Latest updates

The untouchable employee and dangers of playing office politics
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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?
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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?
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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?
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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'?

Genuine redundancy or unfair dismissal – you do the meth
Lander & Rogers
  • Employment & Benefits
  • 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?
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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.

Subpoenas in aid of arbitration
  • Arbitration & ADR
  • Australia
  • 02 August 2018

The Supreme Court of Victoria recently approved the issuance of subpoenas compelling two witnesses to attend before an arbitral tribunal seated in Melbourne and give evidence pursuant to Section 23 of the International Arbitration Act. The application arose out of a long-running dispute concerning the sale of a food business. The court's judgment provides useful guidance on the circumstances in which it will issue subpoenas in aid of arbitration as well as the meaning of Section 23(4) of the act.

First racial discrimination prosecution from Fair Work Ombudsman
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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
Lander & Rogers
  • Employment & Benefits
  • 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.