Courts show little sympathy for employers who have misclassified employees as independent contractors, even where the misclassification is accidental. In recent times, there has been no shortage of workers lodging claims that they’ve been inappropriately classified as a contractor, demanding the benefits available to employees.

Publicly, the classification conundrum may have been focused on cases against Uber, Foodora and Deliveroo, but don’t be fooled into thinking that the issue is unique to the gig economy.

We have seen a growing number of claims against employers by individuals claiming to be employees but who have been engaged as independent contractors. They are two different, and legitimate, legal relationships. Misclassifying an employee as an independent contractor can be costly – legally, financially, culturally and reputationally. 

Moores recently presented to an industry group on the key distinctions between independent contractors and employees, the rights and obligations of independent contractors and the risks associated with getting it wrong.

The key takeaways are:

1. Get it right from the start – organisations need to consider the way the relationship will work as opposed to the label it is given.  How will the individual work within the organisation? What are they required to do? How and where will they work?  The more control and integration the organisation has over the individual, the more likely the individual is an employee.
   
2. Put your agreement in writing – The agreement should clearly set out the rights, obligations and expectations of both parties, and an ability to vary or terminate the contract in particular circumstances. Well drafted agreements will clarify the respective positions, reduce the potential for disputes and aim to protect an organisation’s reputation and confidential information. Simply changing a reference from ‘employee’ to ‘contractor’ in an existing agreement is dangerous. The agreements generally contain very different obligations, rights and entitlements.
   
3. The existence of an independent contractor agreement doesn’t guarantee the classification – Whilst it is imperative that you have a contractor agreement in place when you engage independent contractors, its existence does not mean a Court (or ATO or Fair Work Ombudsman) will deem the individual to be an independent contractor if the reality of the work arrangements are not consistent with the individual being a contractor. Consideration will be given to whether the individual is running their own business, or is embedded within the organisation they are working with in a way which is more aligned to them being an employee, despite the contract terms and method of payment.
   
4. Superannuation and insurance may be payable to independent contractors – For both superannuation and WorkCover purposes the definition of employee (and worker) is much broader than the commonly understood meaning under the Fair Work Act 2009 (Cth) (FWA).  It is therefore important to consider whether the independent contractors you engage are entitled to superannuation payments or are required to be included in your WorkCover Insurance Policy.
   
5. Understand your obligations – Whilst the FWA is predominantly tailored to the employer/employee relationship, it also provides protections for independent contractors. Protections include the ability to seek remedies for adverse action, coercion and abuses of freedom of association. Like employees, independent contractors are also entitled to a safe and healthy workplace, and it is the employer/ principal’s obligation to provide such an environment. Independent contractors can also ask a Court to review a contract on the basis that it is unfair or harsh.
   
6. Review, Review, Review! Just because an individual was engaged as an independent contractor does not mean that the relationship is set in stone. Over time, the engagement may actually morph from a contractor/principal relationship to an employee/employer relationship. Organisations should review their arrangements and consider the true nature of each engagement.
   
7. When in doubt, get advice – There are significant penalties associated with misclassifying an employee as a contractor, particularly where there is sham contracting.  Also, where an organisation has incorrectly classified an individual as a contractor, they will be exposed to significant underpayment claims, tax liabilities and superannuation contributions.  Importantly, penalties can be ordered against an organisation and individuals involved in the breach.

If you are unsure about your current arrangements for workers within your business or need assistance with drafting employment and independent contractor agreements, please do not hesitate to contact us.

The Victorian government has just announced that it will ban students in all Government schools from having phones between first and last bell.

Education minister James Merlino has been quoted saying that the ban will minimise cyber-bullying and distraction.

Independent schools are not required to follow the ban. They may introduce a similar ban (many already have) or other policies or variations on “bans” regarding the use of technology by students.

Let’s be clear: removing phones does not remove the School’s potential liability for harm caused by cyber-bullying. There’s simply no ability to say “it’s not our fault, because we told students not to use their phones and the harm was caused during a ban”. However, any student breaching the “ban” can and should be disciplined.

Last week we conducted our regular education briefing for clients. The topic was Child Safety in the Digital World.

Key takeaways from the session included:

1. Schools will often be liable for “out of hours” behaviour by students who have been engaged in cyber-bullying and have some obligations to investigate claims; and
2. Schools equally need to:
   • equip themselves to discipline students for this behaviour by ensuring enrolment agreements actually enable this, and
   • ensure, if they are disciplining students, that they follow their own compliant policies, including a Behaviour Management Policy which complies with the VRQA’s requirements which take effect from 1 July 2019.

Some of our independent school clients with liberal ethos might rightly criticise the ban as paternalistic and potentially hypocritical, unless educators and parents also stop using phones during the day.  They might argue that their duty of care is better discharged by accepting the reality of technology and ensuring that students know how to use it safely and in a way that does not cause harm.

Ultimately, independent schools might adopt a similar ban. If they do, they should remember that banning phones is not a substitute for:

• Educating students about cyber-safety; and
• Having policies regarding bullying and acceptable use, which are diligently and consistently enforced.

Lastly, if you are removing phones, ensure that any student who requires it for medical purposes (e.g to monitor their blood sugar app) is able to keep it, and ensure removed phones are kept secure and not accessed by staff, or face potential liability for loss of phones and privacy breaches.

How we can help

For more information regarding the phone ban or for further advice to ensure your School’s policies are compliant, please do not hesitate to contact us.

Victorian schools should be aware that they must comply with the VRQA’s updated Guidelines to the Minimum Standards and Requirements for School Registration (Guidelines) by 1 July 2019.

The changes to the Guidelines call on schools to provide evidence of how they comply with the Guidelines.

While the Guidelines touch on many areas of school operations, we encourage schools to focus on the following key areas ahead of Monday’s deadline:

Enrolment Policy

Does it make clear who is eligible for enrolment?

Enrolment Agreement

1. Is it ready to be made publically available?
2. Does it cover your Parent Code of Conduct and Student Code of Conduct?
3. Does it set out the school’s fees, the services it provides and grounds on which enrolment may be terminated?
4. Have you checked it’s not discriminatory, noting that all schools must make reasonable adjustments for students with disability.

Behaviour Management Policy

Does it set out the school’s policy and procedures for managing suspension and expulsions, while affording procedural fairness?

Conflict of Interest

Does your school have a conflict of interest register for all responsible persons (usually, but not always, the school’s board members), including how these conflicts will be managed?

Third party arrangements

Does your school have written agreements in place with all third parties that work with the school? This is very broad, including any governing body you work with and all the way to the cleaning company you engage to clean the school.

How we can help?

Moores can assist your school in reviewing and updating your documents to meet the requirements of the new Guidelines. For more information, please do not hesitate to contact us.

It’s hard to keep up with the changing landscape of social media usage by children. In 2018, the Australian Psychological Society found that teenagers spent an average of 3.3 hours a day on social media. This is compared to the national average of 1.5 hours.  The majority of this time spent on social media is through a mobile phone device which can be used anywhere. Digital usage and social media is making it harder to distinguish between “on school grounds” and “off school grounds”, raising the question – how far does your school’s duty of care extend?

Changing digital landscape

Along with the increased use of social media, children and young people are using different networks from adults. Facebook is not commonly used amongst children with Instagram, Snapchat, YouTube and WhatsApp being more popular. Furthermore, new apps are emerging such as:

• TikTok (formerly Musical.ly) – live streaming app with more than 1 billion downloads globally which is popular amongst young people, being listed as one of the apps teenagers are most excited about in a survey by Business Insider;
• Yubo (formerly Yellow) – app known as “Tinder for kids” which is aimed at 13 – 17 year olds to allow them to make ‘friends’ in their area; and
• Omegle / Whisper – apps that randomly pairs users with strangers to video chat.

Furthermore, the platforms that we are familiar with, such as Facebook Messenger and Instagram are being used in new ways. For example, Instagram has a messenger function and ‘stories’ to allow people to share images and videos which expire after 24 hours and Messenger can be used to send ‘secret’ or ‘disappearing’ messages.

Child safety issues

Social media and technology themselves are not a bad things. It can be used by children to stay connected with their friends, even when they move interstate or overseas. It can be used to learn, to communicate efficiently (such as when soccer training is cancelled) and to keep children connected with their family. However, they do create child safety risks on a scale we have not seen before.

The Australian Psychological Society study found that 15% of teenagers report to be contacted by strangers daily on social media. Furthermore, 35% of teenagers reported that they posted something that they later regretted and 29% had been bullied on social media.

The impact of social media also crosses into mental health concerns with 63% of teenagers stating that they feel pressured to look good in photos on social media and 56% often feel negative emotions after using social media such as feeling left out or feeling like “everyone else is living the dream”.

Your School’s duty of care

It is becoming virtually impossible for schools to insist that their duty of care ends when the school day ends. Often, child safety concerns on social media are occurring on the school grounds. Even where they occur off school grounds and outside of school hours, the impact may return to the school.

For example, there have been several instances of students placing videos on TikTok while in their school uniform. Videos have included sexualised videos, self-harm and violence. This has often led regulatory authorities to locate and identify the children in the videos by contacting the school.

In 2017, two students at St Peter’s College in Adelaide faced charges after they filmed and shared a video of two other students engaging in sexual intercourse. Parents of the school expressed concern that they were not notified by the school of the incident before it hit the news.

These incidents (and many more) send a strong message to schools that it needs to take some responsibility for its students’ technology and social media use. However, it is common for schools to feel powerless in this space as they feel limited in their ability to monitor, police and respond to incidents that occur on social media. This raises questions such as:

• When is the school liable for their students’ social media / technology use?
• What are the school’s powers to respond to allegations of ‘bad behaviour’ online? Can it confiscate phones, take evidence from phones or request that messages are deleted?
• What should a school do about students who commit offences such as image based violence, non-consensual sexting, online harassment and cyber-bullying?
• What can schools do to respond to or help students respond to defamatory content, fake profiles, stalking and sexting?  
• How can schools monitor their students’ social media usage?
• How can schools promote a culture of good digital citizenship and online safety amongst their students?

For more information regarding your school’s duty of care in a digital landscape, please do not hesitate to contact us.

What happens when “Dad”, the sperm donor, who is registered on the birth certificate as Dad and has a close fatherly bond with a child, now 11 (let’s call her Amy), is faced with Mum and her same sex partner deciding to up and move to New Zealand, thus impacting his relationship with Amy?

The High Court in Masson v Parsons had to decide if Dad really was a parent under the Family Law Act and therefore to stop Mum moving, in “the best interests of the child”. Dad asked the court to prohibit the move, and he sought equal parental responsibility and substantial spend time arrangements with Amy.

Interestingly, Mum had agreed before the donation occurred that Dad would have an ongoing role in the child’s life. Both Amy and her younger sister called him “Daddy”.

Why did it go to the High Court?

The problem was in the NSW law that irrebuttably presumed that a sperm donor in his situation was not a parent of the child.  Did this clash with the Family Law Act, a federal law, and should the latter take precedence because federal laws take precedence over state laws?

Can a sperm donor be a parent?

In the words of the court:

“To characterise the biological father of the child as a “sperm donor” suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of that procedure. Those are not the facts of this case.”

Critically, the High Court confirmed that the ordinary, accepted English meaning of the word parent is to be applied. The definitions in the Family Law Act relating to “parent” were not exhaustive. Instead, ordinary understandings of “parent” had to be applied and added to those in the Act. To put it neatly, as an English case they quoted said, you have to look at all the life circumstances of the case, including whether they may appear to be a parent “genetically, gestationally and psychologically”.

And the High Court made the orders that Dad sought.

What are the ramifications for other sperm donors?

Despite what you might read in the media, it is unlikely that sperm donors who never had any intention of taking on parental rights or responsibilities could now be legally recognised as a father of the resulting child against their will. Note that the High Court specifically did not address this issue. Current Victorian law is similar to NSW where a sperm donor has no parental rights. And the Family Law Act may support this position where the biological parent is truly a “sperm donor” only.

So if I have a biological child and am not involved does that mean I have no parental responsibilities?

No. These State laws only apply to sperm donors where a child is conceived by artificial insemination. If you have a biological child – even if resulting from one encounter with the child’s other parent – you have responsibilities to the child, including the obligation to pay child support.

Interestingly, even though the child in this case was born from IVF, Mr Masson always had financial responsibility to pay child support, in any event, because his name was on Amy’s birth certificate. Had it not been, he would now be obliged to pay child support for another reason, having been found to be a parent by the court.

If you’re not sure about your parental rights, or you’re considering artificial conception and would like more information, please do not hesitate to contact us.

It is not uncommon to discover an error within a deed establishing a trust. 

The recent decision of the Federal Court in Trustee for the Michael Hayes Family Trust v Commission of Taxation^[1] provides some helpful guidance on resolving such errors.

What was the issue?

A Trust was established with two key beneficiaries being named in the deed, one of which was a family trust and the other of which was a self managed superannuation fund.

Unfortunately, in preparing the trust deed, the prior trustee company for the self managed superannuation fund was named rather than the current trustee company. 

The settlor and trustee entered into a deed to rectify this issue.  However, during an audit investigation the Commissioner sought to argue that the prior trustee company named in the trust deed was in fact the key beneficiary of the trust.

What did the Federal Court decide?

The Commissioner argued that there was no ambiguity present in the trust deed, therefore the company named in the deed should be construed to be the key beneficiary of the Trust.  However, the Court held that a broader approach should be taken.  Against the background to the arrangement that was being put in place, the reference to prior trustee company as a key beneficiary made no sense.  Accordingly, the Court concluded that the key beneficiary of the Trust was in fact the current trustee company for the self managed superannuation fund.

The Court also considered the effect of a deed of rectification, and concluded that such a deed would be effective if it recorded the fact that the parties were under a mutual mistake.  However, where the deed of rectification was questioned by a third party, such as the Commissioner, there was utility in making a Court Order. 

What can we learn?

Where a mistake exists in the trust deed:

1. The first thing to consider is whether the mistake can be addressed by adopting an appropriate construction of the trust deed.
2. If the issue cannot be overcome by construction, the relevant parties should consider entering into a deed of rectification.
3. If a third party, such as the Commissioner, disputes the deed of rectification a Court Order may then become necessary.

In recent times, one of the most common error we have seen in trust deeds is the incorrect execution of the deed by the trustee company.  Without rectification, this error could lead to the deed being invalid, as was the case in Re Narumon.^[2]

Should you encounter any issues in relation to errors in trust deeds, please do not hesitate to contact us.

[1] [2019] FCA 426
[2] Re Narumon Pty Ltd [2018] QSC 185

The Family Courts will now take real steps to prevent victims of violence from being psychologically re-injured during court proceedings.

Cross examination of parties

Currently, self-represented parties may run their case as a lawyer would, including by cross-examining the other party.

Where there has been family violence, this can create, at a minimum, enormous stress for the victim, who may be cross-examined by their perpetrator and have to cross-examine the same perpetrator. 

Sadly, this has caused many to succumb to the influence of their abuser or settle poorly to avoid facing further trauma in court.

Under current Victorian law relating to intervention orders, Magistrates have for many years had the power to compel Victoria Legal Aid to offer legal representation to unrepresented parties for the purpose of cross-examining the other. The relevant legislation states not that the court may order representation in these circumstances, but that they must.

Despite what happens in intervention order cases, those same two parties have been permitted to cross-examine each other in family law proceedings.

Why is it so different in the Family Law courts?

The problem can be traced to Australia’s Constitution – family law operates at a federal level while legal aid is operated independently by the states and territories.  Family violence protection funding exists in intervention order cases but not federal family law cases.

Community concern has increased pressure to introduce similar provisions in family law cases. Further, a government study in 2018 found that the majority of family law cases involving direct cross-examination had no specific family violence safeguards in place for either party.

What do the new amendments do?

Simply put, the new amendments change all this. The cross-examination by either party (who is unrepresented) of the other will now be prohibited – in all cases involving family violence that are listed for final hearing from 10 September 2019.

This applies when there is an allegation of family violence and:

1. Either party has been charged with or convicted of a criminal offence that involves violence (or a threat of violence) against the other party;
2. Where there is a final intervention order (or other family violence order as may be applicable outside Victoria) that applies to both parties;
3. There is an injunction made pursuant to section 68B or section 114 of the Family Law Act for the personal protection of one of the parties against the other.

The court can also make an order that personal cross-examination will not be permitted in some other circumstances. This may occur, for example, where the parties only have an interim intervention order in place from their incomplete state-based proceedings and the court determines that this is necessary for a person’s protection.

Where a self-represented party is prohibited from cross-examining the other, they will now have to get a lawyer, either privately or through a new government funded scheme administered by Legal Aid.

Thankfully, the family law and family violence landscape continues to adapt.

In other news, the Australian Law Reform Commission recently recommended that family law matters be administered at a state-based level to improve communication between the family violence, criminal, child protection and family law sectors. On the other hand, the federal government seeks to merge the Family Court and the Federal Circuit Court with the new merged court to retain only federal powers. As they say, watch this space. 

For any family law enquiries, please do not hesitate to contact us.

The privacy of individuals and how organisations protect this privacy continue to gain attention in the media, with data breaches involving two prominent Australian organisations hitting the news in the last week.

Westpac Banking Corporation

It has been reported in Australian media that Westpac has been subject to an enumeration attack – when a malicious actor uses brute-force to either guess or confirm valid users in a system. Westpac confirmed that it “had detected mis-use of the [New Payments Platform’s] PayID functionality and we took additional preventative actions which did not include a system shutdown.” Westpac did not release the number of individuals affected, though The Age reported that 100,000 individuals’ names and phone numbers were compromised during the attack.

Australian National University

Additionally, on 4 June 2019 the Australian National University (ANU) stated that it had recently become aware that it’s system had been the subject to unauthorised access to significant amounts of personal staff, student and visitor data extending back 19 years. While the access occurred in late July 2018, ANU only became aware of the attack two weeks ago. The information that was compromised included include names, addresses, dates of birth, phone numbers, personal email addresses and emergency contact details, tax file numbers, payroll information, bank account details, and passport details.

Why this is an issue

Personal information is incredibly valuable, particularly as the world becomes increasingly connected through technological advances. Personal information can be used to carry out identity theft by impersonating the person to whom the information relates. Additionally data breaches can be a threat to the safety of individuals if they are at risk of serious harm due to the information being released.

Additionally, the introduction of the Notifiable Data Breach Scheme (NDB Scheme) in February 2018 has placed organisations on notice that the security of personal information is a serious issue in Australia. Eligible data breaches are now reportable to the Office of the Australian Information Commissioner (OAIC) and individuals affected. Eligible data breaches arise when:

• there is unauthorised access to or unauthorised disclosure of personal information, or a loss of personal information, that an entity holds; and
• this is likely to result in serious harm to one or more individuals (see Is serious harm, and
• the entity has not been able to prevent the likely risk of serious harm with remedial action.

Before the introduction of the NDB Scheme, a voluntary reporting scheme existed. In the 12-month period following the introduction of the NDB Scheme, a 712% increase in the number of reports made to the OAIC was recorded.

What you can do to prevent malicious attacks

The breaches that occurred at Westpac and ANU are indicative of the most common cause of data breaches, being malicious or criminal activity. 60% of the reports made to the OAIC in the first 12 months of the NDBS fall into this category. In order to reduce the opportunity for malicious attacks to occur, the OAIC recommends:

• identifying and minimising known security risks;
• engaging expert security advice;
• implementing encryption and secure data transfer technologies;
• undertaking proactive monitoring of systems; and
• remove data that is unnecessary to the function of the system.

Prepare now

In its Notifiable Data Breaches Scheme 12‑month Insights Report, the OAIC identifies training and preparation as key tips for best practice in relation to data breaches.

We encourage organisations to prepare for a data breach before it happens to ensure a swift and cohesive response in the event that one occurs. The following recommendations are useful starting points:

1.  Implement a Data Breach Response Plan

A DBRP provides practical guidance on how to reduce the impact of a breach, meet obligations under the NDB Scheme and reduce harm to individuals. A DBRP should be tailored to your organisation and set our how you will assess whether there is a risk of serious harm and whether the breach is reportable – elements that we often find are lacking in DBRPs.

2.  Test your Plan

The OAIC encourages organisations to carry out regular exercises or data breach simulations, as they are a critical way that organisations can ensure preparedness as they often highlight deficiencies and risky dependencies. Moores recently carried out a data breach simulation workshop with our clients, which allowed clients to consider how to assess harm and the special considerations that were required for their data breaches.

3.  Train your staff

All employees should be trained on how to detect and report email‑based threats (such as phishing), understand basic account security (such as secure passwords) and how to protect their devices. Human error contributed to 35% of all data breaches in the first 12 months of the NDB Scheme. Education should also focus on data handling practices and how to report suspected privacy breaches. Moores regularly runs this training with our clients to raise awareness throughout the organisation.

How we can help

Moores is able to support organisations who are navigating the privacy landscape by providing an assessment of their privacy practices and updating their Privacy Policy or Data Breach Response Plan. Additionally, we can run training and simulations that are targeted at your organisation’s unique practices and in a format that is practical for employees.

For more information, please do not hesitate to contact us.

The Federal Court of Australia (the Court) has dismissed an employee’s disability discrimination and victimisation claims against his employer, a family law practice, finding that the employer did everything necessary to assist the employee to return to work following a major depressive episode.

In Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436 , Mr Tropoulos, a family lawyer (the employee), argued that Journey Lawyers Pty Ltd (the employer), discriminated against him and failed to provide “reasonable adjustments” for his disability in breach of the Disability Discrimination Act 1992 (Cth) (DD Act).

Despite the employer’s support, several return to work attempts failed with the employee being unable meet the reduced hours of work and working at one tenth of his previous working capacity. 

In a third attempt to facilitate the employee’s return to work, the employer sought to reduce the employees’ expected earnings and reduce his salary and responsibilities associated with mentoring other lawyers The return to work plan also included a gradual increase to hours of work.

The issues

The Court had to determine whether the legal practice should have made “reasonable adjustments” for the employee with respect to his disability. The employee argued that his employer should have:

• provided him with half-day working days;
• provided him with briefings on his return to work;
• permitted him to work on his former client files;
• permitted him to return to the office he had occupied prior to his absence; and
• permitted him to return to the position, conditions and salary of Senior Associate he formerly held, rather to be demoted to a new role of “Family Lawyer”.

While medical advice was provided by the employee’s psychiatrist in support of the employees’ return to work, the Court noted the psychiatrist had previously misjudged the employee’s capacity, and that such advice was coloured by optimism. The Court placed weight on the fact that the legal practice had not received a formal “return to work” plan from the employee’s treating psychiatrist, and lacked knowledge about the employee’s disability and the adjustments that he required. 

The decision

The Court accepted that the employer had facilitated an informal return to work plan for the employee, and had attempted to:

• support his return to work on several occasions;
• reduce the employee’s hours to three alternate days per week;
• provide the employee with time to recover;
• provide a gradual increase in hours of work; and
• offer the employee additional leave to facilitate further recovery, if required.

The Court held that by taking the steps above, that the employer had made reasonable adjustments for the employee within the meaning of the DD Act.

The Court rejected the employee’s claims that the legal practice’s failure to implement his proposed reasonable adjustments constituted disability discrimination, finding that the employee had not been treated less favourably than an employee, without his disability, would have been treated in materially similar circumstances. The Court accepted that, even if the employer’s conduct had amounted to disability discrimination, the employee’s case on liability would have failed on the bases that

• the employee’s proposed reasonable adjustments (working 5 half days per week) constituted an “unjustifiable hardship”; and
• the employee would have been unable to carry out the inherent requirements of practice as a lawyer, even if the requirements were made.

In considering the inherent requirement exception, the Court set out the relevant question for determination – would the position be essentially the same if that requirement were dispensed with? The existence of a requirement within an employment contract does not of itself confirm that it is an inherent requirement of the particular position in question. In this case, the Court found that the ability to put legal knowledge and skills into practice in such a way as to derive an income was an inherent part of the employees’ role as a senior associate and that the employee, because of his disability, was unable to carry out the inherent requirements of his role.

Finally, the Court held the alleged detriments imposed on the employee had not been imposed “because of” the employee’s assertion of his legal rights.

Describing the obligations on employers, the Court noted that it is not an employer’s obligation to take responsibility for the recovery of an employee’s health.

The application by the employee was dismissed by the Court, and the employee was required to pay the employers’ costs on a party-party basis.

For more information, please do not hesitate to contact us.

Enterprise bargaining in Australia can resemble a blood sport – players jostle for position and try to land as many hits on their opponent as they can, with the ultimate goal to get the enterprise agreement over the line or kill a deal and limp off the field.

Too often we see employers reach agreement with their employees and bargaining representatives, only to lodge the enterprise agreement and have it rejected by the Fair Work Commission (the Commission) for procedural deficiencies.

To ensure you aren’t given a yellow card for a technical foul, you need to understand the rules of play. If your enterprise agreement doesn’t comply with technical requirements of the Fair Work Act 2009 (Cth) (the Act) and the Fair Work Regulations 2009 (Cth) (the Regulations), you’re unlikely to get it over the line without significant delay, and may be directed to start again.

Our top 10 tips to consider:

1. Consider which employees will be covered by the proposed enterprise agreement
   The employees covered by the enterprise agreement must be fairly chosen. This means an enterprise agreement must cover all employees employed by the employer unless the particular group covered by the enterprise agreement is geographically, operationally or organisationally distinct. For example, if an employer seeks to exclude casual employees who perform the same work as the full time and part time employees, it is likely that the Commission will not be satisfied that the group of employees is fairly chosen.
   
2. Comply with timeframes
   There are numerous timeframes with which employers must comply for agreement making purposes. These include the timing with which important documents are given to employees and notice of when particular events are occurring. The Commission has a date calculator on its website to assist with complying with these timeframes.
   
3. Get it right – the Notice of Employee Representational Rights form
   There are strict requirements in relation to the form and content of the Notice of Employee Representational Rights (NERR). Schedule 2.1 of the Regulations contains a template of the NERR which must only be changed where the notice indicates. Whether altered on purpose or by accident, changes to the NERR can result in the entire enterprise agreement application being dismissed on the basis of noncompliance.
   
4. Include mandatory terms
   Every enterprise agreement must include the following terms:
   – Dispute resolution procedure – a term which sets out how disputes in relation to the enterprise agreement or the National Employment Standards (NES) are dealt with.
   – Flexibility term – a term which allows an employee and employer to agree to an arrangement to varying the effect of the agreement.
   – Consultation term – a term which sets out the consultation obligations where there is a major workplace change that is likely to have significant effects on the employees or where there is a change to an employee’s regular roster or ordinary hours of work.
   
5. Identify the relevant Modern Award and classifications
   You will be asked to identify the relevant Modern Award which would otherwise cover the employees. This is used by the Commission to assess whether the employees are better off overall. To minimise any delay, identify the correct Modern Award and align the classifications under the proposed enterprise agreement with the relevant classifications under the Modern Award.
   
6. Understand the NES entitlements
   The NES set 10 minimum employment entitlements that apply to all employees. Enterprise agreements can provide employees with more beneficial entitlements when compared with the NES, however the Commission cannot accept a reduction to these entitlements, even if employees receive higher rates of pay.
   
7. Use clear wording
   If the enterprise agreement incorporates the Modern Award, it is important that the wording used in the agreement makes this expressly clear. Using a phrase such as the agreement is read in conjunction with the Award rather than the agreement incorporates the entire Modern Award, will likely result in a request for further clarification from the Commission.
   
8. Provide all relevant information
   To avoid delays in the processing of your application, provide the Commission with all the relevant information to assess the application. This includes describing the actual steps taken to comply with particular provisions of the Act (i.e. instead of using the phrase “we provided employees with a copy of the agreement” explain how it was provided, e.g. hand or email).
   
9. Comply with nominal expiry dates
   Nominal expiry dates must be no more than four years from the date the agreement is approved by the Commission, not the date the agreement commences.
   
10. Sign and date forms
    The regulations require that the agreement and the supporting documents are signed and dated. There are specific requirements setting out who can sign these documents and what information should be included on the signature page. You should ensure that those who are signing the agreement and supporting documents have adequate authority to do so.

For more information on enterprise bargaining, please do not hesitate to contact us.