Carol Louw from CCH reports on the latest workplace developments.
Counting to 100 (employees): ready or not
The Australian Industrial Relations Commission (AIRC) has held that an employer must prove that it has 100 or fewer employees if that fact is contested. It is not sufficient for the employer merely to assert the fact.
A radio station in Victoria submitted statutory declarations asserting that its workforce numbered 52. The statutory declarations contained statements and attachments, including WorkSafe declarations of rateable remuneration. This was the evidence relied on by the employer, and no witness evidence was taken in court.
An employee who was dismissed by the radio station tendered statutory declarations, together with the employer's telephone directory (as at the day after the dismissal). The employee identified the people in the telephone directory as employees and as 'persons known as 'contractors', who are employees'. When the directors of the company and the company secretary were added, the total came to 114 employees.
The employer maintained those it identified as contractors submitted tax invoices and were not employees.
The employee countered that this did not prove they were not employees. No evidence was submitted about w-hether those who submitted tax invoices charged GST, or about any of the other classic criteria of a contractor. The commissioner noted that in earlier cases, recourse has been made to all of the criteria that relate to the defining of contractors.
The WorkSafe certificates were discounted as evidence. It was put that they do not include employee names, there was no way of distinguishing employees from contractors, or long-term casuals (who are counted as employees for the purposes of counting to 100 employees) from short-term casuals.
The AIRC supported the interpretation of the legislation made in a previous case, that 'the language of the subsection [does not] lend support to an interpretation that the onus of proof shifts to the employee in this manner simply because an assertion has been made by the employer'.
The commissioner held that the employer had all the information relating to the number of people it employed, and if an employee contested the fact then the employer had to demonstrate, beyond the balance of probabilities, that the employee's assertion was incorrect. The employer's jurisdictional objection was dismissed.
Drugs and alcohol the facts
WorkCover NSW has launched a new fact sheet, Establishing a Policy to Manage Alcohol and Other Drugs in the Workplace. It serves as a step-by-step guide for small and medium-sized businesses to develop a policy for managing the misuse of drugs at work.
Many sexual harassment claims result from alcohol consumption in the work environment. 'The misuse of alcohol and drugs at work is an important issue that affects workers and employers, and can contribute to productivity losses, absenteeism and lateness, anti-social behaviour, and unlawful conduct', says Jon Blackwell, WorkCover's chief executive officer.
'Workers affected by drugs or alcohol at work not only jeopardise their own safety, they place their colleagues and others in the workplace at risk.'
The fact sheet was developed in consultation with key industry stakeholders, including employers, unions and health workers. It can be downloaded from the Workcover NSW website.
It's a family affair
New legislation introduced in Victoria will expand the range of conduct that amounts to discrimin-ation against parents and carers in the employment environment.
The Equal Opportunity Amendment (Family Responsibilities) Bill 2007 requires an employer, principal or partnership, in relation to work arrangements, not to unreasonably refuse to accommodate the parent or carer responsibilities of someone offered work, an employee, a contract worker or a partner.
The Bill includes examples of how an employer may be able to accommodate parental or carer responsibilities. These include allowing the person to work additional daily hours to provide for a shorter working week, or to occasionally work from home.
All relevant facts and circumstances must be considered in order to determine whether a refusal is reasonable.
A contravention of this requirement amounts to discrimination. The complainant will not have to prove direct or indirect discrimination to make out a complaint. A person will be able to complain to the Victorian Equal Opportunity and Human Rights Commission.
The Bill commences on assent, but no later than 1 September 2008.
Help for young workers
The Workplace Authority has launched a new online guide to assist young workers with agreement-making.
The guide, What's the deal with workplace agreements, is an interactive tool that covers issues such as the Australian Fair Pay and Conditions Standard, the Fairness Test and negotiation of flexible working conditions.
Besides the interactive presentation, there is a resources area containing information about employee entitlements and employer responsibilities, as well as a list of frequently asked questions.
