Lander & Rogers
Lander & Rogers is a leading independent Australian law firm operating nationally from Melbourne, Sydney and Brisbane. We are proud to be the trusted advisor to many publicly listed and private Australian companies, Australian subsidiaries of global companies as well as all levels of government.Show more
Employment & Benefits
The Full Bench of the Fair Work Commission recently found that the direction given to an employee regarding the solicitation and collection of his biometric data was unlawful because it was inconsistent with the Privacy Act. The decision is a reminder to employers that directions to employees must be lawful and reasonable. If not, dismissal of an employee for failing to follow such direction will likely be unfair.
A recent Full Court of the Federal Court decision is significant in shedding light on what constitutes 'industrial action' as defined in Section 19(1) of the Fair Work Act. Specifically, the decision establishes that industrial action can be taken only by parties to an employment relationship. It also highlights that, under the Fair Work Act, industrial action does not capture instances where a subcontractor's employees down tools on site with the support of their direct employer.
Following a recent Federal Court decision, a power solutions company was forced to reinstate a senior employee who it had fired three years previously and pay him A$1.1 million in back pay. This case serves as a reminder that employers must be aware of the dangers of unlawfully terminating an employee, particularly given that the employee may be reinstated into their position should it be held that they suffered adverse action.
The Fair Work Commission recently considered whether a Coles employee, whose conduct had been found to breach the chain's code of conduct and equal opportunity policy, had been unfairly dismissed. The commission noted that the #MeToo movement had commenced and gained traction in late 2017 and was likely to have encouraged the initial complainant and other complainants to report the employee's conduct.
The Fair Work Commission recently confirmed that it would be inappropriate to reinstate an employee who had tested positive for Nurofen Plus after failing to declare that he had been taking it, as required by his employer's drug and alcohol policy. The decision highlights that non-compliance with a drug and alcohol policy can be a valid reason for dismissal and that employers must closely consider mitigating circumstances before deciding to dismiss an employee.
Ageism is one of the most reported types of discriminatory behaviour. According to the Australian Human Rights Commission, more than one-quarter of Australians aged over 50 have experienced age discrimination in the past few years. This issue will affect everyone and has long flown under the radar. So, what can workplaces do to best manage an ageing workforce and tackle ageism?
The Fair Work Commission recently addressed a case in which an employer – a self-proclaimed 'Nazi sparky' – tried to force one of his apprentices to provide him with information. The crux of the issue was whether an employee's common law right against self-incrimination (ie, the right to remain silent) prevents employers from requesting information from employees while conducting investigations.
The end of 2018 saw a flurry of officer prosecutions finalised in New South Wales (NSW) and Victoria, including the first recorded sentence of imprisonment for reckless endangerment in Victoria. The cases illustrate an increasing willingness on the part of SafeWork NSW and WorkSafe Victoria to pursue company officers personally for work health and safety breaches, particularly sole directors and hands-on officers who are working in the construction industry.
The coalition government made a significant drive into the workplace relations space in December 2018 with the passage of new legislation designed to simplify and streamline the Fair Work Commission's award review and enterprise agreement approval processes. The key change is the removal of the present requirement in the Fair Work Act 2009 for the Fair Work Commission to conduct four-yearly reviews of modern awards.
The Fair Work Commission's recent decision in Klooger will undoubtedly be the subject of considerable analysis as the developing gig economy forces employers to ask what employment in Australia will look like in 2019. The commissioner's comments clearly show that an approach to work health and safety which actively seeks to circumvent such obligations may lead courts and tribunals to more willingly characterise gig economy engagement models as traditional employment relationships.
In its four-yearly review of modern awards, the Fair Work Commission has varied nearly all modern awards to require that employers make termination payments within seven calendar days of the effective date of termination. Employers should be aware of the requirements for termination payments, which now appear in the majority of modern awards, and amend their employee exit procedures accordingly.
The Fair Work Commission recently made a significant decision on out-of-hours conduct in finding that ALDI had had a valid reason to dismiss an employee for throwing a full glass of beer over the heads of other employees at a work Christmas function. The case emphasises that while employers have a responsibility to maintain appropriate standards of behaviour at work functions where alcohol is present, employees also have an obligation to act within reasonable limits.
A recent Full Court of the Federal Court decision has set off alarm bells for employers that engage casual workers. The court found that a 'fly-in, fly-out' worker was not a casual employee despite being employed as one. Accordingly, the employee was entitled to annual leave – a benefit not otherwise available to casuals. This decision raises many significant questions and issues, going to the very nature of what makes casual employment relationships 'casual'.
While using terms like 'sweetheart' and 'babe' in the workplace may come from a friendly place, they may cause female staff to feel undervalued and could land individuals in hot water. It should go without saying that using terms like 'chicks' and 'babes' to refer to female colleagues and employees is inappropriate. But what about 'ladies', 'girls', 'sweetheart' or 'love'?
The Fair Work Commission has found that an HR manager who was made redundant after accusing his managing director of having a meth addiction was not unfairly dismissed. Employers should be aware that, when considering whether a redundancy is genuine, the onus will rest with them to prove that the job is no longer required to be performed by anyone.
Recent claims against politician Barnaby Joyce show that sometimes an internal investigation into workplace sexual harassment is not the best idea. When sexual harassment or misconduct claims are made against an individual in an organisation, the natural reflex may be to deal with complaints internally (especially if the person is senior or high profile). However, the benefits of engaging an independent investigator can outweigh the seeming advantage of being able to fully control the matter internally.
Employees will not come forward and report troubling behaviour if they fear retaliation. There are a number of steps that employers can take to create an atmosphere of trust and candour, which will help to reassure employees that they can, and should, voice any concerns.
The Fair Work Ombudsman (FWO) has persuaded the Federal Circuit Court that the underpayment of two migrant employees by a Tasmanian hotel was deliberate, exploitative and discriminatory in its first racial discrimination prosecution under Part 3-1 of the Fair Work Act. The decision demonstrates the FWO's appetite to use all of the tools at its disposal to pursue employers which take advantage of employees.
The Modern Slavery Bill 2018 (NSW) has received assent, making the Modern Slavery Act 2018 (NSW) the first of its kind in Australia. The act addresses the findings and recommendations in the report on the inquiry into human trafficking in New South Wales, which left little to the government's imagination about the prevalence of modern slavery in New South Wales and throughout Australia.
The line between employee and contractor continues to be blurred in the gig economy. To avoid litigation, companies must determine how to classify workers. The Fair Work Ombudsman has launched legal proceedings against a food delivery business, Foodora, on the basis that it treats its workers as independent contractors rather than employees. While the gig economy awaits the outcome of the case, what should employers be doing in the meantime?
Visual contracts, in which an employment agreement is conveyed partially or wholly by pictures, are now a thing – but what are their benefits and risks? In addition to concerns over certainty and variation, there are a number of key issues that businesses should consider before getting out the watercolours to update their employment agreements.
The Fair Work Commission's Expert Panel recently issued its 2017-2018 Annual Wage Review decision. Among other things, the panel decided that it was appropriate to adjust modern award minimum wages. From the first full pay period on or after 1 July 2018, minimum weekly wages will increase by 3.5%, with commensurate increases in hourly rates on the basis of a 38-hour week.
Navigating the payment of bonuses or incentive payments can be a tricky legal issue. One question that clients regularly ask is how discretionary is an employer's discretion when it comes to awarding a bonus or setting an employee's annual remuneration? As with most legal issues, there is no quick answer, but there are some tips from case law which can provide guidance.
The effects of Australia's ageing workforce are expected to be so pronounced that the government has budgeted for retraining. Between the tax cuts and promises to return to surplus, one of the centrepieces of the 2018 Budget was increased funding to assist Australia's so-called 'greying' population. To manage the changes to Australia's demographics, employers should start to prepare for an ageing workforce and develop strategies to manage and retain older workers.
Under new legislation, labour hire service providers in Queensland and South Australia must be licensed to provide labour hire services in order to avoid costly penalties. Businesses that engage labour hire service providers must also ensure that those providers are licensed. The new licensing schemes aim to regulate the provision of labour hire services and protect employees from exploitation by labour hire service providers.
In January 2018 rail workers employed by Sydney Trains and NSW Trains threatened a 24-hour stoppage and overtime bans. In a noteworthy decision for all employers, the Fair Work Commission ordered that all industrial action be suspended for six weeks, finding that the stoppage threatened to cause significant damage to the economy and endanger the welfare of the community and the people who rely on the network to get to work and school.
Managing a workplace investigation can be challenging at the best of times, particularly where the complainant or alleged offender proves difficult. Employers should consider a number of issues that can arise when managing absent participants or vexatious employees in the context of an investigation, as well as various tips on how to move forward successfully.
Employers should consider a number of legal issues when seeking to integrate apps with their existing systems. In some cases, it may be necessary to tailor apps to the business or to consider changes to instruments which govern the employment relationship. Employers should consider these issues and review existing industrial instruments and employment contracts for their compatibility with apps before implementing them in the workplace.
Most employers are aware of the stringent obligations in place to protect their employees' personal information. What might not be so clear are their obligations where law enforcement has requested this information to be shared with it. Knowing how to act in this situation is crucial. With the introduction of new data breach disclosure provisions, the standard for protecting an employee's personal information has never been higher (nor the punishments more severe).
Under new legislation, bargaining representatives – whether acting for employers, peak bodies or unions – must now disclose any personal financial benefits arising from enterprise agreements before they are voted on. The purpose of the disclosure documents is to help workers, employers and other stakeholders to track the revenue that an enterprise agreement will generate for unions and any other bargaining representative.
A growing workforce, strategic expansion or the end of a lease can force businesses to relocate their premises or employees. While such changes are often positive, relocation can pose a number of practical and legal issues that should be carefully negotiated in order to minimise disruption to the business and employees and reduce exposure to employment-related claims. Two recent unfair dismissal decisions provide useful guidance on business relocation.
The #metoo movement has helped to expose the prevalence of sexual harassment in society, particularly in the workplace. While the spotlight has been on individuals working in Hollywood's film and television industry, a 2012 survey by the Australian Human Rights Commission found that 25% of women in Australia had been sexually harassed at work. Three key tips can help employers to support gender equality, prevent sexual harassment in the workplace and ensure that no one is alienated in the process.
For 74 days in 2017 Carter Holt Harvey Woodproducts Australia Pty Ltd 'locked out' a number of its employees from the workplace during an industrial dispute. The Fair Work Commission was called on to resolve a dispute over whether employees who had been locked out during the industrial action were entitled to accrue annual leave and long service leave during the lock-out.
The Fair Work Commission recently rejected an Uber driver's claim of unfair dismissal on the grounds that he was an employee, upholding Uber's argument that he was instead an independent contractor. It stated that the fundamental elements of an employment relationship were absent from the relationship between the parties, as the driver was not required to perform work or provide services for the benefit of Uber, and Uber made no payments to the driver for the provision of any work or services.
The Fair Work Commission's bullying jurisdiction recently rejected an aged care worker's bullying claim against her supervisors and managers. The employer successfully argued that, at all times, the employee was subject to reasonable management action carried out in a reasonable manner. This case demonstrates that bullying is not always top-down; it can be horizontal or even bottom-up.