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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Articles Archives - 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 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 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 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.
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 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 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 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 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 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 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 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.
By Nikita Barsby, Special Counsel and Madeleine Brown, Associate
As we whiz through the festive season towards Christmas, employers should be mindful of any workplace conduct that may constitute direct or indirect discrimination on the basis of an employee’s religion.
By Mark Cox, Director and Renae Harg, Senior Associate
The work Christmas party provides employers with the opportunity to thank employees for their efforts and celebrate the achievements of the year, and for employees to unwind, socialise and enjoy themselves.
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.
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.
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.
By Gemma Little, Associate
What can an employer do if an employee makes vexatious or baseless complaints in the pursuit of some ulterior purpose? These complaints might be made within the business, for example to a supervisor, HR or the Board, or externally, for example by way of a bullying application to the Fair Work Commission.
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.
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.
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.
By Lauren Hodson, Law Clerk
The gender pay gap in Australia currently sits at a staggering 17.3% in base remuneration (in favour of men), which increases to 22.4% when looking at total remuneration.[1] This equates to approximately $16,183 p/a and $26,527 p/a respectively.
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.
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.
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.
By Nicholas Parkinson, Lawyer
Under the Fair Work Act 2009 and the Fair Work Regulations 2009, Australian employers are required to keep records in relation to each of their employees.
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.
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.
By MDC Legal
A well drafted employment contract, complemented by a professionally prepared Employee Handbook and Management Guide, provides a solid foundation for a positive employment relationship, and minimises the risk of legal claims.
