How to be legal, and ethical, when overseeing a redundancy

How to be legal, and ethical, when overseeing a redundancy

David Sharrock / Thursday, August 22, 2019

When it comes to making an employee redundant, there are lots of traps.

For the employer, whenever redundancy is considered, it pays to be very careful indeed about proper reason, good process and appropriate payment.

Proper reason

When considering making an employee redundant, an employer should determine that the position itself no longer needs to be filled by anyone (or the employer has become bankrupt or insolvent, compelling redundancies).

Commonly in the former instance, redundancy arises with new technology, a downturn in business, the closure of a business, relocation of premises, or with restructure or organisational changes from a sale of business, merger or takeover. These are the usual triggers for a genuine redundancy.

With a genuine redundancy, an employer can distribute the work differently by having a smaller number of team members take over the work of the employee who is to be made redundant. Contracting the work out to an independent contractor or upgrading the role to require qualifications, albeit, with similar duties, both involve a genuine redundancy.

Naturally, it all depends on the circumstances. But there must be an actual commercial reason for the position to no longer be required.

If a purported redundancy is not based on these sorts of triggers and in these sort of circumstances, then there are real risks for an employer.

A concocted reason to be rid of an unwanted employee or to avoid a claim for unfair dismissal or unlawful termination of employment is always risky.

Good process

However, notwithstanding good reason for a redundancy, an employer might fail to adopt good and essential process, such as complying with consultation obligations and exploring reasonable redeployment opportunities.

Consultation by an employer is essential to afford due process to the employee and may also be required by an employment contract, award or enterprise agreement.

Commonly, there is a requirement upon the employer to speak to or meet with an employee to advise the circumstances surrounding the redundancy decision. Input and feedback should be sought on ways to minimise the effect of the redundancy on the employee and to give consideration to what an employee is saying. Outplacement counselling might be offered.

An employer is obliged to consider reasonable redeployment possibilities for the employee within the enterprise.  This obligation might extend to other positions, perhaps either in other departments or in an associated employer entity.  Questions of reasonableness and commerciality arise, with appropriate explanations being given to the employee about the nature of any other positions, necessary qualifications, the employee’s skills, qualifications and experience, location, and remuneration.

Good process includes retaining supporting documents relevant to the redundancy, the keeping of notes about conversations during the consultation process, detail concerning reasonable redeployment opportunities, and the reasons why a particular employee has been selected over other employees.

An appropriate letter to the employee should then include such full particulars and advise termination of employment based on redundancy.

During this process, care, concern and respect for the employee are important.

Appropriate payment

Whenever employment has been terminated on the basis of redundancy, a redundancy payment must be made, unless the employee is casual, or has been continuously  employed for less than 12 months, or is employed on a fixed-term or project-based contract (where there is no reasonable expectation of an extension or where it is customary for employment to end upon project completion), or unless the employer is a small business employer having fewer than 15 employees (noting that some modern awards might require a small business employer to pay redundancy pay regardless).

Furthermore, redundancy pay is not required where the business is sold or transferred with the employee accepting employment with that new business owner and having their previous period of service with the original employer recognised.

If a business is sold or transferred and the employee refuses to accept employment with the new business owner, upon substantially the same terms of employment as provided by the original employer, then the employee cannot demand a redundancy payment in the absence of application being made to the Fair Work Commission.

An employer can apply to the commission for relief if there is a claim for redundancy which is unaffordable or lacks merit because a suitable alternative position was found for the employee.

The amount of redundancy pay is calculated with reference to an employee’s period of continuous service at minimum levels set out in the Fair Work Act.  Employment contracts, awards and enterprise agreements may have more generous redundancy provisions.

Proper reason, good process and appropriate payment will ensure legal compliance and protection for an employer against a claim for unfair dismissal or unlawful termination of employment.

Article found HERE at SmartCompany.com.au

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Yes, you can hold an Australian passport but not be a citizen – here’s how

Yes, you can hold an Australian passport but not be a citizen – here’s how

 

Being born in Australia does not necessarily make you an Australian citizen.
Shutterstock

 

Jan Gothard, Murdoch University

Being born in Australia does not make you an Australian citizen. The Tamil family with two Australian-born daughters on Christmas Island awaiting a decision on their future knows this only too well.

In some countries, such as the United States, children born there automatically become citizens of that country.

But in Australia, this isn’t the case. In Australia, the automatic birthright to citizenship ended on August 19, 1986, under section 12 of the Australian Citizenship Act 2007. Children born in Australia from August 20 1986 are only Australian citizens by birth if, at the time of their birth, at least one of their parents was an Australian citizen or permanent resident. If they meet this criterion, they can obtain a passport.




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But while the rules on who has a birthright to Australian citizenship are clear, the rules on how a child can prove this birthright are anything but.

The Department of Foreign Affairs and Trade (DFAT), which issues Australian passports, says: “only Australian citizens can be issued with Australian passports”, but the Department of Home Affairs sometimes has other ideas.

This has had a negative impact on children who might fall into the gap between the passport and citizenship requirements of these two government departments.

Most of the time, acquiring an Australian passport at birth, based on providing standard evidence of identity like birth certificates, means citizenship for life.

In some instances, though, Home Affairs has the power to request, arbitrarily and with no explanation, that further evidence be provided to justify a child’s citizenship, even DNA testing.

DNA testing to prove citizenship

In one recent case our firm has dealt with, the foreign mother of an Australian child who had an Australian passport was told she needed to produce evidence of citizenship for her son, even though he was born in Australia and his father had always held Australian citizenship.

The family birth certificates and passports she had provided when successfully obtaining her child’s passport were “not deemed sufficient evidence” of citizenship.

She was required to obtain a “certificate of citizenship” from Home Affairs. And to get this, DNA testing was requested to prove the Australian citizen was indeed the biological father of the child in question.




Read more:
Should I get my DNA tested? We asked five experts


But the mother’s relationship with the child’s father had broken down irreparably at the time of the child’s birth, and the father refused the DNA test.

DNA testing was not compulsory, Home Affairs advised. Other methods could be used to prove the relationship between the father and son was biological.

But the alternative social evidence recommended by Home Affairs and supplied by the mother included exhaustive personal, hospital, social work and government records. They detailed the mother and child’s contact with the father and grandparents before and after the birth. This was still deemed “not sufficient”.

In effect, this shows DNA has become the only acceptable evidence, despite Home Affairs’ claims. The outcome, Home Affairs advised, is that the child’s passport will be cancelled and the child will lose his status as an Australian citizen.

In another example, the father of a child in care, an Australian passport holder, was asked to do a DNA test as part of the process of obtaining a certificate of citizenship for the child.

He was estranged from the child and the mother, and so he refused. Home Affairs made its assessment of paternity based on that refusal, and the child’s passport and citizenship were cancelled.

Losing citizenship from ‘insufficient’ evidence

Citizenship can be revoked and a passport consequently cancelled in limited circumstances – mostly relating to criminal or security issues.

There is no provision in the Australian Citizenship Act 2007 for the cancellation of citizenship held by a child under 16 who became a citizen at birth. Yet it is happening.

Our firm has recently seen an increase in cases where the citizenship status of a child passport holder has been challenged if the child’s mother is a temporary resident.

While investigating a mother’s circumstances, Home Affairs delegates have required children – Australian passport holders with citizenship acquired through their father – to verify their citizenship by obtaining “certificates of citizenship”.

In these recent cases, the evidence usually required to obtain such a certificate – relevant birth certificates linking the child to the father, and evidence of citizenship or permanent residence of the father at the time of birth – has been rejected as insufficient.

The common thread is the absence of the father, where family relationships have broken down. The child is consequently caught in a bureaucratic tangle: their birth certificate identifying their father remains valid, but Home Affairs refuses to accept this.

Evidence of paternity can’t always be provided when families break down

For Home Affairs, sometimes the standard evidence of identity isn’t enough to justify a child’s citizenship. And where a relationship has broken down, or if a father has moved on physically or emotionally from the child, there may be no way of providing biological proof of that paternity.

The onus of proof in this case is on the child or its mother, with Home Affairs providing no explanation why such evidence may be necessary or relevant.

A child’s birth certificate signed at the time of birth by an Australian citizen father, or social evidence of a paternal relationship, can count for nothing here.




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Yes, Peter Dutton has a lot of power, but a strong Home Affairs is actually a good thing for Australia


What’s disconcerting is the apparently unfettered right of Home Affairs to request additional evidence of citizenship from children who already hold Australian passports, granted following the normal protocols, without any need for Home Affairs to explain on what basis such information is sought.

This is at odds with the practice under the Migration Act 1958, which acknowledges principles of “natural justice”. Cancelling children’s passports and withholding citizenship, effectively a consequence of their absent father and their parents’ inability to maintain a harmonious relationship, seems clearly unjust.

Refusing to accept certificates issued by state Registrars of Births, Deaths and Marriages, and overturning the capacity of the Department of Foreign Affairs and Trade to issue passports based on its own sets of rules, is yet another indicator of the enormous and – despite its denials – unchecked power of Home Affairs.

If birth certificates no longer suffice as evidence of paternity, perhaps we’ll all be looking at DNA testing in the future.

The original caption on the main photo in this piece was incorrect and has been amended.


The author wishes to thank Alice Graziotti of Estrin Saul Lawyers for her contributions to this article.The Conversation

Jan Gothard, Adjunct Associate Professor, Murdoch University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Unfair contract holding you back? The ACCC wants to hear about it

Unfair contract holding you back? The ACCC wants to hear about it

Matthew Elmas / Friday, August 23, 2019

ACCC ACCC commissioner Mick Keogh. Source: ACCC.

ACCC deputy chair Mick Keogh has asked small businesses who believe their business contracts may be unfair to reach out, reiterating the competition watchdog’s focus on levelling the playing field.

Delivering its biannual small business update on Thursday, the ACCC said enforcing unfair contract terms (UCT) laws are a top-order consideration moving forward, encouraging firms to review their own deals.

Over the last six months, the ACCC has pursued several businesses over alleged UCT law violations, including two container stevedore companies, DP World Australia and Victoria International Container Terminal.

It also raised concerns about alleged UCT violations in the horticulture sector, with Melbourne fruit wholesaler M.V. Napoleone & Co in its sights.

“Unfair contract terms are a big focus for the ACCC, and we want to make sure small businesses are not at a disadvantage because of one-sided ‘take it or leave it’ contracts,” Keogh said in a statement circulated Thursday.

While the ACCC is unable to secure penalties for UCT violations, primarily because they are not actually illegal, it is able to have courts void offending contracts.

“We encourage small businesses to review their standard form contracts and if a contract term looks unfair, call it out and seek to have it changed,” Keogh said.

There have been concerns in the past many business owners don’t realise contracts they have with suppliers, financial firms or other partners contain unfair terms.

Earlier this year, UberEats, which has been in the market for some time, amended allegedly unfair terms in its own contracts after it emerged restaurants were being left holding the bag for refunds they were not responsible for.

Is your contract unfair?

Worried a contact might be unfair? Under UCT laws passed in 2016, small business contracts that are ‘standard form’ and have an upfront payable price less than $300,000 (or $1 million if longer than 12 months) can be voided by courts if unfair.

Standard form contracts are those prepared by one party, without negotiation — in other words, offered on a ‘take it or leave it’ basis. Small businesses are defined as those with fewer than 20 workers.

Courts consider the balance of power between parties, whether businesses are given an opportunity to negotiate and whether terms are specific to small businesses or a particular transaction when deciding whether a contract is unfair.

Unfair means contracts which would cause “significant imbalance” in a businesses’ rights and obligations under the terms of an agreement, or where a team is not reasonably necessary to protect the interests of the benefitting party.

Businesses with suspicions are advised to contact the ACCC or the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) regardless of whether they’re 100% sure.

Fewer complaints over the last six months

ACCC engagement with small businesses has fallen in the last six months as a fewer number of firms contact the competition watchdog with complaints.

About 3,248 small businesses reached out to the ACCC between January and June 2019 with reports and enquiries, down 12% from the 3,729 reports in the last six months of 2018.

Fewer businesses had complaints about misleading conduct and other Australian Consumer Law issues, while there was also a dip in consumer guarantee reports.

It comes as the regulator continues its focus on unfair contract terms (UCT), amid an ongoing wait for the federal government to hold consultations over whether UCT laws should be strengthened.

The ACCC secured four administrative resolutions which affect small businesses in the last six months, as well as two court outcomes and 15 compliance checks in the franchising and horticultural sectors.

Article found HERE at SmartCompany.com.au

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Apple iPhones could have been hacked for years – here’s what to do about it

Apple iPhones could have been hacked for years – here’s what to do about it

Leslie Sikos, Edith Cowan University and Paul Haskell-Dowland, Edith Cowan University

For many years, the Apple iPhone has been considered one of the most secure smart phones available. But despite this reputation, security issues that might affect millions of users came to light last week, when researchers at Google revealed they had discovered websites that can infect iPhones, iPads, and iPods with dangerous software.

Simply visiting one of these websites is enough to infect your device with malicious software, allowing a high level of access to the device. Worryingly, it seems these vulnerabilities have been “in the wild” (that is, actively used by cyber-criminals) for around two years.

As there is no visible sign of infection on the device, it is likely users are completely unaware of the risks they’re facing.




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The vulnerabilities being exploited are present on devices running recent (but not the most recent) versions of Apple’s iOS operating system — specifically, iOS 10 through to early versions of iOS 12. Every device running the vulnerable versions of iOS is a potential target for these websites.

Devices are infected via several methods, using 14 different security flaws — an unusual number of ways to compromise a device. Worse is that seven of the flaws involve Safari, the default web browser for many of these devices (and web browsing is a common activity for many users).

It’s not all bad news though. After Google reported the issues to Apple earlier this year, the vulnerabilities were promptly patched with the latest release of iOS (12.4.1).

Any user updating their device to the latest version of iOS should be protected against this attack. The easiest way to do it is to go to Settings > General > Software Update on your phone and then follow the prompts.

What happens when you visit an infected site?

As soon you open the web page, malicious software is installed on the device. This software has the potential to access location data and information stored by various apps (such as iMessage, WhatsApp, and Google Hangouts).

This information can be transmitted to a remote location and potentially misused by an attacker. The information extracted can include messages that are otherwise protected when sent and received by the user, removing the protection offered through encryption. Hackers can also potentially access private files stored on the device, including photos, emails, contact lists, and sensitive information such as WiFi passwords.

All of this data has value and can be sold on the Internet to other cyber-criminals.

According to antivirus firm Malwarebytes, the malicious software is removed when the infected device is restarted. While this limits the amount of time that the device is compromised, the user risks being reinfected the next time they visit the same website (if still using a vulnerable version of iOS).

The list of websites involved has not yet been made publicly available, so users have no means to protect themselves other than by updating their device’s operating system. But we do know the number of visitors to these sites are estimated in the thousands per week.

Are Apple devices no longer secure?

High-profile attacks on these devices might dispel the myth that Apple devices are not susceptible to serious security breaches. However, Apple does have a bug-bounty program that offers a US$1 million reward to users who report problems that help to identify security flaws.

But considering the impact of this incident, it’s obvious someone out there is making considerable efforts to target Apple devices. While the tech giant regularly updates its software, there have been recent incidents in which previously fixed security flaws were reintroduced. This highlights the complexity of these devices and the challenge of maintaining a secure platform.




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The most important lesson for Apple’s millions of users is to ensure you keep up to date with the latest patches and fixes. Simply installing the latest iOS update is sufficient to remove the threats caused by this vulnerability.

If you’re concerned your details may have been stolen, changing passwords and checking your credit card and bank account statements are also important steps to take.The Conversation

Leslie Sikos, Lecturer, Edith Cowan University and Paul Haskell-Dowland, Associate Dean (Computing and Security), Edith Cowan University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Regulating Facebook, Google and Amazon is hard given their bewildering complexity

Regulating Facebook, Google and Amazon is hard given their bewildering complexity

 

Governments are attempting to regulate tech giants, but the digital disruption genie is already out of the bottle.
Shutterstock

 

Zac Rogers, Flinders University

Back in the 1990s – a lifetime ago in internet terms – the Spanish sociologist Manuel Castells published several books charting the rise of information networks. He predicted that in the networked age, more value would accrue in controlling flows of information than in controlling the content itself.

In other words, those who positioned themselves as network hubs – the routers and switchers of information – would become the gatekeepers of power in the digital age.

With the rise of internet juggernauts Google, Facebook, Amazon and others, this insight seems obvious now. But over the past two decades, a fundamentally new business model emerged which even Castells had not foreseen – one in which attracting users onto digital platforms takes precedence over everything else, including what the user might say, do, or buy on that platform.

Gathering information became the dominant imperative for tech giants – aided willingly by users charmed first by novelty, then by the convenience and self-expression afforded by being online. The result was an explosion of information, which online behemoths can collate and use for profit.




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The sheer scale of this enterprise means that much of it is invisible to the everyday user. The big platforms are now so complex that their inner workings have become opaque even to their engineers and administrators. If the system is now so huge that not even those working within it can see the entire picture, then what hope do regulators or the public have?

Of course, governments are trying to fight back. The GDPR laws in Europe, the ACCC Digital Platforms report in Australia, and the DETOUR Act introduced to the US Congress in April – all are significant attempts to claw back some agency. At the same time, it is dawning on societies everywhere that these efforts, while crucial, are not enough.




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Gatekeepers reign supreme

If you think of the internet as a gigantic machine for sharing and copying information, then it becomes clear that the systems for sorting that information are vitally important. Think not just of Google’s search tool, but also of the way Google and Amazon dominate cloud computing – the largely invisible systems that make the internet usable.

Over time, these platforms have achieved greater and greater control over how information flows through them. But it is an unfamiliar type of control, increasingly involving autonomous, self-teaching systems that are increasingly inscrutable to humans.

Information gatekeeping is paramount, which is why platforms such as Google, Amazon and Facebook have risen to supremacy. But that doesn’t mean these platforms necessarily need to compete or collude with one another. The internet is truly enormous, a fact that has allowed each platform to become emperor of a growing niche: Google for search, Facebook for social, Amazon for retail, and so on. In each domain, they played the role of incumbent, disruptor, and innovator, all at the same time.

Now nobody competes with them. Whether you’re an individual, business, or government, if you need the internet, you need their services. The juggernauts of the networked age are structural.

Algorithms are running the show

For these platforms to stay on top, innovation is a constant requirement. As the job of sorting grows ever larger and more complex, we’re seeing the development of algorithms so advanced that their human creators have lost the capacity to understand their inner workings. And if the output satisfies the task at hand, the inner workings of the system are considered of minor importance.

Meanwhile, the litany of adverse effects are undeniable. This brave new machine-led world is eroding our capacity to identify, locate, and trust authoritative information, in favour of speed.

It’s true that the patient was already unwell; societies have been hollowed out by three decades of market fundamentalism. But as American tech historian George Dyson recently warned, self-replicating code is now out there in the cyber ecosystem. What began as a way for humans to coax others into desired behaviours now threatens to morph into nothing less than the manipulation of humans by machines.

The digital age has spurred enormous growth in research disciplines such as social psychology, behavioural economics, and neuroscience. They have yielded staggering insights into human cognition and behaviour, with potential uses that are far from benign.

Even if this effort had been founded with the best of intentions, accidents abound when fallible humans intervene in complex systems with fledgling ethical and legal underpinnings. Throw malign intentions into the mix – election interference, information warfare, online extremism – and the challenges only mount.

If you’re still thinking about digital technologies as tools – implying that you, the user, are in full control – you need to think again. The truth is that no one truly knows where self-replicating digital code will take us. You are the feedback, not the instruction.

Regulators don’t know where to start

A consensus is growing that regulatory intervention is urgently required to stave off further social disruption, and to bring democratic and legal oversight into the practices of the world’s largest monopolies. But, if Dyson is correct, the genie is already out of the bottle.

Entranced by the novelty and convenience of life online, we have unwittingly allowed silicon valley to pull off a “coup from above”. It is long past time that the ideology that informed this coup, and is now governing so much everyday human activity, is exposed to scrutiny.




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The challenges of the digital information age extend beyond monopolies and privacy. This regime of technologies was built by design without concerns about exploitation. Those vulnerabilities are extensive and will continue to be abused, and now that this tech is so intimately a part of daily life, its remediation should be pursued without fear or favour.

Yet legislative and regulatory intervention can only be effective if industry, governments and civil society combine to build, by design, a digital information age worthy of the name, which doesn’t leave us all open to exploitation.The Conversation

Zac Rogers, Research Lead, Jeff Bleich Centre for the US Alliance in Digital Technology, Security, and Governance, Flinders University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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