To create a child safe culture you need to ensure your organisation has the right people on board. Drawing on lessons from the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), we know that organisations that failed to undertake careful pre-employment screening and reference checks, failed to act on red flags or allowed staff to work with children without a Working with Children Check (WWCC), ultimately failed to protect children.

To address these risks, the Royal Commission included in its recommended National Child Safe Standards that organisations should ensure that people working with children are suitable and supported.  This has been adopted in several states including Victoria where organisations must screen, supervise, train and have in place other human resources practices that reduce the risk of child abuse by new and existing personnel.  Ensuring that only suitable individuals are hired (or recruited as volunteers) to work with children also accords with an organisation’s overarching duty of care.

This article will set out safeguards and practices that organisation should have in place along the recruitment process.

Advertising the role

Child safety should be a consideration from the very beginning. 

Consider:

1. How much contact with children does the role involve?
2. Will the successful candidate be alone with children? 
3. Will they be alone with children in a high risk situation (e.g. camps, excursions)?
4. Will they be alone with vulnerable children such as those with disabilities or from a CALD background?

These considerations will help you to determine the requirements you might need to put in place. For example, a WWCC may be needed, multiple reference checks or a police check.

We recommend that job advertisements clearly state that the organisation’s commitment to child safety and zero tolerance for child abuse.

Selection for interviews

Before an interview even takes place, consider an application through a child safety lens.  Be alert to potential red flags in a person’s resume or cover letter.

Examples include:

• Lots of movement between different states or countries – this could indicate being asked to move on from roles or moving between states or countries to avoid criminal records being picked up by checks;
• Lack of progression in roles – this could indicate that a person has had issues in the workplace;
• Being over-qualified for the role – a person may be choosing to take a demotion to be around children;
• Unexplained gaps in employment – this could indicate an unwillingness to list some past employers or a prior prison sentence; and
• Prior history of violence – an individual may disclose that they have a past history of violence or a criminal record.  Even if this is not child related, it presents a potential risk and may also void your insurance coverage.

While the examples above may be innocent and may not be indicative of anything sinister, it is worth noting them in your consideration of the applicant and asking further questions in any interviews and reference checks.

Interviews

The first tip for running interviews is to ensure that they are face-to-face wherever possible.  Telephone interviews or even Skype can make it difficult to read a person’s body language.

Interviews should be conducted by a diverse mix of individuals, particularly in gender and age.  The interview should also include questions about child safety, such as behaviour and scenario-based questions.  For example, “Please provide me with examples of how you have responded to a child safety issue” or “How would you respond to a child who does not listen to your instructions?”

Asking child safe questions also emphasises to the applicant that your organisation takes child safety seriously.

Screening

Before an offer is made to an applicant, there should be a screening process.  If an offer is made before screening, it should be made clear to the applicant that this is conditional on them passing screening.

Subject to the requirements of the role, screening should include a WWCC and/or police check.  If the applicant has spent a significant amount of time overseas or interstate, you should consider asking for a police check in their countries of residence, noting that a WWCC is only state based. 

You should also conduct careful reference checks with at least two previous employers or organisations where the applicant has volunteered, particularly where the applicant has interacted with children.  Often, organisations will ask questions to merely confirm the details on the applicant’s resume.  However, a child safe approach would include questions regarding the applicant’s work with children, any concerns they might have had or were raised about the applicant, and how children perceived them.  

You may also wish to do your own research into the applicant.  This could include searching their name on Google and ensuring that their LinkedIn is consistent with their resume.

Offer

Once you are satisfied about the applicant’s suitability to work with children and you make an offer that is accepted, the process continues.  It is important that provisions are placed in your contacts of employment such as requiring employees to notify you of any child related charges and offences, maintaining a valid WWCC, and the right to dismiss them for any breach of your child safety policies and codes of conduct.

During induction, the child safety policies should be provided to the individual (if they have not already been) and if possible, an assessment of whether they have read and understood it should occur.  

You should also introduce a probationary period during which the applicant will be supervised with children.  This should be carefully monitored and feedback should be invited from children and / or their parents about the employee or volunteer.

Record

Organisations should clearly record the steps they take to recruit and retain the right people. Following the Wrongs Amendment (Organisational Child Abuse) Act 2016 (Vic), if an abuse occurs, there will be a presumption that the organisation failed in its duty of care unless it can prove that reasonable precautions were taken to prevent the abuse. The changes reverse the onus of proof to help reduce the barriers in legal proceedings for survivors. Insurers may also require these records as a condition of cover.

Next steps

Ensuring the individuals you engage are suited to work with children is an ongoing process that involves continuous monitoring, training and evaluation. 

Some recommended next steps are:

1. Review your recruitment processes to ensure that child safety is a focus throughout.
2. Train your HR staff and management regarding red flags to look out for when recruiting and interview techniques.
3. Update your induction pack for volunteers and staff to embed child safety training.
4. Implement processes for monitoring WWCCs and promoting ongoing refresher training for staff members on child safety.

Moores has experience working with organisations to create child safe practices.  If you would like to discuss this article with us further, or learn more about our child safety services, please don’t hesitate to contact our Practice Leader, Skye Rose, on (03) 9843 2100.

A Sydney-based fashion industry start-up and its sole director have been ordered to pay over $300,000 in penalties for underpaying three workers more than $40,000, including engaging one worker as an unpaid intern when she was, in fact, a part-time employee. The Federal Circuit Court decision highlights the significant legal, financial and reputational risks associated with incorrectly classifying workers and engaging “unpaid interns”.

Background

In Fair Work Ombudsman v Her Fashion Box Pty Ltd [2019] FCCA 425 the Fair Work Ombudsman (FWO) commenced legal proceedings against Her Fashion Box Pty Ltd (HFB) and its sole director, Kathleen Purkis, (Ms Purkis), for pecuniary penalties due to 19 contraventions of the Fair Work Act 2009 (Cth) (FW Act). Ms Purkis was the sole director and majority shareholder of HFB, and was responsible for the overall direction, management and control of the Business.

The FWO submitted that HFB and Ms Purkis underpaid three employees their minimum Award entitlements, including one graphic designer who was engaged on the basis of an ‘unpaid internship’.

Ms Va, the ‘intern’, had already completed university and was working at HFB for 2 days per week for 6 months.  Ms Va was employed from July 2014 to December 2014 and then again in January 2015.  During the engagement, Ms Va:

• created and updated the HFB’s website, banners, layouts for videos on HFB’s youtube channel, electronic newsletters, layouts of HFB’s business magazine; and
• packed HFB’s boxes.

While the FWO had recovered some of the underpayment amounts from HFB and back paid the employees, it commenced legal proceedings after a lack of co-operation by HFB with FWO inspectors. FWO also sought court orders requiring HFB and Ms Purkis back-pay the employees in full (as they were only partially back-paid prior to the proceeding).

Judgment

The Federal Circuit Court found that there were significant contraventions of the FW Act by underpaying the workers, and found that Ms Va was actually an employee who should have received minimum wage entitlements. The court ordered HFB and Ms Purkis pay pecuniary penalties of $329,133 for these contraventions of provisions of the FW Act.

Unpaid internships under the Fair Work Act

The case highlights that organisations cannot avoid paying lawful entitlements to their employees simply by labelling them as interns.

Unpaid placements are lawful where they are part of a vocational placement related to a course of study. However, it is unlawful to exploit workers when they are fulfilling the role of an actual employee. Business operators who try to exploit workers as a source of free labour risk facing enforcement action from the Fair Work Ombudsman.

Tips to determine whether someone is an employee or intern

1. The reason for the arrangement: 
   If the purpose of the internship is to provide the person with work experience formally connected to education or training (e.g. through university or TAFE), or a program of training legally required to enter a profession, it is less likely to be an employment relationship. If the work involved is more productive (i.e. not just observational, learning, training or skill development) then it is more likely to be an employment relationship.
   
2. The length of time: 
   The longer the work arrangement period, the more likely the individual will be an employee.
   
3. Whether the work is significant to the business: 
   If the intern is doing work normally done by a paid employee and the business requires this work to be done then the individual will more likely be an employee.
   
4. The individual benefit: 
   The person doing the internship should get the main benefit from the arrangement.  If the business is getting the main benefit from engaging the “intern” (i.e. charging for, or making a profit from the work completed by the intern) then the individual will more likely be an employee.

How we can help

Moores advises employers and service providers on the appropriate classification of its workers, whether they are employees, volunteers, independent contractors or interns. If you would like further assistance, please do not hesitate to contact us.

Of course, parents want to assist their children and that often extends to financial assistance.  Sometimes, adult children expect a parent to assist.  Before money passes hands, families need to consider how they can avoid creating any unforeseen legal consequences.

Courts have previously commented on the vulnerability of parents who contract with their children, which often “stems not from a failure to comprehend the nature of the transactions in which they are asked to participate or from insufficient information concerning their implications.  It stems from the love of their children.  Their desire to help and protect them, to advance their interests, to maintain a close relationship, to avoid causing disappointment, hurt or distress, to maintain the relationship all make it difficult to say “no”’ (Watt v State Bank of New South Wales [2003] ACTCA 7).

A recent case

Moores recently acted for a client whose sibling had signed loan agreements with their mother, in her capacity as the mother’s attorney (lender) and in her personal capacity (borrower).  Our client was concerned about whether the arrangement was above board.  While the signing of the loan agreement on behalf of the lender and as borrower is a conflict of interest, was the advancing of the loan contrary to the mother’s interests?  In the circumstances, it was not because:

• There was a written loan agreement
• Mum took security over the daughter’s property, in the form of a registered mortgage
• The interest rate was higher than the interest rate Mum would have received had the funds remained invested
• Mum had sufficient cash at bank, liquid investments and property interests – she was in a position to meet her ongoing obligations and aged care costs if the daughter defaulted.

Had Mum been in different financial circumstances, or had the loan arrangement been undocumented or at a 0.00% rate of interest, the circumstances may have allowed the sibling to challenge the arrangement as amounting to unconscionable conduct, and to have the loan agreement set aside.

Key issues to consider

If you or your clients are considering an intra-familial loan arrangement, there are some key issues that they should consider before doing so:

• Is the advance of funds a loan or a gift? If a loan, what are the key terms and how will it be documented and secured? What will occur if the loan agreement is breached? If the loan agreement is breached, will that impact on the lender’s ability to meet their own costs of living?
• If the lender has lost capacity, their personal legal representative must consider whether the proposed arrangement is in their interests
• How might the advance of funds interact with family law if the adult child is married or the relationship breaks down?

How we can help

Moores can provide you or your clients with specialist legal advice about matters to consider before an advance of funds is made, and can document the arrangement as required.  Please do not hesitate to contact us.

Does a section 90B Financial Agreement prevent the Court from considering an Interim Spousal Maintenance Application?

The recent case of Barre & Barre & Anor [2018] FCCA 97 (“Barre & Barre”) considers an application made by the Wife to the Federal Circuit Court of Australia (“the Court”) for interim periodic spousal maintenance where a Section 90B Financial Agreement exists between the parties, which determines how the property pool will be divided in the event of separation.

The basis of the Wife’s application for interim spousal maintenance formed part of her final application to set aside the parties’ Financial Agreement pursuant to Section 90K of the Family Law Act 1975 (Cth) (“the Act”). 

The Wife maintained that she would suffer hardship if the Court did not set aside the Financial Agreement due to a material change in circumstances, being the birth of children during the marriage.

The Husband maintained that the Wife’s application was without merit and bound to fail.  He opposed the Wife’s application for interim spousal maintenance on the basis that the issue of spousal maintenance is dealt with in the Financial Agreement and therefore the Court does not have jurisdiction to deal with the Wife’s application.

Facts of the case

• The parties entered into the Section 90B Financial Agreement on 31 August 2005 and married later that same year.
• The parties had two children, the first in 2007 and the second in 2012. The Wife maintains both children have special needs.
• The parties separated on 29 October 2019 at which time the Wife and children vacated the former matrimonial home and began living with the Wife’s mother.The Husband continued to reside at the former matrimonial home.
• At the time of the Court hearing in December 2017, the Wife was employed on a part time basis as a recruitment consultant earning, in conjunction with government benefits and child support $1,465 per week.
• The Wife asserted her expenses were $2,676 per week. The Wife owned a property which had equity of approximately $350,000 and was tenanted to meet the mortgage repayments.She also had some superannuation, a car and jewellery.
• The Husband was a director of his own Company earning $1,500 per week.The value of the Husband’s property is an ongoing dispute of the matter, however from the facts of the case it can be inferred he has substantial assets.
• The Wife was pregnant at the time of the hearing to a ‘Mr O’.The Wife maintained they were not in a de facto relationship.

What did the parties’ argue?

The Wife submitted the Agreement was not compliant with Section 90E of the Act as it failed to specify the quantum of spousal maintenance to be provided.

The Wife relied on the decision in Boyd & Boyd [2012] FMCAfam 439 to support her application as it considered the history and proper construction of section 90E as follows:

Essentially the legislature requires that any consent order or financial agreement specify which portions of any lump sum or property order conferred thereunder are for either spousal or child maintenance, so that the social security implications of such an order or agreement is apparent.

She further submitted that since the birth of the children and subsequent separation from the Husband, her ability to maintain herself was “substantially altered” given her ongoing financial responsibility for the care of the children.

The Husband submitted that whilst the Agreement did not define the quantum of spousal maintenance, it could be reasonably inferred that it was the intention of the parties for it to be included.  At the time of entering in the Agreement, the parties were in employment, able to support themselves at that time and intended to do so in the future.  In turn, given the Agreement deals with the issue of spousal maintenance the Court’s jurisdiction is ousted.

The Husband further argued that the Wife was in a de facto relationship with Mr O and therefore there is an obligation on Mr O to provide for the Wife and not him.

What did the Court decide?

Ultimately, the Court was satisfied the Agreement did not make specific reference to spousal maintenance and that such a reference cannot be reasonably inferred.

In failing to adequately contemplate the provision of spousal maintenance, the agreement did not preclude the Wife from making an application to the Court and the Wife’s interim application was upheld.

His Honour, Judge Kemp, considered that whilst the agreement contemplated the parties having children, it was silent as to the impact of having children on each of their earning capacities.  The Husband had the financial capacity to reasonably contribute. 

The Court considered the Wife had a reasonable shortfall of $381 per week between her income and related expenses and ordered the Husband pay to the Wife the sum of $381 per week until final resolution of the matter.

Key Lessons

Baree & Barre is an interim decision in relation to the provision of spousal maintenance.  The matter remains on foot and therefore the issue of whether the Financial Agreement should be set aside pursuant to Section 90K of the Act on the basis of a material change of circumstances and associated hardship has not yet been determined. 

Barre & Barre sheds light on the importance of careful drafting that contemplates a complete range of future circumstances, especially in the situation of a young couple prior to marriage.

How we can help

If you require further information or assistance, please do not hesitate to contact us.

This interesting question was analysed in the case of Squibb & Graham. 

The wife wanted to preserve the BFA, which was supposed to be a prenuptial agreement, and for the court to rectify its badly drafted parts.  

The judge noted that both barristers agreed that the financial agreement was “not a model of clarity”.  Further, he said, “The document bears all the hallmarks of having been the subject of an internet search and….completed under the misapprehension that it complied with all the (necessary) legal requirements.”

After separation, the husband decided to challenge the agreement. 

The problems in the agreement included:

1. Omission of the compulsory requirement in the Family Law Act that, to be a “financial agreement”, it had to stipulate that it was made under s90B, 90C or 90D (relating to marriages). 
2. A nonsense paragraph saying that it was governed by the laws of the State of Victoria.  Unfortunately the lawyers had not understood that the Family Law Act is a Commonwealth Act and is not a law of Victoria.
3. And, finally, the husband argued that the agreement was not a just and equitable settlement between the parties and didn’t take into account all their respective contributions to the relationship and to their family.

The judge noted that the agreement referred to their marriage and “their respective rights” to property and spousal maintenance, and it was clear that the agreement was intended to cover their marriage and any future separation.

He then considered the law about rectifying contracts or agreements.They stated that the Court will construe an agreement to give effect to the intention of the parties, even if that intention has been obscurely expressed.Further, there was to be no “limit to the amount of red ink or verbal rearrangement or correction which the Court” allows, as long as it is clear enough that a reasonable person would have understood what the parties intended.

So, the Court decided it was clearly the parties’ intention (if they had understood the law properly) that the agreement was to be a prenuptial agreement and they rectified it to specify that it was made under s90B.

Secondly, it was clear that the statement about the agreement being governed by the laws of the State of Victoria should be replaced with a new clause stating that the agreement was governed by the Family Law Act.

Finally, the argument that the agreement was not a “just and equitable settlement” was rejected because “it is not for the Court to make good a bad bargain”.An identical statement was made in the High Court case of Thorne v Kennedy.

Accordingly, the rectified agreement was found to be legally binding.

Although the wife escaped with a valid agreement, it is dangerous to have binding financial agreements prepared by inexpert lawyers.

How we can help

To avoid needless litigation we are very happy to help with any queries you have in relation to BFA’s.  Please do not hesitate to contact us.

Contractor insolvency has been a frequent occurrence in the Australian construction industry. It shows no sign of slowing down. For each ‘headline grabbing’ insolvency, there have been numerous insolvencies of smaller contractors and subcontractors. Insolvencies, big or small, have major repercussions on construction projects.

It is often difficult to spot the warning signs in time, and to work out which steps to take, to prevent time and cost blow outs on a project. This cheat sheet will help you spot the warning signs and take steps to mitigate the consequences of contractors’ financial difficulties.

Download the Contractor insolvency cheat sheet here

How we can help

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

The federal election is around the corner and campaigning is reaching fever pitch.  There have even been complaints that party volunteers have been entering temporary or mobile polling booths to assist residents to fill out their Senate ballot papers.*

Courts have previously considered the question of whether prisoners have, or ought to have, voting rights (answer:  preventing a group of adult citizens from voting is not consistent with the Constitution per the High Court decision in Roach v Electoral Commissioner (2007) 233 CLR 162)). 

Provision is made for hospital in-patients who generally vote via a mobile polling booth – the presiding officer will take a ballot box, ballet papers and anything else necessary and will be accompanied by a polling official to facilitate voting.

But what is the situation for residents of aged care facilities, particularly those who are physically incapacitated or cognitively impaired?

A voter who is visually impaired or physically incapacitated or illiterate is entitled to appoint someone to enter an unoccupied compartment of the booth with the voter, and mark, fold and deposit their ballot paper for them (section 234 of the Electoral Act 2002 (Cth)).  The Australian Electoral Commission says that a voter can even elect a party worker can to assist a voter in this categorysituation.

There is no express obligation on aged care facilities to arrange for a mobile polling booth for its residents, although that is an option.  Residents can of course cast their ballot via a postal vote.  It is an offence for the proprietor or employee of an aged care facility to influence the vote of a resident (section 325A of the Electoral Act 2002 (Cth)). 

If an older person has lost capacity, provision exists to remove them from the electoral roll using a prescribed form. 

Everyone has a right to participate in representative democracy.  To that end:

• assist your physically incapacitated, visually impaired or illiterate family members or friends to vote;
• make sure your family members or friends complete a postal vote; or
• apply to remove a family member who is incapable of understanding the nature and significance of enrolment and voting, to minimise the risk of undue political influence being exerted on them and to help them avoid a penalty for failing to vote.

* https://www.abc.net.au/news/2019-05-08/federal-election-2019-aged-care-home-voting-complaint-liberal/11091310

How we can help

If you have any questions regarding this article please do not hesitate to contact us.

Following extensive consultation across Australia, the Federal Government has announced the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. The Hon Ronald Sackville AO QC has been appointed as the Chair of the Royal Commission, along with the appointment of five other Royal Commissioners.

Broadly speaking, the Royal Commission has been authorised to inquire into what should be done to:

• prevent, and better protect, people with disability from experiencing violence, abuse, neglect and exploitation;
• achieve best practice in reporting and investigating of, and responding to violence, abuse, neglect and exploitation; and
• promote a more inclusive society that supports the independence of people with disability and their right to live free from violence, abuse, neglect and exploitation.

The broad mandate will permit investigation of financial, emotional, psychological abuse as well as sexual and physical acts of violence. Implicit within framing of the inquiry through a human rights lens, the Royal Commission will also consider discrimination against people with disability, and their equality before the law, particularly as victims of violence and abuse, and their experiences with the criminal justice system.

A standalone website will be established which will allow the public to engage with the Royal Commission, and provide information about how submission can be made and when and where hearings will be held. Interested parties can subscribe to updates in relation to the Royal Commission here.

Our team will provide updates as soon as they become available. For more information, please do not hesitate to contact us.

Employers should seriously consider appointing an independent investigator when they receive allegations of sexual harassment following the recent case of Kerkofs v Abdallah (Human Rights) [2019] VCAT 259. In that case, the Victorian Civil and Administrative Tribunal (VCAT) found an employer vicariously liable for sexual harassment by one employee towards another. VCAT ordered that the accused perpetrator and the employer, Parker Manufactured Products (Company), were jointly liable for the sexual harassment as the Company failed to carry out a ‘proper and independent investigation’ into the complaint.  

Background

The complainant was a 20-year-old employee who made a complaint of sexual harassment following several incidents with a male colleague. The complaints included that he:

• touched her inappropriately at work by massaging her shoulders and neck uninvited;
• called her names at work such as sexy, baby and honey;
• showed her a fake Facebook page which he used to communicate with young girls;
• made inappropriate comments about her body such as commenting on her bottom when she bent over; and
• drove her home when she was unwell after work and touched her inappropriately in the car. He then helped her into her home, got into bed with her and tried to take off her bra and touch her breasts, saying he was “horny”’.

When the employee made the complaint to her employer, they failed to hire an independent investigator. Rather, a director of the company undertook a three day ‘cross-examination’ of the complaint and did his own ‘googling on the internet about sexual assault’. The directors then dismissed the claim and alleged that the complainant had made up the claim for money or to get time off work.

The complainant then left the company.

Judgment

Vice President Judge Harbison found that the allegations of sexual harassment and assault were substantiated. The accused employee was a favoured employee in a position of authority over the complainant who was young and starting employment in a new country. The conduct constituted unwelcome conduct of a sexual nature within the meaning of section 92 of the Equal Opportunity Act 2010 (Vic) (the Act).

Pursuant to section 109 of the Act, an employer will be found vicariously liable if an employee is found to have contravened section 92. However, there is an exception under section 110 if the employer took reasonable precautions to prevent the employee from contravening the Act. In this case, the judgment found that the company took no such reasonable precautions and as such, was vicariously liable.

Quantum of damages

Judge Harbison accepted that the complainant had suffered significant anxiety and distress and that the harassment had caused a long-term condition of hyper-vigilance and lack of concentration. Consequently, the complainant was awarded $130,000 for general damages (noting that a WorkCover claim was also accepted).

Judge Harbison was critical of the company’s failure to undertake an independent investigation. It held that the ‘cross-examination’ for three days by a director was inappropriate as it was gruelling, asked questions about her personal life (such as her relationships and health) and drew unsubstantiated conclusions. Judge Harbison expressed concern that the director chose to rely on his own unreliable ‘googling’ as opposed to seeking expert advice. The company also breached confidentiality by placing the employee’s claims on the company intranet to be viewed by any staff member.

As a result, Judge Harbison ordered the employer to pay an additional $20,000 in aggravated damages.

Lessons for employers

The judgment reflects a growing intolerance for sexual harassment in the workplace, and an expectation that complaints of sexual harassment will be promptly and independently investigated. Previously, courts generally awarded between $12,000 and $20,000 for sexual harassment claims. However, more recent judgments have included higher damages.

This presents an important lesson for employers that failure to prevent and respond to sexual harassment claims will be scrutinised. Having a policy on harassment is not enough. In this case, the employer’s policy on harassment was given little weight as it was not put into practice and a culture of accepting inappropriate behaviour including at the leadership level persisted.

The case also has interesting implications for schools and universities in relation to child abuse claims or abuse alleged by students. Changes in child safety legislation are reversing the onus so that institutions must demonstrate that they took steps to prevent abuse. Otherwise, institutions risk being held liable for abuse perpetrated by their employees, volunteers or agents.

Next steps

As stated by Judge Harbison, courts are focusing on the need “to eliminate sexual harassment to the greatest extent possible in the workplace”.

It is important that employers and schools are prepared for this and we recommend taking the next steps below.

1. Start at the top – this recent case demonstrates the importance of strong leadership on sexual harassment at an executive and board level. It is important your board receives training on its obligations.
2. Put your policy in practice – as outlined above, a policy is not enough. Policies need to be reflected in the culture of the organisation and must include a fair investigation process and confidentiality requirements.
3. Seek advice and support – employers who attempt to manage a complaint entirely internally can find themselves in trouble if the investigation is not independent or they rely on inaccurate legal information. 

How we can help

Moores has extensive experience in supporting employers and service providers to conduct investigations and effectively respond to complaints. If you would like assistance, please do not hesitate to contact us.

Recent amendments to the Fair Work Act 2009 (Act) have enhanced the Fair Work Commission’s (Commission) discretion to approve enterprise agreement applications despite minor procedural or technical errors. Yet despite this new discretion, a recent Full Bench has rejected an application on the basis of a technical error relating to the notice of employee representational rights, thereby casting doubt on whether the Commission will actually use it.

In December 2018, the Commission was provided with the discretion to approve an application for an enterprise agreement under section 185 of the Act despite a minor procedural or technical error, where the error has caused no disadvantage to the employees.

The Commission used the following examples to illustrate what might be considered by the Commission to be a minor procedural or technical error for the purpose of section 188(2) of the Act:

• where employees were provided with six days’ notice of an upcoming vote for an enterprise agreement rather than seven days’ notice in accordance with the Act; and
• where an employer alters the wording of the notice of employee representational rights from “speak to your employer” in the final paragraph to “speak to your manager Brad or Damien”.

However in Spotless Facility Services Pty Ltd [2019] FWC 1331, the Commission rejected an application for approval of an enterprise agreement because of a failure by the organisation to include in its notice of representational rights all employees who were to be captured by the coverage of the enterprise agreement. Although the Commission acknowledged that Spotless Facility Services Pty Ltd had not intentionally avoided its obligations under the Act, the difference between the coverage as defined in the notice of employee representational rights and the coverage of the enterprise agreement could not be classified as a minor procedural or technical error.

This case acts as a reminder that although the Act provides the Commission with the power to approve enterprise agreement applications with minor technical errors, it will not do so hastily. It remains important that orgainsation are aware of and comply with their obligations under the Act.

How we can help

If you require support or assistance with negotiating a new enterprise agreement or making an application with the Fair Work Commission to have your enterprise agreement approved, please do not hesitate to contact us .