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.
contracts Archives - MDC Legal
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.
In the recent decision of Joshua Klooger v Foodora Australia Pty Ltd  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.
WorkPac Pty Ltd v Skene  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.
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”
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.
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.
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.
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.