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Mandating Covid-19 Vaccinations in the Workplace

With NSW slowly returning to a degree of normalcy following the recent Covid-19 ‘Delta’ outbreak, it is critical that employers do not become complacent about the ongoing risk of viral infection and continue to take all reasonable steps to ensure the health and safety of their employees and other persons in the workplace.

The preponderance of advice from medical and health experts is that the best long-term protection against Covid-19 infection (and the more serious forms of health issues arising from such infection) is to be fully vaccinated with an approved Covid-19 vaccine. READ MORE

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By Anica Cunanan, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Greater Sydney is currently in a lockdown and has remained in the dark with respect to whether, and when businesses would receive some relief.

Last year, the Federal Government introduced the JobKeeper scheme to assist with keeping businesses afloat (including employees within those businesses) through of the payment of wage subsidies subject to certain criteria.

The Morrison and Berejiklian Governments have announced that NSW businesses will finally receive some relief as we enter the fourth week of lockdown in NSW. It is evident that regardless of whether lockdown is in fact extended past 30 July 2021, businesses have already experienced a substantial hit. Should lockdown continue to be extended, we may see plenty of businesses struggling to make it through this lockdown. READ MORE

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New Laws to Stand Down Employees

New Stand Down Laws

From 9 April 2020 employers are able to utilise new stand down provisions arising from changes to the Fair Work Actin light of COVID-19. These changes are temporary and are currently stated to end on 28 September 2020.


Core Requirements

The new provisions enable employers to issue a “jobkeeper enabling stand down direction” to relevant employees where all of the following apply:

  • the direction was given after the commencement of the new stand down laws to not work on a day(s) on which the employee would usually work, or to work for a lesser period than the period which the employee would ordinarily work on a particular day(s), or to work a reduced number of hours (compared with the employee’s ordinary hours of work)
  • when the direction was given, the employer qualified for the jobkeeper scheme
  • the employee cannot be usefully employed for the employee’s normal days or hours during the stand down period because of changes to business attributable to the COVID‑19 pandemic or government initiatives to slow the transmission of COVID‑19
  • the implementation of the direction is safe having regard to (without limitation) the nature and spread of COVID‑19
  • the employer becomes entitled to one or more jobkeeper payments for the employee for a period that consists of or includes the jobkeeper enabling stand down period or for periods that, when considered together, consist of or include the jobkeeper enabling stand down period

Other Requirements 

Like most laws, there are exceptions, qualifications and additional rules that need to be met, and disputes can be referred to the Fair Work Commission. READ MORE

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New – Variations to Casual/Part-Time Rules in Modern Awards

The Fair Work Commission has varied a number of Modern Awards to include additional provisions and protections for casual and part-time employees.

In summary of the Fair Work Commission’s decision:

  • the affected Awards include:
    • Fast Food Industry Award 2010
    • General Retail Industry Award 2010
    • Hair and Beauty Industry Award 2010
    • Hospitality Industry (General) Award 2010
    • Restaurant Industry Award 2010
    • Social, Community, Home Care and Disability Services Industry Award 2010

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    Fair Work Commission – Reconsideration of Fixed Term Contract Authority

    Fair Work Commission – Background and Facts

    The full bench of the Fair Work Commission has taken the rare and serious step of allowing for a reconsideration of a full bench authority on fixed-term contracts. The Fair Work Commission granted the Navitas English Pty Ltd employee leave to appeal a ruling on whether employees on fixed term or “outer-limited” contracts are dismissed when their terms expire.

    Fair Work Commission Decision:

    The Fair Work Commission:

    • concluded that it was in the public interest to grant the employee’s appeal and reconsider the well-established 2006 decision of Department of Justice v Lunn
    • suggested this was a matter of public interest because Lunn considers old unfair dismissal provisions under the Workplace Relations Act 1996 (Cth), and thus the applicability of the reasoning in Lunn as it applies to the Fair Work Act has not been previously analysed by the Full Bench
    • stated that in their view “the first ground of appeal raises issues of importance and general application in relation to the question of the approach that should be adopted by the Commission in determining whether there has been a termination of employment at the initiative of the employer, particularly in relation to employees who have been employed on a series of fixed term or outer limit contract”

    The decision is available for you to read at the following hyperlink:

    Mr Saeid Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 4092 (16 August 2017) READ MORE

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    Employment Law – Ex-Employee Restraint Clause Unenforceable    

    Employment Law – Background

    The Victorian Court of Appeal reaffirmed a decision that an employer was unable to enforce a restraint clause against an employee. The accounting firm’s breach of an employment contract consequently ended its right to enforce a restraint clause against the accountant. The case highlights the importance of carefully assessing any differing views between the employee and employer in employment law.

    Employment Law – Facts

    In essence:

    • the employee-accountant signed an employment contract in 2012
    • the contract contained a restraint clause that operated for 12 months. Notably, the terms were found to be reasonable by judges in earlier cases
    • the accounting firm expanded its business over 2015-16
    • the accounting firm denied the accountant certain bonuses he believed he was entitled to
    • as a result, the accountant requested payment to which the employer refused
    • the accountant took a week’s leave. A few days after he returned, he informed the employer he considered the refusal to pay the bonuses as a repudiation of the employment contract
    • especially relevant, the account set up his own business. Consequently, the employer sought to enforce the restraint clause

    Employment Law – Decision

    The Victorian Court of Appeal:

    • concluded that the accountant-employee’s interpretation of the bonus clauses was correct
    • held that the organisational changes could not justify the refusal to pay hence he should have been paid the bonuses
    • found that in conclusion, the refusal to pay was a breach of the employment contract. Consequently, the right to enforce the restraint clause ended

    Employment Law – Tips for Employers

    Our Matthews Folbigg Workplace Solutions employment law team recommends employers: READ MORE

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    Employment Law – Modern Awards Reductions

    Employment Law – Background

    In June this year, the Fair Work Commission (FWC) announced the reductions of public holiday penalty rates for the hospitality, retail, fast food and pharmacy sectors. The reductions were decided as part of the FWC’s four-yearly review of modern awards.

    As of 1 July 2017, public holiday penalty rates were reduced while Sunday rates will reduce over three to four years. Although the unions argued for the delay in reductions, the FWC agreed with employer organisations. As a result, the first transition step is smaller than later transitions. Furthermore, the retail and pharmacy sectors will have longer transition periods due to their reductions being more significant. READ MORE

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    Employment Law – The Need for Proper Workplace Investigations

    Employment Law – Background

    Employment claims like bullying and unfair dismissal continually on the rise in employment law. Consequently, employers are increasingly required to take pro-active steps to investigate suspected workplace incidents and disputes before they lead to such claims.

    A workplace investigation is a formal investigative process into an alleged workplace incident or dispute and it may be necessary to undertake same even if the complainant objects to it (ie, because they only wish to make an informal complaint). READ MORE