The Fair Work Act and Casual Employees
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The distinction between casuals and permanents has long been a vexed issue in employment law, particularly for employers. Frequently, employers think they have engaged a person as a ‘casual’ when in fact they are a permanent part-time employee. An error of classification can have significant financial consequences, at least in part because permanent part time employees have a range of entitlements that are not available to casuals; including parental leave, annual leave, and redundancy pay.
The Full Bench of the Fair Work Commission recently dealt with that issue in relation to a group of unionised workers who were engaged on a construction project in Queensland, which came to an end. Their union claimed they were entitled to redundancy payments when the jobs ended. The employer said they were casuals and therefore not entitled. The workers were successful at first instance but not on appeal. Read the rest of this entry »
When is an Employer’s Policy a Contractual Term?
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Disputes often arise, in relation to employment contracts, about whether “general policies” of the employer form part of the contract itself. For example, if the employer has a “policy” relating to payment, or redeployment, in the event of redundancy, does that policy form part of the contract such that, if the employer does not follow it, the worker is entitled to damages for breach of contract?
The Federal Court recently considered that issue in Barker v Commonwealth Bank. Amongst other arguments, Mr Barker said the CBA breached its own redeployment and redundancy policy, which was an express part of his contract and that he was entitled to damages for the breach. Read the rest of this entry »
Summary Dismissal and Long Service Leave
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The NSW Supreme Court recently dealt with a case where an employee had been dismissed for alleged serious and wilful misconduct. The case related not to the fact of his dismissal, but whether he was entitled to pro rata long service leave (LSL). In NSW workers are generally entitled to LSL after 10 years continuous service. If employed for between 5 – 10 years, and the employer terminates for “any reason other than the workers serious and wilful misconduct”, pro rata LSL is also payable. Read the rest of this entry »
Adverse Action in the Workplace
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The High Court recently looked at the issue of “adverse action” in the workplace. Under s346 of the Fair Work Act 2009 an employer cannot take adverse action against an employee on the basis that the employee “is …. an Officer or member of an industrial association” or “engages …. in industrial activity”. Adverse action includes dismissing an employee or altering his/her position to the employee’s prejudice. Read the rest of this entry »
Restraint of Trade Clauses – The Devil is in the Detail
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Victorian Supreme Court recently considered a restraint of trade dispute. Mr Cottee resigned from Nexus Energy. He later agreed to become a director of Austin Exploration. Part of the argument before the Court was whether Mr Cottee became a director in breach of a restraint of trade provision preventing him being involved in an industry that was the “same as or similar to” that of Nexus.
Both companies were oil and gas exploration companies. The evidence before the Court was that Nexus was primarily an Australian based, offshore oil and gas exploration business. Austin was a mainly American based, on shore oil and gas exploration and production business. Austin did have some business interests within Australia, but at all relevant times they were dormant. Read the rest of this entry »
Union Membership & Employment
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Federal Court recently fined a company for breaches of the Fair Work Act (at its predecessor) for refusing to employ two workers, who were married, because they were not Union members. This was a form of prohibited ‘adverse action’ under law. Read the rest of this entry »
Club Bistros – Put a Contract on the Menu
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Mr Stephenson ran a bistro at a sporting club in Sydney. There was a written contract to do so. It allowed the Club to require Mr Stephenson to meet “reasonable standards” in relation to the bistro. The contract also allowed the Club to direct the Bistro to remain open whenever the Club was open.
In practice, the Bistro did not open whenever the Club was opened. The Club was placed into voluntary administration. The administrator directed Mr Stephenson to open the Bistro when the Club was open, and to expand the menu. Mr Stephenson refused to comply with the directions and his contract was terminated. The matter went to Court when he sued for damages for that termination. Read the rest of this entry »
Duties of Employees to their Employer
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Federal Court recently considered the duties owed by employees to employers. In Permission Corp v Pegasus, two employees of the applicant Permission Corp (PC) set up their own company Pegasus and, without disclosing their interest in it to PC, arranged for Pegasus to enter into contracts with PC. As a result Pegasus was paid significant sums. Further, Pegasus did not provide the service for which the payment was made. PC later became aware of the situation; obtained orders ‘freezing’ Pegasus’ bank accounts, and sued Pegasus and the employees (who, unsurprisingly, were dismissed) for damages. Read the rest of this entry »
Commission Arrangements In Employment Contracts
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Ms S was an employed real estate agent for around five years. She was remunerated partly by salary and partly on commission. Her commission was a percentage of the sales commission received by the agency. A dispute arose as to whether the agency was entitled to make specific deductions from the gross commission it received, before calculating the employee’s percentage.
Ms S said she was not told about these deductions before starting the employment; that when she later complained about them she was told “this is how its done here” and there was no change in conduct by the agency. The Court accepted this evidence, however it also held, on the evidence, that Ms S knew there would be at least some deductions made from gross commissions prior to accepting the original offer of employment; and that she certainly knew of the deductions when she renewed her Contract each year for the 5 subsequent years. Read the rest of this entry »
Commission Arrangement in Employment Contracts
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
Ms S was an employed real estate agent for around five years. She was remunerated partly by salary and partly on commission. Her commission was a percentage of the sales commission received by the agency. A dispute arose as to whether the agency was entitled to make specific deductions from the gross commission it received, before calculating the employee’s percentage.
Ms S said she was not told about these deductions before starting the employment; that when she later complained about them she was told “this is how its done here” and there was no change in conduct by the agency. The Court accepted this evidence, however it also held, on the evidence, that Ms S knew there would be at least some deductions made from gross commissions prior to accepting the original offer of employment; and that she certainly knew of the deductions when she renewed her Contract each year for the 5 subsequent years. Read the rest of this entry »
When “PUBLIC” Information is Deemed Confidential
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
The Federal Court considered a dispute about the use of “confidential” information in the case of Prime Creative Media Pty Limited v Vrankovic in 2009.
Prime Creative Media (PCM) was a marketing/publishing company. The defendant was a former employee who, whilst working for PCM, became aware of information about PCM’s business contacts from sources such as business cards that were provided by contacts. Unsurprisingly, PCM also created its own database including details of clients and contacts. Read the rest of this entry »
Unfair Dismissal under the Fair Work Act for Economic Reasons
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.
As almost everyone knows, the old ‘WorkChoices’ legislation was amended by the Rudd Labor Government. The Fair Work Act (2009) [FWA] now largely replaces it.
One significant change under the FWA relates to whether an employee can bring an unfair dismissal claim if he / she is dismissed for essentially economic reasons.
Under the Workplace Relations Act it was a defence to an unfair dismissal claim that the worker had been dismissed for “operational reasons”. This phrase was fairly broadly defined, and could include economic, technical, structural or other reasons relating to the business – even if those factors applied to only part of the employer’s business.
Under the FWA, this defence is now only available if a worker is terminated for reasons of “genuine redundancy”. The definition of genuine redundancy is substantially narrower than the old definition. An employer needs to show not only that it no longer requires the job to be performed by anyone; it must also be show that any award obligations requiring consultation about the proposed redundancy have been complied with. Further a redundancy may not be “genuine” if it can be shown the worker could have been internally re-deployed. Read the rest of this entry »