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Employer and Director Heavily Fined

The Federal Circuit Court has relied upon the recently-introduced “protecting vulnerable workers” legislation to impose a heavy penalty on a company and its director who underpaid an apprentice employee and failed to keep time and wages records.

The new “protecting vulnerable workers” legislation:

  • increased penalties by up to 10 times for serious contraventions
  • strengthened the Fair Work Ombudsman’s evidence gathering powers
  • reversed the evidentiary onus in underpayment claims where employers fail to make and keep time and wages records

In FWO v Pulis Plumbing Pty Ltd & Anor:

  • the employer underpaid an apprentice employee by almost $27,000
  • the employer was unable to explain why it underpaid the apprentice or why it failed to keep time and wages records for the apprentice’s hours of work
  • in the absence of such records the Federal Circuit Court relied upon detailed records kept by the apprentice of his working hours
  • the company’s contained refusal to pay the apprentices wages was stated to be ‘nothing short of avarice’
  • Continue reading…

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Employment Law – WARNING! Inappropriate Christmas Party Behaviour

Employment Law – Christmas Party Behaviour

With the festive season upon us, a few timely reminders to avoid the celebratory hangover and deal with its effects should it arise. Although we wish all of our staff enjoy the end of year parties and behave themselves, alas this does not always occur.

Below we set out some of the key employment law matters an employer needs to bear in mind:

Do’s and Don’ts

  • do ensure you have suitable workplace policies in place including drug & alcohol policies, bullying, harassment and discrimination policies, WHS policies, grievance procedures and any other relevant codes of conduct
  • do remind and train staff including managers about your relevant workplace policies before the function and, for guidance purposes, give examples of behaviour that is and is not acceptable
  • do empower relevant managers to act if they observe any improper conduct during the course of the function
  • do check your insurance policies to ensure they cover the type of event being held
  • Continue reading…

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Employment Law – Couple Working From Home Employees

Employment Law – Background

Putland v Royans Wagga Pty Limited is a clear example of sham contracting. In this case, the Federal Court of Australia decided that a husband and wife who performed largely home-based clerical work for one company were employees, not independent contractors.

Employment Law – Facts

In essence:

  • The couple were employed by a truck repair company, Royans Wagga Pty Ltd
  • The couple’s relationship with Royans began in 2005, when the wife worked in the business’ offices monitoring accidents
  • In 2008, the husband helped provide the 24 hour, 7 days a week ‘accident reporting service’ which was based either at their home or in a demountable shed on the business’ premises at various times
  • However in 2015, Royans outsourced the service to an independent call centre
  • Since 2007, any contract between the parties was described as “partly oral and partly in writing”. However, Royans argued that the couple had been independent contractors at all times
  • Continue reading…

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Employment Law – Chauffeur Who Had Minimal Control a Worker

Employment Law – Background

The South Australian Employment Tribunal has found that a chauffeur, who provided “little more than his labour” and exercised minimal control to limousine company Blue Ribbon Passenger Services, was a worker not an independent contractor.

Employment Law – Decision

The South Australian Employment Tribunal:

  • determined that the arrangements between Blue Ribbon and its chauffeur was a contract of service, and as such the chauffeur was a worker for the purposes of workers’ compensation law
  • believed in this circumstance the chauffer was “providing little more than his labour” within “Blue Ribbon’s systems and practices of work”
  • concluded that the chauffeur operated within the “obedient milieu” put down by Blue Ribbon, as they told him which vehicle to drive and where to pick up/drop off customers, booked and allocated jobs through its systems or Uber and required him to complete worksheets daily to record his jobs. He also had no flat weekly fee or minimum hours and no set hours of work
  • Continue reading…

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Employment Law – Client Information Posted on Facebook Confidential

Employment Law – Background

The Supreme Court has rejected a mortgage broker’s argument that the client list he took from his old employer and provided to a competitor was no longer confidential because his old employer posted some of their clients names on Facebook.

Employment Law – Facts

In essence:

  • the mortgage broker worked for Home Loan Experts as an independent contractor, however terminated his agreement with them in November 2016
  • he was still bound by restraint clauses which prevented him from distributing Home Loan Experts confidential information for 10 years and a non-solicit provision which forbade him from engaging in similar business activities for 18 months
  • soon after he started working for competitor, RAMS Financial Group Pty Ltd
  • whilst he was allowed to provide services to family and friends, he was not allowed to lure former clients to RAMS or contact them within the 18-month restriction period
  • the broker downloaded a list containing over 100 of Home Loan Expert’s clients’ names and addresses from their system to his computer and provided it to a RAMS receptionist so she could send Christmas cards
  • Continue reading…

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Employment Law – Bullying Allegations Reasonable Management Action

Employment Law – Background

The Fair Work Commission has thrown out an anti-bullying claim brought by an aged care employee as her employer’s conduct was considered to be reasonable management action in response to her inappropriate conduct.

Employment Law – Facts

In essence:

  • the employee alleged she had been frequently bullied by her manager and supervisor since 2014
  • amongst various bullying allegations, she alleged that her manager screamed on many occasions, chased and ambushed her, spoken about her in highly derogatory terms and refused to grant leave when her daughter was having a medical procedure
  • the employee also claimed her supervisor also bullied through his handling of investigations and allegations made by and about her making her feel “scared”
  • both the supervisor and manager denied the allegations and claimed that the employee had frequently been aggressive to the manager including yelling personal insults and pointing her finger in the manager’s face, following her into her office and blocking the exit
  • Continue reading…

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Dismissed Woolworths Worker Denied Legal Representation

Employment Law – Background

In a Fair Work Commission ruling, a warehouse team leader and Woolworths (MLDC) have both had their requests for legal representation denied, on the basis the unfair dismissal claim was “not complex enough”.

Employment Law – Facts

In essence:

  • The team leader was summarily dismissed in May 2017 for apparently engaging in serious safety breaches, such as going underneath a forklifts tyres and failing to take immediate corrective action or follow standard risk assessment procedures for workplace hazards.
  • In applying for unfair dismissal, the employee sought to be represented by a paid agent on the basis he would struggle to argue his own case or cross-examine witnesses.
  • The employee also argued that it was unfair to deny both parties legal representation because MDLC had in-house HR/IR staff with “superior legal and communication skills”. However MDLC disputed this, highlighting that their in house HR were not legally trained or skilled in advocacy
  • Continue reading…

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Penalty Increase for Breaches of Fair Work Act

The Commonwealth government recently passed the Crimes Amendment (Penalty Unit) Bill 2017. This means from 1 July 2017, employers who breach their obligations under the Fair Work Act 2009 will face increased maximum penalties.

The maximum civil penalties increases are as follows:

Maximum penalty for a Corporate Entity:

  • Before 1 July 2017 – $54,000 per breach
  • After 1 July 2017 – $63,000  per breach

Maximum penalty for an Individual:

  • Before 1 July 2017 – $10,800 per breach
  • After 1 July 2017 – $12,600  per breach

The above penalties apply to single breaches of civil penalty provisions under the Fair Work Act. Consequently, multiple breaches may result in multiple penalties being imposed.

Please note that these penalties will only affect breaches that occur on or after 1 July 2017. Any breaches occurring before this time will be subject to the penalty unit in place at the time the breach occurred.

Employment Law – More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.