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Employer Wins Request for Legal Representation

In a recent decision the Fair Work Commission (FWC) granted permission for a large-scale national employer to be legally represented in proceedings even though the applicant was unable to afford legal representation.

Restrictions on Legal Representation

Under the Fair Work Act a person may not be represented by a lawyer in a matter before the FWC except with the permission of the FWC and which can only be granted if:

  • it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;
  • it would be unfair not to allow the person to be represented because the person is unable to represent themselves effectively; or
  • it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The Facts

In Slemint v ALH Group Pty Ltd:

  • the applicant commenced unfair dismissal proceedings in the FWC
  • the employer was a large-scale operator of over 300 licenced venues and hotels across Australia employing over 5,300 workers
  • Continue reading…

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Personal Leave – Have You Calculated It Correctly?

Two recent rulings have thrown the workplace arrangements of two large-scale employers of shift workers into chaos as they potentially may result in mass underpayment claims being made against hundreds of businesses around the country.

The Issue

Under the National Employment Standards (NES) full-time employees receive 10 days paid personal/carer’s leave per year of service and each work-day day is calculated as being comprised of 7.6 hours.

The Mondelez Decision

In the Mondelez decision a dispute arose in respect of their enterprise agreement:

  • it provided “80 hours per annum” for paid personal/carer’s leave rather than 10 days per annum under the NES
  • the FWC was concerned the provision would deprive Mondelez’s 10 and 12 hour shiftworkers from receiving the full NES entitlement of 10 days per annum
  • the FWC had to decide whether the NES entitlement meant 10 days x 7.6 hours or 10 days x actual hours worked being either 10 or 12 hours for its shift workers
  • Continue reading…

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Warning! Casual Employee Entitled to Annual Leave

In a major decision, the Full Bench of the Federal Court has held that a worker expressly engaged as a casual was entitled to annual leave and other entitlements upon termination.

In our view, in doing so the Court has cast doubt on decades of accepted industrial practices and the decision threatens to undermine casual employment relationships around the country.

The Facts

In WorkPac Pty Ltd v Skene:

  • the employee was employed by a labour-hire company in the mining industry as a dump-truck operator and the employment was governed by the WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (Agreement)
  • although the letter of employment stated he was a casual, he was subject to a continuous 7 day ‘fly-in, fly-out’ pre-set roster arrangement, worked regular and systematic shifts, stayed in accommodation at/near the mine and was expected to attend each shift
  • an ‘all-in flat rate’ of pay was payable for each hour of work although WorkPac did not specify what entitlements this flat rate of pay purported to absorb
  • Continue reading…

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Bullying and Harassment Claims High in Local Government

Safe Work Australia have identified that local government employees are the third most represented group when it comes to compensation claims for Workplace Bullying and Harassment.

For the three years to 2016, approximately 190 local government employees received compensation for workplace bullying and harassment a year.

Bullying and harassment can take varying forms. It can be subtle or take the form of more overt behaviour.

What is Workplace Bullying and Harassment?

Bullying at work, as defined by the Fair Work Act 2009, occurs when:

  • a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work; and
  • the behaviour creates a risk to health and safety.

However, bullying does not include reasonable management action carried out in a reasonable manner.

Wollondilly Shire Council

David Wilson aged 61 years, plant operator, took his own life the same day that he was informed that his most recent complaint was found to be unsubstantiated.
Continue reading…

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Director Record Keeping Duties

Company directors have financial record keeping duties under the Corporations Act and substantial penalties can apply for a failure to maintain adequate financial records.

What are the duties?

All companies are required to keep and maintain accurate financial records which:

  • correctly record and explain the company’s transactions and financial position
  • would enable true and fair financial statements to be prepared

What are financial records?

In essence, financial records:

  • are broadly defined in the Corporations Act and include invoices, receipts, bills of exchange (eg. cheques), promissory notes, documents for prime entry (eg. cash books and journals) and working papers
  • must be retained by the company for at least 7 years after completion of the transactions to which they relate

How are financial records to be kept?

The financial records may:

  • be stored in electronic form provided they can be converted into hard copy within a reasonable period of time
  • be kept in any language, however, an English language translation must be provided within a reasonable period of time if requested by a person entitled to inspect the records
  • Continue reading…

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FWC Reduces Redundancy Payout to Zero

A company has successfully applied to the Fair Work Commission (FWC) to reduce its statutory obligation to pay redundancy pay after helping an employee secure alternative employment with another company.

Statutory Redundancy Entitlement

The National Employment Standards (NES) usually entitle national system employees to receive redundancy pay if their employment ends due to redundancy.

Exceptions

However, various exceptions can apply including where an employer obtains other acceptable employment for a redundant employee.

In that case the employer may apply to the FWC to have the NES redundancy amount reduced to what the FWC considers appropriate including to zero.

The Facts

In Get Started Pty Ltd v Lee:

  • the company employed Mr Lee as a web developer for almost 2 years
  • the company experienced a downturn in business and notified Mr Lee that his position was to be made redundant effective 2 March 2018
  • prior to 2 March 2018, another third-party developer, Levo Group Pty Ltd (Levo), made contact with the company and asked to ‘borrow’ some of its personnel to assist with an increase in work
  • Continue reading…

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NEW! Domestic Violence Leave

NEW! Domestic Violence Leave

The Fair Work Commission has released the final version of the model term to be included in all modern awards to provide for unpaid leave to deal with family and domestic violence.

Start Date

The new clause will apply as and from the first full pay period on or after 1 August 2018.

Key Terms

In essence, the clause:

  • applies to all employees (including casuals)
  • entitles employees to 5 days’ unpaid leave regardless of an employee’s ordinary hours of work (ie, it is not pro-rated for part-time employees)
  • allocates the unpaid leave in full at the commencement of each 12 month period (rather than accruing progressively during a year of service)
  • does not allow the unpaid leave to accumulate from year to year
  • does not require an employee to utilise any available paid leave before applying for the unpaid leave
  • requires an employee to comply with the standard notice and evidence requirements prescribed by the Fair Work Act to support the claim for unpaid leave, however, where such evidence is provided specific confidentiality obligations apply
  • Continue reading…

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Federal Government Announces Replacement Fair Work Ombudsman

The Turnbull government has appointed Sandra Parker as Australian’s new Fair Work Ombudsman. Ms Parker was elected through a merit-based selection process and she will replace Natalie James who previously served as the ombudsman for five years. With over years of experience in her roles as both the deputy secretary at the Department of Jobs and Small Businesses and a public sector official, the appointment of Ms Parker is a welcome change to the Fair Work Ombudsman.