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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
  • 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:


For the fast food sector:


And for the 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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Fair Work Commission – Minimum Wage to Increase by 3.3%


On 6 June 2017, The Fair Work Commission announced a 3.3% increase to the national minimum wage and minimum award wages.

The Fair Work Commission Decision

In essence:

  • The national minimum wage will now be $694.90 per week, or $18.29 per hour
  • This is an increase of $22.20 per week to the weekly rate and 59 cents per hour to the hourly rate
  • The changes will be effective 1 July 2017

Fair Work Commission’s Reasoning – Economics & Worker Poverty

  • The Fair Work Act required the Fair Work Commission to take into account economic considerations
  • However, they were satisfied that the level of increase decided upon would not lead to inflationary pressure and would be highly unlikely to have any measureable impact on employment or lead to job losses
  • They based these conclusions on findings that productivity growth has risen sharply and profit growth had been “particularly strong” in 2016 compared to previous years. Consequently, business conditions were positive and above long-term averages
  • Continue reading…

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Employment Law – New Financial Year Changes

What every employer MUST know for 1 July 2017

With the commencement of a new financial year, it brings with it important changes and new rates which will apply from 1 July 2017.

NEW! High Income Threshold (HIT)

With the HIT:

  • it is expected to increase to $143,500 (subject to formal confirmation by the FWC)
  • it impacts:
  • who can make a claim for unfair dismissal (for those not covered by a Modern Award or to whom an enterprise agreement does not apply)
  • the maximum amount of compensation payable in an unfair dismissal claim
  • those on a ‘guarantee of annual earnings’ (a Modern Award does not apply to an employee whilstever this guarantee is in place provided it continues to meet the relevant legislative requirements)

NEW! Modern Award Increases

With Modern Awards (including enterprise awards):

  • minimum wages increase by 3% (starting on the first full pay period on or after 1 July 2017)
  • absorption of wage increases into over-award payments is permissible (subject to the terms of the relevant employment agreement and what other amounts are being absorbed into any annualised salary)
  • Continue reading…

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Employment Law – Payroll Company Liable for Client’s Award Breach

Employment Law – Background

The decision in Fair Work Ombudsman v Blue Impression Pty Ltd & Ors serves as a warning to payroll and accounting companies, as the court held an accounting company liable for its client’s breaches of the Fair Work Act.


Employment Law – Facts

In essence:

  • Blue Impressions, a Japanese restaurant chain, engaged EZY Accounting to do its data entry, bookkeeping and payroll processing for its employees
  • Blue Impressions sent data to EZY Accounting who uploaded it to MYOB for calculating and processing the payroll for employees
  • the relevant employees were covered by the Fast Food Industry Award 2010
  • the employees were being paid approximately $16.50 an hour, when they should have been receiving at least $19.44 an hour
  • the restaurant was audited by a Fair Work inspector
  • it was determined that the Fast Food Industry Award 2010 applied to the business and the Ombudsman sent a letter to Blue Impressions to that effect
  • Continue reading…

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FWO flags review of abandonment clauses in Awards

The Fair Work Commission has indicated that it will conduct a review of abandonment clauses contained in six modern awards, following the decision of the Full Bench of the Fair Work Commission in Benias v Iplex Pipelines Australia Pty Ltd [2017] FWCFB 38.

In the decision, the Full Bench overturned the decision of Senior Deputy President O’Callaghan ([2016] FWC 6624), who dismissed an employee’s unfair dismissal claim on the basis that the termination was not at the initiative of the employer.

The facts

Section 386 of the Fair Work Act 2009 defines a dismissal as a termination of employment ‘on the employer’s initiative’. The Act provides that where an employee’s employment is not terminated on the employer’s initiative (i.e. a voluntary resignation), that employee is unable to pursue a remedy for Unfair Dismissal.

The employee in question had failed to show up for his shifts for a fortnight without explanation, leading the employer to conclude that the employee had abandoned his employment. The employer relied upon a clause in the Manufacturing and Associated Industries and Occupations Award 2010 (‘the Manufacturing Award’), which provides:
Continue reading…