March
Employers must request employees to work a public holiday
The full bench of the Federal Court of Australia has held that businesses must ask their employees if they want to work public holidays and cannot simply roster them to work.
The judgement comes after BHP’s internal labour hire provider, OS MCAP Pty Ltd, was found to have breached section 114 Fair Work Act 2009 (Cth) by requiring employees to work Christmas Day and Boxing Day, without consultation. While the law has not changed, the Federal Court highlighted that the National Employment Standards (which override contracts, modern awards, and enterprise agreements), mandate that employers make ‘reasonable’ requests to work public holidays.
In their decision, the judges affirmed that simply publishing a roster, or drafting a clause within a contract stipulating that employees must work public holidays, will not constitute a request due to the ‘inherent power imbalance that exists between employers and employees’ and that, ‘by virtue of this imbalance, employees will often feel compelled [to work] and will not understand that they have the capacity to refuse a request that is unreasonable’.
For clarity, employers can still require employees to work on a public holiday where the request is reasonable and the employee’s refusal to work is unreasonable given the nature of the work, reasonable employer expectations, the type of employment, and level of pay.
With Easter holidays just around the corner, it’s a timely reminder for employers to ensure they have made reasonable requests for employees to work. For clarity on the implications of this case and what may constitute a reasonable request to work a public holiday, please contact the NRA Legal team.
Parliament passes gender pay gap bill
Commencing early 2024, Australian employers with over 100 employees will be required to publish their gender pay gap reporting on the Workplace Gender Equality Agency (WGEA) website, following the recent passage of the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill. Additionally, the CEO of relevant employers will be required to provide an executive summary and industry benchmark reports to all members of the governing body of their organisation.
Currently, WGEA requires organisations with more than 100 employees to report annually on gender equality indicators such as gender composition, equal pay for equivalent work, and flexible work arrangements.
However, the new laws aim to promote transparency and action towards closing the gender pay gap, impacting over four and a half million employees. Despite the country’s lowest-ever recorded gender pay gap of 13.3%, WGEA warns that this figure may not be reflective of the full picture as data does not consider bonuses, overtime payments, and superannuation.
For more information on these recent changes, register for our upcoming webinar.
Newly introduced legislation to improve workplace relations framework in Australia
This week, the Federal Government introduced a further industrial relations bill, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Bill).
If the Bill passes, it will amend the Fair Work Act 2009 (Cth) (FW Act) and related legislation to improve workplace relations framework by:
- Providing greater certainty for the work status of migrant workers by dealing with the interaction between the FW Act and the Migration Act 1958 (Cth);
- Providing greater access to unpaid parental leave (increasing unpaid, flexible parental leave days from 30 to 100 days) and complementing recent changes to the Paid Parental Leave Act 2010 (Cth);
- Inserting an entitlement to superannuation in the National Employment Standards;
- Clarifying the operation of the Fair Work Commission workplace determinations and enterprise agreements;
- Expanding the circumstances in which employees can authorise employers to make valid deductions from payments due to employees, where such deductions are for the employee’s principal benefit; and
- Ensuring that casual employees working in the black coals mining industry are treated no less favorably than permanent employees in the accrual, reporting and payment of their long service leave entitlements.
For more information on these proposed changes, contact the NRA Legal team.
Successful unfair dismissal claim for employee left out in the cold
The Fair Work Commission (Commission) admonished an employer that it found who dismissed an employee for timesheet fraud, resulting in a successful unfair dismissal claim.
The employer, Stay Cool Refrigeration (Aust) Pty Ltd (Gladstone Refrigeration), summarily dismissed an employee after receiving a complaint from client, claiming they had been overcharged. However, despite later discovering the additional hours had been performed by the employee’s former manager, Gladstone Refrigeration maintained the employee had committed timesheet fraud. As a result, a criminal complaint was filed with police.
In her decision, Commissioner Jennifer Hunt concluded that the employee’s inclusion of travel time was approved by his direct managers and that there was no ‘clandestine activity’. Further, it was found that the employer failed to provide any relevant information as to why the employee was terminated and had not put the specific dates and times of the alleged time fraud to the employee for him to respond. Further, Gladstone Refrigeration was found to have breached basic rights and its own performance management procedure. Commissioner Hunt awarded the impacted employee $9,310.00 plus superannuation.
Victorian restaurant challenge to wage theft laws
A Victorian restaurant, being the first employer charged under the state’s wage theft laws, has foreshadowed it will raise a constitutional challenge in relation to the laws.
Rehmat & Mehar Pty Ltd (The Macedon Lounge), and its owner have been charged 47 times under the Wage Theft Act 2020 (Vic) (Wage Theft Act) for allegedly withholding $7,000 in wages and other entitlements from workers.
In proceedings before the Victorian Magistrates Court, the Macedon Lounge argues that the investigation and prosecution by the Victorian Wage Inspectorate is invalid under s109 of the Constitution, which stipulates that valid federal laws prevail over inconsistent state laws. The company’s representatives claim that the Fair Work Act 2009 (Cth) (FW Act) is an "exhaustive statement" of the law relating to national system employers and employees, based on a 2006 High Court rejection of a challenge to work choice laws and the Victorian Government’s referral of its industrial relations powers.
The Victorian Magistrates Court has adjourned the case until September.
Disciplinary process likened to ‘murder case interrogation’ leaves employer liable for injuries
The New South Wales Personal Injury Commission (NSWPIC) has found HJ Heinz Company Australia Ltd (Heinz Australia) liable for the psychological injuries a worker developed after subjecting them to repeated questioning.
The employee, a food production operator, had been involved in two incidents: the first, where incorrect labels were applied to products, and the second, where incorrect temperatures were set on her food line. After the second incident, the employer provided the employee with a letter inviting her to a meeting to discuss the incident.
The employee left the workplace and claimed worker’s compensation for psychological injury as a result harassment and intimidation by the repeated questioning she received between the first incident occurring and being issued the invitation to the meeting in relation to the second incident. She acknowledged that while being issued with warnings and a letter requiring her to attend a disciplinary meeting was reasonable, it was her manager’s actions between those meetings that had made the process unreasonable. She alleged that her manager would repeatedly call her to meetings to revisit the incidents after she had provided detailed incident reports, telling the NSWPIC that she felt as though she was ‘being interrogated for a murder case’.
Heinz Australia emphasised to the Commission that mistakes made during manufacturing could result in serious reputational and economic repercussions, and that it was reasonable for managers to closely supervise workers and obtain information to ensure any mistake made did not reoccur.
NSWPIC Member, Jill Toohey accepted that Heinz Australia had to take action where incidents concerning food safety had occurred but was not satisfied that all actions taken were reasonable. Member Toohey found that Heinz Australia could not provide any evidence to counter the worker’s claim that she had been continuously called into meetings or explain why the excessive questioning was necessary. Consequently, Member Toohey accepted the worker's claims and awarded her weekly compensation payments and medical expenses.
Employers should ensure that workplace investigations, employee performance management and disciplinary measures are reasonable. If you have queries regarding employee conduct or performance management, please contact NRA Legal team.
Northern Territory to adopt WHS changes regarding psychological risks
The Northern Territory has become the sixth Australian jurisdiction to have implemented explicit regulations requiring PCBUs to manage psychological risks through a risk management process.
The Northern Territory has chosen to follow the national model clauses, rather than adopting the variations used by two other jurisdictions.
The Work Health and Safety (National Uniform Legislation) Amendment Regulations 2023, which implements these changes, will commence on 1 July 2023. The Northern Territory is also in the process of adopting the national model Code of Practice for managing psychological hazards at work, which was finalised by Safe Work Australia in mid-2022.
Psychological hazards are becoming increasingly common in Australian workplaces, and if left unmanaged, they may cause harm to employees. The new regulations and Code of Practice are timely and crucial in ensuring that employers are equipped to deal with these hazards effectively.
For more information on the changing regulatory landscape for psychosocial risk management.
Removal from WhatsApp group constituted dismissal
For the second time in four months, the Fair Work Commission (Commission) has found that deleting an employee from a WhatsApp group dedicated to rostering constituted a dismissal.
The employee, a year 11 student, was working on a casual basis at a kebab shop and requested she not be allocated shifts for periods of time when her study load became heavy. At some point, the employee raised concerns about underpayments with her employer. This coincided with a three-week break the employee had requested to focus on schoolwork. Despite only requesting three weeks off, the employee was removed from the WhatsApp group and was never rostered for another shift.
The employer argued that it routinely removed employees from the group when they made themselves unavailable for short periods of time. They further contended they removed the employee from the WhatsApp group ‘so as to not distract [her] with the group messages while she studied’.
Deputy President, Amber Millhouse rejected the employer’s assertion and questioned why the student was not then removed from the WhatsApp group when she first sought time off work to attend her studies and held that in the absence of an explanation, the employer’s contention could not succeed.
Satisfied that the employee had been dismissed, the Deputy President referred her general protections application for conciliation.
Changing responsibilities held not a constructive dismissal
The Fair Work Commission (Commission) has found that a HR Manager was not forced to resign, after claiming that she was constructively dismissed when her employer changed her responsibilities.
The employer, Valley Healthcare Group Pty Ltd (Valley Healthcare), had been experiencing financial difficulties and, through restructuring, had removed the HR Manager’s recruitment responsibilities to instead handle them internally. After notifying staff of the changes, the employee objected and claimed Valley Healthcare had failed to consult her on a significant change to her role. After filing an anti-bullying claim against the Managing Director, the employee resigned and claimed Valley Healthcare had constructively dismissed her.
Commissioner Bernie Riordan found that Valley Healthcare Group Pty Ltd did not demote the employee and that her title, work hours and salary remained the same. The only change he could identify was that the employee would need to report to a different manager. In his decision, Commissioner Riordan noted, ‘a change in a reporting line does not constitute constructive dismissal’.
While Commissioner Riordan observed that the Managing Director could have handled the situation better by discussing the changes with the HR manager before making a final decision, he found it unlikely that the HR Manager would have accepted the decision regardless of the level of consultation.
Past Briefs
The Brief – Feb 2024
The Brief – July 2023
