Dear Readers,

With the end of the financial year upon us we're flat out so we can end the year on a high. It is also a good time to take stock and look at those unrecognised business risks that could catastrophically affect our bottom line, and can even damage your long term business viability.

Accordingly, in this month's newsletter we've focused on a recent court case involving workplace bullying where the parties were fined over $335,000. Bullying is an important matter and represents a critical risk the business. So do take the time to familiarise yourself with the facts as ignorance; as it turns out, is no defence.

We also take a look at the notion of 'general protections' in the workplace and how they affect you. The Australian Bureau of Statistics highlights that the proportion of independent contractors are continuing to increase. Under our free software section, we provide a link to AVG software who is offering a free security audit for SMB.

As always, we wish you a busy and successful month.

Kind regards

Bert Franzen

Workplace bullying affects everybody including independent contractors. Surprisingly, research on the subject indicated that very often the perpetrator was not aware that their conduct constituted "bullying". Quite often, it started out innocently as a bit of fun and then over time escalated to the point of causing serious harm, distress and long term psychological damage. Everybody is in the cross-hairs of the OH&S laws. So take note of your responsibilities in this area.

In 2008/9 the total cost in psychological injury claims paid out by employers in NSW totalled $76 million. Over 75% of the awards were a function of work pressure, harassment and bullying. Recently Worksafe Victoria prosecuted the owner and three of the employees of a Melbourne café, Café Vamp, after a young waitress committed suicide following an extended period of serious workplace bullying. The café's hands-on manager (the sole director of the company that owned the café) was not found to have engaged in any bullying conduct himself but still incurred a criminal conviction and a $30,000 personal fine. This was because of his failure to ensure reasonable systems were in place to protect employees and prevent workplace bullying. The company (and therefore the director) were liable for breaches of the Occupational Health and Safety Act 2004 (VIC) and was fined $220,000. The three employees directly involved also incurred criminal convictions and were personally fined $45,000, $30,000 and $10,000 respectively.

So what do you have to do to ensure your workplace is safe from bullying? In the first instance it is imperative that everyone knows what constitutes bullying. Bullying is defined as a "persistent repeated unreasonable pattern of behaviour that risks the health and safety (intimidation, humiliation, causing fear or distress) of an employee". Note that 'health' includes psychological health. This is a business critical issue that needs to be on the first page of everyone's agenda. Click here to download a presentation by WorkSafe Victoria on prevention.

In order to safeguard their interests, companies must have policies and procedures in place that address the harassment and bullying issue head on and provide a means for an employee to report the matter, facilitate investigation to confirm the facts and provides an intervention mechanism which protects the employee and re-educates the offender. Anything less is deemed as negligent. Click here for example policy.

Under the OH&S laws, all individuals, including freelance consultants, have a personal responsibility. The ACT states under Section 25 that "(1) While at work, an employee must - (b) take reasonable care for the health and safety of persons who may be affected by the employee's acts or omissions at a workplace." This means you also have a personal responsibility and are criminally liable for your personal behavior or omission thereof. If you are concerned that a particular repetitive conduct or behaviour is detrimental to the health and well being of a fellow employee, then under law, you must do something about it. At the very minimum it must be reported to a senior manager within the organization.

Above all, first start by making sure your own conduct is above board. Are those 'one-liners' or 'jokes' appropriate? Is there a chance that what you think is funny someone else might find distressing? Is that practical joke always focuses on the same individual? Or, in your zeal to deliver that project are you considering how you are communicating with those around you.

Please do take this matter seriously! New laws have now been introduced as of June 2011 that not only confirm bullying as a criminal offence but offenders may now be jailed to a maximum 10 year term.

The concept of "General Protections" has created significant confusion amongst employers. Some are not even aware that they exist. So what are they and what affect do they have?

Simply put, general protections are specified in the fair work act to protect the workplace rights of everybody who participates in the workforce. This includes employees, employers, independent contractors, unions and employer associations.

The legislation protects against all employees, employers and other members of the workforce from taking 'adverse action' against one and other. The notion of 'adverse action' is very important and needs to be understood to ensure parties don't inadvertently breach another's workplace rights. Adverse action is any conduct that disadvantages another person.

An example of an adverse action taken by an employer includes:

• Threatening to terminate employment/contract without due cause.
• Not acting on bullying or discrimination
• Injury at work
• Unreasonably refusing to allow employees to take holidays
• Discriminating against someone due to ill health.

An example of an adverse action taken by an employee includes:

• Ceasing to work for their employer without due notice
• ot working to specified requirement and standard
• ndustrial Actions
• iscriminating against other employees.

As an independent contractor; being threatened with the premature termination of your contract, or being discriminated against because of you sexual orientation, race or religion are all deemed to be 'adverse actions'. Conversely, if an independent contractor withholds services for which they are contracted, then this action can also be seen as an 'adverse action' that is in breach of the company's general protections. To see what Fair Work has to say on the subject; click here.

The proportion of the Australian workforce classified as Independent Contractors continues to increase according to the latest ABS Forms of Employment survey.
The results showed that of the 11.3 million people in the workforce, 1.1 million were now classified as independent contractors in their main job. This was an increase of 10% over the 1.0 million contractors in 2009. Contractors now make up 9.8% of the total workforce, up from 9.6% last year. Meanwhile, the percentage of workers identified as employees was down 0.3pp to 80.9%.

The survey reported the highest number of independent contractors (31%) worked in the construction industry, with independent contractors making up 33% of the overall industry workforce. Independent contractors also tended to be older workers, with over half (53%) aged over 45, compared with only 35% of employees. Contractors were also predominantly (74%) male.

With SMBs becoming prime targets for cyber criminals, AVG announced a free Security Audit for small to medium businesses, which provides customised reports on their security needs. This survey tool for small business owners is intended to help them understand where they are today and recommend ways to protect themselves from malware attack and Internet crime. The Security Audit reviews how employees use the company's and their own equipment—from computers and laptops to smartphones and USB sticks—and what policies are in place for the use of business and private hardware, plus access to social networking and other Internet usage. According to AVG, the five 'doorways' through which cyber criminals are spreading malware and accessing company data are: Social networks; Instant messaging and spam chat; Insider threats from employees; Unsecured remote technologies used by staff; and USBs and smartphones. 2,000 SMBs were surveyed in the US and UK for the 'AVG SMB Market Landscape Report 2010'. More than half (52 per cent) had no IT security guidelines for their staff, while one in seven had no Internet security software or solutions in place at all.