Resources: Blogs

It has been more than two years since modern award penalty rates were identified as an issue for review by the Fair Work Commission (FWC) and there is still no ruling from the FWC Full Bench as to whether penalty rates in the hospitality and retail industries will change or remain the same.

Recent Australian Bureau of Statistics (ABS) data has revealed an increase in the number of Australians regularly working from home. Regardless of the reason an employee works from home, confidentiality must be managed through an appropriate policy that addresses situations that are likely to arise both in and outside the workplace.

There has been much attention on the new Netball Australia collective agreement (the Agreement) announced last week. The Agreement, described as a “landmark deal” for women’s sport increases the minimum player salary from $13,250 per year to $27,375 per year.

Thankfully, most employers will never have to concern themselves with disciplining employees for their out of hours conduct, but on occasion an employee’s conduct after business hours and away from work can be so damaging or dangerous that an employer will have little option but to get involved.

One of the first decisions to be made by an employer when confronted with a situation warranting investigation is whether the matter can be adequately investigated internally or whether investigation by an independent third party is warranted.

The NSW Government has proposed changes to the exercise of functions by the NSW Industrial Relations Commission (NSW IRC) in response to a marked decreased workload level.

The Fair Work Commission (FWC) recently heard the final submissions of parties in the casual employment case arising out of the four yearly review of modern awards (the Review). Of particular interest to the parties at the hearing was the operation of casual conversion clauses and how they affect ‘service’ as it is defined in the Fair Work Act 2009 (Cth) (FW Act).

It was reported in the news that an accounting firm was unsuccessful in its application to restrain its former partners from poaching and soliciting its clients after a spelling mistake in an email address meant critical correspondence was not received.

Employees who are employed on working visas (for example subclass 457 or 417 visas) are able to make applications for unfair dismissal and have their case heard by the Fair Work Commission (FWC). An employer who fails to afford procedural fairness to a working visa employee can still find themselves in trouble in the FWC as demonstrated in GS v Dairy Kosher Catering Pty Ltd T/A Milk n Honey [2016] FWC 5284.

There are a range of laws in Australia that protect people who are pregnant from discrimination and most employers are aware that pregnancy related discrimination in the workplace is unlawful. However, assumptions about the capacity of pregnant employees are often made without proper expert advice and unfortunately we are still seeing employers unlawfully act against the interests of pregnant employees.

It has recently been reported that a Melbourne man is about to be sentenced for falsifying accounting documents and obtaining property by deception. The 313 charges laid against the man related to his employment at an electrical store. The man had forged four of his character references to secure the employment.

The Fair Work Act 2009 (Cth) (FW Act) requires Enterprise Agreements to include a consultation clause obliging employers to consult with their employees about “major workplace change” or a change in regular rostering or ordinary hours of work.

Under the Fair Work Act 2009 (Cth), employees have 21 days from the date of the termination of their employment to lodge an application for unfair dismissal with the Fair Work Commission (FWC). If an employee misses this deadline, they are barred from bringing their claim unless they demonstrate to the FWC that exceptional circumstances apply to their case.

If the Fair Work Commission (FWC) finds that an employee’s employment was terminated on the basis of a genuine redundancy, the employee does not have access to the unfair dismissal jurisdiction. However, if the employee’s position was made redundant and the FWC finds that redundancy was not genuine, the employee will be entitled to access the jurisdiction.

Fixed term employment contracts are useful for employers who need to manage a workforce when personnel requirements are uncertain or may change, for example, when needed to trial a project, where a position is dependent on funding, or when needed for a specific period such as a parental leave position.

A recent Fair Work Commission (FWC) highlights the importance of procedural fairness in disciplinary matters.

Jurisdictional objections can sometimes come as an afterthought when employers are faced with defending a claim in the Fair Work Commission (FWC). It’s very easy to get caught up in who-said-what-and-when and forget that if a valid jurisdictional objection is available, you might not have to defend a claim at all. In a recent decision of the FWC, an employer successfully argued that it did not have to respond to an employee’s general protections application because it was jurisdictionally barred.

Last month, the Young Workers Centre in Victoria and Maurice Blackburn Lawyers announced their partnership in a new campaign called Rights for Riders. The campaign will aim to improve safety, pay and conditions and job security for food delivery bicycle riders engaged by on demand food delivery services.

For most employers the disciplinary process with its obligation to ensure procedural fairness usually leads to a well-documented but often protracted process. For small business employers, where an employer has followed and is compliant with the requirements of the Small Business Fair Dismissal Code, the employee is not (generally) to be considered to be unfairly dismissed.

Left unaddressed, workplace conflict can sometimes evolve into allegations of bullying behaviour. A recent decision by the Fair Work Commission (FWC) highlights how the working relationship between a school teacher and Principal deteriorated to the point that an application for an order to stop bullying was made.

On 10 July 2016, a Mount Buller Reindeer Ski Club employee posted to Facebook a scathing assessment of guests employed by recruitment company, Michael Page Recruitment. The Ski Club employee alleged that the 22 guests caused a nuisance, were heavily intoxicated and became abusive to her and the Ski Club’s Manager.

For the first time in history, there are five generations of Australians participating in the workforce at once, and whilst it’s widely acknowledged that Australia has an aging population, what is less commonly appreciated is the pressure for older Australian’s to remain in the workforce.

The ability to counselling employees about their effectiveness in the workplace is important for employers. Unfortunately, not all employees respond to counselling meetings as productively and openly as employers might hope.

Fairness is a term ingrained in the Australian workplace relations system. At the core of our federal industrial relations framework is the Fair Work Act 2009 (Cth), the umpire of our industrial relations disputes is the Fair Work Commission and we employ a minimum safety net of employment conditions for the purpose of ensuring fairness to workers. In fact, there are no less than seven references to fairness (in one form or another) in the stated objects of the Fair Work Act.

As has been widely reported, for the last three years there have been ongoing tensions between the United Fire Fighters Union (UFU) and the Country Fire Authority (CFA). The main reason for the tension is that the parties have not been able to agree on a new enterprise bargaining agreement (EBA).

For some positions, client information is at our fingertips and often just a keystroke or mouse click away. This was the position that a NSW Police Constable was in when he used the NSW Police database system to look up the police record of a woman he was flirting with earlier this year.

For the 2014-2015 year, 79% of unfair dismissal applications made to the Fair Work Commission (FWC) were settled at the conciliation phase. For the 21% that did not settle, some Applicants proceeded to have their matter heard by way of hearing.  If an Applicant is not satisfied with the outcome at the hearing they are able to lodge an application to appeal.  However, in order for an application to appeal to be granted, the Applicant must satisfy the FWC that it has proper grounds for an appeal.

Under work health and safety legislation, persons conducting a business or undertaking (PCBU) have a “primary duty of care” to ensure (so far as is reasonably practicable) the health and safety of workers and others in the workplace. What is “reasonably practicable” will involve a risk management approach where hazards or risks are identified, assessed and then controlled. A control measure for risks that cannot be eliminated may include implementing a safe work method statement (SWMS) for the performance of the work.

When a company is confronted with a downturn in business it can be a very difficult time for both employers and employees. As part of ensuring the financial viability of the business employers are often forced to consider reducing workforce size by way of forced or voluntary redundancies. But, it’s not always the case that an employer needs to resort to redundancies to reduce its wages costs. In a recent decision of the Fair Work Commission, an employer was praised for its efforts to retain staff during a difficult period.

We recently discussed managerial prerogative and the ability for management to direct employees not to wear shirts with a union logo on them in accordance with the employer’s policy. The issue with respect to union material on employee work uniforms again came before the Fair Work Commission in CEPU, AMWU, CFMEU v Laing O’Rouke Australia Construction Pty Ltd [2016] FWC 3699.

The Fair Work Ombudsman (FWO) continues to successfully prosecute and investigate businesses that exploit workers from overseas. In a recent investigation of a Perth restaurant, the FWO found that two overseas workers had been underpaid by their employer to the tune of $13,822. After admitting to a number of contraventions, the employer agreed to enter into an enforceable undertaking with the FWO to make good.

In a recent Fair Work Commission decision in Alcoa of Australia Limited v AWU [2016] FWC 3582, the FWC looked at whether Alcoa was entitled to require all employees, including AWU delegates covered by the World Alumina Australia WA Operations AWU Enterprise Agreement 2014, and working on the Western Australia Mining site, to comply with the terms of the Western Australian Mining Dress Policy.

Last month, the Fair Work Commission handed down a decision criticising a manager for dismissing an employee by text message. This decision is far from the first condemning employers for dismissing employees via text message, but it does highlight the FWC’s ongoing frustration with employers who have no regard for procedural fairness.

It is all too tempting for job hunters to do: lie on a resume to secure THAT job. Employers may be left red faced however when their recent star recruit doesn’t actually have the qualification/s required or the previous experience as they claimed – and it is only discovered after they have accepted the job and commenced work.

The Fair Work Ombudsman has announced a new anonymous tip-off service aimed at encouraging the general public to report businesses that they suspect are doing the wrong thing by employees.

Open-plan offices allow managers to observe their teams at all times much like wardens, but the reverse is also true – employees can likewise see and hear what their managers are up to and may be exposed to information that is not necessarily meant for their consumption.

In Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi-Lo; the Coles Store Team Enterprise Agreement 2014-17 (the Coles Agreement) came under scrutiny. In particular, matters were raised as to whether or not the employees to be employed under the Coles Agreement were better off under the Coles Agreement or under the General Retail Industry Award 2010.

Last week, Fairfax reported that a Norfolk Island public servant had her pay docked after she “committed a breach of discipline” by posting comments on Facebook referring to the island’s administrator as “an a***hole”. This story is a good reminder for both employers and employees about the pitfalls of social media and the blurred line between personal and professional lives.

When an employer decides it would like to implement a new policy or amend one of its existing policies, key steps in the process are sometimes overlooked – communication and training.

In our recent blog we discussed the Fair Work Commission (FWC)’s discretion to make a costs order in exceptional circumstances.  The FWC in F v GHS Regional Pty Ltd [2016] FWC 3120 has decided to exercise its discretion to award costs in favour of the Employer once again.

In an attempt to reduce the gender imbalance in Melbourne University’s School of Mathematics and Statistics, the University is now advertising three permanent positions exclusively for female applicants only.

One of the potential dangers to businesses in the recruitment and selection process is to omit an applicant with a name which may indicate their race, descent, national or ethnic origin from the selection process.

There has been a spate of decisions delivered by the Fair Work Commission recently dealing with terminations of employment arising from the way employees have spoken to their managers. We all know that bad language in the workplace is unacceptable, but employers seeking to dismiss employees as the result of outbursts of profanity must still take the time to properly execute the termination process or risk adverse findings from the Commission.

Generally speaking, most matters in the Fair Work Commission run in a “no costs” jurisdiction. This means that parties bringing or responding to applications in the Commission will be responsible for their own costs - no matter who is successful. However, the Commission does have some discretion to order costs in exceptional circumstances. One such rare decision was handed down last week in G v Toll Holdings Ltd [2016] FWC 2790.

Employers unfamiliar with the unfair dismissal process often overlook an important part of their response to an unfair dismissal application: whether the former employee is even eligible to make a claim!

Cold and flu season is upon us again, which means employers should be planning for the inevitable round of absences. This time of the year presents many challenges for employers, so here are our practical tips for managing the winter months.

Employers are often left completely surprised when an employee makes a claim for overtime payments they claim to have worked over the course of their employment.

It has recently been reported that celebrity fashion designer, Johanna Johnson who has designed gowns for Madonna and Christina Hendricks is being pursued in court by the Australian Taxation Office (ATO) and former employees for more than $1 million. The amount includes at least $300,000 in owed superannuation that had not been paid to employees for many years.

Employers often seek assistance or advice from their lawyers when a sufficiently serious workplace complaint (such as fraud, sexual harassment or bullying) is made. Lawyers may be asked to conduct an investigation into the allegations and prepare a “Confidential and Privileged” report for the employer, the findings of which may be used later in a disciplinary process.

What should employers do when employees leave the business and fail to update their online profiles to reflect the change? Here are our top tips for ensuring that exiting employees don’t damage your business’ reputation because they failed to update their employment status online.

In a recent decision of the Federal Circuit Court of Australia, Rosa v Daily Planet Australia Pty Ltd & Anor [2016] FCCA 312, employers are once again reminded that employment of an employee can only be terminated on a lawful basis.

Employees often argue that they have a “right” to a support person when they are invited to attend a “show cause” or termination meeting.  Do employees have this “right”? Should a disciplinary meeting go ahead if the employee does not bring a support person?

Recently sports and news outlets were abuzz after video emerged of a NBA player captured on video allegedly confessing to cheating on his celebrity girlfriend. The twist in the tale was that the video was secretly filmed by one of his team mates and without the player’s knowledge.

The Workplace Gender Equality Act 2012 (Cth) requires all private sector Australian companies with 100 or more staff to report each year to the Workplace Gender Equality Agency (WGEA).

In the recent Federal Circuit Court of Australia’s decision in Fair Work Ombudsman v Lu’s Healthcare Pty Ltd & Anor [2016] FCCA 506 (Massage Case) massage parlours were warned that failure to comply with the obligations under modern awards and applicable employment laws will not be tolerated.

Every year, employers expend time and money planning, developing and implementing learning and development programs for the year ahead. Indeed, the development of a corporate training calendar is one of the most important human resource functions in any organisation.

The Director of Sona Peaks Pty Ltd (in liquidation) which traded as an Indian food restaurant in Victoria was recently ordered by the Federal Circuit Court of Australia to pay a total of $26,715 (plus interest) by way of an Attachment of Earnings Order to his wages with his new employer Metro Trains Melbourne Pty Ltd.

BlueScope Steel Limited was successful in its urgent Federal Court of Australia application to prohibit a former employee from using or destroying its confidential information, including intellectual property and software.

The “digital water cooler”, where co-workers are able to have informal conversations instantaneously without the worry that their conversations will be saved, is an attractive proposition for many modern workplaces.

The recent Australia Day off-field incident which involved an NRL Sydney Roosters player serves a warning to both employers and employees about the dangers of alcohol and social media.

The Fair Work Act 2009 (Cth) (FW Act) provides that the Fair Work Commission may only make orders to stop bullying if it is found that the worker has been bullied at work and if there is a risk that the bullying will continue.

Last week it was reported that a Bunnings Warehouse (Bunnings) in Melbourne took the unusual step of banning customers (certain tradesmen) from its store for harassing female employees.

In a recent Fair Work Commission decision the FWC commended the Employer for its process in terminating the employment of a habitual latecomer.

In Peter Mulhall v Direct Freight (Qld) Pty Ltd t/a Direct Freight Express [2016] FWC 58 (Mulhall’s Case) Commissioner Simpson ordered the Employer to pay the Applicant $25,468.13 in compensation because the Commissioner found that Mulhall had been unfairly dismissed on the basis of “flimsy” surveillance footage.

A recent decision by Deputy President Bartel of the Fair Work Commission in Jaymon Hocking v Tackle World Adelaide Metro [2015] FWC 6519 (Hocking’s Case) provides yet another valuable lesson for employers in relation to Modern Award compliance.

The decision of the Northern Territory Anti-Discrimination Commission in Frances Newchurch v Centreprise Resource Group Pty Ltd, Mr Graham Ride and Ms Sarah Ride [2016] NTADComm 1 (Newchurch decision) highlights that employers may be found to be vicariously liable for their employee’s discriminatory conduct where it is not demonstrated that it took “all reasonable steps” to prevent the employee from doing the discriminatory act.

Commissioner Peter Hampton of the Fair Work Commission (FWC) has provided some clarity as to whether a volunteer can apply for a stop bullying order in his decision in the matter of Gaylene May McDonald [2016] FWC 300 (McDonald Case).

In order for an Enterprise Agreement to be approved by the Fair Work Commission under the Fair Work Act 2009 (Cth) (FW Act), the proposed agreement must pass the ‘better off over all test’ (the BOOT).

Department store Myer has come under increased pressure from the Fair Work Ombudsman (FWO) after it declined to enter into a voluntary compliance deed with the regulator.

As the weather heats up across Australia, employers may be thinking about the possible adverse effects of heat on employees. While the Fair Work Act 2009 does not specifically address the question of working in heat, some Modern Awards and Enterprise Agreements do.

Last year the Essendon Football Club was charged with breaches of the Victorian Occupational Health and Safety Act 2004 in relation to the Club’s controversial supplements program by WorkSafe Victoria.

On 8 October 2015 Justices Jessup, Bromberg and White of the Federal Court of Australia handed down separate judgments relating to the La Trobe University Enterprise Agreement. This decision may now see employers paying closer attention to what is contained within their policies and enterprise agreements.

The Federal Circuit Court of Australia recently found a director and two managers of a company which operated a Victorian BP Service station personally liable for the underpayment of wages and breaches of the Fair Work Act 2009.

In July 2015 the Federal Circuit Court of Australia delivered its judgment in Huntly v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 (Huntly’s case). The Court found that Corrective Services NSW unlawfully discriminated against Huntly and failed to make reasonable adjustments after she was diagnosed with Crohn’s Disease.

It is often tempting for employers, particularly when under external pressure (for example, from customers, clients, sponsors etc) to overlook or shortcut the disciplinary process and to proceed directly to the termination of an employee’s employment. This failure to commence formal disciplinary procedures may expose employers to liability where the employee claims that he/she was denied procedural fairness.

You may have seen on the internet some daring employees who choose to provide their employer’s notice of their resignation by interpretative dance, song and even cake! Whilst there are many ways that an employee can notify their employer of notice – what happens in circumstances where an employee does not provide proper notice of their resignation?

Employers are often uncertain as to how to deal with the out of work hours conduct of employees.

While the Todd Carney saga demonstrates the immediacy of social media, the subsequent action of the Cronulla Sharks serves as a reminder to employers that procedural fairness is still required in the disciplinary and termination processes.

There is often confusion about what conduct constitutes ‘serious misconduct’ when engaging in disciplinary action or considering summary dismissal as the reason for termination of employment.

Both ‘workplace warriors’ and ‘sickie’ takers are bad for the modern workplace but there are ways that employers and employees can facilitate a change in attitude towards sick leave.

An increasing number of workplaces have introduced drug and alcohol policies which include random drug testing. These introductions are not always warmly welcomed.

Modern day employers are increasingly required to adapt to the sensitivities of their employees – particularly when needing to raise performance issues.

Since the introduction of the modern award system in 2010 many employers have found it difficult to understand the complex requirements. In fact, the Fair Work Ombudsman reported that for the 2013-2014 financial year it recovered more than $23 million for 15,483 workers.

There was much conversation last week regarding the certain sections of AFL crowds booing and jeering former Australian of the Year, Adam Goodes. As most people know Adam is a Sydney Swans AFL player, a proud indigenous man and a prominent advocate on behalf of the Australian indigenous community.

Employers are often faced with the challenging task of how to approach the situation where an employee falls foul of the law as a result of conduct in their personal life.

As our readers are aware, we have previously blogged about including psychological testing as part of a pre-employment medical. Building on that theme we now comment on a recent FWC decision involving an employer’s ability to have existing employees undergo a psychological medical examination.

In the recent case of Mr Christopher K v Linfox Australia Pty Ltd [2015] FWC 3967 the Fair Work Commission confirmed that there will be a valid reason for the termination of an employee’s employment where they are unable to perform the inherent requirements of their position.

Employers will make every effort to maintain confidentiality when it comes to employees who give evidence as part of an investigation. However, should a matter eventually end up before the Fair Work Commission (or similar tribunal) there is no guarantee that the confidentiality will be upheld.

In California, a Commissioner has said that an Uber driver who connects with his customers through the Uber app must be considered to be an employee. This means that Uber drivers are now eligible for reimbursements for expenses and for the minimum wage.

The widely reported decision of Commissioner Stanton in William F v Mt Arthur Coal Pty Ltd [2015] FWC 2343 highlights the importance of witnesses participating in the FWC’s hearing processes.

The implementation and delivery of a work health and safety (WHS) induction program is an important part of the development of a positive workplace health and safety culture for an organisation.

Organisations have obligations to ensure the health and safety of their employees. One way for organisations to manage the risks is by making use of pre-employment medicals (PEMs).

The rate of men growing their beards is increasing all thanks to the current hipster trend. Beards may be non-controversial in some working environment and not permitted in others. When confronted with a growing trend towards facial hair, employers requiring a clean shaven look may be challenged as to the reasonableness (or otherwise) of their appearance requirements for employees.