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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

    • Continue reading…

Matthews Folbigg
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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:

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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

    • Continue reading…

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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:

  • a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work; and
  • the behaviour creates a risk to health and safety.

However, bullying does not include reasonable management action carried out in a reasonable manner.

Wollondilly Shire Council

David Wilson aged 61 years, plant operator, took his own life the same day that he was informed that his most recent complaint was found to be unsubstantiated.
Continue reading…

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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:

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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 – 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.

    • Continue reading…

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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

    • Continue reading…