Leading commentary and perspectives on employment and labor law
What has happened so far?
Last month the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021, also known as the Omnibus Legislation, came into effect. This reformed the legal definition of a casual employee and introduced a statutory definition of a “casual employee” for the first time in Australia.
For a…
Norton Rose Fulbright Australia’s Employment and Labour team has collaborated with our global counterparts to prepare a guide on the status of gig workers across various jurisdictions. The guide is available here.
Employment and labour practitioners in each jurisdiction have set out the current employment status at law of gig workers, before explaining the grey …
On 26 November 2020, the High Court granted a special leave application made by labour hire company Workpac to appeal the Full Federal Court’s finding in the matter of Workpac Pty Ltd v Rossato [2020] FCAFC 84 (Rossato) which was handed down earlier this year. In Rossato, the Court held that a …
In August 2020, the Victorian Equal Opportunity & Human Rights Commission released its new and updated guideline for complying with the Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act): Preventing and responding to workplace sexual harassment (Guideline).
On 16 June 2020, the Victorian Parliament passed the Wage Theft Bill 2020 in response to a series of high-profile underpayment cases. The prevalence of these underpayments, according to Victorian Attorney-General Jill Hennessy, indicates that the civil penalty regime under the Fair Work Act 2009 (Cth) is failing to provide a sufficient deterrent against wage theft. Victoria’s answer to wage theft – meaning the dishonest underpayment of employees – is to introduce criminal liability as a deterrent and establish a new body to investigate and prosecute wage theft offences.
The termination of Israel Folau’s $4m playing contract has set the scrum for a Federal Court case which is likely to shape the landscape of religious expression and vilification in the employment context.
Background
Folau’s controversial “warning” on Instagram stated that “Hell awaits” those who are “homosexuals … thieves and atheists”, among others, telling them they should ”Repent!” because “only Jesus saves”.
Along with NSW Rugby, Rugby Australia’s (together, Rugby Bodies) initial decision to sack Folau because of a high level breach of the Professional Players Code of Conduct was upheld by a Code of Conduct hearing. The parties were also unable to reach a settlement agreement in the Fair Work Commission late last week.
It is now likely Folau will issue proceedings in the Federal Court of Australia under the general protections provisions of the Fair Work Act 2009 (FW Act), arguing that the termination of his employment occurred because of his religion, which constitutes adverse action taken for a prohibited reason in breach of the FW Act.
As part of the Fair Work Commission’s (Commission) four-yearly review of Modern Awards[1], the Commission recently handed down a decision on 27 February 2019 (Decision)[2], to insert new model clauses for annual wages into Modern Awards.
The Decision applied to 17 Modern Awards that currently contain annualised wage entitlements, and 2 Modern Awards that previously did not contain annualised wage arrangements.
We set out below some background, the new obligations imposed on employers, and the impact of the model clauses for employers.
There are a number of timelines under the Fair Work Act 2009 (Cth) (FW Act) to be aware of when making and applying for approval of a single enterprise agreement. If these timelines are not complied with, it is likely that the agreement will not be approved by the Fair Work Commission (FWC). One such timeline relates to the access period. The access period is the 7-day period ending immediately before the start of the voting process for the proposed agreement.
In Mondelez Australia Pty Ltd [2018] FWC 2140 the Fair Work Commission (Commission) confirmed shiftworkers are entitled to 10 days of personal/carer’s leave to be taken and accrued as a daily entitlement based on the hours ordinarily worked by a particular employee in a day. As a result, shiftworkers are entitled to payment for the full duration of their shift whilst on personal/carer’s leave rather than a standard 7.6 hours per day.
The Fair Work Commission reached a similar decision again this year in Australian Workers’ Union, The v AstraZeneca Pty Ltd [2018] FWC 4660 when it was asked to rule on how personal/carer’s leave is to be calculated for shiftworkers at pharmaceutical company, AstraZeneca Pty Ltd. In this case, the Commission held the entitlement to personal/carer’s leave differs between the employer’s rosters of 12 hour shifts and 10.28 hour shifts, and should not be calculated based on an average of hours worked.
The Long Service Leave Act 2018 (Vic) (New Act) has received the Royal Assent and will commence on 1 November 2018 (or earlier). The New Act will replace the Long Service Leave Act 1992 (Vic) (Current Act).
Some of the key changes are outlined below.
