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Mandating Covid-19 Vaccinations in the Workplace

With NSW slowly returning to a degree of normalcy following the recent Covid-19 ‘Delta’ outbreak, it is critical that employers do not become complacent about the ongoing risk of viral infection and continue to take all reasonable steps to ensure the health and safety of their employees and other persons in the workplace.

The preponderance of advice from medical and health experts is that the best long-term protection against Covid-19 infection (and the more serious forms of health issues arising from such infection) is to be fully vaccinated with an approved Covid-19 vaccine. [...]  READ MORE →

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GREATER SYDNEY’S 2021 LOCKDOWN: WILL BUSINESSES SINK OR SWIM?

By Anica Cunanan, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Greater Sydney is currently in a lockdown and has remained in the dark with respect to whether, and when businesses would receive some relief.

Last year, the Federal Government introduced the JobKeeper scheme to assist with keeping businesses afloat (including employees within those businesses) through of the payment of wage subsidies subject to certain criteria.

The Morrison and Berejiklian Governments have announced that NSW businesses will finally receive some relief as we enter the fourth week of lockdown in NSW. It is evident that regardless of whether lockdown is in fact extended past 30 July 2021, businesses have already experienced a substantial hit. Should lockdown continue to be extended, we may see plenty of businesses struggling to make it through this lockdown. [...]  READ MORE →

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New Laws to Stand Down Employees

New Stand Down Laws

From 9 April 2020 employers are able to utilise new stand down provisions arising from changes to the Fair Work Actin light of COVID-19. These changes are temporary and are currently stated to end on 28 September 2020.

 

Core Requirements

The new provisions enable employers to issue a “jobkeeper enabling stand down direction” to relevant employees where all of the following apply:

  • the direction was given after the commencement of the new stand down laws to not work on a day(s) on which the employee would usually work, or to work for a lesser period than the period which the employee would ordinarily work on a particular day(s), or to work a reduced number of hours (compared with the employee’s ordinary hours of work)
  • when the direction was given, the employer qualified for the jobkeeper scheme
  • the employee cannot be usefully employed for the employee’s normal days or hours during the stand down period because of changes to business attributable to the COVID‑19 pandemic or government initiatives to slow the transmission of COVID‑19
  • the implementation of the direction is safe having regard to (without limitation) the nature and spread of COVID‑19
  • the employer becomes entitled to one or more jobkeeper payments for the employee for a period that consists of or includes the jobkeeper enabling stand down period or for periods that, when considered together, consist of or include the jobkeeper enabling stand down period

Other Requirements 

Like most laws, there are exceptions, qualifications and additional rules that need to be met, and disputes can be referred to the Fair Work Commission. [...]  READ MORE →

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New – Variations to Casual/Part-Time Rules in Modern Awards

The Fair Work Commission has varied a number of Modern Awards to include additional provisions and protections for casual and part-time employees.

In summary of the Fair Work Commission’s decision:

  • the affected Awards include:
    • Fast Food Industry Award 2010
    • General Retail Industry Award 2010
    • Hair and Beauty Industry Award 2010
    • Hospitality Industry (General) Award 2010
    • Restaurant Industry Award 2010
    • Social, Community, Home Care and Disability Services Industry Award 2010
      •  [...]  READ MORE →

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    Fair Work Commission – Reconsideration of Fixed Term Contract Authority

    Fair Work Commission – Background and Facts

    The full bench of the Fair Work Commission has taken the rare and serious step of allowing for a reconsideration of a full bench authority on fixed-term contracts. The Fair Work Commission granted the Navitas English Pty Ltd employee leave to appeal a ruling on whether employees on fixed term or “outer-limited” contracts are dismissed when their terms expire.

    Fair Work Commission Decision:

    The Fair Work Commission:

    • concluded that it was in the public interest to grant the employee’s appeal and reconsider the well-established 2006 decision of Department of Justice v Lunn
    • suggested this was a matter of public interest because Lunn considers old unfair dismissal provisions under the Workplace Relations Act 1996 (Cth), and thus the applicability of the reasoning in Lunn as it applies to the Fair Work Act has not been previously analysed by the Full Bench
    • stated that in their view “the first ground of appeal raises issues of importance and general application in relation to the question of the approach that should be adopted by the Commission in determining whether there has been a termination of employment at the initiative of the employer, particularly in relation to employees who have been employed on a series of fixed term or outer limit contract”

    The decision is available for you to read at the following hyperlink:

    Mr Saeid Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 4092 (16 August 2017) [...]  READ MORE →

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    Employment Law – Ex-Employee Restraint Clause Unenforceable    

    Employment Law – Background

    The Victorian Court of Appeal reaffirmed a decision that an employer was unable to enforce a restraint clause against an employee. The accounting firm’s breach of an employment contract consequently ended its right to enforce a restraint clause against the accountant. The case highlights the importance of carefully assessing any differing views between the employee and employer in employment law.

    Employment Law – Facts

    In essence:

    • the employee-accountant signed an employment contract in 2012
    • the contract contained a restraint clause that operated for 12 months. Notably, the terms were found to be reasonable by judges in earlier cases
    • the accounting firm expanded its business over 2015-16
    • the accounting firm denied the accountant certain bonuses he believed he was entitled to
    • as a result, the accountant requested payment to which the employer refused
    • the accountant took a week’s leave. A few days after he returned, he informed the employer he considered the refusal to pay the bonuses as a repudiation of the employment contract
    • especially relevant, the account set up his own business. Consequently, the employer sought to enforce the restraint clause

    Employment Law – Decision

    The Victorian Court of Appeal:

    • concluded that the accountant-employee’s interpretation of the bonus clauses was correct
    • held that the organisational changes could not justify the refusal to pay hence he should have been paid the bonuses
    • found that in conclusion, the refusal to pay was a breach of the employment contract. Consequently, the right to enforce the restraint clause ended

    Employment Law – Tips for Employers

    Our Matthews Folbigg Workplace Solutions employment law team recommends employers: [...]  READ MORE →

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    Employment Law – Modern Awards Reductions

    Employment Law – Background

    In June this year, the Fair Work Commission (FWC) announced the reductions of public holiday penalty rates for the hospitality, retail, fast food and pharmacy sectors. The reductions were decided as part of the FWC’s four-yearly review of modern awards.

    As of 1 July 2017, public holiday penalty rates were reduced while Sunday rates will reduce over three to four years. Although the unions argued for the delay in reductions, the FWC agreed with employer organisations. As a result, the first transition step is smaller than later transitions. Furthermore, the retail and pharmacy sectors will have longer transition periods due to their reductions being more significant. [...]  READ MORE →

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    Employment Law – The Need for Proper Workplace Investigations

    Employment Law – Background

    Employment claims like bullying and unfair dismissal continually on the rise in employment law. Consequently, employers are increasingly required to take pro-active steps to investigate suspected workplace incidents and disputes before they lead to such claims.

    A workplace investigation is a formal investigative process into an alleged workplace incident or dispute and it may be necessary to undertake same even if the complainant objects to it (ie, because they only wish to make an informal complaint). [...]  READ MORE →

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    Employment Law – Redundancy Consultation

    Employment Law – Background

    Currently, there are no specific guidelines on how long employers should or must conduct redundancy consultations under a Modern Award.

    Different rules of course may apply to enterprise agreements, under company policies or in some cases under the terms of an employee’s employment agreement.

    We understand that employers may want to rush a business restructure in order to continue running the business, however, there are a few tips employers should consider to minimise any possible adverse effects. [...]  READ MORE →

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    Employment Law – s 457 Visa Entitlements

    Employment Law – Background

    The Australian Government announced the abolition of the Temporary Work (Skilled) visa (subclass 457 visa) in April 2017. They will be replaced with the Temporary Skill Shortage (TSS) visa in March 2018. Consequently, employment law questions have arisen regarding the entitlements afforded to such workers in this transition period.

    Common questions include:

    • Could the employee successfully claim unfair dismissal?
    • Is an employee on a 457 visa entitled to redundancy pay if there is no further work when the visa expires?

    Employment Law – The Fair Work Act 2009 (Cth)

    s386(2) provides that an employee is excluded from claiming unfair dismissal if:

    • the employee is employed on a contract;
    • for an unambiguous specified period of time; and
    • whose employment is terminated at the end of that specified period

    Employment Law – Case Decision

    A decision of the Full Bench of the (then) Australian Industrial Relations Commission held that a s457 visa can be used to specify the fixed time period of an employment contract. This is provided that the parties have a sufficiently proven understanding of the terms of the visa and the contract of employment. This understanding must therefore include the period of employment and most notably, the end date. [...]  READ MORE →

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    Employment Law – Incapacity Not a Refusal to Work

    Employment Law – Background

    The Fair Work Commission has criticised a company for misconstruing an employee’s extended absence on certified sick leave as a refusal to work.

    Most noteworthy, the HR team dismissed the mentally unwell supervisor via email.

    The decision highlights the importance of due process in the dismissal of employees while having regard to human dignity.

    Employment Law – Facts

    In essence:

    • the customer service supervisor was employed at Komatsu
    • the supervisor said he was “directed” to take sick leave in March 2015 due to “health and well-being”
    • he failed to meet his sales budget KPI’s. As a result, he was placed on a performance improvement plan in August 2015
    • the supervisor began experiencing mental health issues in March 2016. Consequently, he was taken off the performance improvement plan
    • furthermore, he experienced difficulties with his new manager which also contributed to his mental health problems
    • Komatsu encouraged the supervisor to participate in a return to work plan
    • additionally, Komatsu reconfigured its management structures to prevent the supervisor interacting with his previous manager
    • the supervisor was dismissed via email in November 2016

    Employment Law – Decision

    The Fair Work Commission:

    • held that the medical evidence confirmed the employee’s incapacity to work rather than his refusal to perform work
    • held there was no valid reason for the dismissal
    • underlined the need to establish the illness was not genuine in order to treat absence as a refusal to work
    • noted the mandatory opportunity for an employee to be provided with a ‘show cause’ meeting before any dismissal is made
    • stressed that dismissal via electronic means should be “strenuously avoided”
    • suggested Komatsu review its employee management practices
    • therefore ordered Komatsu to pay the supervisor $1,250 in compensation

    The decision is available for you to read through the hyperlink:

    John Finnegan v Komatsu Forklift Australia Pty Ltd [2017] FWC 2433 (10 May 2017) [...]  READ MORE →

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    Employment Law – FWC Slams Poor Agreement Drafting

    Employment Law – Background

    A poorly drafted enterprise agreement has been criticised by the Fair Work Commission (FWC). The case was brought by the Electrical Trades Union (ETU) and the Communications Union (CEPU) against electrical contractor Kentz Pty Ltd (Kentz) in dispute of a clause requiring the purchase of particular income protection products.

    The case was initially heard in February this year when Commissioner Michelle Bissett found “no ambiguity” in the wording of the contractual requirement to purchase income protection insurance. However, an appeal was permitted by the Commission because the decision was “attended with sufficient doubt” to permit a rehearing. The full bench of the FWC reaffirmed the earlier decision. Furthermore, it highlights the importance of clear drafting of enterprise agreements in employment law. [...]  READ MORE →