Social Media and Your Employment: How to Avoid Disciplinary Action – Part 1

We live in a world where our main form of communication is through social media, whether it be through Facebook, Instagram, Snapchat, Twitter, LinkedIn and more recently TikTok.

Unfortunately, what you post, comment or share on social media can have an impact on your employment and can lead to your employer taking disciplinary action against you, including terminating your employment.

To help you avoid disciplinary action, we have prepared a two part articles providing some tips that every employee should adopt in relation to their social media activity.  Here are the first four tips.

1. Don’t post offensive, derogatory or defamatory material about your employment on social media.

We all have those tough days at work and all you want to do is to vent your frustrations on social media or make a ‘joke’ about your workplace or a work colleague. The best tip that we can give you is ‘don’t do it’.

Unfortunately, when it comes to social media and your employment, you aren’t able to say what you want, even if your social media posts were made outside of work hours, at home or by using your personal device.

Your employer can take disciplinary action if your social media activity:

• is offensive, derogatory or defamatory about the company, management, work colleagues or their clients/customers;
• causes or is likely to cause damage to the employment relationship;
• damages the relationship between yourself and other employees;
• is damaging to the company’s interests; or
• is incompatible with your duties as an employee.

Also, making disparaging comments about other work colleagues, whether jokingly or not, could amount to bullying and harassment and result in your employer commencing disciplinary action against you.

If your employer has a social media and/or bullying and harassment policy, ensure you familiarise yourself with those policies to ensure that your conduct on social media is not in breach of those policies. Even if your employer doesn’t have such policies in place, still err on the side of caution, as your conduct may be of such a serious nature that the lack of policies is of no consequence.

2. Don’t identify yourself as an employee of the company on your social media or posts.

Employers are increasingly wanting to protect their brand and reputation. So, your comments on social media may not be in line with your employer’s values and culture of their business. The main link between your employment and potential harm to your employer’s reputation, is whether your employer can be reasonably identified through your social media or posts.

There are multiple ways that an employer can be identified. The most obvious is listing your employer as the company that you are employed by on your social media. Other ways include publishing posts naming your employer or posting photos displaying your employer’s logo or signage.

So if your employer is able to be identified and you publish inappropriate comments or material on your social media that can cause damage to your employer’s reputation and/or the employment relationship, then you could be subject to disciplinary action.

3. Don’t add people that you work with to your social media.

Social media allows work colleagues to connect and get a better insight to their personal lives. However, in our experience, one of the main ways an employer has become aware of a person’s conduct on social media is because their work colleagues have reported them to management.

If other employees do follow you on social media, then be mindful of the content that you post about your work and your workplace.

If you are considering adding work colleagues to your social media, we suggest that you review your social media content and identify if it is generally work-related or personal.

4. Ensure that your social media settings are set to ‘private’.

Another way that employers become aware of an employee’s conduct on social media is when their social media accounts are publicly accessible. So, to ensure that people who do not follow you can’t access your social media, change your settings to ‘private’.

Though, despite the perception being that your social media is ‘private’ there are ways in which your social media can become accessible to your employer. For instance, ‘tagging’ one or more of your work colleagues in a post, which can then be accessed by those people’s friends or followers, which may include management. So be mindful that ‘private’ is not necessarily ‘private’ on social media.

Look out for Part 2 of this article coming soon with another four critical tips to ensure your social media activity doesn’t get you into hot water at work.

If you have any questions or require advice in relation to social media and your employment, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.

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Changes to JobKeeper: What do Employees Need to Know?

On 28 September 2020, a number of changes to the JobKeeper scheme came into effect. JobKeeper is a wage supplement that is paid by the Federal Government directly to employers who then have an obligation to pass that supplement onto the employee. Employers need to demonstrate that they have had or anticipate to have a drop in revenue (usually 30%, but that can vary depending on the type of body) to qualify for JobKeeper.

Original JobKeeper

The original JobKeeper scheme was set up hastily in response to forced closures of businesses to deal with the coronavirus pandemic. Employers who qualified for the scheme had a wage supplement of $1,500 per fortnight paid to them per eligible employee. Eligible employees were full-time, part-time and regular and systemic casual employees who had been employed for one (1) year or more, and who were employed at 1 March 2020.

The effect of the JobKeeper scheme, was that businesses that qualified would have eligible employees wage subsidised no matter whether the employee was stood down, on reduced hours or working their normal hours. Importantly, the original JobKeeper had a ‘one-sized fits all’ approach, where every eligible employee’s wage was subsidised to the value of $1,500 per fortnight. This occasionally resulted in employees who had never actually earned $1,500 being paid $1,500 per fortnight as a result of the JobKeeper scheme. Importantly, if employees worked hours that entitled them to be paid more than $1,500 under a contract of employment, modern award, or enterprise agreement, the employer had to pay them the correct rate of pay pursuant to the relevant agreement.

The JobKeeper scheme also enables employers to change the terms and conditions of an employee’s employment in ways that they were not able to before the JobKeeper scheme. For example, employers were able to stand-down employees with more certainty and clarity than they would have but for the JobKeeper scheme. Employers could also direct employers to take leave in certain circumstances and direct employees to perform work that was different from their employment prior to the JobKeeper scheme. These are known as ‘JobKeeper enabling directions’ and most of these will stay in place with the new JobKeeper. It’s important to note that a JobKeeper enabling direction must be ‘reasonable’ and can be challenged in the Fair Work Commission.

JobKeeper 2 

The changes to JobKeeper predominately amend the amount of the wage subsidy that will be provided to the employer for eligible employees. There is no longer a “one-sized fits all” approach. Instead, the following rates will apply:

From 29 September 2020 to 3 January 2021:

• $1,200 payment per fortnight for all eligible employees whose normal working hours are 20 hours or more per week; and

• $750 payment per fortnight for employees whose normal working hours are less than 20 hours per week.

From 4 January 2021 until 28 March 2021, the payment rates will be further decreased to:

• $1,000 payment per fortnight for employees whose normal working hours are 20 hours or more per week; and

• $650 payment per fortnight for employees whose normal working hours are less than 20 hours per week.

In determining an employee’s ‘normal working hours’ an employer must look at the average hours the employee worked in the four (4) weeks prior to 1 March 2020.

It is important for employees to be aware that this may result in a change in their rates of pay. For example, a full-time employee who is stood down and receiving the only the JobKeeper supplement of $1,500 per fortnight from their employer can now expect to receive $1,200 per fortnight (less any tax). For employees who worked less than 20 hours per week prior to 1 March 2020, they can expect a significant change per fornight; from $1,500 to $750.

Employees should understand that their employer may not continue to receive JobKeeper after 28 September 2020. There are more stringent tests in place for employer’s eligibility. If your employer is no longer receiving JobKeeper, then JobKeeper enabled directions and stand-downs may no longer be lawful and you employer will no longer be receiving a wage subsidy in relation to your employment.  Further, employers will no longer be able to direct employees to take annual leave under the new JobKeeper scheme.

Finally, employees should be keep in mind that certain employers, known as ‘legacy employers’ will be able to make JobKeeper enabled directions in relation to stand down and conditions of work, if they meet certain criteria. What this means, is that your employer may not receive the wage subsidy, but may still be able to change your employment in ways it could not lawfully do prior to the JobKeeper scheme.

Need advice on workplace rights and entitlements? Contact Anderson Gray fo rmore infomation.

 

 

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Personal Wellbeing at Work & Working from Home During a Pandemic

There is no denying that the COVID-19 pandemic has demanded a more flexible side from all of us. For most employees, this has meant not only a physical change in their working environment, but also a mental and social one. Employees who have remained attending workplaces, although potentially accompanied by a few colleagues, may find themselves in more isolating positions. In addition, and perhaps even more obviously isolated, are employees who are working from home and live alone. Employees working from home face alternate challenges and distractions compared to those in their usual working environment. Some homes may be places where employees are surrounded by extended family, including children or elderly members, or people who may not be the best company to be around.

It is not unusual that as a result of the pandemic, not only work lives but many aspects of employee’s lives have been impacted. This is a time for employees to communicate with their employers about how their circumstances are changing and how they are coping, what they need from their employer and how they can be supported remotely.

Employees should be open and honest about concerns, struggles or positive points that they find have influenced them or their work. This communication will influence employees’ work lives moving forward, including coming out of this pandemic time. Employees should not be disheartened if they are feeling a somewhat off-balance or uncertain as they and their colleagues likely adapt and respond to situations in different ways.

Employee mental health and wellbeing is just as important as physical health. Employees should not hesitate to reach out and ask for help, or just check in and have a chat with each other. Some employees may already be in a situation where they are living with mental illness or may experience an exacerbation of their illness due to changes in their environment or circumstances as a result of the pandemic, and it is important to reflect on these aspects.

Some pointers to keeping conscious of your health and wellbeing as an employee:

• Create a new routine for yourself that adjusts to your new working environment;
• Get out of the house for fresh air and move your body as often as you can around work, as this is likely greatly lacking, particularly for those working from home;
• Separate your work and home spaces, where possible, and ensure you completely switch off from work at the end of your work day

Take away: Just because the workplace may be an employee’s home or look a bit different to how it used to, this does not take away from the employer’s obligation to ensure a safe and healthy working environment and employees should not be discouraged from raising these topics as part of a consultation process if they have questions or concerns.

If you have concerns about workplace practices and procedures that could be affecting your wellbeing, contact the Anderson Gray team today.

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Physical Safety at Work & Working From Home During a Pandemic

Work is a huge part of every person’s life. Since early 2020, thousands of employees have been affected by the COVID-19 pandemic. There has been a lot of adaptation, and quickly, across the employment landscape.

Work health and safety obligations and standards existed prior to the pandemic and will remain once it has passed. However, what those obligations and standards look like has had to change. This is due to the fact that, for most of us, the pandemic has changed the way we live and work. Each employee’s experience differs for many reasons, including where they live, their type of work and their personal circumstances. For some, it has meant working remotely, entering into an altered and unfamiliar working environment or managing work and care responsibilities.

At Work
Employees should be aware of what policies and procedures are in place at their workplace and any adaptations made in response to the pandemic, or as a result of government regulations. Employees should be notified by their employers, and if not, they should enquire, as to what measures have been implemented into the workplace in response to the pandemic, in order to be able to remain compliant with the government and their employer’s expectations.

Safe work practices for employees in the workplace include:

• Ensuring they are provided with what is necessary to wash their hands;
• Ensuring they are provided with hand sanitizer;
• Ensuring their work environment allows for social distancing;
• Ensuring the physical layout of the workplace or work routine is amended to ensure minimal physical contact;
• Ensuring, if necessary, that masks and gloves are available
• Ensuring that they have a discussion with their employer regarding travelling to and from work, including whether this means taking public transport, or if alternative options need to be considered i.e. working from home.

Working From Home
For most employees, where the industry permits, working from home has been a reality for the majority of the time since early 2020. Working from home can have both negative and positive consequences on employees and their work. Employees should ensure that, as they are physically and socially distanced from their usual workplace environment and colleagues, that they remain in regular contact with their employer and colleagues. Communication becomes even more paramount in these circumstances.

Some safe work practices for employees working from home include:

• Ensuring they set boundaries around routine to have a break between work and home life
• Ensuring they have access to resources that may not be readily available at their home, including stationary, headsets, office furniture etc;
• Ensuring, if relevant, that they have flexibility around care responsibilities and work tasks and hours

Take away: Employees have a level of responsibility for their physical health and wellbeing as well and should practice good hygiene, social distancing and staying away from others if unwell. However, in the workplace, employers have an obligation to ensure a safe and healthy working environment and employees should not be discouraged from raising these topics as part of a consultation process if they have questions or concerns.

If you have a concern about your physical safety at work and would like advice, contact the team at Anderson Gray today.

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Paid Pandemic Leave – Aged Care Workers

The Fair Work Commission made a decision on Monday, 27 July 2020 allowing paid ‘pandemic leave’ to staff working in residential aged care. The decision came into effect on Wednesday, 29 July 2020.

WHO

This leave would be available to employees who work in the aged care industry and are covered by:

• the Aged Care Award 2010;
• the Nurses Award 2010; and
• the Health Professionals and Support Services Award 2010.

This includes full-time, part-time and eligible casual employees. To be an eligible casual employee, a casual needs to have been employed on a regular and systematic basis.

WHAT and WHEN

Employees are entitled to up to 2 weeks paid pandemic leave if they cannot work (including from home) because:

• they are required to self-isolate or quarantine (including while waiting for a coronavirus test result);
• they are showing symptoms of coronavirus and have been advised to self-isolate or quarantine;
• they have come into contact with a person suspected of having contracted coronavirus; or
• measures are taken in response to coronavirus (e.g. closing a facility).

HOW

Conditions on paid pandemic leave:

• employees must be aged 17 or older and be likely to have worked during the self-isolation period;
• employees need to have already been tested for coronavirus for each occasion of leave, or agree to be tested asap (if they don’t agree, they aren’t entitled to take the leave);
• employees do not have to accrue the leave, it is available in full immediately;
• employee’s can’t take paid pandemic leave if their situation means they’re entitled to take paid sick or carer’s leave instead;
• employee’s can’t take the leave if they’re on workers compensation benefits because of contracting coronavirus; and
• the leave needs to start prior to 29 October 2020 (but can finish after this date).

HOW MUCH

• Full-time employees will be paid their base rate for their ordinary hours of work (the same as taking normal sick leave);
• Part-time employees will be paid the higher of:

• their agreed ordinary hours or work; or
• an average of their weekly ordinary hours of work for the previous 6 weeks; and

• Casual employees will be paid an amount based on an average of their weekly pay over the previous 6 weeks.

There are other conditions surrounding the taking of paid pandemic leave, including notice and evidence requirements.

If you believe you are eligible or are unsure and would like to find out, please contact Anderson Gray Lawyers on 1300 851 430.

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Workplace Consultation–is it Required? Redundancy and Stand Down

When is an employer obligated to consult?

The obligation for an employer to consult with its employees about major workplace change and/or changes to rosters or hours of work, are provided for in all modern awards and enterprise agreements.

Consultation is required where an employer has made a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have a significant effect on employees.

Significant effects on employees includes:

• termination of employment;
• major changes in the composition, operation or size of the employer’s workforce or in the skills required;
• loss of, or reduction in, job or promotion opportunities;
• loss of, or reduction in, job tenure;
• alteration of hours of work;
• the need for employees to be retrained or transferred to other work or locations; or
• job restructuring.

An employer is also obligated to consult in circumstances where they propose to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.

What does consult mean?

Once the employer has made a definite decision to make a major change, then they must:

• give notice of the changes to all employees who may be affected by them and their representatives (if any);
• discuss with the affected employees and their representatives (if any):

1. the introduction of the changes;
2. their likely effect on employees; and
3. measures to avoid or reduce the adverse effects of the changes on employees; and

• commence discussions as soon as practicable after the definite decision has been made.

For the purpose of the consultation discussions, the employer must give, in writing, to the affected employees and their representatives (if any) all relevant information about the changes including their nature, their expected effect on employees, and any other matters likely to affect employees.

During the consultation process the employee is not required to disclose any confidential information if its disclosure would be contrary to the employer’s interests.

The employer is obligated to promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussions during the consultation process.

Redundancy

Section 531 of the Fair Work Act 2009 (Cth) provides that an employer who has decided to dismiss 15 or more employees by way of redundancy, then then that employer is required to notify and consult with each registered employee association (i.e. unions) of which any of the employees are a member of.

The employer is required to provide unions with the notice and an opportunity to consult:

• as soon as practicable after making the decision; and

• before dismissing an employee in accordance with the decision.

If an employer is obligated to consult about redundancy and fails to do so, then they may be at risk of an unfair dismissal application being made against them. It will not be a case of genuine redundancy if an employer does not comply with its obligation in a modern award or enterprise agreement to consult about redundancy.

Before making the decision to terminate an employee on the grounds of redundancy, an employer is required to genuinely consult with the affected employees. Consultation is not considered to be genuine if the employer simply provides an employee perfunctory advice on what is about to happen. An employee must be provided with an opportunity to influence the decision maker before the dismissal is affected.

Stand down of employees

Section 524(1) of the Fair Work Act 2009 (Cth) provides that an employer may stand down an employee without pay during a period where the employee cannot be usefully employed because of one of the following circumstances:

• industrial action (other than industrial action organised or engaged in by the employer);

• a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; or

• a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

An employer may not stand down an employee under section 524(1) of the Fair Work Act if:

• an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

• the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of one of the above mentioned circumstances.

An enterprise agreement or a contract of employment may outline additional requirements that an employer be obligated to perform before standing down an employee. For example, the employer may be required to provide notice and/or consult with the affected employees.

If such a term exists, then the employer is obligated to consult with the affected employee. So, it is important to review the terms of your enterprise agreement and/or contract employment and identify if there is a stand down provision that applies to you.

Unfortunately, no modern award provides for a stand down.

If you have any questions or require advice in relation to workplace consultation, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.

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Is Casual Employment Really Casual Employment?

A recent decision of the Federal Court has blurred the lines between permanent and casual employment with a casual worker being found to be eligible for entitlements usually reserved for permanent employees.

Around 20 per cent of Australian workers are engaged as casuals. As a result of this casualisation of the workforce many workers are now in a situation where they are working full time hours on singular or multiple contracts of employment without the security or benefits of full time on-going employment.

Casual employees are not generally entitled to paid personal leave, annual leave, or for public holidays when not worked. In consideration for not being eligible for these entitlements casuals are supposed to be paid a higher hourly pay rate than a permanent employee.

However, there have now been two cases Workpac v Skene and Workpac v Rossato which have examined and determined that just because an employer says an employee is a casual in a contract of employment does not mean that the employee is actually a casual. In each of these cases the courts found that the two employees were not casuals.

These cases were in relation to a labour hire company however, the rulings are not limited to labour hire company employees and the principles can be applied to the facts of any casual employment.

In order to consider whether a casual employee is really a casual employee some of the facts which are now necessary to look at are:

• how the rate of pay is set out in a contract of employment and whether it specifies a separate casual loading rate;
• whether the pay rate is in accordance with relevant casual rates provided by the applicable modern award or enterprise agreement;
• the commitment given by the employer to the providing work and whether this work was stable, regular and predicable;
• the length of time the employee has been working with the employer;
• whether there was regular rostering; and
• where there is an ongoing contract or a number of contracts.

If there is no written contract of employment the same principles can still be applied.

The current legislation and the current rulings in the Workpac cases may give some employees, the right to be correctly classified as permanent employees and be paid or back paid statutory leave entitlements, though it is noted that Commonwealth has signalled that it may look at amending the legislation on which the Workpac rulings are based.

Should you think that your casual employment might be permanent employment please contact us for a free case evaluation.

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