Employment & Benefits, Australia updates

Genuine redundancy or unfair dismissal – you do the meth
  • Australia
  • 14 November 2018

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.

Should employers use an external team when investigating sexual harassment?
  • Australia
  • 03 October 2018

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.

Understand your company's values to ensure that its culture thrives
  • Australia
  • 12 September 2018

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.

First racial discrimination prosecution from Fair Work Ombudsman
  • Australia
  • 01 August 2018

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.

What HR needs to know about modern slavery legislation
  • Australia
  • 25 July 2018

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.

Got the gig? Worker classification in gig economy heats up
  • Australia
  • 18 July 2018

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 and pitfalls of employment agreements
  • Australia
  • 27 June 2018

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.

More than 2 million Australians set for 3.5% wage increase – 2017-2018 Annual Wage Review
  • Australia
  • 20 June 2018

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 murky waters of employee bonuses and incentive payments
  • Australia
  • 13 June 2018

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.

How to manage the challenges of an ageing workforce
  • Australia
  • 06 June 2018

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.

New labour hire licensing schemes in Queensland and South Australia
  • Australia
  • 23 May 2018

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.

Fair Work Commission suspends protected industrial action by rail workers
  • Australia
  • 16 May 2018

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.

How to deal with difficult people in a workplace investigation
  • Australia
  • 02 May 2018

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.

There's an app for that: rise of apps in employment relationships
  • Australia
  • 25 April 2018

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.

If police come knocking: employer privacy obligations with requests for information
  • Australia
  • 18 April 2018

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).

New reporting requirements for bargaining representatives
  • Australia
  • 28 March 2018

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.

How to avoid business relocation blues
  • Australia
  • 21 March 2018

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.

A guide to handling #metoo in the workplace
  • Australia
  • 14 March 2018

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.

Employee entitlements: no leave accrued during lock-out
  • Australia
  • 28 February 2018

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.

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