Mediation is a process in which a mediator, independent of the disputing parties, facilitates the negotiation between parties, of their own solution to the dispute by assisting them to:

-         isolate the issues in dispute,

-         develop options for their resolution, and

-         reach an agreement which accommodates the interests and needs of all the parties.

The mediator does not impose a solution upon the parties.

Tips on how to prepare for mediation:

-         Many clients will be experiencing mediation for the first time, so educate them about the process and the roles of the mediator and legal representatives,

-         Encourage clients to participate in joint sessions, and re-assure them that they can call for a break if needed,

-         Have the client prepare an opening statement in the client’s own words,

-         Allow the parties time to discuss non-legal issues before they start to talk about agreement,

-         Tolerate emotion and tolerate discussion that is not rational.

For workers, this will mean the same rights, entitlements and protection across Australia regardless of their place of work.  For businesses that operate across State and Territory borders, it will mean being subject to the same laws in each jurisdiction, creating a more streamlined and less complex OH&S process.

The model laws include the new Work Health and Safety Act (WHS Act) and the Work Health and Safety Regulations (WHS Regulations).  They will be supported by national Codes of Practice.  All jurisdictions had committed to enacting the model Act by January 2012, however at this stage only ACT, NSW and QLD have passed the legislation.  WA and VIC have requested an extension of time (to 2013), but now is still a great time to review your current OH&S practices and begin aligning them to the new system.

Some key changes are set out below:

1. The new notion of a ‘PCBU’

A PCBU is a “Person Conducting a Business or Undertaking” and will replace the term “employer” in the context of these matters. This is because the WHS Act now extends beyond traditional employer / employee relationships to include new and evolving work arrangements and risks.

The PCBU is the principal duty holder for a business.

2. The new definition of “worker”

A person is a worker if they carry out work in any capacity for a PCBU, including work as:

• an employee;
• a contractor or subcontractor;
• an employee of a contractor or subcontractor;
• an employee of a labour hire company who has been assigned to work in the business or undertaking;
• an outworker;
• an apprentice or trainee;
• a student gaining work experience; or
• a volunteer.

3. An increased “duty to consult”

A PCBU must consult with workers when:

• identifying hazards presenting risks;
• making decisions about eliminating or minimising risks;
• making decisions about the adequacy of facilities for the welfare of workers;
• proposing changes that may affect the health or safety of workers; or
• setting procedures for resolving health and safety issues;

An intention of the Act is to ensure engagement and leadership in WHS management.  This has led to harsher penalties in relation to officer liability.  An “officer” is a senior executive who makes, or participates in making, decisions that affect the whole or a substantial part of a business or undertaking (Section 9, Corporations Act (Cth)).  Officers will be required to exercise “due diligence” to ensure that their business complies with its safety obligations. This means that officers may be liable for breaches of safety without an incident/accident even occurring, with penalties potentially including fines and imprisonment.

Some further general tips to help you in preparing for the transition:

• Consider the impact the new legislation may have on your current policies and procedures (eg. consultation arrangements, training, etc).
• Undertake a gap analysis of your current health and safety system to determine what changes are required to achieve compliance.
• Understand the necessary revisions to your current policies and procedures
• Consider who in your organisation may be considered an “officer” and ensure each has a clear understanding on their responsibilities under the model Act.
• Develop a more robust consultation process, given the expanded application of the duty to consult. Make sure that you include all relevant workers.
• Consult with your workers about what is happening and any changes that will need to be made in readiness for the new legislation.
• Implement changes and train workers in any new policies.
• Monitor key developments in the jurisdictions where your business operates, and introduce them as required.

Employer responsibilities

Employer’s have a responsibility to identify, assess, control, monitor and review the risks associated with work-related driving, and consult with employees on work related driving occupational health and safety (OHS) issues.  Specific requirements of road traffic laws also have to be met and cover matters such as vehicle roadworthiness, driver licensing and road rules, e.g. speed limits. Where applicable to the organisation, ensure the OHS management system includes:

• purchasing and maintaining a safe and roadworthy fleet
• ensuring employees have the relevant appropriate driver licenses
• scheduling work to account for speed limits and managing fatigue
• providing information and training on work related driving safety
• monitoring and supervision of work related driving safety program

Employee responsibilities

Employee duties include:

• holding a current, valid driver’s license
• abiding by all road rules, e.g. speed limits, not driving under the influence of drugs or alcohol, seat belts, not using mobile phones while driving
• refraining from driving if impaired by tiredness or medication
• reporting any incidents required by the employer’s program
• carrying out any routine vehicle checks required by the employer

OHS risk management system for work related driving

Start by developing policy/ies on work related driving. This can include policies on vehicle selection and safe driving.

In addition, procedures should be developed such as:

• fatigue management
• area specific safety requirements e.g. country driving
• what to do in emergencies
• regular checking of worker and vehicle credentials e.g. checking the driver’s licence is still in force

When developing policy and procedures, make sure there is consultation with employees and areas of the organisation which may be able to add insight to the issues.

Stay up-to-date with the latest safety information on vehicle types.  Have procedures which ensure the right vehicles are purchased for the job, e.g. will you need to transport clients with mobility issues.  Have regular, preventative maintenance procedures in place for your vehicles.  Consider driving risks when scheduling work, trip times, traffic congestion, routes, weather conditions.

Monitor the safe driving system to ensure it is effective.  Regularly review policy and procedures .  Remind workers to report driving related incidents and collect information on these incidents to ensure effective risk management.

A social media policy can be a company’s first line of defense to mitigate risk for both employer and employee.  You may already have a confidentiality agreement but it might not be enough.  Adding a few lines in the employee handbook to clarify that the confidentiality agreement covers employee interactions on social media sites might suffice.  But it is advised to create a separate social media policy to have something specific on file and accessible to employees and that they are aware of the policies existence.

When drafting a policy, be sure to:

1.    Remind employees to familiarise themselves with the employment agreement and policies included in the employee handbook.

2.    State that the policy applies to multi-media, social networking websites, and blogs for both professional and personal use.

3.    Internet postings should not disclose any information that is confidential or proprietary to the company or to any third party that has disclosed information to the company.

4.    If an employee comments on any aspect of the company’s business they must clearly identify themselves as an employee and include a disclaimer.  The disclaimer should be something like “the views expressed are mine alone and do not necessarily reflect the views of the company.”

6.    Internet postings should not include company logos or trademarks unless permission is asked for and granted.

7.    Internet postings must respect copyright, privacy, fair use, financial disclosure, and other applicable laws.

8.    Employees should neither claim nor imply that they are speaking on the company’s behalf.

9.    Corporate blogs, Facebook pages, Twitter accounts, etc., could require approval when the employee is posting about the company and the industry.

10.    That the company reserves the right to request that certain subjects are avoided, withdraw certain posts, and remove inappropriate comments.

Speaking in Melbourne in late December, the Government’s new Workplace Relations Minister, Bill Shorten, said the review of the Fair Work Act would be conducted by Reserve Bank board member John Edwards, former Federal Court judge, Michael Moore, and workplace relations academic Professor Ron McCallum, reporting by 31 May 2012.

The review would examine and report on:

1. the extent to which the Fair Work legislation was operating as intended including:
   • the creation of a clear & stable framework of rights & obligations which is simple &       straightforward to understand;
   • the emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations & related powers of Fair Work Australia;
   • the promotion of fairness & representation at work;
   • effective procedures to resolve grievances and disputes;
   • genuine unfair dismissal protection;
   • the creation of a new institutional framework & a single & accessible compliance regime; &
   • any differential impacts across regions, industries, occupations & groups of workers including (but not limited to) women, young workers & people from non-English speaking backgrounds; plus

     2. areas where the evidence indicates that the legislation’s operation could be improved consistent with its objectives.

Fair Work Australia (FWA) has found a Linfox truck driver’s comments about managers, on what he believed to be a private Facebook page, did not justify his dismissal.  FWA has criticised Linfox for failing to keep pace with other large employers that have “detailed social media policies” & make substantial efforts to educate their employees about them.  In reinstating the driver, Commissioner Roberts said while some of the comments may be considered initially offensive, when read as a whole they had, “the flavour of a conversation in a pub or cafe, although conducted in an electronic format“.

POLICY ISSUE
The Commissioner said that Linfox had no social media policy in place at the time the comments were discovered, nor had it subsequently developed such a policy, preferring to rely on its Induction Training & Employee Handbook.  ”In the current electronic age, this is not sufficient & many large companies have published detailed social media policies and taken pains to acquaint their employees with those policies. Linfox did not.”

Commissioner Roberts said, after examining the evidence, there was no valid reason for the termination of the driver’s employment & that his dismissal was harsh, unjust & unreasonable.  He ordered Linfox to reinstate him & pay his lost wages.

Glen Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444 (19 December 2011)

The Federal Magistrates Court has ruled in late December last year that a federal government department did not take unlawful adverse action against a former employee who was given several opportunities to exercise her workplace right to a re-examination of her retirement on the grounds of incapacity.

Fair Work Australia has upheld the St Vincent de Paul Society’s dismissal of an IT manager who deliberately stopped emails from reaching the mobile phone of the organisation’s IR manager.  The dismissal was on the grounds of misconduct.

Senior Deputy President Hamberger found the IT Manager’s conduct had been “completely at odds” with his employer’s reasonable expectation that he act with a high degree of integrity and honesty.  Disabling the ActiveSync and the unauthorised access to email accounts were actions that constituted “clear instances of misconduct“, he said, and this was reinforced by Mr. Williams’ lack of honesty in his response to the allegations.

Mr. William’s alleged that he had been bullied by the Workplace Relations Manager, however, Senior Deputy President Hamberger found no evidence to support the IT Manager’s allegations, “I indicate for the record that I saw no evidence that that the [IR manager] had been bullied by anyone“.

Mr Mark Williams v St Vincent de Paul Society [2011] FWA 6457 (27 September 2011)

Swan DP, in finding the Good Guys employee’s actions constituted serious
misconduct, said that, “…[it was] difficult to accept that the [employee] was unaware of the consequences of his actions“.

The Good Guy’s Employee Handbook referred to the need to be courteous and polite to colleagues as well as customers and contained detailed policies, including on sexual harassment and workplace bullying.  However, Swan DP found that even without the Handbook, “common sense would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner in which this occurred”.

The employee did not name the Good Guys, but posted on his Facebook page that he: “…wonders how the f@#k work can be so f@#king useless and mess up my pay again.  C#*ts are going down tomorrow.”

The employee argued that his Facebook page was set to the maximum privacy setting and only his select group of 70 friends could see what he had written.  But Swan DP accepted that the group of 70 friends who had access to his Facebook page included some of his co-workers.  So, even though the employee had blocked the Operations Manager’s access that day (who was also a friend on his Facebook page), she had been advised about the
comments from others at work.

The employee advised FWA that he was frustrated with the problems in sorting
out his pay following a move to a commission-based system, but Swan DP said
there were “other avenues” he could have pursued, including raising it with the Director.   She also noted that a dispute settling procedure was available in the Employee Handbook, and that the employee could have consulted the Fair Work Ombudsman, which he had contacted initially, but chosen not to follow up.

• Applies to all employees in NSW – full time, part time and casual,
• Entitlement – 2 months (8 2/3 weeks) after 10 years,
• 1 month (4 1/3 weeks) after each additional 5 years,
• Pro rata entitlement after 5 years service, under some circumstances,*
• Must be taken as leave or paid on termination of employment.

*Pro-rata entitlement if employee:

• Resigns as a result of illness, incapacity, domestic or other pressing necessity,
• Is dismissed for any reason except serious and wilful misconduct, or
• Dies.

Definition of workers:

• Any person employed whether on salary or wages, piecework, outwork, salesman, canvasser, collector, commercial traveller, insurance agent,
• Person paid wholly or partly by commission.

Continuous service not broken by:

• Change in duties or position,
• Transfer between companies within same group where employed by holding company or any one or more subsidiaries of that company and transfers to another company in group.

Interruptions that do not break continuity:

• Employer approved absences from work,
• Parental leave – but break does not count as service,
• If caused by the employer and the employee returns to employment within 2 months – period of interruption does not count as service,
• No break in continuity if business or part transferred as a going concern.

Payment of Leave

Rate of Payment – the higher rate between:

• Ordinary time rate of pay in pay period prior to commencing leave, or
• Average weekly rate of pay earned during the previous 5 years.
• Shift allowances, penalty rates, overtime payments, fares, travelling time and other like payments not included

Bonuses and commissions:

• Averaged over previous 12 months (or 5 years if 5 year average pay rate is used),
• Is added to weekly rate to calculate leave payment,
• If currently paid in excess of $144,000 per annum, bonuses are not included (this amount is indexed).

Payment during leave may be either:

• Paid in full on commencement of leave,
• Paid at ordinary rate of pay at normal pay intervals, or
• In any other way agreed between the employer and employee.

If public holiday occurs during leave – additional day added if a normal working day for that employee.

Commencement of leave:

• The employer may direct leave to be taken by giving at least one (1) month’s notice,
• May be postponed by agreement – may agree leave will be paid at current rate when leave is taken in the future,
• Leave may also be taken in advance on agreement between the employer and the employee – must be not less than one (1) month.

Taking the period of leave:

• In one continuous period, or

If employer and employee agree:

• 2 separate periods – if leave owing is 2 months,
• 2 or 3 periods – if leave owing is between 2 months and 19 1/2 weeks,
• 2, 3 or 4 periods – if leave exceeds 19 1/2 weeks.