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Like a Sitting Duck…or not – New Laws aimed at Closing Loopholes

By Valentina Campos Villarreal and Keely Wunsch, Law Clerks at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Recent law reform within the Fair Work Act 2009 (Cth) has sought to protect worker’s rights while simultaneously closing the loopholes previously accessible to employers. This protection seeks to address the power imbalance inherently underlying every working relationship and ensures that workers are no longer ‘sitting ducks’. Two significant changes are of particular importance to insolvency practitioners, these are as follows: [...]  READ MORE →

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Changes to Casual Employment Arrangements

CLOSING LOOPHOLES – Changes to Casual Employment Arrangements

On 12 February 2024, the Federal Government passed the second part of its two-part ‘Closing Loopholes’ legislation. This legislation introduced a considerable number of substantive changes to the Fair Work Act 2009 (FW Act) and represents the largest set of reforms to national workplace laws since the FW Act was introduced in 2009.

Amongst other reforms, the Closing Loopholes legislation introduces several significant changes to the laws and obligations relating to casual employment arrangements, including: [...]  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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Critical Covid Response Items for EVERY Business and Employer

COVID-19

Critical Covid Response Items for EVERY Business and Employer

Business Contracts and Leases

Key questions to ask yourself in an effort to reduce losses being suffered:

  • can I use contractual and leasing force majeure provisions due to events beyond my reasonable control to cancel, suspend or renegotiate my contracts and leases?
  • what happens if I don’t have a force majeure provision?
  • can I use the “frustrated contracts” regime to my advantage?
  • is Covid a “material adverse event” for contractual purposes?
  • what time limits apply to exercise my rights and are there any mandatory procedural requirements I must follow to do so?

As the interaction between contractual wording, legal considerations, and the outcome sought are inherently fact specific, if you would like to discuss your options we invite you to contact a member of our Commercial Law Team on 9635 7966.

Staff

Does your contingency planning take into account these fundamental matters:

  • can I force staff to take leave?
  • can I stand down staff without pay?
  • can a redundancy in response to Covid still amount to an unfair dismissal?
  • what options do I have to reduce wages?

As this is the tip of the iceberg in terms of workplace considerations, and the answers to same require the application of relevant legislative, award, enterprise agreement, employment agreement and workplace policy provisions, we invite you to speak with our Employment Law Team on 9635 7966 to find a practical, commercially minded and lawful solution to your questions and concerns. [...]  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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Employment Agreements

The Importance of Comprehensive Employment Agreements
Navigating Australia’s complex employment system can pose significant challenges for employers including when it comes to employment agreements.

Protect and Defend
The importance of comprehensive employment agreements cannot be overstated as they can:

  • afford an employer greater control and power over matters such as remuneration, duties, termination, confidential information, intellectual property and restrictive covenants
  • promote compliance and consistency with the Fair Work Act and relevant industrial laws and instruments
  • assist employees to minimise (and sometimes eliminate) a wide variety of claims including underpayment claims and breach of contract / constructive dismissal claims
  • assist employers to pursue claims for any loss suffered due to an employee breach of a confidentiality, intellectual property and/or restrictive covenant obligation

Depending upon the situation at hand, the costs of not having comprehensive employment agreements in place can be catastrophically high.

Essential Terms
Terms that should be contained in a comprehensive employment agreement include: [...]  READ MORE →

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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
  • do provide sufficient food (and non-alcoholic drink options) if alcohol is being served
  • do make clear any post-event activities are solely on the employee’s time and not the employer’s and that the employer does not endorse any activities that occur after the official finishing time of the party
  • do assist with organising appropriate travel home for those at risk (eg, those having consumed too much alcohol and where safety concerns arise for those travelling late at night especially solo)
  • do properly and promptly investigate complaints of inappropriate behaviour if they arise
  • do implement fair and consistent disciplinary measures if a complaint is upheld
  • don’t engage in, encourage or condone irresponsible service of alcohol (if you have concerns, ensure that staff member is no longer served alcohol and assist with travel arrangements home)
  • don’t dismiss complaints on the basis of “well that’s just how he/she is” or sweep them under the carpet hoping they will go away

The Sting

Although the party may be held off-site and/or under the control of a third party host an employer can nevertheless still be exposed to claims relating to, and the consequences of, inappropriate behaviour such as: [...]  READ MORE →

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Employment Law – Bupa Criticised for Disciplinary Process

Employment Law – Background 

The Fair Work Commission has found that a vulnerable aged care worker was unfairly dismissed due to her employer, Bupa Aged Care, acted unconscionably. Bupa were criticized for their “unprofessional, discourteous and unfair” disciplinary process.

Employment Law – Facts 

In essence:

  • Shahin Tavassoli, a refugee from Iran with limited English skills, was employed by Bupa
  • On the weekend of 13-14 November 2016, a colleague secretly recorded her on his mobile singing “I can do anything better than you” following a heated exchange between a resident and a nurse and also allegedly laughing and joking at the death of two residents
  • A second video, recorded the following day, allegedly captured her sitting in the TV room ignoring resident’s buzzers
  • These videos were shown to David Brice, acting general manager of Bupa Mosman a Miriam Lyman, care manger
  • On 16 November, Tavassoli attended work training. However, at 2pm Brice escorted her from the premises, only telling her that there had been serious allegations made against her and he was waiting for more documentation in a few hours.
  • In the two hours Tavassoli allegedly sat outside the facility, she jumped to the conclusion that the allegation may involve beer that a resident offered her. Determined not be terminated for stealing, she asked a college for help drafting a resignation letter. Brice didn’t accept this resignation letter
  • In a meeting with Tavassoli at 4pm, Brice read letters from Bupa containing allegations of misconduct and informed Tavassoli was being suspended on pay for an investigation
  • She never received a copy of this correspondence or the video footage
  • Brice also informed that unless she altered the date of her resignation, she was required to partake in the investigation. She then scribbled out the initial 4 weeks’ notice and gave the resignation back
  • The next day, Brice sent her a letter accepting her resignation. However, the following day Tavassoli attended the facility to rescind her resignation which was refused

Employment Law – Fair Work Commission Decision

Resignation or constructive dismissal?

The Fair Work Commission:

  • found Ms Tavassoli was constructively dismissed, on the basis that Mr Brice should have taken additional steps to ensure she understood the investigation and the effect of her resignation
  • believed Ms Tavassoli should have been “provided with copies of the letters and sent home to discuss them with her family”
  • stated it was not “satisfactory to say Ms Tavassoli resigned at her own free will when Bupa knew of Ms Tavassoli’s poor language skills and her emotional state”
  • found that Mr Brice suggesting an amendment to the resignation letter suggests that the termination “becomes one at the invitation of the employer”
  • also believed that it was unconscionable for Mr Brice to escort Ms Tavassoli from the premises and advise her not to return for 2 hours, without providing a reason for such process.

Was the dismissal unfair?

The Fair Work Commission:

  • found Bupa did not have a valid reason for dismissal on the basis that she hadn’t been acting in a disrespectful manner when she sung, nor had she laughed at the deaths of residents. It was found that she had also been on a break during the footage and had not been required to attend to residents buzzers
  • were critical of Bupa’s disciplinary process, labelling them “unprofessional, discourteous and unfair” in finding that Ms Tavassoli was not given anything in writing, not shown the video footage and was not given a proper opportunity to respond.
  • held that the dismissal was unfair, harsh and unjust
  • ordered that Ms Tavassoli be reinstated and paid her base pay for November 2016 to July 2017

The decision is available for you to read through the hyperlink: [...]  READ MORE →

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Employment Law – Dismissal for Drug Test Refusal Invalid

Employment Law – Background

The Fair Work Commission has held that a company who dismissed an employee for refusing to provide a blood sample for a drug test had no valid reason to do so.

Employment Law – Facts

In essence:

  • Green was employed by Lincon Hire & Sales as a work platform operator
  • On 1 March 2017, Lincon received anonymous information that the employee and others were using drugs
  • Lincon’s drug and alcohol policy allows random drug testing, and asserts that refusal to partake will be considered a positive test, allowing for potential disciplinary action, including dismissal
  • On 6 March 2017 all employees underwent a drug test. Green provided a negative sample. However, Lincon received further anonymous messages claiming that Green and others had used substitute samples
  • On 7 March 2017, Green was informed he had to undergo a blood test because the previous tests had been “fudged”
  • Employees, including Green, felt that a blood test was an invasion of privacy and Green offered to do a urine test instead
  • Green failed to attend the blood test appointment organised by Lincon. A company representative informed Green that he would be dismissed if he failed to submit the test Green did not attend a second appointment
  • Lincon attempted to contact Green and the other employees, however one employee told them they were “sticking together” and would not have the blood test. Green was dismissed the same day

Employment Law – Fair Work Commission Decision

The Fair Work Commission:

  • found that Lincon’s policy did not specify the type of testing used and had no provision about blood samples
  • found that Green was allowed to question the test method
  • looked at evidence which showed that the urine collection process for the first test was closely supervised, and the fact there was “no suggestion, the sample was beyond the applicable temperature range or creatinine level, which could suggest it was not genuine”
  • believed no satisfactory explanation was provided by Lincon as to why a blood test was required
  • established request made of Green to undertake a blood test was “not expressly permitted by the policy and was not a reasonable direction”
  • held that there was no valid reason for dismissal
  • awarded Green $8150 in compensation or the equivalent of 8 weeks’ pay including notice, plus a 20% reduction for Green’s misconduct in secretly recording phone conversations with management

The decision is available for you to read through the hyperlink:

Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales [2017] FWC 4916 (20 September 2017)

Employment Law – Tips for Employers  [...]  READ MORE →

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Employment Law – Employee Compensated After Award Obligations Ignored

Employment Law – Background

The Fair Work Commission has compensated an employee who was unfairly dismissed because her employer failed to comply with their consultation obligations under the relevant award.

Employment Law – Facts

In essence:

  • Carer’s that Care (CTC) terminated Ms Morris’ employment because it could not afford to pay her full-time wage after losing a significant number of clients
  • Ms Morris argued that she hadn’t received any warnings but was only told that CTC was shutting down and staff would be made redundant
  • She also argued that she was not provided with the opportunity to respond, because the managing director refused to have any discussions with Morris
  • Morris lodged an application for unfair dismissal

Employment Law – The Relevant Law

  • Section 389 of the Fair Work Act (‘The Act’) states that a genuine redundancy occurs when an employee’s position is no longer required and the employer has complied with any obligations under the modern award or enterprise agreement
  • The Fair Work Commission will then examine whether the dismissal was harsh, unreasonable or unjust under s387 of the Act

Employment Law – Fair Work Commission decision

The Fair Work Commission:

  • found that the employee’s dismissal was not a genuine redundancy because the consultation obligations under the Clerks-Private Sector Award were not satisfied
  • accepted that Ms Morris was dismissed because her role could no longer be performed due to operational changes
  • found that the company had failed to consult with Ms Morris as required under the award was significant. Additionally, the company only verbally notified Morris of the dismissal
  • consequently ruled that her dismissal was harsh, unjust or unreasonable.
  • ordered compensation of $5482

The decision is available for you to read through the hyperlink:

Morris v Community Caring P/L t/a Carers That Care (U2017/6386) [2017] FWC 4433

Employment Law – Tips for Employers  [...]  READ MORE →

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Employment Law – Poor Response to Parental Leave

Employment Law – Background

A company was found to have taken adverse action against a pregnant employee and were ordered to pay $57,000 in compensation because they made her redundant just days before she took maternity leave.

Employment Law – Facts

In essence:

  • In 2015 the company decided to make several roles redundant as of November 12
  • However, they moved the redundancy date for a pregnant employee forward to two days before she took maternity leave
  • They believed moving the date was in her best interest
  • The employee claimed that she was dismissed because of her maternity leave

Employment Law – Decision

Judge Salvatore Vaster of the Federal Circuit Court:

  • found that the employer had taken adverse action against the employee
  • whilst noting the reasons for the redundancy were genuine, believed that moving the date of the employee’s redundancy amounted to changing her position to her prejudice, on the basis she did not have the chance to discuss the reasons for redundancy or contemplate other appropriate positions in the company
  • noted that “it was a clumsy attempt at trying to balance the perceived needs of the [employer] with the best interests of the [employee]”
  • ordered the employer pay $37,842 in compensation and an additional $20,000 as a pecuniary penalty

The decision is available for you to read through the hyperlink:

Power v BOC Pty Ltd & Ors (No.2) [2017] FCCA 2387 (3 October 2017)

Employment Law – Tips for Employers  [...]  READ MORE →