Leading commentary and perspectives on employment and labor law
This article was co-authored with Lachlan Crosbie.
Employers need to be aware of key changes to legislation protecting employee rights which will commence in the coming months.
The Fair Work Legislation (Protecting Employee Entitlements) Act 2023 (Protecting Employee Entitlements Act) marks the Government’s second major reform to the Fair Work Act 2009 (…
The recent case of EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 demonstrates the broad reach of the accessorial liability provisions under the Fair Work Act 2009 (Cth) (the Act). In this case the Full Federal Court (FFC) dismissed the appeal of an accounting firm which was found by the Federal Circuit Court (FCC) to have been “involved in” its client’s contraventions of the Act relating to underpayment of staff.
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 voluntary redundancies with other employees. These 7 employees who had previously had their unfair dismissal applications dismissed, consequently had their applications remitted for re-hearing.
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 circumstances where an employee is covered by a modern award which prescribes a period of termination notice. Recent cases have considered whether s 117 of the Fair Work Act 2009, which prescribes a minimum period of termination notice, should also displace the general rule. Whilst this was supported by the South Australian District Court in Kuczmarski v Ascot Administration P/L [2016] SADC 65, in the more recent case of McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227 Judge McNab of the Federal Circuit Court of Australia (FCCA) confirmed that s 117 provides minimum periods of termination notice only, and consequently does not displace a right to implied reasonable notice.
The Fair Work Commission has found that a 50 year old airline services operator for Qantas who breached his employer’s safety rules 3 times in 20 days was not unfairly dismissed and that his breaches were considered all the more serious, given that he had 14 years’ experience in his role.
Generally, an employer has no right to control or regulate an employee’s out of hours conduct. However, in the modern employment relationship where employees work from home, are required to travel abroad and frequently engage in social media with their colleagues and clients, the line between work and play can often be blurred. So when can an employer lawfully intervene when things go wrong in these circumstances?
The Fair Work Amendment (Bargaining Processes) Bill 2014 (the Bill) was recently introduced into Parliament and has a strong focus on workplace productivity and progressing the bargaining process.
If the Bill is passed it will require the Fair Work Commission (FWC), when approving enterprise agreements (but not greenfields deals), to be satisfied…
With ever increasing economic pressures employers are frequently required to consider ways to reduce employment and labour costs. While there are many ways to lawfully achieve this, requiring an employee to become an independent contractor performing the same work, certainly isn’t one of them.
The recent case of The Director of the Fair Work Building …
