No Comments

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…

No Comments

Unfair Dismissal – Are Employers on their Own?

A recent decision of the Fair Work Commission may force employers to fend for themselves in proceedings before the Commission, such as unfair dismissal, by denying them the right to even have legal assistance in the background.

In Stephen Fitzgerald v Woolworths Limited:

  • section 596 of the Fair Work Act requires a party involved in a matter before the Fair Work Commission to seek leave to be represented by a lawyer or paid agent
  • the employer (a national supermarket chain with a dedicated HR department) wished to be represented by a lawyer at a contested unfair dismissal hearing
  • this request was refused, however, the Fair Work Commission stated this did not prevent the employer from obtaining background or shadow assistance from its lawyers prior to the hearing
  • on appeal, however, it was held that the concept of legal representation extends beyond mere advocacy at the final hearing and into the realm of advice and/or the preparation of documents beforehand
  • Continue reading…

No Comments

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
  • Continue reading…

No Comments

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…

No Comments

NEW! Fair Work Amendment (Protecting Vulnerable Workers) Act

After recent high-profile cases involving alleged underpayments to employees and other criticised employment practices, the Federal Government has introduced new legislation.

NEW! Fair Work Amendment (Protecting Vulnerable Workers) Act 2017

This new piece of legislation introduced key changes to workplace laws, namely:

Key Reforms – 15 September 2017

In summary, the new laws that commenced on this date:

  • increase penalties for serious contraventions of workplace laws
  • make it unlawful to ask for cashback from employees or prospective employees
  • increase penalties for failing to meet record-keeping and pay-slip requirements
  • place the onus on employers to disprove wage claims where:
  • the record-keeping and pay-slip requirements are not met; and
  • the employer does not have a reasonable excuse for not meeting this requirement
  • give greater powers to the Fair Work Ombudsman to gather evidence in investigations
  • introduce new penalties for giving the Fair Work Ombudsman false or misleading information or hindering or obstructing their investigations

Key Reforms – 27 October 2017
Continue reading…

No Comments

FWC: Ruling on Out-of-Hours Work

Employment Law – Background

In Shea Munro v Wilmar Australia, the Fair Work Commission ruled that whilst working out of hours during carers leave was not a valid reason for dismissal, a refusal to follow a lawful and reasonable direction to provide information about the out of hours work justified termination.

Employment Law – Facts

In essence:

  • Munro was employed by Wilmar Australia, a sugar cane operator, across a range of roles including fort lift operator, engineer’s assistant, general mill worker and roving driver.
  • Munro also operated his own business offering cane harvesting and slashing, lawn mowing and agricultural equipment repairs.
  • When he was hired, Munro assured Wilmar that he could safety work for them whilst running his own business, by employing a casual employee to fulfil his duties when he was rostered on at Wilmar.
  • In August, Munro was granted a week’s paid carer’s leave as his wife had been hospitalised. However, Wilmar discovered that Munro has been working in his own business harvesting cane during that time.
  • Continue reading…

No Comments

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.

No Comments

Fair Work Commission: Compensation Awarded for Underpaid Employee

The recent Fair Work Commission decision Sebastien Mezino v Baia the Italian Pty Ltd , where a French restaurant worker was awarded compensation after being unfairly dismissed for raising underpayment concerns, serves as a reminder of the importance of employers being aware and complying with industry awards.

 

The Case

In essence:

  • Mr Mezino, a French national, was employed as a floor supervisor at an Italian restaurant in Darling Harbour from November 2015 until his dismissal in April 2017
  • He was initially paid $20 per hour. However, after 3 weeks Mr Mezino raised concerns about his pay rate with the restaurant manager, Mr Stauder. He was informed that it was too early to discuss pay changes, and was assured there were opportunities for visa sponsorship
  • By June 2016, his pay rate hadn’t changed, despite being rostered as a manager, and undertaking various managerial and recruitment responsibilities. However, he was offered the opportunity for sponsorship by the manger
  • Continue reading…