Articles
In what may well turn out to be the industrial relations equivalent of David versus Goliath, a former Coles employee is challenging the power of the Fair Work Commission (FWC) to dismiss certain applications. Specifically, the question before the High Court will be whether, in an application alleging “adverse action” involving dismissal, the FWC has the power to determine whether or not the employee was in fact dismissed. Milford v Coles Supply Chain Pty Ltd & Anor, B62/2020 The issue at stake The issue for the High Court to determine is which body has the power to dismiss a…
Read MoreJoining a franchise network has always been a popular option for prospective business owners. The customer base is already established; marketing, supply chain logistics, and product development is taken care of by the franchisor; and there’s a vast support network in place often with decades of experience in running a successful business that can be tapped into. However, it is important to remember that while the franchisor may provide many of the systems in place within the workplace, the freedom of running a business comes with the responsibility of making sure that the business is complying with Australian workplace laws.…
Read MoreThe advent of social media has transformed how we live, connect, and do business. Employers can now use social media to advertise, recruit and communicate with employees, and engage directly with customers. But it has not come without complications for employers: harassment or bullying can now happen online, and as technology innovates, there are new and unexpected ways for employees to fall afoul of their employment obligations such as we’ve previously discussed in relation to the app, TikTok. While there is often discussion about the importance of managing employee use of social media, there is little consideration of the risks…
Read MoreThe Federal Court has handed down what may well be the largest payout ever in an adverse action claim under the Fair Work Act 2009 (Cth) (FW Act), finding that a senior employee was dismissed for making complaints about bullying. Importantly, the case demonstrates the power of the reverse onus of proof in adverse action claims, with the court finding that the FW Act created a presumption the employer had acted for an improper purpose, and the employer had not proved otherwise. Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407 Ready Players One, Two and Three The applicant…
Read MoreOver the past weeks, news has tragically emerged of two delivery riders who were fatally struck by vehicles days apart in Sydney. The incidents have sparked renewed calls for more consistent WHS reporting obligations across Australia. When a serious safety incident occurs in the workplace, you may be required to notify the relevant regulator in your state of territory. This not only extends to employees, but also contractors and subcontractors, outworkers, work experience students, and volunteers. Except in Western Australia, if notification is required you must also preserve the site until an inspector arrives or you are directed otherwise. This…
Read MoreIn a stark sign of the times, the Victorian Wage Inspectorate (VWI) has claimed its first criminal prosecution under child labour laws, and emphasized that it stands ready, willing and unafraid to prosecute wage theft offences when it gains that power next year. VWI has flagged a tougher stance on compliance and a greater willingness to exercise its powers to undertake criminal prosecutions. Macleod (DPC) v Elissa Thomas, K10846028 Child employment in Victoria Despite its name, VWI is not limited to prosecuting “wage theft” offences; it is also tasked with prosecuting offences against the Child Employment Act 2003 (Vic). Under…
Read MoreAs businesses navigate the challenges of ensuring the health and safety of their customers and employees during the COVID-19 pandemic, they must be careful to avoid infringing upon the privacy of their employees. A recent decision in the Fair Work Commission is useful for understanding what information an employer can request of its employees, as well as whether disciplinary action can be taken against an employee who refuses to provide requested information. Case: Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources [2020] FWC 3324 Request to complete COVID-19 travel survey In March 2020, One…
Read MoreIn a stern warning for employers who “automate” certain parts of their payroll processes, the South Australian Employment Tribunal (the Tribunal) has slammed an employer with significant penalties for automatically deducting unpaid meal breaks from an employee’s day. The Tribunal also imposed penalties for 10 minutes of unpaid time at the start of each shift, and for “voluntary” overtime offered and paid at base rates. In delivering his decision, Deputy President Lieschke imposed a penalty 24 times the size of the total underpayments. The allegations The employee in this case had been engaged as a console operator at a…
Read MoreThis afternoon, Parliament passed the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020 which gives effect to the previously announced extension of the JobKeeper Payment Scheme until 28 March 2021. To continue participating in the scheme after 27 September 2020, employers will need to meet revised eligibility requirements, and reassess their eligibility for each subsequent phase of the scheme. For the period 28 September 2020 to 3 January 2021, employers will need to demonstrate that their actual GST turnover had fallen in the quarter ending 30 September 2020 by at least 30% (or 50% if their aggregated annual turnover of $1 billion…
Read MoreThe Fair Work Commission has taken aim at a family-owned retail business and a financial services firm, both of whom restructured their operations after they were notified that two respective employees had fallen pregnant. In a rare consent arbitration, Compuworld was found to have breached the workplace rights of a full-time Receptionist after she requested time off work to attend medical appointments associated with complications during her pregnancy. Then, less than two weeks later, a small accounting firm in New South Wales, ‘The Advice Spot’ found itself in the spotlight after it unfairly dismissed its part-time Bookkeeper while she was overseas in New York…
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