Leading commentary and perspectives on employment and labor law
This article was co-authored by Jonathan McMillan and Terry Stavrianos.
In our previous article, we explored the introduction of sunsetting provisions for what are commonly referred to as ‘zombie agreements’. Broadly, zombie agreements are workplace agreements made before the commencement of the Fair Work Act 2009 (Cth) (FW Act) and during the…
This article was co-authored by Roxanne Hilton, Amy Parry and Grace Carlson.
The High Court in CCIG Investments Pty Ltd v Schokman has recently overturned a decision of the Queensland Court of Appeal, shedding light on when wrongful acts occur ‘in the course or scope of an employee’s employment’.[1]
Queensland’s first industrial manslaughter sentence was handed down yesterday by the Brisbane District Court for the death of a worker at an auto recycling yard in 2019.
Laws introducing the offence of industrial manslaughter in the resources sector were passed by Queensland Parliament on 20 May 2020.
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 current climate whilst maintaining compliance with the applicable modern award, allowing them to continue active operations and retain employees.
Australia, like many countries, continues to closely monitor the evolving coronavirus situation, caused by the outbreak of a novel coronavirus first reported in Wuhan, Hubei Province, China.
As flagged in our recent post, “What to look out for in employment law in 2020”, new annualised wages clauses in 18 modern awards are in effect from 1 March 2020.
The everyday use of biometric technology in contemporary society is nothing new.
We live in a world where we regularly use fingerprint recognition for home security, facial recognition to open our phones and voice recognition to ask Siri to spice up a party by playing the latest Taylor Swift tune. Despite the significant advancements and prevalence of biometric technology in everyday society, the legality of the use of biometric fingerprint technology in the workplace has been given a thumbs down in a recent case.
A recent Fair Work Commission Full Bench decision has shed light on the obligations and risks associated with the use of biometric technology by employers. In the first Full Bench decision considering an employee’s refusal to provide biometric data through fingerprint scanning, it was held in Jeremy Lee v Superior Wood Pty Ltd t/a Superior Wood [2019] FWCFB 2946 (1 May 2019) that directing an employee to provide fingerprint data, in circumstances where the employee did not consent to that collection, was not lawful.
The decision is important for employers to consider as it raises questions around data collection, data policies, the storage of data and whether the refusal to provide sensitive information is a valid reason for dismissal.
As part of the Commission’s four-yearly review of modern awards[1], the Full Bench of the Fair Work Commission (FWC) recently handed down a number of decisions[2] which have the effect of inserting a model casual conversion clause (Model Clause) into 84 Modern Awards[3] from 1 October 2018. This provides “regular casual” employees the right to request to convert their employment to permanent full-time or part-time.
The other 28 Modern Awards that already contain a casual conversion clause prior to 1 October 2018 will remain unchanged.
Who can request for casual conversion?
The Model Clause provides a framework under which employees are entitled to request to convert their employment from casual to either permanent part-time or full-time, in certain circumstances.
The entitlement arises if the employee is a “regular casual employee” within the definition provided in the Model Clause. This requires the employee to have, in the preceding 12 months, worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of the Modern Award.
When can an employer refuse the request?
In the event that an employee is a “regular casual” employee for the purpose of the Model Clause, the employee is not provided with an automatic right to be converted to permanent full-time or part-time employment. The Model Clause allows employers to refuse a request on “reasonable grounds”, including any of the following:
For any ground of refusal to be reasonable, the employer must base the reason on facts which are known or reasonably foreseeable at the time the decision is made.
A FIFO worker who was purportedly engaged as a “casual” under an enterprise agreement has successfully claimed an entitlement to annual leave under both the National Employment Standards (NES) and the terms of the enterprise agreement.
The full Federal Court decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 opens the way for further claims by employees who are engaged as casuals but work regular and consistent hours.
