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.
Employment Contracts Archives - MDC Legal
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.
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.
The New Year presents a great opportunity to critically review your organisation’s workplace relations infrastructure and arrangements, to ensure that these are working to sufficiently protect the organisation’s interests.
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.
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.
How “discretionary” are discretionary bonuses? Recent lessons from Crowe Horwath (Aust) Pty Ltd v Loone  VSC 163
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
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.
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.
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.