Topic: Australia

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Genuine Redundancy and Redeployment – Job Swapping Reasonable in All the Circumstances?

In the recent case of Skinner et al v Asciano Services Pty Ltd T/A Pacific National Bulk [2017] FWCFB 574 the Full Bench found that an employer breached its obligation to explore redeployment options under s.389(2) of the Fair Work Act 2009 after making 7 of its employees redundant without properly considering job swaps and … Continue reading

Employer not liable to compensate employee for stress caused by ‘stand-down’ meeting

A recent decision of the District Court of Western Australia provides some positive news for employers facing a workers’ compensation claim for a stress-related injury caused by disciplinary action. At first instance in Woodside Energy v Kieronski [2016] WADC 144 the arbitrator held that Ms Kieronski was entitled to compensation for a psychiatric condition caused by … Continue reading

High Court clarifies application of reasonable administrative action exclusion for workers’ compensation

The High Court has recently clarified the application of the reasonable administrative action exclusion for workers’ compensation claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA). The SCRA excludes liability to compensate an employee for an injury or condition suffered as a result of reasonable administrative action taken in a reasonable manner.  Reasonable … Continue reading

Misuse it and lose it

A series of recent cases demonstrates that the Fair Work Commission (FWC) will, with increasing frequency, revoke or suspend union entry permits following findings of contraventions of the Fair Work Act 2009 (Cth) (FW Act).  So far this year, in 3 separate cases, the FWC has suspended or revoked the entry permits of 7 officials of … Continue reading

Employer prevented from offsetting higher annual salary against award entitlements

  A recent decision of the Western Australian Industrial Magistrates Court[1] has provided a timely reminder that, where employers pay an annualised salary to an award-covered employee, specific wording may be required in the contract of employment to ensure the higher salary can be offset against specific award entitlements that are not separately provided, such … Continue reading

When is going running in the course of employment?

A worker who injured herself when she went for a run whilst working from home has had her application for workers compensation dismissed, but only on the basis that the injury did not occur during an ‘ordinary recess’. Background In Demasi v Comcare (Compensation) [2016] AATA 644 (26 August 2016), the Administrative Appeals Tribunal (AAT) … Continue reading

The latest from the Fair Work Commission on drug and alcohol policy breaches

Last month, the Fair Work Commission upheld a decision to dismiss an employee for breaching its zero tolerance policy on illicit drugs, confirming the importance of having a clear drug and alcohol policy that is effectively communicated and consistently applied. The employer, Coles Group Supply Chain Pty Ltd (Coles), summarily dismissed Shane Clayton who tested … Continue reading

When will an employee’s “out of hours conduct” be a valid reason for dismissal?

An employer generally does not have any right to direct how an employee conducts themselves outside of their employment.  For an employee’s “out of hours conduct” to be a valid reason for dismissal, the conduct must have a relevant connection to the employment relationship. In the recent decision of Kedwell v Coal & Allied Mining … Continue reading

High Court clarifies meaning of Victorian manual handling regulations

The High Court has recently clarified the operation of the manual handling provisions in the Victorian Occupational Health and Safety Regulations 2007 (Vic) (the Regulations) in Deal v Kodakkathanath [2016] HCA 31 and held that a jury should have been allowed to hear and consider an injured employee’s claim that her employer breached the Regulations.… Continue reading

Reasonable Notice Claims – Update

It is generally accepted that the common law will imply a term of “reasonable notice” into a contract of employment which makes no provision for termination notice.  However, this general rule was displaced by the case of Brennan v Kangaroo Island Council [2013] SASCFC 151 which found that reasonable notice may not be implied in … Continue reading

Pre-employment Representations likely to be conduct “in trade or commerce” for Australian Consumer Law claims

During negotiations with potential employees, employers should exercise significant caution in making representations as to the future economic performance of the employer and its impact upon the remuneration payable to the employee in their employment. Such pre-employment negotiations are likely to be held by Australian courts to be conduct “in trade or commerce” for the … Continue reading

Cashing out of annual leave now permitted by the majority of modern awards

In a recent ground-breaking decision, the Fair Work Commission has varied the terms relating to annual leave that appear in the majority of modern awards (being the instruments that set out minimum employment terms and conditions for millions of Australians). The most controversial variation being the ability to cash out annual leave.… Continue reading

Obtaining alternative employment and redundancy pay: Does the offer meet the test of acceptability?

If an employee is entitled to redundancy pay on termination, but their employer has obtained other acceptable employment for them, the employer can apply to the Fair Work Commission (FWC) for an order under the Fair Work Act 2009 (Cth) (FW Act) to reduce (including to nil) the amount of redundancy pay that is due … Continue reading

Proposed new Victorian OHS Regulations released for consultation

Victoria’s Occupational Health and Safety Regulations 2007 (OHS Regulations) and the Equipment (Public Safety) Regulations 2007 are due to expire on 19 June 2017. WorkSafe has today released proposed new OHS Regulations to replace the current OHS Regulations. WorkSafe has invited public submissions and comment on the proposed new OHS Regulations as part of the … Continue reading

Post-Election 2016 Briefing: Likely Amendments to the Fair Work Act

Prime Minister Malcolm Turnbull has claimed victory in the federal election, as the Coalition achieved the slim majority in Australia’s federal parliament. We briefly outline the likely key amendments to the Fair Work Act, as promised by the Coalition Government prior to the election, and other possible amendments to the workplace relations legislative framework.… Continue reading

Can internal investigations commissioned from third party investigators be kept confidential?

The recent decision of the Fair Work Commission in Kirkman v DP World Melbourne Limited[1]  illustrates the benefits to employers of taking care when commissioning investigations into alleged misconduct in the workplace.  If the commissioning of the report is handled correctly, and confidentiality of the report is maintained at all times, it may be possible … Continue reading

A watershed case on the frontiers of union turf

Earlier this month, a unanimous Full Bench of the Fair Work Commission (FWC) handed down a decision that is set to lay the landscape for the interpretation of union eligibility rules into the future.[1] In its reasons, the Full Bench provided critical guidance on how union eligibility rules should be interpreted. In particular, the Full … Continue reading

FWC decision highlights potential gap in unfair dismissal protections for labour hire employees

A recent decision of the Fair Work Commission (FWC) means that labour hire employees working on projects may find it more difficult to avail themselves of the unfair dismissal protections in the Fair Work Act 2009 (Cth) (Fair Work Act). In this case, the labour hire employee’s contract of employment made specific reference to the … Continue reading