Employees covered by the Nurses Award 2010, Health Professionals and Support Services Award 2020 and Aged Care Award 2010 who are employed by residential aged care providers or are required to work in residential aged care facilities are now entitled to two weeks’ paid pandemic leave following a recent announcement from the Fair Work Commission.
Permanent and casual employees engaged on a regular and systematic basis under the aforementioned modern awards are now entitled to take up to two weeks’ paid pandemic leave on each occasion they are prevented from working when:
Yes, employees will not be entitled to access paid pandemic leave if:
Employees requesting pandemic leave are also required to: · provide their employer with notice and the reason why they are taking the leave, as soon as practicable; and if required · provide evidence that would satisfy ‘a reasonable person’ that the leave is being taken for one of the specified reasons; and produce a medical certificate.
Employees are still entitled to workers’ compensation if they test positive for COVID-19 and their paid pandemic leave ceases, provided COVID-19 was contracted during their employment.
At this point in time it is uncertain whether or not this entitlement will be broadened to other modern awards and employers in other industries are understandably curious and nervous. The Fair Work Commission, in their statement, confirmed that the paid pandemic leave is in response to “The seriousness of the position in the aged care sector”, however time will tell if this will broaden further in the rapid changing times.
If you have any questions or need any support with your workplace during these times, do not hesitate to contact EL's Principal Legal Advisor – Workplace Relations, Amie Mish-Wills:
☎️ (07) 4646 2425
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Each year the Fair Work Commission reviews the minimum wages contained in all Modern Awards and this year it announced a 1.75% increase to minimum wages on 19 June 2020. Whilst the wage increases usually apply from 1 July for all Modern Awards, this year the Fair Work Commission postponed a number of increases to industries hit hard by the COVID-19 pandemic. All Modern Awards were broken up to three groups, with Group 1 increases starting on 1 July 2020, Group 2 commencing on 1 November 2020 and lastly, Group 3 commencing on 1 February 2021. The full list of awards that will be increasing on November 1 include:
Aluminium Industry Award
Animal Care and Veterinary Services Award
Aquaculture Industry Award
Asphalt Industry Award
Black Coal Mining Industry Award
Book Industry Award
Broadcasting, Recorded Entertainment and Cinemas Award
Building and Construction General On-site Award
Business Equipment Award
Car Parking Award
Cement, Lime and Quarrying Award
Clerks—Private Sector Award
Coal Export Terminals Award
Concrete Products Award
Contract Call Centres Award
Cotton Ginning Award
Dredging Industry Award
Educational Services (Post-Secondary Education) Award
Electrical, Electronic and Communications Contracting Award
Food, Beverage and Tobacco Manufacturing Award
Gardening and Landscaping Services Award
Graphic Arts, Printing and Publishing Award
Higher Education Industry-Academic Staff-Award
Higher Education Industry-General Staff-Award
Hydrocarbons Field Geologists Award
Hydrocarbons Industry (Upstream) Award
Joinery and Building Trades Award
Journalists Published Media Award
Labour Market Assistance Industry Award
Legal Services Award
Local Government Industry Award
Manufacturing and Associated Industries and Occupations Award
Marine Towage Award
Maritime Offshore Oil and Gas Award
Market and Social Research Award
Meat Industry Award
Mining Industry Award
Mobile Crane Hiring Award
Oil Refining and Manufacturing Award
Passenger Vehicle Transportation Award
Pest Control Industry Award
Pharmaceutical Industry Award
Plumbing and Fire Sprinklers Award
Port Authorities Award
Ports, Harbours and Enclosed Water Vessels Award
Poultry Processing Award
Premixed Concrete Award
Professional Diving Industry (Industrial) Award
Professional Employees Award
Rail Industry Award
Real Estate Industry Award
Road Transport (Long Distance Operations) Award
Road Transport and Distribution Award
Salt Industry Award
Seafood Processing Award
Seagoing Industry Award
Security Services Award
Stevedoring Industry Award
Storage Services and Wholesale Award
Sugar Industry Award
Supported Employment Services Award
Telecommunications Services Award
Textile, Clothing, Footwear and Associated Industries Award
Timber Industry Award
Transport (Cash in Transit) Award
Waste Management Award
Wool Storage, Sampling and Testing Award
The third group of awards that will increase on 1 February 2021 include:
Air Pilots Award
Aircraft Cabin Crew Award
Airline Operations-Ground Staff Award
Airport Employees Award
Alpine Resorts Award
Amusement, Events and Recreation Award
Commercial Sales Award
Dry Cleaning and Laundry Industry Award
Fast Food Industry Award
Fitness Industry Award
General Retail Industry Award
Hair and Beauty Industry Award
Horse and Greyhound Training Award
Hospitality Industry (General) Award
Live Performance Award
Mannequins and Models Award
Marine Tourism and Charter Vessels Award
Professional Diving Industry (Recreational) Award
Racing Clubs Events Award
Racing Industry Ground Maintenance Award
Registered and Licensed Clubs Award
Restaurant Industry Award
Sporting Organisations Award
Travelling Shows Award
Vehicle Repair, Services and Retail Award
Wine Industry Award
To learn more about the Fair Work Commission’s wage increase or to speak to one of our Workplace Relations specialists, contact Enterprise Legal today.
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Fixed term contracts are back in the spotlight after a recent decision of the Fair Work Commission in Michael Nasr v Mondelez Australia Pty Ltd  FWC 2802 (Nasr), where the Commission held that an employee engaged over a 30-month period under eight separate and successive fixed term contracts, was not dismissed within the meaning of section 386(1)(a) of the Fair Work Act 2009 (Cth) when his last contract came to an end.
Why is this important? Well, as a general rule, employers need to be very careful when engaging workers on rolling fixed-term contracts, even if there are legitimate business reasons to do so, because there is the risk that such contracts build an expectation that the employment relationship (not just the employment contract) will continue following the expiry of the contract, leading to potential unfair dismissal claims when the final contract is not renewed.
The decision in Nasr sheds some useful light on how employers may still be protected under section 386(2)(a) of the Fair Work Act 2009 (Cth) in circumstances where an employee’s employment is terminated at the end of a fixed term contract.
Following a period of casual engagement as a labour hire worker with confectionery and food giant Mondelez, Mr Nasr was subsequently employed directly by the company over a 30-month period under eight separate and successive fixed term contracts (ranging in duration from one month to 12 months), prior to his final contract expiring on 31 December 2020.
Following the cessation of his employment, Mr Nasr subsequently lodged an unfair dismissal claim and sought to be reinstated in his position on the basis that by his eight contract he had a reasonable expectation of ongoing or permanent employment. Mondelez, on the other hand, claimed that there had been no dismissal within the meaning of s386(1)(a) of the Fair Work Act 2009 (Cth) as Mr Nasr’s employment had not been terminated at the initiative of Mondelez. Instead, his employment came to an end at the expiry of his contract, which is excluded from the meaning of dismissal under section 386(2)(a) of the Fair Work Act 2009 (Cth).
The Commission held that Mr Nasr’s application had no jurisdiction to proceed, on the grounds that his employment had not ceased at the initiative of his employer and Mondelez were subsequently protected under section 386(2)(a) of the Fair Work Act 2009 (Cth).
The Commission relied on the decision of Khayam v Navitas English Pty Ltd which confirms the principles in determining whether a dismissal occurred ‘at the initiative of the employer’ when an employment contract reaches its expiry date. Such principles include (inter alia):
The Commission found that each of Mr Nasr’s contracts contained a clear expiry date and expressly stated that Mr Nasr’s employment (not just the contract) would terminate at the end of the relevant period, and also that there was no guarantee of further employment beyond the expiry date. It was also important that Mr Nasr was not working in the same position under each of the contracts, moving between departments and in various roles which further supported the Commission’s views that the contracts were necessary based on the genuine operational requirements of the company and that there was a real indication that Mr Nasr’s engagement was limited to the scope of each contract.
While the Commission recognised that Mr Nasr had been employed under successive fixed-term contracts for a “greater period than is ordinarily the case”, the Commission accepted that there were genuine operational reasons for him to be engaged under the rolling fixed term contracts.
It is encouraging to see the Fair Work Commission recognise and uphold the genuine and useful role fixed term contracts have in the workforce, however it is also a very important reminder to employers that fixed term contracts need to be done right or the exposure could be significant. Had Mondelez’s contract not been well drafted, the company would have no doubt been exposed and the Commission has set the bar for what is required in order to be protected under section 386(2)(a) of the Fair Work Act 2009 (Cth).
If you’re wanting to have a chat about whether your current fixed term agreements are up to scratch, or if you would like some guidance on the most appropriate way to engage your employees, contact our dedicated Workplace Relations team today:
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The Fair Work Commission (the Commission) has stepped in to provide support for the real estate industry and commission-only real estate agents who are covered by the Real Estate Industry Award 2020 (the Award), by removing the months of May, June, July, August, September and October 2020 from the calculation of Minimum Income Threshold Amount (MITA) for the preceding 12-month period.
The MITA will be subsequently adjusted in proportion to the number of months disregarded, provided that, where the commission-only employee’s review date falls partway through any COVID-19 month, that month may only be disregarded where the review is due after the 14th of the month.
The Commission has also amended the Award to suspend the eligibility for the engagement of further commission-only agents for the period 6 August 2020 to 1 November 2020. Specifically, the Award has been amended to state:
“An employee who is not employed as a commission-only salesperson as at 6 August 2020, shall not be eligible to be employed on a commission-only basis prior to 1 November 2020.”
The aforementioned changes are in operation from the 6th of August 2020, however, for those recently employed, they do not take effect until the start of the employee’s first full pay period that starts on or after 6 August 2020.
You can read the Commission's decision on The Treasury's website.
The recent changes to JobKeeper announced on the 7th of August 2020 will also provide an element of reprieve for some, with businesses now only needing to demonstrate that their GST turnover has fallen in one quarter, instead of two, in order to qualify for the recently extended scheme.
Instead of the requirement to demonstrate a decline in turnover for both the June and September quarters, the 7th of August 2020 announcement confirms businesses will now only need to show that GST turnover has fallen in the September quarter, compared to the corresponding period in 2019.
Employee eligibility and payments have also changed, to the extent that the scheme has been amended to cover those who have been working since at least 1 July 2020, instead of the original deadline of 1 March 2020. The payment rate will also drop from October to $1,500 to $1,200 for full-time workers, and to $750 for part-time workers, before dropping again in January to $1,000 per fortnight for full-time workers and $650 for part-time workers.
Employers will need to use the two fortnightly pay periods to either 1 March 2020, or 1 July 2020 to calculate JobKeeper payment tiers and if an employee has been eligible for JobKeeper since March 1, the fortnightly period with the highest number of hours worked should be used.
Click here to read the 7 August 2020 announcement from The Treasury detailing the changes to JobKeeper.
The recent decision in Broadlex Services Pty Ltd v United Workers’ Union  FCA 867 highlights the risks employers will face if they reduce the hours of their employees without consent.
Broadlex, a cleaning company, experienced a downturn in business which triggered it to advise full-time employee, Ms Vrtovski, that her employment status would be reduced from full-time to part-time, reducing her hours from 38 hours per week to 20 hours per week (with a proportionate reduction in salary).
Ms Vrtovski declined to sign a form consenting to the change but nevertheless worked the reduced hours as she felt she had no choice. She later filed a dispute and upon examination, Justice Katzmann of the Federal Court of Australia held that Ms Vrtovski was entitled to redundancy pay on the grounds that:
1. Section 119 of the Fair Work Act 2009 (Cth) confirms that a redundancy requires:
2. by reducing Ms Vrtovski’s hours without consent, Broadlex had repudiated her contract of employment, which was accepted by her when she refused to sign the consent form. This, in turn, had the effect of terminating Ms Vrtovski’s full-time employment and when she commenced working on a part-time basis, she did so under a new contract of employment;
3. as the termination of Ms Vrtovski’s employment was initiated by Broadlex (when they changed her employment to part-time), who did not require her full-time role to be done by anyone, Ms Vrtovski’s circumstances met the requirements of section 119 and she was therefore entitled to redundancy pay.
The decision in Broadlex serves as an important reminder that employers need to be very careful when making changes to an employee’s employment.
If you find yourself in a situation where you are considering making similar changes within your business, we encourage you to contact EL's Principal Legal Advisor – Workplace Relations, Amie Mish-Wills for advice & support:
An employer has been ordered to pay full redundancy entitlements to employees despite offering them other employment arrangements.
The recent decision of Lee Crane Hire Pty Ltd v Sneek and Ors  FWC serves as an important example of when an employer will be required to pay redundancy entitlements to employees, despite offering them alternative means of employment.
Section 120 of the Fair Work Act provides a mechanism for employers to apply to vary the amount redundancy pay owing to an employee (which may be reduced to nil) in circumstances where the employer obtains other acceptable employment for the employee (and they reject it) or the employer simply cannot pay the amounts owing.
If an employer is able to prove that it offered an employee other acceptable employment and the employee rejected such employment and sought payment of their redundancy entitlements instead, an employer could request the Fair Work Commission reduce the redundancy pay potentially to nil.
The onus of proving that the alternative employment is acceptable rests with the employer. There is a body of case law which has set the bar particularly high and involves consideration of a range of non-exhaustive factors including, pay levels, hours of work, seniority, fringe benefits, workload, job security, work location, continuity of service, accrual of benefits, probationary periods, as well as the employee’s skills, experience and physical capacity. The location of the other employment must also not be unreasonably distant from the employee’s original place of work.
Lee Crane v Sneek is a prime example of how the Fair Work Commission assesses ‘other acceptable employment’ and is a cautionary tale for employers, particularly those who may wish to offer casual or far away employment to soon-to-be redundant employees. Here’s what happened:
What’s the lesson?
Employers need to tread very carefully when navigating redundancies and further, they need to ensure that any offers for other employment are indeed ‘acceptable’ based on the Fair Work Commission’s assessment criteria.
It goes without saying that if you are wondering if your redundancy process is correct or you are wishing you had some expert assistance to ensure your redundancy alternatives are not labelled “the devil’s alternative”, do not hesitate to contact Enterprise Legal’s Principal Workplace Relations Advisor, Amie Mish-Wills:
October is Safe Work Month and is an important time for businesses to review their Workplace Health and Safety procedures and processes and to reflect on the safety of their staff and workplaces.
Whatever the industry or workplace, every organisation can join Safe Work Month and take steps to keep people safe and healthy at work, including:
There are a wide range of free resources available through WorkSafe Queensland and Safe Work Australia and at Enterprise Legal, we have a dedicated Workplace Relations team that is here to assist and keep your workplace safe and informed.
If you would like to discuss how we can assist you with your Workplace Health and Safety obligations, contact EL's Principal Workplace Relations Advisor Amie Mish-Wills:
In this digital age, many businesses are embracing all the new and exciting things technology has to offer including remote working, virtual meetings and electronic file sharing.
Whilst technology has indeed revolutionised a number of ways in which we work and communicate, the legal industry is still quite a ways behind and you will find yourself dropped into hot water if you do not do your research and check if your tech-savvy approach will be accepted by a court.
The case of McCarthy v TKM Builders Pty Ltd  QSC 301 is an important example of when the use of Dropbox proved fatal to an application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld).
The Building Industry Fairness (Security of Payment) Act 2017 (Qld) (“the BIF Act”) provides for, among other things, the adjudication of disputes over progress payments in building construction contracts.
Importantly, as part of the process of applying for an adjudication decision, the BIF Act requires that an applicant must give a copy of an adjudication application to the respondent. Quite literally, section 79(3) of the BIF Act states:
‘A copy of an adjudication application must be given to the respondent.’
In the case of McCarthy v TKM Builders Pty Ltd  QSC 301, the applicant, Mr McCarthy and TKM entered into a construction contract for a building project at Bells Creek.
Later, TKM filed an adjudication application in the Queensland Building and Construction Commission and on 15 June 2020, they sent an email to Mr McCarthy, attaching the adjudication application form and a Dropbox link to their submissions. The email simply stated:
“Please find below link to correspondence and attached adjudication claim lodged with the QBCC today.https://www.dropbox.com/sh/jt7427ejjhz70ik/AACVuiCVC1Ug2YG6X27CFBuca?dl=0”
Of importance, the submissions could only be obtained by opening the Dropbox link.
Mr McCarthy’s solicitors prepared and submitted a response to the adjudication application and argued that Mr McCarthy had not been given a copy of the adjudication application in accordance with s 79(3) of the BIF Act and, as a result, the adjudicator did not have jurisdiction to deal with the application.
Upon examination, the adjudicator held that he did have jurisdiction to deal with the application, on the grounds that:
‘the fact is that it has been demonstrated that the respondent was in possession of a copy of the adjudication application and its supporting submissions. If a document has been received by the other party, the manner in which it was served is unlikely to matter.’
The adjudicator found in favour of TKM on the payment claim and Mr McCarthy paid the amount found to have been owing.
The matter was subsequently appealed in the Supreme Court of Queensland and overturned by Judge Martin J, who found that TKM had failed to appropriately give Mr McCarthy the adjudication application as required by section 79 of the BIFA Act.
His reasoning? Dropbox was simply not sufficient for the purposes of section 79 of the BIFA Act and section 39 of the Acts Interpretation Act 1954 (Qld) which also provides for the service of documents.
In making his decision, Judge Martin referred to the decision in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd  1 Qd R 265 at 268 , where Justice McMurdo said:
“ Actual service does not require the recipient to read the document. But it does require something in the nature of a receipt of the document. A document can be served in this sense although it is in electronic form. But it was insufficient for the document and its whereabouts to be identified absent something in the nature of its receipt. The purported service by the use of the Dropbox facility may have been a practical and convenient way for CGE to be directed to and to use the documents. But at least until 2 September 2013 (when Mr How became aware of the contents of the Dropboxes), it did not result ‘in the person to be served becoming aware of the contents of the document’.”
Judge Martin held that Mr McCarthy was not given a copy of the adjudication application in accordance with section 79 of the BIFA Act and as a result, the adjudicator did not have the necessary jurisdiction to make the decision.
It is pretty clear that if you are required to ‘give’ another party a document under the BIF Act, you should avoid using Dropbox. You will save yourself being dropped into some seriously hot water like TKM in this matter.
Whilst it might be tempting to use exciting new technology in every aspect of your business and dealings, how you share, serve and file documents in legal proceedings can make or break your claim and it is therefore vital that you get the right advice from the start before you take a wrong turn.
For advice and support with disputes and the construction industry, contact our Dispute and Construction division:
Sharne Lategan Principal Director & Legal Advisor – Construction & Disputes
We can all be forgiven for thinking that employee bonuses are and always will be, subject to the complete discretion of the employer, but what if you were told that that isn’t always the case?
The recent decision in Subasic v Hewlett Packard Australia Pty Ltd  ACTSC 2 has continued to chip away at the ‘absolute discretion’ defence and confirmed that an employment contract that states a bonus is “in the absolute discretion” of the employer, doesn’t mean the employer has the unlimited power to change how the bonus is paid or withhold payment and in fact, such a decision will be a costly one.
Melinda Subasic was employed by Hewlett Packard Australia Pty Ltd and her contract of employment included the payment of an incentive scheme that was “subject to change or cancellation at [the employer’s] discretion”.
Subasic’s performance was of such a high standard that she generated a significantly large incentive payment of $446,250.39 under the incentive scheme and when it came time to pay up, Hewlett Packard Australia Pty Ltd sought to implement a cap that would limit the amount that she would be paid to just $136,500.00. Understandably, the employee sued.
The Supreme Court of the Australian Capital Territory found that by changing the incentive scheme, Hewlett Packard Australia Pty Ltd breached the employment contract.
It also held that the discretion to change or amend the scheme was to be exercised “honestly and conformably with the purposes of the contract”, which was not evident in this case.
The Court also found that the employer was not permitted to decide arbitrarily, capriciously or unreasonably that it need not pay an incentive payment where the set objectives had been satisfied.
Quite simply, Hewlett Packard Australia Pty Ltd did not have the discretion to simply impose new terms and decide to withhold the incentive after it was validly earnt.
The employee was awarded $309,750.39 plus interest in the sum of $61,568.19 and Hewlett Packard Australia Pty Ltd was ordered to pay costs.
The decision in Subasic v Hewlett Packard Australia Pty Ltd  ACTSC 2 is a worthwhile reminder to employers that ‘absolute discretion’ isn’t actually absolute and employers should plan ahead and tread carefully when implementing and managing employee incentive schemes.
It is also a worthwhile reminder that withholding employee incentives is a dangerous option as businesses look at ways to reduce costs in the wake of COVID-19 and it is vital to get sound legal advice before taking steps that could cost your business far more in the long run.
If you would like to know more or you would like to speak to one of our Workplace Relations specialists, contact Enterprise Legal today for a free introductory consult:
After the year that has been, it is understandable that a lot of workplaces will be gleefully looking forward to kicking back a few bubbles and toasting to end of 2020.
But it is important to sing the tale of fateful Christmas parties past and remind employers and employees that the laws of reasonable management action, workplace health and safety and misconduct continue to apply and will land both employers and employees on the naughty list if the elves fall off their shelves.
On a not so merry Christmas, the Dandenong ALDI Store and Distribution Centre held their annual Christmas Party in a private function room at the Brownstone Micro Brewery, with all costs, including alcohol paid for by ALDI.
At the event, Warehouse Operator, Mr Sione Vai, consumed a significant amount of alcohol and had also had pre-drinks before attending the event. He was subsequently cut off by the bar staff and managers and in a drunken state, threw a glass of beer in the direction of his colleagues, narrowly missing them and smashing on the wall behind them.
Mr Vai was later dismissed for his conduct and brought an application in the Fair Work Commission alleging that he had been unfairly dismissed.
Mr Vai’s claim was unsuccessful on the grounds that:
Whilst it is appreciated that it can be difficult for employers to predict all facets of employee behaviour at work sponsored Christmas events, under occupational health and safety laws employers have a legal responsibility to provide a safe work environment for all employees during work related activities, including Christmas parties.
As such, it is vital that in the lead-up to Christmas, employers take steps to implement effective strategies to prevent unwanted incidents and to ensure the safety of employees at work endorsed Christmas functions.
This may include:
We hope you all have a safe and merry festive season and you all take steps to ensure neither your employees or your business end up on the Fair Work Commission or Workplace Health and Safety Regulator’s naughty list.
...but if you do, always remember that the experienced team at Enterprise Legal are here to help!
Casual employment has been a hotly contested topic for quite some time, particularly following the controversial decision in WorkPac Pty Ltd v Rossato (‘Rossato’), which was handed down on 20 May 2020.
In a nutshell, the decisions of Workpac Pty Ltd v Skene  FCAFC 131 and Workpac Pty Ltd v Rossato  FCAFC 84 found that casual employees who work regular, consistent hours with a firm advance commitment to work, may be owed leave and other entitlements such as redundancy pay even where they have received a 25% casual loading (double dipping drama).
There will be no easing of casual employment controversy in 2021 as the Rossato decision is off to the High Court and further, the Australian Government recently introduced the Fair Work Amendment (Supporting Australia’s Job and Economic Recovery) Bill 2020 (the Bill) to Parliament.
If the Bill passes Parliament, it will bring about various changes to casual employment, including certainty to employees and employers regarding the rights and obligations of both parties and the definition of a casual employee is proposed to be amended to where an offer of employment is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
Relevant factors to whether there is a firm advanced commitment to work include: the ability to accept or reject work; whether the employee will work only as required; and whether a casual loading is paid;
Relevant factors to whether there is a firm advanced commitment to work include:
assessed at the time the engagement is entered into.
If the Bill is successful and in good news for employers, employers will also have the ability to set off any claim for annual leave, personal leave and redundancy pay against the 25% casual loading in an attempt to reduce the potential for “double dipping”.
The laws are currently proposed to work retrospectively, however, there are no guarantees that this will be held to be valid. The Bill also proposes a number of changes to provisions regarding casual conversion, flexible work directions and enterprise agreements – important but less controversial topics.
It is recommended that employers continue to stay up to date with the developments in the casual employment sphere and be prepared for changes in the future. At this stage, the Bill is only proposed and may change before coming into force.
For advice and support with managing your casual workforce, contact our Workplace Relations team at Enterprise Legal today for a complimentary introductory consultation:
The recent introduction of a new burger has stirred some rather large beef between two iconic fast-food giants, McDonalds and Hungry Jacks.
It began with an ad campaign launched by Hungry Jacks to promote their new ‘Big Jack’ burger, a name which most members of the general public immediately compared to McDonalds’ famous ‘Big Mac’. Facebook posts prior to the release of the TV ads also claimed, “There’s something… ‘special’ about our new Big Jack” followed by a winking emoji.
While most found the advertising to be comedic, McDonalds was not “lovin’ it” and took significant issue with the new burger’s resemblance to the ‘Big Mac’ and filed a claim in the Federal Court against Hungry Jacks, alleging that the Big Jack infringed McDonalds’ intellectual property. They also argued that the registration of ‘Big Jack’ as a trademark was made in bad faith.
Undeterred, Hungry Jacks has since hit back at McDonalds in their next series of recent ads, acknowledging that ‘Someone’s suing Hungry Jacks,’ but that Australians were unlikely to get the Big Jack confused with ‘some American burger’, as they claimed the Big Jack was ‘clearly bigger’. They also defended the name of the burger, saying it was intended as a play on the name of the company and a link to Jack Cowin, the founder and current owner of Hungry Jacks.
Sydney chain Rashay’s also decided to jump into the mix with their Big MacJac, and were swiftly handed a cease and desist letter from the golden arches.
It is a very amusing and interesting case and to prove trademark infringement to the Federal Court, McDonalds will have to argue two points. Firstly, they will have to show that Hungry Jacks’ ‘Big Jack’ trademark is substantially identical with or deceptively similar to McDonalds’ ‘Big Mac’ trademark under section 44 of the Trade Marks Act 1995 – which will hinge on whether consumers are likely to be confused or assume a connection between the two burgers. This could be difficult to prove given the well-known rivalry between the two companies; is the average person likely to believe that a collaboration is going on between the two, or that they are the same burger?
Secondly, under section 60 of the Trade Marks Act 1995, they will have to show that the McDonalds’ Big Mac trademark has acquired a reputation in Australia and because of that reputation, consumers are likely to be deceived. Proving that the Big Mac has a reputation will be easy enough; more difficulty may arise, again, with arguing that consumers will be confused.
In addition, McDonalds has also opposed the Big Jack trademark under section 62A of the Trade Marks Act 1995, arguing that Hungry Jacks registered the Big Jack trademark in ‘bad faith’ – alleging that they showed ‘flagrant and wilful disregard’ of McDonalds’ trademarks.
This is far from the first time McDonalds has filed a lawsuit over intellectual property. In 1994, San Francisco coffee shop ‘McCoffee’ was forced to change its name after McDonalds claimed they infringed on their trademark. Similarly, a restaurant in the Philippines named ‘McJoy’ was required to change their name to ‘MyJoy’ when McDonalds made the decision to expand into the country.
It’s not all wins though and in 1996, a Denmark-based hotdog vendor Allan Pederson, trading under the name ‘McAllan’, successfully defeated a claim filed by the fast food giant after the court ruled that consumers were unlikely to mistake a street food stand for a McDonald’s franchise. Denmark was clearly not “lovin’ it”.
So how will the matter of the Big Mac v Big Jack be settled? Presently, the judge presiding over the case, Justice Burley, has moved the case to mediation and given McDonalds’ history of litigation over trademarks, it’s unlikely they’ll agree to meat in the middle and this will continue to be an interesting case to watch in 2021.
Be sure to follow Enterprise Legal for further updates and if your business would like to know more about protecting your intellectual property then let's talk:
As discussed during our recent Workplace Relations Video, whether a private employer can direct its employees to get the COVID-19 vaccination is a complex issue, with the primary issue being whether or not an employer’s direction for staff to receive the COVID-19 vaccination is lawful and reasonable.
It is commonly understood that employers can direct their staff to do certain things as part of their employment and employees have a legal obligation to comply with their employer’s directions if those directions are lawful and reasonable.
A number of matters are considered when determining whether or not a direction is lawful and reasonable, including (but not limited to):
Some examples of directions that might be given by an employer to an employee include a direction to:
In the case of a direction for staff to receive the COVID-19 vaccination, whether such a direction is lawful and reasonable will vary depending on the circumstances of the employer, employee, the workplace and the industry.
As discussed in our video, what is reasonable in the context of an aged care facility, will differ significantly from a marketing office and understandably, one size does not fit all.
Various factors may impact the lawfulness and reasonableness of a direction for staff to receive the COVID-19 vaccination, including:
Employers also need to be mindful of whether or not the direction constitutes discrimination or an infringement on a protected human right.
Breach of the implied duty of obedience is by its very nature a breach of the contract of employment, and in principle will attract the normal remedies for breach of contract. More often, employers will consider the following options in response to a failure to obey lawful and reasonable directions: respond to a breach by either:
Before taking disciplinary action against an employee for disobeying a direction, employers should always consider:
As you can see, the issue of whether or not an employer can direct staff to receive the COVID-19 vaccination is not straight forward and it is important employers navigate this issue with caution.
The issue has not yet been determined by the Fair Work Commission, and the matter of Glover v Ozcare  FWC 231 may shed some much needed light on the issue if it proceeds to a formal decision as the employee, in this case, was dismissed after they refused to get the influenza vaccine on medical grounds.
Enterprise Legal's Workplace Relations team can assist with assessing whether or not such a direction is lawful and reasonable based on your workplace, employees and industry. Our team can also assist with issuing and managing the rollout of such a direction, assisting you every step of the way.
Reach out to us today:
In a first for Queensland, Mr Jeffrey Owen of Owen’s Electric Motor Rewinds has become the first individual to be charged with industrial manslaughter under the Work Health and Safety Act 2011 (Qld) (the 'Act').
Tragically in July 2019, a worker at the Owen's Electric Motor Rewinds site was fatally crushed by a portable generator that was being unloaded by a forklift. It is alleged that the forklift directly flipped as a result of Mr Owen overloading the forklift.
This is the first prosecution of an individual for industrial manslaughter in the state of Queensland and if convicted, Mr Owen faces a maximum penalty of 20 years' imprisonment.
The offence of industrial manslaughter was included in the Work Health and Safety Act 2011 (Qld) (WHS Act), as well as the Electrical Safety Act 2002 (Qld) and Safety in Recreational Water Activities Act 2011 (Qld) and is defined as negligent conduct that causes, or substantially contributes to, the death of a worker, and a prosecution may be brought against a body corporate or individual senior officer.
It carries a maximum penalty of over $10 million dollars for a company, or 20 years’ imprisonment for a senior officer and was introduced in 2017 following increased numbers of workplace fatalities.
Industrial manslaughter is subject to the same guidelines and standards as criminal manslaughter and criminal negligence under the Criminal Code (Qld) 1899 and the same defences for criminal manslaughter are also available, excluding the defence of ‘accident’.
Organisations and their most senior directors and supervisors will face severe consequences should one of their workers be fatally injured on the job and it is vital that appropriate steps are taken to ensure the safety and wellbeing of those in the workplace. This was highlighted in the Queensland District Court case of R v Brisbane Auto Recycling Pty Ltd & Ors  QDC 113 where a fine of $3 million was imposed on a company for industrial manslaughter and his Honour Judge Rafter SC stated:
“The sentences imposed should make it clear to persons conducting a business or undertaking, and officers, that a failure to comply with obligations under the Work Health and Safety Act 2011 (Qld) leading to workplace fatalities will result in severe penalties.”
For guidance and support on Workplace Health and Safety compliance and prosecutions, contact Enterprise Legal’s Workplace Relations team today:
In the world of workplace injuries and workers’ compensation, there is one phrase that can make employers feel both at ease, and a little unsure and that is ‘in the course of employment’.
Whilst on its face the criteria for compensation for a workplace injury could be perceived as being straight forward, every now and again there is a case that leaves us feeling like anything is paw-sible (strap in for some dog puns, please fur-give me).
Along comes the decision in N. v Hydro Electric Corporation  TASWRCT 2 where an employee was successful in a claim for compensation for an injury he sustained whilst out walking his dog whilst on-call.
At the time of the injury, the applicant was employed by the Hydro Electric Corporation as a relief area coordinator and was staying at the employer’s Tullah accommodation for a 7 day period during which he was required to be on-call.
One evening, whilst on-call, the worker ventured out for a walk along the Tullah with his partner and his dog, when he slipped and fell on a wet log suffering a fractured left femur (oof, that’s ruff).
The issue before the Tribunal was whether the injury sustained by the worker arose out of or in the course of the worker’s employment with the employer.
In a nutshell, A worker will suffer an injury that ‘arises out of’ his or her employment if there is a causal connection between the injury and the work. An injury will arise out of a worker’s employment if the worker suffered it whilst performing work that he or she is retained to perform or other work incidental thereto.
Whether a worker suffers an injury ‘in the course of’ his or her employment is a more vexed question and less easily identified. It denotes a temporal connection.
Finding in favour of the worker, the Chief Commissioner found that the worker’s injuries arose ‘in the course of his employment’. In coming to this decision, the Chief Commissioner Clues applied the test in Comcare v PVYW and examined:
In this case, the worker conceded that his injury did not ‘arise out of’ his employment. He argued that he suffered the injury ‘in the course of’ his employment because it was sustained in circumstances possessing a sufficient connection to his work and Chief Commissioner Clues agreed.
The case really turned on the fact that the worker was walking along the Tullah lake house whilst he was required to: be on call for work after normal hours; be contactable within 15 minutes; and ready to commence work within 15 minutes of being contacted.
The worker was authorised to spend the time between periods of on-call work in any way he wished that was not inconsistent with him being contactable and able to attend work. The Chief Commissioner therefore held that the act of walking along the Tullah lake house was relatively an unexceptional activity and would have likely have been held by the employer to have been an acceptable activity.
The worker’s injury was subsequently held to have occurred in the course of his employment with the employer.
Whilst the decision is from the Workers Rehabilitation And Compensation Tribunal of Tasmania (and I’m writing this from my 691 m above sea level hill in Toowoomba) and you might think that we are fur-tunate that it wasn’t set in Queensland, it may still be considered as being persuasive here in Queensland and our very own Workers’ Compensation and Rehabilitation Act 2003 contains very similar provisions.
Ultimately this decision highlights the fact that the concept of arising ‘in the course of employment’ is not a narrow one and that the circumstances of the employment are crucial to determining whether there is a nexus between the activities performed, the injury and the employment.
For advice and support on how to safeguard your business and mitigate the potential of similar claims, contact Enterprise Legal’s Workplace Relations team today and request a free initial consult:
The Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2020 (Act) is now law, a watered-down version of the Federal Government's original IR Omnibus Reform Bill (the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 (Bill)) having passed through both houses of Parliament on the 22nd of March 2021.
Whilst it won’t commence until it received Royal Assent, we thought we would summarise some of the key points relating to the big changes for casual employment.
Excitingly, the Fair Work Act will now define a casual employee as an employee who accepts an offer of employment which makes 'no firm advance commitment to continuing and indefinite work according to an agreed pattern of work'.
This is very important and exciting as up until now, the Fair Work Act has not defined a casual employee and this has caused much contention and pain for employer, employees and the Courts.
To work out if there is a 'firm advance commitment' only the following factors can be considered:
A regular pattern of hours does not of itself indicate a 'firm advance commitment'.
The question is to be assessed at the time of the offer and acceptance of employment, and without regard to any party's subsequent conduct during the employment.
Employers (other than small business employers (less than 15 employees)) will be required to offer to convert any casual employee to full-time or part-time employment if the employee:
unless there are reasonable grounds not to do so.
Casual employees will also have a residual right to request conversion to full or part-time employment themselves. Employers can only refuse such requests on reasonable grounds (set out in the Fair Work Act) and must respond in writing within specified timeframes. In the event of a refusal, employers must consult with the casual employee before formally refusing their request for conversion.
There is a 6 month transition/lead time for employers to make offers of conversion to all existing eligible casuals, unless they have reasonable grounds not to.
Similar to the Fair Work Information Statement (which is required to be provided by employers to all new employees), employers will need to provide a copy of the Fair Work Ombudsman Casual Employment Information Statement to casual employees before, or as soon as practicable after their commencement. This information sheet is yet to be published and it will be interesting to see what it contains.
Incorrect characterisation and offset provision
If a court finds that a current or former employee has been incorrectly characterised as a casual, the court will be able to offset any identifiable casual loading paid to the employee against claims for certain entitlements.
Importantly, the employer must have properly attributed the loading as being paid for that purpose.
It is vital, now more than ever, to ensure employers have in place well drafted contracts of employment as they will be imperative in enforcing this provision – particularly with respect to carving out the casual rate of pay and loading and defining what the loading is in fact compensation for.
Employers who have not yet taken steps to review their casual workforce, their rosters and contracts of employment should do so now.
For advice and support on how these changes may impact your workplace and to implements measures to support and safeguard your business, contact Enterprise Legal’s Workplace Relations team today:
In a cautionary tale for all employers and occupiers (especially those with stairs!), the recent case of Julie Walker v Top Hut Banoon Pastoral Co Pty Ltd sets a stern reminder that steps need to be taken (pun intended!) to ensure that the workplace is safe and adequately maintained so as to avoid causing injury to others.
The plaintiff was employed by Shear Away Pty Limited, however, Top Hut Banoon Pastoral Co Pty Ltd was the occupier of Banoon station where she was attending as a shearers’ cook.
On 28 July 2015, whilst at Banoon station, the plaintiff put her foot on a step, and as she was bringing her other foot down, she felt it tilt and she was suddenly on the ground screaming out for help. She said that she noticed that the step had broken and one side had come “loose of the wood” and had torn completely off, the other side was “hardly attached but there”.
She sustained injuries to her lower back, right wrist, left ankle and right knee. She also suffered a psychiatric injury and an exacerbation of her type 1 diabetes mellitus. Her injuries were assessed to be a 15% whole person impairment.
At law, it is well established that an employer has a non-delegable duty to take reasonable care. The duty is, of course, not absolute; it is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury.
The employer’s duty to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control.
The distinction in this case fell to fact that the employer did not have full control over the premises and therefore, in the opinion of District Court Judge Weinstein SC, there was no breach of duty on the part of the employer and the employer’s duty where there was a defect in the occupier’s equipment or plant was to do no more than cast an eye over the premises to ensure they appeared safe. The occupier alone was liable in negligence for not taking precautions against the risk of harm from the defect that caused the injuries to the plaintiff.
Whilst the final orders on damages are still to be made, the plaintiff will be awarded approximately $1 million dollars for her injuries and Weinstein SC’s decision included a non-economic component of around $240,000, given the significant effect on the employee’s lifestyle and health following the fall.
It was held that she was no longer able to perform her role after the fall, and had to quit her job, which she had intended to keep till her late 60s.
Whilst the employer in this case was held to not be liable for the injuries sustained by the plaintiff, this does not automatically mean that this will be the case for other employers in the future – no one case is the same! Employers still need to ensure they take reasonable care to avoid exposing employees to unnecessary risks of injury, so far as is reasonably practicable.
For occupiers, it is a stern warning that liability for injuries sustained will not automatically rest with the employer and there is the real risk that liability may fall on the occupier alone if the premises is not safe and not safely maintained.
For advice regarding your premises or for advice regarding your Workplace Health and Safety obligations, contact either the Enterprise Legal Workplace team or the Business and Property team today:
For a long time now we have seen delivery giant Uber successfully fend off claims from delivery drivers claiming they were employees and not independent contracts.
This time, it was Deliveroo Australia Pty Ltd (Deliveroo) who was on the menu before the Fair Work Commission and in an explosive decision, the Commission ruled that a Deliveroo driver was an employee, rather than an independent contractor.
Mr Franco had worked for Deliveroo for approximately three years when he suddenly received an email notification from Deliveroo indicating his “supplier agreement” would be terminated on the grounds that he was too slow at delivering orders.
Mr Franco subsequently filed a claim for Unfair Dismissal in the Fair Work Commission, challenging his termination.
The hurdle – Was Mr Franco an employee or independent contractor?
Independent contractors are not protected by the Unfair Dismissal provisions contained the Fair Work Act 2009 (Cth) and therefore Deliveroo objected to the unfair dismissal application on the basis that Mr Franco was an independent contractor, rather than an employee.
When looking at the relationship between Deliveroo and Mr Franco, Fair Work Commissioner Cambridge (the Commissioner) affirmed the longstanding principle that determination of whether a person is an employee or independent contractor requires consideration of various identified indicia, with no single factor being decisive, to form a view about the overall impression of the relationship.
Some of the key points that turned in Mr Franco’s favour included:
Ultimately, the Commissioner formed the view that Franco was an employee and was not a contractor carrying on a trade or business of his own. Quite significantly, the Commissioner subsequently ordered Mr Franco be reinstated, which only happens in less than 15% of Fair Work Commission cases. Deliveroo was also ordered to pay Mr Franco for lost pay and his continuity of service was also not broken.
Whilst Deliveroo have openly stated that they intend to appeal the decision, if upheld, the decision will have wide-reaching ramifications for gig workers and digital businesses who rely on a contractor and principal model.
It is becoming more and more important to ensure that businesses get the distinction between employee and contractor right as the misclassification of a worker can lead to significant unexpected liabilities including (but not limited to):
If you would like assistance with reviewing your current contractor arrangements, start a conversation with our dedicated Workplace Relations team:
Employers need to ensure they are aware that the superannuation guarantee will increase from 9.5% to 10% on 1 July 2021 and then continue to increase incrementally by 0.5% each year thereafter until it reaches 12% by 1 July 2025.
Be sure to add the below dates and rates into your calendars to ensure your business stays up to date with the incremental increases that are on the horizon:
From 1 July 2021, businesses need to ensure that their payroll systems are appropriately adjusted to comply with the increased superannuation guarantee rate and a failure to do so will expose the business to potential charges, fines, interest and administration fees imposed by the ATO.
Employers also need to ensure that they review their current employment contracts and pay close attention to the remuneration they currently provide to employees. If their remuneration package is inclusive of superannuation entitlements, the increased superannuation guarantee may be able to be absorbed into the employees existing remuneration package, however, this will mean their take-home pay will reduce. If the employee’s wage is exclusive of superannuation, additional superannuation will need to be paid.
For workers who are already receiving superannuation contributions above 10%, it is unlikely that any adjustments will need to be made, however, employers should still perform a thorough review for the sake of completeness and to ensure compliance.
If you have any questions in relation to the superannuation guarantee increases or if you would like assistance with ensuring your business is compliant, contact Enterprise Legal’s Workplace Relations team today:
The Fair Work Commission has just announced that the National Minimum Wage and all wages in Modern Awards will increase by 2.5%.
The new National Minimum Wage will be $772.60 per week or $20.33 per hour from 1 July 2021.
The increases for Modern Awards will be staggered across a select number of Awards.
The General Retail Industry Award 2020 wages will increase by 2.5% on 1 September 2021.
The following Awards will have their minimum wages increased by 2.5% on 1 November 2021:
All other modern awards will have their minimum wages increased by 2.5% on 1 July 2021.
Learn more about the wage increase: Join Amie Mish-Wills – Principal Legal Advisor Workplace Relations and Alistair Green – Director FocusHR on the 1st of July 2021 for the Chamber of Commerce Fair Work Legislation Update Breakfast.
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