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 »

Workers’ duty to communicate when absent through illness

Posted on April 13th, 2017

Even when absent due to legitimate illness or injury, workers have to stay in communication with their employer, or they may be dismissed. 

Mr Laviano was absent from work for an extended period due to a psychological injury.  He had received medical advice not to read or access any communication from his employer for a part of that absence – a period of about two months – but that advice was not passed onto the employer.  During this time, the employer wrote to him advising of a medical appointment.   Read the rest of this entry »

Genuine redundancy: your guide to consulting with employees

Posted on March 31st, 2017

The Fair Work Commission has recently looked at the extent of an employer’s consultation obligations in order for a dismissal to be considered a case of genuine redundancy.

Section 398 of the Fair Work Act 2009 states that an employer must comply with any obligations to consult with employees set out in an award or enterprise agreement, for a dismissal to be considered a case of genuine redundancy.

A common provision of modern awards is that employers must notify employees where a definite decision has been made to introduce major changes that will have significant effects on employees, such as termination and restructuring of jobs.  Read the rest of this entry »

Your guide to penalty rates changes

Posted on March 1st, 2017

The Full Bench of the Fair Work Commission has recently conducted a review of modern awards to determine whether they are achieving their objectives. As part of the review, various employer bodies in the hospitality and retail sectors made applications to vary penalty rate provisions.

The Full Bench decided that Sunday penalty rates in the Hospitality, Fast Food, Retail and Pharmacy Awards do not achieve the objectives of modern awards, as they do not provide a “fair and relevant minimum safety net”.

Read the rest of this entry »

Redundancy and acceptable alternate employment

Posted on February 14th, 2017

I have previously written about ‘acceptable alternate employment’ as an element of the law of redundancy. In short, it is generally true that if an employer no longer requires a particular job to be done and terminates a worker, redundancy payments must be made.  An exception is where the employer obtains other acceptable employment for the worker – in which case it can apply to Fair Work Commission to reduce the redundancy payment that might otherwise have to be made. 

The Fair Work Commission recently considered – and refused – such an application.  The case shows that merely obtaining an alternate job for a worker is not enough, of itself, for an employer to be relieved of making redundancy payments.  The short facts were that the applicant company lost some hotel cleaning contracts to a competitor.  The applicant made arrangements for nearly 60 workers to be employed by the competitor.  It then applied to the FWC to be relieved of making any redundancy payments.
Read the rest of this entry »

Employees’ right to require annual leave

Posted on February 14th, 2017

annual leave From 29 July 2017 workers covered by a modern award will have a new right to require an employer to allow them to take annual leave.  The right will apply only where the employee has accrued substantial untaken annual leave.

The process is that the employee gives a notice which, if valid, must be approved by the employer. It is expected that a notice would only be given if agreement cannot be reached on dates. Read the rest of this entry »

Casuals and redundancy pay

Posted on February 14th, 2017

casuals redundancy payThe Full Bench of the Fair Work Commission recently dealt with a dispute about redundancy pay.  Put shortly, a number of permanent workers had been made redundant.  Their employment was governed by an Enterprise Agreement (EA).  Prior to becoming permanent employees, the workers had been engaged as casual workers on a systematic basis.  The question to be determined was whether the (lengthy) period of service as casual workers counted towards the period of notice they should have been given, and the amount of severance or redundancy pay to which they were entitled. Read the rest of this entry »

Over-selling a job

Posted on February 14th, 2017

over selling jobThe Federal Court has ruled a company must pay damages to a worker, who left a job due to unjustified representations about the future performance of the company.  Relevantly, the job offer included a base salary plus a profit share. The representations were to the effect that the company was trading profitably and would trade profitably in the future.  In fact, the company’s financial performance had dipped prior to the interview and deteriorated further. The worker was retrenched.  She brought a claim for damages on the basis that she left secure employment when she would not otherwise have done so, because of the representations. Read the rest of this entry »

Is unfair dismissal compensation taxable?

Posted on January 30th, 2017

Is Unfair Dismissal compensation taxable? Mullane and Lindsay SolicitorsThis issue can be of real practical importance, particularly to a dismissed worker, because knowing how much will be received “in the hand” is often an important factor in trying to negotiate settlements in unfair dismissal claims.

The reality is that whether or not a payment is taxable often depends on the nature of the payment. As a general proposition, compensation for wrongful dismissal is regarded as “capital” in nature and is not taxable but that is not universally the case. If a settlement includes components for unpaid wages or payment in lieu of notice (as well as compensation for wrongful dismissal) the whole of the payment can potentially be taxable unless the different component parts are clearly identified. Read the rest of this entry »

Who bears costs when a case is settled?

Posted on November 21st, 2016

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The NSW Court of Appeal recently had to consider whether costs should be awarded, in circumstances where a plaintiff accepted a settlement offer from a defendant which had been made prior to a hearing; but which was not accepted until after the hearing and when the Court’s judgment was reserved. The defendant’s offer was explicitly said to be “exclusive of costs”.  who bears costs settlement

The defendants later made an application that they be awarded the costs of proceeding, and the plaintiff contended that was a breach of the agreement, that entitled the plaintiff to damages. In this context it must be remembered that an agreement to settle litigation is a form of contract, and that usual contractual remedies are available for any breach of it. The Court rejected the plaintiff’s claim that the words “exclusive of costs” meant that it was an implied term of the contract that each party would bear their own costs.  Rather, consistent with decisions made in relation to formal Offers of Compromise, the phrase meant the settlement agreement did not deal with costs at all. The issue had to be dealt with under the general law rather than under the terms of a settlement contract.   Read the rest of this entry »

Demotions and dismissals – who proves what?

Posted on October 17th, 2016

demotions-and-dismissals-who-proves-whatTony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The Full Bench of the Fair Work Commission recently considered an appeal concerning whether or not an employee had been “demoted”; and whether any “demotion” amounted to a dismissal.

On the particular facts, the Full Bench (agreeing with the Commissioner’s primary decision) said that there had not been a demotion. Rather, the worker’s duties had been reallocated resulting in slightly lower pay and different conditions; but this was permissible under the terms of his employment agreement. Read the rest of this entry »

Underpaid wages – risks to business advisers

Posted on September 5th, 2016

Underpaid wages - risks to business advisorsTony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

In recent months we have all heard of some high profile businesses that have underpaid wages.  The 7-Eleven franchise has received some publicity in this context, but it is not alone. However it is not only the business in breach of wage payment obligations that is at risk.

Early in 2016 the Fair Work Ombudsman commenced civil proceedings against accountants who were business advisers to a hospitality business which allegedly underpaid workers.  The allegation is that the accountants were ‘knowingly involved’ in underpayments and therefore have a separate liability to that of the business itself.  Based on the FWO press release (the proceedings had not been determined at the time this article was prepared) the liability is said to arise because the accountants, having consulted to the business about a Fair Work audit, knew what the correct minimum wage was; but subsequently processed wages (for foreign workers on working holiday visas) at less than the minimum wage. Read the rest of this entry »

Adverse action and maternity leave

Posted on August 26th, 2016

Adverse action and maternity leaveTony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The Federal Circuit Court recently upheld a claim that an employer had taken adverse action against a worker, by making her position redundant whilst she was on a period of parental leave.

The employer restructured its operations whilst the worker was on leave.  Her job was reclassified.  Subsequently the worker made a request for flexible working arrangements in order that she could return to work on a part time basis.  She was informed the request could not be accommodated because her (new) position was being considered for redundancy.  She was in fact informed her position was redundant shortly prior to the date upon which she was to return from parental leave. Read the rest of this entry »