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.
Articles Archives - MDC Legal
By Mark Cox, Director and Lauren Wright, Law Graduate
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, Law Graduate
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
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. The benefits may be better work-life balance, more time spent with family and friends, and better management of parental and carer responsibilities. 16.4% of Australians now work some of their usual work hours from home, with the highest percentage being women aged 35-44, particularly in professional or management roles.
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.
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.
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 their staff Christmas party.
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  FWC 4142.
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.
What can an employer do if an employee makes vexatious or baseless complaints in the pursuit of some ulterior purpose?
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.
Fair Work Ombudsman audit
The Fair Work Ombudsman (FWO) recently conducted an audit of businesses throughout the eastern states of Australia which found that found that 72% of the businesses had breached workplace laws. 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.
“72% of businesses had breached workplace laws”
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.
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.
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.
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
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.
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.
Ensuring a safe, fun and professional event requires ensuring responsible behaviour compliant with occupational health and safety standards and avoiding employees experiencing sexual harassment, discrimination, bullying or other inappropriate treatment.
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. 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.
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.
On 23 February 2017 the Full Bench of the Fair Work Commission (FWC) handed down a significant decision following a review of weekend and public holiday penalty rates across the following six modern awards
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.
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  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.
Formal written warnings and structured performance improvement plans are not an essential requirement to prove that a dismissal, based on poor performance, is fair.
Sticking to what you know when obtaining new employment may backfire when a client-specific restraint that protects an employer’s legitimate interest is likely to be enforceable and valid. It may be appropriate to widen the job search, and seek legal advice on your options.
In the recent decision of Devil Dog Pty Ltd v Cook  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.
In order to survive, many businesses have to restructure their workplace. This often results in reducing surplus assets, addressing inefficiencies, and cutting or removing shifts. The redundancies that result from this process present a significant legal risk to employers.
Employment law covers a broad range of complex legal issues affected by layers of common law and statute across state and federal jurisdictions. These legal issues begin in business set up or acquisition stage, with transmission of business, recruitment of new employees, establishing suitable contracts, and complying with awards and National Employment Standards – establishing the employment relationship.
A female hotel employee in Queensland has been awarded $313,000 in damages for sexual harassment and assault she was subjected to in her bed by the hotel caretaker. The case rings a warning to employers that they need to take reasonable steps to prevent employees engaging in or being exposed to such conduct.
Doing business in another country or jurisdiction can present unexpected difficulties and challenges. For foreign businesses looking to expand into Australia, complying with Australia’s industrial relations system can be particularly difficult.
However, ensuring that you meet your employment obligations and that you have sound employment practices in place is essential to the success of your Australian operations.
When does the Fair Work Act 2009 apply to your business or employees?
In some cases, it can be difficult to determine if a worker is an employee or an independent contractor, because it is often the case that some of the relevant indicia may point towards an employment relationship, while other indicia may point to an independent contractor relationship.
Find out which employment contracts are right for your business. Read about maximum or fixed compared with extended or open contracts.
This decision highlights the dangers for companies and their owners or directors misrepresenting to individuals that they will be engaged as contractors when they in fact are employees.