May
Minimum wage decision announced
The Fair Work Commission has decided on a 5.75% increase to both the modern award minimum wages and the National Minimum Wage.
The increase to the modern award minimum wages and National Minimum Wage will take effect from the first pay period on or after 1 July 2023.
It is important that all employers ensure they are paying at least the minimum rates from this date. If you have questions about rates of pay, please reach out for a confidential discussion on 1800 572 679.
Muffin Break prosecuted ahead of changes to child employment laws
In what serves as another warning to employers of children in Victoria, the Wage Inspectorate Victoria is prosecuting Muffin Break Southland for allegedly breaching child employment laws on 360 occasions with maximum penalties for each contravention sitting at $18,000.
The watchdog, that promotes and enforces wage theft, long service leave, and child employment laws, has claimed that Muffin Break has employed children without a permit on 111 occasions, exceeded the limits on the hours children can work, failed to provide rest breaks, and failed to ensure supervisors held a working with children check, all contraventions of the Child Employment Act 2003 (Child Employment Act).
Under the Child Employment Act, children must not work more than 3 hours each day during a school term for a maximum of 12 hours each week or 6 hours each day during the school holidays for a maximum of 30 hours each week.
Muffin Break will face the Melbourne Magistrates’ Court on 16 June, however, come 1 July 2023, changes to child employment will come into force removing the permit system in favour of a licensing system, which will allow employers to have a single 12 or 24-month license to employ children.
Should you have any questions regarding this change or child employment, please call NRA Legal for a confidential discussion on 1800 572 679.
Candidate with a disability awarded compensation
A prospective employee with a disability has been awarded $10,000 in damages, plus wages for 12 shifts, after Live Better Limited Services (Live Better) failed to engage her in a disability support role, with the HR Manager viewing her as a ‘significant risk to herself, fellow employees and clients’.
Among other conditions, the candidate had suffered from a previous heart attack, tendonitis, neck, and lumbar pain. However, an independent medical assessment carried out by a physiologist found the candidates conditions were well managed meaning she could perform the role without any adjustments.
Despite this, Live Better concluded the business would need to make significant adjustments to the workplace and further explained the candidate would be unable to perform the inherent requirements of her role. On this basis, the HR Manager decided not to proceed with offering the candidate the role.
The NSW Civil and Administrative Tribunal (Tribunal) found that Live Better was in breach of s49D(1)(b) of the Anti-Discrimination Act 1977 (NSW) and had discriminated against the candidate due to her disability. Further, the Tribunal described the HR Manager’s decision that the candidate was not suitable for the role as ‘speculative and impressionistic’.
If you’re recruiting candidates with a disability, and are unsure what your obligations are, reach out to the team at NRA Legal for a conditional discussion on 1800 572 679.
Salesman sacked for sexually explicit swearing
The Fair Work Commission (Commission) has upheld the decision to terminate a salesman after he swore at a colleague telling them he would, “**** them in the ****” and to, “suck his ***”.
The employer, construction agency Lyndons Pty Ltd, dismissed the employee of two years after following an investigation into a bullying and sexual harassment incident. At the hearing, the worker’s colleague gave evidence that the salesman “regularly said inappropriate things to him” and bullied him. These exchanges were corroborated by other workers.
The colleague who was sworn at, who had resigned the day of the incident, told the Commission that the salesman regularly made inappropriate comments to him. However, the salesman argued the dismissal was a ‘disproportionate’ response in circumstances were swearing in the workplace was commonplace.
Dobson DP was not satisfied that there was a sufficient nexus between the salesman’s complaint about the strained relationship he had with his manager and his conduct in sexually harassing and bullying his colleague.
"There were no allegations of collusion between the parties and therefore there can be no basis to blame [his] unacceptable conduct towards [the colleague] as having any connection to any prior disputes he may have had with [his manager],” Deputy President Dobson said and that, “Such conduct in the workplace is simply intolerable, the evidence was clear that it was unwelcome and such conduct opens the [employer] to a failure of its duty to provide a safe place of work for its employees."
The case was dismissed
Sparky made redundant after raising WHS concerns
The Federal Circuit and Family Court has found an employer took unlawful adverse action against an electrician after he raised multiple workplace concerns including safety concerns surrounding unlicensed workers.
The electrician who was employed by United Lift Services Pty Ltd (United Lift Services), had also recently been appointed as a delegate of the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union. In August 2022, he began to raise safety concerns to his employer surrounding unlicensed persons and unsupervised apprentices performing electrical work and installing, tuning and commissioning elevators. Upon receiving the complaints, United Lift Services told him, “Don't worry about it. It is what it is."
United Lift Services then sent an email to all staff stating that the company was downsizing and that they were requesting two volunteers for redundancy. Despite not volunteering, the electrician later found out that he had been selected for redundancy.
Humphreys J examined the process United Lift Services had undertaken in selecting the employees for redundancy and found that both the electrician and another worker who had made complaints regarding their pay and a rostered day off had been deliberately marked lower than their colleagues on a “skills matrix” as justification for their redundancy.
While United Lift Services argued the reducing staff workload was necessary due to pandemic induced financial hardship, Humphreys J found that no financial records had been produced that proved this, noting that the electrician had been working significant overtime leading up to his redundancy. Moreover, there was no evidence to suggest the worker had been performing as poorly as his skill matrix score suggested.
It was held that the employer had in fact taken adverse action because of the electrician’s workplace rights. Compensation and possible reinstatement will be determined at a later date
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Advisor dismissed for refusing drug and alcohol test
The Fair Work Commission (Commission) has supported a financial services’ decision to terminate an employee after they refused to take a drug and alcohol test after attending the workplace while displaying signs of intoxication.
The employee, a financial adviser, had been employed at Wentworth Financial Services Pty Ltd (Wentworth) for only ten months when he arrived at work with, “bloodshot eyes, slurred speech, lacking in coordination, being unable to complete his work, and smelling of alcohol”. Wentworth told the Commission that it repeatedly lawfully and reasonably requested the worker take an independent drug and alcohol test which was “consistent with [his] contract of employment and [their] company policy toward alcohol”. When the employee refused, he was sent home for the day.
A few days later, the employee was given the opportunity to respond to allegations of misconduct in which he denied he was intoxicated, claiming the smell of alcohol was lingering from a “big night” he had the day before. He was subsequently terminated for serious misconduct, where his presentation at work while intoxicated caused both a health and safety risk and serious and imminent risk to the reputation and profitability of the business. The worker’s refusal of a lawful and reasonable instruction to take a drug and alcohol test was also considered as part of the misconduct.
Lake DP determined that on the balance of probabilities the worker was in fact intoxicated considering his admission to having a ‘big night’ the day before and that the effects were so significant that the [employer] had realised this as a concern when he attended work the following morning. He also considered that the employee’s refusal to take a drug and alcohol amounted to a breach of his employment contract.
Accepting the employee had posed a “serious and imminent risk to” Wentworth’s reputation and business in the provision of financial advice, Lake DP found that the worker had been provided procedural fairness and the opportunity to respond. The claim was dismissed.
Past Briefs
The Brief – Feb 2024
The Brief – July 2023
