At this stage, the general answer is No.
But you are in a good position to negotiate an agreed stand-down with employees - particularly if they have been with you for less than 12 months, or if you employ fewer than 15 people.
An employer can only stand down non-casual employees without pay if there is a stoppage of work for which the employer cannot reasonably be held responsible and the employee cannot otherwise be usefully employed. (For casuals, you can simply not roster them on.)
Historically, a downturn in business is not considered a reason which is beyond the employer's control. For example a cineman chain or gym ordered into shut down by the government. Other examples where a stand-down is justified might include an interruption to supply chain or destruction of machinery or work premises.
But as of today (24 March), when pubs (and tap-rooms) are closed except for take-aways, but not breweries, it would only be your staff who are only involved in serving the public on premise who are affected.
There is no case law on the subject which deals with a public health emergency of the current scale. While it might be arguable that circumstances are beyond the control of the employer, there is no confidence at this stage that the argument would succeed if the matter were brought before the Fair Work Commission until a business is actually on a list published by the government as those who must close. Looked at harshly, there is nothing, other than dire economic circumstances, stopping the business from continuing to operate.
That said, in the event that the FWC is called upon to deal with these matters, you would hope that members of the Commission adopt a pragmatic approach. Case law from times of war suggests pragmatism often triumphs over black letter law. The likely worst-case scenario is that the employer would be required to pay the employee normal salary or wages for the period during which they were stood down. A penalty for contravention of the Fair Work Act is also a possibility, but it’s doubtful that even regulators would have, or be willing to use, the resources necessary to litigate those matters.
So the current advice to employers is to negotiate with employees for them to take leave with or without pay. In the event of a stand-down without pay, the employment relationship continues and leave entitlements continue to accrue [i.e. a benefit for an employee, compared to being retrenched, with no guarantee they will get their job back later]. It also appears that Social Security benefits are being made available to employees who are stood down, but remain employed.
The alternative is, of course, to make the employee redundant. That would require immediate payment of any termination benefits, though in the case of:
(1) an employee with less than 12 months service; and / or
(2) if you are a “small business” which employes fewer than 15 staff,
there is again no obligation to make a redundancy payment.
So if you are in that situation, you are in a much better position to negotiate for your affected staff to agree to be stood down.
By the way, we don't do employment law here, so thanks go to my good mate who does - Pete Vitale at https://www.petervitale.com.au/
Does the ABAC Adjudication Panel takes into account the 5 Ps (Product, Price, Placement, Promotion, People)?
Yes and No. It takes into account ‘Promotion’ and ‘Placement’, but not the other 3 Ps
The Code is designed to regulate marketing communications, and whether they are consistent with the ABAC standards. So ‘Promotion’ is a big one that is focussed on.
‘Placement’ is taken into account in terms of TV advertisements not being allowed to be placed during children’s viewing times, and requiring age gate controls to be applied to social media, and requirements about % of viewers of other advertisements being over 18.
Placement was also relevant in the recent Heineken 0.0 advert – which was OK’d by pre-vetting in a print magazine, but then held not to be OK by the Adjudication Tribunal on an outdoor advertisement where people would be driving quickly past and not have a chance to read the fine print.
When the complaint has related to a product’s packaging, a number of producers have tried to rely on ‘Placement’ being effectively within a physically age-gated place, being the bottle shop or pub, where minors are not allowed to be present. ABAC have regularly refused to accept this. (Certainly some licensed cafes and other establishments will permit minors to be in the area where alcohol is displayed and sold.)
But Price, Product and People are not relevant. Even though minors are unlikely to enjoy the taste of beer on most occasions, and certainly unlikely to appreciate say a barley wine or a Black, this is not relevant in front of ABAC. The same goes if a can or bottle was priced at $100 – this would be irrelevant for ABAC purposes.
James Omond gives a detailed insight into what the negotiations between Australia and the EU over protection of geographical indications (GIs) for foodstuffs could mean for the beer industry. And at the end of the interview - more discussion of the use / misuse of pop culture references in labelling.
You can also download the podcast for later consumption!
The ABAC Adjudication Panel has found another social media post involving a skateboard to be in breach of the ABAC Responsible Alcohol Marketing Code.
The latest case involved a Facebook post to a closed industry forum - ‘WA Bartenders’ and ‘WA Restaurant Staff’. The post was made by the producer’s distributor in WA:
The complaint was made on 2 bases – the reference to “healthy drinking”, and the depiction of “a woman about to ride a skateboard”.
The first element was dismissed, but the second was upheld on the basis:
"the Panel believes that skateboarding is self-evidently an activity that to be safely carried out requires a rider to be alert and physically co-ordinated. To show or imply alcohol consumption occurring before or during skateboarding will be in breach of the standard."
The full decision can be read here.
That complaint was upheld on 3 grounds:
The full decision can be read here.
The moral of the story is that alcohol producers need to be eternally vigilant as to what images are posted online that promote their product – and not just by the producer but also their agents, distributors, etc.
Buying or selling a beverage business? first check out these tips and traps from someone who's been there and done that many times
Terrific, well-researched and well-written article by Will Ziebell on The Crafty Pint exploring the issues around the use of names and images of films, characters, confectionery, etc. Not sure he mentioned song names, but the principles are the same.
This is well worth a read.
The 2nd quarter of 2018 has been a busy time for the Alcohol Beverages Advertising Code (ABAC) Scheme.
In ABAC’s own words, it “has seen an unusually high number of breaches of the ABAC Code”.
It would appear that this has come about through the increasing use of inexpensive social media campaigns, especially by liquor retailers, combined with a lack of knowledge of the restrictions in the ABAC Standards.
Also, whilst on the face of it, ABAC Standards only apply to companies and organisations who are signatories to the Code, in one case the advertiser (Premix King Ascot Vale) did not respond to ABAC, and did not remove the Facebook post which was the subject of the complaint, and as a result the breach has been referred by ABAC to the liquor regulator (VCGLR), which is investigating.
And for smaller producers who aren't signatories, they need to bear in mind that the major chains are signatories, so they won't stock any products which aren't ABAC-compliant.
So what were all these breaches?
Three of the breaches involved the use of images of people under 25 years of age on social media (the ABAC standards require models in alcohol advertisements to be at least 25 and appear to be adult) – and in some cases the posts were those of social media influencers.
Some of the complaints also involved failure of advertisers to engage appropriate age-gating controls.
In one instance, the post (below) referred to an alcohol product leading to a loss of dignity, which was a breach because it suggests excessive alcohol consumption and irresponsible alcohol related behaviour.
Another post (right) breached the Standard
which prevents marketing of alcohol which
encourages excessive consumption of alcohol,
or which suggests that the consumption of alcohol
offers a therapeutic benefit.
In a case involving a producer’s social media marketing, Gage Road’s Alby Beer facebook page failed to apply age restriction controls, and a marketing post depicted a young male (under 25 years and possibly under 18 years) skateboarding as the central character -resulting in the finding by ABAC that the post was likely to strongly resonate with males under the age of 18 .
Other complaints included:
Two St Louis (Missouri, USA) craft beer producers have settled their trade mark litigation over the use of a lightbulb on tap decals and other marketing collateral.
As would have been expected by anyone familiar with TM law, the brewer with the trade mark registration triumphed.
Side Project Brewing opened in 2013, and filed to protect its name + logo that year:
Modern Brewery opened the following year, but the owner claimed he had “come up with the lightbulb design years before we ever brewed a drop of beer”, and also claimed he had several conversations with Side Project’s founder before either brewery opened. He said the cost of litigation was why he settled.
The moral of the story is you need to file for trade mark protection as soon as possible.
See http://bit.ly/2xaVaIj for a local press report of the settlement.
Australian Beverage Trade Marks’ founder, James Omond, discusses the ins and outs of trade mark protection for independent brewers with Matt Kirkegaard and James Atkinson in the ‘Beer is a Conversation’ podcast – listen below, or check out the Brews News website at:
You can also download the podcast for later consumption!