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Procure IT v3.0 Service Modules Released

Wednesday, April 18, 2012
They were worth waiting for....  NSW Government can now buy ICT services from industry under the new business-friendly standard Government contract - Procure IT version 3.0.  NSW Government has recently published a series of Modules for use with Procure IT v3.0 covering:
  • Contractor Services (body shopping and short term ICT Consultancy under the direction, control and supervision of the buyer)
  • Professional Services (Professional services where the supplier exercises 'professional' judgement)
  • Training Services (as part of a project.  This Module does not cover public classroom based training).
  • Data Migration Services (data migration, data cleansing and analysis).

Which Government buyers can use it?

The publication of these Modules enables NSW Government buyers: including NSW Departments, Agencies, Hospitals, State owned Corporations, Local Government and Universities (to name but a few of the 10,000s of 'NSW government entities' that are entitled to use the Procure IT v3.0 contract), to purchase this range of services. 

ITS 2020

And publication was just in time, as the extension of one of the NSW Government's major Services panels, ITS 2020, has just occurred and this panel relied on the publication of these Modules in order to be effective.  ITS 2020 approved supplier panel comprises of a diverse range of ICT services, in over 30 categories and 130 sub categories.


There are a couple of legal issues with one of the Modules, Training Services, in that this Module is not referred to in the main Parts of Procure IT v3.0, so amendments will be needed on each order to ensure that the Training Services are subject to the appropriate 'boiler plate' terms and conditions; but overall these Modules represent a significant improvement over the previous versions of Procure IT. 

Where can I find the version of Procure IT version 3.0

The new version of Procure IT v 3.0 is published on the NSW Government Procurement website at:http://www.nswprocurement.com.au/Tenders/Goods---Services-Standard-Form-Documents.aspx

Pym’s Technology Lawyers has been the primary legal adviser to AIIA during the discussions with NSW Government on Procure IT.

Author: Mike Pym, Director, Pym’s Technology Lawyers.  A member of the Panel of Expert Bloggers on commun-iT and an expert on www.aiia.biz

Disclaimer: This is general information only. It is not legal advice, and is not a substitute for legal advice. Specific advice should be sought to take into account your particular circumstances. Pym’s Technology Lawyers Pty Ltd is a specialist IT and commercial law firm. It has liability limited by a scheme approved under Professional Standards Legislation.


Employee, not Employer, Ordered to Pay Damages for Sexual Harassment

Monday, April 16, 2012

In a recent decision of the Administrative Decisions Tribunal of New South Wales (‘the Tribunal’), an employee has been ordered to pay damages to a co-employee for sexual harassment. The co-employee brought an action against both the employee and their employer under sections 22A, 22B(6) and 53 of the Anti-Discrimination Act 1977 (NSW) (‘the Act’). Sections 22A and 22B(6) of the Act detail what may constitute sexual harassment. Section 53 of the Act concerns the extension of liability to employers when an act by an employee that violates the Act has been authorised, either expressly or by implication, by the employer.

The employee and co-employee had been colleagues for “some time”, and attended a staff training day together. Upon conclusion of the training day, the employee provided the co-employee with a folded piece of paper which the co-employee read later in her hotel room. Upon doing so, she discovered the paper contained “sexually explicit material” (‘the Note’) and said she felt “physically ill”. Given that the Note was unsigned, it was unclear who had originally written it. As the co-employee was frightened, the co-employee reported the events to the police immediately and then to her supervisor at work the following day. The employer commenced an investigation, interviewing the employee and co-employee several times. As a result, the employee was disciplined and was notified that his employment “would be terminated should another similar incident arise”.

The Tribunal found the Note was not authored by the employee but could not “come to any reasonable explanation as to why, in fact, the note was given to” the co-employee. The employee alleged that he provided the Note as he was concerned with the conduct of the person the Note referred to and wanted to warn the co-employee not to trust the person the Note referred to. The employee also alleged that he warned the co-employee of the graphic nature of the Note, to which the Tribunal disagreed.

The employer submitted that it provided the employee with mandatory and regular training and education during his employment in relation to the employer’s position on harassment, discrimination, bullying and the code of conduct. The employer also submitted that it did not authorise the employee to undertake the conduct.

The Tribunal found that the “steps taken by the employer were sufficient” as the employer had presented employees with the code of conduct policy on numerous occasions and ordered that it was essential for them to abide by the same. In this regard, the Tribunal reiterated that “it is not enough for an employer merely to institute policies; the policies need to be implemented and brought to the attention of the employees in a meaningful way.”

However the Court found the employee did contravene the Act, and following an assessment of the employee’s mental condition after the events that occurred, ordered that the employee pay the co-employee $10,000 in damages.

This case highlights that more than the mere introduction of polices is required in order for an employer to defend itself against claims of sexual harassment. Employers must ensure that they educate and train their employees on a regular basis on such policies. If you would like advice on the adequacy of your company’s bullying and harassment policies and obligations, please contact Nick Stevens or Liza Isho.

Author: Nick Stevens, Principal, Stevens & Associates Lawyers, an AIIA.biz expert and one of the Panel of Expert Bloggers.

This article provides general information only. It is not legal advice, and is not a substitute for legal advice. Specific advice should be sought to take into account your particular circumstances. Stevens & Associates Lawyers is a boutique industrial relations and employment law firm. It has liability limited by a scheme approved under Professional Standards Legislation.



Restraint not Effective

Tuesday, April 10, 2012

Justice Sifris of the Supreme Court of Victoria (‘the Court’) has allowed a former employee of a company (‘the Employer’) to work for a previous client of the Employer despite a twelve (12) month restraint clause in the employee’s employment contract (‘the Agreement’). The Agreement stated that for a period of twelve (12) months after the employment ended, the Employee would not provide services or accept employment with any client of the Employer to whom the employee dealt with or had cause to be in contact with during his employment with the Employer (‘the Restraint’).

In February 2011, the employee began to provide services to a client of the Employer (‘the Client’) on a full-time basis. In November 2011, the Client went through a restructure, creating a new position. In December 2011, the Client approached the employee to determine his interest in filling the new position as an employee of the Client and the Employee advised the Client that he was interested.

 In January 2012, the Employee tendered his resignation to the Employer advising he would be taking the new position with the Client. The Employer advised the Employee that this would be in breach of the Restraint.

 In interpreting the Restraint, Justice Sifris held the Restraintpurports to operate to prohibit [the Employee] from providing any of the services normally provided by [the Employer] at the time [the Employee] finished working there to the clients that [the Employee] had actual contact with while [with the Employer] or had demonstrated reasons to be in contact with.”

 The Employer submitted the Restraint was “confined and did not go further than protecting the legitimate interests” of the Employer. Conversely, the Employee submitted that there was no legitimate interest that required protection.

 In determining whether the Restraint was valid and enforceable, Justice Sifris noted that “something more than exposure to or interaction with the customer or client by the employee is required…This would include personal or special knowledge (which may include confidential information) of the client and a significant degree of influence. It should be stressed that the risk of exploitation of such knowledge and connection, which the covenant seeks to protect, must be assessed at the date of the agreement.

 Justice Sifris held the Restraint was “void and unenforceable” finding the nature of the relationship between the Employer, employee and the Client did not place the employee in a “special category that would create the risk of exploitation that required protection by covenant…[the Employee] was not intended to be…the human face of [the Employer] or have the relevant and necessary control over the business of the client. His consultancy position… was not intended or contemplated to provide the basis for the development of a special relationship with the client of the kind that would provide the basis or foundation for later competition or exploitation.”    

This case highlights the importance of having properly drafted restraint clauses within employment contracts and confirms the issues that will be considered when a Court considers whether a restraint is enforceable. If you would like advice on post employment restraints, please contact Nick Stevens or Liza Isho.

Nick Stevens, Principal, Stevens & Associates Lawyers, an AIIA.biz expert and one of the Panel of Expert Bloggers.

This article provides general information only. It is not legal advice, and is not a substitute for legal advice. Specific advice should be sought to take into account your particular circumstances. Stevens & Associates Lawyers is a boutique industrial relations and employment law firm. It has liability limited by a scheme approved under Professional Standards Legislation.




Insurance market in Transition

Friday, April 06, 2012

There is a lot of talk about an insurance market in transition. But what does this mean for you as a business owner. In short, it means premiums are on the rise. But here is a bit more about why this is the case.

Rate increases and tightening terms are inevitable in the current environment as insurers absorb the impacts of increasing weather claims, claims inflation, reinsurance pressures and increasing volumes of smaller claims.

There has been a general trend towards increased spring and summer monsoonal rainfall across Australia’s north during recent decades, and decreased late autumn and winter rainfall across southern Australia.

For Australia as a whole, an increase in the number of dry days is expected, but it is also likely that rainfall will be heavier during wet periods. It is likely (with more than 66 per cent probability) that there will be fewer tropical cyclones in the Australian region, on average, but the proportion of intense cyclones is expected to increase.

One effect of widespread damage is known as ‘demand surge’. This is where repair costs spike up as a result of the large amount of work that needs to be carried out by a limited supply of repairers.
As the Insurance Council of Australia (ICA) pointed out in its submission to the National Disaster Insurance Review (NDIR) last year, many communities are becoming more prosperous and densely populated. Consequently, construction and rebuilding costs increase annually, as do the values of the individual assets.
Reinsurers are also feeling the effects of the increased frequency in natural catastrophe events. Earthquake losses in 2011 have made the biggest impact compared to prior years where tropical cyclone activity contributed heavily to annual catastrophe loss activity. Even excluding earthquake events, the 2011 losses surpassed the average of recent years.

Most insurers are adjusting pricing, and in some instances deductibles, to ensure that they continue to be able to deliver sustainable products to customers. While the increases will be spread across products and geography, there will be higher increases in those areas that are more exposed to weather related claims, in particular Northern Queensland, and in those products where rates have not been keeping up with underlying inflation.

Alex Bodnar - Authorised Representative of Insurance Advisernet. A member of the Panel of Expert Bloggers on commun-iT and an expert on www.aiia.biz

Disclaimer: The information in this publication is of general nature as a service to interested parties. This article is not intended to provide a complete discussion of the subject and should not be taken as advice. While the information is believed to be correct, no responsibility is accepted for any statements or opinion or error or omission.

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