David Cross

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High Court clarifies definition of casual employee

Photo of David CrossBy David Cross on Posted in Australia
The High Court has upheld the employer’s appeal in the Rossato casual employment test case, and in the process has clarified the definition of casual employment (Workpac Pty Ltd v Rossato [2021] HCA 23). However, the practical significance of this decision has been limited by recent legislative amendments. The High Court held that a casual … Continue reading

Legacy Employers: Who are they? Can they still access the temporary JobKeeper enabling directions under the Fair Work Act 2009 (Cth)?

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia, Coronavirus
When extending Part 6-4C of the Fair Work Act (Cth) (FW Act), the government recognised there would be employers who had previously qualified for the JobKeeper scheme, but who would no longer qualify to participate in the scheme following its extension past the end of September 2020.… Continue reading

Amendments to the JobKeeper scheme

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia
On 3 September 2020, the Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 (Cth) (Act)[1] passed both houses of the Commonwealth Parliament, extending the JobKeeper scheme, varying employer JobKeeper eligibility requirements and making amendments to the Fair Work Act 2009 (Cth) (FW Act).… Continue reading

ASIC’s guidance indicates employers should make a provision in financial reports for employee entitlements owed to past and present casual employees who worked regular and systematic hours

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia
The Australian Securities and Investment Commission (ASIC) has issued a guidance note (Guidance) in relation to financial reporting and audit requirements under Chapter 2M of the Corporations Act 2001 (Corporations Act).[1]… Continue reading

How to address employment issues involving a whistleblower

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia
Under the whistleblowing regime in the Corporations Act 2001 (Cth) (CA), it is unlawful for someone to cause or threaten to cause detriment to, or victimise, a person because they believe or suspect that the person has made, may have made, or could make a whistleblowing disclosure (Whistleblower).  Very substantial civil and criminal sanctions apply … Continue reading

Caution for employers: redundancy entitlement when employer changes employment conditions and employee continues working for their employer

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Australia
The Federal Court of Australia (FCA) recently considered this issue in Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867,[1] holding that an employee who was required to transfer her full-time employment to part-time was entitled to redundancy pay, because the employer no longer required the full-time job to be performed by anyone. … Continue reading

Can injuries sustained working from home, including death, be considered to have occurred in the course of employment?

Photo of David CrossPhoto of Nazreen AliBy David Cross, Nazreen Ali and Norah Chafardet on Posted in Australia
The Court of Appeal of the Supreme Court of New South Wales considered this issue in Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54,[1] confirming that a death which happened while working from home occurred as a result of injury arising out of and in the course of the deceased’s employment.… Continue reading

Temporary variations to the Hospitality and Clerks modern awards in response to the COVID-19 pandemic

Photo of David CrossPhoto of Martin OsbornePhoto of Bronwyn HammondBy David Cross, Martin Osborne, Bronwyn Hammond and Norah Chafardet on Posted in Australia, Coronavirus
The Fair Work Commission (FWC) has acted on applications made by employer associations and unions by varying a number of awards to introduce temporary flexibility provisions in light of the COVID-19 pandemic and the associated public health orders. These important measures aim to provide employers with the flexibility to resource their businesses appropriately in the … Continue reading

Australian Human Rights Commission – Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces

Photo of David CrossPhoto of Georgia WolffBy David Cross and Georgia Wolff on Posted in Australia
The Australian Human Rights Commission (AHRC) has recently released its ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’ report (Report) in response to the decision in June 2018 by the Sex Discrimination Commissioner, Kate Jenkins, and the then Minister for Women, the Hon Kelly O’Dwyer, to launch the independent national inquiry into sexual harassment … Continue reading

Australia – What to look out for in employment law in 2020

Photo of David CrossPhoto of William DawesBy David Cross and William Dawes on Posted in Asia Pacific, Australia, General
2019 saw many legislative and jurisprudential developments in employment law which should be top of mind for employers moving forward in 2020.  In this article, we summarise the main issues to watch in 2020. The underpayment crisis – “wage theft” The recent spate of very public self-reported wage underpayments by businesses has resulted in increased … Continue reading

Taking it a day at a time

Photo of David CrossPhoto of Nazreen AliBy David Cross and Nazreen Ali on Posted in Asia Pacific, Australia, General
Section 96 of the Fair Work Act 2009 (Cth) (the Act) provides that “for each year of service with his or her employer, an employee [excluding casual employees] is entitled to 10 days of paid personal/carer’s leave”.  This entitlement accrues progressively during a year of service according to the employee’s ordinary hours of work and it accumulates from year to year. What is … Continue reading

Not-for-profit organisations bound by the whistleblowing regime

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Asia Pacific, Australia
From 1 July 2019, not-for-profit incorporated organisations that meet the definition of a “trading or financial corporation” must comply with the corporate sector whistleblower regime in Part 9.4AAA of the Corporations Act 2001 (Cth) (Corporations Act). What entities are obliged to comply with the new whistleblowing regime? The new whistleblower regime applies to “regulated entities”, … Continue reading

New laws in force to prevent “sharp corporate practices” of employers in avoiding payment of employee entitlements

Photo of David CrossPhoto of Norah ChafardetBy David Cross and Norah Chafardet on Posted in Asia Pacific, Australia, General
The Corporations Amendment (Strengthening Protections for Employee Entitlements) Act 2019 (Act) received Royal Assent on 5 April 2019.[1]  The Act amends Part 5.8A of the Corporations Act 2001 (Cth) (Corporations Act) to discourage the use of “sharp corporate practices” used by employers to avoid paying employee entitlements when their business enters winding up, including improper … Continue reading

There’s a BEAR in there…

Photo of David CrossPhoto of Nazreen AliBy David Cross and Nazreen Ali on Posted in Asia Pacific, Australia, General
What is BEAR? The Banking Executive Accountability Regime (BEAR) is set out in Part IIAA of the Banking Act 1959 and took effect in February 2018. BEAR establishes accountability obligations for authorised deposit-taking institutions (ADIs) and their senior executives and directors. The regime also establishes deferred remuneration, key personnel and notification obligations for ADIs. An … Continue reading

Model term for family friendly working arrangements to be included in modern awards

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Asia Pacific, Australia, General
As part of the Commission’s four-yearly review of modern awards,[1] the Full Bench of the Fair Work Commission (Commission) recently handed down a decision (Decision),[2] to insert a new model term (Model Term) into all modern awards, which will: complement the flexible working provisions contained in s 65 of the Fair Work Act 2009 (Cth) (Act); and impose … Continue reading

Absence of work-wages bargain crucial for Fair Work Commission in concluding that an Uber driver was not an employee

Photo of David CrossBy David Cross and Norah Chafardet on Posted in Asia Pacific, Australia
The Fair Work Commission (FWC) recently handed down a decision[1] which concluded that an Uber driver was not an employee for the purposes of the Fair Work Act 2009 (Cth) (FW Act), but an independent contractor, meaning that his unfair dismissal application was dismissed. The decision, the first of its kind in Australia, only increases … Continue reading

What is serious misconduct?

Photo of David CrossBy David Cross on Posted in Asia Pacific, Australia
Last year we reported on a decision of the Supreme Court of New South Wales which upheld the summary dismissal of an employee for serious misconduct, even though the employer had not established, as a matter of fact, that the misconduct had occurred. The case marked a departure from a number of earlier authorities which … Continue reading

University fined for adverse action over secret plan to transfer teaching staff

Photo of David CrossBy David Cross on Posted in Asia Pacific, Australia
The Federal Court of Australia has penalised a university for unlawfully threatening adverse action when it prepared secret plans to move senior teaching staff to a new employing entity. Adverse action The Fair Work Act 2009 (Cth) makes it unlawful for an employer to take adverse action against an employee because of his/her possession or … Continue reading
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