth) (“the Act”)?
• What was the Bench’s definition of “bullied at work” and “while the worker is at work”?

The Definition of “At Work”

The Full Bench found that the term “at work” clearly involved instances where the worker was performing work regardless of their location.

Thus, if a person is working from home or in an external meeting they would be considered at work. Similarly, if they were on an authorised lunch break this would be considered “at work” for the purposes of section 789FD even though they were not performing work.

Therefore, they found a useful formulation of “at work” to be:

both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal.

When applied to social media bullying, “at work” would include instances where the worker is accessing social media while engaged in an activity that is authorised or permitted by the employer. For example, at work would include checking Facebook while on a coffee break or reading a text message while writing a work email.

When will a social media post be considered bullying?

The Full Benches decision made it clear that it is not important when the online comments are made, but the time when the worker making the claim is accessing it.

If the worker has accessed the offending post while performing work or being engaged in an authorised activity by their employer it may be covered by section 789FD, and considered bullying at work. This also means that if a worker views bullying social media posts when they are not “at work” they may not be entitled to a remedy under section 789FD.

Does Unfriending a Colleague amount to bullying?

In Rachael Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird [2015] FWC 6556, the act of “unfriending” a colleague on social media was taken into consideration when establishing workplace bullying.

Unfriending a colleague was not found to be workplace bullying in and of itself, however, when coupled with other ongoing and unreasonable behavior, was seen as indicative of unreasonable behavior.

In this case, some of the alleged bullying included:

• belittling and humiliating comments in front of others;
• refusing to let the Applicant adjust the air-conditioning temperature;
• requiring the Applicant wear a uniform when other employers weren’t required to do so;
• deliberately delaying performing any administrative tasks for the Applicant;
• directing potential clients away from the Applicant, posing a disadvantage to her;
• not acknowledging the Applicant; and
• eavesdropping on the Applicant’s telephone conversations.

So, when considering the act of unfriending the applicant in these circumstances, you can see how it would be perceived as contributing to the sum total of establishing workplace bullying conduct.

What does this mean for Employers and Employees?

These two cases alone indicate that social media activity can have a bearing on allegations of workplace bullying. Not only can private use of social media be considered grounds for establishing workplace bullying, but it can also apply outside the physical place of work. This means that online posts can be deemed as bullying regardless of when and where the perpetrator makes the post.

Employer As an employer, it is important to address the use of social media in your workplace bullying policy. Social media conduct will continue to be brought into matters of workplace bullying.

Employee As an employee, do not consider your private use of social media as being irrelevant to allegations of bullying conduct in the workplace. Instead, every post you make can be used as evidence to support allegations of workplace bullying. Better yet, do to others what you would have them do to you and exercise caution when posting on social media posts that may cause insult or humiliation.

Need an Anti-Bullying Policy or do you need to review and update your existing policy to include social media implications? We can help.

Should you need assistance with the drafting of anti-bullying policies for your workplace, or if you feel you are being subjected to workplace bullying, please contact one of our client engagement officers today and make an appointment to see one of our Brisbane Employment lawyers.

Helpful Links: 

https://corneyandlind.com.au/social-media-workplace-bullying/

https://corneyandlind.com.au/employment-law/workplace-bullying/

https://corneyandlind.com.au/resource-centre/employment-vlogs/correlation-bullying-discrimination-workplace/

Employment Law – Flexible Working Arrangements – Information for Employers and Employees

More and more employees need to adapt their work schedule to their way of life. This flexible working arrangement would be relevant for working parents, working carers and mature age employees and they have the right to apply through The National Employment Standards (NES).

Section 65 of the Fair Work Act 2009 (FW Act) provides that an employee may request flexible working arrangements in particular circumstances. The circumstances are:

The employee is a parent or has responsibility for the care of a child of school age or younger (including an employee returning from parental leave);

• • The employee is a carer within the definition of the Carer Recognition Act 2010;
  • The employee has a disability;
  • The employee is 55 or older;
  • The employee is experiencing violence from a member of the employee’s family; or
  • The employee provides care or support to a member of the employee’s immediate family or his/her household who requires care or support because they are experiencing family violence.

The requests can be made by way of seeking:

• • Changes in hours of work;
  • Changes in patterns of work; and
  • Changes in location of work

Before a request is made for flexible working arrangements, the employee must have completed at least 12 months continuous service with the employer.  In the case of casual employment, a request can only be made if the employee is a long term casual employee (which means at least be employed for 12 months) with the employer immediately before making the request.  The employee also has to have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

What is the process for requesting flexible working arrangements?

Employees who wish to make a request must do so in writing, and must set out the details of the changes sought along with the reasons for the requested change (s65(3) FW Act).

1. 1. Once an employer receives such a request, they have 21 days in which to provide a written response to the employee.  The employer’s response must state whether or not the request will be granted or refused (s65(4) FW Act);
   2. Employers may only refuse a request on reasonable business grounds (s65(5) FW Act); and
   3. If a request is refused, the written response provided to the employee must include details of the reasons for the refusal (s65(6) FW Act).

What is a ‘reasonable business ground’ for refusal?

Section 5A of the Fair Work Amendment Act 2013 provides a definition of “reasonable business ground” and they include:

• • That the new working arrangements would be too costly for the employer;
  • That there is no capacity to change working arrangements of other staff to accommodate the request;
  • That it would be impractical to change the working arrangements of other employees or recruit a replacement employee to accommodate the employee’s request;
  • That the new arrangements would be likely to result in a significant loss or productivity or efficiency;
  • That the new arrangements would be likely to have a significant negative impact on customer service.

Although the provisions for flexible working arrangements is a minimum requirement, in practicality it would seem that this provision is of minimal assistance to employees.

Even though the FW Act gives employees the right to request flexible working arrangements and requires the employer to give written reasons for rejecting the request, the FW Act does not provide a direct enforcement mechanism for the employee’s right. When we consider Section 44 of the FW Act it specifies that unlike the majority of the NES, there is no civil penalty action under the FW Act available against an employer who has contravened (or has allegedly contravened) a refusal of a request on reasonable grounds.  This means that an employee will not be able to challenge their employer’s refusal of their request for flexible working arrangements made pursuant to the provisions of the NES, or to investigate a refusal allegedly made on the basis of “reasonable business grounds” under the NES.  Therefore, the NES provisions may be of limited or little practical utility to most employees.

There may be situations where an employee is subject to an Enterprise Agreement that includes a provision relating to requests for flexible working arrangements. If the provision is the same or substantially similar (and has the same effect as the NES); the Fair Work Commission can deal with disputes regarding “reasonable business ground”, and thus a contravention would subject the employer to the normal enforcement mechanisms under the FW Act (s186(6)).

The FW Act 2009 has provisions for employees on the basis of discrimination. For example, in situations where an employee considers that they were refused flexible working arrangements based on prejudices related to discrimination, sex, disability or race.  Employees can seek remedies that may be available to them under relevant legislation if they consider that their employer has discriminated against them in connection with such a request.

Considering Flexible Working Arrangements? Know your rights. Contact us

Specific legal advice should be taken to consider whether your employment situation is an exception, or falls within the general rule. Our Brisbane Employment Lawyers can assist you with this.

We now have a dedicated team of Business Development Officers to assist you in engaging with us.  Communication with our Business Development Officers is absolutely free. Call (07 3252 0011) or email one of our Business Development Officers (General Enquiry) now.

This article was written by Heilala Tabete

Employment Termination Checklist

Dismissing an employee or being dismissed can be a complicated time for all involved. Our Employment Termination Checklist may be helpful in ensuring you have met all the legal requirements if you are considering this process or have already begun it. It will also ensure a smooth transition as much as possible.

Make sure the employee is being terminated for a valid reason

In Australia there are laws governing the reasons an employee may be terminated. The lawful reasons an employee may be terminated are:

• • Redundancy – the position is no longer required due to lack of demand, technological advances or the insolvency of the employer;
  • Lack of Competency – the employee’s work has not been adequate;
  • Serious Misconduct – the employee has engaged in theft, assault, fraud or other conduct that puts the health and safety of other employees at risk or is inconsistent with his or her continued employment; or
  • Mutual agreement between the employee and employer.

There are many reasons that would be unlawful to terminate an employee for. These include:

• • Because of the employee’s gender, marital status, sexual orientation race, age, colour, pregnancy. Termination of employment for these reasons could potentially lead to a discrimination claim;
  • Because the employee has exercised a protected employment right, like:
    • taking sick leave
    • taking parental leave
    • requesting flexible working arrangements
    • filing a Worker’s Compensation Claim
    • making a complaint or enquiry regarding their employment, or
    • taking part in an Industrial Action against the employer.

Make sure that the employee has been fairly dealt with

It is important that during the termination process, the employee is dealt with fairly by the employer. The employee can make an Unfair Dismissal or General Protections claim through the Fair Work Commission if the employer does not exercise procedural fairness during the termination process.

Please note that there are certain circumstances where you cannot claim through the Fair Work Commission, if you work for State government or are subject to employment contracts within high income threshold.

To avoid this, the employer must:

• • Warn the employee of any concerns the employer has about his or her performance before deciding to terminate the employee’s employment;
  • Give the employee adequate opportunity to respond to these concerns;
  • Thoughtfully consider whether there are alternatives to dismissal, such as training or redeployment; and
  • Grant any reasonable requests by the employee to have a support person present at discussions regarding the employee’s ongoing employment.

In all circumstances the dismissal must not be able to be construed as harsh, just or unreasonable.

Small Businesses (those employing less than 15 people) can seek to avoid Unfair Dismissal claims by following the Small Business Fair Dismissal Code Checklist.

Make sure the employee has been given adequate notice

The employer must give notice as to when the termination will take effect once they have decided to terminate an employee. This notice MUST be given in writing to the employee or sent to their last known address. The notice period is the time between when notice is given and the last day of the employment and the length of notice required will be determined by either the provisions of the applicable employment contract, or otherwise as set out by the National Employment Standards, as set out below.

How much notice is required?

There are some specific circumstances where no notice is required. These include:

• • Where an employee is employed for a specified period of time, for a specified task, or for the duration of a specified season;
  • Where an employee is terminated because of serious misconduct (for example, an employee who has, in the course of their employment, engaged in theft, fraud or assault);
  • Where an employee is a casual employee;
  • Where an employee (other than an apprentice) is limited to the duration of the training arrangement; and
  • Where (in some circumstances) the employee is a daily or weekly hire employee.

Once the employee has been given notice, they can serve the notice period or be “paid out” for the notice period, at the discretion of the employer. If they are paid out they must receive their normal pay rate for their normal hours for the designated notice period in lieu of serving their notice period in the workplace.

Make sure the employee has received the correct amount of pay

Employers have to fulfil their obligation to pay out employees upon termination and the amount depends on the individual situation. Many employees are entitled to a lump sum payout made up of outstanding wages, accrued annual leave, long service leave (where applicable) and/or redundancy pay.

If you are need assistance in navigating the termination process, you should contact a lawyer as soon as possible. Strict time limits do apply from the date of termination. Contact our Client Engagement Team on 07 3252 0011 or email us today to make an appointment.

Employment contract review – what to do before signing the dotted line

An employment contract sets out the terms by which you are employed and will include things like your hours of work, pay rate and termination provisions. Signing your employment contract means that you are agreeing to adhere to the terms that it sets out. You may not realize the implications of the terms of your contract until well after you signed it.

A lot of the time, people don’t pay much attention to their employment contract until an issue arises with their employer. If there ever is such an issue, the terms of your contract are going to be extremely important.

For this reason, it is critical that you understand everything that you are agreeing to before you sign on that dotted line. Enlisting the professional services of a competent lawyer to review your employment contract is a valuable way to ensure that you understand what your rights are, what your employer’s rights are, and whether there are any clauses that might one day take you by surprise.

Here are some other reasons:

These links are also useful to checking contract compliance with legislative requirements:

• • the Fair Work Act;
  • the National Employment Standards; and
  • the Fair Work Information Statement for examples relating to maximum weekly hours, parental leave, notice of termination.

Would you like an employment contract review? Contact us

We can arrange an employment contract review with one of our Employment Lawyers. This review can be done either in person or online and we offer a fixed cost of $660 including GST.  The fixed cost covers 1.5hours of work, which includes:

• • 30 minutes review of your employment contract +
  • 1 hour consultation with you, either in person, teleconference or ZOOM to explain your employment contract to you.

Please contact our office on (07) 3252 0011 and speak with one of our client engagement team to arrange an appointment today.

Genuine Redundancy

There are difficult times ahead for the economy and employees are faced with the possibility of making employees redundant.

How do you achieve this whilst still protecting yourself from a claim for unfair dismissal?

If you are an employee what are your rights when it comes to being made redundant?

When does Unfair Dismissal arise?

We consider Section 385 of the Fair Work Act 2009 (Qld) (“the Act”) that provides that unfair dismissal arises when:

(a)       a person has been dismissed; and

(b)       the dismissal was harsh, unjust or unreasonable; and

(c)       the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)       the dismissal was not a case of genuine redundancy.

Do Employers have a defence against a claim of Unfair Dismissal?

In the event of unfair dismissal, employers may have a defence if a person’s dismissal amounts to genuine redundancy. Section 389 of the Act provides that it will be a genuine redundancy if the employer can prove that:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

(b) the employer has complied with any obligation in a modern aware or enterprise agreement that applied to the employment to consult about the redundancy.”

Further, the employer must prove that it was not reasonable in the circumstances for the person to be redeployed.

What is a genuine redundancy?

A dismissal is a case of genuine redundancy if the employer no longer required the job to be performed by anyone because of changes in the operational requirements of the enterprise.

If this happens, the Employer must consider re-deployment options and comply with any obligation in a modern award or enterprise agreement to consult about the redundancy.

It is very important that an employer carefully considers these obligations, as a failure to comply can mean that it is not a genuine redundancy and recourse to unfair dismissal may be available.

What are the consultation obligations?

As an employer there are consulting obligations that you must comply with in a relevant Modern Award or Enterprise Agreement.  Consultation obligations can include:

• • notifying the affected employees and their representatives (if any) when a definite decision has been made;
  • discussing the decision with the employees and their representatives (if any) as early as practicable after the decision has been made;
  • providing all relevant information (in writing) about the changes to the affected employees (including nature of the changes proposed, expected effects of the changes on the employees, and measures to avert or mitigate the adverse effects); and
  • giving prompt consideration to matters raised by the employees relating to the change.

If in the case that an employer fails to comply with the consultation obligation, this may result in an unfair dismissal as the employer will not have a defence of genuine redundancy. If this happens, the employer will then need to demonstrate that, not withstanding this failure, the dismissal is still “fair”.

In Harrison v Queensland University of Technology [2010] FWA 8789, the employee’s dismissal was held not to be a genuine redundancy despite the fact that the employee’s position was no longer required. This was because QUT had failed to take several vital steps in the redundancy process. For example, the employer did not discuss or consult with the employee any possibility of redeployment before the decision to terminate the employment was made.

Is it reasonable for a person to be redeployed?

Being redeployed depends on whether the redeployment is within the employer’s enterprise or the enterprise of an associated entity of the employer and is reasonable in the circumstances.

In this case, the dismissal will not amount to a genuine redundancy and the employer may not have a defence to a claim of unfair dismissal.  However, if such redeployment is not reasonable in all the circumstances, the employer may rely on the defence of genuine redundancy.

Again, in Harrison v Queensland University of Technology [2010] FWA 8789, an offer of redeployment was provided to the employee by letter.

However, there was no consultation or discussion with the employee about redeployment, before the decision to terminate the employee’s employment was made. There needed to be a real consideration of options for redeployment.

In another case, the Full Bench of Fair Work Australia in Ulan Coal Mines Ltd v Honeysett & Others [2010] FWAFB 7578 held that “it is an essential part of the concept of redeployment…that a redundant employee be placed in another job in the employer’s enterprise as an alternative to termination of employment”.

The Full Bench found that the following factors are relevant when considering whether it is reasonable for a person to be redeployed:

• • the job must be suitable (that is, the employee should have the skills and competence to perform it);
  • the location of the job in relation to the employee’s residence; and
  • the remuneration which is offered.

In the situation of redeployment, an employer would have to consider all the factors involved. If the employer decides that it would not be reasonable for the person to be redeployed, then it may rely on the defence of genuine redundancy if a claim of unfair dismissal is made against it.

Do you have questions regarding a redundancy defence?

As an employer, making a decision regarding redundancy may need the recommendation of legal experts. We would recommend that you seek legal advice prior to making any decision to ensure that you meet all the requirements in the Act..  We can assist you with this.

As an employee who has been dismissed on the basis on redundancy and you want to know if it might amount to unfair dismissal, early legal advice is essential as you only have 14 days from the date the dismissal takes effect to bring an application for unfair dismissal.  We can assist you with this. Contact us today!

Enforceability of Online Contracts in Australia

In recent years, we have seen a boom in online businesses. As most businesses prefer to conduct transactions over the internet, it is important for business owners to understand and know the legalities of how online contracts are enforced in Australia.

There are two common methods of accepting terms and conditions of an online agreement. They are the click-wrap agreement and the browse-wrap agreement.

What is a click-wrap agreement?

It is an electronic agreement where the terms and conditions of the agreement are located on the same page as the “I Agree” button. Consumers are usually required to scroll through all the terms and conditions and then take positive action by clicking “I Agree” before being able to proceed.

Although this form of agreement is highly likely to be enforceable as a contract one must pay careful thought to a number of issues such as:

• • when is the contract formed? Is the merchant making an offer online that the customer accepts (that sees the formation of the contract at that point) or is the customer making an offer which may then be accepted or rejected by the merchant. The Terms & Conditions will be need to be tailored accordingly.
  • if the contract is formed at the time of clicking “I Agree” other Terms & Conditions cannot be added later.
  • do the Terms & Conditions contain clear rights of the merchant not to supply in certain circumstances?
  • do the Terms & Conditions contain clear return and refund terms that are compliant with the law in Australia?

What is a browse-wrap agreement?

A browse-wrap agreement is where the terms and conditions are not on the same page as the “I Agree” button, and can be accessed by a hyperlink on the same page. The consumer is normally not required to access the hyperlink and view the terms and conditions before being allowed to proceed with the contract. This form of agreement is less likely to be enforceable as a contract.

As the same rules of paper contracts also apply to electronic contracts, we consider two landmark cases in the law of contracts.

In L’Estrange v Graucob[1], the court decided that, a signature is taken to fully bind the consumer to all terms and conditions of the contract. This is in the absence of vitiating factors such as fraud and misrepresentation.

Modern technology has also introduced the use of digital signatures. In Australia though, it is still unclear as to whether using a digital signature counts as a signature for the purposes of the rule in L’Estrange[2]. 

It is therefore, important for business owners to construct their website in a way that provides reasonable notice prior to the formation of the contract, satisfying the rule in Thornton v Shoe Lane Parking[3].

Business owners should also take all steps to ensure the arrangement of the terms and conditions and the “I agree” button express an intention for the terms and conditions to be wholly incorporated into the Contract formed with the customer.

Best practice would see:

• • The customer is required to scroll to the end of the terms and conditions (in a scroll box for example) before being allowed to proceed, establishing reasonable notice of the contract’s terms and conditions.
  • The terms and conditions are displayed on the same page as the “I Agree” button, but the “I Agree” is located at the base of the terms and conditions, once more establishing reasonable notice of the contract’s terms and conditions.
  • Any unreasonable terms and conditions should be bolded or highlighted to draw added attention.[4]
  • An “I have read the terms and conditions” tick box should be assented to (and left blank by default, requiring an additional positive step by the customer) before being allowed to click the “I Agree” button. This is to provide a visible mark to the contract[5] and emphasize the user’s agreeability to the contract.[6]

A browse-wrap agreement is not recommended for business owners as it will place the vendor in a weaker legal position because it does not provide the same degree of reasonable notice to the user.

It is also important for business owners to consider the application of the Australian Consumer Law (ACL) on their online standard form contracts. They should pay particular attention as to whether any of the contract’s terms may be unfair contract terms.

Our lawyers regularly advise clients on eCommerce legal issues. A conference, with one of our lawyers, by phone or in person, is often enough to provide you with peace of mind that the settings are correct. Please contact us today to book an appointment with one of our lawyers.

For more information regarding the Enforceablity of Online Contracts or Click-Wrap Agreement

Please contact our client engagement team or call us on (07) 3252 0011 to book an appointment with one of our specialist Commercial Lawyers today.

Footnotes

Keep Your Records

The Importance of Keeping Good Employee Records – An Employer’s Perspective

The Federal Magistrates Court of Australia imposed heavy fines on two companies and their directors who failed to keep proper employee records. This unpleasant experience was costly for the companies and directors who brought in three Chinese workers on temporary work visas and did not comply with workplace relations law.

The two companies’ records failed to keep details of remuneration paid to the workers and given the lack of records, the argument that the workers had not been paid for a period of time could not be rebutted. The court found that the directors, who were Singaporean nationals, had been involved in sophisticated property, corporate and employment arrangements during their careers and therefore should have known of their employer obligations. Thus, their argument that they were unaware of Australia’s workplace relations law did not hold in court.

The Court found it appropriate to impose the following fines:

1. 1. $12,100 against both companies; and
   2. $2,200 and $2,420 against the directors.

(FWO v Orwill Pty Ltd & Ors [2011] FMCA 730)

From this case, we discuss the characteristics of good record keeping by maintaining certain record keeping requirements and the importance of keeping good records.

Record Keeping Requirements

Under the Act, an employer is required to keep employment records as prescribed by the Fair Work Regulations 2009 (Cth) (“the Regulations”).

Records must be kept in legible form and in English and they must be readily accessible (reg 3.31).  They must also be accurate. If an employer notices an error on the record, this must actually be noted clearly and corrected as soon as the employer becomes aware of the error (reg 3.44).

Although employers tend to get the basic requirements of record keeping right, we look at the more uncommon requirements that employers tend to “gloss” over as discussed below:

Averaging Arrangements

If an employer and employee agree to an averaging of the employee’s hours of work, a copy of the agreement is a kind of record that the employer must make and keep.  It is often beneficial to have the parties execute a written agreement to show mutual consent (reg 3.53).

Individual Flexibility Arrangement

If an employer has an agreement with the employee in relation to individual flexibility, which is common for returning parental leave employees, this agreement must be kept on the record and any termination of that agreement must be kept (reg 3.38).

Termination

An employer must have records of how the employee’s employment was terminated, for example, whether it was by consent, notice, summarily, or some other manner, and the name of the person who terminated the employment must be noted (reg 3.40). These records will be relied upon should the matter be pursued further for workplace actions, like an unfair dismissal claim or an adverse action claim.

Transfer of Business

Where a transfer of business has occurred, the old employer must transfer to the new employer each employee record in relation to the transferring employee.  It is also important that any promises and/or assurances made in relation to the transfer of the business regarding employee conditions, should also be noted and kept on record.  These records can be relied on, should a dispute arise on new employment conditions.

If the transferring employee becomes an employee of the new employer after the transfer, the new employer must ask the old employer to provide them with the employee’s records and the old employer must provide these records (reg 4.31).

The ‘How’ and ‘Why’ of Maintaining Employee Records?

The ‘How’ – Pay Slips

Employers have an obligation to issue (whether in hard copy or electronically) pay slips to each employer within one working day of pay day, even if the employee is on leave (section 536 of the Act).

The pay slip must provide details of:

1. 1. The employer’s name;
   2. The employee’s name;
   3. The period to which the pay slip relates; and
   4. The date on which the payment to which the pay slip relates was made;
   5. The gross amount of payment; and
   6. The net amount of payment; and
   7. Any amount that is a bonus, loading allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and
   8. The ABN of the employer.

If deductions are made from the gross amount (aside from tax), employers must clearly provide the name or name and number of the fund or account into which the deduction was paid. It is recommended that employers also maintain personnel files to assist in managing employees and keeping clear track record of other employee related issues.

How Long Should Employee Records Be Kept?

General employment records, superannuation records and termination of employment records must be kept for a period of 7 years from the date the entry was changed, or the date the worker’s employment is terminated, whichever occurs first.

All other records must be kept for a period of 7 years after the date on which the entry was made (see sections 535 of the Act)

The ‘Why’ – What Happens When Complaints Are Made About Employee Pay?

Requests for Copies of Records

In the event of a complaint being made against an employer, employees/former employees may request copies of their employment records.  As employers, regulation provides that copies of records kept at the business place must be made available at the business within 3 business days of the request or post a copy to the employee/former employee within 14 days of the request (reg 3.43 and 3.42).

If the records are not kept at the premises, employers must make a copy available at the premises or post a copy as soon as practicable after the request.

Inspection of Records

Once the employment records are issued, Fair Work Inspectors are permitted to inspect and copy employee records for the purposes of the Act (see section 708 and 709 of the Act).

The Fair Work may issue a permit to a union official who may investigate a suspected breach of the Act and may make copies of union member records or documents directly relevant to the alleged breach (see section 482).

Depending on the outcome of the inspection, the matter may have two outcomes:

1)     The matter may proceed to Conciliation (often in instances of minor breaches); or

2)     If the Inspector is of the view that the employee has not been paid in accordance with the industrial instrument, agreement or contract (often in instances of major breaches), the Fair Work has the power to prosecute the employer.

Consequences of a Breach of Record-keeping Laws

Under the Act, a Fair Work Inspector may issue an infringement notice in respect of an employer’s conduct that occurred within 12 months prior to the issuing of the notice. Employers must then pay the fine attached to the notice within 28 days.

Maximum fines currently are:

• • $510 per contravention for individuals; and
  • $2,550 per contravention for a body corporate.

If the employer’s failure to meet the record keeping obligations is serious, wilful or repetitive, the matter may be referred to the Court.

As an employer, if you have questions regarding record keeping, contact us

Please contact our Brisbane Employment Lawyers for legal advice on this particular issue that can save you significant costs in the long run. Call (07) 3252 0011 and make an appointment through our client engagement team.

Fake Medical Certificate – A Sure Way to Byrne Your Fingers

Quite frequently, an employer has valid reasons to believe an employee is requesting sick or personal leave without a legitimate reason for it.

The Full Federal Court of Australia decision involved a dismissal of an employee following a period of sick leave.

The Facts

Mr Bryne was employed by Anglo and Coal. He applied for annual leave on 24 and 25 April 2014 but his application was rejected. The reason given by his superintendent was “due to overall crew numbers”.

Evidence was put forward and accepted by the Court that Mr Byrne said in reply words to the effect of: “Fine, I’m going to be sick anyway”.

It was also accepted that Mr Byrne exhibited signs of being agitated but not unwell on that day.

Mr Bryne’s medical certificate issued by his doctor stated he was unfit for work on 24 April and 25 April 2014 and he was also prescribed medication. The Court also accepted evidence from Mr Byrne’s doctor who stated Mr Byrne was exhibiting symptoms compatible with asthma exacerbation and lower respiratory tract infection.

However, Mr Byrne did not return to work until 30 April and a meeting was held between him and Anglo Coal’s various senior managers regarding what they deemed to be a fake medical certificate.

On 1 May and on 12 May, Mr Byrne received a show cause order that his employment had been terminated summarily (that is, immediately and without notice) because of serious misconduct.

Mr Byrne and his Union commenced legal proceedings in the Queensland District of the Federal Court of Australia against Anglo Coal.

Mr Byrne alleged that his employer took adverse action against him because he was exercising his “workplace right” of entitlement to personal leave and absence from work because of illness.

The Court’s Decision

The trial judge in the Federal Court of Australia handed down a judgment in favour of the employer. The findings were effectively summarized by Jessup J’s reasons in the appeal judgment as follows:

her Honour held that Mr Byrne had been dismissed because Mr Power believed that Mr Byrne had conducted himself in a dishonest manner by planning to take sick leave when he was not sick, by threatening to use a medical certificate as a justification for taking annual leave which had been refused him, by obtaining that medical certificate to circumvent the respondent’s refusal of his annual leave request, by persuading Dr Farahmand to issue a medical certificate in reliance on a description of symptoms, and by disingenuously claiming that his original application for annual leave had been to assist the respondent in relation to maintenance of low absentee statistics and/or had been pursuant to a practice in respect of taking annual leave when sick rather than sick leave

This decision was then appealed by Mr Byrne and his Union to the Full Federal Court of Australia. The basis for the appeal was two points, namely:

1. No evidence was led from the human resources staff of the employer involved in the decision making process; and
2. The evidence of the decision maker of the employer should not have been accepted, because there were facts that showed the employer would not be able to rebut the presumption that adverse action occurred.

The majority of the Full Federal Court of Australia found in favour of the employer (with one judge dissenting).

The reasons of the Full Federal Court were complex but the crucial position accepted by the majority was that the termination was not on account of Mr Byrne’s sickness or a workplace right, but rather, the dishonesty of Mr Byrne.

Our Comments

In this case, the decision to terminate an employee on the basis of dishonesty is clearly not one to be made hastily by an employer, particularly where the suspicions of dishonesty overlap with illnesses or other workplace rights.

Although terminations are not always as clear cut as they appear – as in the comments of the dissenting judge, majority of the judges accepted evidence in favour of Anglo Coal as they relate to a fake medical certificate.

If you are terminating an employee, we recommend that you consider taking legal advice and conducting thorough investigations, to minimise the risk of an employment law claim.

If you are an employee that has been terminated on what you feel to be harsh, unjust or unreasonable terms, or adversely (that is, for exercising a workplace right such as leave entitlements or discrimination) you may have rights under Employment Law.

Dealing with a fake medical certificate?

Contact our client engagement team for an appointment with one of our employment lawyers. Call (07) 3252 0011 today.

Understanding JobKeeper Enabling Direction

JobKeeper is a wage subsidy scheme designed to help keep Australian in jobs and support businesses affected by the significant impact of COVID-19. The scheme is governed by the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 and associated rules.

What is a ‘jobkeeper enabling direction’?

The Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 inserts a new Part 6-4C into the Fair Work Act 2009 (Cth). This new provision allows employers to give employees directions and make certain requests of them – what is referred to as a ‘jobkeeper enabling direction’.

In order for an employer to issue a jobkeeper enabling direction, the employer must qualify for the jobkeeper scheme (a “qualified employer”). Additionally, the employee to whom the direction is made must be an employee who is eligible to receive a jobkeeper payment (an “eligible employee”). Jobkeeper enabling directions can be made at any time during the jobkeeper scheme and all jobkeeper enabling directions cease to have effect from the 28 September 2020 when the scheme concludes.

It is important to note that a jobkeeper enabling direction applies even where the direction is not consistent with the Fair Work Act, the modern award or enterprise agreement or the contract of employment.

What directions can the employer give?

There are three kinds of directions that a qualified employer can issue:

1.  A ‘Jobkeeper enabling stand down’ (s 789GDC)

• • Requires an eligible employee not to work on a day they would usually work, or work for a lesser period on a day, or work a reduced number of hours overall (including nil hours).

• • It must be established that the eligible employee cannot usefully be employed and that implementing the stand down direction is safe.

• • Similar to the usual stand down provision in s 524 of the Fair Work Act, there must be causative element to the stand down direction: the stand down direction can only be given if the eligible employee cannot be usefully employed for their normal days or hours because of changes to business’ that are attributable to the COVID-19 pandemic or to government initiations to slow its transmission.

2. Directing an eligible employee to perform other duties (s 789GE)

• • Duties must be within the employee’s skills and competency.

• • Duties must be reasonably within the scope of the employer’s business operations.

• • The employee must have the relevant licence or qualification to perform the required duties.

• • Must be necessary to continue the employment of one or more employees (s 789GL).

• • Directing an eligible employee to a different place of work (s 789GF)

• • Must be a place different from the employee’s normal place of work, including the employee’s home.

• • The place of work must be suitable for the employee’s duties.

• • The place of work must not require the employee to travel a distance that is unreasonable in all the circumstances.

• • Must be necessary to continue the employment of one or more employees (s 789GL).

When is a jobkeeper enabling direction valid?

A jobkeeper enabling direction by a qualified employer must be in writing, must provide the eligible employee with sufficient notice (at least 3 days) and must provide an opportunity for consultation between the parties (see s 789GM of the Act). Additionally, jobkeeper enabling directions cannot be made retrospectively. Any directions issued prior to 9 April 2020 when the relevant provisions were included in the Fair Work Act are not jobkeeper enabling directions.

A direction issued under Part 6-4C does not apply to an employee if the direction is unreasonable (s 789GK). Unreasonableness is determined by taking into account all the circumstances. Where a direction to change the duties or location of work for an employee is issued, the qualified employer must hold a reasonable belief that the direction is necessary to continue their employment (s 789GL). A reasonable belief includes taking the objects of Part 6-4C into consideration, which are found in s 789GB and includes helping people keep their jobs and ensuring employees remain productively employed during the pandemic.

A jobkeeper enabling direction does not apply during a period when an employee is taking paid or unpaid leave authorised by their employer (s 789GDC(3)(a)).

How does a jobkeeper enabling direction affect your leave entitlements?

Pursuant to s 789GS of the Fair Work Act, your employment during the jobkeeper enabling direction is counted as service and your leave continues to accrue as if the jobkeeper enabling direction had not been given.

Disputing a jobkeeper enabling direction

The Fair Work Commission (“FWC”) has authority to deal with some disputes about the jobkeeper payment scheme, which includes disputes about jobkeeper enabling directions (s 789GV). This provides that the FWC may deal with a dispute about jobkeeper enabling directions by:

• • mediation or conciliation;

• • the FWC Member making a recommendation; or

• • arbitration.

Additionally, the FWC has power to make any order (s789GV(4)) it considers desirable to give effect to a jobkeeper enabling direction considering fairness between the parties concerned, such as setting aside the direction or replacing one jobkeeper enabling direction with a different jobkeeper enabling direction.

It is important to note the FWC cannot assist with disputes about whether an employer is eligible to receive a jobkeeper payment or whether an employee is an eligible employee for the purposes of the jobkeeper scheme. The direction given by the employer must also be a jobkeeper enabling direction in order to fall within the FWC jurisdiction to hear the dispute.

How we can help you

We understand that this is a new issue and area of law for employers and employees to navigate in an already challenging season. Please contact our dedicated COVID-19 response team if you need any assistance or have any questions about issuing or disputing a jobkeeper enabling direction. Call (07) 3252 0011 and speak with our Client Engagement Team to make an appointment.

If you want to know more about the JobKeeper scheme you can visit our previous articles on JobKeeper Fast Facts.