Articles
With the Fair Work Act 2009 (Cth) (the FW Act) nearing its tenth anniversary in April, now is an apt time to reflect on how the landscape of industrial law has changed both because of the Act, and because of changes to it over time. We have previously discussed how the FW Act, in this age of rapid technological change, has led to the rise of the non-lawyer industrial advocate (see related article here). In more recent years, however, we have seen the rise of another form of industrial advocate which has generated much anguish amongst registered unions and caused any number of…
Read MoreWorkers’ compensation legislation can be complicated and confusing, even to experts, and the recent Queensland case of Mandep Sarkaria v Workers’ Compensation Regulator [2019] ICQ 001 aptly demonstrates just how technically bewildering this legislation can be. In this case, the Industrial Court of Queensland held that Ms Sarkaria was “temporarily absent from her place of employment” on an “ordinary recess” when she fell off a ladder and broke her leg, and thereby entitled to workers’ compensation. The catch? She broke her leg in her employer’s storeroom – so how was she “absent” and how was she on an “ordinary recess”? What…
Read MoreIn the first charge of reckless conduct to be successfully tried under the harmonised work health and safety legislation, a director of a Queensland roofing company has been sentenced to 12 months imprisonment for his contribution to the fatality of a 62-year-old worker. Charges against the director were upheld in a majority verdict by the jury, after hearing that the director had been motivated by money in his decision not to take reasonably practicable safety measures. This decision represents a significant development in the Court’s approach to penalties and supports a recent trend in the focus on individual liability following…
Read MoreThe Australian Labor Party’s 48th Annual Conference was held in mid-December 2018, a significant event which determined the key elements of Labor policy heading towards this year’s Federal election. A 225-page national platform was put to, and adopted by, the Labor caucus, although additional resolutions were passed to supplement the document put before the party faithful. For such a significant document, only 12 pages were dedicated to the industrial relations policy that Labor will implement if elected to government; however, although a relatively short chapter, the policies outlined in somewhat sparse detail therein provide a mixed bag for employers. On…
Read MoreCustomer misbehaviour, aggression and violence continues to be a challenge for employers and employees in the retail and fast food industries. Last year, the Shop Distributive and Allied Employees Association (SDA) shed light on this burgeoning issue, after revealing that 87% of workers surveyed had confessed to experiencing verbal abuse or aggressive behaviour from customers within the past 12 months. Unsurprisingly, these figures tend to spike around the festive season due to an increase in foot traffic, family tensions and alcohol consumption flowing into the work environment. However, reports on the shocking treatment of retail and fast food workers continue…
Read MoreA supermarket retailer has successfully defended an unfair dismissal application despite the employee’s explanation that her deteriorating behaviour and performance was due to difficulties she was encountering in her personal life. In commending the employer for taking “extraordinary lengths” to support the employee, the Fair Work Commission (Commission) found that the dismissal was justified having regard for her lack of punctuality and unauthorised absences. Background The Applicant commenced her employment in 2007 and according to the Store Manager, was a reasonably good employee, up until 2014 when she became involved a troublesome relationship. It was at this point that…
Read MoreFor a long time now – since the Fair Work Ombudsman first started prosecuting employers under the Fair Work Act 2009 (Cth) – it has generally been understood that accidental or inadvertent non-compliance with employment laws will be punished much less severely than deliberately unlawful activity. Those days, however, may be over, as a recent decision from Queensland – the same State which holds the record for the highest fine ever imposed under the Fair Work Act – puts employers on notice that they may still face stiff penalties even if non-compliance is inadvertent or accidental. Fair Work Ombudsman v Ava Travel Pty Ltd…
Read MoreThey say that smooth seas don’t make skilled sailors. Looking ahead to known and predicted changes in the workplace relations space in 2019, HR and People Management professionals can look forward to another eventful year. While the system can be complex, achieving and maintaining compliance with the modern awards and the Fair Work Act 2009 is fundamental in 2019 having regard for the significant, high profile underpayments in the retail and hospitality industries reported last year. It is no longer acceptable to leave matters in the hands of accountants, or to assume that the previous owner of your business had operated a compliant…
Read MoreFor many retail businesses, criminal history checks make a lot of sense. With responsibilities such as handling cash, dealing with members of the public, and working with young people, retailers are required to place a significant amount of trust and confidence in their employees. However, relying on a criminal history check to decline to offer employment, or to terminate a person’s employment, is not always good business practice. In the recent decision of KB v The Agency [2018] FWC 6937, the Fair Work Commission considered circumstances where an employee failed to disclose allegedly relevant criminal convictions. The employee, KB was employed…
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