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 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, 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.
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).
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 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 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 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.
By Nicholas Parkinson, Lawyer
How “discretionary” are discretionary bonuses? Recent lessons from Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSC 163
By Ruth Collins, Lawyer
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.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Restraints of trade generally involve preventing employees and contractors from competing with a business during and after their employment.
By Conor Fahey, Lawyer
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.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Sometimes employers want to hire an employee for a short or specific amount of time. This could be for a short-term project or for work that is seasonal in nature. In these cases, it is important to know what kind of employment contract is best for the situation.
By MDC Legal
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.
By Mark Cox, Director and Joanna Knoth, Senior Associate
Good employment contracts are essential to the success of any business and care is needed to ensure they comply with various applicable industrial laws. The employment contract is an agreement between an employer and an employee that sets out the obligations and rights of each party.
By MDC Legal
The relationship between employer and employee is subject to a multitude of Australian state and federal laws and is key to the success of any business. Small and medium enterprises (SMEs) face a number of challenges when managing their employees. Many businesses lack a dedicated human resources department, leaving HR responsibilities to busy owners or senior managers.
By Nicholas Parkinson, Lawyer
If employees are inappropriately classified as casuals, they may be able to bring claims against their employer for breaches of Modern Awards or the Fair Work Act 2009. They may also be able to claim that their employer has misrepresented their workplace rights. In these circumstances, employees will be entitled to seek compensation as well as penalties of up to $54,000 against the employer for each breach or misrepresentation.
By Ruth Collins, Lawyer
MDC Legal has successfully defended an employer against an employee’s claims for unpaid visa expenses and bonuses exceeding $200,000. The applicant, Mr Bradley, was employed by the respondent, Binder Group Pty Ltd, as their WA Industrial Sales Manager and later as its National Sales Manager from July 2011 to April 2015. After resigning from his employment, Mr Bradley brought proceedings in the Western Australian Industrial Relations Commission (Commission) against Binder Group alleging that he was owed contractual benefits. All of Mr Bradley’s claims were rejected by the Commission.
By MDC Legal
Ms Heraud went on maternity leave in September 2013. She was due to return to her role in a senior position in July 2014. Meanwhile, Roy Morgan had a revenue downturn leading to a restructure of its operations, causing Ms Heraud’s role to be made redundant.
By Nikita Barsby, Special Counsel
In the recent case of Heraud v Roy Morgan Research Ltd [2016] FCCA 185, the Federal Circuit Court of Australia (FCCA) found that Roy Morgan Research Ltd (RMR) contravened provisions of the Fair Work Act (FW Act) by refusing an employee’s request for flexible working hours and making her redundant while she was on maternity leave.
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