Workplace Solutions

It is not commonly known that the Fair Work Act 2009 contains a section that operates similar to the accessorial liability provisions in the Corporations Act.

Company directors, executives and human resource managers should be aware that they could be exposed to personal liability for their involvement in breaches of the Fair Work Act that are committed during their management of the company.

To date, there are few cases where this section has been invoked. However, we are seeing more employment law cases where the Fair Work Ombudsman has made use of the section. [...]  READ MORE →

With the commencement of a new financial year, it brings with it important changes to employment law and new rates which will apply from 1 July 2016.

NEW! High Income Threshold (HIT)

With the HIT:

• it increases to $138,900
• it impacts:

(a)       who can make a claim for unfair dismissal under employment law (for those not covered by a Modern Award or to whom an enterprise agreement does not apply)

(b)       the maximum amount of compensation payable in an unfair dismissal claim under employment law

(c)       those on a ‘guarantee of annual earnings’ (a Modern Award does not apply to an employee whilstever this guarantee is in place provided it continues to meet the relevant employment law requirements) [...]  READ MORE →

Australia’s 1.86 million employees reliant on the minimum wage can look forward to a 2.4 per cent pay increase in respect of their first full pay period on or after 1 July 2016.

Decision

The Fair Work Commission’s Expert Panel handed down its decision on 31 May 2016 in the Annual Wage Review case with the increase set as follows:

• the national minimum wage will rise by 2.4 per cent to $672.70 per week or $17.70 per hour

• minimum wages in all modern awards will also increase by 2.4 per cent (with weekly wages rounded to the nearest 10 cents)

What should employers do?

Employers should:

• review – over the next few weeks employers are strongly encouraged to review each employee’s pay rate to ensure they are ready for the increase on 1 July 2016

• absorb or increase – decide which employees need a pay rise to meet the minimum pay rate obligations set by workplace law and decide whether part or all of any increase can be legally absorbed into current rates of pay

• systems – ensure payroll systems are updated and ready to pass on the increased wages from the first full pay period on or after 1 July 2016

• salaried staff – ensure that an employee’s salary is still sufficient to cover the employee’s minimum entitlements under the increased national minimum wage (or an increased modern award/enterprise agreement wage if applicable)

• additional costs – be mindful that as pay rates rise, so can other items such as modern award allowances, the accrued value of leave entitlements, superannuation obligations, anything calculated by reference to wage rates such as payroll tax and workers compensation premiums – employers need to understand what they can and cannot do to address these consequential costs

• penalties – note that workplace law penalties of up to $54,000 per contravention apply to employers who fail to comply with minimum wage obligations (and those involved in any contravention can also face penalties)

Assistance

If you require any assistance or advice on employment law matters such as employment contracts or you require an immigration lawyer Sydney, please contact a member of the Matthews Folbigg Workplace Solutions team including: [...]  READ MORE →

The Federal Circuit Court (FCC) has fined an employee who failed to give notice of his resignation in accordance with modern award provisions.

Facts

The employee:

• was required to give two weeks’ notice under the applicable award and eight weeks’ notice under his employment contract if he wished to resign
• resigned without providing the notice required by his employment contract after he had just completed training in the United States at the expense of the employer

Result

The FCC held that:

• the employee breached workplace law, under section 45 of the Fair Work Act, by contravening a term of a modern award
• the FCC issued a fine of $2,250 to the employee for this breach of workplace law, to be paid to the Commonwealth

Reasons

Key reasons for the decision were:

• there was a need for specific and general deterrence
• employees need to understand that they cannot flout the conditions of their employment contract
• the penalty needed to demonstrate that the Fair Work Act is a “two-way street” and that breaches of workplace law, damaging an employer, will also be met with penalties

Tips for Employers

The decision highlights the need for employers to:

• ensure compliance with enterprise agreements, awards and workplace law (as well as any other employment contract obligations)
• be mindful that penalties for breach of an enterprise agreement or award can apply

More Information

If you have any questions in relation to this article or if you would like advice from an immigration lawyer Sydney or you would like advice about the terms of a contract of employment, please feel free to speak with or email one of our specialist employment lawyers on (02) 9635 7966 or info@matthewsfolbigg.com.au [...]  READ MORE →

The Fair Work Commission has shown it means business when it comes to stopping bullying in the workplace.

Fair Work Commission Orders to Stop Bullying

In September 2014:

• the Fair Work Commission made its first orders under the new anti-bullying regime
• the orders restricted a staff member from contacting or speaking with a fellow employee unless in an emergency or while in the presence of others

Fair Work Commission Stance on Bullying

In respect of another matter, the Fair Work Commission made the following orders/comments on 30 July 2015:

• to stop workplace bullying and has not only banned a manager of a Melbourne company from contacting two employees, but has also banned the manager from the workplace for a period of 2 years
• the company itself was found to have inadequate anti-bullying measures in place
• the company was ordered to provide anti-bullying training to all employees
• the company was ordered to update their anti-bullying policy to set out appropriate future workplace behaviour that ensures compliance with anti-bullying legislation

Tips for Employers

The decisions of the Fair Work Commission highlights the need for employers to:

• introduce bullying policies and workplace law
• train employees in bullying policies
• regularly review and revise bullying policies and ensure they are in line with workplace law
• ensure consistency between bullying policies and any other relevant policies such as grievance policies and work, health and safety policies

More Information

If you have any questions in relation to this article or if you would like advice in other employment law matters such as your employer obligations under the Fair Work Act, please feel free to speak with or email one of our specialist employment lawyers on (02) 9635 7966 or info@matthewsfolbigg.com.au [...]  READ MORE →

Fair Work Act Changes

In November 2015, laws were passed that amended the Fair Work Act  and below is a recap for employers of the main changes as these workplace laws are now in operation.

Greenfields Agreement – Employer Rights

These are enterprise agreements that are made in relation to new enterprises (ie, before employees are actually employed) and are typically negotiated between the employer and relevant trade unions.

NEW:    the Fair Work Act now provides employers with relief where an agreement with unions cannot be reached – after six months of negotiation, employers can go directly to the Fair Work Commission to have their Greenfields Agreement approved [...]  READ MORE →

The dismissal of an employee who failed to attend work because she was attending the Australian Open has been found to be fair and reasonable, under workplace law, by the Fair Work Commission.

Facts

Key facts:

• the employee’s annual leave application was rejected because she did not have any accrued annual leave entitlements
• the employee was directed in a meeting and in writing to attend work between 19 and 30 January 2015 – she did not attend work during this time as she was at the Australian Open
• following a meeting on 2 February 2015, the employee was provided with a “show cause” letter, to which she responded, and her employment was subsequently terminated
• the employee claimed that the dismissal was disproportionate to her conduct

Result

The Fair Work Commission held that:

• the dismissal was not unfair under workplace law – employee rights had not been breached
• there was a valid reason for the termination of the employee’s employment

Reasons

The Fair Work Commission based its decision on the following reasons:

• the employee failed to comply with a lawful and reasonable direction from her employer
• the employee was in a position to make an application for annual leave much earlier – she booked the trip in October 2014 but did not apply for leave until 16 December 2014
• leave without pay is at the discretion of the employer and it was not mentioned in the employee’s employment contract
• the employee was aware as early as September 2014 that she had exhausted her accrued annual leave
• the employee “wilfully and deliberately flouted an essential contractual condition to attend work” which amounted to serious misconduct
• the employer provided procedural fairness to the employee and its actions, prior to and subsequent to the misconduct, were fair and reasonable

Tips for Employers

The decision highlights the need for employers to:

• ensure procedural fairness is applied where it is alleged an employee has engaged in misconduct
• seek employment law advice as to whether an employee’s actions warrant dismissal or some other form of disciplinary response
• advise employees when their accrued entitlements have been exhausted if that is the basis for the refusal of a request for annual leave
• check employment contracts, awards, enterprise agreements and relevant policies and procedures as to the circumstances, if any, when an employee can take or request unpaid annual leave or annual leave in advance of accrual

More Information

If you have any questions in relation to this article or if you would like any assistance with other workplace law matters or if you need advice about employment contracts, please feel free to speak with or email one of our specialist employment lawyers on (02) 9635 7966 or info@matthewsfolbigg.com.au [...]  READ MORE →

Employee Rights

The employer, in the emergency services sector, alleged a warning was warranted for the following behaviour by an employee:

• removing a splinter in a way contrary to standard practice
• acting disrespectfully to another employee
• slamming a refrigerator door and walking out of a room
• remaining at work while unwell
• climbing on top of a fire truck
• acting inappropriately during a team debrief
• incorrect response to a question on eye treatment in a training session
• removing a statistic from the website without prior authority

Result

The Fair Work Commission held that:

• given the person was a long standing employee with an otherwise unblemished record, the nature of the above incidents appeared to be trivial and some completely unsubstantiated
• a concerted attempt was made to target the employee which caused her stress and anxiety
• it was appropriate to question managerial prerogative
• the written warning was withdrawn
• mention of the written warning was to be removed from the employee’s personnel file

Tips for Employers

The decision highlights the need for employers to:

• ensure any formal disciplinary action taken against an employee for conduct and/or performance is sufficiently substantiated, fair, and in accordance with proper procedures and consistent with workplace law
• ensure that employees are aware of relevant policies and procedures, particularly those relating to any new or revised policies and procedures and include reference to the requirement to comply with policies and procedures in employment contracts
• regularly review and update policies as your practices may change over time as can case law, legislation and what is considered to be ‘best practice’ in workplace law
• consider alternatives to a warning such as education, training and counseling and if appropriate, take employment  law advice from a workplace lawyer
• train management staff in the handling of situations of poor performance and/or conduct that could, if they remain uncorrected, lead to employment separation
• ensure similar situations are treated like-for-like and that reasonable employee rights are considered
• be aware of the Fair Work Commissions’s ability to arbitrate on disciplinary procedures that are contained in awards or enterprise agreements

More Information

If you have any questions in relation to this article or if you would like any assistance in other employment law matters including employment contracts or if you require an immigration lawyer in Sydney, please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers about your employment law issues. [...]  READ MORE →

Workplace Law – Sexual Harassment

The employee, who was employed as a construction worker, alleged she was being sexually harassed by several of her fellow workers including by way of the following:

• showing her pornographic material
• making sexual comments towards her and inappropriately touching her
• one worker threatening to follow her home, rip her clothes off and rape her
• receiving an obscene phone call

Further, when the employee reported the harassment to a person who she believed to be responsible for compliance with workplace law in the company, the person allegedly asked her to come to his home to have a drink and talk about it.

Result

It was held that:

• the employer had failed to provide a safe working environment (work health and safety) in contravention of workplace law
• the employer admitted negligence
• the employee had subsequently suffered a major depressive disorder and post-traumatic stress disorder
• the psychiatric condition was permanently disabling
• the behaviour of the fellow workers constituted sexual harassment and contravened the complainant’s employee rights

Damages

The employee was awarded damages totaling $1,360,027 as follows: [...]  READ MORE →

In the decision of Romero v Farstad Shipping (Indian Pacific) Pty Ltd it was found that, under employment law, a workplace policy did form part of an employee’s employment contract.

Central Issue
Ms Romero argued her employer’s:

• Workplace Harassment and Discrimination Policy formed part of her employment contract under employment law
• failure to comply with the Workplace Policy amounted to a breach of the employment contract under employment law

Appeal

On appeal the Full Federal Court held:

• failure to comply with the Workplace Policy amounted to a breach of the employment contract under employment law
• the Workplace Policy formed part of her employment contract under employment law
• as there was non-compliance this was a breach of the employment contract under employment lawWhat went wrong? 

The difficulties for Farstad were:

• the language of the Workplace Policy was not merely directive or aspirational, but imposed mutual obligations on the employee and the employer
• the employee’s duty to comply with Workplace Policies was referred to in her letter of offer of employment
• the benefit of the Workplace Policy was a benefit that was consistent with the statutory and employment contract obligations of the employee and the employer
• there was regular reinforcement of the Workplace Policy and other company policies on an ongoing basis
• the Workplace Policy was the subject of an education program that employees were required to undertake at the time of employment
• the employee was required to sign the Workplace Policy
• there was no disclaimer stating that the Workplace Policy did not form part of the employment contract

Tips for Employers

Although some of the above points would apply as good HR practice, it would still be wise for employers to try and distance the possibility of a Workplace Policy being found to be contractual in nature by: [...]  READ MORE →

Now and Then

2009       we conducted a benchmark survey to gauge the matters of “most concern” to businesses in anticipation of the start of the National Employment Standards (NES)

2014       our survey reflected on the impact of the NES as well as employer concerns and perceptions of subsequent IR changes both made and proposed

Review of the NES … Perceptions NOT Reality

2009 – Perceptions:

• employers surveyed expressed the most concern about the NES provisions relating to ‘flexible work arrangements’ and ‘parental leave’
• this was despite the majority of respondents indicating they already had flexible work policies in place which employees efficiently utilised
• respondents pointed to challenges such as lack of technology, impact on productivity and workplace culture and implementing new and innovative ways of utilising their employees and resources to accommodate flexible working arrangements

2014 – Reality:

• time has shown that the NES has not had a significant impact on the business operations
• most organisations have maintained existing flexible work arrangements and have not found they impacted negatively on productivity or workplace culture
• although a request for flexible work arrangements can be refused on “reasonable business grounds”, employers appear to be working with employees to implement suitable solutions rather than refusing requests

Findings

Key 2014 survey results:

• 59% – the NES has not had a significant impact on their organisation
• 34% – flexible working arrangements remain the same post the NES
• 86% – do not perceive there has been a decrease in productivity
• 63% – do not perceive there has been any negative impact on workplace culture
• 72% – have not experienced issues with employees working offsite

Workplace bullying laws … big impact yet to come? [...]  READ MORE →

Changes to the Fair Work Act provide further motivation for employers to ensure their staff know what bullying is – and what it’s not. 

Starting on 1 January 2014, workers who believe they have been bullied at work will be able to apply directly to the Fair Work Commission for assistance under employment law.

The Fair Work Commission must start to deal with the matter within 14 days of receiving the complaint by informing itself of the matter, holding a conference, or holding a hearing. [...]  READ MORE →