• Casual worker

    A recent Federal Circuit Court judgment (WorkPac v Skene [2018]) has turned the commonly understood definition of a ‘casual employee’ on its head, bringing to light the fact that employers could be blissfully unaware of the fact that their labour hire workers or casual employees are in fact permanent employees!

  • Wage theft

    Celebrity Chef George Calombaris is under fire for reportedly underpaying 515 past and current workers a staggering $7.8 million in wages.

    Last week the Fair Work Ombudsman slapped the celebrity Chef and his Made Establishment business with a $200,000 fine for the underpayment wages to past and current employees.

  • Real Estate Awards

    There are some significant changes coming to the Real Estate Industry Award (‘the Award’) commencing on 2 April 2018.

    If you are an employer in the Real Estate sector, it is crucial that you are up to speed with the latest changes so that you can put systems and procedures in place to ensure you meet all the required minimum standards.

  • Employers in the construction, clerical, food, manufacturing, telecommunications, storage and wholesale industries are among the many industries whose minimum Modern Award wages will be increasing on 1 November 2020.


    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

    Architects 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

    Horticulture 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

    Miscellaneous Award

    Mobile Crane Hiring Award

    Oil Refining and Manufacturing Award

    Passenger Vehicle Transportation Award

    Pastoral 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

    Silviculture Award

    Stevedoring Industry Award

    Storage Services and Wholesale Award

    Sugar Industry Award

    Supported Employment Services Award

    Surveying 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

    Nursery 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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  • Coronavirus – What Do I Do With My Employees?

    Obviously one of the biggest areas of uncertainty regarding the impacts of COVID-19 is on staff. Our expert Employment Law Team has put together the following overview, regarding standing-down employees and making employees redundant as a result of the current pandemic.

    Employee Stand-Down

    Pursuant to sections 524 and 525 of the Fair Work Act, employers can stand employees down without pay during a period in which the employee cannot usefully be employed because of:

    • equipment breakdown;
    • industrial action, when it’s not organised by the employer; or
    • (most relevant given the corona virus outbreak) stoppage of work for which the employer cannot be held responsible.

    During a legitimate stand down period, employees do not need to be paid but they will accrue leave in the usual way.

    Whether a particular employee can be usefully employed is a question of fact to be determined having regard to the circumstances that face the individual employer and the specific employee. “Usefully employed” has not been defined, but Courts have in the past determined that if an employer is able to obtain some benefit or value for work that could be performed by the employee, then the stand down provisions will not apply.

    For example, let’s say a local take away shop has to ‘shut its doors’ due to a government lock-down proclamation, then it may be reasonable to stand the front-line employees down without pay, but employees who do accounts, bookkeeping, marketing and alike may not be eligible to be stood down because there may still exist an opportunity for them to be ‘usefully employed’.

    Awards, Enterprise Bargaining Agreements and Employment Agreements could alter the statutory position above, so EL always cautions clients against taking an action as drastic as stand down without pay until considered legal advice tailored to that client’s business and the specific employee(s) have been obtained.

    Because of the significant impacts stand down without pay can have on employees, EL would treat such a step with extreme caution. Fair Work guides at the moment are saying that ‘best practice’ would be to discuss different options with each employee, and consider letting employees take leave on the basis of paid leave such as sick, annual, long-service etc. where available, or to allow them to work from home where possible.

    However, EL recognises that sometimes when there is a stoppage of work, standing employees down without pay may be the only option available to our clients, and in those circumstances we encourage clients to contact us for a tailored, short-form advice from $1,350.00 (including GST).

    Redundancy Option

    Some EL clients may see their business take such a downturn that they need to consider making employee(s) positions redundant.

    Essentially, a redundancy could be a potential strategy for employers where an employee’s position is no longer required by the employer due to restructure or operational changes in the employer’s business, which renders the position unnecessary. The work or role must no longer be required to be performed by any employee.

    The Fair Work Act has strict requirements that employers must meet prior to qualifying for the redundancy provisions, and a relevant Employment Agreement, Award or Enterprise Bargaining Agreement may create complimentary and/or additional onerous obligations on employers in this regard.

    Given the current climate, EL’s advice is to approach any redundancy decision with caution, and always ensure you have sought tailored legal advice so as to minimise any risk or unnecessary exposure to your business.

    Contact Us

    Our expert Employment Law team can also assist your business by developing a range of customised and appropriate policies and documents – please contact us to obtain a fixed fee quote for these services. In the interim, our team has prepared a generic Coronavirus Policy for your free download and use, to ensure that your business is on the front-foot.

    The application of the existing law to the current situation is rapidly-developing, so we encourage all clients to ensure they regularly check our platforms for updates or to contact us directly with any concerns that they have.

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  • JobKeeper Directions – Is Your Business Exposed?

    With businesses starting to receive JobKeeper payments, the economy is in the midst of transitioning to the ‘new normal’ and business owners are finally starting to feel like they can, at least somewhat, breathe again. Consequently, now is the time to ‘take stock’, conduct an audit and ensure that the measures that your business implemented (most likely in haste), over the past few months are not now leaving your business exposed to potential claims and other legal risks.  

    Notably, a new section was introduced into the Fair Work Act 2009 (the Act), which allows the Commission to deal with disputes specifically regarding employer ‘JobKeeper directions’. This dispute mechanism allows for employees to lodge an application (at no cost) detailing their dispute, to which an employer must then respond to the application in the relevant time frame. Once the application and response has been submitted, the Fair Work Commission will deal with the dispute via arbitration, mediation, conciliation or alike, and it has broad powers to make orders “to give effect to a direction, set aside the direction, substitute the direction for a different direction or any other direction it considers appropriate”. There are also civil penalties that can be imposed on the employer, in certain circumstances.

    New figures revealed by the Fair Work Commission show that its overall workload is already up by 40% compared to April 2019, with the increase apparently due to more cases about unfair dismissal, JobKeeper directions and JobKeeper payment disputes.

    As at 7 May 2020, the Fair Work Commission had already received 212 disputes pertaining to the JobKeeper scheme, with the leading dispute topic being JobKeeper directions pertaining to changes to employee working hours. 

    Most businesses had to respond quickly to be able to adapt to the COVID-19 impacts and this saw a number of businesses taking drastic measures both in the restructuring of their businesses (such as new service offerings and operating hours), but also in the restructuring of their employees and the basis on which they are employed (such as reduced hours, different hours, change of duties and roles, change of location of work and so on). Most of these changes to employees’ employment can be made legally in certain circumstances, provided they strictly comply with the requirements of the Act. The problem is, most of these changes were made in a ‘reactive’ manner by businesses and when businesses ‘react’ they can often fail to comply with the myriad of applicable legal requirements. 

    Here are a few things that employers must know in relation to JobKeeper payments:

    • no employer is entitled to (and is taken never to have been entitled to), a JobKeeper payment unless it complies with record keeping requirements under the relevant Acts and Regulations - this could very well mean, that if employers and businesses have been receiving JobKeeper payments but they did not comply with the record keeping requirements, they could be required to repay the JobKeeper payments;
    • JobKeeper enabling directions cannot be made retrospectively - this means that directions given before the Act was amended on 9 April 2020 are not authorised, meaning they could be construed as unlawful and employees may have remedies against their employers in this regard (or civil penalties may apply);
    • JobKeeper enabling directions will not be valid unless an employer gave the requisite written notice to employees (3 days before the direction commenced) and consulted with the employees in accordance with the requirements under the Act; and
    • the JobKeeper payments must be dealt with strictly in accordance with the relevant parts of the Act, otherwise the employer risks a claim by the employee and also civil penalties being imposed against the employer.

    The above examples are a mere snapshot of certain key considerations that employers ought to turn their mind to, so as to avoid unnecessarily exposing their businesses to legal claims and potential civil penalties. 

    It is now critically important that businesses audit the decisions they made over the past few months, to ensure those decisions strictly complied with the relevant laws, regulations and rules. Where it is found that decisions didn’t comply, a number of corrective measures are available to businesses to correct or mitigate any potential impacts.  

    If your business needs assistance, our team of employment law experts are standing by ready to guide you through this audit process. 

    EL has further put together an exclusive JobKeeper Audit Package, available to the first five businesses (with under fifteen employees) who contact us, under which we will audit your business and provide you with a compliance report and summary of required corrective measures (if necessary) for a fixed fee of $2,200.00 (incl. GST).

    Call our team today to take advantage of this exclusive offer:

    ☎️ (07) 4646 2621

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  • 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. 


    What is the Entitlement?

    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:

    • the employee is required to self-isolate or quarantine by government or medical authorities or their employer;
    • the employee is required to self-isolate or quarantine following receipt of medical advice because they are displaying symptoms of COVID-19 or have come into contact with a person suspected of contracting COVID-19;
    • the employee is isolating while they await their tests results;
    • because of measures taken by the government or medical authorities in response to the COVID-19 pandemic. 


    Are There Exclusions?

    Yes, employees will not be entitled to access paid pandemic leave if:

    • they are not covered by the aforementioned awards;
    • they are able to work from home or remotely;
    • circumstances dictate that they should access personal/carer’s leave (for example, if the employee was actually unwell, they would be entitled to personal leave);
    • they are covered by an Enterprise Bargaining Agreement that does not expressly incorporate the aforementioned awards.
      Importantly, the leave is conditional on employees taking a COVID-19 test at the earliest opportunity. 

    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. 


    What About Other Industries?

    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

    ✉️ Submit an Online Request

  • 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.


    Changes to JobKeeper

    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.


    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

    ✉️ Submit an Online Request

  • The recent decision in Broadlex Services Pty Ltd v United Workers’ Union [2020] 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:

    • the employee’s employment to be terminated
    • the termination to be done at the employer’s initiative because it no longer requires the job to be done by anyone.

    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.

     

    Lesson for Employers 

    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:

    ☎️ (07) 4646 2425

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  • The Devil Is In The Detail - When Workplace Redundancy Alternatives Just Don't Cut It

    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 [2020] 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.

     

    What the Fair Work Act 2009 (Cth) Says:

    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.

     

    What is ‘Other Acceptable Employment’?

    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.

     

    So What Happened in Lee Crane v Sneek?  

    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:  

    • Lee Crane Hire operates a mobile crane hire business in Gladstone and operates another depot at Biloela (121kms inland from Gladstone). There had been a downturn in business of the Gladstone Depot such that the business could no longer guarantee full time work to the employees based at the Depot. The owner of the business decided to close the Gladstone Depot and operate all his business through the Biloela depot.
    • Employees Sneek, Wiemers and Kennedy worked at the Gladstone depot and were offered two alternatives to a redundancy:
      1. continue in the same role, but be based out of Biloela and Gladstone with the only Depot being in Biloela. This option would include payment for time spent travelling to work and accommodation, the same hours of work, a company vehicle supplied, the same salary and leave entitlements. Additionally, as the role was the same mobile crane operations role, the travel to different sites would be largely unchanged; or
      2. to take on casual employment for Lee Crane Hire in Gladstone, this would involve the employees performing the same work, however there would be no guaranteed hours of work.
    • Sneek, Wiemers and Kennedy declined the above options and were terminated on the 31st of March 2020.
    • Lee Crane Hire filed an application in the Fair Work Commission seeking the redundancy pay of Sneek, Wiemers and Kennedy be reduced on the grounds that it offered them ‘other acceptable employment’.
    • When assessing the alternatives offered to the employees, the Fair Work Commission viewed both alternatives in the negative, and stated: 
      • [29] It is the devil’s alternative: move to a new location some 121kms away and incur a practical detriment on a continuous basis or, keep your job, but as a casual with no assurance of work in an evidently declining market. This should not be classified as acceptable alternative work that would release the employer from their obligation to pay out a redundancy entitlement. In short, the travel to Biloela makes the options, in line with the authority cited, unreasonably distant.
      • [35] My considered view is that the two employment options offered by Lee Crane Pty Ltd are not ‘acceptable other employment’ for the purpose of s.120(1)(b)(i) of the Act.

    Ouch.

    • Lee Crane Hire were ordered to pay Sneek, Wiemers and Kennedy their full redundancy entitlements which equalled 16, 12 and 7 weeks respectively.

    Triple ouch.

    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:

    ☎️ (07) 4646 2425

    ✉️ Submit an Online Request

  • Enterprise Legal - Bonuses are at the Absolute Discretion of the Employer.... Right?!?

    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 [2020] 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.

     

    So What Happened?

    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.

     

    What Did the Court Say?

    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 Lesson for Employers

    The decision in Subasic v Hewlett Packard Australia Pty Ltd [2020] 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:

    ☎️ (07) 4646 2621

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  • 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.  

     

    The Tale of Vai v ALDI

    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:

    • ALDI had taken appropriate steps to control and health and safety of its staff by engaging a private venue with Responsible Service of Alcohol obligations to control and serve alcohol to attendees;
    • It was not a situation in which it was a case of “help yourself” in regard to obtaining drinks – unlike the decision in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 where an employee’s drunken antics were held to not be a valid reason for his dismissal in the circumstances where his employer provided uncontrolled access to alcohol at a work Christmas function;
    • The throwing of a full glass of beer at colleagues was so significant to warrant his dismissal as it could have had significant consequences had they had been hit; and
    • Procedural fairness and natural justice were afforded.

     

    Tips for Having a Safe and Merry Christmas

    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:

    • Refreshing employees' awareness of any applicable workplace policies or codes of conduct;
    • Reminding employees to drink responsibly and to organise appropriate transport to and from the venue if they intend to consume alcohol;
    • Setting clear standards for behaviour and conduct ahead of the event;
    • Monitoring alcohol consumption and ensure supply is not uncontrolled (consider ensuring the service of alcohol is carried out by someone who holds a current Responsible Service of Alcohol certification); and
    • Taking proactive steps to manage poor behaviour and conduct immediately.

     

    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!

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  • 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 [2018] FCAFC 131 and Workpac Pty Ltd v Rossato [2020] 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;

    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:

    ☎️ (07) 4646 2621

    ✉️ Submit an Online Request

  • Enterprise-Legal-Can_An_Employer_Direct_an_Employee_to_get_the_COVID-19_Vaccination

    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.

     

    What Makes a Direction 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):

    • the express and implied terms of the employee’s contract of employment;
    • the nature of the employment;
    • established custom and practice in the workplace, trade or industry; and
    • the employer’s workplace health and safety obligations;
    • the employer’s duty of care;
    • the terms of relevant instruments (eg a modern award and enterprise agreement), and any applicable legislation.

    Some examples of directions that might be given by an employer to an employee include a direction to:

    • participate in a workplace investigation;
    • undertake a medical examination for the purpose of assessing fitness for work;
    • comply with work health and safety laws;
    • stay away from work or work from home to prevent the risk of exposure to, or spread of a contagious illness;
    • report misconduct;
    • prioritise projects in a particular way; and
    • adhere to a dress code.

     

    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:

    • whether the employer’s genuine and reasonable work health and safety obligations dictate a particular response;
    • whether the employee can reasonably perform the inherent requirements of their role without being vaccinated;
    • whether the employer’s common law duties of care owed not only to the employee but their clients dictate a particular response; and
    • whether there are legislated or government-issued directions in place that require compliance.

    Employers also need to be mindful of whether or not the direction constitutes discrimination or an infringement on a protected human right.

     

    What if it is 'Reasonable' and the Employee Disobeys?

    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:

    • declining to take action;
    • disciplining the employee.

    Before taking disciplinary action against an employee for disobeying a direction, employers should always consider:

    • Whether the direction lawful and reasonable;
    • For directions contained in a workplace policy, was the employee required to read and acknowledge the policy? Was the employee trained in the policy and was it consistently enforced?
    • Was the employee made aware of the consequences of failing to comply with the direction?
    • Would the proposed disciplinary action be proportionate in the circumstances?
    • Is the employee of long-standing with a good employment record?
    • Can adjustments be made to the employee’s role or can they be suitably redeployed into a position where the vaccination is not required?

     

    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 [2021] 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:

    ☎️ (07) 4646 2621

    ✉️ Submit an Online Request

  • Big Changes to Casual Employment, Care of the Watered-Down IR Bill

    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.

     

    Finally, a Definition of a Casual Employee

    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:

    • whether the employer can elect to offer work and whether the person can elect to accept or reject the work;
    • whether the person will work only as required according to the needs of the employer;
    • whether the employment is described as casual employment; and
    • whether the person will be entitled to any casual loadings or a specific casual rate of pay under the offer of employment or a Fair Work instrument.

    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.

     

    Casual Conversion

    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:

    • has been employed for at least 12 months; and
    • for at least six of those 12 months, has worked a regular pattern of hours on an ongoing basis that, without significant adjustment, could continue to be worked as a part-time or full-time 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.

     

    New Information Sheet

    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.  

     

    Where to From Here?

    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:

    ☎️ (07) 4646 2621

    ✉️ Submit an Online Request