Workplace Relations Update

• The fact sheet – a reminder
  Employers in the Federal system should now be aware of their obligation to give a copy of the Workplace Relations Fact Sheet to employees

• A new low costs jurisdiction in Queensland for employment disputes
  The Queensland government recently passed the Industrial Relations Act and Other Legislation Amendment Act 2007 (Act) which will commence on 1 January 2008.

• Employers may be vicariously liable for sexual harassment or sexual discrimination of employees outside of work
  In the recent case of Lee v Smith & Ors [2007] FMCA 59, the Department of Defence (Department) was held liable for the sexual assault, sexual discrimination, harassment and victimisation of an administration officer (Lee) who was employed by the Department at the Cairns naval base

Employers in the Federal system should now be aware of their obligation to give a copy of the Workplace Relations Fact Sheet to:

• all employees employed after 20 July 2007 - within seven days of the commencement of their employment

• all existing employees as at 20 July 2007 - by no later than 20 October 2007.

The Workplace Relations Regulations 2006 provide that an employer may provide a copy of the Fact Sheet to an employee in one of the following manners:

• by giving a copy of the Fact Sheet to the employee personally

• by sending a copy of the Fact Sheet by pre-paid post to the employee’s residential address or to a postal address nominated by the employee

• by sending a copy of the Fact Sheet to the employee’s e-mail address at work or to another e-mail address nominated by the employee

• by sending an electronic link to the page of the Workplace Authority’s website on which the Fact Sheet is located to the employee’s e-mail address at work or another e-mail address nominated by the employee

• by sending an electronic link that takes the employee directly to the copy of the Fact Sheet on the employer’s intranet to the employee’s e-mail address at work or to another e-mail address nominated by the employee

• by sending a copy of the Fact Sheet to the employee by facsimile to the employee’s facsimile number at work or at home or another facsimile number nominated by the employee.

Whilst the list set out in the regulations is not exhaustive and an employer may provide a copy of the Fact Sheet to an employee in a manner not specified in the list, we would recommend that employers adopt a manner specified in the list unless they are clearly unable to do so.

We would also recommend that employers keep records or retain evidence of providing a copy of the Fact Sheet to each employee within the requisite time frame so that they can demonstrate that they have complied with their obligations. For example, employers should:

• require employees to sign and date a register acknowledging that they have been provided with a copy the Fact Sheet personally

• retain copy letters, facsimiles and attachments together with evidence of delivery such as peel off registered delivery receipts or facsimile transmission reports

• retain copy e-mails and attachments together with evidence of delivery such as delivery receipts or read receipts.

Employers should immediately provide a copy of the Fact Sheet to all existing employees and ensure that employment related policies and procedures and documents (including for example induction checklists) are updated to reflect the new obligations for new employees.

A copy of the Fact Sheet as produced by the Workplace Authority can be found on the Workplace Authority website. The Fact Sheet is also available in 12 community languages.

The Queensland government recently passed the Industrial Relations Act and Other Legislation Amendment Act 2007 (Act) which will commence on 1 January 2008.

The Act provides for a new jurisdiction to be given to the Magistrates Court to deal with "employment claims" which fall outside the jurisdiction of the Queensland Industrial Relations Commission (QIRC).

To effect this change, the Act inserts a new Part 5A into the Magistrates Act 1921 (Qld) the object of which is "to reduce costs of proceedings brought in a Magistrates Court to low income employees against employers for breaches of contracts of employment." The new Part 5A allows employees who earn less than $98,200 per annum to bring a claim against their employer for a breach of an employment contract in this jurisdiction with lower court fees, and compulsory conciliation before hearings.

The Act limits representation during the conciliation process within the new jurisdiction but leaves open a right to legal representation in limited situations for conciliation. This means that where the matter is factually complex or involves questions of legal interpretation employers have the right to ask for legal representation to be allowed. Conciliation is the first compulsory phase of dealing with a claim and non-compliance with the conciliation process can result in the imposition of sanctions against the offending party.

The award of costs in relation to an ‘employment claim’ (including the costs of the conciliation) is limited to situations where the employee-plaintiff has been frivolous or vexatious in bringing the claim or where an unreasonable act or omission of one the parties relating to the conduct of the proceedings caused the other party to incur costs.

The court will be concerned with breaches of a contract and will not look at issues of fairness in the dismissal process generally as was the case under the unfair dismissal regime. On this basis it is difficult to accurately assess what the scope of exposure under the new regime will be for employers.

When terminating contracts of employment employers should always ensure they follow the termination procedure in the contract and seek legal advice where necessary.

In the recent case of Lee v Smith & Ors [2007] FMCA 59, the Department of Defence (Department) was held liable for the sexual assault, sexual discrimination, harassment and victimisation of an administration officer (Lee) who was employed by the Department at the Cairns naval base. The conduct was engaged in by three officers during the course of Lee's employment and she was, ultimately, sexually assaulted by an officer following a social dinner party held by a fellow employee.

The Department argued that it had taken all reasonable steps to prevent the assault from occurring, and that as a result, under section 106(2) of the Sex Discrimination Act 1984 (Cth) (Act), the Department should not be held vicariously liable for the assault.

Section 106(2) provides a defence to an employer if it can establish that in relation to the act by the employee, the employer took all reasonable steps to prevent the act from occurring. Federal Magistrate Connolly rejected the Department's argument that it had taken all reasonable steps to prevent the assault from occurring on the basis that the Department had inadequately dealt with Lee's complaint and that it took no action to deal with the sexual assault despite being clearly aware of Lee's allegation. His Honour concluded that the sexual assault was 'an extension or continuation of [the perpetrator's] pattern behaviour that had started and continued to develop in the workplace'.

The 'pattern behaviour' for which the three officers were found guilty included unwanted touching, sexual advances, comments and messages, displays of pornography, threats, verbal abuse, bullying and intimidation. The threats, abuse, bullying and intimidation coincided with Lee making a complaint to a colleague about the behaviour.

His Honour heard and accepted evidence from Ms Lee that as a consequence of the sexual assault and sexual harassment, she suffered post traumatic stress disorder and depression, was unemployed, and suffered serious damage to her personal relationships.

In a separate judgment, Federal Magistrate Connolly made an order that the Department and the three male officers pay to Lee damages in excess of $400,000 plus costs for the unlawful sexual harassment and assault of Lee. His Honour also ordered that the Federal Government re-employ Lee in a different government department.

Employers may be held liable under the Act for acts of sexual assault, sexual harassment and/or discrimination of its employees, including acts which occur "after hours" unless they are able to establish they took all reasonable steps, in relation to those acts, to prevent the acts from occurring.

To this end, employers must ensure that they respond appropriately to all complaints of harassment, discrimination or bullying made by employees and act accordingly to address the complaints. Additionally, it is important for employers to ensure they have policies which prevent this behaviour and that all employees are aware of these policies through training and other means.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.