When an approach to uniforms demonstrates poor form

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1 WORKPLACE RELATIONS INSIGHTS When an approach to uniforms demonstrates poor form In brief: When it comes to setting a uniform or prescribing requirements as to suitable employee attire or appearance in the workplace, employers generally expect to have significant discretion. To a point, that expectation is not unrealistic. However, a recent VCAT decision relating to a uniform policy in a Victorian school has highlighted the limitations to the discretion which exist - and employers should take note. What you need to know: By Michelle Dawson Partner ACCREDITED WORKPLACE RELATIONS SPECIALIST The law in Victoria protects against persons being treated unfavourably on the basis of their religious beliefs and activities in the areas of both education and employment. The law in Victoria also prohibits schools and employers from imposing (or proposing to impose) an unreasonable requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a particular religious belief or who undertake a particular religious activity. Uniform policies can not prohibit attire where that attire (or aspect of appearance perhaps) connects an individual to their religion. Background The case, Arora v Melton Christian College (Human Rights) [2017] VCAT 1507, specifically considered and addressed some of the issues which arise when it comes to attire worn by a person, where that attire connects the person to their religion. The case involved a five year old student whose religious beliefs lead to him having long, uncut hair and wearing a head covering known as a patka. The student sought enrolment to and was essentially excluded from Melton Christian College after the principal said that the student would, if enrolled, be required to observe the school s uniform policy, which required boys to have short hair and prohibited head coverings related to a non- Christian faith. The student s father made a claim of indirect discrimination which was dealt with in VCAT. In defence to the claim, the school argued that the student was not excluded from enrolment by the school (maintaining that the enrolment application had, rather, been withdrawn by the student s parents); that he had not been disadvantaged by not being able to attend the school; and that even if he was disadvantaged in this way, the requirement that he comply with the school s uniform policy was reasonable. The school argued that if the student was in fact disadvantaged and it was not in fact reasonable for the school to require him to comply with its uniform policy, that its conduct was justified and not unlawful due to exceptions to the Equal Opportunity Act 2010 (Act) which permits schools operated for students of particular religious beliefs to exclude students who are not of that religious belief; and allows schools to set and enforce reasonable standards of dress, appearance and behaviour. Continued on next page ALSO IN THIS ISSUE When boardroom bullying leads to a Fair Work Commission claim By Emily Dempster 3 Senior Associate The importance of meaningful consultation By Emily Dempster, Senior Associate and Nicole Davis, Lawyer 5 MADGWICKS 1

2 Continued from page 1 VCAT Findings In determining the case, VCAT (assisted by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) who intervened in the case to aid the interpretation of the law) found against the school, and determined that: the school had in fact excluded the student from enrolment; the student had been disadvantaged in not being able to attend the school; in imposing its uniform policy on the student, the school unlawfully indirectly discriminated against him (in fact, VCAT observed that the school s uniform policy, in so far as it prohibited head gear of a non-christian faith, could be described as openly discriminatory (although the claim was not of direct discrimination, rather of indirect discrimination)); the stated exceptions did not justify the school s actions; the uniform policy was not reasonable in prohibiting students from wearing patkas and requiring boys to have short hair, for reasons which included: that the school could make a reasonable adjustment to the uniform policy by allowing the student to wear a patka in the same colour of the school uniform; that it was not reasonable for the school to accept enrolment applications from students of non-christian faiths on condition that they do not look like they practice a non-christian religion; that it was not reasonable to exclude a student who wears a patka because of his religious belief or activity, from attending the school; the school ought to have consulted with the school community and taken its views into account when including the prohibition in its uniform policy, but did not; it would have been a reasonable adjustment (as contemplated by the Act) to make an exception to the uniform policy to: enable the student to wear a patka at the school; and have short hair; and the school ought to have made (but did not make) such adjustments. The Decision As at the date of writing, no orders by VCAT have been made and therefore the adverse ramifications which will result for the school are presently unknown. Nonetheless, the decision is an emphatic reminder that uniform policies (however informal they may be and whether in a school or a workplace) must not be discriminatory. In the context of uniforms in the workplace or employment, employers should take away from the case, the following: Uniform policies can not prohibit attire where that attire (or aspect of appearance perhaps) connects an individual to their religion. It is necessary to make exceptions to policies in relevant instances. It is necessary to make reasonable adjustments to uniform policies in relevant instances. For instance, by permitting religious head coverings to be worn - perhaps so long as the head covering shares the colour of the uniform. It may be necessary to undertake consultation with relevant parties (including employees and, where relevant perhaps their union/s) and to reflect their views when setting a uniform policy (particularly where a policy will include prohibitions which could have a similar outcome to that of the case discussed). Exceptions to Victoria s equal opportunity laws will only apply in very narrow circumstances (although note that the specific exceptions relevant to the case discussed will generally not apply in an employment context). There may in an employment context often be workplace health and safety considerations/ reasons for the exclusion of head coverings or other types of attire. These may well put employers in a more defensible position than the school was in the case discussed, as in that case there were no relevant safety considerations as to the offending content of the uniform policy. If you are unsure whether your business uniform policy or practice is appropriately compliant, please contact our Workplace Relations team who can assist, inform and expertly advise you in this regard. MADGWICKS 2

3 When boardroom bullying leads to a Fair Work Commission claim In brief: Board meetings are a forum where vigorous and difficult discussions are the norm. As such, directors may be surprised to discover that they can be held accountable for their behaviour in the boardroom in, of all places, the Fair Work Commission (Commission). This is due to a recent decision of the Commission which demonstrated that the anti-bullying laws in the Fair Work Act 2009 (Cth) (FW Act) may apply to company directors. This means that company directors could potentially apply to the Commission for a stop bullying order which would protect them from being bullied. What you need to know: Pursuant to the FW Act, a worker who reasonably believes that he or she has been bullied at work may apply to the Commission for a stop bullying order. Despite not being conventionally viewed as workers, directors may be able to make bullying claims in the Commission. Companies can take steps to mitigate the risks of directors making bullying claims by conducting training for board members on the effect and operation of workplace bullying laws, and ensuring that there are rules and/or policies in place in respect of the conduct of board meetings. The facts By Emily Dempster Senior Associate WORKPLACE RELATIONS In Trevor Yawirki Adamson [2017] FWC 1976 (Adamson Case), Mr Adamson made an application to the Commission for a stop bullying order. At the time of making the application, Mr Adamson was the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara Inc (APY). Mr Adamson was not an employee of APY. His application named two persons: the Deputy Chairperson of the Executive Board and the General Manager. Mr Adamson made a broad range of allegations in his application regarding the behaviour of the Deputy Chairperson and the General Manager, including that they: refused to deal with him and disrespected his wishes; interfered with his conduct of meetings of the Executive Board and prevented him from exercising his powers; orchestrated events to prevent a quorum at meetings of the Executive Board; prevented him from accessing meeting minutes of the Executive Board; and defamed him and other members of the Executive Board. From their end, the Deputy Chairperson and the General Manager denied the allegations regarding their behaviour. They argued that the Commission did not have jurisdiction in respect of Mr Adamson s application as he was not a worker and the conduct complained of did not occur in the context of Mr Adamson being at work. Was the Chairperson a worker? The anti-bullying provisions of the FW Act provide that worker has the same meaning as in the Work Health Safety Act 2011 (Cth) (WHS Act). The WHS Act broadly defines a worker as a person who carries out any work in any capacity for a person conducting a business or undertaking. This could include, but is not limited to, a range of persons including an employee, contractor (or employee of the contractor), employee of a labour hire company, student gaining work experience, or a volunteer (except for a person volunteering with an association that has no employees). As the definition of worker in the WHS Act is so broad, the fundamental question in the Adamson Case was whether Mr Adamson s responsibilities as Chairperson of the Executive Board equated to him carrying out work in any capacity for APY. Mr Adamson was paid an allowance for the Chairperson position and his responsibilities included calling and chairing Executive Board meetings, attending Board and other APY meetings, participating in the decision making and consultative processes of the Board, and representing the Board to the community and in other forums. Ultimately, the Commission determined that Mr Adamson s responsibilities represented work and that he was also, carrying out the work for APY. As such, whilst Mr Adamson was not a worker in the traditional sense, Commissioner Hampton determined that he was a worker for the purposes of the anti-bullying laws in the FW Act. The anti-bullying provisions in the FW Act provide that the bullying conduct must take place whilst the worker is at work. Did the alleged conduct occur whilst the Chairperson was at work? In determining whether Mr Adamson was at work whilst the bullying conduct took place, Commissioner Hampton referred to a 2014 decision 1 in which a Full Bench of the Commission made the following comments: the alleged bullies do not need to be workers, they could be customers of the business or undertaking in which the applicant works; the alleged bullies do not need to be at work at the time that they engage in the alleged bullying behaviour; Continued on next page MADGWICKS 3

4 Continued from page 3 being at work is not limited to the confines of a physical workplace; a worker will be at work at any time the worker performs work, regardless of his or her location or the time of the day; a worker will be at work when he or she is engaged in an activity which is authorised or permitted by their employer or principal (such as being on a meal break or accessing social media whilst performing work). Commissioner Hampton determined that the alleged bullying conduct (if it occurred) took place whist Mr Adamson was at work in his capacity as Chairperson. As such, on a preliminary basis, Commissioner Hampton determined that Mr Adamson was covered by the FW Act anti-bullying laws. Ultimately, Mr Adamson s application was dismissed because he was not re-elected to the Executive Board and, therefore, there was no future risk of bullying. 2 Stop bullying orders and boards The Adamson decision demonstrates that the FW Act anti-bullying laws may apply to company directors. As such, if one or more directors behave unreasonably towards another director and that behaviour causes a risk to the health and safety of that director, then there is a risk that the affected director could apply to the Commission for a stop bullying order. Previous stop bullying orders that have been issued by the Commission have included: directions to the individuals named in the application to the effect that they not make contact with each other, only make contact via during specified times and/or not attend certain premises; directions to the employer company to provide anti-bullying training, conduct training for all workers on appropriate standards of behaviour and/or actively monitor the behaviours of the workers. Clearly, given the form of order that can be made, the granting of a stop bullying order could severely compromise the operation of the board. Mitigating the risks Companies can take steps to mitigate the risks of directors making bullying claims by: conducting training for board members on appropriate standards of behaviour and the effect and operation of workplace bullying laws; ensuring that there are rules and/ or policies in place in respect of the conduct of board meetings; and providing training to the senior board members, including in relation to the conduct of board meetings, and the necessity of the senior board members to monitor the behaviours of the directors and, if necessary, address any inappropriate behaviour. If you need assistance, advice or training to either combat boardroom bullying or to ensure that it does not occur within your organisation, contact our Workplace Relations team for expert advice. 1. Bowker and others v DP World Melbourne Limited T/A DP World and Others [2014] FWC The Commission can only make a stopbullying order if there is a risk that the worker will continue to be bullied at work. MADGWICKS 4

5 The importance of meaningful consultation In brief: Redundancies, by their very nature, can be tricky for many employers to successfully implement. They are stressful for all involved and things can go from bad to worse very quickly, if not handled properly. Many employers make the fatal mistake of focusing solely on the operational and financial constraints from which a redundancy is born. In doing so, they fail to give proper consideration and weight to their obligations to consult with employees. What you need to know: By Emily Dempster Senior Associate WORKPLACE RELATIONS Employers may be obligated to consult with employees regarding any major workplace change in accordance with the applicable modern award or enterprise agreement. There is generally no obligation to consult with employees who are not covered by a modern award or enterprise agreement (although it may be best practice to do so in certain circumstances), subject to any workplace policy requirements. Consultation is an opportunity for employees to express their views regarding a proposed major workplace change so that those views can be taken into account by an employer. The obligation to consult All modern awards and enterprise agreements require employers to consult with employees regarding any major workplace change that is likely to have a significant effect on their employment. Whilst it is best practice to do so in certain circumstances, subject to any workplace policy requirements, there is generally no obligation to consult with employees who are not covered by a modern award or enterprise agreement. By Nicole Davis Lawyer Consultation under a modern award or enterprise agreement usually requires employers to inform their employees of any decision to introduce any major workplace change as soon as practicable after the decision is made and to discuss the changes with the employees and their representatives. The recent Fair Work Commission (Commission) decision in Mr Muhammad Buttar v PFD Food Services Pty Ltd T/A PFD Food Services [2017] FWC 4409 (24 August 2017) provides a good example of an employer s failure to consult with an employee in a meaningful way. The Buttar decision WORKPLACE RELATIONS National food processing and distribution company, PFD Food Services Pty Ltd (PFD), made Mr Buttar s position redundant following a legitimate operational restructure of the business. During his employment with PFD, Mr Buttar was covered by the Seafood Processing Award 2010 (Award). The issue before the Commission was whether Mr Buttar s dismissal was as a result of a genuine redundancy within the meaning of the Fair Work Act 2009 (Cth) (Act), and if not, whether the dismissal was harsh, unjust or unreasonable. In his decision, Deputy President Anderson considered whether a meeting between Mr Buttar and Mr DeCasto (PFD s General Manager for South Australia and Northern Territory) was sufficient to meet PFD s consultation obligations under the Award. This meeting occurred after Mr DeCasto had formed the view that Mr Buttar was likely to be affected by proposed redundancies. Prior to him reaching a final decision, Mr DeCasto did not call a meeting. In fact, Mr Buttar attended Mr DeCasto s office on his own volition as he had become concerned over rumours that PFD was going to commence a police investigation into missing stock and he wanted to profess his innocence. Whilst Mr DeCasto told Mr Buttar that it was possible that his position would be made redundant during this meeting, he provided no details regarding the restructure or how it would affect Mr Buttar. Mr DeCasto became frustrated with Mr Buttar who continued to profess his innocence during the meeting despite Mr DeCasto reiterating he was under no suspicion. As a result of his frustration, Mr DeCasto resolved at the end of the meeting that Mr Buttar s position would be made redundant. As a result, Mr Buttar s employment was subsequently dismissed. Continued on next page MADGWICKS 5

6 Continued from page 5 Deputy President Anderson determined that the meeting did not discharge PFD s consultation obligations as it did not constitute meaningful consultation. Ultimately, PFD was found to have unfairly dismissed Mr Buttar and was ordered to reinstate him: 1. to his former position (which no longer existed); and 2. in circumstances where it was accepted that the difficulties between the individuals involved would require further management. What is meaningful consultation and how can employers remain compliant? As PFD discovered, an employer must ensure that it meaningfully consults with employees regarding any proposed redundancies. But what exactly constitutes consultation in a meaningful way? The PFD decision assists in identifying the level of engagement that the Commission requires from employers in order to demonstrate compliance. When entering the consultation phase of any workplace changes, it is important for employers to ensure that employees are made aware of the types of changes that are to be implemented and how these changes are going to affect them (either directly or indirectly). Further, employees need to be given an opportunity to respond and provide suggestions, and employers need to consider any such responses and/or suggestions and participate in discussions with employees regarding the same. In order to assist in meaningful consultation, employers should take steps to: meet with affected employees to discuss all relevant information about the change, setting out the nature of the changes proposed, the effects of the changes on the employees and any other matters of relevance (such as redeployment opportunities); following this meeting provide affected employees with written correspondence (such as a memo) to provide an overview of what was discussed; invite employees to raise any matters or make any suggestions regarding the proposed change either during the consultation meeting/s or subsequent to the meeting; and where employees raise matters in relation to the change, they should be acknowledged, considered and addressed. If you need advice on how to approach employee consultations and your obligations under modern awards, please contact one of our Workplace Relations team members. Our Team Michelle Dawson PARTNER - ACCREDITED WORKPLACE RELATIONS SPECIALIST D: E: michelle.dawson@madgwicks.com.au Tim Greenall SPECIAL COUNSEL D: E: tim.greenall@madgwicks.com.au Emily Dempster SENIOR ASSOCIATE Nicole Davis LAWYER D: E: emily.dempster@madgwicks.com.au D: E: nicole.davis@madgwicks.com.au Our Office Level 6, 140 William Street Melbourne VIC 3000 T F Our Disclaimer This newsletter has been prepared by Madgwicks Lawyers to keep you up to date with important legal decisions and new legislation. It is intended to provide general information on topics current at the time of publication. No person should act on the basis of the contents of this publication without seeking formal legal advice. MADGWICKS 6