News & Events

  • Public Servants: Fair Work Commission gives government a helping hand while shackling its staff

    Fair Work Commission gives government a helping hand while shackling its staff

    Public servants in dispute with their employer are unfairly outgunned.

     “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness.” So wrote Charles Dickens in 1859 in his novel A Tale of Two Cities.These words might equally have been uttered by a perplexed employment lawyer today, with the Fair Work Commission perpetuating an inconsistent approach to legal representation in disputes. The upshot for public servants is that the government gains an unfair advantage, while other participants before the commission are forced to make do without legal help.

    I first wrote about this issue earlier this year, in a column titled “Government hypocrisy on display again in the Fair Work Commission“. In response, Public Service Commissioner John Lloyd emailed me to say my article was “potentially misleading” and that the commission’s decision I had discussed was “correct”. Lloyd invited me to approach his commission “before publishing future articles about matters within the remit of this agency”. Respectfully, I have no intention of doing so – although I [and the Informant‘s editor] invite him to publish a response if he wishes.

    To recap: the Fair Work Act, which governs almost all employment arrangements in this country, prevents lawyers from appearing for parties in disputes unless they receive permission from the Fair Work Commission. The policy intent was, according to the act’s explanatory memorandum, because the commission is “intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner”.

    This rationale has strength and, while experienced lawyers are more often than not invaluable in resolving workplace disputes efficiently, I can nonetheless accept that, in certain cases, there can be merit to keeping lawyers at a distance.

    This year, the commission issued several decisions concerning when permission will be granted and the scope of exceptions to the act’s limitation. The jurisprudence has diverged considerably, to the benefit of the federal government and to the disadvantage of everyone else.

    Until recently, it was common practice for AGS lawyers to seek permission to appear. However, earlier this year, lawyers at the Attorney-General’s Department offshoot took the contrary view that, because they are government employees, they satisfy the in-house exception in the Fair Work Act. This interpretation of the AGS’s position was upheld in Gibbens v Commonwealth of Australia.

    Whatever one’s legal view of the decision, there can be little denying that it has considerably tilted the playing field in the government’s favour. Despite:

    1. the AGS acting in effect as a private law firm within government,
    2. the AGS competing with private firms to provide legal services to government, and
    3. almost all government departments having their own in-house lawyers already,

    the Fair Work Commission has permitted the AGS to bypass the considered policy judgment of the act. Given the manifold benefits that the public service already enjoys in disputes against its employees, the desirability of this development is dubious.

    While Gibbens and Woolworths involve distinct legal points, they are logically inconsistent. The former allowed more government lawyers to appear before the commission, while the latter and its progeny make it far harder for employers to be represented or otherwise receive legal aid. Much has been written about the potentially negative effects of Woolworths, while far less has been said about Gibbens. But the adverse consequences for public servants of allowing the government unfettered access to experienced legal representation in employment disputes are considerable, and deserve attention – possibility in the form of legislative clarification.

    Gibbens also presents, at least in theory, a considerable challenge for private law firms in obtaining permission to represent government clients before the commission. Why would the commission ever grant a private firm permission to represent a government agency when there are plenty of individuals experienced in workplace-relations advocacy among the hundreds of AGS lawyers who can appear as of right? This is especially the case one criterion for granting permission is that “it would be unfair not to allow the person [here, the government] to be represented because the person is unable to represent … itself effectively”.

    The issues raised above may seem trivial to some. But the level of representation involved in employment disputes, when emotions are high and jobs are on the line, requires a delicate policy decision. Until change eventuates, public servants can only hope they don’t find themselves legally outgunned before the commission. Surely that is the real access-to-justice concern here.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleague Kieran Pender for his help in preparing this article. 

    First published in The Canberra Times.

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  • A poorly thought-out federal ICAC could be a band-aid on a bullet wound

    A poorly thought-out federal ICAC could be a band-aid on a bullet wound

    Momentum is gathering for the establishment of a federal anti-corruption commission. What structure and powers would it need to be effective? Public sector law expert John Wilson says the wrong kind of federal ICAC could be counterproductive.

    Amid numerous recent findings of corruption and misconduct by public officials, the public service and federal politicians are under increasing pressure to maintain the confidence of the public they collectively serve. It is not surprising, then, that the call for a federal anti-corruption commission (ICAC) is becoming louder and louder. The tone of an event organised by The Australia Institute earlier this year was telling – the question was no longer whether, but how.

    That does not mean there is consensus. Professor Adam Graycar told a parliamentary committee last year that the proponents of a federal ICAC were not even sure of the problems they were trying to solve, let alone how to solve them. What, then, is necessary to ensure such an institution can effectively curb corruption in the political and bureaucratic spheres?

    Three main areas of concern have been identified, which will be considered here in turn:

    1. The incompatibility of a federal ICAC with existing regulatory bodies;
    2. the likely misuse of a misconduct register to discriminate against prospective employees; and
    3. fairness and justice considerations.

    Scope of jurisdiction

    Firstly, the boundaries of the federal ICAC’s jurisdiction must be clear to ensure the definition of corruption is not brought into question. In the 2015 case of ICAC v Cunneen, NSW Deputy Senior Crown Prosecutor Margaret Cunneen was accused of perverting the course of justice. The High Court ruled that her actions did not constitute “corrupt conduct”, nor did it adversely affect the police investigators’ ability to exercise their official functions, as those terms are defined in the NSW legislation. The bench concluded that applying this narrow interpretation would allow the ICAC Act to operate as it was intended to, and avoid overtly criminal acts falling within the scope of the NSW ICAC’s investigative powers.

    However, a narrow interpretation may prove more problematic in a federal setting, where crimes such as tax evasion may not be construed as an attempt to pervert the course of justice, and would therefore not fall within reach of the federal ICAC. Establishing such an institution without causing conflict with already-existing regulatory bodies would require “a genius in legislative artistry.”

    A misconduct register

    Secondly, it has been proposed that the federal ICAC would be supplemented by a misconduct register, modelled on the one being established in South Australia. In that state, the register forms a repository for the findings of the SA ICAC, with a database on public officers who have been dismissed from public employment. The repository will also include allegations that never advanced to investigation, to ensure that records are created on those who resign before investigations commence.

    But there are concerns about misuse of such a register. Misconduct findings are administrative, not judicial decisions, and for a range of reasons many never proceed beyond the initial decision. The 2016/17 APSC Annual Report indicated that only 93 of the 223 cases brought to the Merit Protection Commissioner as a second tier of review ended up being reconsidered. It may be, therefore, that these findings are ultimately given unjustifiable weight in future employment decisions as a result of the register.

    Former Senator Zhenya Wang, prior Chair of the Select Committee into the Establishment of a National Integrity Commission, has voiced similar concerns. “A dedicated [federal ICAC] would threaten the legal rights of individuals, as well as potentially unfairly tarnish the reputation of individuals investigated, even when they are later found not to have engaged in corrupt conduct,” said Wang. Elevating the weight of an internal administrative finding to a permanent stain on someone’s record has troubling implications.

    Fairness

    Finally, the Rule of Law Institute of Australia has argued that introducing a federal ICAC may create a new system of justice without the legal safeguards entrenched in the existing one. The risk has been articulated as that of a “parallel system of justice to the traditional criminal court system initially with all the credibility of a court, but without any of the protections that have been built up around the court system over many generations.” Principles such as the presumption of innocence, the standard of proof beyond reasonable doubt and the privilege against self-incrimination may not be embedded in this new system.

    Yet none of these flaws are fatal. With proper design and a nuanced appreciation of need to balance institutional concerns with personal liberty issues, a federal ICAC can effectively address corruption and misfeasance at the Commonwealth level without unduly imposing on the rights of affected individuals. That is not to understate the challenging task facing the creators of such a body; rather, it is to accept that these concerns are real and deserve consideration, but do not represent overwhelming obstacles.

    A band-aid?

    It may be, as detractors are quick to point out, that the risk of corruption is already lowered at the federal level. There are more pre-existing mechanisms for transparency and accountability, and the spheres administered by federal public servants are potentially less susceptible to the development-related corruption exposed in NSW.

    But there are many benefits to restoring public confidence in the federal bureaucracy through a nationwide anti-corruption commission. Like the common response to climate-change deniers (what is the detriment of a cleaner planet in any event?), if politics and administration at a federal-level are indeed free from corruption, then what harm would the added-level of accountability brought by a federal ICAC do?

    Yet the creation of such an institution is attended by risks. The establishment and subsequent failure of a federal ICAC may even prove counterproductive in the fight against corruption. Unless its implementation is carefully considered and thoughtfully executed, we may end up patching a bullet wound with a band-aid.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. His colleague Zoe Zhang assisted in preparing this article. 

    First published in The Mandarin.

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  • Can you disinherit an estranged child?

    Can you disinherit an estranged child?

    In every Australian State and Territory, “Family Provision” legislation exists to allow a natural child to bring a claim for provision (or further provision) from the estate of their deceased parent. At the very core of the Family Provision legislation is the recognition of a moral duty that a parent owes to their child.

    Whilst the Law recognises that a parent owes a moral duty to their child, it also recognises that the moral duty will be impacted based on the nature of the relationship between the parent and the child. This moral factor must be weighed against the Applicant child’s financial need for provision from an estate.

    But what if the relationship between the parent and child had been a strained one? Perhaps for a few years, or a few decades? What if the child or the parent had done something (or failed to do something) which caused a breakdown in the relationship? There is a vast array of case law which looks at “the character and conduct” of applicants, at “disentitling conduct” and “estrangement” between parent and child, and unfortunately, the case law can often be ad hoc and sometimes inconsistent.

    What is consistent among the case law however is that the nature of the relationship between a child and their deceased parent is always taken into account by the Court and may serve to reduce or even deny a claim for provision in circumstances that may otherwise have presented a compelling case.

    Let’s focus just on “estrangement” between a parent and their child.

    We know from the case law that the cause of the estrangement is relevant. Estrangement that is caused entirely by a deceased parent’s unreasonable conduct or beliefs alone cannot amount to disentitling conduct on the part of an Applicant child. The Court therefore engages in a forensic analysis of the conduct and attitude of the deceased judged by prevailing community standards. As we know, moral standards are always changing and what was considered reasonable 30 years ago, may not be considered reasonable today.

    Nonetheless, the cause of the estrangement is one factor. The period of estrangement is another factor – naturally, a longer period of estrangement may justify a lesser moral duty on behalf of the parent towards their child. Of course, moral duty needs to be weighed against other competing claims (e.g. the moral claim of a testator’s children may lose priority to those of the testator’s spouse (for example, the case of Temple v Cowell [2011]SASC 20).

    It should be noted however that issues of fault within family relationships are inherently complex, and often relationship breakdowns have causes that are not exclusive to one party (as recognised by Young J in Walker v Walker)

    More recently, in the case of Larkin v Leech-Larkin (judgement being delivered in October 2017), the NSW Supreme Court came across yet another case involving the estrangement between a mother and her son, Julian.

    The mother had 4 sons and had left her entire estate to her second son Lucien. Two of her other sons had not made a claim against their mother’s estate. One son however ( Julian) decided to make a claim.

    The Court recognised that Julian had a strained relationship with his mother caused predominantly by (a) Julian continuing to have a relationship with his father following his mother and father’s divorce and (b) Julian failing to have any meaningful contact with his mother over the past 40 years of her life, and no contact within the last 8 years of her life.

    The Court also recognised that the other son, Lucien, who was the sole beneficiary of his mother’s estate, had a much closer relationship. They had a shared common interest (being their property in the Blue Mountains), and the Court also found that Lucien had spent a great deal of his own wealth towards this property.

    The estate was worth approximately $680,000 and the Court ultimately dismissed the application by the estranged some Julian.

    Does this case add anything further to the case law on estrangement and moral duty (and the principles in Keep v Bourke and Andrew v Andrew)? The short answer is “not really”.

    The take-away point from this case is that we consistently see the Courts at the very least, having regard to the following:

    1. the family history and dynamic between family members, the parent and the Applicant child
    1. the nature and conduct of the Applicant child and his or her parent, and any dis-entitling conduct on part of the Applicant child;
    1. what is considered to be “prevailing community standards”; and
    1. weighing the above factors with against the applicant child’s financial need for provision from an estate.

    Please contact our Estate Planning team if you need to carefully structure your estate plan, or if you believe you have been unfairly treated in the distribution of an estate.

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  • In bed with Embedded Networks Are Embedded Networks the answer to rising utility prices?

    In bed with Embedded Networks

    Are Embedded Networks the answer to rising utility prices?  

    The costs of electricity for households in Australia rose 72% over the ten years preceding 2013. This only slightly outpaced the rising cost of gas, which rose 54% during the period.[1] Prices have only been rising since. This led to the Federal Coalition Party releasing a new energy policy and closer to home, the ACT Government passing the Utilities Legislation Amendment Bill 2017 (the Bill). The Bill aims to remove unnecessary regulation of energy utilities in the ACT. In part, the Bill aims to reduce rising energy costs by promoting the use of Embedded Networks.

    What is an Embedded Network? 

    An Embedded Network is a distribution system within a building development, typically for water, gas or electricity, connected at a parent connection point to the national or regional grid, where the delivery infrastructure to multiple users is owned, controlled and operated by a person who is not a network provider[2] and is typically not the Owners’ corporation. Operating an Embedded Network within a residential or commercial building allows the Embedded Network operator to control the provision of utility services to each unit or part of the building. The argument runs that this allows the Embedded Network operator to reduce the cost of utility services by negotiating with energy retailers for the provision of utilities to the building in bulk.

    How do these amendments affect Embedded Networks in the Territory?

    The Bill, scheduled to come into effect on 1 December 2017, creates an exemption for Embedded Networks from the Utilities Act 2000 and the Utilities (Technical Regulation) Act 2014. This means that those operating an Embedded Network will not need to obtain a licence under the Utilities Act 2000 and thus they will be exempt from compliance with the technical codes and regulations of the Utilities (Technical Regulation) Act 2014. By removing these requirements, it is now easier to establish and operate an Embedded Network in the ACT.

    Problems with Embedded Networks

    Despite the removal of some red tape, there are foreseeable problems for Developers seeking to establish an Embedded Network in new or existing Developments, as well as for Buyers or occupiers within a complex serviced by an Embedded Network. These include:

    1. The commencement of the Scheme coincides with the commencement of the Australian Energy Market Commission “rule determination” on Embedded Networks. This Rule Determination creates an additional level of regulations and obligations for those operating Embedded Networks;
    1. The Electrical Safety Act 1971 continues to apply to Embedded Networks, imposing safety standards for the installation of electrical equipment and wiring work, hence leading to certification and maintenance compliance;
    1. The ability of a Developer of a new Unit Title complex to install an Embedded Network, who must address the ongoing commitment to the Embedded Network operator in accordance with the Developer obligations under the Unit Titles (Management) Act 2011;
    1. The legislative changes do not directly cater for mixed used buildings, where different management groups may have to engage with the operator of the Embedded Network; and
    1. The management (and hence cost) of delivery of the utility through the Embedded Network will be governed through the terms of the contracts that will be offered to the Owners Corporation and to the end user, that represents a cost risk to the buyer and a disclosure risk to the seller.

    Conclusion

    Ultimately, without further change (in particular to Unit Titles and mixed use development legislation) the current legislative changes do little to resolve a number of key issues  associated with what should be an innovative way for Developers to defray construction costs or to remove the maze of legislation and regulation surrounding the establishment and delivery of Embedded Networks in the ACT. Until further change is brought about, the terms of utility supply will become and remain a critical aspect of “cost”. This highlights the good sense in securing legal advice when looking to install an Embedded Network or when purchasing in a complex with an Embedded Network. Should you require legal advice on these issues, please contact a member of our experienced Property and Real Estate team.

    [1]Both figures from: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook44p/EnergyPrices

    [2] National Electricity Rules Chapter 10 (Glossary).

     

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  • Workplace Policies

    If in doubt, leave it out: Making workplace policies work

    It’s only natural (for some) to try to pin things down in writing. This is particularly true for those in the people management business, and especially for those among them who are exposed to bureaucracy. That way everyone knows where they stand – right?

    And so the drafting of the HR policy manual begins. Cutting and pasting from here and there while adding their lashings of common sense, the drafters of an HR policy manual do their best to spell out all manner of things relating to work. What is the social media policy? What is the organisational policy on the Christmas shutdown? Where are the tea towels kept? Then the CEO and the Board add in a few of their pet peccadillos, and a HR policy manual is born.

    Sooner or later the original drafters leave the organisation. Eventually, the new policy person gets around to looking at the HR policy manual. They notice a gap in coverage, and add a few more policies, drawing from their previous workplace experience and their own brand of common sense. The new CEO and Board members do likewise. The cycle repeats itself.

    Within a few years, the manual has grown to 5 times its original size. The policies overlap. Inconsistencies emerge between the ‘grievance policy’, the ‘dispute resolution policy’ and the ‘Code of Conduct’ and nobody knows which policies to apply when an intra-staff spat breaks out. In fact, the CEO isn’t even sure if the staff concerned know of the existence of the updated policies, since the version published on the intranet isn’t the version that was included in the employee induction pack. Plus one of the staff members involved in the spat is out in the field and doesn’t have access to the intranet anyway.

    Does all this sound familiar?

    Policies are just that – policies. That is: a document drafted by the organisation for the benefit of that organisation. Unless a policy is serving that purpose, it should be ditched.

    For a start, this means policies should be clear, and internally consistent. If they aren’t, the organisation should change them so that they are. Make sure all your staff know where to find the policies, and make sure any updated versions are clearly published to everyone.

    Secondly, policies should not duplicate or, worse, be inconsistent with employee entitlements located elsewhere (for example, in the employee’s contract, the relevant Modern Award, the Enterprise Agreement or the Fair Work Act). This just asks for trouble. While this all sounds terribly obvious, in my practice it is routine to see (for both NFP’s and FP’s alike) HR policy manuals including substantive entitlements (to, say, redundancy and termination of employment) that are different to the entitlements in the employee’s contract or Award. This can have unintended consequences for everyone and is particularly hard to watch given it was a wholly avoidable situation in the first place.

    Thirdly, the promises (if any) made in the HR manual must be achievable. Courts will not allow clear policy statements to act as a ‘cruel hoax’ on employees.[1] Also, on a common sense level, it just upsets staff when their employer doesn’t follow its own rules. So, if the policies proclaim that the organisation ‘will investigate all grievances within 48 hours’, the organisation must be able to deliver on that – in all cases. If it can’t (and, let’s face it, who wants to be pinned down to that anyway?) then the policy should be recast in more aspirational terms. For example: ‘where appropriate, the organisation will investigate grievances within the earliest practicable timeframe.’ Workers are people, and no two people (or situations) are exactly alike. Policies must be drafted to give your organisation the ‘wiggle room’ it is going to need to respond fairly and reasonably to every workplace situation.

    Finally, give some thought to whether the policy should even exist at all by asking yourself “do we really need to write this down?” Remember, the only HR policies that should exist are the ones that are necessary. Specifically, the ones that:

    • avoid legal liability (e.g.: include policies on sexual harassment, workplace surveillance, and work safety);
    • provide necessary workplace directions to employees that, if breached, can be treated as a disciplinary issue (e.g.: regarding the use of electronic communications and social media in relation to work);
    • give information to employees about basic workplace operations (e.g.: this is how to apply for annual leave); or
    • contain statements of aspiration about the organisation (e.g.: ‘we strive to be a family friendly workplace’).

    HR policies that seek to go beyond this list need to be carefully contained and justified. While NFP’s have some compliance obligations they cannot avoid, they are not the public service. This means that if you look carefully at HR policies, you may well find that less is more.

    [1] Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784, [223].

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  • Children on site – a heightened duty of care

    Children on site – a heightened duty of care

    Risk to Children

    Young children are at higher risk of injuries as they are often incapable of having the necessary foresight of the consequences of their conduct and need to be protected from injuring themselves.

    The purpose of this paper is to show how the law of negligence operates within a school environment.

    General principles

    A child is to be judged, not by the standards of an adult, but according to what could be reasonably expected of a child of their age.

    The cases establish that the law employs a sliding scale of responsibility where the safety and well being of children is involved, sliding down according to their age:

    It is obvious that a child is less capable of taking care of its own safety than a normal adult and the younger the child the less the capacity until a stage is reached at which there is none.[1]

    The relationship between the school authority, teachers and students give rise to a duty of care of general supervision to the students concerning their physical safety.  The High Court of Australia has summarised the extent of teachers’ duty of care to students:

    Children stand in need of care and supervision and this their parents cannot effectively provide when children are attending school; instead it is those then in charge of them, their teachers, who must provide it.[2]

    The duty of the school authority to its students is a duty to ensure that reasonable care is taken of them whilst they are on school premises during hours when the school is open for attendance.  The duty was expressed by the High Court as follows:

    …the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children.  It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated.[3]

    Negligence

    To be successful in a negligence claim, it must be established, on the balance of probabilities, that:

    • a duty of care was owed to the person at the time of the injury;
    • the risk of injury was reasonably foreseeable;
    • the likelihood of the injury occurring was more than insignificant;
    • there was a breach of the duty of care or a failure to observe a reasonable standard of care; and
    • this breach or failure caused or contributed to the injury, loss or damage suffered.

    The fact that a duty of care exists does not mean that a school authority will be liable for an injury sustained by a student.  In order for the student to succeed in a negligence claim, all of these elements must be established.

    Foreseeability of risk

    To establish a duty of care, the student must prove that the school authority or teacher ought to have foreseen that the negligent act or omission of the school authority or teacher might endanger the student.  It is not enough to establish that the school authority or teacher knew or ought to have known of the potential hazard.  It must be shown that a reasonable person in the position of the school authority or teacher would have foreseen that the situation constituted a real risk to the student.

    This duty of care is not absolute and only extends to protection from harm where the risk of injury is reasonably foreseeable.  The higher the risk or potential for harm, the greater the duty imposed on the school authority and the teacher.

    In many cases where a student has failed to prove their case, the school authority or teacher have acted reasonably in the circumstances rather than the injury not being foreseeable.

    Breach of duty

    In the Australian Capital Territory for a student to establish a breach of duty of care, three elements need to be satisfied:

    • the school authority or teacher knew or ought to have known of the risk – sometimes called ‘reasonable foreseeability’;
    • the risk was not insignificant; and
    • a reasonable person in the person’s position would have taken precautions against the risk.[4]

    The court in determining the liability of a school or teacher establishes whether the risk of injury was foreseeable, what the school or teacher could have done to reduce that risk being mindful of factors such as the magnitude of the risk, the age and experience of the student, and the cost of eliminating the risk.

    Causation

    To establish negligence, you must show that the act or omission caused the injury.  The High Court has noted:

    “…it is of course necessary that the breach of duty of care must be causally related to the injury received…[students] have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question.[5]

    Once the breach of duty of care has been established, it is often relatively easy to find that the breach caused the injury suffered by the student so long as the risk of injury is ‘not insignificant’.

    The student may suffer physical, psychological (nervous shock or other recognisable psychiatric disorder) injury or financial damage.

    Conclusion

    Teachers and school authorities need to recognise their legal responsibilities to students.  Whether as a teacher in the classroom, on the playing field or on a school excursion, a duty of care is owed to students.  This manifests itself as a duty to protect students from injuries that are reasonably foreseeable.  To avoid injuries that are reasonably foreseeable, teachers and school authorities should at all times maintain an acceptable standard of care given the circumstances.  The consequences for failing to meet this standard and in the event a student suffers injury, the teacher and/or school authority could face an action in negligence.

    [1] Cotton v Commissioner for Road Transport (1942) 43 SR (NSW) 66; Jordan CJ at 69

    [2] Geyer v Downs (1977) 138 CLR 91 at 93;

    [3] Commonwealth v Introvigne (1981) 150 CLR 258; at 270

    [4] Section 43, Civil Law (Wrongs) Act 2002 (ACT)

    [5] Geyer v Downs (1977) at p102

    For more information about negligence and duty of care with children on site, please contact Bill McCarthy.

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  • An unholy trinity? Religion, employees and the workplace

    An unholy trinity? Religion, employees and the workplace

    Australia is, by and large, a secular country. Australians have a constitutionally-entrenched freedom of religion, and anti-discrimination laws prohibit discrimination based on religion in a range of spheres. Yet as the furore surrounding the marriage equality survey demonstrated, religious issues sometimes intrude into the workplace. Companies large and small took vocal positions for and against marriage equality; in September a contractor in Canberra was terminated for expressing her religiously-motivated intention to vote no.

    The intersection between religion and employment is vexed. Drawing the boundaries between private and public life, determining reasonable concessions for religious observance in the workplace and exempting religious organisations from general law require delicate judicial and legislative policy judgments. This topic is also inevitably a controversial one. What to an atheist might represent a reasonable compromise between religion and employment would likely be entirely different for a devoutly religious person.

    Religion and the contract of employment

    Religion has tended to intrude on the contract of employment in two distinct contexts. Firstly, spiritual motives may prevent a contract existing due to the absence of an intention to create legal relations. Alternatively, where a contract is on foot, religious law may be incorporated within that relationship.

     Intention to create legal relations

    The mutual intention to create legal relations is an essential requirement in the formation of a contract (Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424, 457). Traditionally, it was considered that family, religious and community settings gave rise to a presumption against the existence of such intentions.

    The Australian position was altered in the seminal case of Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 (‘Ermogenous’) in which the High Court highlighted the dangers of such presumptions. The Court held that the proper inquiry requires an ‘objective assessment of the state of affairs between the parties’ (at 105). Accordingly, ‘to say that a minister of religion serves God and those to whom he or she ministers may be right, but that is a description of the minister’s spiritual duties. It leaves open the possibility that the minister has been engaged to do this under a contract of employment’ (at 110).

    Of course, Ermogenous did not say that a religious worker necessarily has a contract of employment with the relevant religious organisation. While in that case the question was remitted to a lower court, which upheld the existence of a valid contract (2002) 223 LSJS 459), subsequent judgments have retained the view that typically no legal relationship arises in the religious context. In Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201, for example, the Supreme Court of NSW held that teachers at a particular religious school provided their services ‘as volunteers in response to a calling to serve  God’ (at [59]).

    As these varied outcomes demonstrate, whether or not an intention to create legal relations exists will be a fact-dependent inquiry. In some religious contexts, the manner of appointment and on- going relationship will support the existence of an enforceable agreement; in others it will remain in the realm of a ‘consensual compact … based on religious, spiritual and mystical ideas’ (Scandrett v Dowling (1992) 27 NSWLR 483, 513).

    Continue Reading.

    Written by John Wilson, managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law, and Kieran Pender. First published in the Law Society Journal.

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  • Court of Appeal drains Pasminco’s pipe dream

    Court of Appeal drains Pasminco’s pipe dream

    A dispute between developers and a council concerning the construction of a stormwater pipe has given the Court of Appeal another opportunity to consider how to resolve inconsistencies between development consents and construction certificates and the principles to apply when interpreting an uncertain condition of development consent.

    An uncertain condition of development consent can be a nightmare for developers, councils and prospective purchasers when trying to understand what the condition requires. While the starting point must always be the text of the condition, what do you do when the text is itself unclear? What if someone suggests that a document, not in existence at the time the consent was issued, changes the way the condition should be understood?  What effect do the plans and specifications approved by a construction certificate have on the plans approved by the development consent?

    These questions were answered recently by the Court of Appeal in Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263.

    Background facts of the case

    The dispute between (our client) Bunderra Holdings Pty Ltd (Bunderra) and Pasminco Cockle Creek Smelter Pty Ltd (subject to a Deed of Company Arrangement) (Pasminco) concerned the ultimate responsibility to construct a stormwater pipe due to an ‘awkwardly drafted condition’ of a development consent issued by Lake Macquarie City Council (the Council).

    The land the subject of the development consent, known as the Tripad site, originally formed part of a larger holding of land owned by Pasminco.  Pasminco sold the Tripad site to Bunderra after the Council had granted Pasminco development consent for a residential subdivision on the Tripad land. The Tripad site was below the Pasminco site.

    The consent required the subdivision to occur in accordance with stormwater strategies which had been prepared on behalf of Pasminco. These contemplated the construction of a pipe under a road that divided the two sites to carry stormwater from the Pasminco site through the Tripad site. A condition of consent required the applicant to demonstrate that stormwater could safely flow from the Pasminco land through the Tripad site and required plans and calculations for these stormwater controls to be submitted to the Council prior to the issue of a construction certificate for the residential subdivision.

    After the consent was issued, Pasminco submitted a further stormwater strategy to the Council.  This was said to be in response to the consent condition referred to above, and expressly required the pipe to be built as part of the Tripad site subdivision works, ie, by Bunderra.

    Bunderra obtained construction certificates from the Council for all required civil works and carried out those works.  The Council issued certificates of practical completion for all of those works. The plans approved by the construction certificates did not provide for the construction of the pipe.

    A dispute then arose between Pasminco and Bunderra over who was responsible for the construction of the pipe. This culminated in Pasminco bringing class 4 proceedings in the Land and Environment Court to restrain the Council from granting a subdivision certificate for the development until after the pipe had been constructed.

    Pasminco succeeded at first instance.  Robson J held that:

    1. Pasminco’s further stormwater strategy, which expressly provided for the construction of the pipe as part of the Tripad subdivision, was impliedly (and retrospectively) incorporated into the consent; and
    2. the issue of the construction certificate, which made no provision for the construction of the pipe, did not alter the applicant’s obligations under the development consent.

    Bunderra appealed.

    The Court of Appeal’s decision

    The Court of Appeal reversed Robson J’s decision and, in doing so, gave some important guidance on the interpretation of development consents.

    Development consents are to be construed to achieve practical results

    The Court reaffirmed the principle that development consents are to be interpreted to achieve practical results. In doing so, it pointed out that development consents are drafted by planners and not lawyers, and should therefore be given a liberal construction.

    The retrospective incorporation of the later stormwater strategy.

    The Court found that the stormwater strategy given to the Council after the development consent had been granted could not be retrospectively incorporated into the consent for the purpose of interpreting the consent conditions. In doing so, the Court reinforced the principle that, because a development consent enures for the benefit of subsequent land owners, it is of fundamental importance that people are able to determine with precision what the consent requires by reference to the text of the consent and any documents incorporated into the consent either expressly or “by necessary implication”. A document that does not come into existence until after the consent has been granted cannot be used to determine the meaning of the conditions of consent.

    The effect of the construction certificate

    The Court confirmed that the plans and specifications approved by a construction certificate prevail over the plans and specifications the subject of development consent to the extent of any inconsistency between them.

    In Bunderra’s case, the Court concluded that the construction certificates issued by the Council imposed no requirement to construct the pipe and held that these must prevail over any inconsistent provisions of the development consent plans.

    Lessons learned

    There are two key lessons to be learned from this case:

    1. A development consent must be interpreted by reference to the text of the consent itself and any documents incorporated “by necessary implication”. A document that is not in existence when a development consent is granted cannot be used to interpret the meaning of the conditions of consent.
    2. In the event of any inconsistency between development consent plans and the plans the subject of a construction certificate, the construction certificate plans will prevail to the extent of any inconsistency.

    To learn more about this case, please contact Andrew Brickhill.

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  • Employment matters: can there be a bias-free dispute?

    Employment matters: can there be a bias-free dispute?

    Bias can arise at several stages when public servants make decisions. Be wary to avoid it.

    The rule against bias has a storied history. Australian academic Simon Young recently cited the 800-year-old Magna Carta as providing a basis for the principle, which he described as having “a uniquely long pedigree in Western legal thinking”. The rule is simultaneously simple and plagued by complexity. At its essence, a decision-maker must bring a fair and open mind to any decision.

    Of course, complainants do not need to be aware of this legal history to cry bias. The law is dense, in a state of flux and can deliver harsh outcomes from time to time. It is unsurprising, then, that affected individuals often mistake a dislikeable decision for one tainted by bias. But bias does occur, and distinguishing between unsupported complaints and legitimate grievances is not always easy.

    Particularly in the employment law context, where emotions run high and personal relationships are firmly relevant, there can be a considerable risk of bias. In the public service, employment disputes typically tread a well-worn path. First, an investigator will investigate the disputed conduct. Second, a decision-maker will decide whether the allegations were substantiated and whether the wrongdoer should be sanctioned. Finally, a distressed public servant has avenues for appeal – whether internally, through industrial tribunals or in court. At all three stages, issues of bias can arise.

    Before considering each in turn, a more elaborate definition is required. The Macquarie Dictionary defines bias as “a particular tendency or inclination, especially one which prevents unprejudiced consideration of a question”. Essentially, bias occurs when a factor influences a decision where that factor has no reasonable and rational connection with the decision. If I have an irrational dislike of people with red hair, and I fire an employee because they have red hair, my decision-making would be tainted by my bias against redheads.

    But the law is concerned not just with this actual bias; it extends to what can be described as an apprehension of bias. If my dislike of red-headed people is well-known, and I sanction an employee who happens to have red hair for misconduct, there is a risk that bystanders may apprehend I was biased in my decision-making regardless of whether the sanction was in fact influenced by bias. This is because our justice system is concerned not only with justice being done, but also with justice being seen to be done.

    Investigation bias

    One of the most common complaints in employment disputes is that a workplace investigation was tainted by biased. In Francis v Patrick Stevedores Holdings, Fair Work Commission Deputy President Peter Sams found an investigation “was biased, incomplete and totally one-sided” because the investigator chose not to investigate counter-allegations of harassment. In another case, the commission found an apprehension of bias where an investigator was required to investigate his own conduct.

    However, a finding of bias in the investigation will not necessarily result in compensation for the affected employee, nor reinstatement if they have been terminated. In Dent v Halliburton Australia, the commissioner, Susan Booth, held that an investigation did not need to be “flawless” provided the ultimate decision is reasonable. This places the focus on the final decision, rather than the investigation process, when determining possible remedies in unfair dismissal cases. That said, any finding of bias in the investigation will certainly help an employee in their attempt to overturn the decision or its consequences.

    Decision-maker bias

    After the investigation, a decision-maker typically makes a finding of fact (for example, whether the allegations were proven) and determines the appropriate sanction. Here, the decision-maker can find themselves between a rock and a hard place. If they simply adopt the investigation report without independently assessing the evidence presented, their decision may be infected by bias – as was the case in Francis. But if they take the inverse approach and disagree with the (typically independent) investigator, they may also be labelled as biased and accused of harbouring ulterior motives.

    The Fair Work Commission comes to the aid of decision-makers here, with several decisions accepting that reasonable minds can differ and therefore a decision-maker is not obliged to follow an investigator’s conclusions. The test remains whether the decision was reached reasonably and without bias.

    Judicial bias

    Finally, there are typically avenues for appeal once a decision is made. Two forms of bias are sometimes alleged against courts and industrial tribunals. The first occurs where one party has communicated with the institution without informing the other party. In CFMEU v LCR Group, a union applied for Senior Deputy President Peter Richards to recuse himself on the basis of his private emails with the other party’s legal representatives. The full bench acknowledged that unilateral communications could give rise to a reasonable apprehension of bias, but held that there was no logical connection between the procedural discussions in the email chain and Richards’ ability to bring an impartial mind to the particular case. Accordingly, the application was refused.

    Allegations of bias have also arisen (unsuccessfully) where a decision-maker has previously expressed an opinion on the legal question to arise in the case. The High Court’s comments in a 1986 case are apt: “[bias] flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that [they] will decide the case adversely to a party”.

    The resounding message from both cases is that proving bias against a judicial or quasi-judicial officer is extremely difficult. This is for obvious reasons: the overwhelming majority of judges are highly professional and take their responsibility of impartiality seriously. Yet this has not stopped such allegations, even from within their own ranks. In February, Fair Work Commission Vice-President Graeme Watson sensationally resigned over his concerns that the institution was biased towards employees in unfair-dismissal cases.

    Bias is a common complaint during workplace investigations and the processes that follow. When emotions run high, it can be an allegation which is easy to hurl yet difficult to substantiate. To avoid the risk of bias grounding a successful appeal, public servants should adhere to proper processes, manage conflicts of interest and utilise independent decision-makers wherever possible.

    John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleagues Robert Allen and Kieran Pender for their help in preparing this article. First published in the Canberra Times.

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  • Are your trees safe

    Are your trees safe?

    A new State Environmental Planning Policy has changed the circumstances in which Council approval is required for the removal of trees in non-rural areas.

    The State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 commenced on 25 August 2017. The SEPP is part of an extensive overhaul of native vegetation clearing laws in NSW and requires a Council permit to clear any vegetation below the Biodiversity Offset Scheme threshold, to which Part 3 of the SEPP applies.  The SEPP also provides for an appeal to the Land and Environment Court against a Council’s refusal to grant such a permit.

    The SEPP applies to vegetation in ‘non-rural’ areas. Non-rural areas are defined as being land in the local government areas in metropolitan Sydney and Newcastle and land within a wide range of specified ‘urban’ zones.

    However, Part 3 of the SEPP applies only to vegetation that is declared by a development control plan to be vegetation to which the SEPP applies.  Where a development control plan doesn’t contain such a declaration, urban trees in the Council’s area may be unprotected.

    There is a savings provisions in clause 26 of the SEPP. This saves the application of vegetation removal provisions in development control plans which were in force at the time the vegetation SEPP commenced.

    But there is a catch. If a Council’s development control plan did not prescribe the vegetation to be protected under the former clause 5.9 of the Standard Instrument (and this may be more common that you might think), Part 3 of the new SEPP will simply not apply.

    The Department of Planning and Environment is developing a model development control plan. However, this is not yet available.  All Councils should therefore check that their development control plan contains a list of vegetation to be protected by the SEPP.  Any existing list prepared under the former clause 5.9 of the Standard Instrument will carry over to the SEPP but, if your development control plan doesn’t contain such a list, the trees in your urban areas may be without any legal protection.  It goes without saying that, if this is the case, your development control plan should be amended urgently to include a declaration of the vegetation to which the SEPP will apply.

    For more information, please contact us.

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