Resources: Blogs

In a significant recent decision, the Full Bench of the Fair Work Commission held that an UberEats delivery driver was not an employee, with the majority finding that the delivery driver was in fact an independent contractor.

The unfair dismissal provisions of the Fair Work Act 2009 (Cth) provide a mechanism by which employees who have been unfairly dismissed can seek a remedy through the Fair Work Commission. However, not all employees will be protected from unfair dismissal and able to make a claim.

In R v Sapform Pty Ltd [2020] NSWDC 86, the NSW District Court (the Court) has criticised a formwork company for attempting to blame a worker who died after he was impaled by a metal bar when he fell from a height. The company was convicted and fined $450,000 for a Category 2 offence for the fatality.

The Fair Work Commission (FWC) has a vital role to play in the management of the current COVID-19 pandemic as it continues to impact employment relationships across the country.

The regulation of industrial action in Australia is complex. Whilst there is a need to acknowledge the rights of employees to engage in industrial action, the overall effect of industrial action on an employer’s business operations cannot be understated. Strikes or work stoppages and delays can have serious financial and reputational consequences for a business.

The coronavirus pandemic has not only upended our social and family lives, for many of us it has also required us to fundamentally change the ways that we work, including working remotely. When once employees could meet up to collaborate on projects, or chat face to face with each other, employees have now been confined to their homes, physically working in isolation.

The power of the Fair Work Commission (FWC) to make orders in applications for stop bullying orders is unique. While the ambit of the FWC’s power is broad, in that it can make any orders that it considers appropriate (other than orders providing for monetary compensation), those orders must be directed at preventing or stopping workplace bullying.

In response to the impacts of the COVID-19 pandemic on businesses and employment across Australia, the Fair Work Commission (FWC) has already introduced (and proposes to further introduce) a range of temporary variations to modern awards to provide increased flexibility for employers and employees during this challenging time.

Managing underperformance is a difficult process and employers should always bear in mind that personal or other extenuating circumstances may be impacting a particular employee’s performance.

Bonuses and incentive schemes can be extremely successful in driving individual employee performance and overall business performance. A significant amount of work can go into crafting such a scheme - from market predictions to setting appropriate targets, drafting motivational communications to employees, and, very importantly, careful drafting of scheme documents.

The commencement of a disciplinary process against an employee is not an insignificant matter. It serves to notify an employee that their employer has serious concerns about their employment; whether that is the standard of the employee’s performance, their conduct or their behaviour.

Dismissing an employee for inappropriate conduct can be a challenging process, particularly when the employee does not accept that their conduct was inappropriate.

Federal and State anti-discrimination legislation makes it unlawful for employers to discriminate against or harass a person in their employment. The legislation also places liability on employers for the discriminatory conduct of their employees.

When an employer is required to make changes to the workplace which are likely to have significant effects on employees, the employer must ensure that it meets any consultation obligations which might apply under various laws and industrial instruments prior to implementing any redundancies that might arise.

No profession loves hard copies of records more than lawyers – but it is often human resources who have the most to do with record keeping, particularly in relation to retaining employee records.

In the reporting year 2018/2019, the Fair Work Commission (FWC) received 13,928 unfair dismissal applications. Undoubtedly, unfair dismissal applications are amongst the most common received by the FWC.

Employers place a significant emphasis on workplace culture, and rightly so – a workplace that holds itself and its employees to a high standard - set against an identified set of values - is likely to garner support and respect from employees, clients and the public.

The Federal Court of Australia has ordered the Australian Workers Union (AWU) to pay $18,000 in penalties following its pursuit of disciplinary action against its own members.

Organisational change is a constant for business – whether it involves wider cultural change within a company, the introduction of new technology or systems of work, or even a restructure or downsizing of the workforce.

An external HR consultant and a supervisor have been found accessorily liable for contraventions of the Fair Work Act 2009 (Cth) (FW Act) after they were involved in the dismissal of an employee who raised a potential award non-compliance issue.

In recent times there has been widespread publicity about the outbreak of a respiratory illness caused by a coronavirus, which has spread from the Hubei province in China and has since been identified in other countries, including Australia.

Employers often supplement their workforce by utilising casual employees to perform work in addition to that performed by permanent employees. While such engagements might start out as irregular (or, truly casual), it is not uncommon for casual employment to become regular and systematic, and for a casual employee to develop an expectation of continued employment.

It goes without saying that employees should treat each other with respect and courtesy in the workplace. In a recent decision, the FWC was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal.

As we have discussed in previous blogs, it is not uncommon for an employer and employee to enter into a deed of release or settlement when ending the employment relationship.

An employer’s past job advertisements, which stated a preference for “Asian staff”, have been used by the Fair Work Commission (FWC) to support its finding that an employee was dismissed because she was not of Chinese descent.

The Fair Work Commission recently issued interim orders in an application for orders to stop bullying, which required the parties to, amongst other things, treat each other with respect and dignity, and to not yell in an unreasonable manner.

Performance management is a challenging process, which can be further complicated when employees are working remotely.

The Fair Work Commission (FWC) has endorsed the approach of a HR team in their management of an injured worker and the subsequent termination of her employment resulting from her incapacity to perform the inherent requirements of her role.

A recent dispute between one of Australia’s leading sports agencies and two of its ex-employees is a reminder to employers about the importance of implementing processes to protect confidential information, including that of their customers and clients.

When considering claims of adverse action under the Fair Work Act 2009 (Cth) (the FW Act) a key focus of inquiry is the actual reasons of the decision-maker for engaging in the action.

A bottle shop attendant in Cairns was recently awarded compensation in excess of $39,000 after she was dismissed for being pregnant.

One of the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act) is the entitlement for employees in particular circumstances to request a flexible working arrangement with their employer. Such requests can only be refused by employers on reasonable business grounds.

There have been a number of prosecutions this year that have resulted in workplace bullies being found to have breached their duties under State and Territory work health and safety legislation

A NSW scaffolding business has been convicted and fined after it pleaded guilty to an offence under the Work Health and Safety Act 2011 (NSW) (WHS Act) (SafeWork NSW v Sydney Hoist and Scaffolding Pty Ltd [2019] NSWDC 442).

Australians love sport – whether that is playing, watching on television, hosting match-day barbecues or attending live sporting events. Understandably, sport ignites a significant degree of passion and excitement for everyone involved, including spectators.

The Full Court of the Federal Court of Australia recently handed down a decision that is likely to have significant impacts on the accrual and taking of personal/carer’s leave, not to mention the management of the entitlement by employers.

There is no doubt that swearing in the workplace is unacceptable - the Fair Work Commission (FWC) has repeatedly held that swearing in an abusive manner that is directed towards others is a valid reason for dismissal.

Workplace bullying can be extremely serious and should not be tolerated by employers.

The Fair Work Ombudsman (FWO) is responsible for ensuring compliance with workplace laws.

The rapid rise of concepts such as the gig economy has seen a significant shift in our understanding of the differences between independent contractors and employees.

No employer operates in a silo – all employers operate in complex systems of interrelated stakeholders including employees, customers, other businesses, and regulators who enforce the laws that apply to the employer and their business.

In the lead up to our webinar titled “Hold the Line! – Restraints & Employment Contracts” on 28 August 2019, we wanted to share some of the main discussion points and prominent cases on the topic of restraints of trade.

Work health and safety legislation aims to provide protections for workers and other persons by eliminating or minimising risks to health and safety.

The Fair Work Commission (FWC) has recently ordered the re-instatement of a dedicated pelican feeder in the San Remo region in southern Victoria who worked only one hour a week, finding that his dismissal was without valid reason and procedural fairness

Discussions with employees about restructures and redundancies are difficult and emotions often run high.

Workplace Law’s managing director, Athena Koelmeyer, recently presented our webinar entitled ‘Managing Workplace Behaviour’ during which she discussed many of the challenges faced by employers when it comes to managing workplace behaviour.

Employers regularly have to deal with issues relating to employee behaviour, work performance and misconduct.

Terminating an employee’s employment can be a confronting situation. It is difficult news to deliver and is often fuelled with emotion.

Racial abuse from fans and/or members certainly falls foul of discrimination laws and can lead to significant questions being asked of clubs and organisations about what steps they took or could have reasonably taken to prevent players from being subject to such behaviour.

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

Managing employee exits can be tricky business, particularly when dismissing an employee for unacceptable conduct and behaviour.

There are benefits to engaging individuals as independent contractors where there is a particular task, project or specialised kind of work that needs to be performed.

It has unfortunately become a common occurrence for employees who are subject to management action to immediately seek redress by filing a claim against their employer (or other employees) alleging things such as adverse action, discrimination or bullying.

The model Work Health and Safety Act (Model Act) imposes a duty on officers to exercise due diligence to ensure that the person conducting a business or undertaking (PCBU) complies with safety duties.

When emotions are running high and differences are unable to be resolved, employees often turn to the anti-bullying jurisdiction of the Fair Work Commission (FWC).

A recent decision of the Fair Work Commission (FWC) has reminded employers of the importance of taking a measured and consistent approach to enforcing workplace policies and procedures.

Defamation in the workplace is more often than not associated with disgruntled employees making adverse or negative remarks about their employer (or former employer).

The Fair Work Act 2009 (Cth) (FW Act) provides that a person will not be unfairly dismissed where the person was dismissed as a result of genuine redundancy.

One legal instrument commonly used to provide the parties with assurances about the finalisation of matters between them is a deed of release.

The NSW District Court has convicted and fined a KFC franchisee after a young worker sustained third degree burns when his foot slipped into hot oil while he was cleaning the hoods of an overhead ventilation system.

Some employers may find themselves in the situation where an employee fails to show up to work for a period of time with no notice and no communication about their absence – never to be heard from again.

In response to an application to stop bullying, the Fair Work Commission (FWC) has the power to make any orders it thinks necessary to prevent workplace bullying from continuing.

A suspension is a reasonable and lawful direction from an employer where, for the period of suspension, an employee will not be required to perform their duties in the usual manner they would normally be performed.

When dealing with litigated matters, we cannot stress enough the importance of having evidence and witnesses that are credible and reliable to support a party’s position in the proceedings.

According to the Fair Work Commission’s (FWC’s) most recent annual report, unfair dismissal applications are by far the most common type of application lodged with the FWC.

It is becoming increasingly challenging for employers and employees to understand where the line is between a relaxed, open and friendly workplace culture

Under workers compensation legislation, the “reasonable action” defence is one often relied upon by insurers against claims of work-related psychological injury.

The matter involved a history or unacceptable conduct by an employee that resulted in the termination of his employment.

The introduction of family and domestic violence leave entitlements into modern awards and the Fair Work Act 2009 (Cth) (FW Act) last year was a significant development in Australian workplace relations.

The FW Act provides a minimum entitlement to redundancy pay in situations where an employee’s position is genuinely made redundant.

The FWC has reduced an employee’s entitlement to redundancy pay to nil after an employer successfully argued that it obtained ‘other acceptable employment’ for the employee, which the employee had refused.

A recent decision from the District Court of New South Wales has highlighted the importance of a host employer’s duty of care to any labour-hire worker it engages where the work directions and conditions are within the host employer’s knowledge and control.

Australia’s anti-discrimination legislation imposes positive obligations on employers to make reasonable adjustments in the workplace to accommodate an employee’s disability, unless doing so would cause unjustifiable hardship to the business.

In a matter recently before the Federal Circuit Court of Australia an employer successfully claimed that an employee acted unreasonably in the course of proceedings and the employer was awarded costs of $35,000.

Conviction under work health and safety legalisation can result in significant fines and/or imprisonment.

What does “workplace culture” really mean and what happens when workplace culture becomes damaged or toxic?

An employer was ordered to pay $10,000 in compensation to a former supervisor who had been dismissed five months into her probation period.

A workplace incident involving a worker struck by a forklift has demonstrated the importance of having documented systems of work and induction processes in place that are accessible for all workers.

In most cases, it is clear when an employee is dismissed or has resigned. There is usually some formal discussion or at the very least, a termination or resignation letter.

Under workers compensation legislation, an employer will only be liable for an injury if that injury arises out of or in the course of the worker’s employment.

We all have different hobbies, activities or interests we want to share with our friends and colleagues. However, not all interests are appropriate for the workplace.

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

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.

Employees making claims against their employers are able to name individuals they believe to have been involved in the contraventions of the FW Act that make up their claim.

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.

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.

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

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?

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).

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.

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

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.

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.

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

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