Tag archives: fair work act

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

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

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

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

Post-Election 2016 Briefing: Likely Amendments to the Fair Work Act

Prime Minister Malcolm Turnbull has claimed victory in the federal election, as the Coalition achieved the slim majority in Australia’s federal parliament.

We briefly outline the likely key amendments to the Fair Work Act, as promised by the Coalition Government prior to the election, and other possible amendments to the workplace relations legislative framework.… Continue Reading

Employees’ rights and obligations regarding the use of social media in Australia

The use of social media in Australia continues to grow on a daily basis. There are now over 13.4 million daily users of Facebook, 3.9 million active users of LinkedIn and over 2.7 million monthly users of Twitter (Source: Social Media Statistics Australia). There is a good chance that one, if not all of your employees under 30, are using social media on a daily basis.

So how does an employer regulate the use of social media by employees?

A social media policy is important in providing employees with guidance as to how they are to use social media … Continue Reading

Broad approach taken to “political opinion” in adverse action claim

The statutory protection given employees against adverse action on the basis of political opinion is not restricted to matters of party political outlook but extends to issues of philosophical difference, the Federal Circuit Court has ruled.

Adverse action

The Fair Work Act 2009 (Cth) (the Act) makes it unlawful for an employer to take “adverse action” against an employee because of his/her “political opinion”. Adverse action will include dismissal from employment, but also a wide range of other conduct which results in the employee suffering disadvantage.

In any claim brought by an employee for adverse action, the employer bears … Continue Reading

Uncertainty over “workplace right”

More than five years after the Fair Work Act 2009 (Cth) (the Act) commenced operation, uncertainty still attaches to the meaning of “workplace right”, which is a critical concept in the operation of the Act’s “general protections”.

General protections

The Act makes it unlawful for an employer to take “adverse action” against an employee (which includes dismissal, but also anything which disadvantages the employee in employment) because of the exercise of a workplace right by the employee.

The Act defines ‘workplace right’ to include the employee being able to make a complaint or inquiry in relation to his or … Continue Reading

Sham contracting: Become an independent contractor, or you’re fired!

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 Industry Inspectorate v Robko Construction Pty Ltd & Anor [2014] FCCA 2257 demonstrates how strictly the courts will enforce the sham contracting provisions of the Fair Work Act 2009 (Cth) (the FW Act).

Robko Construction Pty Ltd (Robko) wrote to one of … Continue Reading

Court fines employer for failing to allow employee to meet carer’s responsibilities

Transport Workers’ Union of Australia v Atkins [2014] FCCA 1553 (18 August 2014)

The Federal Circuit Court has recently ordered a transport operator to pay close to the maximum penalty for summarily dismissing the employee after he took carer’s leave to take his daughter to a medical appointment with a specialist.

The facts

The employee was employed as a truck driver and on Friday 6 August 2013, advised his employer that he needed to take time off work on the following Monday to take his daughter to a specialist medical appointment.  The employee said he could work a half-day but … Continue Reading

Australia: Employees’ rights on redundancy

Rights of employees upon redundancy of their position and in the case of any resulting termination of the employee’s employment will depend upon whether the employee falls into the Federal employment and industrial relations jurisdiction (National System Employees) or under the jurisdiction of the State in which the employee works.

National System Employees

National System Employees are employees covered by the Fair Work Act 2009 (Cth) (Act). The Act covers all Commonwealth public sector employees and private sector employees in all states (except in Western Australia, where the private sector coverage of the Act is limited to those … Continue Reading

Employees with child care responsibilities – what are an employer’s obligations?

In this post we provide an overview of the following two types of obligations that an employer has under Australian law when it comes to employees with child care responsibilities:

  • considering and responding to flexible working arrangement requests; and
  • preventing discrimination on the grounds of family or child care responsibilities.

We also provide some practical steps that employers can take to ensure that they meet their obligations.

Flexible working arrangements to care for children

Where an employee, who is a parent of a child of school age or younger (or has responsibility for their care, including in a guardianship or … Continue Reading

Is notice of dismissal a dismissal under the Fair Work Act?

In a novel decision, the Fair Work Commission (the FWC) has held that it has jurisdiction to hear an unfair dismissal application under the Fair Work Act 2009 (FW Act) that was made after the employer has given notice of termination, but before the employment relationship ended.

In Mr Michael Kovac v Aboriginal Legal Service (NSW/ACT) Limited [2013] FWC 6832, Senior Deputy President Drake heard an objection by the Aboriginal Legal Service (the ALS) to the Applicant’s claim. ALS submitted that the FWC did not have jurisdiction to hear the application as it was filed … Continue Reading

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