Employers are not always aware of their obligations in relation to privacy in the workplace. The invasion of employee privacy can occur in a number of different ways including through records and information, physical and electronic surveillance and monitoring. In Australia, several different legislative instruments govern how employers deal with employee privacy issues and different rules apply depending on the use of such information prior to and during employment.
From an organisational perspective, the advancement of digital workplaces and technology has increased the amount of information employers can access about employees. In addition the line between work and employees’ private lives has been considerably blurred in recent times as a result of social media and the breakdown of traditional working hours and modes of work.
Employers generally want to ensure that a potential employee is honest, trustworthy and have the right attributes for the role. A prudent employer will also want to ensure that they are not employing someone who may not be the right fit for the business, or who does not have the skills and attributes that it requires. The costs associated with the performance management and termination of an employee who should not have been offered the role to begin with, are far outweighed by the minimal investment of time and effort involved in appropriate pre-employment screening. We receive several enquiries regarding when and how an employer can conduct pre-employment screening and have considered some of the issues such screening may cause in this article.
The implementation of workplace drug and alcohol testing is a sensitive and complex issue. It is not uncommon for employers in certain industries such as mining, transportation and correctional services, to impose mandatory alcohol and illicit drugs testing for all employees, however careful consideration needs to be given to the corresponding legal obligations owed by an employer vis-à-vis the employees’ privacy and safety. More and more often, the industrial Courts and Tribunals routinely accept that random testing in the workplace is an intrusion on the privacy of the individual and are reluctant to condone such practices other than on genuine health and safety grounds.
People spend a significant amount of time with each other at work, it is therefore perhaps unsurprising that workplace relationships are common with which many employers need to deal. Most employers are often mortified at the prospect of having to discuss intimate or personal details with their employees and usually adopt the “don’t ask, don’t tell” approach. However, not only can a workplace romance impact on other employees, if such relationships sour, they can develop into bullying and sexual harassment claims, leaving the business and human resource professionals left to pick up the pieces. It is thus important for employers to know how to effectively manage these situations and ensure reasonable measures are in place so the business is not adversely affected.
Union right of entry laws are a cornerstone of our industrial relations system. Unfortunately, many employers can be caught out when a union official tries to visit their premises. It is especially vital for employers to understand their rights and obligations in this area, as unions do not have an unfettered right to enter, but nor can the employer improperly obstruct entry for a proper purpose.
What happens when an employee resigns from their employment and they then advise you they wish to rescind their resignation and continue with their employment. Now, if the employee is an asset to your company you may be feeling quite relieved. However, on the other hand, if the employee really hasn’t been a suitable fit for the organisation or is a poor performer then you may be reluctant to accept their continued employment. In this update we consider whether notice provided in this manner is valid and whether an employer has any obligation to accept an employee’s change of mind after providing their resignation.
The mobile phone is now ubiquitous and almost everyone has one. Like parents with teenagers, who struggle to engage with their children who are constantly on the phone, how do employers ensure that employees are not placing themselves and the business in danger by using their mobile devices?
Many employers struggle with employees who use their mobile phones excessively during work hours or employees making excessive personal calls on their mobile phones while at work. Employers should also consider the safety implications of employees who are required to drive as part of their duties, and the use of mobile devises.
As many of our readers would be aware, the second Thursday of September in each year, is a national day dedicated to asking family, friends and colleagues the simple question: “Are you okay?”. Given that Thursday 8 September has just gone by, and in light of growing global awareness of depression and suicide, mental health issues and domestic or family abuse, we thought it would be fitting to write a client alert about this topic.
For employers, casual employment has a number of distinct advantages. It provides significant flexibility, allowing employers to rapidly adjust staffing levels when required. For employees, casual employment may provide similar opportunities for flexibility through greater work-life balance and ensuring that personal commitments and family responsibilities can be sustained. If casual employment provides benefits all-round, why is this mode of employment such a contentious industrial relations issue.
Most people love a chat. However, understandably, most managers and employers often avoid having difficult conversations with their employees because it can be awkward, confrontational and time consuming. Unfortunately, avoiding what needs to be said can grow into a major issue causing legal risks and reducing an employer’s ability to successfully defend legal claims should they arise.
Often disputes between departing employees and their employer result in a settlement or agreement. Some employers also wish to provide additional benefits to departing employees as a show of goodwill or to ensure the employee leaves in an amicable manner. Should these agreements, or additional benefits be subject to the employee agreeing not to commence any legal proceedings against the employer? Most employers would surely respond that this would be desirable. It is not uncommon for employers to require their employees in such circumstances to enter into a form of release.
There is widespread uncertainty as to the form any such release agreement should take and the default is to use a deed of release. We receive many queries from employers about whether it is appropriate to use a deed of release and what can be included in the deed. Understanding the importance of how a deed of release can assist and protect your business can be highly beneficial.
It is not uncommon that we receive a query as to whether employers can direct employees to take annual leave. This often arises when the business shuts down usually over the Christmas and New Year season. Conversely, it is not uncommon that we receive a query as to whether, and in what circumstances, employees are able to trade in a portion of their annual leave entitlement for cash.
The answer to both questions is far from straightforward. The industrial relations landscape in Australia does permit employers to direct employees to take leave under certain specified conditions. In addition, some employees may be entitled to “cash out” their leave, subject to specific requirements which apply under legislation and various industrial instruments.