Asia Pacific




Australian Building Company Signs EU After Disability Discrimination
Business Ethics and Corporate Culture, Employment and Workplace Issues

The Australian Fair Work Ombudsman (FWO) has announced that building materials company James Hardie has signed an enforceable undertaking (EU) with the FWO and agreed to pay a prospective employee AU$30,000 in compensation, after it refused to employ him due to his disability. James Hardie offered the man the position of business development manager in 2010 “but failed to inform him at the time the offer was conditional on him satisfactorily completing a medical assessment”. Although “[t]he advertised position did not mention any physical requirements of the job”, the applicant “disclosed a long-term shoulder injury” and James Hardie withdrew the job offer based on a medical assessor’s report. However, James Hardie never showed the applicant this report, instead revoking the job offer “despite the [FWO's] concerns that physical work was not an inherent part of the business development manager’s position”. The FWO said that the company could have made minor adjustments to the position in order for the applicant to avoid physically strenuous work and added that “[e]mployers need to ensure that medical assessments are confined to assessing a worker’s ability to perform tasks that are an inherent part of the position”. As part of the EU, James Hardie will, inter alia, advertise its breaches and publicly apologise for them, implement anti-discrimination training for recruitment staff, “establish an ongoing anti-discrimination training program” and “review its recruitment and discrimination policies, in particular in relation to the use of medical examinations, and report the results of the review to the [FWO]“.

FWO’s media release (1 June 2012)
(Source: FWO)


FSS Found in Breach of Privacy Act
Information Security, Privacy and Data Protection

Australian Privacy Commissioner Timothy Pilgrim has released First State Super Trustee Corporation Own Motion Investigation Report (June 2012). The investigation found First State Super Trustee Corporation (FSS) in breach of the Privacy Act 1988 No. 119 (Cth) in relation to an October 2011 incident, where “an unauthorised person had accessed the secure member section of the FSS website and downloaded personal information belonging to 568 FSS members”. While FSS did not disclose information to a third party, it failed to take “reasonable steps to protect the personal information held in the member section of its website from unauthorised access”. Mr Pilgrim reiterated the need for businesses to take privacy seriously by testing their systems for privacy vulnerabilities.

Privacy Commissioner’s media release (7 June 2012)
(Source: Australian Privacy Commissioner; Lawlex Legislative Alert & Premium Research)


Australian Court Fines Resort AU$294,360 Over Sham Contracting
Business Ethics and Corporate Culture, Employment and Workplace Issues

The Australian Fair Work Ombudsman (FWO) has announced that as a result of its investigations, the Federal Court in Melbourne has fined the former operators of a Tasmanian resort AU$294,360 “for deliberately exploiting employees by engaging in sham contracting”. Former operator of the Diamond Island resort at Bicheno, Maclean Bay Pty Ltd (Maclean Bay), was fined AU$280,500 and former co-owner of the resort, Wendy Ann Wells, was fined AU$13,860. Justice Marshall found that “Maclean Bay had embarked on an unlawful sham contracting campaign aimed at ‘converting’ Diamond Island resort employees into contractors to cut costs”. Maclean Bay dismissed four employees “because of the entitlements they enjoyed as employees under Australia’s workplace laws” and dismissed two employees “for refusing to become purported contractors under sham arrangements”. According to the FWO, “Maclean Bay was also found to have breached workplace laws for failing to pay thousands of dollars in superannuation and annual leave entitlements to a number of employees”. In total, nine employees were affected by the sham contracting, and are yet to be compensated by Maclean Bay. Justice Marshall said that if compensation “is not immediately possible from the resources of Maclean Bay, those who stand behind it should have the decency to attempt to remedy their corporate entity’s failure to comply with the law rather than cowering behind the corporate veil”.

FWO’s media release (31 May 2012)
(Source: FWO)


Investigation into Potential Telephone Hack
Information Security, Privacy and Data Protection

Australian Privacy Commissioner Timothy Pilgrim has announced that he has opened an investigation into a potential hacking of Telstra services, which may affect a substantial number of customers information.

Australian Privacy Commissioner’s media release (24 May 2012)
(Source: Australian Privacy Commissioner)


Australian Ombudsman Prosecutes Restaurant Chain Over Underpayment
Business Ethics and Corporate Culture, Employment and Workplace Issues

The Australian Fair Work Ombudsman (FWO) has announced that it has commenced a prosecution against the operator of four Subway outlets at Newcastle, New South Wales for underpayments of young employees between the ages of 15 and early 20s. Part-owner and operator of four Subway outlets Nicole Patrice Dawe is alleged to have been “centrally involved in underpaying 11 employees at the four Subway outlets a total of [AU]$56,585 between 2006 and 2011″. According to the FWO, the employees were underpaid the minimum hourly rate and some were “also underpaid annual and personal/carer’s leave entitlements and payment in lieu of notice of termination”. Ms Dawe “was allegedly also involved in failing to comply with Notices to Produce employment records, keep proper employment records and issue pay slips in line with workplace laws” and she faces a maximum penalty AU$6600 per breach of workplace laws.

FWO’s media release (30 May 2012)
(Source: FWO)