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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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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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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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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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What are your New Year’s Resolutions? New Year resolutions for employers in 2019

Posted by | casual staff, Contracts, HR Advice & Support, modern award, pay rates, polices and procedures, Policies and Procedures, training | No Comments

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.

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What are your organisation’s New Year’s workplace relations resolutions?

Posted by | Policies and Procedures, workplace relations infrastructure | No Comments

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.

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When to Deal with Misconduct During the Festive Season

Posted by | Articles, HR Advice & Support, misconduct | No Comments

By Mark Cox, Director & Miette Xamon, Law Clerk 

Misconduct in the workplace can be a tricky matter for employers to deal with, which is often made more difficult due to Christmas shut downs and staff annual leave. There are 5 steps that an employer should consider when investigating misconduct and deciding to take disciplinary action to mitigate the risk that an employee (either the person alleged to have engaged in misconduct, or the person on the receiving end of that conduct) will mount legal claims.

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Santa or Scrooge: Employee Bonuses and Gifts

Posted by | Christmas Bonus, contractual entitlements, Policies and Procedures | No Comments

By Nikita Barsby, Special Counsel and Gemma Little, Associate 

As the year draws to a close, employers may choose to give employees bonuses, gift cards or something similar, usually as a way of recognising the past year’s work and achievements.  While this practice is often positive in that it can increase morale and motivation, employers should ensure appropriate policies and procedures are in place to prevent well-meaning gifts from becoming gremlins.

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Long Christmas lunches and excessive online shopping: Tips for employers

Posted by | disciplinary action, disciplinary policies, HR Advice & Support, Performance Management & Misconduct Investigations | No Comments

By Nikita Barsby, Special Counsel and Renae Harg, Senior Associate

Some employees may see the Christmas period as an opportunity to focus more on festive season activities and less on work. Employees may spend excessive time away from the office, having lunch or Christmas shopping. Other employees may spend excessive time online, shopping for Christmas presents or planning Christmas activities, or excessive time decorating the office. These types of behaviours can be difficult for employers to manage, without appearing Grinch-like and while still ensuring staff morale remains positive over the busy Christmas period.

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Managing the workplace Christmas party aftermath

Posted by | Christmas party, complaince, disciplinary action, HR Advice & Support, leave entitlements, out of hours behaviour, Performance Management & Misconduct Investigations, workplace investigations | No Comments

By Nikita Barsby, Special Counsel and Madeleine Brown, Associate 

Even the most well managed work Christmas parties sometimes don’t go to plan. We highlight below how to deal with the aftermath if things go wrong.

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Party Planning What to do before the Christmas Party

Posted by | Articles, HR Advice & Support, Performance Management & Misconduct Investigations, sexual harassment, Terminations, Unfair Dismissals & Adverse Action, Work Christmas party | No Comments

By Joanna Knoth, Senior Associate and Lauren Wright, Lawyer

As we rapidly approach the end of the year, the office Christmas party can be cause for concern for many employers. There are two key issues that employers should turn their mind to when planning the party.

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Contractor arrangements subject to continued scrutiny as Foodora rider found to be an employee

Posted by | Contracts, contractual entitlements, Doing Business in Australia, independent contractor, sub contractor, unfair dismissal | No Comments

By Nikita Barsby, Special Counsel and Gemma Little, Lawyer 

In the recent decision of Joshua Klooger v Foodora Australia Pty Ltd [2018] FWC 6836, the Fair Work Commission held that a Foodora rider who was engaged as an independent contractor was in fact an employee and, therefore, eligible to bring an unfair dismissal claim.

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Employer unfairly dismissed employee due to wrong view on student visa

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

By Mark Cox, Director and Madeleine Brown, Associate 

An employee who was suspended indefinitely without pay after her employer decided that she had breached the conditions of her visa was unfairly dismissed, according to the Fair Work Commission in Devi v Doutta Galla Aged Services Limited [2018] FWC 4142.

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Say what? Navigating Unlawful Interview Questions

Posted by | Articles, Discrimination & Bullying, HR Advice & Support | No Comments

By Nikita Barsby, Special Counsel and Lauren Wright, Lawyer

An interview provides an employer with an opportunity to get to know prospective employees and assess their suitability for employment. Often, there are many questions an employer wants to ask a prospective employee – however care should be taken to avoid questions which can later be relied on by the interviewee to mount legal claims.

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Smoking at work FAQs

Posted by | Articles | No Comments

By Madeleine Brown, Associate 

With the sharp increase in restrictions around the sale, promotion and public consumption of cigarettes over the last 15 years, it’s no wonder there’s confusion around smoking in the workplace.

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Travel extends the mind but not limitation periods: Wragg v Queensland Scaffolding Pty Ltd [2018] FWC 4986

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

By Nikita Barsby, Special Counsel and Madeleine Brown, Associate

The Fair Work Commission has refused an application for an extension of time to file an unfair dismissal application, following a detailed examination of a travelling employee’s social media activities and text messages which demonstrated that he was not incapacitated by depression and grief following his dismissal.

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Keeping it casual: Casual employee entitled to annual leave

Posted by | complaince, Contracts, contractual entitlements, HR Advice & Support, leave entitlements, modern award | No Comments

By Renae Harg, Senior Associate and Lauren Wright, Lawyer 

WorkPac Pty Ltd v Skene [2018] FCAFC 131

The Full Court of the Federal Court of Australia has rejected WorkPac’s argument that the “industrial meaning” of the term “casual employee” has been incorporated into the Fair Work Act 2009 (Cth) (the Act) for the purpose of the National Employment Standards (NES).

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Are you being underpaid? Are you underpaying your staff?

Posted by | Articles, complaince, Contracts, contractual entitlements, HR Advice & Support, modern award | No Comments

By Nikita Barsby, Special Counsel and Lauren Wright, Lawyer

The Fair Work Ombudsman (FWO) recently conducted an audit of businesses throughout the eastern states of Australia which found that 72% of the businesses had breached workplace laws.[1] The audit resulted in the recovery of $471,904 for 616 workers across the 234 businesses audited. The most common breach was an underpayment of hourly rates, followed by non-existent or inadequate employment records.

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Directing an employee to attend an independent medical assessment

Posted by | contractual entitlements, Dispute Resolution & Advocacy, HR Advice & Support, leave entitlements | No Comments

By Mark Cox, Director, Gemma Little, Associate and Lauren Wright, Lawyer

The winter months often bring an increase in employees’ use of personal leave, primarily due to illness. An employee’s brief and temporary absence, whether due to illness or even injury, supported by adequate medical evidence, can usually be managed by the employer without issue.

However, difficulty and uncertainty arise where an employee takes extended personal leave with medical evidence that has little or no detail on the illness or injury suffered, or which offers no foreseeable return to work date. An employee’s extended absence can pose significant issues for the management and operation of a business. Navigating this situation can become increasingly complex if an employee has taken personal leave in response to a disciplinary or performance management process.

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Domestic violence leave in Australia

Posted by | Articles, Dispute Resolution & Advocacy, HR Advice & Support | No Comments

By Lauren Wright, Lawyer 

In the employment law space, there has been growing debate on whether all Australian employees should have a minimum entitlement to take either paid or unpaid domestic violence leave. The debate was reinvigorated in March, when, as part of the four-yearly review of modern awards, the Fair Work Commission introduced 5 days’ unpaid domestic violence leave for all award-covered employees.

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What’s in a name: The effect of a position title on Modern Award coverage

Posted by | Articles, complaince, Contracts, HR Advice & Support, modern award, Terminations, Unfair Dismissals & Adverse Action, Training & Compliance | No Comments

By Mark Cox, Director and Ruth Collins, Lawyer 

It is a common misconception amongst employers that a senior position title and high income can exclude an employee from being covered by a modern award. Not so. Instead, employers must look to the principle purpose of the position the employee was performing to assess whether it is covered by the classifications of roles covered by the award.

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LinkedIn or “LockedOut”? Policies and restraints on employee use of Social Media

Posted by | Articles, Dispute Resolution & Advocacy, HR Advice & Support, Industrial Relations, Restraints of Trade, Training & Compliance | No Comments

By Mark Cox, Director and Lauren Wright, Lawyer 

LinkedIn is one example of how new technologies and social media “disruptors” are intercepting with the workplace in ways that challenge our traditional notions of employment rights and obligations.

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Maximum term employees may be entitled to make unfair dismissal claims and be paid redundancy

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

By Mark Cox, Director and Lauren Wright, Lawyer

A maximum term contract is a contract which automatically ends at the expiry of a specified period while giving either party the right to terminate prior to the specified expiry by giving notice. This can be contrasted with a fixed term contract, which is also for a specified period but which does not make provision for early termination.

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What are your business’ New Year’s workplace relations resolutions?

Posted by | Articles, Contracts, Discrimination & Bullying, Dispute Resolution & Advocacy, HR Advice & Support, Industrial Relations, Terminations, Unfair Dismissals & Adverse Action | No Comments

By Nikita Barsby, Special Counsel 

HRD Australia recently reported that the success rate of Australian employers in unfair dismissal cases has dropped below 40% for the first time – while these remain the claim of choice for employees, with an unfair dismissal claim lodged every three and a half minutes in Australia.1

We expect hot topics for workplaces will include managing poor performance and bullying and stress claims, avoiding award or NES breach claims (and the risk of huge new penalties) or discrimination claims.

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External advisers and HR managers accessorily liable for breaches of the Fair Work Act as penalties for breaches intensify on small businesses

Posted by | HR Advice & Support, Industrial Relations, Performance Management & Misconduct Investigations | No Comments

By MDC Legal

In a recent decision of the Federal Circuit Court an external accountant who advised a business on its employee arrangements was held liable under the accessorial provisions of the Fair Work Act. This decision is a red flag to external advisors who are closely involved with HR, payroll and employee entitlements of employer businesses.

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Performance and Conduct Issues for Employees Raising Mental Illness

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

By Nikita Barsby, Special Counsel 

Around 45% of Australians aged between 16 and 85 will experience a mental illness in their lifetime, and 1 in 5 Australian adults will experience a mental illness in any given year.[1]  Therefore, it is very likely that from time to time an employer will need to performance manage an employee who is experiencing a mental illness.

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An interesting development in the Fair Work Commission’s Stop Bullying Jurisdiction

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

By Conor Fahey, Lawyer

In perhaps the most interesting development to date since the commencement of the Fair Work Commission’s (FWC) anti-bullying powers, Commissioner Hampton, the Panel Head of the FWC’s anti-bullying jurisdiction, has issued an interim order to restrain an employer from dismissing an employee for alleged misconduct until the tribunal determines the employee’s anti-bullying application.

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Lying and theft justifies termination of flight attendant

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

By MDC Legal

Qantas has succeeded in its appeal to undo the unfair dismissal finding for a flight attendant who stole alcohol and lied during the investigation. The FWC Full bench overturned the ruling of unfair dismissal in Qantas Airways Limited v David Dawson [2017] FWCFB 41, finding that Deputy President Lawrence had failed to take into account the Qantas employee’s dishonesty during the investigation into allegations of theft.

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The devil is in the detail: Devil Dog Pty Ltd v Cook [2017] WASC 27

Posted by | Articles, Restraints of Trade | No Comments

By Ruth Collins, Lawyer 

In the recent decision of Devil Dog Pty Ltd v Cook [2017] WASC 27, the Supreme Court of Western Australia granted an interim injunction to prevent a former employee from competing with his former employer’s business. The decision is a timely reminder on the importance of carefully drafting and considering restraint of trade clauses in commercial agreements.

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