EMPLOYSURE LAW

CPD SEMINAR WEDNESDAY 26TH JUNE 2024

LEVEL 6 180 THOMAS  STREET,

SYDNEY, NSW, 2000

1. Employsure Law is a specialist Fair Work and Employment Law practice involved in various fields of workplace legal endeavour including unfair dismissals, general protections and adverse actions, Award and Enterprise Agreement underpayment claims and increasingly sexual harassment and discrimination claims.

2. The purpose of this paper is not to examine closely the Evidence Act, basically a codification of the common law rules which have developed over centuries, but to consider some of the practical aspects needed by employment lawyers in the conduct of the preparation, running and settlement of cases.

3. Traditionally the best practitioners adept in the rules of evidence has been lawyers working in the criminal courts. Employment lawyers are not so good . There is good reason why the former are so skilled in laws relating to evidence because the accused could be subject imprisonment or large monetary penalties or in an earlier atavistic age capital punishment. The reason why employment lawyers have traditionally not been so skilled is because over the past century or so in Australia the statutes dealing with industrial matters generally have had a provision such as section 591 of the Fair Work Act which reads;

“ s.591 The FWC is not bound by the rules of evidence and procedure in relation to a matter before it ( whether or not the FWC holds a hearing in relation to a matter).”

4. Under the New South Wales Industrial Relations Act

Rules of evidence and legal formality

163 RULES OF EVIDENCE AND LEGAL FORMALITY

(1) The Commission–

(a) is not bound to act in a formal manner, and

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

5. Similar provisions exist in other state industrial jurisdictions when such industrial commissions sit as arbitral bodies, that is when they are creating new employment rights. Although not being bound by the rules of evidence does not mean such rules are flaunted or ignored. The rules of evidence are generally applied as a matter of fairness in order to achieve ‘good conscience and equity’ between the parties.

6. However, when such bodies are exercising a judicial function, that is enforcing rights between the parties or imposing penalties on a defendant, the rules of evidence need to be more strictly applied. When one considers the potentially large monetary sums and penalties which could be ordered for breaches of the Fair Work Act or industrial instruments a stricter application of the rules of evidence is required.

7. Some years ago the former but soon to be revived Industrial Court of New South Wales in Kirk v Industrial Court of New South Wales [2010] 239 CLR 531 was found by the High Court that when the Industrial Court convicted an employer for a breach of s.15 of the Occupational Health and Safety Act it had failed to apply the rules of evidence leading to jurisdictional error and its decision set aside.

8. Having so started on the topic what are the practical concerns of an employment lawyer in preparation for a hearing of the type of matters mentioned above. Firstly, one must determine whether the claim or a defence to the claim is not only arguable but also able to be proved. The arguable part relates to the law which applies to the pleaded action and the provable part is whether there is admissible evidence to support the pleadings. To commence proceedings or to make assertions of fact for which there is no reasonable basis or simply cannot be proved may be a form of professional misconduct and may be seen to be a vexatious institution of proceedings or an  unreasonable act which could attract a costs sanction under s.570 of the Fair Work Act.

9. In Clyne v NSW Bar Association [1960] 104 CLR 186 a barrister was struck off the roll for instituting a baseless prosecution and for making extravagant allegations in his opening address for which there was no supporting evidence.

10. These matters are established by a good knowledge of the relevant law and taking a detailed proof of evidence from the client.

11. In doing those two things one is able to draft the pleadings initiating the action and the pleadings in defending it.

12. In taking the proof of evidence it is both efficient and sound practice to ask questions of the client and/or a witness so that the proof of evidence can easily be made into an admissible  statement of evidence or affidavit to be used in proceedings.

13. In preparing such a statement  one should always remember that at the outset the evidence needs to be relevant to an issue to be determined and that the witness must be able to give direct evidence of the fact to be proved. Direct evidence firstly can be what the witness knows and can assert from his or her own direct experience. Basically, such experience comes from the five human senses of sight, sound, smell, touch or taste. Primarily evidence is what one saw or what one heard. Unless one can produce the  document it is difficult to prove ( but not impossible ) what one read or what the document contained, as one’s memory of what was in the document may not be the best evidence although in certain circumstances it may be. For example the document has been lost or destroyed secondary evidence of its contents may be admissible.

14. In preparing a statement from a witness all relevant documents which that witness may have should be gathered and if necessary attached to the statement. Such documents might be a letter of offer, a written contract of employment, written variations to the contract, pay and/or or tax records, statutory leave records, the applicable industrial award or enterprise agreement, job or position descriptions, general policies and procedures of the workplace, relevant emails to and from managers and  those whom they manage, internal disciplinary reports, notices to show cause, letters of termination.

15. In some underpayment of award provision cases one firstly needs to be satisfied as to the correct award coverage by considering the nature of the employer’s business or the calling of the employee compared to the scope of the award coverage. Some areas of employment could potentially be covered   by more than one award. One needs to apply the principles of award interpretation of the coverage of the award to industry in which the work is performed or the nature of the actual work being performed. The same task can occur if there is doubt as to the correct award classification which best fits the work performed by employee. A good way to find what is the correct award  coverage or classification is to pose the question what is the major and substantial purpose of the employment. (See Justice Sheldon’s comments in Ware v O’Donnell Griffin Pty Ltd (1971) 71 AR 18.) An old case in the High Court, R v Central Reference Board and others ex parte Thiess (Repairs) Pty Ltd [1948] 77 CLR  123 considered the question in which industry a particular employment fell.

16. In the running of a case the solicitor should take detailed notes of the evidence given by each side’s witnesses. I have been in a case where the parties disagreed with aspects of a witness’ evidence  as recorded in the transcript. Evidence had to be called from each side’s solicitor as to their notes and recall of the what the witness stated. The transcript reporter’s notes or the tape or digital recording of the evidence also might be necessary to examine.

17. Another important matter of evidence are the discussions held by the parties’ lawyers either on the question of the agreed procedure of running a case or the negotiations leading to its resolution. In this regard solicitors need to keep accurate notes of what is stated each to the other. It is also prudent to follow up a telephone conversation with one’s opponent with an email confirming what has been stated or agreed. Should an email stating such things not be responded to there is an inference that what is stated in the email to which no response has been given is correct.

18. Many years ago I was also in a case where a dispute broke out as to what documents had been produced on a notice to produce. When producing documents it is more than prudent to make a copy and/or keep a list of the documents produced which may need subsequently to be verified on oath. In that case the solicitors had to give evidence as to whether a notice to renew an insurance policy was in the discovered documents.

19. In negotiations to settle a case detailed notes of the offers and counter-offers are vital and any terms of the offer other than just the monetary amounts. An example which comes up from time-to-time in employment cases concerning settlement is the tax treatment of the settlement monies. For example, if a case settles for a gross sum it should be made clear that the appropriate tax will be deducted from the sum before it is given to the worker.

20. I have been in another case where there was a dispute as to the terms of the settlement reached by the solicitors. An unedifying process then had to take place of both solicitors being put in the witness box to be examined about their notes and recall of the negotiations.

21. Cases can sometimes settle at mediation or hearing and be subject to a Deed of Release to be prepared by one party. Upon receipt of the Deed the other party might object to terms of the Deed containing matters which were not discussed or agreed at the time the monetary amount was agreed. Notwithstanding the dispute about the terms of the Deed the question is often asked has the case settled and can the settlement be specifically performed or enforced? These considerations can be looked at in the case of Masters v Cameron [1954] 91 CLR 353. To avoid such problems it is best to spell out in great detail the terms of the settlement and best to have a draft Deed of Release available to read or to show to the other party to avoid such disputes of an evidentiary nature.

22. These are just a couple of practical examples of the importance of evidence and proof of matters in employment law cases.

Jeffrey Phillips, SC

State Chambers,

Sydney

Here is a paper I delivered at the Law Society of New South Wales Seminar on the 18th February 2015.

ADVERSE ACTION—A RISING REMEDY UNDER THE FAIR WORK ACT

This is a paper on Risk Management for Lawyers qua Employers I gave on the 30^th March 2012, at the Thomson Reuters’ Sydney C.L.E. Conference at the Intercontinental Hotel, Sydney.

——————————————————————-

LEGAL PROFESSION REGULATION 2005

REG 176

Regulation 176 of the Legal Profession Regulation 2005 deals with the necessary risk management practices  that barristers and solicitors  ,as employers, need to develop in relation to general employment law matters dealing with discrimination, harassment ,work safety and Fair Work Act issues.These are matters which all employers need to understand and follow. Even though this paper is under the framework of continuing legal education the object of the regulation  is not that we may advise others about these principles but that we follow them ourselves. The primary purpose of the regulation is to manage our practices consistent with these principles,( reg 176(1) (e)). This is so, whether our staff are employed directly by a legal practitioner trading as a sole trader ,partnership , trust, service company or by the entity that manages barristers’ chambers.

Last year I addressed the inaugural, now to be annual, New South Wales Barristers’Clerks Association conference and more recently I addressed a large group of barristers in the Bar Association common room  about reg 176 issues with a focus on the new  Work, Health and Safety Act 2011. It came into force  in this state on the 1^st January 2012. That Act replaced the Occupational,Health and Safety Act 2000 (OHS Act)    The  operation of proceedings under the OHS Act  came under close scrutiny by High Court in Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531  in which the majority,including  a withering single judgment of Justice Heydon , identified  some strange and unfair prosecution and Industrial Court  procedural practices. The  OHS Act also possessed a reverse  onus defence   which required the defence to  prove that it was not ‘reasonably practicable’  to comply with its stringent  statutory obligations .It had become a notorious fact that the OHS Act’s provisions and their manner of adjudication led to very few acquittals.  The OHS Act, set mandatory requirements on employers, with a significant  penalty regime of $550,000 maximum for a first offence of a corporation and $825,000 maximum for a second offence with lesser fines of one tenth that maximum for convicted natural persons.The IRC  had trouble finding a reasonable doubt and did impose some very heavy fines although no one was ever imprisoned even though such power existed for previous offenders(see OHS Act s12(c)).

The new  Work, Health and Safety Act  has dealt with a lot of the concerns of business by the removal of  the reverse onus defence. However it has  introduced   a more severe penalty regime.   Now the Prosecutor will be required to prove as part of the charge that it was reasonably practicable for the defendant to comply with the statute’s duties. Presumably this additional requirement of proof  upon the prosecution may lead to less proceedings  being instituted and perhaps more acquittals. Yet for those cases which lead to a conviction under the new categories of offences the penalties have been dramatically increased. Those categories are as follows,

Category 1 – Reserved for reckless conduct.

Maximum Penalty:

a)      In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) – $300,000 or 5 years imprisonment or both, or

b)      In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – $600,000 or 5 years imprisonment or both, or

c)      In the case of an offence committed by a body corporate – $3,000,000.

Category 2 – Failure to comply with health and safety duty

Maximum Penalty:

a)      In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) – $150,000, or

b)      In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – $300,000, or

c)      In the case of an offence committed by a body corporate – $1,500,000.

Category 3 – Failure to comply with health and safety duty

Maximum Penalty:

a)      In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) – $50,000, or

b)      In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking – $100,000, or

c)      In the case of an offence committed by a body corporate – $500,000.

The OHS Act and the new Act impose obligations and responsibilities on employers and those who manage workplaces. The general duty is to be aware of the risks in the workplace, plan how to avoid, eliminate or reduce them and in fact do so. The duty  at your workplace  is owed to everyone who has business or good reason to be present  in  your offices or chambers, i.e. you, your  staff, the barristers and their staff, solicitors, clients, contractors and other visitors. One very important change is that the proceedings  for the more serious category 1 and 2 offences have been removed from the Industrial Court  and will be heard in the District Court. One can also envisage that there will be some natural persons imprisoned for serious offences simply because District Court judges are more used to imposing such sentences than their IRC predecessors .One important addition  to the legislation is that officers of corporations which can include  practice managers, directors ,head of chambers and the barristers’ floor committee members are to exercise  the positive requirement of “due diligence”( see s 27 ) .The concept of “Due Diligence” has been  pointed out by Australia’s foremost expert in safety law, Michael Tooma ,a partner with Norton Rose, to be;

“ Effective leadership and due diligence therefore requires officers to gain an understanding of the of the nature of the operations of their business(es) and to develop an understanding of the risks associated with those operations.”( 2011) 2 Workplace Review 155 at 157.  

Accidents do happen and some of which  need to be notified .

S35 of the new Act sets out  what is a “notifiable incident”?

In this Act, notifiable incident means:

a)      The death of a person, or

b)      A serious injury or illness of a person, or

c)      A dangerous incident

S36 of the Act identifies  what is a “serious injury or illness”?

In this Part, serious injury or illness of a person means an injury or illness requiring the person to have:

a)      Immediate treatment as an in-patient in a hospital, or

b)      Immediate treatment for:

i)                    The amputation of any part of his or her body, or

ii)                  A serious head injury, or

iii)                A serious eye injury, or

iv)                A serious burn, or

v)                  The separation of his or her skin from an underlying tissue ((such as degloving or scalping), or

vi)                A spinal injury, or

vii)              The loss of a bodily function, or

viii)            Serious lacerations, or

c)      Medical treatment within 48 hours of exposure to a substance,

And includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.

Failure to notify is subject to a fine.

If a serious accident does take place, so as not to have catastrophe piled on disaster you need to have developed a safety system and be able to prove it on the papers.

Once you have notified the WorkCover Authority, an inspector will turn up. Once having examined the factual circumstances of the incident that led to him or her being there and after the  interviewing witnesses, you will then be subject to an inquiry dealing with:

i)                    The existence of a safety committee

ii)                  Minutes of the safety committee

iii)                Safety policies in place

iv)                Risk assessment of particular tasks being performed

v)                  Minutes of meetings with staff regarding safety issues

vi)                Induction of staff forms

vii)              Authorisations or permits for work to be performed

All this material is useful and in certain circumstances vital in order to show that you had done everything reasonably practicable or exercised due diligence  to avoid the happening of the incident/accident or its happening was due to causes beyond your control.

Solicitors’ offices and barristers’ chambers are not as inherently dangerous as other workplaces , such as building sites, factories, coal mines etc. However, it is not beyond human experience  to foresee that accidents may happen or that serious accidents are so rare  that one has no need to guard against them.
Just from my own experience , without being exhaustive the following activities or hazards  in such offices or chambers  could cause a notification to be lodged with  WorkCover  which in turn will cause one of its inspector to turn up in your reception area  with his or her notebook  and  camera.

For  these potential hazards and problems  you need to have  had risk assessment  done and have had developed a safe work method and/or policy.

Without any order of seriousness I offer the following as examples,

• Clients or members of the public who are agitated by legal proceedings, see last year’s Arthur Phillip Chambers Parramatta  siege
• Electrical hazards
• Trips and falls in common areas
• Building work, eg. Renovations to individual rooms or common areas ,within and outside normal hours
• Moving furniture and fittings.
• Checking that tradesmen have proper qualifications and permits
• Approving plans of work to be performed by tradesmen
• Trolleys, and the pushing of a few trolleys together e.g. octopus straps a real problem
• Bullying or harassing behaviour and generally looking after the mental health of staff including other solicitors and  barristers
• Induction ,care and  control of new staff and in particular junior legal and administrative staff .
• Social functions, particularly the one’s held at chambers eg. too much alcohol
• Dangers or risks of working late and after hours
• Performing tasks outside one’s experience or skill
• The allocation of work for which young lawyers are not ready or responsible

These are just a few examples, no doubt many here could add to that list.Some of these examples,such as the careful control of social functions, could also present as difficulties under other legislation dealing with discrimination and harassment.

What can be immediately done ?

In order to protect oneself and your practices  from the happening of an incident and consequential prosecution  the following ought occur as a minimum.

(1)A risk assessment of your firm or barristers’ chambers in general. Perhaps  expert consultants be engaged by  your firm or chambers. Perhaps both  the  Law Society and Bar  Association  should at the very least engage such experts to formulate a generic study of the risks of legal practice and circulate those  findings  with their members? A code of safe work practice might be formulated for the legal profession

(2)Safety policies be developed , put in writing and circulated and regularly reviewed.

(3)An office or chambers  safety committee be formed which meets at least four times  a year and keeps minutes of the meetings.It could meet at the same time as the  partnership or floor committee perhaps as a regular agenda item.

(4) A designated person be named to be the Safety representative in same way  fire wardens are appointed.

The regulation deals with a range of general employment matters I have focussed on the new Work,Health and Safety Act because its topical and may have serious personal, reputational and financial consequences. Compliance with regulation 176 is done in continuing legal education by dealing with a component of the general employment related matters found in r176 (1) (a) to (d).I have dealt with (c) that is occupational health and safety law.

In parting I wish just to say a few words about the Fair Work Act as it might touch upon your employees . Notwithstanding the demise of  the  politically flawed WorkChoices legislation aspects of it have continued under the Fair Work Act . That  Act in New South Wales applies to all private employers ,including corporations,partnerships  and natural persons.The Act has minimum National Employment Standards (NES)  of pay and conditions which must be paid by to all employees.In effect all employees who might have wages around the level of the NES are regulated by the Act. Some are regulated by what are called Modern Awards . Leaving the some chief executive officers, professional staff  and barristers’ clerks to one side all other employees  in the legal industry  are regulated either by the  Clerks-Private Sector Award 2010 or the Legal Services Award 2010. Those awards provide minimum pay and conditions. Not to pay staff in accordance with them not only can lead to a claim for underpayment but also a claim for penalties for breach of the modern award and /or the Act. The well resourced Fair Work Ombudsman ( FWO) is particularly active and vigilant in maintaining award conditions and obtaining  back money and significant penalties in the federal courts. Not only can penalties be imposed on the employer but also under section 550 of the Fair Work Act those involved directly or indirectly by act or omission in the contravention of a civil remedy provision.That is if the employer of an underpaid receptionist  is the chamber’s corporate vehicle each member of the chambers could be caught by section 550.

Like at the Clerks’ conference and the Bar association lecture  I hope I haven’t ruined your day but these are important, serious matters to consider and to be on guard against.One just can’t leave these things to the office manger ,the managing partner, the clerk or head of chambers to do. Everyone has a positive duty to inform themselves if minimum safety and employment standards are being met.This is not just to avoid the unwanted attention of a WorkCover or FWO inspector having cause to pry into our affairs but also we must be seen to be fully compliant with our obligations as employers and lawyers. The cub reporters from the Sydney Morning Herald and indeed the Daily Telegraph demand it of us.