Workplace Solutions

2020 may see a fundamental shift in how personal leave is accrued and paid following a controversial Federal Court decision relating to the calculation of leave for employees with non-standard rostered hours.

In the case of Mondelez v AWMU:

• relevant employees were covered by an enterprise agreement
• the enterprise agreement permitted employees to work ordinary hours of 36 per week (by way of 3 x 12 hour shifts per week) and entitled those employees to 96 hours of paid personal leave per year of service
• when they took paid personal leave though, the employer deducted 12 hours from their accrued balance, meaning they only accrued enough leave over a year of service to cover 8 days absence
• a claim was made that this contravened the National Employment Standards (found within the Fair Work Act) as it failed to provide such employees with 10 days of paid personal leave per year of service
• the majority of the full Federal Court agreed, however, Mondelez has since appealed to the High Court

Unless the High Court overturns this decision or parliament makes legislative change, thousands of national system employers who operate with longer/non-standard shift arrangements will likely become exposed to substantial additional personal leave liabilities, back-pay claims, and potential penalties. [...]  READ MORE →

From 1 January 2020, all public and large proprietary companies must have in place a whistleblower policy which meets all mandatory statutory requirements.

Amongst other things, these laws:

• modify existing legislation relating to corporations, the banking industry and insurance companies
• provide significantly stronger protections to whistleblowers who make disclosures about protected matters and expand the scope of persons who may make protected disclosures
• impose substantial civil and criminal penalties for breaches of whistleblower protections
• mandate all public and large proprietary companies have a compliant whistleblower policy in place by 1 January 2020

A large proprietary company is one that has 2 or more of the following characteristics:

• $50+ million in consolidated revenue
• $25+ million or more in consolidated gross assets
• 100 or more employees

Currently fines of up to $12,600 can apply for failing to have a compliant whistleblower policy in place by 1 January 2020, and repeat fines can also apply to every subsequent year this requirement is not met.

Action Items:

Check if a whistleblower policy is required at your workplace and, if so, ensure it meets all legal requirements including information about the protections available to whistleblowers, how and to whom protected disclosures may be made, the ways the company will protect whistleblowers from detriment, how the company will investigate protected disclosures, how the company will ensure fair treatment of other employees mentioned in protected disclosures that qualify for protection, and how the policy will be communicated and made available to employees. If you require any assistance or advice, please contact our Employment & Workplace Law Team. [...]  READ MORE →

The Fair Work Commission has turned its focus to the disparate ‘annualised salary’ provisions found within various modern awards and with the inherent lack of employee wage safeguards being a key driver for change, the Commission has created new rules that govern same.

Presently 21 modern awards will be varied to incorporate a model annualised salary term including:

• Clerks–Private Sector Award
• Manufacturing and Associated Industries and Occupations Award
• Hospitality Industry (General) Award
• Restaurant Industry Award
• Mining Industry Award
• Legal Services Award
• Banking, Finance and Insurance Award

Amongst other things, the new annualised salary provisions introduce several new and onerous notification, record-keeping and wage reconciliation obligations on employers who pay their award-covered employees annualised salaries including: [...]  READ MORE →

Since 2014 the Fair Work Commission has been undertaking a ‘four-yearly review’ of all modern awards, during which the Commission has clarified how some modern award clauses operate and made numerous changes.

Now the time has come for the new modern awards to be released in three tranches, the first of which commence in the first full pay period on or after 4 February 2020 and include the following:

• Banking, Finance and Insurance Award
• Legal Services Award
• Market and Social Research Award
• Real Estate Industry Award
• Surveying Award

As every modern award will change according to the tranche in which they are allocated, it is a case of ‘watch this space’ as to the date when the second and third tranches will commence. [...]  READ MORE →

Year end work functions provide employers and employees with the opportunity to reflect on the year that was 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 such functions are work events (even if held away from the workplace) meaning they owe a duty of care to their employees during these events. [...]  READ MORE →

What has changed?

As and from 1 October 2019, employers will now be able to reject jobseekers if they have a criminal record “relevant to the job” which they have applied for.

Previously, employers were required to show that the jobseeker’s criminal record meant that they could not perform the inherent requirements of the position.

Catalyst for change

The catalyst for change was prompted by a case in 2018 where:

• Suncorp argued that a jobseeker’s criminal record for child pornography offences tainted his integrity and as such he could not be trusted to work unsupervised from home with sensitive client data

• the Australian Human Rights Commission, however, held that his child pornography convictions were not offences of dishonesty and that Suncorp had unlawfully discriminated against the jobseeker by withdrawing a job offer upon learning of his child pornography offences

In a media release on 3 October 2019 the Attorney-General for Australia and the Minister for Industrial Relations, the Hon Christian Porter MP, commented that: [...]  READ MORE →

Can Employees Express their Political Views through Social Media?

The High Court has recently struck down a ruling that a Federal Government department unjustifiably trespassed on the implied constitutional rights of an employee when her employment was terminated over making political tweets.

In essence:

• the employee brought an unlawful termination claim after her employment had been terminated for making political tweets about her employer, the Department of Immigration and Border Protection
• the employee argued that her employer had imposed an unreasonable burden on the employee’s implied freedom of political communication
• the employee had previously succeeded in bringing a claim before the Administrative Appeals Tribunal that dismissing her for anonymous tweets highly critical of government policy trespassed on her implied constitutional rights and failed the “reasonable management action” test
• the High Court though affirmed the decision by Comcare to deny the employee’s claim for compensation for a psychological condition allegedly aggravated by her dismissal and ruled that it did not constitute an injury because her employer took “reasonable management action”

Implied Freedom not Personal Right to Free Speech

The High Court said in its judgment that it was:

“highly desirable if not essential to the proper functioning of the system of representative and responsible government” that governments of all complexions “have confidence in the ability of the APS to provide high quality, impartial, professional advice” [...]  READ MORE →