This blog highlights recent and upcoming changes to the Fair Work Act 2009 (Cth) (FW Act) that are likely to affect your employee relations.
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Stephanie, Author at MDC Legal
The recent Secure Jobs, Better Pay Amendment Act 2022 (Cth), has introduced changes to employee and employer obligations staggered to commence throughout the year. One area of significant change is dealing with an employee’s request for flexible working arrangements. These changes came into effect on 6 June 2023.
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.
At MDC Legal we are proud, as a firm with a strong majority of female employees, to celebrate International Women’s Day!
Today is not only a day to celebrate progress towards gender equality but also an opportunity to bring awareness to areas for improvement.
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.
This year, changes to the Work Health Safety Act 2020 (WA) (the Act) commenced, providing for new and refined obligations for employers and workers.
In this article, we provide a concise breakdown of the requirements for reporting a notifiable incident under the Act.
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.
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.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (‘Respect at Work Act’) commenced on 11 September 2021.
The Act amends the following legislation:
• Fair Work Act 2009 (Cth) (FW Act)
• Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)
• Sex Discrimination Act 1984 (Cth) (SD Act).
The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Act) commenced operation on 27 March 2021. The Act introduces significant amendments regarding casual employment and the obligations on employers of casual employees.
With the recent lock down in Western Australia and Premier Mark McGowan’s recommendation that those who can should work remotely, working from home has re-emerged as a forefront issue.
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.
By Mark Cox, Director & Nikita Barsby, Special Counsel
As Coronavirus (COVID-19) continues to affect and even shut down workplaces across Australia, and amid warnings the situation will worsen in coming weeks and months, perhaps even to a widespread lock down, businesses around the country are developing contingency plans.
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.
By Renae Harg, Senior Associate and Miette Xamon, Law Clerk
Wage theft has been a hot topic over the past 12 months due to a number of high-profile ‘underpayment scandals’ reported in the media
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.
By Madeleine Brown, Associate
The new year is the perfect time to set out your business priorities. By setting priorities early in the year, employers can avoid cost, time and stress managing common issues down the track.
By Nikita Barsby, Special Counsel, Lauren Wright, Lawyer and Miette Xamon, Law Clerk
Business codes of conduct apply equally during work Christmas parties and social occasions
By Mark Cox, Director, Lauren Wright, Lawyer and Miette Xamon, Law Clerk
Christmas casuals: a guide for employers
During the festive season, many businesses employ additional casual staff to help manage the increase in customers, sales and the extended retail trading hours.
By Nikita Barsby, Special Counsel and Miette Xamon, Law Clerk
Effectively managing annual leave and other entitlements over the festive season.
By Madeleine Brown, Associate and Miette Xamon, Law Clerk
As we approach Christmas, end of year gifts and bonuses in the workplace become a common occurrence.
By Renae Harg, Senior Associate, Lauren Wright, Lawyer and Miette Xamon, Law Clerk
When organising your office party this year, there are a few things to be mindful of. Your duty of care as an employer extends to the actions of your employees at a work-sponsored event, even if it held off-site or outside of office hours.
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.
By Nikita Barsby, Special Counsel and Miette Xamon, Law Clerk
Commission Satisfied Employer Acted In Good Faith
The unfair dismissal application of a pharmaceutical store-person who suffered from debilitating depression and PTSD has been dismissed after the Fair Work Commission found that she was unable to perform the inherent duties of her role.
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
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.
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.
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.
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
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
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
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
By Madeleine Brown, Associate
Employer to Pay $170,000 in Grave Case of Sexual Harassment
In a recent decision of the Federal Circuit Court, Hill v Hughes t/a Beesley and Hughes Lawyers, the Court awarded $170,000 in damages to Ms Hill, a paralegal, who suffered a relentless barrage of sexual harassment by her employer. Read More
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
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
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.
By Conor Fahey, Lawyer
Can a refusal to accept a pay cut result in a genuine redundancy? employers will need to ensure that before enacting any redundancy, there are genuine operational reasons underpinning the decision beyond mere reduction in salaries.
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.
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
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
By Jessie Poon, Lawyer
The Fair Work Commission has for the first time published data on the outcomes of general protection applications involving dismissal.
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.
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
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
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
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
By Mark Cox, Director and Lauren Wright, Lawyer
UPDATED – 19 February 2019
In the employment law space, there have been growing calls for all Australian employees to have a minimum entitlement to take either paid or unpaid domestic violence leave. Read More
By Mark Cox, Director and Miette Xamon, Law Clerk
With the flexibility of information technology, working from home is easier than ever, and more popular for many, being associated with greater overall job satisfaction.
By Joanna Knoth, Senior Associate and Renae Harg, Senior Associate
Now that the festive season is over, employers can focus on the year ahead. What New Year’s resolutions are you making for your business?
Below are some practical New Year’s resolutions that may minimise your employment law risks.
By Nikita Barsby, Special Counsel and Gemma Little, Associate
What are your organisation’s New Year’s workplace relations resolutions?
The New Year presents a great opportunity to critically review your organisation’s workplace relations infrastructure and arrangements, to ensure that these are working to sufficiently protect the organisation’s interests.
