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Work Christmas Functions – Avoiding an ‘Unhappy Holiday’

Work Christmas functions provide employers and employees with the opportunity to reflect on the highs (and lows!) of the working year and are a great way to reward staff for their efforts and enthusiasm.

However, the ‘silly season’ can often be a cause of headaches for employers as employees can be prone to engaging in inappropriate conduct which may necessitate taking disciplinary action and/or give rise to an assortment of legal claims.

Employer’s Duty of Care

Employers need to remember that Christmas parties are work functions (even if held away from the workplace) meaning they owe a duty of care to their employees during these events. [...]  READ MORE →

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Tougher Penalties under the Australian Consumer Law

The Treasury Laws Amendment (2018 Measures No. 3) Act 2018 (Cth) has introduced new tougher penalties for companies and individuals who breach certain provisions of the Australian Consumer Law (ACL).

What are the new penalties for companies?

The new maximum penalty for companies is the greater of:

  • $10 million; or
  • 3 times the value of the benefit directly or indirectly obtained by the company (and any related companies) which is reasonably attributable to the offence; or
  • if the value of the benefit cannot be determined, 10% of the annual turnover of the company (and any related companies) for the 12 month period leading up to the commission of the offence.

Previously, the maximum penalty for companies was $1.1 million.

What are the new penalties for individuals?

The new maximum penalty for individuals is $500,000 (up from the previous maximum of $220,000).

Multiple Penalties [...]  READ MORE →

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Directors: Beware of relying on the advice of others!

In the exercise of their duties, company directors often rely on both internal and external sources of advice.  However, directors may be liable if their reliance on the advice of others is “unreasonable”.

What does the Corporations Act say?

Section 189 of the Corporations Act states that a director may rely on information, or professional or expert advice, given or prepared by:

  • an employee of the company whom the director believes on reasonable grounds to be reliable and competent in relation to the matters concerned
  • a professional adviser or expert in relation to matters that the director believes on reasonable grounds to be within the person’s professional or expert competence
  • another director or officer in relation to matters within the director’s or officer’s authority
  • a committee of directors on which the director did not serve in relation to matters within the committee’s authority

provided that:

  • the reliance was made in good faith and after making an independent assessment of the information or advice, having regard to the director’s knowledge of the company and the complexity of the structure and operations of the company
  • the reasonableness of the director’s reliance on the information or advice arises in proceedings brought to determine whether a director has performed a duty under the relevant part of the Corporations Act or an equivalent general law duty

If the above are satisfied then the director’s reliance on the information or advice is taken to be reasonable unless the contrary is proved. [...]  READ MORE →

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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
  • the employer alleged the applicant was engaged as an independent contractor (and therefore unable to bring an unfair dismissal claim)
  • the matter was set down for a jurisdictional hearing on the issue and the employer sought permission to be represented at the hearing by a lawyer
  • the employer submitted that:
  • despite its size it had a ‘lean’ HR team consisting of 6 individuals including a HR Business Partner but that it did not have any in-house specialists who had the skills or experience to conduct proceedings before the FWC
  • in previous proceedings before the FWC it had been granted permission to be represented meaning the HR Business Partner had no prior experience conducting such proceedings himself
  • if permission was not granted the HR Business Partner would be unable to dedicate the time and resources to conduct the proceedings to the necessary standard (given his primary responsibility for the company’s 5,300 other workers)
  • the applicant submitted it would be unfair to allow the employer to be represented by a lawyer when he could not afford paid legal representation

The Decision

The FWC:

  • had to decide whether a lawyer would be able to deal with the matter more efficiently given the additional complexity associated with the jurisdictional objection
  • had to consider whether the circumstances and those of its HR Business Partner would prevent it from representing itself ‘effectively’ and not merely ‘satisfactorily’ or ‘adequately’ during the proceeding
  • stated it was irrelevant that the employer had always previously been legally represented in FWC proceedings
  • held the issues raised by the jurisdictional objection made the matter more complex, and the HR Business Partner would not be able to represent the employer as efficiently as a lawyer
  • held that where one of the conditions in the Fair Work Act had been met, it was not necessary to consider the other conditions
  • held the applicant’s concerns about fairness could be managed by the FWC providing him with all necessary administrative assistance during the proceeding

Lessons

The decision illustrates: [...]  READ MORE →

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Legal Agents & Agency Work

Matthews Folbigg Lawyers provide agency work services and can act as your legal agents for all matters in Parramatta.

We are located within close proximity to the Parramatta Court Precinct and are able to act as your agent with short notice. We pride ourselves with the knowledge and extensive experience with the courts in Parramatta where we appear regularly. You can be confident that our solicitors will achieve the desired result for you at competitive rates. We also understand you need to report to your client in a timely manner, therefore we endeavour reporting to you on the same day of the court appearance either in writing or by phone. [...]  READ MORE →

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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: [...]  READ MORE →

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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
  • the annual leave provision in the Agreement stated it only applied to permanent employees
  • although no annual leave was taken during employment and the employee was not paid any annual leave or notice upon termination, a claim seeking payment of same was filed

The Issues

Whilst the Fair Work Act states paid annual leave applies to all national system employees “other than casual employees”, it does not define a “casual employee” thus the issues for the Court were: [...]  READ MORE →

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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: [...]  READ MORE →

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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
  • be kept overseas provided sufficient written information is retained within Australia which would enable true and fair financial statements to be prepared

What rights does a director have to inspect financial records?

In summary:

  • a director of a company has a right to inspect the financial records of the company
  • this right is based on the director’s duty to manage the affairs of the company with due care, skill and diligence
  • a company must make its financial records available at all reasonable times for inspection by a director
  • if a company refuses to make its financial records available for inspection, a director may apply to the court for an order requiring the company to make its records available to the director or a person authorised by the director to inspect the records on the director’s behalf
  • under the Corporations Act, a former director may also inspect the books and financial records of a company up to 7 years after they ceased to be a director of the company provided the inspection is related to current, pending or anticipated legal proceedings
  • a director should negotiate access rights (usually under a Deed of Access, Insurance and Indemnity) with the company to provide a broader right of access than available under the Corporations Act

What are the penalties?

A company director who fails to take all reasonable steps to comply with their financial record keeping obligations will have breached a civil penalty provision of the Corporations Act and the court, upon application by ASIC, may: [...]  READ MORE →

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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. [...]  READ MORE →

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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

Proposed Changes to the Fair Work Act

The Federal Government has announced it intends to amend the Fair Work Act to provide the same unpaid leave entitlement to all national system employees (eg, so it will apply to employees covered by an enterprise agreement). [...]  READ MORE →

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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.