Your update on flexible working arrangements

Posted on April 1st, 2019

From 1 December 2018, changes to modern awards requires employers to genuinely try to reach an agreement with employees in relation to flexible working arrangements.

In accordance with section 65 of the Fair Work Act 2009 (“FWA”), certain employees are eligible to request changes in their working arrangements in specific circumstances, such as if the employee is a carer; parent of a child who is school age or younger; has a disability; 55 years or older; or is experiencing family violence.

Section 65 requires employers to provide a written response to requests for flexible working arrangements within 21 days of the request being made stating whether the employer grants or refuses the request. Employers may only refuse a request on “reasonable business grounds”. Read the rest of this entry »

Insurance Policies and Claims for Damages

Posted on March 6th, 2019

Consider this scenario:  a self-employed carpenter earns $1,000 per week.  He has income protection insurance, mainly in case he suffers a work injury.  He is injured when, whilst visiting friends, a balcony he was standing on collapses and he falls to the ground.  He is off work for 12 months.  He brings a claim against the property owners for damages for lost income.

In that situation, has the carpenter suffered any loss?  He has not been able to work, but he happens to have income protection insurance which pays him his $1,000 per week. He is, on the face of it, no worse off. Read the rest of this entry »

Communicating Dismissals to your employees

Posted on February 27th, 2019

It is no surprise that emails, text messages and other communication apps are prevalent in most workplaces. Recent decisions of the Fair Work Commission have found that when it comes to communicating a dismissal with an employee, it is best practice to do so in person rather than by email or any other method of communication.

In Knutson v Chesson Pty Ltd [2018] FWC 2080, Commissioner Cambridge commented that the advice of termination of employment is a matter of such significance that basic human dignity requires the dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation. He noted that unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should always be conveyed face to face. Read the rest of this entry »

New Fair Work Regulation addresses casual “double dipping”

Posted on February 4th, 2019

Since the decision of the Full Court of the Federal Court of Australia in Workpac v Skene [2018] FLAFC 131 (“Skene“), employers have been concerned that in addition to paying casual employees a casual loading, they may also be responsible for back pay entitlements under the National Employment Standards (“NES”) in circumstances where an employee has been incorrectly classified as a casual employee instead of a full time or part-time employee.

In Skene, the Full Court upheld the decision of the Federal Court which found that an employee who was classified as a casual employee by his employer but who worked a regular roster set a year in advance was not a casual employee but was a permanent employee. As a consequence, the employee was entitled to annual leave under the NES and the Enterprise Agreement which applied to his employment. Read the rest of this entry »

A Shift in Calculating Personal/Carer’s Leave

Posted on January 24th, 2019

A Shift in Calculating Personal/Carer's LeaveThe Fair Work Commission (“FWC”) recently handed down its decision in AWU v AstraZeneca Pty Ltd [2018] FWC 4660. The case is being described as a landmark decision on personal/carer’s leave for shift workers.

A dispute arose between AstraZeneca Pty Ltd (“the Company”) and the Australian Workers Union (“AWU”) in relation to how shift workers employed by the Company accrued personal /carer’s leave and whether the Company’s current practice of calculating personal/carer’s leave of shift workers was in accordance with the Fair Work Act 2009 (“FWA”).   Read the rest of this entry »

Casual or Permanent: Characterising Employees

Posted on December 20th, 2018

Casual or Permanent: Characterising EmployeesThe Full Court of the Federal Court of Australia has recently emphasised the importance of properly characterising a casual employment relationship.

In WorkPac Pty Ltd v Skene [2018] FCAFC 131, Mr Skene was employed by WorkPac Pty Ltd (“WorkPac”) as a fly in fly out truck driver at a mine. Mr Skene’s employment was terminated by WorkPac. Mr Skene argued that he was entitled to payment in lieu of accrued annual leave entitlements in accordance with the Fair Work Act 2009 (“FWC”) and enterprise agreement.  WorkPac argued that Mr Skene was not entitled to payment of annual leave because section 86 of the FWA and the enterprise agreement excludes casual employees from the entitlement to receive annual leave.

Mr Skene’s employment contract stated that he was engaged as a “casual employee”, however the Full Court held that the term “casual employee” has a legal meaning and is to be determined according to objective factors. Read the rest of this entry »

Issues with Expert Evidence

Posted on November 9th, 2018

Issues with Expert EvidenceMany cases before the courts involve expert reports – such as medical evidence in personal injury cases; accounting evidence in loss of profit cases; and valuation evidence in property cases. However as a 2016 Supreme Court case shows, unless the report demonstrates that the expert has relevant expertise; and expresses the opinion in a way that allows a court to understand how the opinion was reached, it may be rejected as evidence.

The particular case was a complex fire/arson dispute relating to a fire at a property at Mosman in Sydney. At the time of the fire, significant extensions/renovations were underway. The insurer declined the claim on the basis that the property owner had set, or colluded in setting, the fire and had made misrepresentations in relation to his insurance claim. Read the rest of this entry »

Can an employer discriminate based on criminal record?

Posted on October 10th, 2018

Can an employer discriminate based on criminal record?A recent case in the Australian Human Rights Commission (“AHRC”), BE v Suncorp Group Ltd [2018] AusHRC 121, has looked at the issue of discrimination against a prospective employee due to their criminal record.

The definition of ‘discrimination’ in section 3(1) of the Australian Human Rights Commission Act 1986 provides that discrimination “does not include any distinction, exclusion or preference in respect of a particular job that is based on the inherent requirements of the job”. Therefore, employers can choose not to employ a person because they have a criminal record if the criminal record is relevant to the inherent requirements of the job.In Qantas Airways v Christie [1998] HCA 18, Brennan J stated that “the question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs”. This means that after committing some offences, there may be some jobs that a person will not be eligible to perform by reason of their criminal record. For example, it would not be considered discrimination if an employer did not employ a person with a criminal record involving dishonesty offences if the employment involved tasks requiring honesty such as dealing with sensitive and confidential information; or dealing with money. Read the rest of this entry »

Your Guide to Family and Domestic Violence Leave

Posted on August 30th, 2018

Your Guide to Family and Domestic Violence LeaveThe Fair Work Commission (“FWC”) has recently recognised the impact of family and domestic violence (“FDV”) on employees and employers in the work place. The FWC noted in its Four Yearly Review of Modern Awards (“the Review”) that employees who experience FDV often also experience disruption to workplace participation which can in turn cause financial difficulties.

As a result of the Review, changes came into effect on 1 August 2018 which apply to all modern awards and allow employees experiencing FDV to five days unpaid leave per annum (“FDV Leave”). Read the rest of this entry »

Bankruptcy and the “slip rule”

Posted on June 13th, 2018

Bankruptcy and the "slip rule"Most of us understand that once a judgment in a Court case is entered, it is final (except for any appeal rights). One minor exception, commonly known as the ‘slip rule’, is where an obvious error was made in a judgment or order. In the case of such an error, it can be corrected under the slip rule without the necessity for an appeal.

Slip rule applications are relatively rare. Even rarer was the situation that arose in 2016 when the Court was asked to make a slip rule correction to a judgment affecting a person who had become bankrupt. Under the Bankruptcy Act when a person becomes bankrupt, a creditor cannot “take any fresh step” in Court proceedings, except by leave. The issue the Supreme Court had to determine, was whether making a correction under the slip rule amounted to a “fresh step”. If so, the correction was not possible except by leave of the Federal Court (as opposed to the Supreme Court, where the proceedings had been instituted). Read the rest of this entry »

Costs – who pays when each party has some success

Posted on April 4th, 2018

The Supreme Court recently issued a cost decision that grapples with an issue that occasionally arises once litigation is finalised.  That is, if there are several issues in dispute in the proceeding, and both parties have some measure of success on various issues, who should pay costs?

The usual rule is that ‘costs follow the event’.  That is, the successful litigant usually gets an order that the unsuccessful litigant should pay their costs.  Costs are not intended to be a penalty but rather to recompense the successful litigant for the cost of vindicating their rights.  Where one party is wholly successful, they would ordinarily expect a costs order in their favour.

It is less easy to apply that ‘rule’ where each party has some, but not total, success. Read the rest of this entry »

Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Making an unfair dismissal application: what can you expect?

Posted on March 6th, 2018

The Fair Work Commission’s Annual Report for 2016-2017 has provided a number of statistics that shed light on what to expect when making an application to the Fair Work Commission (‘FWC’) for an unfair dismissal remedy.

According to the Annual Report, unfair dismissal applications are the largest category of applications received by the FWC each year, representing more than 40% of the total applications made to the FWC.

The FWC reports that the vast majority (93%) of unfair dismissal matters are either resolved by agreement of the parties through conciliation or withdrawn by the applicant. Only 2% of unfair dismissal applications are finalised by a decision about the merits of the case.  Read the rest of this entry »

Calculating compensation

Posted on March 6th, 2018

If you have been unfairly dismissed and the Fair Work Commission (‘FWC’) considers that reinstatement would be inappropriate, the FWC may make an order for compensation.

Under the Fair Work Act, there is a legislative cap on the amount of compensation that can be ordered. Where compensation is payable, it is capped at the lesser of 6 months’ pay immediately before dismissal or the equivalent of exactly half the current high income threshold. As of 1 July 2017, the unfair dismissal high income threshold was $142,000.00 meaning the maximum compensation that can be awarded is $71,000.00.  Read the rest of this entry »

Unfair dismissal remedies: reinstatement vs compensation

Posted on March 6th, 2018

If an employee has been unfairly dismissed, there are two potential remedies that may be ordered by the Fair Work Commission (‘FWC’): reinstatement and compensation.

Reinstatement is the primary remedy for unfair dismissals. According to section 391 of the Fair Work Act, an order by the FWC for reinstatement should relate to the position that the person occupied immediately prior to their dismissal, or an alternative position on terms which are no less favourable than the previous position. In circumstances where the position no longer exists with the employer, an order for reinstatement may be made to an equivalent position within an associated entity of the employer. Read the rest of this entry »

Is your resignation legally effective?

Posted on March 6th, 2018

If you have resigned, in certain circumstances it is possible that you may have unfair dismissal remedies available to you.

A resignation is not legally effective if expressed “in the heat of the moment” or when an employee is in a state of emotional stress or mental confusion such that they could not reasonably be understood to be conveying a real intention to resign.

If an employer accepts a resignation made “in the heat of the moment” the resignation may be characterised as termination of employment at the initiative of the employer and could result in the employee having unfair dismissal rights, allowing the employee to be reinstated or compensated. If a resignation is made “in the heat of the moment”, the employer should clarify or confirm with the employee after a reasonable time that the employee genuinely intended to resign.  Read the rest of this entry »

An Uber win in the Fair Work Commission

Posted on March 6th, 2018

The Fair Work Commission (“FWC”) has recently handed down a decision, Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, finding that Uber drivers are independent contractors and not employees of Uber.

The applicant was an Uber driver and brought this case to the FWC seeking a remedy for unfair dismissal, after Uber terminated a Service Agreement that the parties had entered. For a finding of unfair dismissal to be made, it was necessary that the driver be an employee of Uber.

The FWC examined the relationship between the parties to determine whether the driver was an independent contractor or an employee. There is no single or decisive criteria to determine whether a contractual relationship is of employment or a contract for service. The court will consider a multitude of factors when approaching this question.  Read the rest of this entry »

Representing the interests of non-unionised workers

Posted on December 14th, 2017

On 13 December 2017 the High Court delivered a decision in a case of Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA55.

The central issue in dispute was whether an industrial association (such as a union, or other representative body) was entitled to represent workers who were not members of the industrial organisation.

The short facts were that Regional Express (REX) had written to a number of its pilots to the effect that if they made claims for accommodation costs during layovers, they would not be given command roles.  The Australian Federation of Air Pilots (AFAP), a representative body for commercial pilots, commenced proceedings alleging REX’s letter contravened a number of workplace rights.  None of the individuals to whom REX had written, were actually members of AFAP.  REX applied to summarily dismiss the proceedings on the basis that AFAP was not “entitled to represent the industrial interests of” individuals who were not members of its organisation. Read the rest of this entry »

Claiming your costs in the fair work commission

Posted on October 13th, 2017

Section 611(1) of the Fair Work Act 2009 (FWA) sets out that the general rule for proceedings in the Fair Work Commission (FWC) is that parties must bear their own costs. Section 611(2) provides an exception to this rule which applies if the FWC is satisfied that a party to the proceedings acted vexatiously or without reasonable cause or that it should have been reasonably apparent the application or response had no reasonable prospects of success, costs can be awarded.

Acting Vexatiously

The FWC has said that an application is vexatious when the predominant motive or purpose of the application is to harass or embarrass the other party to gain collateral advantage.

Without Reasonable Cause

An application is made without reasonable cause if it can be characterised as so obviously untenable that it cannot possibly succeed or is manifestly groundless. Whether an application is made without reasonable cause may be tested by asking whether, on the facts apparent to the applicant at the time the application was made, there was no substantial prospects of success. An application is not made without reasonable cause simply because the application did not succeed. If success depends upon the resolution or one or more arguable points of law, the proceedings will not be characterised as being without reasonable cause.  Read the rest of this entry »

Carer’s leave: what are your rights and responsibilities?

Posted on October 13th, 2017

Munro v Wilmar Australia Pty Ltd [2017] FWC 2493 is a recent decision of the Fair Work Commission (FWC)  which provides guidance to employees and employers about what an employee is permitted to do while taking a period of paid carers leave. 

Specifically, the FWC considered whether an employee would be permitted to work in their own business during a period of paid carer’s leave taken in the employee’s primary employment to care for a family member.

The FWC considered that the nature of carer’s leave is different to sick leave where it is the worker who is incapacitated from performing duties.  Read the rest of this entry »