A number of important employment law issues including work ‘love contracts’, GPS tracking of employees and modern slavery legislation have arisen over the last few months which are expected to have a particular impact on a number of employers in 2018. Special Guest blogger, Jeremy Cousins from Whitehall Workplace Law comments on the top 7 employment law issues of 2018.
- Work “love contracts” (consensual relationship agreements / conflict of interest agreements): The recent media reports involving the former Deputy Prime Minister and Member for New England has shone a very bright light on this issue. Employers are likely to experience practical and potentially legal difficulties invoking a complete ban on consensual relationships amongst their employees similar to that imposed upon Commonwealth Government Ministers. To protect against the risk of sexual harassment it will generally be preferable for employers to have a robust policy in place which is implemented and enforced consistently with the organisation’s workplace culture. However, in some organisations for some roles, it may be appropriate for an employer to require employees involved in a relationship to disclose details to their employer, particularly where a conflict of interest may occur. The need for such disclosure should be carefully considered and a sufficiently articulated policy will be essential.
- Surveillance and GPS tracking of employees: Many employers are purposefully, or inadvertently, tracking their employees. Employers should be aware of and compliant with the statutory requirements in relation to this. In the ACT, the Workplace Privacy Act 2011 (ACT) applies to optical devices, tracking devices and data surveillance devices. In New South Wales, the Workplace Surveillance Act 2005 (NSW) applies to optical surveillance, computer surveillance and tracking surveillance. In Victoria, a more limited range of obligations apply under the Surveillance Devices Act 1999 (Vic). On 5 September 2017, the Grand Chamber of the European Court of Human Rights handed down its decision in the case of Bărbulescu v. Romania  61496/08 in which the Grand Chamber found that an employer’s IT policy could not entirely remove an employee’s privacy at work and that the right to private life and the right to privacy of correspondence continues to exist in the workplace. Importantly, the Grand Chamber found that the employee had not been expressly informed that the content of his personal communications were being monitored. Of course, the European laws are different to our laws in Australia, but this is an interesting decision nonetheless. Further, for those Australian employers who will be affected by the new European General Data Protection Regulation, the balance between protecting employees’ privacy and protecting the business will need to be specifically assessed and documented. Employers should consider whether they are involved in the purposeful or inadvertent surveillance of their employees and if so, check whether this is compliant.
- Checking the status and contracts for casual employees – After a casual was paid annual leave: On 9 February 2018, the Federal Circuit Court handed down its decision in Apostolides v Mantina Earthmovers & Constructions Pty Ltd  FCCA 279 finding that an employee who had been employed as a casual employee and paid a casual loading for 15 years was entitled to annual leave. This case serves as a timely reminder that employers should check the proper characterisation of employees described as casuals and update their employment contracts where necessary.
- Supply chain reporting and modern slavery legislation: On 7 December 2017, the Parliamentary Standing Committee provided its final report on its inquiry into establishing a Modern Slavery Act in Australia. The proposed modern slavery legislation is another step in the direction of protecting vulnerable workers and if implemented is likely have a significant impact on Australian businesses. The UK already has a Modern Slavery Act and it is proposed that we adopt something similar here in Australia. The Committee stated that it “recommends the establishment of an Australian Modern Slavery Act, including an Independent Anti-Slavery Commissioner to lead and coordinate Australia’s response to combatting modern slavery”. One significant issue for Australian businesses is the possibility of being required to ensure that other businesses in its supply chain do not engage in slavery and trafficking. This would be a significant additional step from the current accessorial liability provisions contained in the FW Act where one business can be liable (for being involved in a contravention) for breaches of employment laws committed by another business. Employers should begin to analyse their own supply chains and prepare for the potential implementation of new legislation in this area.
- Expanding coverage of the Miscellaneous Award 2010: For those employers who have considered their workforce, or part of it, to be award-free, the decision of a Full Bench of the Fair Work Commission (FWC) on 12 January 2018 may be of interest. In United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort  FWCFB 128, the Full Bench found that the Miscellaneous Award could potentially apply to employees who had not previously been covered by an award before the award modernisation process was finalised in 2010. In response, the Fair Work Ombudsman (FWO) stated that it was reviewing its position in relation the pet care and retail industries which this particular case related to. However, the principles relating to the expanded coverage of the Miscellaneous Award is potentially relevant to other industries. Employers who have award-free employees should reassess the basis on which those employees are considered to be award-free.
- Protecting your business with post-employment restraints: Post-employment restraints can be difficult to enforce but it is not impossible to do so. The clauses must be very precisely drafted and there must be a legitimate business interest to protect. Cases highlight the principle that employers may not be able to enforce post-employment restraints where the employer commits a fundamental breach of the employment contract. The decision of the Victorian Supreme Court of Appeal in Crowe Horwath (Aust) Pty Ltd v Loone  VSCA 181 confirms this principle. Employers should consider the need to include these clauses and re-examine those clauses and their practices to improve prospects of enforceability.
- Approval of enterprise agreements: On 6 December 2017, in ALDI Foods Pty Ltd v SDA & Anor  HCA 53, the High Court held that it is possible for an employer to make a new enterprise agreement with existing employees who have agreed to work as employees in an employer’s new enterprise but who have not yet started work in that new enterprise. This decision may give confidence to employers to make specific enterprise agreements with existing employees in new areas of the business. Employers may need to reassess the scope of their enterprise agreements and how and when bargaining takes place.
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