The Fair Work Commission has upheld the dismissal of a BHP Billiton underground mineworker sacked after repeatedly refusing to shave off his beard for the purposes of ensuring his respirator operated effectively. 
Commissioner Hampton found the company’s instructions to the uranium mine employee at Olympic Dam to comply with its Clean-Shaven Policy were lawful and reasonable, and the policy itself a “reasonable and appropriate one given the circumstances of the operations of BHP Billiton and the potential hazards in the mine“. The Commissioner said BHPB had “significant WHS obligations upon it as the employer” and, given technical advice about the hazards workers were exposed to and relevant safety regulations, “the instruction (and the policy) was an objectively reasonable and proportionate response to the circumstances“. Commissioner Hampton acknowledged a clean-shaven policy, such as the company’s policy, affected individual rights and preferences. He said, however, “in light of the actual hazards, the nature and size of the mine and its workforce, and the impact of the relevant WHS obligations, the interests of the protection of safety and health become more important than personal preference and a desire to obtain an appearance, even one held so strongly by [the employee]“. The Commission heard the employee, an underground truck-driver, had a goatee beard about 100mm long and a moustache since he was 19 years old, including for his 6 years at the mine. In a letter to the company after being asked to show cause why he should not be dismissed, he said, “My facial hair is my personal attribute, it is who I am and my liberty of right.” The company’s long-standing clean-shaven policy became an issue for the employee when it began rolling it out across all operational areas last year, after a review of its respirator protective equipment (RPE) policy, sparked by information that diesel particulate matter (DPM), emitted by its diesel trucks, had been categorised as a human carcinogen. The mine leadership team decided that by the end of the year, the entire mining and processing workforce was to be clean-shaven for respiratory fit-testing and, once fit-tested, to carry the RPE the company supplied and maintained. The employee to be sacked was the only 1 of 900 underground workers who refused to comply. He argued before the tribunal that the clean-shaven policy and related directions were not valid, as BHPB had failed to meet its consultation requirements under the state WHS Act. He also said there was no causal connection between the policy and the alleged work, health and safety risk given his offer to purchase an alternative Airstream helmut, which he had worn in the past and allowed him to roll up his goatee inside it. However, Commissioner Hampton said he did not have to rule on compliance with the WHS Act, for reasons including that it was fundamentally a matter for a court of competent jurisdiction and it was possible to determine the unfair dismissal claim without doing so. In rejecting the employee’s argument that his offer to purchase an alternative device made his dismissal unfair, the commissioner said it was evident that “there are real hazards in this workplace, including potential exposure to DPM, and other issues arising from the fact that (amongst other minerals) the BHP Billiton mine at Olympic Dam is a uranium mine… It is also evident that the clean-shaven policy is in general terms, an appropriate control strategy and is directed at genuine WHS issues in this workplace… As a general rule, the capacity for employees to supply their own PPE is not a workable and appropriate approach in a workplace of the kind conducted by BHP Billiton at Olympic Dam..It is a large and complex workplace with genuine hazards and the approach contended by [the employee] had the real capacity to undermine the integrity of the policy… If BHP Billiton were to permit an employee to avoid the clean-shaven policy based upon personal appearance preference, then in my view, this is likely to lead to flow-on issues and claims for other ‘exemptions’.” The Commissioner noted that using the Airstream helmet with any “significant” facial hair was of itself “problematic and would require regular testing”. [James Felton v BHP Billiton Pty Ltd [2015] FWC 1838 (30 April 2015)]
Author: PWLadmin
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What is a Reasonable & Lawful Direction? Fair Work Commission Recent decision
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Job Application Form Discriminatory
Woolworths were found to have discriminated against online job applicants by requiring them to provide their gender, date of birth and proof of their right to work in Australia, as ruled by the Queensland Civil and Administrative Tribunal.
The Tribunal said the requirement to provide the information breached the state’s Anti-Discrimination Act, and that Woolworths could not rely on a defence in section 124(3) that it was information that was “reasonably required“.
The case last arose in December 2013 after an applicant for a console operator role at a Woolworths petrol station in Beerwah complained about having to fill in mandatory fields in the retailer’s national online recruitment system.
Job applications could not be submitted unless the information was provided, but Woolworths has since changed the system, removing some of the fields and making others optional.
Woolworths nevertheless argued that it was reasonable to ask for applicants’ dates of birth because some jobs could only be performed by those 18 and over, and different rates of pay might apply to those under 21.
The information also allowed the retailer to differentiate between employees with the same name, with the company employing 190,000 workers nationwide.
Woolworths also said it had an obligation to seek “right to work” proof to avoid breaching section 245AB of the Migration Act, which prohibits the employment of “unlawful citizens“.
And it sought the gender information to comply with the Commonwealth’s workplace gender reporting requirements, the retailer argued.
QCAT senior member Richard Oliver said that for those positions requiring applicants to be 18 or over, a simple question asking whether they had reached that age would suffice, together with an explanation as to why it needed the information.
This would meet the section 124(3) defence for the information to be “reasonably required“, Mr. Oliver said.
On the issue of differing entitlements, the senior member said dates of birth were “clearly not necessary until an applicant has been, at the very least been offered a position with Woolworths, or perhaps when discussing the position and advising an applicant of the entitlements relating to the position…It may well suit Woolworths’ administrative processes to gather the information at an early time, but it cannot be said to be reasonably necessary at the time of completing the online application,” he said.
Gender reporting
Rejecting Woolworths’ argument that it was required to obtain gender statistics, Mr. Oliver said the retailer could make “a reasonable estimate” from the applicants’ names. He noted, in any event, that the Commonwealth had delayed the commencement of the new gender reporting requirements until next year.
No inconsistency with Migration, Privacy legislation
Mr. Oliver said it was “difficult to see how it could ever be justified” for Woolworths to insist on the provision of birth certificates, passports and visas when first applicants are first seeking a position.
“Accepting there are approximately 48,000 jobs to be filled each year, with about 670,000 applicants applying for those positions, means there is a substantial amount of confidential information being imparted to Woolworths during the recruitment process,” the senior member said.
He acknowledged that the retailer had now taken “the sensible approach” of asking applicants to nominate the basis on which they have a right to work in Australia. “Then, if an interview is undertaken, the relevant documentation can be produced for sighting by a recruitment officer… This avoids the result that thousands of documents containing confidential information remain stored in Woolworths’ database, or I suppose ‘the cloud’,” he said.
Moreover, the Migration Act did not require an employer to seek proof, at the application stage, of an applicant’s right to work. Mr. Oliver rejected Woolworths’ argument that there was inconsistency between the state anti-discrimination legislation and the federal Migration Act and that the latter must therefore prevail.
Employers did not breach section 245AB by “simply considering applications“, nor by interviewing workers, the Mr. Oliver ruled. He said the section 124(3) defence in the state Act protected Woolworths from engaging in discriminatory conduct in complying with section 245AB, and a conflict did not therefore arise.
Similarly, as the federal Privacy Act contained a similar “reasonableness” defence, there was no inconsistency between it and the state anti-discrimination laws, the senior member said.
Compensation for embarrassment and humiliation
The Beerwah job applicant told the tribunal he was “sickened beyond belief” at Woolworths disregard for the anti-discrimination laws.
“I infer from this statement that he was embarrassed and humiliated in being compelled to provide the offending information before his application could progress. Because of this, he did not proceed with the application and therefore was not considered for the position,” senior member Oliver said.
He awarded the applicant $5,000, including a “notional amount” for the loss of a chance that he might have got the job if Woolworths had not engaged in the discriminatory conduct.
Employers should be prudent
Employers and recruiters should always question whether the information sought through their application process is strictly necessary to fill the role.
Employers should refrain from asking any questions in their job applications that could give rise to claims the information they are seeking might be used for discriminatory purposes.
Only include in the initial application forms the information that is strictly necessary in order to evaluate or make an assessment as to the person’s suitability for the role. If the person moves through to the next level of consideration, which might well be offering employment, then it might well be that other information can be acquired, for administrative purposes.
[Willmott -v– Woolworths Ltd [2014] QCAT 601 (11 November 2014)]
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Changes to Penalty Rates – more than 100 hearing days
The employer bid to change penalty rates is shaping as a massive case in the Fair Work Commission that will run until late next year, with almost 200 witnesses to be called over
The Fair Work Commission’s President, Justice Iain Ross, outlined the scale of the case, and set out the timetable for hearings by a specially-constituted full bench under its four-yearly review of modern awards.
Justice Ross said that common evidence on all awards in all industry sectors would be heard first, starting on about 20 July 2015.
Hearings on penalty rates in 4 hospitality awards –
- Amusement, Events and Recreation Award,
- Hospitality Industry (General) Award,
- Registered and Licensed Clubs Award, and
- Restaurant Industry Award
will start in late August.
The tribunal will then, in late September, turn to 5 retail awards –
- Dry Cleaning and Laundry Industry Award,
- Fast Food Industry Award,
- General Retail Industry Award,
- Hair and Beauty Industry Award, and
- Pharmacy Industry Award.
Justice Ross said that common evidence would be relevant to claims in all awards and industry sectors, and will generally be provided by an expert and might include government reports, statistics or social commentary.
He said award or industry-specific evidence will be presented during the hospitality and retail group stages,”Generally, no provision will be made for written evidence in reply and the parties are to rely on oral argument to test any evidence put. However, an expert witness may be permitted to submit short written responses to any claims that subsequently challenge their evidence.”
Employers seeking to amend the penalty rates in the hospitality and retail awards have to file joint draft variation determinations by 13 February 2015.
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Message to the hair and beauty industry from Judge – “it does not pay to underpay workers”
A long history of employee complaints and the need to send a strong message to the hair and beauty industry that “it does not pay to underpay workers” has led to a hairdressing chain being fined $70,000 for short-changing an apprentice more than $8,000.
Federal Circuit Court Justice Riley said significant penalties were required to deter Cuts Only The Original Barber Pty Ltd, part of the Cuts Only Group, and its 2 directors from continuing to settle underpayment complaints by paying sums of money employees were “prepared to accept“.
Justice Riley fined the company $50,160 and each of the directors $10,032, the top of the range agreed with the Fair Work Ombudsman.
The penalties included 80% of the maximum fine for failing to pay the apprentice the minimum hourly award rate, plus lower percentages for overtime, penalty rates and annual leave breaches.
Justice Riley said the employer and its associated companies had been the subject of 10 underpayment complaints to the Fair Work Ombudsman (or its predecessor) between 2006 and 2012, including a prior complaint by the apprentice at the centre of the hearing.
None of these complaints had been brought to court but were instead settled by the company paying either an agreed amount or, in 6 of the cases, the full amount claimed.
Her Honour said, “Clearly, there is a difference between a complaint and a finding of a court, and the prior history in this case does not rise above the level of complaint. However, the manner in which those complaints were resolved is reasonably indicative of a practical acceptance by the [companies] of wrongdoing.”
The employee involved in the hearing accepted a one-off payment of $2,000 after her father complained that the company had not adjusted her wages after she moved from a 1st to 2nd year apprentice. She then made a second complaint when the company did not pay her 3rd year wages when she reached that level.
While agreeing to cooperate with the Fair Work Ombudsman’s investigation and admit that the apprentice had been underpaid $8,625.71, Justice Riley said the company directors had also shown a lack of contrition by continuing to “persist in saying that they were misled… They have not acknowledged that it was incumbent upon them to ascertain the correct information.”
Her Honour was also not convinced by the directors’ assurances that their engagement of a book keeper meant a less likelihood of similar future breaches, describing this assessment as “overly optimistic”. “There was certainly no evidence before the court of who this book keeper is, or what he or she will be doing to ensure compliance by the first respondent with its employment law obligations.”
Justice Riley said the Fair Work Ombudsman evidence showed that of 456 hair and beauty industry-related complaints made to the Fair Work Infoline between 1 July 2013 and 31 March 2014, 57% were from people under 25 years of age, and 33% from apprentices or trainees.
She said while it was difficult to make comparisons because of a lack of evidence about overall employment numbers in the industry, “on any view, 456 complaints in 9 months is a lot… It is probably also fair to say, in accordance with common human experience, that there were probably a great many more people who experienced underpayments or other difficulties at work than actually went to the trouble of lodging a complaint,” she said.
Her Honour said that while the directors argued they should not be made scapegoats for non-compliance in the whole industry, “rightly or wrongly, general deterrence is a well-established corner stone of both civil and criminal penalties. It seems to me that there is a considerable need in this case for general deterrence”.
She said it was important to send a message to both the directors and the wider industry that “failure to underpay workers their correct entitlements is not economic” and penalties should be set at a level that makes clear that it “does not pay to underpay workers. Employers should be discouraged from calculating that they will be able to get away with underpayments often enough for it to be worth their while financially.”
Fair Work Ombudsman -v– Cuts Only The Original Barber Pty Ltd & Ors [2014] FCCA 2381 (22 October 2014)
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Recent decisions of Federal Court Circuit re underpayment claims from employees – liability of the directors
The following two cases are recent decisions of the Federal Court Circuit in relation to underpayment claims from employees. You may find these interesting, especially with respect to the liability of the directors.
Scotto -v– Scala Bros Pty Ltd & Anor [2014] FCCA 2374 (17 October 2014)
The Federal Circuit Court has found that a sole director of a delicatessen and cafe accessorily liable in an underpayment case spanning a period of more than 30 years and over 4 eras of industrial law.
The assistant, Mr. Scotto, employed by Scala Bros at its combined delicatessen and café at Sydney’s Flemington Markets from 1981 until 2010, successfully argued that, throughout this period, he was not paid the required minimum wages, allowances or overtime and that the company failed to make superannuation contributions on his behalf or provide him with payslips.
He also argued before Justice Cameron that Scala Bros failed to pay his accrued annual and long service leave when his employment ended.
His Honour said that while some of the employee’s claims could not be pursued due to time limitations within some legislation (limiting to some claims to 6 years), he was able to determine that Scala Bros had breached the Fair Work Act, Workplace Relations Act and the Industrial Relations Act 1991 (NSW) (however, Mr. Scotto did not press any claims under the NSW Industrial Relations Act).
His Honour also accepted the employee’s argument that Scala Bros’ sole director knowingly contravened the federal statutes after becoming the delicatessen’s only director on the death of her father (who was also the step grandfather of the employee) in June 2009.
Justice Cameron said, she could not be found to have been accessorily liable for the period when her father ran the company, as she then had “no particular responsibility for, or duties in, Scala Bros, other than to sign company documents as requested“.
Judge Cameron will rule on compensation, penalties and costs at a later date.
Fair Work Ombudsman -v– Pty Ltd & Anor [2014] FCCA 2222 (24 October 2014)
The Federal Circuit Court has also found a company director accessorily liable after he failed to act on a Court Order that his company repay an underpaid employee on the basis that “he personally disagreed, and still does, with the determinations” of the Court.
Justice Hartnett granted the Fair Work Ombudsman’s application for a declaration that the director (who is also secretary and shareholder) breached the Fair Work Act by failing to ensure that an employee was repaid $4,222.05 by the middle of 2013 and subsequently.
Her Honour, who will decide on penalties and costs at a later date, said the director was directly responsible for the failure to pay the employee his correct entitlements and for the company’s subsequent failure to abide by the resulting compliance notice.
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Redundancy and Other Acceptable Alternative Employment – Is Redundancy Payable?
A recent case before the Fair Work Commission dealt with the issue of redundancy and suitable alternative employment.
In Szanto v ISS Facility Services Pty Ltd the Commission clarified the application of sections 119 and 120 of the Fair Work Act 2009 (the Act) in deciding whether a redundancy payment must be made.
The Act
Section 119 of the Act provides that an employee is entitled to be paid redundancy pay if the employee’s employment is terminated either:
• at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone (except where this is due to the ordinary and customary turnover of labour); or
• because of the insolvency or bankruptcy of the employer.
Any genuine redundancy, pursuant to the Act, must be paid in accordance with the employee’s contract, employer redundancy policy, the NES or applicable industrial award /agreement entitlement.
Under section 120 of the Act an employer is entitled to vary the sum of a redundancy payment if the employee has been made redundant and the employer has obtained other acceptable employment for the employee, or cannot pay the amount.
Section 120(2) allows the employer to apply to the Commission for a determination of a reduction in severance amount in circumstances where suitable alternative employment has been found for the employee.
Szanto v ISS Facility Services Pty Ltd
Mr Szanto worked for over 11 years as a Security Officer at ISS Facility Services (ISS) and more recently in the position as concierge of Telstra House. Due to the loss of a contract, ISS had to reassign Mr Szanto’s to another role at a new site which involved a mix of security guard duties and shift work.
Mr Szanto refused the offer of alternative employment insisting that his role had been made redundant and that the new role was not suitable alternative employment due to his personal situation and the fact there was a change in his working hours. Mr Szanto demanded ISS make payment of his redundancy.
In contrast, ISS maintained that the new role was suitable alternative employment and refused to pay Mr Szanto’s redundancy. ISS terminated Mr Szanto after he failed to attend his rostered shift at the new site and Mr Szanto applied to the Commission to redress the non-payment of redundancy.
At the Commission, Mr Szanto submitted that ISS owed him a redundancy payment as his position at Telstra House had been made redundant and that the offer of alternative employment was unsatisfactory.
ISS submitted that Mr Szanto was not made redundant as his role was not linked to a specific site or location.
Decision
In deciding whether Mr Szanto was entitled to a redundancy payment the Commission considered the following:
• was his role made redundant?; and
• was the offer of a new position suitable alternative employment?The Commission concluded that as Mr Szanto was employed as a general security guard and had been placed as the Telstra House concierge, when ISS lost the contract for Telstra House and no longer required the role to be performed by anyone, Mr Szanto’s position was made redundant and he was entitled to redundancy pay.
However, when considering the question of whether ISS had offered him suitable alternative employment, Commissioner Cambridge stated that it is simply not a matter of choice for the employee to either accept or reject alternative employment, but an objective test of comparison between the terms and conditions that applied to the previous job that became redundant and those applicable to the new alternative employment.
In comparing Mr Szanto’s job at Telstra House with that of the alternative employment offered by ISS, the Commission found that although there were significant differences in hours of work and tasks to be performed the role clearly fell within the scope of the definition of security guards duties. The updated and different terms of the new site were comprehended as being within the scope of the particular employment circumstances and the employer had offered suitable alternative employment to Mr Szanto. Therefore, ISS was under no obligation to make payment of any redundancy payment because the new role fell within the scope of his duties as a security guard.
In Sum
Employers and employees should take note of the Szanto case as it supports the notion that just because an employer (or an employee for that matter) believes a similar role is available in another location to an employee who’s position has been made redundant, it will not guarantee that the Commission view it as suitable alternative employment. However, so long as employers offer a substantially similar role, they may apply to the Commission to have the total sum of the severance payment they must pay assessed.
Clearly where the position offered is in no way suitable alternative employment then full redundancy will be required to be paid to the employee.
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Implied Term of Mutual Trust & Confidence – Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014)
The High Court has decisively determined that the Australian common law does not imply a term of mutual trust and confidence into employment contracts.
The High Court’s decision overturns the previous decision of the majority of the Full Federal Court, which had found that the Commonwealth Bank was in breach of the implied term when it failed to take positive steps to redeploy Mr Barker, an employee who had been made redundant.
The Facts:
Mr Barker was employed in the role of Executive Manager with the Commonwealth Bank of Australia. In March 2009, the Bank wrote to Mr Barker, notifying him that his position was to be made redundant with immediate effect.
Mr Barker was advised in writing that his employment would cease one month later on 2 April 2009, unless he was successfully redeployed prior to then.
In accordance with the Bank’s policy, the letter said:
“It is the Bank’s preference to redeploy you to a suitable position within the Bank and we will explore, in consultation with you, appropriate options.”
The Bank’s HR department made a number of attempts to contact Mr Barker about redeployment opportunities through his work email and mobile phone. These attempts were unsuccessful, as, by that stage, Mr Barker no longer had access to his work email or mobile phone. By the time this mistake was realised, Mr Barker had only one week left in his employment.
The Bank elected to extend Mr Barker’s employment by one week, until 9 April 2009. However, Mr Barker was not redeployed and his employment ended on that date.
Mr Barker sought, amongst other things, compensation for the damage suffered as a result of the Bank’s failure to give proper effect to its Redeployment Policy.
Full Federal Court:
The majority of the Full Federal Court confirmed the original decision of the trial judge. It held that by failing to take positive steps to redeploy Mr Barker, the Bank had breached the term of mutual trust and confidence which was implied into the employment contract. As a result of the Bank’s breach of this implied term, Mr Barker was awarded $317,000 in damages.
Appeal:
The Bank appealed this decision in the High Court of Australia.
The central question on appeal was whether under the common law of Australia there is a term of mutual trust and confidence to be implied by law in all employment contracts.The High Court:
All five High Court Justices who heard the appeal rejected the existence of such an implied term.
The judges included, Chief Justice French and Justices Bell, Keane, Keifel and Gageler.
Chief Justice French and Justices Bell and Keane said their rejection of the implied term “should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts”. Justice Keifel said the question had not been resolved in Australia.
What Does This Mean for Employers?
The High Court’s finding that a duty of mutual trust and confidence is not implied under Australian common law means that employers do not owe employees a duty of trust and confidence unless this is expressly provided for in the employment contract, or where the particular circumstances of the employment relationship give rise to such an implication.
Until now, many employment law practitioners have proceeded on the assumption that the implied term exists in Australian law, as it does in the UK, and the High Court’s judgment will no doubt impact on many cases currently before the courts.
Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014)
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Penalty Rate form part of the Modern Award Review
Penalty Rate form part of the Modern Award Review
The Fair Work Commission full bench is conducting the four-year review of modern awards, and shall consider any possible changes to penalty rates towards the end of the process.
The tribunal, in a statement this week, said that awards where penalty rates might be a “contested issue” have been allocated to the fourth group to be reviewed.
Tribunal President Iain Ross, Vice President Adam Hatcher, Senior Deputy Presidents Jennifer Acton and Jonathan Hamberger and Commissioner Michelle Bissett advised was necessary so to “allow time for the interested parties to gather evidence to support their claims and to ensure that any phasing in of transitional rates or loadings will be complete“.
Despite some parties pushing for penalty rates to be included in the common issues stage now underway, President Ross ruled in March that penalty rates did not meet the definition of a common issue.
Justice Ross announced that the 6 common issues to be dealt with separately from the individual award reviews were annual leave; award flexibility/facilitative provisions; casual employment; part-time employment; public holidays; and transitional/sun-setting provisions relating to accident pay, redundancy and district allowances.
The tribunal expanded the list to include apprentice conditions following ACTU submissions in May.
The full bench also announced this week that 2 full benches will be convened to look at 6 group one awards that contain substantial, contested issues :
- the Meat Industry Award 2010;
- Security Services Award 2010;
- Stevedoring Industry Award 2010;
- Textile, Clothing, Footwear and Associated Industries Award 2010;
- Timber Industry Award 2010; and
- Vehicle Manufacturing, Repair, Services and Retail Award 2010.
Common issues
After a conciliation conference before Senior Deputy President Ian Watson this week, the full bench will look at annual leave common issues on August 20 and 21.
In June, employer organisations called for clauses to be inserted in modern awards relating to cashing out leave; excessive accruals; shutdowns; advanced access and payment of annual leave, while the ACTU asked the Commission to insert a clause clarifying the inclusion in termination payments of what employees would have received had they taken the leave they were owed.
While further directions will be issued soon on transitional/sun-setting provision common issues relating to accident pay, redundancy and district allowances, the Commission has called for submissions by August 29 from parties concerned that some transitional issues due to cease on December 31 need to be dealt with more urgently.
An initial conference will be held on September 29 to discuss part-time employment and casual employment common issues, with hearings in the first half of 2015.
The bench said that public holidays and award flexibility/facilitative provisions common issues will also commence in early 2015, with any changes arising from the Fair Work Amendment Bill 2014 to be addressed then.
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Australian Privacy Principles (APPs) Guidelines APP1 and APP5
Since the introduction of the new Australian Privacy Principles (APPs), there has been speculation as to which sector might be the first to have their privacy practices assessed by the Privacy Commissioner. Industries such as sport, health, and the banking industry were each considered likely suspects for a test-case of the new requirements.
The Office of the Australian Information Commissioner (OAIC) answered that question when it published a report of its assessment into the privacy practices of a health services provider a few months ago.
The report provides a helpful guide for organisations in a wide variety of industries to understand their privacy requirements, and how the OAIC will look to apply the new Australian Privacy Principles. The report’s recommendations provide a useful yardstick for organisations to measure when reviewing their own privacy practices.
Calvary Hospital, a private sector organisation which provides health, aged and community care, was considered an ideal candidate for assessment by the OAIC and the Department of Health. In particular, the assessment was designed to review Calvary’s privacy policies to ensure compliance with the requirements of APP 1 and APP 5.
APP 1 requires organisations to handle personal information in an open and transparent manner.
APP 5 sets out matters that an organisation has to inform individuals about at the time of, or as soon as practicable after, the collection of their personal information.
APP1 and APP5 are two principles relevant to all organisations that handle personal information.
The OAIC has released a set of guidelines for organisations to consider when drafting their privacy policies. In assessing Calvary, the OAIC evaluated Calvary’s policies, including draft collection notices, privacy brochures, and online privacy resources available on its website. OAIC used these guidelines as a measure.
The Message for Business :
The message for business is that those organisations who adopt practices in line with the OAIC guidelines will, for the most part, be compliant with their privacy requirements.
The tricky part is that the OAIC has indicated that simply relying on the guidelines alone may not ensure total compliance.
All business are different, and organisations need to apply the guidelines to their specific situation.
Detailed Assistance
APP1 compliance
APP1 requires that organisations handle privacy information in an open and transparent manner.Generally, this requirement may be complied with by adopting and implementing a privacy policy. The guidelines list a number of matters that should be included in a compliant privacy policy. This includes information on:
- whether the organisation’s policy is easy to understand;
- whether it is specific and tailored to its business;
- whether it covers the types of information collected; and
- how the information is held and disclosed.
The OAIC has stressed however, that the checklist alone will not ensure compliance, and that there are other mandatory matters that must be included in an organisation’s privacy policy; such as:
- the type of personal information collected and held by the organisation;
- how the organisation collects and holds personal information;
- the purposes for which personal information is collected, held, used and disclosed;
- how an individual may access their personal information and seek its correction;
- how an individual may complain if the entity breaches privacy requirements; and
- whether the entity is likely to disclose personal information to overseas recipients.
APP1: Lessons Learnt from Calvary Experience
As to lessons learnt from the OAIC’s review into Calvary’s compliance with APP1, the following tips should be noted:- Where an organisation is part of a group or structure, the policy must indicate whether it applies to the whole group, or individual businesses within the group. For example, if there are differences in the way in which different parts of the group handle personal information, separate policies should be used. Where a central policy is used, the organisation needs to be mindful of how the APP’s apply to each business in the group, and other jurisdictional or legislative issues;
- The OAIC has expressed concern about the use of ‘bundled’ consent, particularly in relation to direct marketing. Bundled consent is where consent for direct marketing is combined with other consent relating to the personal information. Where a business bundles consent, a risk is created that the consent is not ‘voluntary’. If information obtained via a bundled consent is going to be used for direct marketing purposes, it should be expressly stated in the privacy policy.
- The privacy policy should be cross-referenced with other organisational documents, pamphlets or brochures, either hard-copy or electronic, regarding privacy;
- The OAIC is keen to ensure that privacy policies are easily accessible to the public, and a link at the bottom of a website home page is a commonly used and acceptable practice;
- Organisations should indicate whether or not personal information will be disclosed overseas. If no overseas disclosures will be made, it should be specified that is the case.
- Where an organisation collects a variety of information of which some is collected under legislation, the organisation’s privacy policy should indicate which information is collected under legislation, and which is not; and
- Under APP 2, an organisation should have processes in place to deal with individuals on an anonymous basis, unless it is impractical to do so. The OAIC prefers organisations to specify in their privacy policy those situations where anonymous collection of information would be impractical, as much as possible.
APP 5 compliance
APP5 requires an organisation that collects personal information about an individual to take reasonable steps either to notify the individual of certain matters, or to ensure the individual is aware of those matters, either at the time of collection or as soon as practicable thereafter.The OAIC has indicated that “reasonable steps” is tied to the sensitivity of the personal information.
In short, the more sensitive the information, the more onerous the steps will need to be on the organisation to provide notification of the matters in APP5. So, for organisations in the health services industry, for instance, it is possible that much of the information they collect will be considered ‘sensitive information.’
APP5: Lessons Learnt from Calvary Experience
As to lessons learnt from the OAIC’s review into Calvary’s compliance with APP5, the following tips should be noted:- Organisations in a group structure must clearly and consistently specify which business is collecting the personal information;
- Organisations should identify the differences between how the personal information collected will be used, and how it may be disclosed;
- Ideally, methods of contact (phone, email) should be fixed, such that they will not change with staff turnover;
- If information is to be disclosed overseas, this must be indicated as well as how and why such disclosures occur;
- The full privacy policy should be referenced in the collection notice (if hard copy), or linked (if electronic).
Although the APPs represent a ‘principles-based approach’ to privacy regulation in Australia, the clear indication from the OAIC is that businesses are obliged to comply with certain mandatory matters. Should things go awry, organisations that can demonstrate OAIC requirements have been implemented into their business practices will be viewed more favourably than those companies that haven’t yet turned their mind to privacy matters.
The OAIC has not yet flexed its muscles and tested its expanded powers to ensure privacy compliance in most industries, and certainly no business wants to be that test case.
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Superannuation Guarantee rate increases to 9.5%,
From 1 July 2014, the Superannuation Guarantee rate increases to 9.5%, from the 9.25% that currently applies.
Superannuation Guarantee (SG) is the official term for compulsory superannuation contributions made by employers on behalf of their employees. An employer, regardless of whether they are a small or large business, must contribute the equivalent of 9.5% of an employee’s salary for the 2014/15 year, and 9.25% until 30 June 2014.
In the 2014 Federal Budget, the planned increase in Superannuation Guarantee contributions of 9.25% to 12% overt the next 5 years has been amended by the Liberal government, stretching the timeline for implementation to 8 years.
Effective 1 July 2014, the Superannuation Guarantee will increase to 9.5%, and will eventually rise to 12% by July 2022.
The amended increases are to be as follows:
Financial year SGC rate Current year 2012 – 2013 9.00% 2013 – 2014 9.25% 2014 – 2015 9.50% 2015 – 2016 9.50% 2016 – 2017 9.50% 2017 – 2018 9.50% 2018 – 2019 10.00% 2019 – 2020 10.50% 2020 – 2021 11.00% 2021 – 2022 11.50% 2022 – 2023 12.00%
