Tuesday, May 31, 2005

357 Words of Wisdom

Workplace Policies

When we think of policies, we usually think of those wonderful-sounding motherhood statements political parties tend to release when an election is coming up. But believe it or not, policy documents are very good risk management tools in the workplace.

Employers, managers and even employees have duties to keep the workplace safe. These duties arise from numerous Acts of Parliament, the most important in New South Wales of which is the Occupational Health & Safety Act.

The OH&S Act is administered and enforced by WorkCover NSW. WorkCover inspectors have extensive powers to search and inspect premises and records of workplaces across New South Wales and in all industries. Apart from educating employers about their responsibilities, WorkCover inspectors also act as ‘informants’ in prosecutions carried out either in the Chief Industrial Magistrate’s Court (part of the Local Court system) or for more serious offences in the Industrial Relations Commission of NSW.

When defending a WorkCover prosecution or when seeking a lighter penalty, it is useful to be able to show the Court or Commission that your workplace has policies in place to avoid and/or minimise certain risks. You also should be able to show records of your workers and managers being trained in these policies and procedures. Further, you should show that your policies and procedures were developed in consultation with employees, managers and experts.

The type of policies and the level of procedural detail in each policy will vary depending on the nature of your workplace and industry. For instance, a small trucking company will generally not require an extremely detailed e-mail policy compared to, say, a software developer or a large graphic arts studio.

Speaking of e-mail policies, the Carr Government has introduced a Bill into the NSW Parliament which regulates the extent to which employers can snoop on the e-mail and internet usage of their employees. The legislation is designed to protect employee privacy, and provides guidelines and procedures for employers wishing to spy on their workers. Employers who already have an e-mail and internet policy in place may be exempt from the operation and sanctions of the Bill should it be passed.

(Words of Wisdom is a daily addition to the Sydney Lawyers Blog and written by Irfan Yusuf, Principal Solicitor of Sydney Lawyers. The column is for information purposes only, and is not intended nor is it to be used as a substitute for independent legal advice. Not all things in life are free.)

Monday, May 30, 2005

934 Words of Wisdom

Impressions on Industrial Nirvana

LAWYER: Doctor, what is your impression of the accused?

PSYCHIATRIST: I’m sorry, sir, I don’t do impressions. My training is in psychiatry!

(from the slapstick comedy Flying High)

John Howard has been a favourite target of impressionists from Max Gillies to the crew on the Mike Carlton Breakfast Show. But in industrial relations law and policy, few have made such a big impression as our good PM.

And now after years of crusading for change, it seems that the PM will finally have his chance to implement industrial nirvana. But will it be as heavenly as Mr Howard and his supporters from employer organisations imagine?

Mr Howard’s policy looks absolutely superb on paper. It will be easier to sack workers, especially for smaller businesses with upto 100 employees. Unions will have less power as enterprise bargaining is phased out more quickly and individual and workplace contracts become the norm.

Labor premiers, of course, are up in arms. Premier Bob Carr, the man who slashed injured workers’ entitlements for the sake of appeasing insurers, has seen the light and will fight the Howard reforms. He will be joined by his colleagues from other states in what promises to be a legal showdown in the High Court.

Who will win? Will Mr Howard have his day of glory? Will unions and workers be saved? Who knows? Who cares? One thing is for certain – whoever wins, the lawyers always win.

And not just lawyers acting for either side of the High Court challenge. Howard’s reforms will simply not work because they, like everything else created in policy nirvana, do not take into account how industrial law works on the ground. Mr Howard has failed to take account of how litigants and their advisers will be looking at the system, and how judges and commissioners will be administering the system.

One would expect that having one of Australia’s premier industrial counsel as one’s deputy would have given Mr Howard some idea of which way his reform winds should be blowing. Then again, one would also expect Mr Howard to advocate on behalf of all Australian citizens caught up in a spot of legal bother overseas. Yeah, right.

Mr Howard’s reforms simply won’t work. Let’s look at unfair dismissal. Say my fictitious client Jasmine approached me and said she had been working somewhere for a decade before being shafted, would I first look at unfair dismissal? I might consider it as one option. But unfair dismissal has its disadvantages.

Jasmine could only get upto 6 months wages as compensation for unfair dismissal. She has to pay my fees out of that amount. If I take her matter to hearing, the fees might add upto $10,000. Her compensation might be 3 months wages. If she earns $800 per week, she will get $9,600 compensation. Tax would also have to be taken out.

If Jasmine loses the case and is found to have made a frivolous or vexatious application, she might have to pay the legal fees of her employer.

And all these factors have to be considered and an application lodged within 21 days of dismissal. Further, there must be a dismissal. Rarely will a resignation under pressure be regarded as a dismissal.

On the other hand, Jasmine may have resigned or been offered a redundancy package. She may even have been dismissed. She may well have a more lucrative option of an application under s106 of the NSW Industrial Relations Act for unfair contract. A similar provision also exists under Queensland law.

Jasmine could apply for a host of things. Her claim would not be limited to 6 months wages. Further, we could ask the Commission to make orders that her employer pay all or part of her legal fees. And we could couple it all with a claim for unpaid entitlements.

If employers realised how expensive a claim for unfair contract is (as opposed to an unfair dismissal claim), they would not be cheering Mr Howard on in his crusade against state unfair dismissal laws.

Next, let’s look at the focus on individual and workplace agreements. Who is going to advise on these agreements? Who will draft them? Will there be one standard agreement? Or will we see different agreements for different level staff? How will all this tie in with OH&S, anti-discrimination and other factors? And who will adjudicate in case of disputes?

If Mr Howard thinks employment law is just about agreement making and breaking, he clearly has not understood the ins and outs of employment law. Perhaps he could visit the websites of some of Australia’s most expensive lawyers and download some of their employment law client alerts. Perhaps next time he is in Sydney, he can walk a few doors down from his office and sit in on some matters in the NSW Industrial Relations Commission. Then he can jump in a cab and head down to what many IR lawyers affectionately call “the Fight Centre” (the IRC located in the Flight Centre Building) and see how litigants make their decisions.

I admire Mr Howard for trying to free up the industrial marketplace. It is badly in need of a shake-up. For too long, workers and employers have been hampered in their dealings by too much regulation and red tape. But me thinks the Howard reforms will achieve little for either side. Mr Howard has failed to consider litigation dollars and cents.

I am sure my colleagues will agree with me in saying that without considering litigation dollars and cents, the reforms will make little sense in the long run.

(Words of Wisdom is a daily addition to the Sydney Lawyers Blog and written by Irfan Yusuf, Principal Solicitor of Sydney Lawyers. The column is for information purposes only, and is not intended nor is it to be used as a substitute for independent legal advice. Not all things in life are free, but unpaid contributions are always welcome!)

Thursday, May 26, 2005

366 Words of Wisdom

Records (no, not the vinyl musical ones)

Records are so important. When you employ people or engage contractors, you need to keep lots of documentation. I am not just talking about tax and payroll information. I am talking about information relating to recruiting a staff member, training them, assessing their performance, promoting them (above other staff in a competitive process) and managing their dismissal or resignation if necessary.

I have been involved in so many matters on behalf of employers in unfair dismissal and similar matters. Often the employers keep few records about the job description given to the employee, what was said at the job interview or even what hours the employee worked. Yet often evidence of these things is crucial once the matter gets before a Court or Commission.

Your business might employ 5 people. If you don’t keep records of all your dealings with employees, how will you be able to convince a Commission that your recollection is better than that of your employee? You have so many other things to consider – insurances, clients, customers, suppliers etc. Is it really possible for you to remember a conversation you had with Joe or Jasmine 18 months ago about the unpaid overtime they were doing?

In a situation where it is the employer’s word against the employee’s, Courts and Commissions will tend to side with the employee. Employees tend to keep better records, and their recollection of events and conversations is often more lucid.

Of course, that always is not the case. I have acted for community schools embroiled in unfair dismissal and unpaid wage claims. I have seen school principals meticulously keep records of all conversations with staff. Some have insisted that all communication be followed up with an e-mail or note.

On the other hand, even employers with dedicated Human Resources departments can come unstuck where lines of communication between management and HR are not working.

The moral of all this is that keeping a paper trail of your dealings with employees is absolutely crucial. It may not be enough to avoid litigation. But if legal proceedings do erupt, it may provide you with the edge needed to negotiate a commercially prudent settlement.

(Words of Wisdom is a daily addition to the Sydney Lawyers Blog and written by Irfan Yusuf, Principal Solicitor of Sydney Lawyers. The column is for information purposes only, and is not intended nor is it to be used as a substitute for independent legal advice. Not all things in life are free.)

Wednesday, May 25, 2005

358 Words Of Wisdom

Show Us Your Jurisdiction

Our workplace relations laws are very hard to understand, even for lawyers. One reason is that we have not 1 but over 7 separate workplace legal systems (or jurisdictions) operating across the country. And those of our readers doing business in more than 1 state or territory will know how tough this can be. Good luck if you can keep track of it all!

But the Federal Government has announced that, come 1 July 2005, all this will change. The Federal Workplace Relations Minister Kevin Andrews made some announcements about this during a talk he gave at the Sydney Institute on 23 March 2005 (attended by yours truly).

1 July is when the Coalition has a majority in both houses of Parliament, giving it the ability to make fundamental structural changes and implement some of its most contentious policies.

Basically, the Federal Government (to save space, I’ll call them “the Feds”) can only make laws in areas where the Constitution provides it with a lawful excuse. One constitutional peg the Feds can lay their hat on is the ‘corporations’ power. This allows the Feds to make laws that affect certain kinds of corporate entities in certain areas. At least 75% of Australian workers are employed by some kind of corporation, even if it is just a 1-director shelf company.

At the moment, Federal workplace relations laws generally only apply to the Commonwealth Public Service employees, government enterprise workers and employees covered by a Federal Award or other instrument (such as an Australian Workplace Agreement or AWA).

One area where there has been much angst among small business has been Workers Compensation and Occupational Health & Safety (OH&S). In many states, union officials have the right to enter a business premises and check out its OH&S situation. And despite State ALP governments slashing workers’ entitlements in a bid to appease insurers, the fact remains that the Federal Comcare system is easier on employers and harder on injured workers.

The next 2 years should be an interesting time in workplace relations. All we can suggest is that you watch this space and get yourself an experienced workplace relations lawyer.

(Words of Wisdom is a daily addition to the Sydney Lawyers Blog and written by Irfan Yusuf, Principal Solicitor of Sydney Lawyers. The column is for information purposes only, and is not intended nor is it to be used as a substitute for independent legal advice. Not all things in life are free.)

Monday, May 23, 2005

Welcome to Sydney Lawyers

Welcome to the blog of Sydney Lawyers Pty Limited, a Sydney-based (obviously!) legal practice servicing small business and individual clients. We hope you enjoy your stay here.

Sydney Lawyers represents a new generation in legal services. We are technology-savvy and make full use of the latest in online research and practice methods to bring our clients the most cost-effective legal services available.

Each of our lawyers operates from a virtual office. We visit our clients at their home or business or at some other location convenient to them.

We keep our rent and overheads low, passing on the savings to our clients. The price difference is substantial. The average law firm in Sydney charges at an hourly rate of $350 per hour. Our hourly rate rarely exceeds $250 per hour. That means using our services could save you and your business thousands. And that means more money in your pocket.

But legal services are not just about price. At Sydney Lawyers, we pride ourselves in offering the best quality legal services. Our team of lawyers will pursue your rights vigorously, whilst providing you with independent and commercially realistic advice on the prospects of your matter.

And unlike other law firms, our lawyers have a life. Because we rarely set foot in an office (unless it be our client's office), we have a much more balanced lifestyle. We believe that work/life balance is an essential element to providing independent legal advice and services. Lawyers who are snowed under with work in an office often find it difficult to think outside the square and look beyond the limited choices and solutions provided by the law.

We insist that our lawyers have certain qualities:

  • They are actively involved in their local communities.
  • They only take on enough work to enable them to attend to family and personal commitments.
  • They constantly update their knowledge.
  • They develop an expertise in no more than 2 jurisdictions.
  • They read widely.
  • They be prepared to express their opinions on social, political and other topics in a passionate manner. No sychophants are welcome here.
Sydney is a fast-paced and fast-growing city. Sydney Lawyers aims to match that growth and diversity in its staff. At this stage, our staff speak Hindi, Urdu and Bahasa Indonesia. We hope to add other languages in the near future.

If you are interested in joining our practice, feel free to drop us a line or an e-mail. You can contact our principal, Irfan Yusuf, on 0414 355 786.

You can also contact Mr Yusuf if you wish to discuss your legal matters.

This blog will be updated on a daily basis. It will contain news, commentary and legal updates on a variety of areas. Your comments are always welcome.