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Fiery fight over Metropolitan Fire and Emergency Services Board's latest agreement
  • Employment & Immigration
  • Australia
  • 15 January 2020

In 2019 the Metropolitan Fire and Emergency Services Board and the United Firefighters Union of Australia Operational Staff Agreement 2016 was approved. The approval of the agreement raised a number of issues, including whether Section 195 of the Fair Work Act 2009 (Cth), which prohibits the approval of enterprise agreements containing discriminatory terms, includes a prohibition on indirect as well as direct discrimination.

Poorly managed performance improvement plans: how to avoid adverse action claims
  • Employment & Immigration
  • Australia
  • 08 January 2020

In an ironic turn of events, a poorly implemented and followed performance improvement plan (PIP) resulted in an employer having to pay A$205,342 to an employee who had brought a successful adverse action claim in the Federal Circuit Court. The court held that the employer had contravened the general provisions under the Fair Work Act 2009. This article provides practical tips on how employers can avoid a PIP resulting in an adverse action claim.

When disaster strikes: managing employees following a natural disaster
  • Employment & Immigration
  • Australia
  • 18 December 2019

The current fires in New South Wales and Queensland are a timely reminder for employers to review their business arrangements for responding to such crises, particularly in workforce management, and ensuring that they have a plan in place to deal with the aftermath. This article provides some guidance on the kinds of things that employers need to think about following a natural disaster.

Consultation: is a dismissal harsh, unjust or unreasonable without it?
  • Employment & Immigration
  • Australia
  • 06 November 2019

Does an employee have to be consulted, in accordance with an applicable industrial instrument, about their impending termination? According to a recent decision by the Fair Work Commission, the answer is not necessarily. The decision highlights that there are certain circumstances where an employer may be safe from an unfair dismissal claim if it proceeds to termination without consulting the employee. However, these situations are highly exceptional and should be approached with caution.

It's official: all permanent employees are entitled to 10 working days' paid sick leave... for now
  • Employment & Immigration
  • Australia
  • 23 October 2019

The Fair Work Ombudsman recently released advice that all permanent employees are entitled to 10 days of paid personal/carer's leave for each year of their employment. This is a major departure from calculating personal/carer's leave entitlements in hours, which is the approach currently taken by most employers and employees. However, the ombudsman's advice is based on a recent court decision which may not stand.

Freedom of expression versus work obligations
  • Employment & Immigration
  • Australia
  • 16 October 2019

The Federal Court recently upheld an employee's dismissal, which had occurred after he criticised his law firm's clients in an opinion piece in two newspapers. While the court's decision is not a green light for employers to terminate employees who express political views, it is a reminder for employers and employees that a failure to follow a lawful and reasonable direction may justify termination of employment (depending on the circumstances of the case).

Get your hands off my… data! Employer's request for biometric data deemed unlawful
  • Employment & Immigration
  • Australia
  • 07 August 2019

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.

Court rules that industrial action must be taken by parties to employment relationship
  • Employment & Immigration
  • Australia
  • 31 July 2019

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.

The untouchable employee and dangers of playing office politics
  • Employment & Immigration
  • Australia
  • 15 May 2019

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.

#MeToo inspires employees to act: Fair Work Commission upholds dismissal of Coles manager
  • Employment & Immigration
  • Australia
  • 17 April 2019

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.

Worker sacked for taking Nurofen Plus – how does your drug and alcohol policy stack up?
  • Employment & Immigration
  • Australia
  • 10 April 2019

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.

How to nurture an ageing workforce
  • Employment & Immigration
  • Australia
  • 03 April 2019

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?

Do employees have the right to remain silent?
  • Employment & Immigration
  • Australia
  • 06 March 2019

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.

Overdue diligence: recent officer prosecutions
  • Employment & Immigration
  • Australia
  • 27 February 2019

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.

Fair Work Act changes: end of 2018 and for 2019
  • Employment & Immigration
  • Australia
  • 02 January 2019

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.

Crucial work health and safety lessons from Klooger ruling
  • Employment & Immigration
  • Australia
  • 19 December 2018

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.

Employee termination payments: how long do you have to pay?
  • Employment & Immigration
  • Australia
  • 12 December 2018

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.

Christmas party scandal: Fair Work Commission upholds dismissal of glass-throwing employee
  • Employment & Immigration
  • Australia
  • 05 December 2018

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.

What happened to casual employment? A look at WorkPac v Skene
  • Employment & Immigration
  • Australia
  • 28 November 2018

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'.

Sweetheart, let's talk about gendered language
  • Employment & Immigration
  • Australia
  • 21 November 2018

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'?

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