Topic: Australia

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Personal/carer’s leave sweeter for shiftworkers

Sarah RalphRebekah FrenchBy Sarah Ralph and Rebekah French on Posted in Asia Pacific, Australia
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 … Continue reading

FIFO worker engaged as a casual entitled to annual leave

Martin OsborneAmy LeonardBy Martin Osborne and Amy Leonard on Posted in Asia Pacific, Australia
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 … Continue reading

No “fair go” makes dismissal for a valid reason unfair

Samantha MaddernPatrick WilliamsBy Samantha Maddern and Patrick Williams on Posted in Asia Pacific, Australia
The Fair Work Commission will inevitably find a dismissal to be ‘unfair’ if, despite having legitimate performance concerns, an employer does not give the employee a ‘fair go’ to both respond to those concerns and improve their performance. In Cheek v ELB Pty Ltd,[1] the Commission took a close look at just what a ‘fair … Continue reading

AHRC launches national inquiry into sexual harassment in Australia

Sally WoodwardNicola MartinBy Sally Woodward and Nicola Martin on Posted in Australia, Discrimination and harassment
The Australian Human Rights Commission (Commission) has recently launched an inquiry into sexual harassment in Australian workplaces (Inquiry). It seems that the ‘watershed’ moment that the #MeToo campaign was hailed as, has indeed driven the momentum to keep the issue alive and for meaningful action to come from it. There can be little argument that … Continue reading

Record penalties for health and safety breaches in WA are a sign of things to come

Samantha MaddernBy Samantha Maddern on Posted in Asia Pacific, Australia
Penalties imposed under Western Australia’s Occupational Safety and Health Act 1984 (Act) have been kicked up a notch with the Perth Magistrates Court recently fining a company and its director more than double the previous record. In setting this new high water mark, the Court has sent a clear message that failing to ensure a … Continue reading

Visual contracts: Re-imagining the employment contract

Jason NoakesBy Jason Noakes on Posted in Asia Pacific, Australia, Contracts
We had the pleasure of assisting global engineering and infrastructure advisory company Aurecon become the first employer to launch a visual employment contract across its workforce in Australia. The brief?  To assist in re-imagining the standard written employment contract into an interactive and vibrant agreement, which governs the employment relationship and embodies the culture and … Continue reading

Legal representation in the post-Fitzgerald world – difficult but not impossible

Samantha MaddernPatrick WilliamsBy Samantha Maddern and Patrick Williams on Posted in Asia Pacific, Australia
In October 2017, a Full Bench of the Fair Work Commission in Fitzgerald v Woolworths[1] challenged the common understanding of “representation” by a lawyer, by finding it involves a wide range of activities connected with litigation and is broader than just oral advocacy before the FWC.  As lawyers (and paid agents) must obtain the FWC’s … Continue reading

Freedom to tweet – no power to terminate public servant for anonymous political communication

Sarah RalphAlessandra MoussaBy Sarah Ralph and Alessandra Moussa on Posted in Asia Pacific, Australia, Contracts
The AAT has found that the termination of employment of a former public servant who tweeted anonymously trespassed on the implied freedom of political communication and was therefore unlawful, in a decision which examined the scope and application of the Public Service Act 1999 (Cth) (PSA) in the context of reviewing a denied workers compensation … Continue reading

The long-awaited ‘Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria’

Nicki MilionisBy Nicki Milionis on Posted in Asia Pacific, Australia
Despite being dated November 2016, the long-awaited report entitled ‘Independent Review of Occupational Health and Safety Compliance and Enforcement in Victoria’ (the review) was released on 18 December 2017, just in time for some light holiday reading.  At the same time the Victorian government response to the review was also released (the government response). The … Continue reading

Changes to the Heavy Vehicle National Law coming in mid-2018

Katherine MorrisAnnika MartzBy Katherine Morris and Annika Martz on Posted in Asia Pacific, Australia
Australia’s Heavy Vehicle National Law (HVNL) is changing in mid-2018.  The changes are not only relevant to businesses that drive or operate heavy vehicles.  They will also apply to any businesses that consign, pack, load or receive goods by heavy vehicles. Background to Chain of Responsibility Amendments As a result of concerns expressed by industry … Continue reading

What do #MeToo and #TIMESUP mean in an Australian workplace context?

Sarah RalphBy Sarah Ralph on Posted in Asia Pacific, Australia
In the wake of the Harvey Weinstein allegations surfacing in October 2017, the ‘MeToo’ movement has gained widespread traction after women and men around the world started sharing their experiences of workplace sexual harassment and sexual violence on twitter using the hashtag #MeToo. In circumstances where one in five people surveyed by the Australian Human Rights … Continue reading

“Casual” employee awarded 15 years of annual leave

Nicola MartinBy Nicola Martin on Posted in Asia Pacific, Australia, Contracts
The recent case of Apostolides v Mantina Earthmovers & Constructions Pty Ltd [2018] FCCA 279 serves as a useful reminder to ensure that your organisation’s award or agreement covered casual employees are “engaged and paid as such”. In this case the Federal Circuit Court determined that an employee whom the employer purported was a casual … Continue reading

Capture the (union’s) flag – Building contractors stuck between a rock and a hardhat regarding the display of building association insignia on building sites

Martin OsborneAndrew WheeldonBy Martin Osborne and Andrew Wheeldon on Posted in Asia Pacific, Australia
The Australian Building and Construction Commission (ABCC) has recently released further guidance material in relation to its interpretation of, and likely enforcement approach towards, the freedom of association provision within the Building Code 2013 (Code 2013) and Code for Tendering and Performance of Building Work 2016 (Code 2016). The freedom of association provisions within both … Continue reading

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

David CrossNorah ChafardetBy 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

Fair Work Commission considers award provision allowing employers to deduct pay where an employee fails to give sufficient notice

Helene LeeAnthony RuniaBy Helene Lee and Anthony Runia on Posted in Asia Pacific, Australia
As part of its four yearly review of modern awards, the Full Bench of the Fair Work Commission (FWC) has recently considered whether a clause found in many modern awards allowing employers to make deductions from an employee’s termination pay (where the employee fails to give sufficient notice of resignation) should be removed, changed or … Continue reading

23 redundancies with no consultation? Federal Court says ‘that’s OK’

Samantha MaddernPatrick WilliamsBy Samantha Maddern and Patrick Williams on Posted in Asia Pacific, Australia
An employer decides to abolish 23 full-time positions due to a lack of funding.  Surely this is a major change likely to have a significant effect on employees which obliges the employer to consult with those employees as per the consultation term in their enterprise agreement? While many would say ‘yes, of course’, the Federal … Continue reading

Drug and alcohol testing: have you got your employee’s consent?

Jason NoakesBy Jason Noakes on Posted in Asia Pacific, Australia
The idiom “I’m chained to my desk” is one familiar to many, but for the Queensland District Court the relationship between the workplace and incarceration may not always stop there. In Pere v Central Queensland Hospital and Health Service[1], a hospital fire safety and security officer brought an action against his former employer, Queensland Hospital … Continue reading

Beware of repudiating the employment contract of an employee who intends to jump ship and join your competitor

Samantha MaddernPatrick WilliamsBy Samantha Maddern and Patrick Williams on Posted in Asia Pacific, Australia, Contracts
Your employee resigns to join your arch rival. You’re not worried because you know you have ‘water tight’ post-employment restraints in the contract of employment. But, if in reacting to the employee’s untimely resignation, you breach the contract and this breach amounts to a repudiation of the contract, then your restraints will be unenforceable. This … Continue reading

Do you provide or use labour hire services? Important changes are coming for labour hire in Queensland and other jurisdictions

Takara RaymondBy Takara Raymond on Posted in Asia Pacific, Australia
Do you provide or use labour hire services?  Important changes are coming for labour hire in Queensland and other jurisdictions A labour hire licensing scheme will commence in Queensland, and it is expected that other states will follow suit. The Labour Hire Licensing Act 2017 (Act) was passed by the Queensland Parliament on 7 September … Continue reading
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