HR Advice & Support Archives - MDC Legal

Say what? Navigating Unlawful Interview Questions

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

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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Keeping it casual: Casual employee entitled to annual leave

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

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).

Instead, the Court held the essence of the casual employment relationship is the “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”.

Whether an employee is a “casual employee” should be determined by looking at indicia of casual employment, the conduct of the parties and the real substance, practical reality and true nature of the relationship.

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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

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.[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.

“72% of businesses had breached workplace laws”

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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

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

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

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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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

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

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

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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Employment lawyer with a briefcase

Choosing the Right Workplace Lawyer in WA

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

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.

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Employing “permanent” casuals: what are the benefits and risks for your business?

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

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.

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Cutting Costs Can Cost You More: The Cautionary Tale of Roussety v Castricum Brothers

Posted by | Articles, HR Advice & Support, Training & Compliance | No Comments

In the recent case of Joseph Roussety v Castricum Brothers Pty Ltd the Supreme Court of Victoria was called upon to consider an employee’s negligence claim for overwork causing psychiatric injury. This case serves as a salient reminder that an employer owes a duty to take reasonable care to avoid any foreseeable risk of injury arising from an employee’s circumstances of employment. In particular, it warns of the dangers of cost cutting without having regard to the effect on existing employees.

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