Feb
Closing Loopholes No.2 passes Parliament
Earlier this month, both Houses of Parliament passed the second tranche of amendments to the Fair Work Act 2009 (Cth) under the Albanese Government’s Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill).
The key amendments that will come into effect after the Bill receives Royal Assent are:
- Casual Employment: The Bill will abolish the existing obligation on businesses to offer casual conversion and will instead empower casual employees that perform regular shifts to request permanency after 6 months of employment. In addition, the definition of ‘casual employee’ will be amended and an employee will be considered a casual where the employment relationship is characterised by an absence of a firm commitment to continuing and indefinite work and receive a casual loading.
- Right to Disconnect: The Bill will prevent employers from making unreasonable out-of-hours contact with employees and employees can no longer be disciplined for failing to respond to out-of-hours correspondence from their employer, unless such contact relates to changes in their rostered hours, or they’re paid to be on call.
- Gig Workers: Under the Bill, ‘gig workers’ (such as individuals who work for digital ride share and food delivery platforms like Uber and Doordash) will now be empowered to apply to the Fair Work Commission for orders on minimum standards of engagement.
- Road Transport Workers: Under the Bill, the Fair Work Commission will be granted powers to, among other things, develop minimum standard guidelines for the road transport industry and provide remedies for unfair termination of service contracts.
- Right of Entry: The Bill will allow the Fair Work Commission to grant an exemption certificate where they are satisfied a suspected contravention involves the underpayment of wages or other entitlements. As a result, permit holders (e.g. union delegates) will be entitled to enter a workplace without providing 24 hours’ notice where they represent an employee who is employed at the premises and who they suspect is being underpaid.
- Enterprise Bargaining: The Bill will amend enterprise bargaining by enabling multiple franchisees of the same franchisor to make a single-enterprise agreement whilst retaining the ability to make a multi-enterprise agreement if that is their preference.
Should you have any questions about how these amendments may affect your business, please call NRA Legal for a confidential discussion on 1800 572 679.
Failure to produce records to FWO results in $70,000 penalty
The importance of comprehensive record-keeping has been once again thrust into the spotlight after the Federal Circuit and Family Court imposed almost $70,000 in penalties to an accounting firm after it failed to produce and comply with Fair Work Ombudsman (FWO) record-keeping notices.
The accounting firm, Nicholas Accounting, provided bookkeeping services to a group of eight companies called the La La entities. In 2019, the FWO issued the accounting firm written ‘notice to produce’ documents that related to the La La entities but was advised the firm required consent from the owner and that the documents it sought did not exist.
In early 2020, the FWO seized several documents in an unannounced site visit which revealed that the firm had not kept records for 33-87 employees across the eight businesses, including the hours of work for casual and part-time employees and workers' entitlements to loadings, allowances, and penalty rates.
The Federal Circuit Court Judge Riley found the record-keeping contraventions were deliberate stating the accounting firm “should have had the basic professional competence to comply with the legal requirements of the FWO”.
If you need assistance responding to a compliance notice from the FWO, or simply want to better understand your record-keeping obligations, please contact NRA Legal for a confidential discussion on 1800 572 679.
Employee dismissed for bullying and harassment wins unfair dismissal claim
The Fair Work Commission (Commission) has once again highlighted the importance of prioritising procedural fairness and conducting comprehensive workplace investigations after it deemed an employer’s dismissal of an employee for harassment was unfair.
The employer, a football club, summarily dismissed a male bar attendant after it was determined that he had bullied, sexually harassed, and swore at four female colleagues.
Whilst Deputy President Alexandra Grayson did not deny the employer had a valid reason for the dismissal, she explained that deficiencies in dismissal process made the dismissal unfair.
The employer’s HR Manager conceded that he had failed to carry out an investigation into the complaints raised against the bar attendant, failed to provide the bar attendant with any warning that further misconduct may result in termination and did not afford him an opportunity to respond to the allegations against him.
In his submissions, the employee had attempted to argue that he had not been aware of the football club’s policies on bullying and sexual harassment, but DP Grayson found that common sense on appropriate workplace behaviour ought to prevail.
If you’re considering dismissing an employee for misconduct and would like to better understand the associated risks and your obligations, please contact NRA Legal for a confidential discussion on 1800 572 679.
Injuries sustained in a street fight occurred in the course of employment
In a recent case before the New South Wales Personal Injury Commission (NSWPIC), Member Karen Garner had to consider if injuries sustained to an employee during a street fight were in the course of his employment.
The employee, a delivery driver, was overtaken by another motorist who stopped at a green light, blocking the delivery driver’s truck. The employee exited his vehicle and approached the motorist to establish a reason for delay. In doing so, the motorist swore at the employee, acted in an “unstable and aggressive manner”, and initiated a physical altercation. As a result, the employee sought workers' compensation for a permanent impairment arising from post-traumatic stress disorder, and physical injuries he sustained during the fight.
The employer broadly denied liability for the employee’s injuries asserting the employee should not be entitled to compensation as he had acted in a “grossly improper” manner and had taken himself out of the course of his employment. They contended that the employee’s actions were not part of or incidental to his duties of carrying goods in a truck and that once the employee had exited his vehicle, he had abandoned his employment.
However, NSWPIC Member Karen Garner determined that injuries were sustained in the course of employment and that employment was a substantial contributing factor. Member Garner held the delivery driver’s “goals and actions were the performance of his courier work” and considered it “logical and likely in the circumstances that the [worker] would feel compelled to understand the cause and length of the delay [and to resolve it]”.
Abandonment of employment rejected despite frustration of contract
Earlier this month, an employee was given the green light by the Fair Work Commission (Commission) to pursue an unfair dismissal claim after his employer wrongly determined that he had abandoned his employment.
The employee, a cook, had been deemed unfit for work since late 2022 after suffering from a psychological injury and was receiving weekly workers’ compensation payments. In May 2023, the employee was still deemed unfit for work by his treating psychologist. Despite this, the employer told the employee that his 12-month absence showed he was unwilling to return to work and proceeded to dismiss the employee.
Shortly after, the employee filed an application for a general protections claim in which the employer raised a jurisdictional objection arguing that the Commission did not have the authority to hear the matter as the employee had abandoned his employment. However, Fair Work Commissioner Stephen Crawford rejected the employer’s jurisdictional objection finding the termination occurred on the employer’s initiative, stating that the employee’s supposed unwillingness to return to work “misstates the position” which the reason for not attending was “crystal clear”. The matter has been listed for conference.
If you’d like to better understand the risks associated with terminating an employee who has been on extended leave for illness or injury, please contact NRA Legal for a confidential conversation on 1800 572 679.
Worker found to be terminated for making safety complaints
A recent case before the Federal Circuit and Family Court (FCFC) has been a timely reminder to employers to err with caution before dismissing an employee where workplace rights, such as raising complaints, have been exercised.
The employee, a machine operator, had been employed with G James Extrusion Co. for 15 years before his dismissal in early 2020. In the lead up to the termination, the FCFC heard that the employee had raised multiple complaints about workplace hazards (including faded signage, trip hazards and manual handling issues), which was an “ongoing source of frustration to management”.
Whilst the employer argued the dismissal directly stemmed from a physical altercation the employee had been involved in, where he had allegedly pushed a co-worker to the ground, the employee submitted that his dismissal was the result of a witch hunt from management after he had raised complaints about workplace hazards.
Judge Mansini of the FCFC questioned the “appropriateness” of the investigation into the pushing incident as the co-conductor of the investigation was a manager that had received many safety complaints from the employee and had a “strong dislike” for him. Ultimately, the FCFC found that the employer breached section 340 of the Fair Work Act 2009 (Cth) by taking unlawful adverse action against the employee.
If you’d like to better understand the risks associated with terminating an employee, please contact NRA Legal for a confidential conversation on 1800 572 679.
Workplace manslaughter results in $1.3 million fine in Victorian first
Earlier this month, the first case under Victoria’s workplace manslaughter laws was heard before the Victorian Supreme Court, in which a company was convicted and fined $1.3 million, after the death of a worker.
In late 2021, a worker was killed after a forklift, being operated by the sole director of LH Holding Management, Laith Hanna, toppled over and crushed the young contractor. An investigation carried out by WorkSafe revealed that the risk of the incident occurring could have been significantly reduced if the forklift had been driven as low to the ground as possible, driven in reverse down any slope and only driven when other people were at a safe distance.
Laith Hanna pleaded guilty to a single charge under section 144(1) of the Occupational Health and Safety Act 2004 (Vic) for being an officer of a company that committed workplace manslaughter, a contravention solely attributable to his failure to take reasonable care.
WorkSafe Victoria’s Health and Safety Executive Director, Dr Narelle Beer, highlighted "this prosecution is a clear reminder to duty holders of the serious personal and financial consequences they face if they engage in activity that puts the health and safety of workers at risk".
If you’d like to better understand your work health and safety obligations, please contact NRA Legal for a confidential conversation on 1800 572 679.
Past Briefs
The Brief – July 2023
The Brief – June 2023
