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Workplace Law – Record-Keeping Warning

Workplace Law – Background

The Fair Work Ombudsman has warned employers of the increasing importance of keeping records regarding the hours and wages of employees.

Employers have been continuously penalised for failing to meet their record-keeping obligations and legislation increasing penalties for employers is being funnelled through Parliament.

As the obligations of, and potential penalties for, employers continue to mount, employers need to be vigilant to prevent mistakes, underpayments and any other non-compliance. [...]  READ MORE →

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Employment Law – Drug Testing

Background

Finding in favour of the employer, the Fair Work Commission in M v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal dismissed the application of an employee who refused to supply a sample for a drug test.

Facts

In essence:

  • in February 2016, an employee at a coal mine was selected for a drug and alcohol test at the commencement of his shift
  • the tester found the first urine sample to be hotter than expected and the sample strip failed to record the temperature as it would’ve exceeded 38 degrees although the employee’s ear temperature was 36.4 degrees
  • as soon as the first urine sample cooled to 38 degrees, it was tested but did not provide a reading
  • according to the employer’s procedure, the first urine sample should have been discarded as it was too hot
  • the tester asked the employee for a second urine sample and asked whether or not there were any symptoms that could increase the temperature of the urine to which the employee denied
  • the second sample was 34 degrees and was quite turbid and cloudy similar to the first and also tested negative for drugs
  • the manager was contacted due to suspicions the sample was provided by another person and a third sample was requested
  • the employee initially agreed but became agitated and argumentative and refused knowing that refusal would be a breach of the employer’s drug and alcohol procedure
  • the employee was stood down and returned to work on 29 April 2016
  • on 30 June 2016 the employee was issued a final written warning regarding his refusal to provide the third urine sample
  • the employee applied to the Fair Work Commission to resolve the dispute in accordance with his employment contract and s739 of the Fair Work Act

Decision

The Fair Work Commission:

  • was satisfied the employer had a reasonable basis to request a further drug test ‘for cause’
  • this cause being to protect other employees from the risk of harm
  • confirmed the tester failed to adhere to the required drug testing procedure for the first sample and the second sample but did this not give rise to a right of the worker to refuse further testing
  • found it was not unreasonable for the employer to issue a final written warning
  • found it was not unreasonable for the employer to conduct further testing on the employee

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • consider this Fair Work Commission decision
  • seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
  • prepare a clear drug and alcohol testing employment law policy in compliance with employment laws (which an employment lawyer can advise on)
  • consider the need for the drug and alcohol testing employment law policy to meet the requirements of the relevant Australian Standard for drug and alcohol testing in the workplace (which an employment lawyer can advise on)
  • consider how the drug and alcohol testing employment law policy interacts with other employment law policies (such as work health and safety)
  • prepare or update new employment contracts inclusive of a drug and alcohol testing clause (which an employment lawyer can advise on)
  • train staff about the drug and alcohol testing employment law policy
  • fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
  • understand what employment laws apply at your workplace including Awards and enterprise agreements and whether they contain clauses relating to drug and alcohol testing (which an employment lawyer can advise
  • review your employment contracts and employment law policies at least once every 12 months to ensure they remain current with workplace practices and all employment laws

For More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →

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Workplace Law – Redundancies Not Genuine

Background (Workplace Law)

In the Fair Work Commission decision Paul Williams and Ors v Staples Pty Ltd, the Fair Work Commission reinstated four employees after finding their redundancies were not genuine under the Fair Work Act.

Facts
In essence:

  • 12 permanent full-time employees worked within a warehouse unit of the employer
  • the positions of these employees were made redundant which lead to the employment of all 12 ending
  • 4 of those employees disputed their redundancies
  • the employer based its decision on an increase in operating costs and a decrease in the volume of work
  • the employer informed its Joint Consultative Committee (JCC) as required by the consultation provisions of the relevant enterprise agreement (EA)
  • the employer used a selection matrix to assess employees and after two days informed the 12 employees of their redundancies
  • the employer argued the redundancies were genuine under the Fair Work Act because the 12 employees were not required on the basis of the increasing operating costs and decreasing work volume AND although expedited, the consultation requirements in the EA had been satisfied through meetings between the JCC and the employees AND redeployment of the employees elsewhere in the business was unreasonable as they lacked the necessary qualifications or skills
  • the 4 employees argued their dismissals were unfair because the consultation provisions under the EA were not satisfied, redeployment options were not properly explored by the employer AND the opportunity to challenge the redundancies was not afforded to them

Decision
The Fair Work Commission:

  • found the redundancies were not genuine
  • found their dismissals were unjust, entirely unreasonable and harsh
  • held the employer had breached the consultation provisions of its own EA and the redeployment requirements stipulated in the Fair Work Act
  • stated that such failure was so ‘significantly non-compliant as to be grossly deficient’
  • held that due to the expedited process, the employees were deprived of a chance to provide their views or discuss ways of mitigating their impending redundancies
  • stated that adding to the lack of transparency and accountability, the employees were not informed about the composition or application of the selection matrix and were deprived of the opportunity to review or challenge the selection matrix
  • held the employer had failed to properly examine redeployment options

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this Fair Work Commission decision
  • seek the assistance of an employment law specialist to understand the impacts of this Fair Work Commission decision
  • ensure compliance with all employment laws including Fair Work Commission decisions, Awards and enterprise agreements
  • fairly, consistently and lawfully apply redundancy rules and obligations
  • understand what employment laws apply at your workplace including Awards and enterprise agreements
  • be aware that penalties can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)
  • be aware damages can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)

More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →

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Employment Law – Rates for Owner-Drivers

Summary

After 3 years of debate and conciliation:

  • a revised General Carriers Contract Determination (GCCD) was handed down by the NSW Industrial Relations Commission, finalising new transport industry rates and conditions under employment law
  • this follows an interim decision in April 2016 to “provide fair and reasonable conditions for owner-drivers and contractors”, updating and geographically expanding ‘contracts of carriage’ which were reviewed for the first time since 1984
  • while the GCCD previously applied to Greater Sydney and Cumberland, it has now been expanded to cover a new freight corridor for single trips commencing in Sydney and finishing close to either Wollongong or Newcastle
  • the GCCD also now covers areas such as refrigerated transport and furniture trucks, the ability for employees to negotiate guaranteed hours with employers and a 2.5% increase in standing rates from April 2017
  • a new comprehensive employment law rate schedule is to be phased in over a number of years from 2019
  • the GCCD applies to sole traders, companies and family businesses when family members are driving
  • owner drivers in other sectors (such as concrete and car carriers, couriers, tip trucks and quarries) have their own separate determinations
  • the GCCD does not apply to livestock and most primary produce carriers

Commentary

The Transport Workers Union NSW branch secretary Richard Olsen said the new determination under employment law provides fair rates and conditions for drivers, enabling them to maintain their vehicles, keep their businesses going and pay themselves a wage.

Commissioner Newall commented, in handing down the decision, that the increased scope of the determination was conservative, providing fair and reasonable arrangements for both principal contractors and contract carriers, but windfalls for none. [...]  READ MORE →

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Employment Law – Brothel to Pay Employee $170,000

Background
An infamous brothel that was once listed on the ASX (and voted Australia’s best brothel 18 times) and its operator have lost a case against a dismissed employee and have been ordered to pay more than $170,000 in penalties and compensation.

Facts
In essence:

  • the employee was a receptionist carrying out administrative duties on a permanent part-time arrangement
  • the employer proposed a change in her workplace arrangements to casual employment
  • the employee refused to accept the proposed changes
  • the receptionist’s employment was terminated

Decision
The court:

  • rebuked the employer for its conduct, saying “the actions of the employer were at best ‘ham fisted’ and at worst ‘high handed’, showing no regard for the needs of the employee
  • commented that due to the need to support a child, the receptionist relied on the certainty of a permanent employment arrangement and although her hourly rate was above the award rate, she was ‘nonetheless a low income earner’
  • reproached the company for its choice of staff appointments and found ‘no evidence of contrition or corrective action [by Daily Planet and its operator]’ and included the need for deterrence in the determination of the payout
  • ordered $62,700 in penalties against the employer and $12,540 in penalties against its operator
  • held the Clerks – Private Sector Award 2010 applied to the receptionist as she ‘was employed to carry out administrative duties and did not engage in sex work’
  • assessed damages at $92,411.37
  • assessed outstanding superannuation at $5,789.89
  • ordered the penalties be paid to the employee instead of into consolidated revenue

Tips for Employers

Our Matthews Folbigg Workplace Solutions employment law team recommends employers:

  • review this court decision
  • seek the assistance of an employment lawyer to understand the impacts of this court decision
  • ensure compliance with all employment laws including Fair Work Commission decisions, court decisions, Awards and enterprise agreements
  • understand what employment laws apply at your workplace including Awards and enterprise agreements
  • penalties can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)
  • damages can apply for breaches of employment laws including Awards and enterprise agreements (which an employment lawyer can advise on)

More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers. [...]  READ MORE →

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Adverse Action Claim Dismissed

The Federal Circuit Court recently dismissed an employment law adverse action claim, in which an employee alleged her dismissal was related to her workplace injuries and a bullying complaint.

Background

  • The employee was working as a microbiologist in a medical laboratory. She sustained injury to her neck, due to the posture in which it was necessary for her to carry out her duties. She went on sick leave from September 2013 – February 2014, returning on light duties. Her workers compensation claim was accepted.
    •  [...]  READ MORE →

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    Restraint injunction granted against law firm partners

    Background

    Eight partners from a top-tier law firm in Sydney were (temporarily) prevented from moving to another rival law firm after ‘retiring’ from their old law firm by virtue of (some of) the restraints that they had entered into.

    Decision

    In a verdict granting an injunction in respect of the restraint provisions that was sought by the old law firm, the court:

    • upheld the “detailed and extensive protections offered” by the partnership agreement – in particular restraint clauses concerning:
    • transfer of work to the new law firm
    • solicitation of other lawyers from the old firm
    • rendering of services to the old firm’s current and related clients
    • acknowledged the strength of the eight partners reasoning in relation a number of subsequent restraint clauses which they argued were void for being unreasonable restraints of trade
    • found it difficult to see how a refusal to enforce the disputed restraint clauses could operate to the disadvantage of the old firm given the protections provided by the other restraint clauses
    • observed the likely adverse, and in some cases significant, consequences for the outgoing partners, should the disputed restraint clauses be upheld
    • stated that although the consequences “must have been apparent” to the “commercially and legally sophisticated” outgoing partners (particularly given their co-ordinated departure) the balance of convenience did not favour the enforcement of the disputed restraint clauses
    • refrained from deciding disputed questions of law in circumstances where the injunction application was brought on urgently for hearing (these will be determined in substantive proceedings at a later date)

    Tips for Employers

    Although the restraints in question related to a partnership arrangement, fundamentally many of the concepts have direct application to employment law, thus employers should: [...]  READ MORE →

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    FWO flags review of abandonment clauses in Awards

    The Fair Work Commission has indicated that it will conduct a review of abandonment clauses contained in six modern awards, following the decision of the Full Bench of the Fair Work Commission in Benias v Iplex Pipelines Australia Pty Ltd [2017] FWCFB 38.

    In the decision, the Full Bench overturned the decision of Senior Deputy President O’Callaghan ([2016] FWC 6624), who dismissed an employee’s unfair dismissal claim on the basis that the termination was not at the initiative of the employer.

    The facts

    Section 386 of the Fair Work Act 2009 defines a dismissal as a termination of employment ‘on the employer’s initiative’. The Act provides that where an employee’s employment is not terminated on the employer’s initiative (i.e. a voluntary resignation), that employee is unable to pursue a remedy for Unfair Dismissal. [...]  READ MORE →

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    Fair Work Commission – Penalty Rates Decision

    Background

    The:

    • four-yearly review of employment law modern awards has been conducted by the Full Bench of the Fair Work Commission
    • Fair Work Commission received over 5,900 submissions, and heard from 143 lay and expert witnesses over 39 days of hearing throughout 2015 and 2016
    • purpose of the review was to ensure that the modern awards continue to achieve their objective to provide ‘a fair and relevant minimum safety net’ and, of course, remain consistent with relevant workplace laws

    Rationale for Penalty Rates

    With respect to penalty rates:

    • the original rationale for penalty rates was to compensate employees for working outside ‘normal hours’ and to deter employers from scheduling work outside these hours
    • however, this rationale has shifted in more modern times and the Fair Work Commission has concluded that deterrence is no longer an objective of the modern awards in relation to weekend and holiday penalty rates
    • this means the primary objective of the modern awards is now compensation of employees
    • the hospitality and retail sectors made applications to vary (and ultimately reduce) the penalty rate provisions in relation to weekend and public holiday rates
    • employers have been pushing for these changes, with many asserting that they have had to reduce labour costs on Sundays and public holidays by restricting trading hours and limiting staff levels, leading to restrictions on the type and range of services provided

    Affected Awards

    The employment law decision of the Fair Work Commission relates only to businesses under the following modern awards:

    • Fast Food Industry Award 2010 (Fast Food Award)
    • General Retail Industry Award 2010 (Retail Award)
    • Hospitality Industry (General) Award 2010 (Hospitality Award)
    • Pharmacy Industry Award 2010 (Pharmacy Award)
    • Registered and Licensed Clubs Award 2010 (Clubs Award)
    • Restaurant Industry Award 2010 (Restaurant Award)

    Weekend Rates

    In respect of the weekend rates aspect of the Fair Work Commission decision:

    • they reviewed Saturday rates for the Fast Food, Hospitality, Restaurant, and Retail Awards and were satisfied that the rates achieved the modern award’s objective and did provide a fair and minimum safety net
    • the Clubs and Pharmacy Awards are subject to further consideration in this regard
    • in relation to Sunday rates, the Fair Work Commission decided that the Fast Food, Hospitality, Retail and Pharmacy Awards did not provide a fair and relevant minimum safety net consistent with workplace law
    • except for the Fast Food Award, Sunday rates for these awards were not simply reduced to Saturday rates
    • it was recognised that there remains a higher level of disutility in working Sundays rather than Saturdays, although the extent of that disutility is much less than in times past and hence some reduction is warranted
    • for the Fast Food Award, Sunday rates were levelled with Saturday rates for casual, part-time and full-time employees but career employees went unscathed
    • the Fair Work Commission has expressed a provisional view that the reductions should take place with a series of annual adjustments on 1 July each year (starting 1 July 2017) in conjunction with any increases to modern award minimum wages from Annual Wage Review decisions
    • casual employees can rest at ease knowing that their applicable rates will (currently) remain an extra 25% over other employees

    Early/Late Loading rates

    In respect of the early/late loading rates aspect of the Fair Work Commission decision:

    • some provisions concerning early morning/late night work were changed in the Restaurant and Fast Food Awards, winding back the clock from 7am to 6am as most cafes open at that time in capital cities
    • work performed between midnight and 6am will attract a 15% additional payment
    • these employment law changes will be in effect as of late March 2017
    • the Fair Work Commission was not persuaded to make changes proposed to Pharmacy Award, Clubs Award and Restaurant Award loadings

    Public Holiday Rates

    In respect of the public holiday rates aspect of the Fair Work Commission decision: [...]  READ MORE →

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    Misuse of Confidential Information – Evidence relied upon after the fact

    In the recent decision of Finemore v CMIB Insurance Services Pty Limited [2016] FWC 8517, an employer successfully relied upon evidence of misuse of its confidential information discovered following the termination of employment, in order to defend itself from an unfair dismissal claim.

    The Facts

    The Applicant had been employed by the Respondent (a small business employer) for approximately six years, most recently in the role of Account Executive. The Applicant was employed under a written employment contract containing several post-employment obligations including an obligation to preserve the Respondent’s confidential information [...]  READ MORE →

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    Bullying Appeal Win for Employee as Bench Overturns Commissioner Ruling Based On Jurisdiction

    The full bench of the Fair Work Commission has remitted an anti-bullying case back to Commissioner Hunt to re-determine whether or not Trade and Investment Queensland is a constitutional corporation within the meaning of s 789FD of the Fair Work Act.

    The appeal was granted on public interest grounds by Deputy Presidents Val Gostencnik and John Kovacic and Commissioner Paula Spencer in conjunction with other errors in the decision.

    Commissioner Hunt held that TIQ’s activities did not amount to trading and at most, were not a ‘substantial consideration’ despite charging rent to another entity to occupy premises. A sub-tenancy is considered by the full bench to be ‘prima facie commercial in nature and carried on by the TIQ with a view to earning revenue’. [...]  READ MORE →

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    Employer too slow to take action on employee misconduct

    Wong v Taitung Australia Pty Ltd [2016][1] is a pertinent reminder for employers to act promptly on allegations of employee misconduct. This case involved the Fair Work Commission finding that a delivery driver, who had been allegedly involved in theft, was unfairly dismissed because his termination coincided with his complaints about workplace safety.

    The driver was allowed to continue working despite theft allegations. The company failed to take any action until months later, when the driver complained of various health and safety issues, including that his truck was roadworthy and faulty. It was only after these complaints that he was suspended from duty for 24 hours and was told about the allegations of theft. Despite denying these allegations, he was summarily dismissed on the basis of the employer’s suspicion of the serious misconduct. [...]  READ MORE →