News

Mental health and discrimination

The last major study into mental health in Australia by the Australian Bureau of Statistics confirmed that 15% of Australians had experienced an affective disorder like depression, while 26.3% have experienced an anxiety disorder. The increasing awareness of mental health amongst the general population also means that workers are more aware than ever of the potential for their employers to discriminate against them on the basis of these conditions. So what is an employer to do when it comes to mitigating a potential claim against them for disability discrimination? We are going to step through some of the concepts that…

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Ombudsman successful in significantly increasing directors’ penalties

In the current enforcement climate, it is valuable to note a recent case in which the Fair Work Ombudsman (FWO) was successful in obtaining an increase of fines on appeal to almost five times the initial order, for an underpaying company director. In yet another illustration of how the courts are making an example of companies and accessories involved in underpayments, the appeal of this matter has confirmed the position that multiple contraventions should not be grouped together for the purpose of setting penalties. The original matter involved two now-deregistered Safecorp Security Group companies who were held to have breached…

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Defective workplace investigations

Fair Work Commission losing patience over defective workplace investigations By Lucy Harper and Calum Woods, NRA Legal Please note, this decision was quashed by the Full Bench of the Commission on 11 November 2019. The Full Bench found that the Commissioner did not take into account Ms Murphy’s history of domestic violence and associated psychological injuries when deciding whether the dismissal was harsh in the circumstances. In any event, the Full Bench held that there was insufficient evidence of any mental health issues. As such, the outcome was the same and the application was dismissed. The line between employees’ work and personal…

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Drinks after work: from legless to jobless

When getting legless can lead to being jobless: lessons learned from after-work drinks By Thomas Parer and Lindsay Carroll, NRA Legal Employers and employees are starting to realise that grabbing some casual drinks after work could leave them with bigger consequences than just a hangover. In the recent decision, the Full Bench of the Fair Work Commission upheld reinstatement of an employee who was dismissed for drinking to excess at an after work event and her ensuing conduct. This decision illustrates the pitfalls of managing conduct at after work drinks both for workers and employers, and provides some clear guidance…

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Workplace bullying costs business

Since its introduction in 2013, the Fair Work Commission’s anti-bullying jurisdiction has attracted its fair share of commentary. Of the 700 anti-bullying applications filed last year, a total of 53 proceeded to a formal hearing, and of those only 8 resulted in an order to stop bullying being issued. This means that the success rate of an anti-bullying application was approximately 7 per cent at hearing, or 1 per cent as proportion of total applications. Realistically speaking a great many matters resolve privately before reaching a formal hearing, however compared to other types of applications – for example, unfair dismissal…

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The Israel Folau Saga

It has been heralded as the test case on where to draw the line on the freedom to practise religion, and how much say an employer has in their employees’ personal lives. Regardless of where you stand in the debate, there is no doubt that it has touched on many issues that are important to Australians, and perhaps more importantly for present purposes, noteworthy from an industrial relations perspective.   The story so far On 10 April 2019, Folau, an outspokenly devout Christian, made a post on his public Instagram account, stating that among other things, “hell awaits” thieves, atheists,…

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Whistleblower protections extended from 1 July

From 1 July 2019, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2018 came into effect. A response in part to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, this Act amends several key items of legislation to allow greater protections for whistleblowers who come forward to report misconduct and malfeasance.   Protection for eligible whistleblowers With companies being prescribed as regulated entities, any officer or employee of a company who makes a disclosure to ASIC or another regulatory body is an eligible whistleblower protected under the Act.   What disclosures are protected? A disclosure by an eligible whistleblower, such as…

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Writing’s on the wall for outdated employment contracts

Playing musical chairs with an employment contract can be risky business. This usually happens when an employee doesn’t return a signed contract when starting a new job, and their employer allows them to work regardless. Other times an employee will change into a different role, but their existing contract remains in place. While these situations may seem innocent enough, the recent decision of the Fair Work Commission in Simon v NGS Group Pty Ltd [2019] FWC 3442 demonstrates the problems with an outdated employment contract.   The contract conundrum Mr John Simon was an employee of NGS Group Pty Ltd, a signage…

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Fair Work Ombudsman concludes investigation into Uber and discontinues Foodora prosecution

Following a spate of recent announcements by the Fair Work Ombudsman, it seems the employment status of workers in the gig economy will continue to avoid the judicial scrutiny that many had sought. On Friday 7 June 2019, the Fair Work Ombudsman announced the completion of its investigation into Uber Australia Pty Ltd, and its engagement of drivers. Sandra Parker, the Ombudsman, said “The weight of evidence from our investigation establishes that the relationship between Uber Australia and the drivers is not an employment relationship.” In a further development, the Ombudsman has since announced on 21 June 2019 the discontinuation…

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The new super-union: United Voice and National Union of Workers head closer to amalgamation

In what may be indicative of a growing trend in the trade union movement, Australia’s largest blue-collar unions outside the CFMMEU – United Voice and the National Union of Workers – are progressing their plans to amalgamate and form the fourth-largest union in the country. Between 24 July and 28 August 2019, members of United Voice (UV) and the National Union of Workers (NUW) will vote to decide whether or not to amalgamate to become the United Workers’ Union (UWU). This comes at a time when each union is fresh off a disappointing result in the federal election for the…

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