Tips and Trips December 2018

Work related social functions, in particular end of year functions, are a good way to recognise and celebrate achievements and provide a setting for people to enjoy some social time together. In most cases, these events are enjoyable and allow excellent opportunity to encourage and build a team to be more cohesive. In some cases, unfortunately, these events can become a time of unsatisfactory behaviours.

In this Tips and Trips, we focus on how to set standards and encourage the desired behaviour at a workplace event designed to acknowledge and celebrate achievements of a team or whole workforce in carrying out the organisation’s goals.

In addition, we provide information related to managing a business close down to ensure compliance with relevant employment arrangements for organisations who choose to shut their business over the Christmas and New Year period. You will also find a link to the Australian public holidays in December and January later in this Tips and Trips.

Work related social functions

What is my role as a leader at work related social functions?

As business owners and managers, we make a choice to accept responsibility of running an organisation and hence managing a team. Workplace related social events can be high risk environments as sometimes owners and managers become part of the team and behave as a team member rather than a leader and let go of their sense of responsibility.

It is the responsibility of a leader or manager to safeguard the business and the team by setting and maintaining behaviour standards whilst role modelling responsible leadership and professional management.

What are my responsibilities and duty of care?

Christmas parties and other social functions which originate, or are sponsored by the employer, are deemed work related functions and the following examples of legislation will apply to these events however is not limited to:

• Occupational Safety and Health legislation

• Anti-discrimination legislation, including provision for dealing with sexual and racial harassment

• Criminal code, including assault either of a physical or verbal nature

As with the normal workplace, the employer has a responsibility to take reasonable steps to ensure team member safety and health and to provide an environment free from harassment and discrimination.

Certain inappropriate behaviour at work functions, much of which can be attributed to the "good cheer" which often accompanies these events, can lead to employers being held vicariously liable. Such behaviour includes things like unwelcome touching and kissing, derogatory humour in Christmas skits, inappropriate gifts and "party tricks".

It also needs to be considered, where a business leader or manager chooses to freely indulge with their team members in a far less controlled way, the ability of the business leader to retain credibility, both short and long term, and the ability to act with authority, when required, is eroded substantially.

Some quick tips for mitigating risk around my workplace function:

1. Establish guidelines of behaviour and communicate them to your team, including your managers, well beforehand. If you are not sure about setting standards, seek advice in doing so.

2. Set a clear understanding that this is a workplace event and establish a clear start and end time.

3. Attend the event and role model the expected behaviour – you are reinforcing the standards previously advised to your people.

4. Be prepared to act and manage unacceptable behaviours – regrettably, you may need to take action when people deviate from your advised standards.

5. Be there the whole time and close the event at the time you advised – it allows you and others to attempt to distance yourself from any after-parties that are not directly company sponsored and concludes the ‘workplace’ event.

What are the courts saying about inappropriate behaviour at work sponsored functions?

Vicarious liability, is the key issue that employers face. Vicarious Liability is the employer’s responsibility for the actions of their employees in work-related circumstance.

Here are two examples of cases:

• a claim for negligence brought against an employer in the Supreme Court by an employee who was punched in the head by an attendee of another party on the same boat while on an office Christmas cruise.

• an employer found to share liability even after the actual company event for its employees’ behaviour. A court ordered an employer to contribute to compensation of over $300,000 for sexual harassment which took place while two employees were staying in employer-funded accommodation.

Annual close-down of businesses

What should I know if I want to ‘close down’ my business for brief period?

Businesses that close down over the Christmas period and require team members to take their annual leave over this time must comply with potentially complex rules if they are to avoid contravening the Fair Work Act 2009 (Cth), a modern award or an enterprise agreement.

As business owners and managers, it is critical you are aware of:

• the awards or enterprise agreements covering your team members, if any;

• how these awards or agreements deal with close down and annual leave, if anything; and

• the requirements of the Fair Work Act when it comes to directing team members to take their annual leave.

If your team members are covered by a modern award or enterprise agreement, it is likely that it will contain provisions concerning annual close down and directing team members to take annual leave. Most modern awards contain close down provisions.

How do I handle a close down if my team members do not have sufficient accrued annual leave?

Modern awards and enterprise agreements usually include rules to cover the situation where a team member does not have enough accrued annual leave to cover the close down period. These usually provide that team members may be required to take unpaid leave for part of the shutdown period, or to take paid annual leave in advance of accruing it.

Where an award or agreement does not deal with annual close down or if you have not included this in an employment contract, you can attempt to reach agreement with individual team members that they take unpaid leave or annual leave in advance.

National gazetted public holidays 2018 / 2019

For a list of nationally gazetted public holidays please visit: https://www.australia.gov.au/about-australia/special-dates-and-events/public-holidays

Needing more help or assistance?

If you would like assistance with managing team member issues associated with unsatisfactory performance or unacceptable behaviour or how to handle an annual close down of your business please contact our team of advisors at AB Phillips, Monday to Friday between 9:00 am and 5:00 pm AEST by phone on 1300 208 828 or by email: advice@abphillips.com.au

Please note that the above information is provided as comment and should not be relied on as a substitute for detailed professional advice from AB Phillips or professional legal or financial advice on any particular matter. Where you would like additional information and support about the content in this document please contact AB Phillips.