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Employer jury duty responsibilities

When an employee gets summoned for jury duty, it can put added stress on the workplace with other staff having to take on extra work. As an employer, you’ll likely want to avoid the inconvenience of releasing an employee for jury duty, however, this may prove to be difficult.

Employers must comply with the legal responsibilities outlined when dealing with an employee who has been summoned for jury duty. Employers who don’t adhere to these responsibilities can face penalties of up to $50,000.

Can you refuse to release an employee for jury duty?
As an employer, you are required to release any employee for jury duty if they have been summoned. It is an offence to act prejudicial to an employee if they have been summoned for jury duty, including threatening their employment or wages.

If your business will face significant hardship with an employee at jury service, then you may be able to request for the employee to be excused. This will require an explanation of the impact jury service will have on your business. A request must be communicated before empanelment (when the jurors have been selected), and making a request does not guarantee that your employee will be excused.

What are the employee’s rights?
When your employee is away on jury duty, this cannot be counted as any other leave other than jury duty leave. An employee’s annual leave and sick leave will be unaffected.

Employers also cannot dismiss their employees for attending jury duty. Most Australian states restrict employers from terminating an employee or detrimentally changing or threatening employment terms because an employee is on jury duty. NSW, for example, considers this a criminal offence where a company can be penalised up to $22,000 and an individual employer can be penalised $5,500 or face 12 months of imprisonment.

Employers also cannot ask an employee to work on a day they are serving as a juror in court or ask them to work additional hours to make up for the time they missed whilst on jury duty.

When an employee is serving jury duty, employers generally must pay permanent employees their usual wages for the first 10 days of service, or pay what is often referred to as ‘make-up pay’. This is the difference between the jury service payment and the employee’s base rate for the ordinary hours they would have worked.

Proposed law to restrict cash payments

New restrictions on cash transactions may be coming into effect after the government released the draft Currency (Restrictions of the Use of Cash) Bill 2019, which proposed to make it an offence to make or accept cash payments of $10,000 or more.

The bill proposes that people using cash above the $10,000 limit could face a two-year jail sentence and fines up to $25,200. There are, however, transactions that are to be exempt from the cash payment limit, including:

• Payments related to personal or private transactions, excluding real property transactions.
• Payments that exceed the cash payment limit due to the payment also including an amount in digital currency.
• Payments that only exceed the cash limit due to the payment being part of a transaction involving cash in transit providers, where the payment results in collecting, holding or delivering cash.
• Payments, where there are no reasonably available non-cash payment methods and the inability to use a non-cash payment method was not a choice by either party involved in the transaction.

The bill was originally set to be enacted on 1 January 2020, however, after a flood of community objections, the Senate Economics Legislation Committee has agreed to hold a public hearing on 30 January 2020. The committee has opened an inquiry accepting concerns from Australians and plans to report back by 7 February 2020.

When is unpaid work legal?

There are circumstances where unpaid work is okay, however, legal unpaid work situations are limited, and in most circumstances, workers should be paid. Employers who are not meeting the Fair Work Act guidelines can be penalised for breaking the law by paying workers’ compensation and fines up to $63,000 for corporations and $12,600 for individuals.

If no employment relationship exists between the worker and employer, then the worker does not legally have to be paid. An employment relationship can involve:

• Intention to perform work for the employer under the arrangement.
• Helping with the ordinary operation of the business.
• Working for a long period of time.
• An expectation of payment.
• The employer receiving the main benefit of the arrangement.

Unpaid work is legal if the work is to provide someone with experience in that particular job/industry, to provide training and skills as part of formal programs (e.g. university placement), to test someone’s job skills, or if it is volunteer work for a non-for-profit organisation. These include:

Vocational placements:
A vocational placement is formal work experience that is part of an educational or training course. The aim of vocational placements is to give students important skills to help them transition smoothly into the workforce through industry experience. The placement must be approved through the legal authorisation of the institution delivering the course; programs offered at universities, TAFE and schools will meet this requirement. If the work meets the definition of a vocational placement under the Fair Work Act, then the position can be lawfully unpaid.

Internships and work experience:
An internship or work experience arrangement is a type of on-the-job training, where someone works to gain experience in a particular occupation or industry. This type of work can be legally unpaid if it is a vocational placement, or if there is no employment relationship.

Trials and skill demonstrations:
This is when someone is asked to perform work or undertake a trial in order to be evaluated for a job position. This work trial is used to determine someone’s suitability for the job on offer. It can be unpaid if:

• It is necessary to evaluate someone’s suitability for the job.
• The trial is only for as long as necessary to demonstrate the skills required for the job.
• The worker is supervised by the potential employer or other appropriate staff for the entire duration of the trial.

Volunteering:
Work is counted as volunteering when its main purpose is to benefit others, such as a church, sporting club, government school, charity or community organisation. A genuine volunteering arrangement occurs when:

• The parties did not intend to create an employment relationship.
• The volunteer is not obligated to attend the workplace or perform work.
• The volunteer doesn’t expect to be paid for their work.

Annual leave and pay over the holidays

As the holiday season approaches, so does the shutdown period for many businesses. This is the time of year when it is easier to take off work due to many businesses slowing down, however, there are questions that surround this period, namely if you will get paid or not.

When calculating leave over the Christmas and New Year period, for permanent staff that would typically work on the public holidays, those days must count as a public holiday rather than a day of annual leave. Regular employee rights apply to Christmas Day, Boxing Day and New Years Day public holidays. If you work in an industry that may require staff to work these days, normal requirements and relevant penalty rates are in effect. Employees can choose not to work on a public holiday on reasonable grounds such as how much notice the employee received or whether employers expected them to work on a public holiday. Employers do not have an automatic right to terminate an employee if they refuse to work on a public holiday.

Employees may be instructed to take their annual leave for the remaining days during the shutdown period. Employers can require this if the relevant award allows it or, if the industry’s award does not have a stance on compulsory annual leave over the holiday period, employers can still require employees to take annual leave if the business typically shuts down over Christmas. You cannot compel your employees to take their leave each year. However, an employee cannot unreasonably refuse your request to take annual leave, if they have accumulated it over a long period.

Employees that have not accrued enough leave to cover the holiday period can arrange with their employers to take leave in advance or unpaid. Workers who do not agree to this, however, cannot be forced by an employer to take unpaid leave unless the industry award allows them to. If not, employers will have to pay workers at a normal rate for the period of the shutdown.

Being aware of copyright infringement  

When sourcing content for your business, it can be tricky to determine what materials you can use without putting your business at risk of copyright infringement. With the internet providing a range of easily accessible sources, it can be easy to forget about the legalities of using material you did not produce yourself.

In Australia, the Copyright Act 1968 (Cth) covers all sorts of sources including text, videos, images, audio, icons, artwork, maps, and computing programs. It protects the rights of an owner to profit from their content, prevents unauthorised use of their material and enables them to recover damages if their material has been used without permission.

Copyright protection is automatically applied, in Australia, to written and artistic works from the time it was originally created and generally exists from the publication date until 70 years after the owner’s death.

The owner’s permission must be obtained before using, reproducing, or disseminating copyrighted material. Unauthorised use of this material can result in penalties or remedies for the damage caused. This could include:

• Financial penalties of up to $585 000 for corporations and $117 000 for individuals.
• Imprisonment of up to 5 years for individuals.
• Awarding damages for any losses suffered.
• Accounting for any profits made.
• Injunctions preventing any further use of the material.

It is useful to note that copyright does not protect ideas, but the way in which they are expressed. This means that you can work with the concepts of someone else’s material for your own individual creation, so long as you do not copy it outright.

Defamation law in Australia

Defamation is a statement published or spoken that negatively impacts the reputation of a person. Individuals or corporations that employ less than 10 people, not related to another corporation, can sue another person in court for defamation.

As there is no constitutional right to free speech, defamation in Australia is harsher and more difficult to avoid than in other countries. Each state and territory has slightly different rules regarding defamation, with Tasmania being the only state in which the estate of a deceased person can sue for defamation. Usually handled as a civil case solved financially, defamation is rarely treated as a criminal issue with jail time. The cap on general damages allowed to be received is currently $389,000, although aggravated damages and costs can be awarded on top of the cap amount.

There are three areas of defamation that can be used in a case:

• Imputation: The act of accusing, defamation through an imputation can be a statement or a visual. Imputation has to injure the defamed’s ability to make money or induce a loss of work as well as affect other people’s opinions of them.

• Identification: Identification is specific to a person or group of people, usually by adding personal details such as their place of work or physical description. There is no need for the defamed to outrightly be named if there are enough details to reasonably identify them.

• Publication: Defamatory material is made known to a third party other than the person being defamed. The publication can be oral, written or in picture form, where every time the material is viewed or heard, a separate publication occurs.

A deed or an agreement?

The decision on whether to use a deed or an agreement can make a significant difference to the success of a transaction or project. Both document types are used to prepare contractual arrangements, with each having its own benefits. Understanding the differences and making an informed decision can significantly impact the success of a transaction.

An agreement (or contract) must meet the following pre-conditions to be valid and enforceable:

• Each party must have the intention to be legally bound.
• There must be an offer from one party that is accepted by the other party.
• Consideration must flow between the parties.

For a deed to be considered valid and enforceable, it must:

• Be signed, in writing and witnessed by a person who is not a party to the deed.
• Use wording that indicates that the document is a deed i.e. ‘this deed’ or ‘executed as a deed’ and ‘signed, sealed and delivered’ should be used in the execution clauses. The wording in the document must be consistent.
• Be provided to the other party or parties.
• Having supporting evidence that the parties intended the document to be a deed and are bound by it.

The main difference between an agreement and a deed is that there is no requirement for consideration to make a deed binding. This is because of the idea that a deed is intended, by the executing party, to be a solemn indication to others that they truly mean to do what they are planning to do or are doing. A deed is considered to be binding on a party when they have signed, sealed and delivered the deed to the other parties, even if the other parties have not yet executed the deed document.

Legal issues raised by social media

The rise of social media creates a number of legal issues that business owners must be aware of when utilising platforms such as Facebook, Instagram and LinkedIn. Businesses should consider a proactive approach in implementing both preventative and reactive ways of mitigating potential risks.

Confidentiality:
Legal issues arise when confidential information is disclosed on social media. In accordance with privacy regulation, individuals must be notified when personal information is being collected and the disclosure of such information is prohibited unless it is for certain purposes. To mitigate the risk of an unwanted privacy breach, you should constantly revisit the strength of your online security by updating software, creating strong passwords, and backing up data.

Misleading conduct:
Under the Australian Consumer Law (ACL), an individual acting in trade or commerce must not make any false or misleading statements about the goods or services that they are providing. Claims made on social media, as well as any comparisons with competitors, must be substantiated. The Australian Competition and Consumer Commission (ACCC) provides guidance to businesses to ensure their social media pages are not breaching the misleading conduct provisions of the ACL.

Defamation:
Defamation occurs where content is published or broadcast that injures a third party’s reputation. Defamation on social media platforms can have far-reaching implications, as a slanderous comment can be distributed online instantaneously to numerous jurisdictions, causing severe damage to a person’s reputation. Social media creates a further risk for defamation, as it could even occur by ‘liking’ or ‘sharing’ a defamatory comment made by someone else.

The legal obligations of marketing

Businesses must be mindful of the relevant regulations when setting prices and advertising products or services, to ensure they aren’t misleading their customers. Like many other areas of business, marketing efforts are regulated and need to comply with the legal requirements.

Advertising:
When promoting products or services, businesses need to ensure that any branding, statement, quote or other representation is not false or misleading. There are some tactics businesses use to try to advertise products that make them more appealing but don’t necessarily give the full picture, such as:

• Component pricing; when the price of a product or service is advertised or displayed in separate parts. When advertising using component pricing, companies must also provide the full price inclusive of additional costs in a prominent way.
• Bait advertising; where a product is advertised at a certain price without a reasonable supply. Bait advertising is illegal if a business sells the product knowing that they cannot meet expected demand.

Email marketing:
When using an email marketing service for your business, there are specific Australian email marketing laws to comply with. The Spam Act 2003 governs email marketing and messages sent via SMS, MMS and instant message in Australia. The Act covers three main areas:

• Consent; you must have consent from the recipient in order to send a commercial electronic message that offers, advertises or promotes the supply of goods or services. Consent can either be expressed (the recipient has deliberately opted in to receive emails) or inferred consent (refers to the relationship between the sender and the recipient, e.g. subscriptions).
• Identification; the sender of the communication must identify themselves and provide accurate contact information that is valid for at least 30 days after the message is sent.
• Unsubscribe options; there must be an unsubscribe option for emails or an option to opt out of other electronic messages

Avoiding unfair business practices under Australian Consumer Law

Under Australian Consumer Law, there are a number of sales practices that are illegal for businesses to engage in when dealing with their customers. Unfair business practices encompass a wide range of activities, such as misleading or false statements and deceptive conduct.

Here are some examples of illegal activities that you should be aware of as a business owner in order to avoid harsh penalties.

False or misleading statements:
It is unlawful for a business to make false or misleading representations about their goods or services that they are supplying, offering to supply, or promoting. For example, businesses may not make false or misleading statements about the standard or quality of goods or services, testimonials from other customers about the goods or services, or their price. While it will depend on the circumstances of each particular case, the maximum fine for this offence is $220,000 for individuals and $1.1 million for a body corporate.

Accepting payment without intending to supply:
Payment cannot be accepted for goods and services if businesses do not intend to supply, they intend to supply materially different goods or services, or if they are aware that they will not be able to supply the goods or services in a timely manner. However, this is not intended to affect businesses who demonstrate a genuine attempt to meet supply agreements. For example, a business may avoid prosecution if the failure to supply was due to something beyond its control.