Workforce management

Employers' Right to Refuse Flexible Work Arrangements: Recent Developments

By Kate Jenkins, Partner, Trish Low, Senior Associate, and Melanie Smith, Solicitor.

In its recent review of the Fair Work Act 2009 (Cth), the Review Panel considered submissions on the operation of the right to request flexible work arrangements. The Act currently provides that certain employees responsible for the care of a child under school age, or a child with a disability who is under 18, can request a change in working arrangements to assist with their carer responsibilities. Employers can only refuse such a request on reasonable business grounds.

The Review Panel recommended that the right to request flexible work arrangements be extended to allow a wider range of people with caring responsibilities access to the provisions (e.g., for elder care). The Review Panel also recommended amendment so that an employer can only refuse a request for flexible work arrangements after the employer has held at least one meeting with the employee to discuss the request.

While the government has not yet indicated whether it will adopt and implement these recommendations, two recent cases provide some guidance on the considerations that are relevant when a decision to refuse a request for flexible work arrangements is made.

These cases demonstrate that employers have scope to refuse requests for flexible work arrangements where the arrangements conflict with the employer's genuine and reasonable operational needs.

Read the full post here.

Developing Trends in Social Media in the Workplace

By Kate Jenkins and Andrew Pollock, Solicitor

Freehills recently held an interactive panel discussion about the evolving impact of social media in the workplace.

Facilitated by former ABC Radio presenter Lisa Leong, the panel - comprising Kate Jenkins and Andrew Pollock from Freehills' Employee Relations group, and Robin Tarr and Stan Gallo from KPMG Forensic - answered questions submitted by attendees around the 'real-world' challenges that social media poses for HR professionals and lawyers.

In this update we take a look at the key questions put to the panel, and touch on some of the issues arising from the session, which we see as pivotal in shaping organisational approaches to social media over the coming years.

Read the full post here.

Mexico Enacts New Federal Anti-Corruption in Public Contracts Law

By Mónica Schiaffino and Rogelio Alanis Robles

Mexico's new federal Anti-Corruption in Public Contracts Law (the "Anti-Corruption Law") became effective on June 12, 2012. The law makes it unlawful for a Mexican or foreign individual or corporation to give, offer or promise money or other valuable consideration, whether directly or indirectly, to a public official or third party for the purpose of obtaining or retaining a benefit or advantage in connection with a public contract with the Mexican federal government. Acts or omissions which also constitute a violation of the Anti-Corruption Law include:

  • Performing acts or omissions with the purpose of bidding for a public contract if the individual or corporation is legally barred from the bidding process under the law or through an administrative order.
  • Performing acts or omissions with the purpose of evading the requirements or rules established by the public contracting entities.
  • Participating in the procurement of a public contract for the ultimate purpose of benefiting parties that are barred from the bidding process.
  • Promoting or using any economic or political influence, real or fictitious, on a public servant, in order to obtain a benefit or advantage.

Liability will attach regardless of whether the unlawful conduct occurs through a third party, the valuable consideration is accepted, or the desired result is obtained.

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Government Seeks Views on Workplace Dismissal Rules

By Richard Lister

YouAreFiredIV.jpgThe UK's Department for Business, Innovation and Skills has published a Call for Evidence on workplace dismissal processes. This was announced by Secretary of State for Business, Vince Cable, in a speech to the British Chambers of Commerce on 15th March 2012.

The Call for Evidence is designed to help inform the Government's understanding of the current dismissal system. It includes:

  • Gathering information on awareness and use of the Code of Practice on Disciplinary and Grievance Procedures issued by the UK's conciliation service Acas. In particular, BIS wants to understand whether this could be adapted to make it easier to use and more accessible for smaller businesses.
  • Seeking views on the idea of compensated no-fault dismissal for "micro businesses" (those with fewer than ten employees). Under such a system, the employer would pay a set amount of compensation to the employee but would not be required to go through a formal dismissal procedure.
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Mass Unemployment in Spain Causes Historic Labour Law Reform

By Sagardoy Abogados (the Spain member of Ius Laboris)

For hire.jpgOn the 12th of February, Spanish Labour Law underwent an historic change. Royal Decree-Law 3/2012, entered into forceestablishing new measures to improve the employability and the stability of workers in Spain. In view of the overwhelming scale of mass unemployment in the country, the new measures go further than mere reform. They represent an attempt to transform Spain's employment model by creating a new and different work culture adapted to modern business reality.

Employability of the worker is addressed through various modifications to Spain's labour legislation. Under the decree, professional training is regarded as a personal right; all employees who have been with a company for at least one year are granted 20 hours of paid leave in order to carry out job-related training activities. Additionally, a more flexible management of a business' human resources is also required, allowing for professional progression based on an employee's efforts and abilities, not professional classification.

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No Written Warnings in Personal Files

All documentation related to employment of employees should be kept in their personal file. However, the contents of the file are strictly regulated and only documents recognized by the law can be stored there. The content of personal files is regulated in the Regulation of the Labour and Social Security Minister of 28 May 1996. The Supreme Court emphasized that, in particular, it is not allowed to keep in personal files any informal, written warnings not provided for by the Labour Code (judgment of 23 November 2010, I PK 105/10). The Court stated that preparing and keeping such warnings or informal disciplinary notes may lead to circumvention of the law that enumerates penalties which can be imposed on employees.

The U.K. Bribery Act's Impact on U.S. Employers

Money Bag II.jpgThe United Kingdom's Bribery Act of 2010 became effective on July 1, 2011, and has a major impact on U.S. employers with business operations in the U.K. The Act sweeps away antiquated and piecemeal British bribery laws to create a regime of criminal offenses described by the Director of the Serious Fraud Office as, "the toughest bribery legislation in the world." Despite this, the U.K. government has emphasized that compliance with potentially stringent legislation should be a matter of common sense: a mixture of risk assessment and proportionality.

For a practical discussion of the main compliance issues from an employment perspective and guidance as to where U.S. organizations, used to complying with the Foreign Corrupt Practices Act and the patchwork of U.S. anti-bribery laws, should focus their attention, continue reading U.K. Bribery Act "On-Line" as of July 1 - U.S. Employer Impact, by Philip Berkowitz and David Goldman of Littler Mendelson and Ellen Temperton of Lewis Silkin.

Photo credit: MBPhoto, Inc.

Employer Liable for Negligent Statements in Email about Former Employee

By Olivia Eardley

MouseAndEmail.jpgThe High Court has ruled that an employer could be liable to a former employee for negligent and damaging comments made in an email to his new employer - even though it was sent six years after the employment relationship had ended (McKie v Swindon College [2011] EWHC 469).

The case concerned Mr McKie, who worked at Swindon College between 1995 and 2002. He received an excellent reference when he left their employment. By 2008, he was working in a new role as director of studies at the University of Bath. Part of this role involved visiting various further education colleges, including his former employer.

Swindon's HR director sent an email to the University of Bath which stated that they did not want Mr McKie on their premises or dealing with their students. The reasons given included "real safeguarding concerns for our students", and also "serious staff relationship problems" during his previous employment. As a result of receiving this email, the University of Bath dismissed Mr McKie.

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Obesity's Impact on Workforce Productivity & Healthcare Costs

Concern over obesity in America has grown to such an extent that the campaign to combat it now rivals the anti-smoking war that has been waged for the last decade. In much the same way that epidemiological studies linking smoking to health concerns spurred the campaign against smoking, new studies on the cost of obesity are fueling action against the obesity epidemic. The cost of the obesity epidemic is twofold: (1) it leads to a number of recognized health problems for individuals; and (2) it poses a heavy financial burden on society. Employers, in particular, are directly affected by the crisis because obesity is dramatically raising the cost of health care, decreasing employees' productivity while at work, and causing increases in absenteeism. To learn more about this issue and its implications for employers, please continuing reading at Littler's Healthcare Employment Counsel blog.  

Bribery Act in Force on 1st July

By Ellen Temperton

BriberyIII.jpgThe Bribery Act 2010, originally scheduled for implementation in April, will now come into force on 1 July 2011. The UK Government has finalised and published its formal guidance on the legislation.

Richard Alderman, director of the UK's Serious Fraud Office has described the Act as "the toughest bribery legislation in the world". (For a brief summary of the Act, see our previous note New Bribery Act - Implications for Employers.)

When the Act comes into force it will be unlawful to offer, promise, give, request, agree to receive or accept a bribe. Most significantly, a commercial organisation can be liable for a failure to prevent bribery by a person associated with it.

Both a "quick start guide" to the Act (PDF) and full guidance (PDF) are available. The former provides some reassurance by stating that "no one can be prosecuted in England and Wales unless one of the two most senior prosecutors ... is personally satisfied that a conviction is more than likely and that prosecution is in the public interest". So whilst the Act itself is fairly draconian in nature, it seems that enforcement is unlikely to be.

In light of the guidance, this article focuses solely on the types of measures that employers will need to take to avoid corporate liability for failing to prevent bribery.

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