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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
  • it varied clauses dealing with casual and part-time employment in 11 Modern Awards, with one other scheduled for variation
  • each variation is specific to the Award concerned (so the wording varies)
  • in essence though the variations:
    • (a) give casual employees the right to elect to have their employment converted to full-time or part-time employment
    • (b) provide greater flexibility in the rostering of hours of part-time employees in certain occupations and industries
    • (c) confirm that casual employees who work in excess of ordinary hours in a day or week are entitled to overtime penalty rates
    • Continue reading…

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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”
  • Continue reading…

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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
  • Continue reading…

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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.

Employment Law – The Modern Awards Reductions per Sector

For the retail and pharmacy sectors:

retail-pharmacy-sector

For the fast food sector:

fast-food-sector

And for the hospitality sector:

hospitality-sector

Employment Law – Tips for Employers:

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review these changes to your respective modern awards
  • seek the assistance of an employment lawyer to understand the impacts of these modern awards changes
  • Continue reading…

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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).

Employment Law – Key Principles

When it comes to workplace investigations, the basics involve:

Inform

  • communicate the allegations in writing with as much detail as possible
  • advise the employee an investigation will be conducted. In addition, provide a summary of the process and meeting times

Suspend

  • if the allegations are serious or there is a risk of victimisation or reprisal, the employee should be suspended with pay (although subject to consideration of industrial instrument, contractual and company policy provisions)
  • Continue reading…

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Employment Law – Redundancy Consultation

Employment Law – Background

Currently, there are no specific guidelines on how long employers should or must conduct redundancy consultations under a Modern Award.

Different rules of course may apply to enterprise agreements, under company policies or in some cases under the terms of an employee’s employment agreement.

We understand that employers may want to rush a business restructure in order to continue running the business, however, there are a few tips employers should consider to minimise any possible adverse effects.

Employment Law – Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • prioritise good communication to affected employees rather than rushing the process
  • provide a reasonable timeframe for those employees to consider the proposed redundancy
  • give employees time to provide information to the employer for the employer to consider before the employer makes a final decision about the proposed redundancy
  • as a guide, utilise a week for redundancy consultations (however, three days should be seen as the minimum)
  • Continue reading…

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Employment Law – s 457 Visa Entitlements

Employment Law – Background

The Australian Government announced the abolition of the Temporary Work (Skilled) visa (subclass 457 visa) in April 2017. They will be replaced with the Temporary Skill Shortage (TSS) visa in March 2018. Consequently, employment law questions have arisen regarding the entitlements afforded to such workers in this transition period.

Common questions include:

  • Could the employee successfully claim unfair dismissal?
  • Is an employee on a 457 visa entitled to redundancy pay if there is no further work when the visa expires?

Employment Law – The Fair Work Act 2009 (Cth)

s386(2) provides that an employee is excluded from claiming unfair dismissal if:

  • the employee is employed on a contract;
  • for an unambiguous specified period of time; and
  • whose employment is terminated at the end of that specified period

Employment Law – Case Decision

A decision of the Full Bench of the (then) Australian Industrial Relations Commission held that a s457 visa can be used to specify the fixed time period of an employment contract. This is provided that the parties have a sufficiently proven understanding of the terms of the visa and the contract of employment. This understanding must therefore include the period of employment and most notably, the end date.
Continue reading…

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Employment Law – Incapacity Not a Refusal to Work

Employment Law – Background

The Fair Work Commission has criticised a company for misconstruing an employee’s extended absence on certified sick leave as a refusal to work.

Most noteworthy, the HR team dismissed the mentally unwell supervisor via email.

The decision highlights the importance of due process in the dismissal of employees while having regard to human dignity.

Employment Law – Facts

In essence:

  • the customer service supervisor was employed at Komatsu
  • the supervisor said he was “directed” to take sick leave in March 2015 due to “health and well-being”
  • he failed to meet his sales budget KPI’s. As a result, he was placed on a performance improvement plan in August 2015
  • the supervisor began experiencing mental health issues in March 2016. Consequently, he was taken off the performance improvement plan
  • furthermore, he experienced difficulties with his new manager which also contributed to his mental health problems
  • Komatsu encouraged the supervisor to participate in a return to work plan
  • Continue reading…