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 »

On the 13th day of Christmas: your guide to boxing day trade

Posted on October 13th, 2017

In 2015, the Retail Trading Act 2008 was amended to permit state wide trading on Boxing Day in 2015 and 2016. The 2015 amendments allowed all shops and bank branches to open on Boxing Day on the condition that staff freely elected to work without being coerced, harassed, threatened or intimidated to do so.

The 2015 amendments were required to be reviewed in 2017 to see whether Boxing Day trade should continue beyond 2016. A review of the legislation was conducted earlier this year in consultation with major retailers, their representative organisations, unions and other industry stakeholders to ascertain their experience of Boxing Day trading in 2015 and 2016. Read the rest of this entry »

Working multiple jobs: what are your obligations to your employers

Posted on October 13th, 2017

Munro v Wilmar Australia Pty Ltd [2017] FWC 2493 is a recent decision of the Fair Work Commission, which has held that where an employee fails to provide details of their additional employment to their employer, it may constitute a valid reason for dismissal. 

Specifically, the case involved an employee (Munro), who was conducting his own business alongside his ordinary employment. The employer (Wilmar) was concerned that the amount of hours being worked in total by Munro might be a risk to both his health and safety and to his co-workers.  Read the rest of this entry »

Casual employees to have the right to become permanent

Posted on July 7th, 2017

On 5 July 2017, as part of its four yearly review of modern awards, the Fair Work Commission issued a decision dealing with casual employment.

A significant outcome of that decision is a recommendation that (subject to conditions) casual employees will have a right to be converted to permanent employment.

At least part of the reasoning behind the decision is that many of the “basic” entitlements of the National Employment Standards are not available to casuals. For example, where two workers were engaged by the same employer and both had worked for extended periods of time, a permanent worker would have the benefit of the National Employment Standards safety net, but a casual would not. The Fair Work Commission considered that was an unfair outcome, even though casual workers typically were paid an additional loading. The decision also took into account, amongst other things, the relative disadvantage that casual workers experienced in trying to obtain loans from financial institutions.  Read the rest of this entry »

Anti-bullying laws and company directors

Posted on July 4th, 2017

We generally do not think of company directors as “workers”. However a recent Fair Work Commission decision says that directors are workers – at least for the purpose of its anti-bullying powers.

The anti-bullying part of the Fair Work Act says that “workers” are eligible to make an anti-bullying application. A “worker” is defined by reference to the Work, Health & Safety Act 2011 which itself lists a number of classes of activity that amount to being a “worker”. A company director is not included in the list; but the general description includes a ‘person carrying out work in any capacity for a person conducting a business or undertaking’.  Read the rest of this entry »

Changes to unfair dismissal threshold

Posted on July 4th, 2017

The “high income threshold” is the figure above which an employee is not eligible to bring a claim for unfair dismissal relief, unless their employment is covered by an award or enterprise agreement. Each year, the high income threshold for unfair dismissal claims is indexed upwards.

The components of remuneration that count towards to high income threshold are wages, money paid on a worker’s behalf (for example salary sacrifice towards non-concessional superannuation contributions; or to vehicle leases and the like) and the agreed value of non-monetary benefits (for example the provision of electronic devices).  Read the rest of this entry »