Norton Rose Fulbright’s ContactorCheck provides a preliminary assessment of whether your Australian worker(s) should be characterised as employees or independent contractors. The tool also points out the risks associated with incorrect characterisation.
Importance of the issue
Independent contractors comprise between 9% and 17% of the Australian workforce. The Australian Bureau of Statistics “Forms of Employment”
The Federal Court has interpreted the statutory annual leave standard in a way which requires payment for untaken leave on termination of employment to be calculated on the most favourable basis. Somewhat unexpectedly, the relevant statutory prescription has to be read quite separately from the related sub-clause which regulates payment when the leave is actually taken.
The Full Court of the Federal Court of Australia has ruled that an employer breached the contract of employment by failing to follow the complaints procedure published in a company policy. The decision is the latest in a line of cases dealing with the circumstances in which a company policy will become part of the employment contract.
This case is the first for a number years in which the employee has succeeded in claiming that the relevant policy had contractual standing. The outcome is a reminder that where an employer publishes policies with the expectation that employees will comply with them, there is always the likelihood that contractual obligations will result.
Organisations may find it interesting to know whether it is appropriate to treat their health and safety representatives (“HSRs”) as they would other employees in managing conduct and performance, often acting in caution to avoid a possible finding of discrimination under the health and safety laws. A recent Fair Work Commission (“FWC”) finding may offer employers some comfort that employees are not immune from being dismissed for misconduct simply because they are purporting to act as an elected HSR.
The case of Kaskol v TNT Australia Pty Limited [2015] FWC 705 highlights the importance of carefully managing the process to avoid unlawful discrimination in the decision to dismiss an employee.
General background
The principle of remuneration based on the employee’s performance has long been permitted by French employment law provided in particular that such remuneration is based on objective criteria, does not result in payment of remuneration inferior to the minimum wage and complies with the general principle of equal work for equal pay.
In
The Federal Circuit Court has rejected an employee’s claim that her employer engaged in unlawful discrimination by terminating her employment due to her “polyamorous” lifestyle. The Court found that polyamory was not a matter of sexual orientation and so was not a protected attribute under the relevant legislation.
Employers may have granted entitlements to redundancy pay through enterprise agreements in wider situations than provided by the National Employment Standards (NES). The Full Bench of the Fair Work Commission has ruled that the entitlement to redundancy pay in an enterprise agreement should not be ‘read down’ to exclude the ‘ordinary and customary turnover of labour’ concept, which can be found in the redundancy provisions of the NES.
The peak union body the ACTU has submitted a claim to the Fair Work Commission in an effort to attempt to expand entitlements for workers returning from parental leave. The claim seeks to give workers the right to work part time, among other things, and not just request it in the hope that the employer
The District Court of New South Wales has ruled that an employee who was dismissed summarily for being drunk on duty was entitled, in the particular circumstances, to damages for wrongful dismissal. The damages were calculated on a basis which exceeded the 6 month notice period that applied under the contract to a termination without cause. As a consequence the employee recovered nearly AUD 300,000 in damages.
The recent Federal Court of Appeal decision in Wilson v Atomic Energy of Canada Limited addressed the long-standing question of whether federally regulated employers under the Canada Labour Code can terminate employees without just cause. Judge Stratas at the Federal Court of Appeal found that federally regulated employers may dismiss employees without cause upon reasonable