Topic: Australia

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Workpac granted leave to appeal Rossato judgment

Helene LeeElectra DowBy Helene Lee and Electra Dow on Posted in Asia Pacific, Australia

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 casual employee engaged on a regular, systemic and predictable basis was entitled to leave entitlements, plus payment for public holidays, as set out in the National Employment Standards (NES) of the Fair Work Act 2009 (Cth) and, controversially, that Workpac was not entitled … Continue Reading

Western Australia set for WHS Reform

Katherine MorrisAnnika MartzShannon WalkerBy Katherine Morris, Annika Martz and Shannon Walker on Posted in Australia

The Work Health and Safety Bill 2019 (WA) received assent on 10 November 2020 (WHS Act). The WHS Act introduces the offence of industrial manslaughter and will harmonise WA’s work health and safety (WHS) laws with most other Australian states and territories. This harmonisation is long overdue in WA with the other states and territories having adopted the model WHS laws between 2011 and 2012, with the exception of Victoria which has nonetheless still amended its legislation to provide for industrial manslaughter.

The WHS Act is expected to come into full effect in the first half of 2021 … Continue Reading

WHS regulators issue guides and codes of practice on psychological health and managing sexual harassment claims

Katherine MorrisAnnika MartzBrittany TyneBy Katherine Morris, Annika Martz and Brittany Tyne on Posted in Australia

Earlier this year, the Respect@Work – National Inquiry into Sexual Harassment in Australian Workplaces, conducted by the Australian Human Rights Commission made key recommendations addressing psychological health and sexual harassment in Australian workplaces. Specifically the inquiry recommended:

  • the model WHS Regulations should be amended to address psychological health by identifying and appropriately controlling work-related psychosocial risks (consistent with the 2018 Boland Review recommendations); and
  • WHS Ministers develop guidelines or Codes of Practice on sexual harassment, allowing it to be dealt with in a ‘consistent, robust or systemic way’.

Since the publication of the Inquiry’s final report, SafeWork NSW and … Continue Reading

Record fine imposed on Ardent Leisure Limited over Dreamworld fatalities

Nicki MilionisAllana SmithBy Nicki Milionis and Allana Smith on Posted in Australia

Background

On 25 October 2016, Kate Goodchild, Luke Dorsett, Cindy Low & Roozbeh Araghi suffered fatal injuries on Dreamworld’s Thunder River Rapids Ride after the raft they had been travelling in collided with another raft.

Coroner James McDougall undertook a Coronial Inquest (Inquest) which resulted in the Findings of Inquest (Findings) delivered on 24 February 2020.  We discussed these Findings in a podcast which can be accessed here.

The charges

The Coroner found that it was “…reasonably suspected that Ardent Leisure may have committed an offence against workplace law” and he made a … Continue Reading

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

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

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

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

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 for both the individual engaging in detrimental conduct and the corporation that employs the Whistleblower and the antagonist.… Continue Reading

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

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.

Facts

On 1 May 2014, Broadlex Services Pty Ltd (Employer) hired Ms Brizitka Vrtkovski (Employee) as a full-time cleaner.

On 15 August 2017 the Employer informed the Employee that “due to consideration of work flow an … Continue Reading

Victoria’s wage theft legislation

Helene LeeDaniel MacphersonBy Helene Lee and Daniel Macpherson on Posted in Australia

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.… Continue Reading

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

David CrossNazreen 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

The Miscellaneous Award now has greater reach

Shannon WalkerBy Shannon Walker on Posted in Australia

On 12 February 2020 the Fair Work Commission (Commission) amended the Miscellaneous Award 2010 with effect from 1 July 2020. The changes extend the coverage of this Award to traditionally award-free employees with potentially far reaching consequences for some employers.… Continue Reading

Sometimes it isn’t about the destination: Journey-claims and the associated risks for employers

Peta WilloughbyMatt WichlinskiBy Peta Willoughby and Matt Wichlinski on Posted in Australia

Most employers are conscious of their health and safety obligations for when employees are at work, but what about employer obligations to employees travelling to and from work?  A recent New South Wales decision highlights the importance of employers taking a holistic approach to fatigue management both within and outside of the workplace.… Continue Reading

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

David CrossMartin OsborneBy 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 current climate whilst maintaining compliance with the applicable modern award, allowing them to continue active operations and retain employees.… Continue Reading

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

David CrossGeorgia 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 in Australian workplaces (Inquiry).… Continue Reading

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