Employment and Industrial Relations: Social Media in Your Workplace – Friend or Foe?

Traditionally, it has been difficult for employers to place prohibitions on the conduct of their employees outside of work hours as, in order to regulate conduct, an employer must establish a sufficient connection with the employee’s employment. Recently, social media sites and the internet are making it easier for employers to establish that connection.

Recent decisions

In the decision of Griffiths v Rose, the Federal Court of Australia considered whether the employer (the Commonwealth) was entitled to monitor an employee’s use of its laptop computer outside of office hours, and then use the information it obtained to justify terminating the employee’s employment. The employee was dismissed after an investigation revealed that he had accessed pornographic material. The employee accessed the material at home, using the employer’s laptop computer (with his own internet connection). The employer had a policy which stated that “employees are prohibited from using Departmental facilities to deliberately access, display, download, distribute, copy or store… pornography.”

In affirming the dismissal, the Court reinforced the right of an employer to take disciplinary action when the conduct is sufficiently connected with the employee’s employment. In this instance, the policy clearly prohibited the conduct in question, even though it took place outside of work hours, in the employee’s home and at the employee’s cost.

In Dover-Ray v Real Insurance Pty Ltd, Fair Work Australia considered whether negative comments posted by an employee about her employer on her MySpace page were sufficiently connected to her employment to constitute a valid reason for the termination of her employment. The employee, who was involved in a sexual harassment investigation, posted comments such as “I have just been through an investigation that in the end advocated corruption” and described management as “witch hunters”.  Despite the employer not having a social media policy covering such conduct, Fair Work Australia upheld the dismissal.

In the most recent case of O’Keefe v Williams Muir’s Pty Limited, an employee’s unfair dismissial claim was dismissed by Fair Work Australia. The employee had been dismissed for making threatening comments about a colleague on his Facebook page. Deputy President Swan held that, although the comments were posted from the employee’s home computer and out of work hours, it did not make any difference because the comments were read by his co-workers and his actions, which were in breach of the employer’s various policies, constituted serious misconduct.

Accordingly, if internet usage or a social media posting is sufficiently connected with employment, an employer may legitimately take disciplinary action against an employee in relation to that conduct. What will be considered a ‘sufficient connection’ is still being explored.

The appropriate disciplinary action that may be taken by an employer in response to postings on social media sites will always be a question of fact and degree. Although dismissal is a particularly harsh response, it may be appropriate in certain circumstances.

Implications for employers

These cases highlight that employment obligations can extend beyond the workplace. This leads to an increasingly important obligation on both employers and employees to find a balance in the appropriate use of social media sites.

The key protection for employers is ensuring they have a thorough internet and social media policy, and that the policy is reviewed regularly. Just as social media sites change and evolve, so should the policy. An employer is more likely to be in a position to successfully justify a dismissal if it has a clear policy. This is because it leaves less scope for employees to argue that they did not know their conduct was prohibited.

A social media policy must be clear in its expectations of employees, so too should the consequences for non-compliance. Even if the use of social media is banned in a particular workplace, consideration must also be given to conduct which may occur outside of the workplace.

Please contact Amanda Green for more specific advice about the impact of social media on your workplace. Amanda can be contacted by telephoning 8210 1203 or agreen@norman.com.au.

Commercial Dispute Resolution: Misleading or Deceptive Conduct in Contract Negotiations

The New South Wales Court of Appeal has recently considered whether the statements and conduct of a vendor during pre-contractual negotiations in relation to an exclusivity period were misleading or deceptive contrary to the Fair Trading Act 1987 (NSW).

In the case of Fabcot Pty Ltd v Port Macquarie-Hastings Council [2011] NSWCA 167, the Council wished to sell certain land for development as a shopping centre.  For several years between 2002 and 2007, the Council negotiated with both Woolworths and Coles in relation to the land and potential development of a shopping centre, however no agreement was reached during that time.

In November 2007, the Council again advertised for expressions of interest for the development of the land.  Both Woolworths and Coles submitted expressions of interest to the Council.  The Council resolved to accept the offer submitted by Woolworths subject to certain conditions, and on 7 February 2008 the Council sent a letter to Woolworths to inform it of the acceptance and that negotiations would be undertaken generally in accordance with the proposal submitted.  The letter also stressed to Woolworths that the sale be completed by 30 June 2008.

Thereafter, extensive dealings took place between the Council and Woolworths regarding the proposed sale and development of the land.  However, primarily due to a number of issues arising with Woolworths’ development proposal for the land and issues regarding potential contamination of the land, negotiations between the Council and Woolworths were still ongoing into 2009.  It was found by the Court that Woolworths had adopted “a hard approach” to the negotiations, and had referred to certain conditions as being “deal breakers”.  Evidence was also presented at trial of apparent inconsistency between statements made by Council officers to Woolworths and decisions made by the Council as to the proposed terms of agreement. 

During this time the Council had negotiated solely with Woolworths, despite negotiations extending well beyond the proposed completion date of 30 June 2008.  By 15 May 2009, and with the terms of agreement with Woolworths still unresolved, the Council’s officers decided that if an agreement was not reached with Woolworths by 18 May 2009, that the Council would inform Woolworths that it intended to enter negotiations with Coles.

No agreement with Woolworths was subsequently reached, and on 18 May 2009 the Council suggested a proposal to Coles for the sale and development of the land.  The Council did not inform Woolworths of the proposal or negotiations with Coles, and it appears that Woolworths believed that it was the only party negotiating with the Council.  On 30 June 2009, the Council and Coles entered into a contract for the sale of the land.

Woolworths sued the Council, alleging that in the circumstances it had a reasonable expectation that the Council would inform it if the Council decided that negotiations would no longer be conducted on the basis of exclusivity.  The Court initially found for Woolworths, finding that “the Council’s conduct fell well short of commercial fair dealing in a way which was misleading and deceptive and it fell well short of the standards which a commercial party dealing with it was entitled to expect”.  However, the Court also found that Woolworths would not have reached agreement with the Council in any event, so therefore suffered no loss or damage.  The parties subsequently appealed the initial decision of the Court. 

The Court of Appeal found that, in the absence of an expressly negotiated period of exclusivity, in the circumstances it was impossible to conclude that there was an industry practice that a potential purchaser whose expression of interest was accepted by the vendor was entitled to be informed if the vendor intended to negotiate with a third party.

The Court of Appeal recognised that there might be circumstances in which an expectation of exclusivity may be created, at least for a period.  However, the Court stated that, even if such an expectation existed, the expression of interest process could not have created an expectation that Woolworths would be entitled for an indefinite period to be notified before the Council commenced negotiations with another party.  In the circumstances, any expectation that Woolworths was entitled to a period of exclusivity could not have reasonably continued beyond 30 June 2008, being the date by which the Council indicated that the sale must be concluded. 

The Court of Appeal therefore found for the Council and dismissed Woolworths’ case.

This decision means that if a party to a sale process wishes to have an exclusive negotiation period, then the terms of the exclusivity should be specifically agreed and documented.  It is unsafe for a party to simply assume exclusivity in negotiations, even if that is the usual practice.

This case also highlights the importance of ensuring that all officers and representatives involved in a contract negotiation (in particular, long and complicated negotiations) are acting consistently and in a manner supportive of a common intent.  As shown by this case, a party may expose itself to risk of claims for misleading or deceptive conduct if negotiations are not conducted by team members in a co-ordinated and consistent manner.

For further information on any of the material contained in this article please contact Steven Hagivassilis on 8210 1232 or shagivassilis@normans.com.au.

Local Government Governance and Regulatory Services: Service Rates and Annual Service Charges – Availability and Accessibility of Services

Councils are increasingly turning to service rates or annual service charges as a method of charging ratepayers for the collection, treatment or disposal of waste.  While financially prudent for councils to use these devices, the Department of Planning and Local Government (the Department) has raised concerns regarding the imposition of service rates and annual service charges on land where the collection service is not available to or accessible by the ratepayer.

As a result of these concerns, changes have been made to the Local Government Act 1999 (the Act) as part of the Local Government (Accountability Framework) Amendment Act 2009 (the Accountability Act) which will, in effect, prevent councils from imposing a service rate or annual service charge (or a combination of both) on land where a particular service is not provided and cannot be accessed.

Section 24(5) of the Accountability Act amends Section 155 of the Act, and will come into operation no later than 10 December 2011.

The Department has devised a proposal which will form the basis of Regulations to be drafted under the new Section 155(11) of the Act.  It is intended that the scheme impacts only on rates or charges imposed for the collection of household and recyclable waste.

It is proposed that the scheme will be based on a sliding scale according to the distance from each property’s primary access point (as defined in the draft Regulations) to the waste collection point.  It will impose an obligation on councils to vary the service rate or annual service charge according to the distance from each property’s primary access point to the waste collection point.

The Department is proposing that the Regulations will be made to enable the scheme to apply to service rates and annual service charges declared for the 2012/13 financial year and subsequent years.

The scheme appears to be targeted at situations where councils provide bin banks for use by residents.  As proposed, the scheme would require councils to undertake precise measurements to determine the location and distance of each property access point to the bin bank.

Under the sliding scale proposed by the Department, it is conceivable that some property owners would be charged 100% of the service rate or annual service charge, whereas their neighbour, who accesses the same bin bank, but whose primary access point was a mere metre further away from that bin bank, would be charged 80% of the service rate or annual service charge for the same collection service.

It is likely that councils utilising bin banks will need to collect data for each relevant property in order to determine the exact distance from primary access point to bin bank.  It may be that councils do not currently keep survey data indicating the location of each property’s primary access point.  In those circumstances, additional survey work would need to be undertaken to determine the exact location of those access points.

No doubt such investigations will be time consuming and expensive.  In some cases, councils may opt to avoid these issues by incorporating the revenue that would ordinarily have been gained through the imposition of the service rate or annual service charge into the general rate payable by all ratepayers.  Such an approach would defeat the purpose of the imposition of service rates or annual service charges and would have the effect of reducing the transparency ratepayers currently enjoy by being able to identify the particular cost of a service provided to them by the council.

The Department has sought feedback on this proposal and it is unclear what amendments, if any, will be made prior to the finalisation of draft Regulations.  We will keep councils informed of developments in this area following the finalisation of draft Regulations.

For further information on any of the material contained in this article please contact Kate Oliver on 8210 1226 or koliver@normans.com.au.

Property, Infrastructure and Development: Mandatory Disclosure Update - Now Commercial Soon Residential

The first of July 2010 saw the Building Energy Efficiency Disclosure Act 2010 (Cth) (Act) come into effect. One year on and the Act hasn’t changed, but the Government’s intention for the reach of mandatory disclosure has been clarified.

The Australian Government has now signalled its intention for a scheme similar to that in the Act to be extended to all sales and leases of residential premises with Victoria expected to be the first cab off the rank commencing in 2012.

The Act still only applies when selling, leasing or subleasing commercial office space over 2,000m2 and requires owners or sublessors of commercial office space over 2000m2 to obtain and disclose a Building Energy Efficiency Certificate (BEEC).

While the Act predominantly applies to corporations, non corporate bodies and individuals are required to disclose a BEEC to a company, if that company has requested a BEEC and the company has a good faith interest in purchasing, letting or subletting that building. 

The transitional period for the Act stops applying from 1 November 2011. From that date full BEECs are required which incorporate the energy efficiency rating for the building, an assessment of the energy efficiency of the lighting for the building and guidance on how the energy efficiency of the building may be improved.

The energy efficiency rating is still a National Australian Built Environment Rating System (NABERS) rating.

Every owner or sublessor affected by the Act should now have a BEEC (especially if you intend on selling, leasing or subletting commercial office space in the near future) or at least have the requisite 12 consecutive months of billed energy usage needed to obtain a BEEC.

There are still penalties for all events of non-disclosure in the Act. All owners of premises subject to the Act will need to understand their obligations under the Act and the requirements to obtain and disclose a BEEC prior to sale, lease or sublease.

For further information on any of the material contained in this article please contact James McEwen on 8210 1209 or jmcewen@normans.com.au or Tom Walrut on 8210 1218 or twalrut@normans.com.au.

Property, Infrastructure and Development (Native Title): Aboriginal Heritage Act – Case Note: The Importance of Section 23 Authorities

The recent decision of the Supreme Court of South Australia in the case of Newchurch v the Minister for Aboriginal Affairs and Reconciliation has significant consequences for both State and Local Government in terms of how they deal with Aboriginal Heritage.

Unlike Native Title, Aboriginal Heritage is governed by the Aboriginal Heritage Act (SA) 1988 (AHA).  The AHA sets out a process whereby Aboriginal sites can be registered.  Under the AHA it is a criminal offence to damage or destroy any Aboriginal site (potentially including unregistered sites) unless the Minister for Aboriginal Affairs (Minister) consents.  This consent is commonly known as a “section 23 authority” and it is required before many developments can commence.

Before the Minister can issue a section 23 authority, the Minister’s office must undertake consultation with the traditional owners of the site.  The traditional owners can request that the Minister’s decision making powers be handed over to them, so that they have the ultimate say on whether their heritage site can be damaged or destroyed.

The case of Newchurch involved a challenge, by a member of the Kaurna People in relation to the site for the proposed development of the new Royal Adelaide Hospital and South Australian Health and Medical Research Institute.

In this case, The Minister issued a section 23 authority with conditions requiring, amongst other things, negotiation with the Kaurna for the monitoring of works on the site and payment to the Kaurna for monitors.  Unfortunately, negotiations broke down and an agreement was not reached.  In order to proceed with the development on the site, the Minister revoked the section 23 authority that had been issued and granted a new authority without conditions requiring negotiation with the Kaurna.

For both cultural and financial reasons, the monitoring arrangements for the site that were being negotiated were of importance to the Kaurna.  As such, the Kaurna challenged the decision of the Minister to revoke the original section 23 authority and grant a new authority.

The Court held that the Minister had correctly followed the procedure set out in the AHA for the revocation and issuing of section 23 authorities and, as such, that the Minister’s decision was valid.  The Court discussed that the Minister may set any conditions for section 23 authorities that the Minister considered appropriate.  The Minister may therefore decide not to set any conditions relating to the monitoring of a development site.

The importance of this decision for State Government and councils is that:

• It highlights the importance of councils obtaining section 23 authorities where required prior to commencing any development.
• Councils can operate with the knowledge that the Minister has significant discretion as to what conditions will be placed on section 23 authorities that are issued.

Aboriginal Heritage is complicated area of law and the full consequences of the Newchurch decision are still not entirely clear.  Another case on the AHA is presently before the Courts, namely Starkey & anor v The State of South Australia & Ors.  This case is presently on appeal to the full Court of the Supreme Court of South Australia and will consider a number of matters including what standard of consultation needs to be undertaken with traditional owners and how and when the Minister’s powers to determine whether to grant a section 23 authority should be exercised by the traditional owners rather than the Minister.

This case, and the eventual decision, will also have a significant impact on councils.  Norman Waterhouse is presently acting in this case, with Mr Nick Llewellyn-Jones and Ms Lisa Goodchild as counsel for one of the parties.  We will advise you of the outcome of this case and its impact for Councils when the decision is released.

For further information on any of the material contained in this article please contact Nick Llewellyn-Jones on 8210 1269 or nllewellyn-jones@normans.com.au or Lisa Goodchild on 8217 1369 or lgoodchild@normans.com.au.

Local Government Governance and Regulatory Services: Liquor Licensing – Know your Council’s Obligations

Amendments to the Liquor Licensing Act 1997 (the Act), currently before State Parliament, have heightened attention on the responsibilities of councils to consider applications for licences, or variations to licenses, under the Act.

If passed, these amendments will place restrictions licensees’ abilities to trade in certain circumstances.  Given the present political climate surrounding licensed premises, councils should continue to be vigilant in monitoring applications received under the Act in relation to licensed premises in their area.

Under Section 76 of the Act, councils have an ability to intervene in proceedings before a licensing authority (be it the Court or Commissioner) for the purpose of introducing evidence, or making representations, on any question before the authority.  The Act recognises the important role councils play in representing their communities’ views on these (often contentious) applications.

Norman Waterhouse routinely deals with cases in this area, and our local government practitioners act exclusively for councils in the licensing jurisdiction.  Our practitioners are acutely aware of the sensitivities involved in these matters and understand the importance of balancing the community interest against other considerations.

For further information on any of the material contained in this article please contact Paul Kelly on 8210 1248 or pkelly@normans.com.au or Dale Mazzachi on 8210 1221 dmazzachi@normans.com.au.

Environment and Planning: Student Accommodation Update - Morris v City of West Torrens [2011] SAERDC 32

Mr Morris appealed to the Environment, Resources and Development Court against the local Council’s decision to refuse development plan consent for a 3 storey mixed use development comprising showroom, offices, warehouse and student accommodation on land zoned Commercial (Arterial Roads) Zone.

The student accommodation component of the proposed development comprised 30 apartments across the second and third stories, each with approximately 40 square metres of floor space, including 4 square metres of balcony.  A communal roof deck of 120 square metres was proposed for use by students.  The apartments were only to be available to students enrolled in secondary or tertiary education, and tenants would not be permitted to keep a car.

Although the appeal was ultimately dismissed on other grounds, the Court confirmed that student accommodation is a unique and distinct form of residential land use, and acknowledged a lack of policy in South Australian development plans with respect to student accommodation.

The Court gave cautious approval of several Victorian cases that have considered the characteristics and requirements of student accommodation developments in that State.

The Court identified the following features as important and unique to student accommodation:

• Reduced amounts of parking
• Smaller rooms or apartments as a trade off for communal areas and facilities in accessible and high movement areas
• Communal areas (including communal open space) to encourage student interaction and compensate for reduced room sizes and reduced private open space
• A management regime including limits on car ownership and use
• Rules to limit noise and avoid nuisance to other residents and neighbours
• Some form of on-site supervision

Importantly, the Court rejected an argument that, absent specific policy concerning student accommodation, private open space provisions of the development plan should be applied no less strictly in the case of student apartments.  The Court found that students are entitled to the same level of amenity as anyone else and a reduction in the amount of private open space available to them can only be justified if it is traded off in some way against additional, usable, communal space.

For further information on any of the material contained in this article please contact James Nicolson on 8217 1342 or jnicolson@normans.com.au.

Stephen Hains: Local Government and the Potential for Change

Abstract

Local government, through its comprehensive perspective and general control of its own finances, can be very influential and immensely satisfying for those working in this sector. But there remain questions as to where the drive for continuing improvement will come, and how the community will be engaged in this process. This short article examines these questions by reference to some recent work in Southern Tasmania.

Article

I have recently retired after a 40-year career, during which I worked in all three spheres of Government, including a period as Head of Planning in the State; as Chair of the SA Planning Commission and a number of environmental boards; as CEO of the State economic development department, and, for the last 20 years, as CEO of the City of Salisbury.

It was, of course, a wonderfully interesting and satisfying career, but without doubt the best was my time in local government with both Salisbury and Unley.

Local Government is the only sphere of government that takes a comprehensive perspective of the needs of its community; where as a professional official we are in a strong position of influence; where we raise most of our own revenue and can deploy it to the best effect; and where we can move mountains through intelligent advocacy on behalf of our community. In particular, the all-encompassing perspective of local government enables us to build bridges between a range of policy issues, and is an approach that is unique to local government within the public sector. Used intelligently, it can be incredibly powerful.

Salisbury’s work in water recycling, for example, began as an environmental and conservation initiative, and became an important economic development and business opportunity for the council; while our economic development work became closely tied with our social development agenda, especially in relation to education and job creation opportunities.

So, for all young aspiring local government executives – be proud of where you work, and don’t forget the fabulous opportunities you have to make a difference in your communities.

Since I left Salisbury, I have been involved in a wide range of Board and DAP appointments, and in a very interesting project on behalf of the Southern Tasmanian Councils Authority – a grouping of 12 councils including Hobart. With the aid of a grant under the Commonwealth Local Government Reform Fund, that Authority has initiated a major review of local government reform options in Southern Tasmania, examining everything from the potential of improved shared service models and regional arrangements between present councils, through to amalgamations and the rationalisation of council boundaries.

It is a great credit to local government in this area that the councils themselves have initiated this review, rather than waiting for the State, and it will put the councils in a very strong position in the determination of the outcome. The Review is being managed by an “expert panel” comprising Jude Munro (former CEO of Adelaide and Brisbane); Saul Eslake (former Chief Economist of the ANZ and now with the Grattan Institute); and myself.

We are now at the stage of presenting options for community discussion, and will hopefully be able to present a final report around the end of October. As part of our research, we have undertaken a very robust community survey, and, amongst the many other results, it has been particularly interesting to note the results to three of the questions. The following are the responses received to the statements provided to the participants.

These images are sourced from the Southern Tasmanian Councils Authority (http://stca.tas.gov.au/2011/southern-tasmania-ready-for-change/)

There is clearly, within the community of Southern Tasmania, a real taste for change, while there remains a strong level of support for local government as an institution. We have recently seen the substantial restructure of local government in Queensland and New Zealand, while change is being mooted in Western Australia and New South Wales.

The circumstances in Tasmania and the other states are clearly different to those that prevail in South Australia, but what is going to drive future reforms in this State? Surely no one would suggest that the present model and shape of local government is not capable of improvement, yet since Charles Landry’s work in 20031 , there has been almost no discussion in this State of future reform options. Is local government going to wait for the State to initiate reform, or will the sector, like Southern Tasmania, take the lead? If we were to undertake a similar survey to that we have recently run in Southern Tasmania, would we get similar responses that show a community readiness for change?

Huge steps have been achieved in recent times in South Australian local government, and the “Local Excellence” program of the LGA, examining reforms under four themes, is an important start. The LGA is to be especially commended for commissioning the ACELG report “Consolidation in Local Government: a fresh look”. Nonetheless, there is little evidence that councils and the community are fully engaged in this process, or that the program is part of a fundamental review exercise.

There are many areas where I believe reform is warranted, and where the local government sector could take the lead with an objective examination of its issues and options for reform. What will be the vehicle for such a review and what will be the process by which the sector can demonstrate leadership in a fundamental and objective review of the role and structure of local government in South Australia?

1Charles Landry, “Rethinking Adelaide ‘capturing imagination’”, Thinkers in Residence, Dept. of Premier and Cabinet, 2003

Biography - Stephen Hains

Stephen Hains retired from his position as Chief Executive Officer of the City of Salisbury in early May 2011 - a position that he held from 1991. Stephen has previously headed a number of economic development, planning and environmental agencies with the South Australian Government, and has chaired the following statutory boards: SA Planning Commission; Advisory Committee on Planning; Native Vegetation Authority; and Coast Protection Board.

A past President of the Australian Planning Institute, he is a Life Fellow of that Institute, a Fellow of Local Government Managers Australia, and a Fellow of the Australian Institute of Company Directors. He has received the Local Government Service Award from the Urban Development Institute of Australia; is an Honorary Fellow of the University of South Australia; and is a Foundation Member of the Leaders Institute of South Australia. He graduated from Flinders University in 1971 with an Honours degree in Economics and Geography, and he holds a Master of Philosophy in Urban Design and Regional Planning from Edinburgh University.  

Stephen has been involved on a range of business, educational and public sector boards for many years, and is currently: 

• Deputy Chair of the Board of the Environment Protection Authority and Chair of the EPA Audit and Risk Committee;
• Council Member of Flinders University, a member of its Resources Committee and its Major Projects Committee
• Director of Bedford Industries;
• Chairman of the Clare and Gilbert Valleys Development Assessment Panel
• Chairman of the City of Charles Sturt Development Assessment Panel
• Chairman of the Adelaide Hills Council Development Assessment Panel
• Presiding Member of the Northern Adelaide Health Network Governing Council
• Member of the Advisory Board of the Flinders University Business School
• Member of the Advisory Board of the Barbara Hardy Centre for Sustainable Urban Environments, University of South Australia
• Member of the UDIA Envirodevelopment Board and a Judge of its 2011 Awards for Excellence

© Norman Waterhouse 2011. All Rights Reserved. You may not reproduce all or any part of this newsletter without our prior consent.

We respect your right to privacy. You can view our Privacy Information Notice on our website and our Privacy Policy is available
on request from our Privacy Officer at privacy@normans.com.au The contents of this newsletter are for information only and
should not be taken as advice on the law