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Blog

Workplace Law's Blog featuring amendments to the Fair Work Act and more.

Muddying the waters

Adverse action taken against employee for failure to perform duties

The general protections provisions under the Fair Work Act 2009 (Cth) (FW Act) make it unlawful for an employer to take adverse action against a person for a prohibited reason.

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Fly, eagle, fly

Lessons from the Manly Sea Eagles head coach resignation saga

The NRL’s Manly Sea Eagles have faced an uncomfortable situation regarding a key employee in recent times.

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I’m sorry, Dave. I’m afraid I can’t do that

Can a computer be the decision-maker in an adverse action decision?

As the functionality of HRIS increases and technology generally gets smarter, will an employer’s reliance on the recommendations or decisions of a HRIS put the employer at risk?

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Personal-IT

Personal devices in the work context

With so much information at our finger tips, it is easy for the personal and the professional to be confused. This is particularly the case where employees can BYOD (bring your own device) and use their personal devices for work purposes.

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Brand -new day

Employees, their relatives and social media – where is the line?

The 76ers are in the spotlight again following recent posts on the Twitter account of Bob Muscala, the father of one of its players.

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Safety first

Why employers should encourage a strong work health and safety culture

By taking a “safety first” approach, workers are educated in WHS matters, how to report WHS issues, concerns or near misses and are assured that such matters will be taken seriously.

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Better safe than sorry

Best practice for dealing with poor performance issues

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).

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I'm no Wonder Woman

Supporting the mental wellbeing of business leaders

Reports estimate that 45% of Australians will experience a mental health condition at some stage in their lifetime and the mental health and wellbeing of employees is recognised as a significant workplace issue.

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It’s all about me

Employer reasonable in not accommodating employee’s variation of hours request

One of the logistical challenges often faced by employers is the management of rosters and employee working hours. There are a number of factors to take into consideration when it comes to this.

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It wasn’t me

Fair Work Commissioner considers Facebook posts as evidence in an unfair dismissal matter

Employees active on social media (such as Facebook) fail to consider who might be able to see their personal online posts at any given time.

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Notice me!

Notice of termination and the common law

In this blog, we explore the subtleties of one of the most standard clauses in the employment contract- the notice of termination clause.

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No shirt, no service

Fair Work Commission orders the suspension of protected industrial action involving a uniform ban

Under the Fair Work Act, employees are entitled to take protected industrial action in circumstances where they are bargaining for a new enterprise agreement.

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WHS and Sport

College accepts responsibility for death of football player from heatstroke

The tragic death of a 19 year old college football player in the USA serves as a reminder to sporting organisations at all levels about the duty of care owed to their players.

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Paw patrol

Employer considerations for pet-friendly workplaces

Pets are widely understood to have the effect of improving an individual’s mood and reducing levels of stress and anxiety, sentiments that are invaluable in a workplace.

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A moving experience - Part 2

What to expect and what to consider when relocating

In this Part 2, we turn to the types of employment issues employers can expect to face during the process of relocating.

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PCBU fined $375,000 following death of turf stacker

Imported item 102

In yet another decision resulting from a tragic workplace safety incident, an employer has been fined $375,000 after one of its workers was fatally crushed by a turf harvester.

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Deficient work practices resulted in ladder fall death

Imported item 103

The NSW District Court convicted a person conducting a business or undertaking (PCBU) of failing to comply with a health and safety duty after a worker died following a fall from a ladder

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A moving experience - Part 1

What to expect and what to consider when relocating

Down-sizing, upgrading, outgrowing and restructuring – change in the life-cycle of a business is inevitable and changes in size and operational needs often demand a relocation.

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Flight of fancy

Flight attendant’s claim that excessive drinking was not his fault rejected by FWC in unfair dismissal case

Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.

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Cecchin in on your employees

Managing mental health in the workplace

One of the National Rugby League’s (NRL’s) leading referees to retire at the end of the 2018 season has (again) prompted discussion about the obligations of employers when managing mental health in the workplace.

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Are you ready (willing and able) for it?

When employees are unable to perform their contractual duties

One of the fundamental principles of the employment relationship is the work-wages bargain – an employer pays an employee wages in exchange for work performed.

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Law of the jungle - Panthers v Tigers

Sports Law - Employment Contracts

The last 48 hours has seen a lot of discussion in sports media about employment contracts centred around the Wests Tigers, Ivan Cleary and the Penrith Panthers

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Size doesn’t matter

Dismissed employee compensated despite vulgar language

Small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation.

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And a step to the right

Coles loses appeal of $1 million claim for safety step injury

ACT Court of Appeal has dismissed an appeal by Coles Supermarkets and confirmed an earlier decision in which a Coles employee was awarded more than $1 million in damages.

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The fine cut

Small Business Employers and Anti-Discrimination Legislation

Small businesses have a litany of rules, regulations and red tape they are required to comply with, including registration and tax compliance, employee minimum entitlements, fair trading, work health and safety and privacy obligations.

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You say it best when you say nothing at all

The risks of providing unfavourable or false references

There are range of important considerations for those delivering references to take into account and often conflicting interests can creep into the equation.

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Checking it twice

The importance of pre-employment and reference checking in recruitment

Conducting pre-employment and reference checks may turn out to be the most important part of the recruitment process, particularly for senior positions.

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The truth Hertz

Vehicle services attendant dismissed for lying on his CV

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes.

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Yes, yes, no

FWC rejects employee’s bid to reopen unfair dismissal claim after parties fail to sign terms

The purpose of a conciliation is to help the parties resolve the matter without the need go to a full hearing before a FWC member.

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Welcome to the 21st Century

Social Media and Industrial Action

Social media is also recognised as a powerful information sharing tool and many social movements are commenced and advanced online.

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Take me to your leader

FWC Full Bench rejects Aldi’s EAs due to restrictive NERR

At the commencement of bargaining for a proposed enterprise agreement, employers are required to give relevant employees a notice of employee representational rights (NERR).

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Losing on penalties

$200,000 penalty imposed for adverse action taken against employees underpaid because of their race

Fair Work Ombudsman’s (FWO’s) successful prosecution of a hotel operator and its owner who took adverse action against two employees because of their Chinese race and Malaysian extraction.

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Resistance is futile

Modern award basics for employers

One of the biggest challenges for Australian employers is navigating the often complex and confusing landscape of the modern awards.

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Careless whisper

A lesson on the importance of formal communication structures in the workplace

Last-minute meetings and unexpected emergencies (especially safety emergencies) mean that messages and information often need to be relayed to employees almost instantly.

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You’re banned

What to do when a client or host employer won’t work with an employee

Employee, worker, talent, resource, temp, contractor – there is an abundance of terms used to describe the people that perform work in a workplace.

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Nothing but Net

The 76ers Twitter saga and confidentiality in the employment relationship

Sports and pop culture website named ‘The Ringer’ published a report about the NBA’s Philadelphia 76ers that sparked controversy worldwide.

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100% guaranteed

The return to work guarantee under the Fair Work Act 2009 (Cth)

Tennis champion Serena Williams as she returned to her first Grand Slam tennis tournament following the recent birth of her daughter.

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Say it to my face

FWC sends strong warning to employees about social media

Intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

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Respect my authority

Employee awarded compensation for dismissal over Facebook Messenger

Unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.

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I Want It That Way

FWC upholds dismissal following obstructive and uncooperative conduct of employee and union rep

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.

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A New World Language

Managing emojis in the workplace

It started out as the humble smiley emoticon “:-)” in 1982 created by a computer scientist who wanted a “joke marker” to help people decipher his jokes in emails.

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Hush Hush, Hush!

Why the term ‘hush money’ is misleading

Settlement agreements, terms of settlement, deeds of release or release and undertakings are all terms which are used interchangeably to refer to the binding and confidential agreements.

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Jailhouse Rock

Court orders jail term for owner-operator who failed to comply with orders resulting from Fair Work action

In June 2015, Judge Jarrett of the Federal Circuit Court of Australia found that a Northern Queensland-based tour company and its owner had underpaid five employees and contravened the Fair Work Act 2009 (Cth).

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Vendetta, vendetta!

FWC finds attempted character assassination and confidentiality breach valid reasons for dismissal

Managing conflicting personalities can be one of the most challenging aspects of being a manager. Particularly when low level disagreements escalate to formal complaints, investigations, attempts at character assassination and breaches of confidentiality.

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Meet me halfway?

FWC criticises employer’s inflexible refusal of Pilates

FWC has found an employer was unreasonably inflexible when it dismissed an employee who had requested to finish work 15 minutes early to attend prepaid Pilates classes.

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Not on the shop floor

Inappropriate workplace behaviour justified summary dismissal

In a clear sign that employers should act on inappropriate behaviour, the Fair Work Commission (FWC) has held that an employee’s dismissal for serious misconduct arising from his unacceptable behaviour was not unfair.

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Induction Construction

How to level-up your induction process to increase buy-in

Conducting a comprehensive induction for new employees is critical for compliance reasons but should also be viewed as an opportunity to connect new employees to the values and culture.

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Director delusion

FWC finds title of “Director” not sufficient to defeat award coverage

It has often been the case that “managers” and senior officers of an enterprise will not be covered by a modern award or enterprise agreement.

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Show and Tell

Employer ordered to advise employees about FWC’s stop-bullying orders

The purpose of the Fair Work Commission’s anti-bullying jurisdiction is not to punish bullies or to compensate an individual who has been bullied but to prevent future bullying in the workplace.

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Need not apply

Anglo Saxon applicants preferred in online job advertisement

Job advertisements should be carefully drafted to ensure that they focus on the essential skills of the position and not any irrelevant or subjective factors.

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You used to call me on my cell phone

Getting your mobile phone policies right

It is rare to come across someone who does not have their mobile phone in their hand, pocket, bag or otherwise within reaching distance at all times.

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Show me the money

Employee’s failed attempt at extortion resulted in justified dismissal

Baseless complaints or attempts at extortion are capable of amounting to serious misconduct, as exemplified in this case.

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Big Little Lies

Dishonesty in the workplace and the potential remifications

If dishonesty does find its way into the workplace, employers must act swiftly and hold employees accountable where necessary, so that it does not become a part of the workplace culture.

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Pulling up stumps

What the Australian cricket saga can teach us about leadership

Australian sports fans were shocked when three Australian cricketers were caught up in a ball tampering scandal, leading to the downfall of the Australian cricket captain and his deputy.

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Can you back it up?

Dismissal unfair where allegations that an employee leaked information were unsupported and employee’s WHS reporting was justified

Employers should be mindful that employees have a responsibility for health and safety within the workplace and are entitled to (and should be encouraged to) raise health and safety matters.

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PIPped at the post

Dismissed employee’s illnesses not enough to defer performance management processes

A failure to take into consideration an employee’s health concerns during a performance management or disciplinary process may not only place an employee’s health at further risk but can also increase an employer’s exposure to claims under employment, workers compensation, bullying or discrimination laws.

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Coughs and sneezes spread diseases

Managing sick leave during the cold and flu season

For employers, the sick leave provisions of the FW Act and the authority to issue directions are excellent ways to manage both “sickies” and “workplace warriors.”

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Was blind but now I see

General Manager wilfully blind to contraventions

General Manager of a labour hire business was fined $43,000 for his involvement in contraventions of the Fair Work Act.

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The dos and do-nuts

The dos and do-nuts of business growth and expansion

It is estimated that there is over $70,000 in unpaid wages owing to employees, and many of those are international workers on visas who are not eligible for the government-funded Fair Entitlements Guarantee scheme.

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A guy, two part-time jobs and an overtime claim

Federal Circuit Court dismisses claim for cumulative overtime

Multi-hire arrangements are a popular way for employees to supplement their income and to have flexibility.

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Hand it over

FWC finds employee fairly dismissed for refusing to hand over investigation evidence

When an employee refuses to hand over information or evidence that the employer considers is relevant to an investigation, a formal direction may be issued.

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Message delivered

FWC denies delivery driver anti-bullying orders

Where possible, employers should be upfront with their workers about changes to usual business processes and procedures and the reasons for those changes.

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Should I stay or should I go

Employee suspended without pay later terminated due to absence from work

Employers can often find themselves in a difficult position when they are advised by an employee that they have been charged with a non-work related criminal offence and may be unable to attend for work.

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Turn around

What is proper notice of termination and when does the exception to redundancy pay apply?

Some employers operate exclusively on a continuous rotation of cycling client contracts won and lost regularly, but what does it mean for the employees engaged to perform work under those contracts?

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Don’t be so reckless

Work health safety prosecution update

Codes set out the minimum standards to meet work health and safety requirements and are admissible in WHS prosecutions. Guides and Australian Standards will also be relevant safety material that employers should consider when creating safety documentation.

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Let’s keep it casual

“Casual” employee entitled to annual leave after 15 years of service

Issues arise when casual employees are engaged on a long-term basis, have regular and systematic hours and a reasonable expectation of ongoing employment.

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Broken record (keeping)

The importance of keeping employment records and providing pay slips

Employers can be penalised for failing to keep proper records and for failing to issue their employees with pay slips in a timely manner.

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Frozen in time

Outdated yoghurt agreement terminated by the FWC

A teenage employee of a yoghurt shop has successfully applied to the Fair Work Commission (FWC) for the termination of a workplace collective agreement.

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Tired and Sleepy

Worker’s car accident on journey home a reminder of managing fatigue

Employees who are experiencing fatigue pose a work health safety risk to themselves and to others in the workplace.

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Extension tension

FWC to rehear extension of time application following Full Bench finding that partially unexplained delay not fatal to employee’s case

When responding to an unfair dismissal claim or an adverse action claim involving dismissal, there are a range of jurisdictional objections available to employers depending on the circumstances.

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The need for checks and balances on cheques and bank balances

Understanding and preventing employee financial misconduct

Financial misconduct committed by employees is unfortunately all too common in Australian businesses. It can range from invoice forgery to stealing from the register to abusing expense reimbursement entitlements or corporate credit cards.

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Let me go

Voluntary redundancies prove too popular

While it is often an unpleasant process, in some circumstances (depending on the nature of the workforce) employers may choose to call for expressions of interest for voluntary redundancies before moving to compulsory redundancies.

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One strike and you’re out

Facebook and Google’s new workplace dating policy

In a proactive attempt to combat the issue of workplace sexual harassment, Facebook and Google have implemented new policies on dating in the workplace. This new approach adopts a “one strike and you’re out” rule, which states that employees only have one opportunity to ask a co-worker out on a date.

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Recruitment strategies

Conversations in Workplace Relations – February 2018

Welcome to our February edition of Conversations.

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Well that escalated quickly

Worker’s aggressive response was a breach of Code of Conduct and warranted summary dismissal

Implementing a Code of Conduct is vital to establish and maintain expected standards of behaviour in the workplace. For some workplaces, it may also be appropriate for organisations to regulate the out-of-hours conduct and behaviour of employees.

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Living together in (im)perfect harmony

Redeployment not appropriate for employee who did not trust manager

Most employers have a clear understanding of the importance of cultural “fit” to having a happy and productive workforce. Questions about “fit” usually arise during the recruitment process, but are rarely addressed in circumstances involving redundancy and redeployment.

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The last straw

Assaulted worker denied access to workers comp for baiting and taunting co-worker to breaking point

In a recent decision of the Queensland Industrial Relations Commission, a self-insured employer’s decision to deny a worker’s workers compensation claim was upheld on the basis that the worker’s own serious and wilful misconduct lead to his injuries.

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The balancing act

Positive discrimination in the workplace

Across the world, issues of equality and justice have taken centre stage recently. We are experiencing a time of increased awareness about the need to redress past discrimination and prejudice towards many minority groups.

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I’m free, to drive when I want, any old time

FWC finds Uber driver not employee

The Fair Work Commission recently handed down a decision in which it considered whether an Uber driver could be an employee for the purposes of the Fair Work Act 2009.

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New rules

Australian States move toward licenses for labour hire operators

Licensing schemes for labour hire operators will commence operation in both Queensland and South Australia in the first half of 2018, with the Victorian Government also introducing legislation into the State Parliament.

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In the box to the left

The return of employer uniforms on termination of employment

Ending the employment relationship can sometimes be difficult and often, those responsible for facilitating the termination are so relieved to have it all over that they don’t worry about pursuing the return of seemingly insignificant employer property, like used uniform items.

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I can show you the world

Misleading and deceptive conduct in recruitment

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process.

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Puddle trouble

$275,000 damages bill flows from shallow puddle injury

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process.

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Lawful but not reasonable

Employer unreasonably ends Bryon Bay “work from home” arrangement

Employees have an implied duty to obey their employer’s reasonable and lawful directions. Whilst employers cannot direct an employee to engage in conduct which is unlawful, the reasonableness of an employer’s direction will depend on the individual circumstances.

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No Vacancy

Employee’s drunken attempt to re-enter workplace warranted dismissal

An employer who relied on their zero-tolerance alcohol policy when dismissing an employee who drunkenly tried to access the workplace out-of-hours has successfully defended the dismissal before the Fair Work Commission.

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Getting social with it

Conversations in Workplace Relations – December 2017

We cover a range of issues and wrap things up in our final Conversations for this year.

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It’s all in the mind

Psychological and psychometric testing in the workplace

Recently, the South Australian government announced that two of its employees engaged as carers were found unsuitable to work with children, following the introduction of a new testing and screening process involving psychological testing.

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Look what you made me do

Human resources manager ordered to pay $21,760 for her participation in underpayments and falsifying records

In recent years, the Fair Work Ombudsman has made it clear that it is prepared to prosecute not only employers, but also individuals and third parties ‘involved in’ contraventions of the Fair Work Act 2009 (Cth) (FW Act). Most recently, the FWO was successful in its prosecution of a Chinese restaurant as well as its sole director, its human resources manager and its store manager for various breaches of the FW Act, which resulted in 85 employees being underpaid a total of $583,688.68 over a 16 month period.

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Captain Underpants

Undies protest not industrial action – so what is?

In McLachlan v Illawarra Coal Holdings Pty Ltd T/A South 32 [2017] FWC 5167, an employer sought to argue that they validly dismissed an employee for his organisation of, and participation in, unprotected industrial action.

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Time after time

Re-offending directors and their cleaning company to pay hefty penalties for breaching FW Act

In a recent Federal Circuit Court decision, Fair Work Ombudsman v Commercial and Residential Cleaning Group Pty Ltd & Ors [2017] FCCA 2838, Judge Lucev ordered significant penalties against a Perth cleaning company and two of its directors.

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A bird, a bus and a bruised (but not broken) employment relationship

Remedies for unfair dismissal applications

There are two remedies available to an employee claiming unfair dismissal under the Fair Work Act 2009 (Cth) (FW Act) – reinstatement (with any required back-pay) and compensation. Section 390 of the FW Act makes it clear that reinstatement will be the primary remedy and that the Fair Work Commission must not make an order for compensation unless it is satisfied that reinstatement of the person is inappropriate.

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Social savvy

Our 2017 wrap-up of social media in the workplace

There is no doubt that social media has changed workplace relations. It has impacted the employment relationship and the relationships employees have with each other. We look back on some of the more interesting social media cases from the year that was 2017.

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You’re invited! (but BYO party)

Organising social events for employees

It is almost undisputed that the majority of Australian workers are spending more of their time at the workplace. It is therefore unsurprising that employees and employers are becoming more concerned with the quality of the time that employees spend at work and the relationships they have with their co-workers.

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Send me your location

Use of GPS devices in the workplace

In Colella v Aroona P&T Pty Ltd T/A Aroona Alliance [2017] FWC 5533, the Fair Work Commission decided an unfair dismissal case involving GPS tracking, alleged absenteeism and interference with a GPS device.

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Departures, flexibility & interns

Conversations in Workplace Relations – November 2017

In this month’s edition of Conversations we look at: What a business should do to protect itself against sudden leadership departures; Managing flexible work requests and arrangements; The dangers of unpaid and under-paid employment; and Why one employer entered into a compliance deed to avoid potential worker exploitation. We then discuss the use of statutory declarations and the fallout of providing false statutory declarations & more.

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Why, I do declare!

Statutory declarations in the employment context

In Australia, we rely on statutory declarations for a range of purposes, from declaring identity details when documents are lost to making statements about particular situations, including in the employment context.

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Safety not guaranteed

Workplace bullying and work health and safety

Just like other risks to health and safety in the workplace, a person conducting a business and undertaking (PCBU) must take steps to eliminate or minimise the risk of bullying.

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Flexed to the limit

How the Fair Work Act encourages flexibility in the workplace

A recent survey conducted by global workplace solutions group, ManpowerGroup, has revealed that almost 90% of workers are opting for, or at least open to, arrangements that allow for flexibility in lieu of traditional “9 to 5” work arrangements.

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Let me restart

Anti-bullying orders issued to employer and employee to reset the employment relationship

The anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) (FW Act) gives the Fair Work Commission (FWC) a broad power to make any order it considers appropriate to prevent a worker from being bullied at work (except an order which requires monetary payment).

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Top of the food (supply) chain

Woolworths enters compliance deed to eliminate trolley collector exploitation

Earlier this year, we told the tale of the of the trolley collectors in Once upon a trolley – an ongoing saga involving underpayments, vulnerable workers and the Fair Work Ombudsman’s (FWO’s) scrutiny of labour supply chains. In that blog, we focussed on an enforceable undertaking that involved Coles supermarkets and the FWO. Now, Woolworths have come to the trolley collectors’ party, this time in the form of a Proactive Compliance Deed with the FWO.

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