Resources: Blogs

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.

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.

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

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.

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

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.

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.

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.

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.

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

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.

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.

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

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.

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

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

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

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

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.

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

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

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.

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

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

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

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

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

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

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).

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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

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.

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.”

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

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.

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.

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.

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

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

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.

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?

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

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

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

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.

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.

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.

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.

Welcome to our February edition of Conversations.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

It’s true that many safety breaches in the workplace are the result of momentary lapses in judgement, however employees who are recklessly indifferent to their health and safety obligations will not always be saved by arguing this point.

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).

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.

Work experience placements, vocational placements and internships can be particularly beneficial to students as they not only provide invaluable experience in a workplace but can often lead to opportunities for permanent employment. In such cases, there must be a clear distinction between the initial unpaid engagement and the ensuing employment relationship.

Consider the scenario of a CEO who has been with a company for over ten years. The CEO advises shortly before the end of the financial year that they will be leaving to join another company… How does a business respond to this scenario?

In its first ever underpayment prosecution relying on the race discrimination provisions of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Ombudsman has successfully established that two employees of Chinese descent and Malaysian extraction were underpaid because of their race and/or national extraction.

In this month’s edition of Conversations our feature discussion is on older employees. We look at the value older employees can add to a business – think of the movie The Intern starring Anne Hathaway and Robert De Niro. We also tackle the issue of age discrimination in recruitment and look at ways to keep older employees engaged as workplaces embrace technology. We close off the discussion in our blog titled End of the line by looking at a recent age discrimination claim arising out of a termination.

At the end of the employee lifecycle, older employees often face ageism where they are perceived to be coming to the “end of the line” and are “ready for retirement” or forced to retire in order to bring in “young blood.”

In the modern day workplace, employers are becoming increasingly reliant on computer systems and introducing new forms of technology and equipment to increase productivity and output. It is often therefore a requirement that employees be proficient in certain computer programs or, at least, that they undergo training to become proficient.

We’ve all heard of “blind” recruiting, particularly in the early phases of the recruitment process, but what about the opposite? Actively recruiting based on a visual medium? Look no further than the “Snaplication.”

The world has been following the NFL with keen interest these past few weeks after President Trump called on NFL owners to fire players who refused to stand for the US national anthem and flag before a game – raising interesting questions for us sports-loving employment lawyers.

All too often workplace disputes arise out of conversations or meetings where the participants have wildly different versions of events. The parties then end up before a court or the Fair Work Commission (FWC) where a judge or FWC member is tasked with deciding whose evidence they prefer – essentially, who appears to be more credible and reliable.

In determining whether an employee’s termination was harsh, unjust or unreasonable, s 387 of the Fair Work Act 2009 (Cth) (FW Act) provides a list of criteria the Fair Work Commission will consider. One such criterion is whether there was any unreasonable refusal by the employer to allow the person to have a support person present in any discussions relating to dismissal.

A recent decision of the Fair Work Commission has highlighted the importance of correctly managing employees’ requests for annual leave (Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park [2017] FWC 4626).