Stephanie, Author at MDC Legal

Fair Work Commission rejects argument that an unwritten employment agreement existed concurrently with a written director agreement

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by Lucy Wardle, Lawyer

The Fair Work Commission has dismissed a general protections application on the basis the applicant was solely a director – and not an employee. Consequently, the applicant could not have been “dismissed” as that term is defined within the Fair Work Act 2009 (Cth) and his general protections claim failed.

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Australian Human Rights Commission New Powers

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By Andrea McNamara, Senior Associate

As of December 2023 the Australian Human Rights Commission (AHRC) has new powers to enforce compliance with the positive duty of employers to prevent sex discrimination and harassment. The AHRC has new enforcement powers to initiate inquiries, make recommendations, issue compliance notices, refer matters to the federal court and enter into legally binding agreements with employers regarding required action.

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Sick & carer's leave

Pretty Please – Employers must request employees to work on public holidays

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On 28 March 2023 the Full Federal Court handed down a decision with major effects across various industries, regarding rostering employees on public holidays. The Court found that the employer Respondent, OS MCAP Pty Ltd, had contravened the Fair Work Act in rostering its employees to work on two public holidays, without providing reasonable requests beforehand.

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Restraint of Trade and Non-Compete Restraint Clauses

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Employment contracts, like terms and conditions, are often unread and can contain unexpected surprises if not reviewed carefully before signing. Employment contracts for senior employees or those with a position of influence over clients or client information usually contain ‘restraint of trade’ or ‘non-compete restraint’ clauses which can catch employees off guard when they leave their employment.

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An audit today keeps the Fair Work Ombudsman away: a practical guide for how businesses can avoid being caught out for underpayment

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By Nicholas Morrison, Law Clerk.

What do you need to be aware of?

An all-too-common pitfall for Australian employers is the risk associated with underpayment or falling behind on employee entitlements. In Australia, the pay and work entitlements of employees are primarily governed by the National Employment Standards and any applicable Modern Award; however, employers should also be aware of other entitlements that may arise from Enterprise Agreements, legislation, or employee contracts.

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The Importance Of Understanding Award Coverage and Application

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By Clare Tunney, Associate.

Whether you’re an employee or an employer, it’s important to know whether you/your employee’s position is award covered and, if so, by which award.
Award coverage is relevant to determining monetary and non-monetary entitlements, as well as availability of/exposure to unfair dismissal claims on termination of employment and breach of award claims.

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COVID-19 Changes to Modern Awards and strategies to manage workforce terms and conditions

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By Samantha Lyon, Senior Associate 

COVID-19 has dramatically impacted the way we live and work. Businesses all around Australia and the world are having to adapt quickly to remote and flexible working arrangements. In addition to managing the complexities that come with these matters, employers will need to keep abreast of and comply with statutory obligations that are being introduced by authorities and are changing daily.

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Overtime and Reasonable Additional Hours

Changes to modern award annualised salary clauses

Posted by | Articles, employment contracts, modern award, modern awards, polices and procedures | No Comments

By Mark Cox, Director and Renae Harg, Senior Associate 

New annualised salary clauses for a number of modern awards come into effect as of 1 March 2020. The annualised salary clauses increase the obligations on employers in relation to modern award annualised salaries, including notifications to employees, increased record keeping obligations and reconciliation of the amounts paid.

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Apprentice unfairly dismissed for refusing to work overtime

Posted by | additional hours, Articles, HR Advice & Support, Terminations, Unfair Dismissals & Adverse Action, unfair dismissal | No Comments

By Renae Harg, Senior Associate and Madeleine Brown, Associate

The Fair Work Commission has ordered an employer to pay eight weeks’ wages to an apprentice after it found that an employee was unfairly dismissed for refusing to work additional hours on a Sunday. This decision is a reminder for employers to carefully consider whether requests to work additional hours are reasonable.

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employee with disability

General Protections: Dismissing an Employee With a Disability

Posted by | HR Advice & Support, unfair dismissal | No Comments

By Renae Harg, Senior Associate and Miette Xamon, Law Clerk

Employer Found to Dismiss Employee Due to Disability

In April 2019, we published an article on the Federal Court decision of Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913. The Federal Court found the employee was dismissed due to his disability.

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Dismissing an Employee

Probationary Problems: Dismissing an Employee on Their Probation Period

Posted by | Performance Management & Misconduct Investigations, Terminations, Unfair Dismissals & Adverse Action | No Comments

By Renae Harg, Senior Associate and Lauren Wright, Lawyer

Can you terminate an employee during their probation period?

Some employers proceed under the misapprehension that they can terminate an employee on probation without providing any reason for the dismissal, with the employee unable to pursue any legal claim against them. The recent decision of Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd (No. 2) [2019] FCCA 1295 has shown this is incorrect. Read More

Single touch payroll

Single Touch Payroll: Implementation Deadline Passed

Posted by | complaince, pay rates, polices and procedures | No Comments

By Nikita Barsby, Special Counsel and Miette Xamon, Law Clerk

Single Touch Payroll is a change to the way employer’s report employee tax and superannuation information to the ATO

The deadline for small businesses to start using the ATO’s Single Touch Payroll (STP) was 30 September 2019. The new system eases reporting requirements for employers to help ensure compliance with wage and superannuation payments.

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Sick & carer's leave

Federal Court Rules In Major Personal/Carer’s Leave Dispute

Posted by | contractual entitlements, leave entitlements | No Comments

By Renae Harg, Senior Associate and Madeleine Brown, Associate

Federal Court Rules in Major Personal/Carer’s Leave Dispute

In Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138 the Full Court of the Federal Court clarified how paid personal/carer’s leave (also commonly known as sick leave and carer’s leave) entitlements should be paid and accrued.

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MDC Legal Workplace Update – Spring 2019

Posted by | Articles, complaince, confidentiality, Contracts, disciplinary action, HR Advice & Support, polices and procedures, Policies and Procedures, sexual harassment | No Comments

Its Spring! Although it’s still brisk and blustery out there – in the weather and many of our clients’ businesses – with some ongoing workplace issues this year being ensuring the correct classification of workers as either employees or independent contractors, permanent or casual engagement, and new developments in domestic violence leave entitlements and casual conversion rights.

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social media for employees

High Court Rules on Social Media and Free Speach

Posted by | misconduct, Performance Management & Misconduct Investigations, polices and procedures | No Comments

By Mark Cox, Director and Madeleine Brown, Associate

High Court rules in favour of employer in social media freedom of political communication case

Comcare v Banerji [2019] HCA 23

A public servant sacked for publishing 1000’s of anonymous tweets criticising her employer has failed in her bid to challenge her dismissal as a breach of the implied freedom of political communication. Read More

Parental Leave

Parental Leave — Important Responsibilities As An Employer

Posted by | complaince, Doing Business in Australia, HR Advice & Support, leave entitlements, redundancy | No Comments

By Mark Cox, Director and Gemma Little, Associate

Key parental leave employer obligations explained

An employee has requested to work on a part-time basis on return from parental leave. Or a workplace change has resulted in an employee’s position being removed while they are on parental leave. As an employer, what are your obligations? This article outlines the key obligations an employer has while an employee is on, and when they return from, parental leave. Read More

filing a cross claim

Employee claimants can face cross claims

Posted by | Articles, Contracts, misconduct, Performance Management & Misconduct Investigations | No Comments

By Mark Cox, Director and Lauren Wright, Lawyer

Employers successfully making cross claims against former employees

In a recent trend, employers are successfully filing cross claims against employees after the employee has commenced claims against the employer. Two recent Federal cases highlight that employers need to issue cross claims in a timely manner, and that employees need to be aware of the significant financial risks that they could be exposed to if their employer pursues a cross claim against them. Read More

dismissing an employee

Dismissal By Text is Out. Common Courtesy Prevails.

Posted by | Terminations, Unfair Dismissals & Adverse Action | No Comments

By Renae Harg, Senior Associate

Communication made easier by text message but not made right

Although modern businesses use many communication methods to interact with employees and clients, consideration needs to be given to the communication methods used when dealing with employment and industrial relations issues. This is particularly relevant when dismissing an employee. Read More

whistleblower protection

Whistleblower Protection Changes – Update Your Policy Now

Posted by | Articles, Performance Management & Misconduct Investigations | No Comments

By Renae Harg, Senior Associate

Australia amends whistleblower protection laws

New laws providing greater protection for whistleblowers were passed through federal parliament and take effect on 1 July 2019. The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) (Whistleblower Act) was introduced to provide for a single, strengthened whistleblower regime to cover the corporate, financial and credit sectors. Read More

employee confidentiality agreement

Breach of Confidentiality: What You Need to Know

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By Renae Harg, Senior Associate and Lauren Wright, Lawyer

Employment Law: Breach of Confidentiality – what you need to know ­

Increases in technology have made it easier for employees to transmit their employer’s confidential information. Confidential information such as client lists, supplier information, pricing and financial arrangements, employee arrangements and business strategies can be invaluable to a business. Read More

Overtime and Reasonable Additional Hours

Overtime and Reasonable Additional Hours in Australia

Posted by | additional hours, HR Advice & Support, modern award | No Comments

By Joanna Knoth, Senior Associate and Gemma Little, Associate

An employee is not be entitled to be paid for any “reasonable additional hours” they work. However, an employee may be entitled to be paid overtime, penalty rates or other allowances for time worked outside of or in addition to their ordinary hours of work if they are covered by an award or enterprise agreement.

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Indemnity clause

Careful Case Preparation May Help Avoid Indemnity Costs

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By Renae Harg, Senior Associate and Madeleine Brown, Associate

Indemnity costs awarded for rejection of offer

Two teachers have been ordered to pay their former employer’s costs on an indemnity basis after they unreasonably refused a $10,000 settlement offer. Mr Carr and Mr Pathik commenced proceedings in the Federal Circuit Court alleging that their former employer, ILSC (Brisbane) Pty Ltd, had underpaid them, breached the modern award that covered their employment and breached their general protections by reducing their weekly hours after they made a complaint in relation to their employment.

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Vulnerable Workers Act

Fair Work Breaches Prompt Changes for Holding Companies

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By Renae Harg, Senior Associate and Gemma Little, Associate

Exploitation of vulnerable workers by your franchisee or subsidiary could see you liable

As any entrepreneur knows, there are legal requirements and responsibilities that are part of running your own business. But did you know that as a franchisor or holding company you have additional responsibilities for ensuring compliance with the Fair Work Act 2009 (Cth) (FW Act), and that you could be liable for your subsidiaries’ or franchisees’ breaches of the FW Act? Read More

Smoking in the workplace

Save Your Health and Your Business With a Smoking in the Workplace Policy

Posted by | Occupational Safety and Health, polices and procedures | No Comments

By Renae Harg, Senior Associate and Miette Xamon, Law Clerk

Smoking in the workplace can damage more than your health

Smoking is becoming progressively less common in Australia and has decreased by 36% since 2001. However, 2.5 million Australians (or 1 in 7 aged 15 and over) still smoke daily. While smoking is slowly being suppressed, it is still a significant occurrence in many workplaces and can raise certain challenges for employers. Do employers have to accommodate smokers? Or are employers allowed to implement strict no-smoking policies? Read More

Class action settlements 101 for employers

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By Mark Cox, Director and Miette Xamon, Law Clerk

Class action lawsuit. It’s a term you’ve heard enough on the news and one that you never want to be at the receiving end of as an employer. An employee class action lawsuit, sometimes called a class action settlement, is a legal proceeding allowing the claims of many individuals against the same defendant or defendants (generally an employer), arising out of the same, similar or related circumstances, to be conducted by a single representative or representatives.

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how long do employers need to keep employee records

Record Keeping Requirements for Employers: What You Need to Know

Posted by | complaince, HR Advice & Support, Terminations, Unfair Dismissals & Adverse Action | No Comments

By Gemma Little, Associate

Keeping employment records is your responsibility as an employer

Everyone knows that employers must keep employee records, right? Apparently not. Some employers have been caught out because they have either not kept adequate employee records, or not kept employee records at all. Read More

accessorial liability

Accessorial Liability – Your Responsibilities Under Fair Work Act

Posted by | Articles, complaince, Doing Business in Australia | No Comments

By Mark Cox, Director and Renae Harg, Senior Associate 

Accessorial liability: if you are aware, you can be held liable

Company directors, human resource managers or other managers and accountants can be held accountable for contraventions of the Fair Work Act 2009 (FW Act). You need to be aware of the requirements under the Act and not turn a blind eye to breaches of the Act. According to the Fair Work Ombudsman, ‘Accessorial liability provisions allow us to hold anyone involved in a contravention accountable, even if the business has gone into liquidation.’ Read More

long term casual employee rights

Casual employment rights – what you need to know to avoid costly dilemmas

Posted by | casual staff, complaince, contractual entitlements, Doing Business in Australia | No Comments

By Mark Cox, Director and Lauren Wright, Lawyer

Employer required to pay thousands in compensation to casual employee

A recent decision handed down by the Full Court of the Federal Court of Australia has resulted in heated discussion regarding long term casual employee rights. In WorkPac v Skene, despite being termed a ‘casual employee’ by his employer WorkPac,  Mr Skene was found to be a permanent employee and awarded compensation (including interest) in lieu of annual leave entitlements. Read More

Terminating an Employee with Mental Health Issues

Terminating an Employee with Mental Health Issues – Federal Court Ruling

Posted by | disciplinary action, HR Advice & Support, redundancy, Terminations, Unfair Dismissals & Adverse Action | No Comments

By Mark Cox, Director and Renae Harg, Senior Associate 

Federal Court Ruling Highlights the Complexity of Terminating the Employment of an Employee with Mental Health Issues

The Federal Court ruling in Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913 highlights the complexities in terminating the employment of unwell employees, including employees with mental health issues. Read More