Employment and Migration Blog

In our latest Employment Law Blog, Lawyer Laure Kenworthy explains the Industrial Relations Bill (the IR Bill) which will provide the first statutory definition of casual work for the Australian Commonwealth.

In our latest Employment Law blog, Lawyer Laure-Elise Kenworthy outlines why employers must have effective anti-discrimination and harassment policies in place.

Can an employer fire an employee via text message? In our latest Employment Law Blog, Senior Associate Dominic Russell outlines the answer to this question.

In our latest Employment Law Blog, Lawyer Shanni Zoeller outlines the case of Ray v Priority ERP Pty Ltd, which was a disastrous example of a personal and employment relationship breakdown.

In our latest Employment Law Blog, Lawyer Shanni Zoeller outlines a recent case where TechnologyOne had to pay over $5.2 million in compensation after unlawfully dismissing an employee.

In our latest Employment Law Blog, Senior Associate & Registered Migration Agent Lisa Qiu outlines how an employer can minimise their chances of an unfair dismissal claim being lodged and how to best conduct performance management in a fair manner.

In our latest Employment Blog, Lawyer Shanni Zoeller outlines the case of Voto v Adairs Retail Group, where the applicant was successful in her out of time application because she was experiencing domestic violence and hardship.

In our latest Employment Law Blog, Principal Lawyer Shawn Skyring outlines the recent case where Washington H Soul Pattinson & Company Limited was ordered to pay $1.1 million in damages for the termination of Melinda Roderick.

In our latest Employment Blog, Lawyer Shanni Zoeller outlines the factors that employers should consider when making any roles redundant.

In our latest Employment Law Blog, Senior Associate & Registered Migration Agent Lisa Qiu outlines the latest changes to the Government's paid parental leave scheme, which came into effect on 1 July 2020.

Recent audits revealed that 94 employees across three Hero Sushi franchise stores were underpaid. In our latest Employment Blog, Lawyer Shanni Zoeller outlines the severe penalties and ramifications of producing false records to the Fair Work Ombudsman.

In our latest Employment Blog, Principal Lawyer Shawn Skyring outlines the significant changes that have been made to the Miscellaneous Award 2020, which employers should be aware of.

The national minimum wage rate and minimum modern award wages for the new financial year will come into effect from 1 July 2020.

In our latest Employment Blog, Associate and Registered Migration Agent Lisa Qiu explains the leave entitlements of casuals whilst looking at the case of WorkPac v Rossato.

In our latest Employment Law Blog, Senior Associate Anna Ford discusses a recent case where the Fair Work Commission (FWC) dismissed an Uber Eats Driver’s appeal in a pursual for unfair dismissal as she was labelled “not an employee”.

In this blog, Principal Lawyer Stephen Booth explains the Government’s new superannuation amnesty legislation that passed Parliament in February and became law on 6 March 2020.

Do you have adequate employee policies in place? In our latest Employment Blog, Lawyer Shanni Zoeller outlines the importance of having well-drafted policies in place.

You may find yourself on dangerous ground if you try to force an employee to sign a deed following their termination. In our latest Employment Blog, Senior Associate Anna Ford outlines what the Fair Work Commission considers to be forced when it comes to employees signing Deeds.

In our latest Employment Blog, Principal Lawyer Stephen Booth outlines how to deal with bullying claims and the disciplinary process.

Have you ever wondered if you can stand in the shoes of a deceased applicant and continue their unfair dismissal proceedings on their behalf? In our latest Employment blog, Lawyer Shanni Zoeller addresses this very question.

It is important to know the details of the relevant Drug & Alcohol policy applicable to your workplace, before making any rash decisions. Lawyer Shanni Zoeller, outlines what needs to be considered before terminating an employee for being under the influence.

The Federal Government has announced another attempt at offering an amnesty to employers who have not complied with superannuation guarantee legislation. In this article, Principal Lawyer Stephen Booth outlines what this means for employers.

Employers’ should be aware of the upcoming changes to the annualised salary arrangements which will take effect from the 1 March 2020 and affect multiple industries. Senior Associate Anna Ford, outlines the key changes, off-set clauses and common law contracts.

It should go without saying that employees should apply for leave and have it approved by their employer before booking any flights, accommodation, tours or activities. But what happens if the employee takes time off anyway? Lawyer Shanni Zoeller has written about Central Milk Supplies terminating Mr. Innes’s employment for this very reason.

In addition to being well-known brands, 7-Eleven, Sunglass Hut and Subway all have one thing in common – they have all been found to have underpaid their employees and have been penalised recently by the Fair Work Ombudsman.

There is often confusion of how employers should calculate and pay employees’ personal, carer’s and sick leave, on the basis of hours and days. Lawyer, Shanni Zoeller has written about the decision of the Full Federal Court in Mondelez v AMWU [2019], which has raised some fundamental questions about the technicalities of how employers accrue hours or days for personal/carer’s leave.

Principal Lawyer Stephen Booth has written about the recent Comcare V Banerji case, involving a public servant who anonymously criticised the Government on migration policies and asylum seeker detention on Twitter. This case sheds some light on an employer’s rights to enforce a code of conduct with respect to conduct outside work.

Where employees are involved in domestic violence situations, or where a business is embroiled in family violence between people working in the business, employers need to take a step back, and consider both employment law issues and, in family businesses, family law issues, before acting.

There’s no surprise why companies want to sponsor migrants; their global skills enhance the business’ competitiveness by offering something unique and the company’s culture is enriched with diversity. What happens though when it’s time to call quits on your employment relationship with a visa holder?

In the unfair dismissal jurisdiction, an employee has 21 days after a dismissal has taken effect to lodge their application with the Fair Work Commission. However, the Commission has the discretion to grant an extension of time if it’s satisfied that “exceptional circumstances” exist.

Under the Fair Work Act, whether an unpaid work arrangement is lawful will depend on whether an employment relationship exists, or whether the work involves a vocational placement. Whether work experience, a placement or internship is employment must be considered on a case-by-case, factual basis. Employers should ask themselves these questions before engaging an unpaid worker.

The last few years has seen a significant spike in defamation litigation, much of which has prompted by careless comments made either via email or on social media platforms.  One recent example which demonstrates the risk within an employment law context is the case of Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig & Chapman [2019].

Israel Folau recently published comments to Instagram, which have since been shared by the media to an audience of millions. Rugby Australia's answer was to convene a panel, which included two of Australia's pre-eminent employment law silks, to decide whether Folau was guilty of breaching its Code of Conduct - and the panel subsequently determined that Folau was indeed guilty as charged.  This piece delves into the details of whether or not Folau's Instagram post actually put him in breach of contract.

The recent case of Warr v Qantas Airways Limited T/A QANTAS [2019] FWC 2182 saw Australian airline Qantas terminate the employment of a seasoned flight attendant, despite her career having spanned an impressive 31 years of good service filled with multiple complimentary letters from passengers, and the receipt of performance-related awards. Here, we provide some clarity with regard to Qantas’ initial decision to terminate the employee, and the FWC’s subsequent decision to uphold the airline’s choice to terminate.

Within the context of traditional worker categories, it is uncertain whether either employment or independent contracting rules should apply to those known colloquially as 'gig-economy', or 'platform' workers, or whether an entirely new category (or group of categories) should be introduced.

Following the receipt of a tip made via the Fair Work Ombudsman's anonymous reporting tool, the Ombudsman opened an investigation into the alleged underpayment workers at the Saffron Indian Gourmet Restaurant in the Gold Coast, subsequently finding that 22 employees had indeed been underpaid amounts ranging from $143 to $9,457.

Although an aggrieved employee is entitled to pursue their rights to the fullest extent permitted under law, employees on their way out can sometimes be motivated to inflict as much pain and suffering on a business, and those who represent it, as possible. This article answers the question 'to what extent can an employee pursue a claim when it either lacks merit, or is vexatious and has been lodged purely to spite the employer?'.

The Fair Work Commission recently made a significant decision pertaining to requests for flexible work arrangements. Since 1 December 2018, the right to request flexible arrangements has been supported by a new modern award clause providing more structure around the process.  The new clause imposes an obligation on employers to discuss the request with the employee and genuinely try to reach an agreement, before making a decision about whether to grant or refuse the request.

Forced resignation occurs when an employer threatens to terminate an employee if they refuse to resign, and when the employee does subsequently opt to resign.   Under these circumstances, even though the employee has chosen to resign, they can reasonably argue that the decision was not voluntary, due to the fact that their employer had given them the ultimatum with the specific intent of bringing the employment relationship to an end.  

Back in May 2018, the Federal government introduced the Treasury Laws Amendment (2018 Superannuation Measures No. 1) Bill 2018, which sought to allow employers a one-time only, 12 month amnesty with respect to past underpayments of employee superannuation. Whilst this Bill has not yet passed the Senate, it is important for Australian employers to understand the impact that the potential legislation could have on their business.

In the past few months, there has been a flurry of activity, discussion and legal changes in relation to casual employees. If you have "casual" employees working on a regular and systematic basis, they may in fact actually be permanent employees entitled to annual leave and other entitlements. This means you may have a substantial back pay issue. 

As an employer, one of the most important factors to keep in mind with regard to the engagement of contractors is ensuring that you get the on-costs right. This extends to understanding the difference between an 'employee' and a 'contractor', and having a good understanding of who you need to pay superannuation to.

It is important for employers to be familiar with the provisions in the Fair Work Act surrounding right of entry for union representatives. Representatives with an entry permit can enter an employer's premises in order to meet with employees who are, or could be members of the union, to hold discussions during “breaks”, or to investigate a suspected contravention of an award or enterprise agreement.

The results of the 2018 survey on sexual harassment in the workplace (conducted by the Australian Human Rights Commission and involving over 10,0000 Australian participants) are now in, and they have produced what I would consider to be some seriously concerning statistics!

It's fair to say that a lot has changed in the professional world in the 50+ years since 'Friday On My Mind' hit the charts, but according to both recent research and anecdotal evidence, nothing much has changed in employee attitudes towards Fridays: workers hang out for the end of the week, and generally speaking, Friday is far from favourable in terms of getting things done around the office.

While there are no discrimination laws with enforceable consequences relating to criminal record in New South Wales, it is important for employers to take care when balancing questions surrounding the employee’s right to work, whether they had served their time, and whether their employment would result in any sort of risk to other employees or customers, or to the reputation of the organisation.

Changes to all modern awards, which have introduced provisions relating to family and domestic violence leave, came into effect from 1 August 2018. This change has come about due to the 4 yearly review of modern awards.

Section 558B of the Fair Work Act states that a franchisor can be held liable for any breach of The Act made by a franchisee, unless they are able to prove, among other things, that they had previously taken reasonable steps to prevent the breach.

This blog looks at common mistakes employers make when exiting an employee, and what to do if a former employee has stolen company data, or is working in breach of a restraint of trade.

The notice period is the most likely time that an employee will attempt to steal confidential information, so businesses need to manage the transition process carefully in order to get the most out of departing employees, while also protecting themselves from risk.  

Departing employees often pose the greatest risk to the future goodwill of a business, as they have had the opportunity to form relationships with the client base and supplier network and may wish to take advantage of this knowledge.

The issues of accrual of leave entitlements, workers compensation obligations, payroll tax, responsibility for PAYG instalments and superannuation all have slightly different tests in determining whether or not the relationship is one of employee/employer or principal/subcontractor.

It has been more than 8 years since the Fair Work Act 2009 came into force, however many business owners and senior managers are unaware of the existence and effect of the "General Protections" regime contained in Part 3-1 of the Act.

When an employee notifies his / her employer that they wish to terminate their employment, their employment will automatically terminate when the relevant notice period expires. What happens when an employee wishes to withdraw their resignation?

Engineering and advisory company Aurecon is introducing a visual employment contract, effectively eliminating the bulk of the text from their employment contracts by using pictures.

With the 457 visa now gone, the legislative requirements of the new TSS visa were finally released on 18 March 2018. Coleman Greig has collated all of the information that we know so far.

Employees can make unfair dismissal claims if they're covered by a modern award or enterprise agreement. Those not covered can make claims if they earn less than the high income threshold

With an election due in the next 12 months and the Coalition Government performing poorly in polls leaving a potential change of government well within the bounds of possibility, there has been a quickening of interest surrounding workplace relations policy issues.

When an employee resigns, it is often prudent for their employer to keep the departing employee on their books. During this period, the employer may instruct the employee not to attend their place of work – but to still remain available to perform duties as directed. This is commonly known as ‘gardening leave’.

To successfully defend an unfair dismissal claim, an employer must be able to satisfy the Fair Work Commission (FWC) that the dismissal was not harsh, unjust or unreasonable.

A plumbing business has been fined $100,000, and its director $21,500, after it failed to pay overtime to an apprentice and meet its record-keeping obligations. The penalty was high, relative to the underpayment, because of the employer’s dreadful treatment of a young apprentice.

The tension between traditional employment law frameworks and the gig economy has come to the fore once again after the Fair Work Commission holds that an Uber driver is not an employee.

In a recent case, the FWC granted its first interim order issued in its anti-bullying jurisdiction, effectively issuing an injunction to stop an employer from proceeding with a workplace investigation. This case demonstrates that dealing with a bullying complaint in a fair way is highly desirable to avoiding external intervention.

In a recent case, the HR manager of a Chinese restaurant was fined $21,760 for knowingly processing underpayments and helping to falsify records. Under the Fair Work Act, she was liable as an accessory for the company’s failure to pay minimum rates and entitlements over a 16-month period. HR managers and workplace advisers have been warned.

Many employers believe that if they terminate an employee during the employee’s probation period, they will be protected from any claim. This is not necessarily correct.

Although reinstatement is supposed to be the “primary remedy” in unfair dismissal cases, it happens relatively rarely. However, if the employee pursues reinstatement seriously, when is it likely to be ordered?

Employers should be wary of using contracting arrangements which could be construed as sham contracting after a recent a penalty of $58,740 was imposed.

Are employers unable to make an employee redundant, if they are pregnant or on parental leave? No, but it does increase the risk of the employee claiming that the redundancy or termination was influenced by the fact that they were pregnant or on parental leave.

The Fair Work Commission (FWC) has made a decision to insert a 'casual conversion' clause into 85 modern awards that do not already have such a provision. This will enable casual employees covered by those awards, and who meet the eligibility criteria, to request to convert to fulltime or part-time employment.

In April 2017, Prime Minister Malcolm Turnbull and Minister Peter Dutton announced that the 457 visa scheme would be abolished and replaced by a new Temporary Skill Shortage visa. As of 1 July 2017, the following further changes took effect.

Often, after a workplace injury, or extended sick leave or workers compensation, employers may need to find out whether the employee is able to perform their duties, or when they will be able to, and the accommodations that should or shouldn’t be provided to an employee returning to work.

In a recent decision, it was decided that an employer was within its rights to terminate a longstanding flexible working arrangement that enabled two employees to start and finish work an hour earlier than their colleagues.

This blog provides an easy breakdown of the differences between registered migration agents (RMA) and immigration lawyers.

On 23 February, as part of the four yearly review of modern awards, the Fair Work Commission handed down a landmark decision announcing that Sunday penalty rates would be reduced for those working in the retail, fast food, hospitality and pharmacy industries.

Recent amendments to the Fair Work Regulations have changed the Notice of Employee Representational Rights’ form and content. These changes took effect from 3 April 2017. 

Here's what you need to know about the recently announced changes to the 457 Visa scheme in Australia.

If you are thinking about introducing an enterprise agreement into your workplace, it’s important to make sure that you have knowledge of all the procedural rules you need to comply with in order to properly introduce one.

On 21 March 2017, the Fair Work Ombudsman (FWO) released a publication announcing the introduction of a new app called “Record My Hours.”

In Australia, both the Coalition and the Labor Party are pushing for changes to the current 457 visa scheme. The push to tighten the 457 regime appears to originate from two main concerns.

Whether or not an employee has actually abandoned their employment can be a tricky matter to determine, and each case needs to be determined on its own particular set of circumstances. Here are a few things to bear in mind when making the call in your workplace…

A Fairfax Media investigation focussing on franchisees underpaying workers has revealed yet another scam involving the exploitation of 457 visa holders. So what laws have been broken?

A recent UK employment tribunal decision found that Uber’s drivers are not in fact contractors (as Uber’s documents and structure say) but are entitled to employment benefits as they fell within the relevant definition of “worker.”

Gardening leave refers to the practice of requiring an employee to take paid leave (as distinct from Annual Leave or Long Service Leave), to tend to the garden so to speak – hence the name, for the duration of their notice period.

At Coleman Greig we work with clients on a daily basis in relation to the performance management of their employees, and it’s clear to me that for many of them, engaging in the process is a notoriously daunting task!

The Fair Work Ombudsman has announced its intention to become more accessible to visa-holders from non-English speaking backgrounds who may be more vulnerable to underpayment or unaware of their workplace rights.

One of the common issues faced by partner visa applicants and their sponsors, is demonstrating to the Department of Immigration and Border Protection that they have a “genuine and continuing relationship.” So, how do you prove that you’re in one?

Here are a few points to bear in mind when you’re preparing or updating your employment policies, in order to minimise the likelihood of them being interpreted as having contractual force.

Migrant workers constitute a significant proportion of Australia’s workforce. However, not all migrants in Australia have work rights - not all visas allow work. If you employ migrant workers, there are a few things you need to know.

From time to time, a client presents me with a scenario which involves careful consideration of the impact of the alleged actions of an employee in their personal time on the workplace, and what action if any, my client, the employer, can take. Let me explain…

New policy changes under the current Coalition government in relation to sponsoring skilled workers, took effect on 1 July 2016.

If you’re an employer dealing with an internal workplace issue, you may be considering the question of whether it’s best to engage an external investigator. So what’s the right move?

The Workplace Gender Equality Act, which is promoted and overseen by the government’s Workplace Gender Equality Agency, requires certain employers to report each year on how they’re going with achieving workplace gender equality.

It is important, as a matter of risk management, for employers to be aware of workplace practices which could expose the company to liability. How willing employees are to come forward with important information depends on the reaction of the employer, and whether that reaction encourages, or deters, other employees from speaking up.

Are you dealing with an employee who is repeatedly late to work? Have you considered whether that would constitute a legitimate basis to terminate their employment? In short, the answer is yes! If you follow the correct process...

In some situations, an employee is absent frequently, and may not comply strictly with policies and procedures in place. If this happens, is an employer able to terminate the employee's employment for repeated absenteeism?

The Heavy Vehicle National Law (HVNL) applies to people who own or operate, or work with people who own or operate, vehicles of 4.5 tonnes or more, and came about, in part, as a means to minimise the risk of horrific road tragedies involving heavy vehicles.

Sometimes, employers will question whether a worker is genuinely suffering from an injury, or at least an injury as serious as is claimed. Neither employers nor lawyers can second guess medical assessments. However, that doesn’t mean that you need to accept each claim as it comes, without question.

You might think that any issues that arise with the employee on a fixed term contract will go away once the contract expires. A recent decision of the Federal Circuit Court has confirmed that this is not the case.

Recently outrage was sparked at the Daily Telegraph in the UK when employees came to work to find plastic monitoring boxes attached to their desks. Employees discovered that the boxes were produced by OccupEye and could be used to monitor whether individuals were at their desks. The employees had not been advised that these boxes were going to be installed, nor about their purpose.

It’s increasingly common for junior or trainee employees to be asked to undertake some sort of unpaid time as part of their entry into employment. So, when is it legitimate not to pay for work time?

The Ashley Madison hack a couple of months ago had far wider-reaching implications than potentially revealing the infidelities of more than 30 million users. It also has employment law implications. The hack raises questions about the improper use of company email and internet facilities by employees.

The laws in relation to injured workers make it clear that employers cannot terminate the employment of an injured worker, within certain time periods, because they are injured. Doing so may be seen as adverse action, or discriminatory, or may be an offence under the Fair Work act or workers compensation legislation. So what do you need to do when an employee is injured at work?

Generally, employees believe that their private affairs are none of an employer’s business, and generally, employers are happy to leave it that way however, private and work lives have been encroaching on each other for years. A number of recent enterprise agreements have included domestic violence leave provisions, in addition to standard leave entitlements. A recent case illustrates how domestic violence may become a sharp-edged workplace issue – and how NOT to deal with it.

If you’re ever stuck for conversation with your taxi driver, simply ask them how they feel about Uber and I’m sure you’ll start up a lively one. Protests by taxi drivers in Melbourne earlier this month indicate that the tensions between Uber and taxi drivers are certainly heating up.

Sometimes it’s difficult to ignore a friend request from a work colleague. Once you’ve accepted, should you block or unfriend? A recent decision handed down by the Fair Work Commission may cause you to rethink your next move.

We’re all familiar with the 7-Eleven convenience stores and more often than not, have relied upon them being open to get a late night snack or an emergency supply. But have you ever considered what it’s like to work for a 7-Eleven store? You could be buying your snack from someone who’s being exploited, but is between a rock and a hard place if they try to do anything about it.

Australian active wear designer, Lorna Jane, landed herself in hot water recently for advertising for a Receptionist/Fit Model who needed to be a size “small” with specific bust, waist, hip and height measurements. Talk about discriminatory! Or was it?

The case of Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) provides a timely reminder of the dangers associated with making decisions about the ability of employees with an illness or injury to perform the inherent requirements of the job.

Here are five life lessons we can learn from Bronwyn Bishop’s expenses claim for a $5,227 helicopter ride on taxpayers’ money to a party fundraiser, for a trip that would have taken an hour to drive.

A text message can so easily be sent to the wrong person…with potentially disastrous consequences. In the recent decision of Nesbitt v Dragon Mountain Gold, the Fair Work Commission upheld the dismissal of an employee who had accidentally sent a text message to her General Manager.

"Can I require an employee to provide medical information and/or attend a medical examination?" This question comes up from time to time so it's worth clarifying. It depends on the particular circumstances, so it is always worth seeking advice. If in doubt, as a general rule the position is…

The Fair Work Commission has announced the changes which will apply to the National Minimum Wage and modern award wage rates from 1 July, 2015. The National Minimum Wage will increase 2.5% to $656.90 or $17.29 an hour. That rate of increases will also apply across award rates.

If you distribute corporate cards to employees, it’s vital that you have a policy in place that clearly sets out the rules on its appropriate use. The Fair Work Commission recently upheld the termination of a Manager who hid his unauthorised use of the company credit card to purchase two cases of beer.

Thanks to the recent Federal Budget there are three key things HR Managers need to be aware of: Paid Parental Leave, work-related car expenses and superannuation.

With the recent termination of Scott McIntyre from SBS due to his inappropriate Tweets on ANZAC Day, it highlights now, more so than ever, that as an employer you should be educating your staff on the appropriate usage of Social Media in order to minimise the likelihood of your employees using it to the detriment of themselves and or the reputation of the company.

This question is often asked of me by my clients when they are calculating employee termination packages, and until now it has been difficult to advise with sufficient certainty. Clarity on this issue has now been provided!

The primary benefit of incorporating certain company rules and procedures into a company policy rather than an employment contract can be the ability of the employer to be able to vary and amend the terms of its policy or policies over time in order to accommodate the forever changing environment of business operations. The terms of an employment contract on the other hand, cannot be varied without the consent of both parties – so it can be a lot trickier to try and implement any change.

For those of us working in HR, it is really important that we are clear on what constitutes bullying and in what circumstances the Fair Work bullying provisions apply, so that we can clearly articulate that to our employees.

The Fair Work Commission held that an anti-Muslim email that vilified those of the Muslim faith and sought to motivate readers to take political action against them, had significant potential to damage an employer’s reputation and therefore provided a valid reason to dismiss the employee.

In a matter before the Fair Work Commission late last year it ruled that the termination of one of two workers involved in an entrenched workplace conflict was not unfair simply because the employer could have chosen to sack the other employee.

Christmas is always an exciting time and for many it’s the start of various festivities, catch-ups and of course the annual work Christmas party!!!

The rules relating to surveillance, including workplace surveillance, vary from state to state. In NSW for example, reference should be had to the Workplace Surveillance Act 2005 [NSW] (“the Act”).

One of the functions of the Road Safety Remuneration Tribunal (RSRT) is to make road safety remuneration orders (RSROs). A RSRO is a formal, legally enforceable instrument.

The Fair Work Commission has ruled that a mechanic who mislead his employer about his qualifications in a job interview was justified in terminating his employment for, among other things, failing to fulfil the inherent requirements of the job.

A recent decision has highlighted that an employee’s absence (whether on parental leave or some other form of leave) can, in the right circumstances, lead to the conclusion that that employee’s position is not in fact required.

The Supreme Court recently held that 10 months salary constituted reasonable notice for a Financial Controller following her termination at the instigation of her former employer.

If there was ever any doubt, the Fair Work Commission has confirmed a definite distinction between swearing IN the workplace, and swearing AT someone in the workplace (whether it be a manager or another employee).

The Federal Court has recently handed down a landmark decision by awarding a former Oracle employee $130,000 in damages. This case clearly highlights the Court’s readiness to award significant money in cases of harassment and discrimination.

In a recent bullying application , the employee, an IT Application Developer, sought an order from the Fair Work Commission (FWC) to stop bullying allegedly inflicted on him by the employer’s General Manager.

From time to time I find myself discussing issues related to the amount of information (or more accurately, the lack of information) recorded on an employee’s doctor’s certificate, and whether or not my client can ask the relevant employee to attend a doctor of my client’s choosing – two recent Fair Work Commission (FWC) cases have shed some light on this issue.

The beginning of the new financial year brings about the start of new budgets, targets and KPIs for a lot of organisations, but it also means the start of some keys changes in the employment space.

The budget of 13 May announced changes to superannuation guarantee rates, but also changed the government’s previous plans.

When the harmonised legislation replaced the 2000 NSW OH&S Act, and the District Court was given jurisdiction to deal with prosecutions instead of the Industrial Relations Commission, there was speculation that this may change the approach to assessing defences raised by an employer. In a recent decision, this indeed seems to have happened.

When you consider the Fair Work Act amendments which took effect as at 1 January 2014, it seems as if the new bullying provisions received all of the attention. In addition to bullying, there where also a number of other changes which may affect the day to day operations of your business, which are equally important.

By 27 February, the Fair Work Commission had received 66 anti-bullying applications, and a member of the Fair Work Commission, Commissioner Cribb has said that they have the following features.

Someone asked me this at a presentation on the new bullying laws last week. And the answer is “No.” In the seven weeks since the Fair Work Commission opened shop for bullying complaints, I haven’t yet had one framed in terms of the new legislation. That’s not to say they aren’t around: Fair Work Commission reported receiving 44 applications in January, which was under the estimate of 70 a month, but still a tidy number for a month when much of the country is still in holiday mode.

Increasingly, General Protection claims are being made to the Fair Work Commission by employees who have had their role, or are about have their role, made redundant by their employer purely because they have engaged their right to parental or carer's leave. This brings to the forefront the question of 'what happens when the reason for a retrenchment of an employee returning from parental leave is actually a legitimate business decision in order to cut costs?'.

There’s been a fairly quick take-up of the new Fair Work Commission jurisdiction to deal with applications for “stop bullying” orders that came into effect 1 January 2014. The FWC has reported that it had 44 applications filed in January: less than the 70 per month forecast, but still a tidy number for a summer holiday month. Much remains to be seen about how the FWC applies its triage role in sifting out applications with substance from those without, or which are outside the jurisdiction. The Federal Government will be watching, as Senator Abetz has indicated that he would be seeing how the triage works before deciding on whether to revise the scope of the jurisdiction.

The Fair Work Commission recently held that a company’s Facebook message to one of its employees telling her that it would be inappropriate if she was to return to work did in fact amount to the termination of her employment.

A mining company in Central Queensland, Biloela’s Anglo Coal Callide Mine, is currently being sued for $1.26 million after one of its miners tumbled more than 1.5m down a rock face whilst in a dozer, causing permanent injury to the employees spine.

In a case that was brought before Fair Work Australia, three Australia Post employees were sacked after sending pornographic material in work emails. Fair Work said that the employees were treated harshly and a recent ruling in their favour said that the employees should not be automatically sacked for such conduct.

Facebook or Face-Crook All it took was for a Shona Mackin to undertake a quick Facebook search of one of her employees to discover that the employee’s so called ‘injury’ and claim for workers compensation was fraudulent - and it was all downhill from there! The relevant employee sought workers compensation after he was involved in a motorcycle accident which he claimed happened on the way to his work. Subsequently the employee requested light duties and was working only two hours a day due to the pain he was experiencing in his arm.

The dismissal of an employee who misused his employer’s computer system has been deemed ‘not harsh or unjust’ and has been held to amount to serious misconduct.

How workplace bullying can effect your business: orkplace bullying can have detrimental consequences on a person and an organisation. An recent article by Lollie Barr has found that collectively the cost of bullying to Australian businesses is on average $9.5 billion per year, resulting in decreased productivity, increased levels of absenteeism, staff turnover, poor morale and in some circumstances suicide.

Since a decision last year by the High Court which clarified the approach courts should adopt when determining whether adverse action had be taken against an employee for a prohibited reason the Fair Work Commission (FWC) has seen a rise in the number of application's for a General Protection claim.

Providing a safe work environment – are you addressing your bullying complaints? Following on from my previous blog where I emphasised the importance of employers managing employee relationships, a case has emerged in Queensland in which an employer who turned a blind eye to workplace bullying was found to be negligent of providing a safe work environment. Ms Wolters had been verbally abused and threatened by another employee, Mr Bradley, and as a result suffered severe depression and was unable to return to work.

Mediation could save your career…and life. What started as a minor disagreement between Alex Andrasch and another employee almost turned into an ugly scene with Andrasch narrowly escaping getting his ‘head bashed to pieces.’ The other employee was a trained kick boxer and Muay Thai fighter who became enraged when Andrasch questioned his martial arts credentials. Andrasch, also a martial arts fighter, told the employee he had no idea what he was talking about when he heard the employee explaining how to defeat someone who uses Kung Fu - this deeply angered the employee who in response told colleagues that he planned to attack Andrasch once he got him alone.

The Fair Work Ombudsman is in the process of pursuing the owner of an Italian restaurant in Terrigal for failing to pay back nine underpaid employees, including two juniors aged 16 and 19. On top of the total of $12,178.00 owed, the owner could also be facing exposure to penalties, which range from $10,200 per contravention for an individual and $51,000 per contravention for a body corporate.

In Canberra recently, an interior designer was fired from his day job at a design firm after his employer discovered he was using his LinkedIn page to promote the imminent growth of his personal business to a “full-time design company.” The employee had sent a group email to his connections on LinkedIn, including current clients of the company he worked for, offering his services in a personal capacity.

There was backlash last month from Melbourne firefighters when Fire Brigade management cut all employees right to check Facebook, Twitter, YouTube and other websites down to just 60 minutes per shift. The move came after management found that the top 10 most visited websites were not work related sites. The United Firefighters Union, on behalf of their members, have taken the case to the Fair Work Commission in an attempt to have management’s decision overturned. They assert there are a number of issues with the sudden implementation of new rules, without formal warning or room for discussion with employees. The main concern from the firefighters was that their existing workplace policy provided that limited internet use was "permitted so long as it did not affect [work] or breach internal policies."

As mentioned in our previous blog ‘Returning to work post baby’ employees have the right to request flexible working arrangements upon their return to work, including working part-time. However, it is important for both the employee and the employer to realise that these employment conditions are not permanent. One way you can make that clear is to incorporate a “sunset clause” in the agreement that is negotiated. By “sunset clause” I mean an end date to the arrangement. So for example, in the case of flexible work arrangements, the end date will typically be when the child reaches school age. Accordingly, the expectation set from the beginning of the arrangement is that the employee will resume full duties, as per the terms of his/her original employment contract, as soon as the child starts school. Have you considered the implications of staff returning from parental leave?

With increasing demands being placed on employee's time and productivity levels in recent years, there is a growing trend for employees to be using their own personal electronic devices (such as smart phones, iPads and so on) as well as other electronic storage devices to enable them to juggle work commitments outside of the office - whether it be whilst working at home, or in between client/customer appointments.

Having a baby can be an exciting – and demanding – time for parents. The last thing they want to worry about is trying to negotiate suitable return to work arrangements with an employer! However, despite the desire of many first-time parents to plan ahead and confirm arrangements before they go on parental leave, it is usually better not to lock in definite return to work arrangements until after the baby is born. This is because there are often unforeseen events that might occur and make the best of plans fall through. Negotiating suitable return to work arrangements for employees who have had a baby is something many business owners and managers will have to face. As an employer you have a responsibility to make all reasonable adjustments to the workplace to accommodate a pregnancy and the worker's subsequent return.

Many parents will bemoan the axing of the baby bonus from 1 March 2014, as outlined in the recent Federal Budget. About 28,000 families would miss out completely under the change while another 20,000 are expected to instead take Paid Parental Leave (PPL). So how does PPL work?

In my last post, I reported on a visit to the Sistine Chapel, and focused on the ceiling but there is much more to the Chapel than that, since most of the wall space is filled with wonderful 16th century paintings in jewel-bright colours. The most dramatic occupies the whole end wall, Michelangelo’s Last Judgment, painted 1536-41, more than twenty years after he painted the ceiling frescos. This is full of swirling energy and turmoil, with Christ hurling sinners into hell and raising the saved to paradise. It takes some effort to shift from the movement in the overall image to focus on the details - but when you do, one point in the bottom right corner has particular employment law resonance. In Hell, there is a portly figure with donkey’s ears and a large snake curled around him to cover his nakedness (actually, it is worse, but as this is a respectable professional blog I’ll leave it at that).  This is Minos, judge of the underworld, receiving the souls of the damned.  As a model, Michelangelo used Biagio de Cesena, the Pope’s Master of Ceremonies at the time, presumably without consent.  Michelangelo was always an irascible character, and Biagio was his loudest critic and objected to the many nude figures which Michelangelo included – but had his revenge in perpetuity.

As many of my clients know, I am taking a gap year in 2013, travelling the UK and Europe so my posts this year will have a travel theme. I have just finished 2 ½ weeks in Rome, where one of the top priorities of my wife and I was to see the Vatican Museums and the Sistine Chapel. You enter through a small door, onto a marble pavement which extends a couple of metres and then goes down 3 steps to the main floor. And as everyone knows about Michelangelo painting the ceiling, most visitors stop, and look up to stare, as soon as they get through the door, attention pretty much distracted from the steps by the sight of God creating the world, and creating Adam, and the brightly coloured portraits of sibyls and prophets. So, immediate WH&S issue: the risk of someone tumbling down the stairs is pretty high. And if the Work Health & Safety legislation applied, the Vatican would clearly have a duty to all these visitors to a workplace. At first glance, there is nothing in place to address the risk: no barriers, no high-vis markers on the edges of the marble steps, no prominent signs (no-one would look at them anyway!). It seems “all reasonably practicable steps” have not been taken to remove or minimise the risk.

I was recently asked to comment on an article for "In the Black" magazine (a CPA publication) on 'what makes a successful redundancy' - and I thought I'd share a snippet of what I said...

For the next 12 months I will be heading up the Employment Law and Business Migration team here at Coleman Greig, while Stephen Booth takes a sabbatical and ventures around Europe (in my opinion - a well deserved break after 25 years of practice!). If we are lucky we might hear from Stephen throughout the year - maybe even with a description of the picturesque locations he happens to be exploring - but for now it is probably best to review some of the latest developments in the employment law/immigration space over the holiday period!

A prominent Melbourne employment lawyer, Josh Bornstein, has suggested that we need to rethink how we deal with workplace bullying in legal terms. He says, surely correctly, that the “Brodie’s law” approach, criminalising bullying as akin to stalking, is more symbolic (and legislative “feel good”) than of real benefit, in the vast majority of cases. And he argues that we will never make headway against workplace bullying while it is perceived as a safety issue, essentially because an OH&S focus addresses processes and implementation, and in rare cases penalties for a business that handles a bullying issue very badly, but there is generally no private right of action. But would a much broader right to make a claim about bullying be suitably calibrated to address genuine cases, or would it open floodgates to many cases that are more about general disgruntlement or workplace politics than seriously inappropriate behaviour? As we’ve seen with unfair dismissals, despite the laudable goal to avoid imperatives for employers to pay “go away money”, the simple fact is that wherever there will be costs in money and time to defend claims, money will be paid to make them go away, even in cases of low merit.  And defining bullying for the purposes of a right to make a damages claim would be a particularly perilous minefield. And what that approach ignores is that real cases of bullying generally involve deep-seated cultural issues and behavioural traits of the workplaces, bully and victim.  Might we not achieve more by focussing directly on those?  Of course, in the short and medium term, that will work in decent workplaces but not reach the toxic ones.  And discrimination legislation has certainly permeated everyone’s consciousness because of the risk of claims.  A right of action for bullying might do the same, but at what cost?

Pay rates All award rates increased 2.9% as of 1 July. So if you pay at or close to award rates, or pay at an annual rate which is not far above award rates but which is intended to include all obligations, then it is a good idea to check the rates you pay against the revised pay rates in the award to make sure you comply, both with base rate and with the total due including overtime etc.    If you need assistance doing this “IR health check”, please give us a call.

There was a flurry of media attention in 2008 when Vivienne Dye launched claims against Commsec and the Commonwealth Bank, alleging persistent predatory sexual harassment (in some instances alleging conduct amounting to rape) by two named managers. The managers’ reputations were trashed. However, in the long run it is Ms Dye who has crashed and burned, as the Federal Court dismissed all her claims last month, after a case lasting 94 hearing days! The decision includes many details which would seem far fetched if you read them in a novel, including Ms Dye attending a work party wearing a white fur G-string – as you do!

There has been a bit of commentary since Toyota notified a large number of employees of redundancy last Monday. Employers having to sack people for redundancy, don’t generally enjoy it, and no doubt Toyota is no exception. The criticism of the methods used have a bit of a “damned if you do, damned if you don’t” about them. Toyota had announced impending redundancies in January, and seems to have had extensive discussions with the unions, so it would’ve been a surprise to no-one. There has been criticism of tapping people on the shoulder when they arrived for work, and the employees being mini-bussed to a meeting where they were given the details. But if they’d sent a letter, or made a phone call, or sent a text to tell the affected workers, they would have been criticised for not being personal about it.

Happy New Year to our blog readers! No resolutions here, but a reflection to begin the year: people can have an amazing lack of insight. Being an employment lawyer (or working in HR) broadens your life experience: you get to see people behaving in ways you wouldn’t believe if you read it in a book. Check out this random sample of recent unfair dismissal try-ons.

It is in the nature of our media-saturated world that crises occupy all attention for “15 minutes of fame”, and then subside again, so those not directly involved lose the track of the story, till the next crisis. So what has happened to the Qantas dispute?  Essentially, the wheels set in motion by the Qantas grounding, and the orders of FWA on 31 October, continue to turn, but out of sight.  There having been no private resolution within the 21 days allowed, the disputes are now set up for formal arbitration by FWA in March 2012.  The general expectation is that, when imposing a deal on the parties, FWA will not override Qantas’ management prerogative to the extent of interfering in decisions about off-shore operations and staffing.  Certainly it seems to be Qantas’ calculation that it will get a better deal out of FWA than directly with the unions, and by a route which precludes ongoing industrial action.

I sense that there is a debate starting about this, prompted, I think, by Safe Work Australia releasing a draft Code of Practice on prevention of bullying, as part of the OH&S harmonisation project. (the draft is available at: http://safeworkaustralia.gov.au/Legislation/PublicComment/Pages/Model-WHS-CoP-Public-Comment.aspx . )

Retailers will very shortly be able to hire high school students on 90 minute casual after-school shifts, after Fair Work Australia rejected the appeal by the Shop Distributive Allied Employer’s Association (refer to previous blog). FWA wasn’t persuaded that the proposed variation of the three hour minimum engagement period under the General Retail Industry Award was “affected by error”. The decision, however, doesn’t mean an immediate start to 90 minute shifts because the Award was not formally varied, but the option shouldn’t be too far away! It is anticipated that 90 minute shifts will only be available where the employee and their parent or guardian agrees, and where employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer, or the unavailability of the employee.

This post is a continuation of a blog published on 1 November 2011 regarding Long Service Leave.

Fascinating to watch the developments in the Qantas dispute over the recent weeks. We’ve got out of the habit of watching a dispute on this scale, in a critical industry, with the added frisson of uncertainty over the operation of new legislation. The theatre of a commercial/industrial dispute such as this is something which anyone involved in negotiation or dispute resolution can appreciate. What step to take next, when to take it? How to calibrate it and what message will it send to the other players? How to play your cards close to your chest, while at the same time managing the audience (in this case via intense media interest)?

As it currently stands, Australia does not posses a uniform long service leave standard. Although we do have the National Employment Standards, the extent of which it deals with long service leave is nothing short of partial. The National Employment Standards simply 'preserve old long service leave entitlements found under some long-standing federal awards and enterprise agreements'.

In an effort to respond to changing society and continue a strong approach against discrimination, the Federal Government introduced the Sex and Age Discrimination Legislation Amendment Bill 2010 on 24 May 2011.

Beware the consultation and redeployment issues when making employees redundant. For a redundancy to be outside the unfair dismissal regime, it has to be a "genuine redundancy." Whether a redundancy is genuine depends on whether there is consultation as required by an applicable award, and whether any reasonable options for redeployment are offered to the employee.

Surely that's OK, if I do it in my own time from my own computer with the maximum privacy settings and only to a select group of 70? Not when the comments are particularly offensive, and the group includes 11 work colleagues, even when the employee has the sensitivity to block the access of the relevant boss.

The allegations in the Berkeley/Pacific Brands bullying case have become clearer. In the initial reports (REFER TO PREVIOUS BLOG), the allegation was a bit soft-edged, but now the conduct of the manager accused of bullying is said to have included various incidents.

Continuing on last week’s theme that “Redundancy is not a panacea”, I saw a decision last week, made particularly interested by the ATO’s involvement both as employer and taxman, so that the A to the Q above could be “When the ATO says so.” An ATO employee negotiated a voluntary redundancy then asked the ATO to treat it as a “genuine redundancy” to get the tax breaks involved. The ATO refused. She went to the AAT to argue the issue, the ATO opposed it, and she lost.

Another of the top 10 from Booth's 101 Rules for avoiding unfair dismissal is " Redundancy is not a panacea ". This colourful story comes from a Qld discrimination case last month (Webb v Lightfoot) rather than unfair dismissal, but the principle is the same. Lightfoot ran a scaffolding business which employed Webb. When Webb had a back injury (reading between the lines, it seems Lightfoot doubted this), claimed workers comp, and sought light duties, Lightfoot ignored him. Webb persisted in seeking light duties. Lightfoot's reaction was:

Retail employers nation-wide are rejoicing over their win, after a long-raging war, to hire casual students for as little as 90 minutes after school. But will the celebrations be short lived? As at 1 July 2011, the existing 3 hour casual minimum engagement period under the General Retail Award 2010 was due to be amended to 90 minutes. As at 1 July, full-time secondary students were to be eligible to enjoy shorter shifts.

As at 1 July 2011 – the cap has increased to $118,100 (from $113,800). What does this mean?? If you earn over $118,100 (base salary and other guaranteed payments, but excluding 9% super and “at risk” commissions, bonuses or other incentives) and you are not covered by a modern award or enterprise agreement – you cannot bring an unfair dismissal claim. So remember - it’s really important to calculate how much your employees are earning from 1 July 2011 - as it could affect their unfair dismissal rights as well as their workplace entitlements!!!!

While I don’t want to be quite as nihilistic as that at the prospect of more political “debate” on IR, seeing Tony Abbott, Nick Minchin and Peter Reith manoeuvring last week about Coalition’s IR policy does suggest impending sound and fury, signifying not very much. Ever since the lead up to WorkChoices in 2005 and 2006, the political debate about this has diverged from reality because, once past the Howard Government’s radical step of nationalising the IR system, there has been much more continuity from WorkChoices (Mark II at least) to the Fair Work Act than you would imagine, given the heated rhetoric.

The SMH reported on 20 June that Sally Berkeley, an ex-employee of Pacific Brands (ASX200 company, majority of board being women) has sued for $9m for bullying and discrimination. The claim, filed by Harmers, the lawyers who represented Fraser-Kirk’, is reported to be mainly for future loss of income, because of stress and panic attacks.

Just a few things to bear in mind, and get in order if need be, as 1 July approaches: Paid parental leave, pay increases, modern award transition and unfair dismissal salary cap.

There was a case last week (Trapman v Sydney Water) in which an indigenous labour hire worker recovered $5,000 damages from supervisor and end-user employer because the supervisor told a group, including the worker, a joke about Aborigines. The supervisor had asked the worker’s permission to tell the joke, which was given, but the Court accepted that the worker should not have been put in the position of having to tell his supervisor that he was unhappy about a racist joke being told – the very fact that the supervisor asked for permission meant that the supervisor knew the joke was inappropriate.

There’ve been a few instances of termination by text surfacing in recent FWA decisions. On the face of it, sounds like pretty poor HR, but there can be exceptions. I had an unfair dismissal case recently where the termination was by text, and it seemed OK to me – but this was in the context of the employee having been refused leave, saying he’d take the time off anyway and get a doctor’s certificate, then failing to show for several days, refusing to come to the door when his boss called by, and refusing to take his boss’s calls. Sending a text in those circumstances at least had the virtue of being in writing (as required by the FWA), and was therefore better than leaving a voicemail. However, it would have been better still if a snail mail had followed with all the usual details. Not hard to do. We never had to put it to the test as the employee lost interest and cancelled the conciliation.

Within the space of a week, both have been rocked by scandals, “out of the blue” according to media reports, arising from “conduct unbecoming” – abuse based on race in one case, and sexual harassment by a senior employee of a subordinate in the other.