Workplace Solutions

In a recent decision the Fair Work Commission (FWC) granted permission for a large-scale national employer to be legally represented in proceedings even though the applicant was unable to afford legal representation.

Restrictions on Legal Representation

Under the Fair Work Act a person may not be represented by a lawyer in a matter before the FWC except with the permission of the FWC and which can only be granted if:

• it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;

• it would be unfair not to allow the person to be represented because the person is unable to represent themselves effectively; or

• it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The Facts

In Slemint v ALH Group Pty Ltd:

• the applicant commenced unfair dismissal proceedings in the FWC
• the employer was a large-scale operator of over 300 licenced venues and hotels across Australia employing over 5,300 workers
• the employer alleged the applicant was engaged as an independent contractor (and therefore unable to bring an unfair dismissal claim)
• the matter was set down for a jurisdictional hearing on the issue and the employer sought permission to be represented at the hearing by a lawyer
• the employer submitted that:
• despite its size it had a ‘lean’ HR team consisting of 6 individuals including a HR Business Partner but that it did not have any in-house specialists who had the skills or experience to conduct proceedings before the FWC
• in previous proceedings before the FWC it had been granted permission to be represented meaning the HR Business Partner had no prior experience conducting such proceedings himself
• if permission was not granted the HR Business Partner would be unable to dedicate the time and resources to conduct the proceedings to the necessary standard (given his primary responsibility for the company’s 5,300 other workers)
• the applicant submitted it would be unfair to allow the employer to be represented by a lawyer when he could not afford paid legal representation

The Decision

The FWC:

• had to decide whether a lawyer would be able to deal with the matter more efficiently given the additional complexity associated with the jurisdictional objection
• had to consider whether the circumstances and those of its HR Business Partner would prevent it from representing itself ‘effectively’ and not merely ‘satisfactorily’ or ‘adequately’ during the proceeding
• stated it was irrelevant that the employer had always previously been legally represented in FWC proceedings
• held the issues raised by the jurisdictional objection made the matter more complex, and the HR Business Partner would not be able to represent the employer as efficiently as a lawyer
• held that where one of the conditions in the Fair Work Act had been met, it was not necessary to consider the other conditions
• held the applicant’s concerns about fairness could be managed by the FWC providing him with all necessary administrative assistance during the proceeding

Lessons

The decision illustrates: [...]  READ MORE →

Company directors have financial record keeping duties under the Corporations Act and substantial penalties can apply for a failure to maintain adequate financial records.

What are the duties?

All companies are required to keep and maintain accurate financial records which:

• correctly record and explain the company’s transactions and financial position
• would enable true and fair financial statements to be prepared

What are financial records?

In essence, financial records:

• are broadly defined in the Corporations Act and include invoices, receipts, bills of exchange (eg. cheques), promissory notes, documents for prime entry (eg. cash books and journals) and working papers

• must be retained by the company for at least 7 years after completion of the transactions to which they relate

How are financial records to be kept?

The financial records may:

• be stored in electronic form provided they can be converted into hard copy within a reasonable period of time
• be kept in any language, however, an English language translation must be provided within a reasonable period of time if requested by a person entitled to inspect the records
• be kept overseas provided sufficient written information is retained within Australia which would enable true and fair financial statements to be prepared

What rights does a director have to inspect financial records?

In summary:

• a director of a company has a right to inspect the financial records of the company

• this right is based on the director’s duty to manage the affairs of the company with due care, skill and diligence

• a company must make its financial records available at all reasonable times for inspection by a director

• if a company refuses to make its financial records available for inspection, a director may apply to the court for an order requiring the company to make its records available to the director or a person authorised by the director to inspect the records on the director’s behalf

• under the Corporations Act, a former director may also inspect the books and financial records of a company up to 7 years after they ceased to be a director of the company provided the inspection is related to current, pending or anticipated legal proceedings

• a director should negotiate access rights (usually under a Deed of Access, Insurance and Indemnity) with the company to provide a broader right of access than available under the Corporations Act

What are the penalties?

A company director who fails to take all reasonable steps to comply with their financial record keeping obligations will have breached a civil penalty provision of the Corporations Act and the court, upon application by ASIC, may: [...]  READ MORE →

A company has successfully applied to the Fair Work Commission (FWC) to reduce its statutory obligation to pay redundancy pay after helping an employee secure alternative employment with another company.

Statutory Redundancy Entitlement

The National Employment Standards (NES) usually entitle national system employees to receive redundancy pay if their employment ends due to redundancy.

Exceptions

However, various exceptions can apply including where an employer obtains other acceptable employment for a redundant employee. [...]  READ MORE →

In response to growing social pressures driven by the #MeToo movement, the Australian Human Rights Commission has launched a year long  ‘’in-depth examination’’ of sexual harassment in the workplace.  The inquiry aims to determine the main drivers of sexual harassment in the workplace, and the use of technology and social media and its legal framework.

Sex discrimination commissioner Kate Jenkins stated that the inquiry was a “huge step in the right direction” as “we need to continue to create a society where this kind of conduct is unthinkable and where sexual harassment at work is not something people simply have to put up with”. More importantly, the inquiry will provide employees, employers and all members of the public with an opportunity to participate in developing a solution to ensure Australian workplaces are safe and respectable for everyone”. [...]  READ MORE →