| Workplace Law News and Articles |
|
| Adverse Action - Employers Watch Out! |
| The new Fair Work Act 2009 has a sleeping provision that could prove a nightmare for employers. |
|
| Employment Contract - It may outlast the relationship |
| Termination of the employment relationship may not necessarily end an employment contract. |
|
| Limitations On Redundancy |
| The new industrial relations laws introduced in July change the thresholds and qualifying periods for unfair dismissal claims. |
|
| Discrimination On Facebook |
| If there is a connection with employment or other area of public life, people making discriminatory comments on internet sites like Facebook may be subject to discrimination laws. |
|
| Modern Awards |
| So far, 93 Modern Awards have been produced by the AIRC. The job is to be finished by 1 January 2010. This means you will have simpler Awards and they will be easier to access. |
|
| Australian Consumer Law Bill |
| Australians are set to get a uniform national Australian Consumer Law in 2010. |
|
| Changed bonus results in successful claim for misleading or deceptive conduct under the Trade Practices Act 1974 (Cth). |
| The employee was awarded damages having been induced to enter a contract of employment by a promise that was revoked. |
|
| Family Care- re leave entitlements in new employment system |
| National employment standards are an important feature of the network place relations system replacing Work Choices. |
|
| Corporations Act used to stop employee using his employer's confidential information |
| The NSW Court of Appeal (NSWCA) has ruled that a two-and-a-half-year restraint preventing a former managing director from working for a competitor or soliciting clients was reasonable because of his specialist knowledge. |
|
| WORKPLACE LAW CHANGES FROM 1 JULY 2009 |
| Businesses face significant changes to workplace law from 1 July 2009. Peter McNamara summarize some of the key changes below. |
|
| Termination - Keen interest for employers to get it right |
| Wrongful termination of an employee can be a costly business. It is in an employer's interests to get it right. |
|
| Redundancy - Tax concessions on payments |
| On being shown the door, an unwanted employee is likely to be paid accrued salary, entitlements to unused holiday pay and long service leave, and possibly a redundancy payment. |
|
| Stolen Snickers Snacker Sacked |
| A Coles Group distribution centre worker was terminated after eating a stolen Snickers bar while on the job. |
|
| Corporations Act used to stop employee using his employer's confidential information |
| An executive left Wilson Parking for a competitor, and took confidential information. Wilson must have had some information of its own and it got an order to serve an ex parte search order on both the competitors' office and the executive's residence. |
|
| Recruitment business ordered to pay compensation |
| A recruitment business was ordered to pay $160,000 compensation after it recommended a manager who had been a bankrupt and a fraud. |
|
| Predatory Workplaces - Damage control when key staff leave |
| How can you retain key staff or delay competitors from poaching them? |
|
| Let The Dogs In - Disability laws protects right to bring assistance animals |
| Last year the Federal Court found that a health service had unlawfully discriminated against someone by refusing entry to two of its premises when the person was accompanied by an assistance dog. |
|
| Responsibility To Employers - Employment agency's duty of care |
| In a recent case the courts decided unanimously that the Commonwealth employment Service had breached its duty of care. |
|
| Long Service Leave |
| Federal agreement overrides state entitlement |
|
| Discrimination - Laws apply to decisions made outside the country |
| A blind man who is a third dan black belt was denied entry to a judo world tournament being held in Queensland. |
|
| Psychiatric Illness |
| When is an employer negligent? |
|
| Workplace - Vicarious liability of employer extends to rape |
| An employer has been held vicariously liable for a rape by an employee. |
|
| Injured Employee - What penalties for an employer with no insurance? |
| In NSW an employer must have a workers compensation insurance policy or face a fine of 500 penalty units (currently $55,000), or imprisonment for up to six months, or both. |
|
| Misleading Conduct - Employees found personally liable |
| The courts have recently found employees personally liable for misleading conduct, even though it was conduct in the course of their employment and on behalf of their employer. |
|
| Compensation - Employment must 'significantly' contribute to the diseas |
| A recent court decision has changed the rules on the relevant contribution of work to a disease under the compensation laws. |
|
| Finance - Partners' bitter end if timing is wrong |
| A bad decision about when to end their financial partnership cost Tom and Harry $10,000. |
|
| Transition Over - Work Choices record-keeping to be enforced |
| After a transitional period for employers to comply with the new requirements, it is now obligatory for them to produce and retain certain employee records. |
|
| Danger at Work - Directors' criminal liability for harm to employees |
| All company directors are in some way responsible for a company's safety standards and can be found criminally liable. |
|
| Simplified Super - Broad changes established |
| The Government has now released its plan to simplify superannuation. The new rules apply from 1 July 2007. |
|
| Victimisation - Health and safety watchdogs given protection |
| Victimisation of employees occurs when an employer subjects or threatens to subject an employee to any disadvantage because they act in a particular way. It is a major threat to equality and other rights in the workplace. |
|
| Group CEO Liable For OH&S Breach |
| A CEO of an international public company has been found guilty of an offence under the Occupation Health and Safety Act. The CEO was based overseas and only spent 1 day a month at the site where the worker was killed while cleaning a tank. |
|
| Genuine Operational Reasons must be Genuine |
| An employee brought an unfair dismissal claim under the WorkChoices legislation after he was terminated for redundancy. The employer said his claim was barred because he was terminated for 'genuine operational reasons". |
|
| Work Choices - Industrial action main concern of employers. |
| Emerging trends from decisions of the Australian Industrial Relations Commission give some indication of the post-Work Choices world. |
|
| Ticking Clock - What's the time limit for making a discrimination claim? |
| When does the clock start ticking if making a claim of unlawful discrimination? |
|
| Price of Polluting - Drastic increase in environmental penalties |
| Directors and company managers now face a greater risk of being prosecuted personally for pollution offences committed by their companies. Punishments have also greatly increased. |
|
| Defamation - A quick apology may be the best option |
| Defamation laws have been simplified. A model being adopted across all states and territories means that, for the first time, people who publish or broadcast will face just one defamation law, not eight. |
|
| Licensed Premises - What liability from too much to drink? |
| Recent licensing law changes that permit extended trading hours make timely a review of the principles governing the liability of hoteliers. |
|
| Work Choices - New legislation on industrial relations |
| The new Work Choices legislation makes a number of significant changes to employment and industrial law across the country. |
|
| Volunteers - when is a person liable for damages? |
| Civil Liability Legislation has gone a long way to protect volunteers from the dangers of personal liability, but some uncertainties remain. |
|
| Sex Discrimination - Systemic unfair treatment claimed in professional roles. |
| A wave of recent cases has seen professional women suing their employers for sex discrimination in the workplace. |
|
| Pre-Nuptials - Can you break an agreement? |
| For the past four years pre-nuptial agreements have been legally enforceable in Australia. |
|
| Watching Employees within the workplace |
| The Workplace Surveillance Act 2005 (NSW) ("the Act") come into force on Friday 7 October 2005. |
|
| Employees now entitled to free legal advice for unlawful terminations |
| A new service announced by the Commonwealth Government will entitle employees who believe their employment may have been terminated unlawfully to receive up to $4000 worth of independent legal advice. |
|
| Why it is so Important for Employers to Get it Right |
| It is very important that as an Employer, you are aware of your duties and obligations to your employees with respect to termination. |
|
| Issues under the Disability Discrimination Act 1992 |
| Under Australian Law it is illegal to discriminate against a person because of disability. Various Commonwealth and State legislation cover discrimination based on disability. |
|
| Sexual Harassment Policy is not enough |
| The decision by the Victorian Civil and Administrative Tribunal in Styles v Murray Meats Pty Ltd (No. A356/2004) has highlighted the need for employers to have adequate sexual harassment policies and make sure they are complied with. |
|
| New Disability Standards in Education |
| Last week the Attorney General's Department released the Disability Standards for Education (2004) which elaborates on the obligations of education institutions under the Disability Discrimination Act 1992 (DDA). |
|
| Industrial Relations Reforms are looming |
| It is anticipated the government will table its proposed IR reforms next month. |
|
| Stress |
| A court has recently found that employees must give clear signals about workrelated ill-health. |
|
| Misled On Pay |
| A company has admitted it misled a candidate in a job interview about the amount of commission he was likely to earn in the position. |
|
| Staff Surveillance - Legal requirements must be followed |
| In a recent Industrial Relations Commission case, an employer breached the Workplace Video Surveillance Act. |
|
| What is redundancy? |
| Redundancy is the termination of an employee's employment on the basis that the work of that employee is no longer required by the employer. |
|
| The Workplace Surveillance Bill 2005 |
| The New South Wales government seek to introduce a strict new law which will outlaw employers from conducting "covert" surveillance of their employees. |
|
| Safety at Work - when driver fatigue is the employer's respnsibility. |
| A recent court case extends an employer's workplace beyond what it has been commonly thought to be. |
|
| What 'special measures' are allowed to achieve equality? |
| 'Special measures' are permitted by Australia's sex discrimination laws to achieve substantive equality between men and women - that is, equality of outcome rather than equality of opportunity. |
|
| Unfair Work Contracts |
| A case recently handed down by the NSW Industrial Relations Commission reversed an earlier decision that gave a construction worker a lump sum of 12 months pay under the unfair contract sections of the Industrial Relations Act (IR Act). |
|
| Taking sexual harassment complaints seriously |
| An employee has been awarded damages of over $25,000 for sexual harassment, by the Federal Magistrates court, in the decision of Hughes v Car Buyers Pty Ltd & Ors in August 2004. |
|
| Are your employees entitled to part time work? |
| In a landmark decision, the Administrative Decisions Tribunal found that an employer had been unreasonable in requiring an employee to return from maternity leave to her job full-time. |
|
| Can you be sacked after faking a sickie? |
| An employee was summarily dismissed as a consequence of incidents involving their absence from work. |
|
| NSWIRC orders reinstatement of worker who refused drug test |
| Whilst the New South Wales Industrial Relations Commission (NSWIRC) found that the worker's refusal to take an alcohol and drug test and his threatening and abusive behaviour was reprehensible, they held (on appeal) that the worker should be reinstated. |
|
| No unfair contract as federal agreement applied |
| Whilst the New South Wales Industrial Relations Commission (NSWIRC) found that the worker's refusal to take an alcohol and drug test and his threatening and abusive behaviour was reprehensible, they held (on appeal) that the worker should be reinstated. |
|
| Unfair Dismissal Claim lodged 147 days late |
| The Australian Industrial Relations Commission (AIRC) has granted an extension of time to allow an unfair dismissal claim lodged 147 days late. |
|
| AIRC decides that it is against the public interest to lengthen the working Dad's time away from their children. |
| In 12 months of negotiations, 200 contractors working on ESSO's oil and gas rigs in the Bass Strait have been involved in strikes, lock-outs and legal action. |
|
| Reintroduction of common rule awards in Victoria |
| As of 1 January 2005, 12 new awards will come into effect for employees who are employed in Victoria. It is therefore important, if you have employees in Victoria, for your business to make sure that they will comply with the new rules on 1 January 2005. |
|
| Two employees terminated for attending a strip show during work hours |
| The Queensland Industrial Relations Commission (QIRC) decided to support a Company in the Company's dismissal of two employees following an investigation which identified them as having left the work site during their shift. |
|
| Executive Termination vs. Procedural Fairness |
| It is well known that employees covered by statutory unfair dismissal laws must be afforded certain rights of procedural fairness prior to the termination of their employment. |
|
| Employer has reason for terminating employee but still considered "unjust and unreasonable" according to the AIRC! |
| In Bernard Reynolds and Country Fire Authority (PR9507860) 13 August 2004, Melbourne, Senior Deputy President Lacey reviewed a case brought under the federal Workplace Relations Act 1996. |
|
| Higher penalties for workplace deaths - New OH &S Federal Regime |
| On 12 August 2004, the Federal Parliament passed The Occupational Health and Safety (Commonwealth Employment) Amendment (Employee Involvement and Compliance) Bill 2002. |
|
| Privacy in the Private Sector |
| Identity theft is set to become more of a problem as advances in technology allow agencies and businesses to collect - and share - more personal information. |
|
| Age Discrimination Act 2004 - Youth is no longer to be wasted on the young |
| Can an employer appoint someone because they are young and energetic? |
|
| Labour Hire - The Way of the Future |
| A study commissioned by the Recruitment and Consulting Services Association Limited ("RCSA") has found that labour hire arrangements are employees' method of employment of choice. |
|
| Super Fund, Super Choice |
| Parliament has passed legislation allowing for employees to choose their own Super Funds. |
|
| Bully For You? Employers Be Warned |
| Australians are taking bullying behaviour in the workplace very seriously. |
|
| Severance Pay Revised |
| In Victoria, the Australian Industrial Relations Commission has issued an extra decision to its March redundancy decision. |
|
| Sexual Discrimination: Words are enough |
| Sexual discrimination is a topical issue. Employers must be aware that it happens in workplaces and is likely that it is happening in their workplace. It is important that employers take steps to ensure they are aware of what is occurring in their working environment to reduce the possibility that women are being discriminated against. |
|
| Employers Pay up on Workers Entitlements |
| This is an important case for New South Wales employers because it is a decision made by the full bench of the New South Wales Industrial Relations Commission. It relates to the responsibility of employers to provide their employees with their entitlements. |
|
| How do I protect my employees from workplace aggression and violence? |
| Your organisation should have a conflict management program in place. This will ensure that aggressive behaviour is immediately identified and stopped before it escalates. It may manifest itself into physically violent behaviour that could put your employees in physical danger where they fear for their safety or the behaviour may become discriminatory and thus makes you as the employer liable. |
|
| Are employees allowed to work whilst they are on parental leave? |
| There is quite a bit of flexibility in relation to parental leave. This type of leave covers any maternity leave, paternity leave and adoption leave. The extent of the leave may be changed by agreement between the parties however certain minimum requirements apply as the requirements differ between the states and territory. |
|
| Sexual Harassment in the Workplace - Resources Available Online |
| Twenty years of legislation has apparently done little to effectively eliminate sexual harassment, according to results of a national telephone survey which found that more than one in four Australians have been sexually harassed. |
|
| Biffo in the Workplace - Oh What a Sinking Feeling |
| When does an employee's threats of violence justify dismissal? |
|
| Does an Employer Have Rights to an Invention by its Employee? |
| Employers are not entitled to ownership of inventions or patents by the employee based on the mere existence of the employer - employee relationship. A determination of ownership must be made on a case by case basis according to the Supreme Court. |
|
| Dress Codes Become Fashionable |
| Frequently, employers set standards of dress and grooming for employees in an effort to reflect the company's professionalism or culture. |
|
| AIRC Upholds Dismissal over SMS Sexual Harassment |
| Mr. Clark was dismissed summarily for misconduct by his employer Burson Automotive Pty Limited. He made application to the AIRC under the Workplace Relations Act 1996, s170CE, contending his termination was harsh, unjust or unreasonable. The AIRC dismissed Mr. Clark's application. |
|
| Discrimination for "Pillow Talk" Allegation |
| Discrimination on the ground of sex or marital status is a prohibited ground of discrimination under the Sex Discrimination Act (Commonwealth). |
|
| Employees as carers - employers must consider reasonable work options |
| Recent court decisions affirm that employers have to accommodate employees with family or carer responsibilities. This means they have to consider all available reasonable working options, though they might still reject job sharing proposals. |
|
|
| OHS Law in NSW |
| From 1 September 2003, all small businesses with less than 20 employees, must comply with changes under the Occupational Health and Safety Act 2000 (the Act) and its regulations. |
|
|
| Psychiatric Injury - Employers Held Liable For Employees' Mental Wellbeing |
| It is now established that employers are required to consider risks in the workplace to employees' psychological as well as physical safety, and to take reasonable steps to ensure that the risks are minimised. |
|
|
| When are drink and drug tests legal? |
| Is it legal for an employer to make an employee submit to a drug or alcohol test? If you perform work which is 'safety sensitive', such as operating heavy equipment or driving for long hours, employers can argue that drug tests are necessary to prevent injury at work and fulfil their duty to ensure the health, safety and welfare of employees. |
|
|
| Federal Sex Discrimination Bill - Pregnancy, Potential Pregnancy and Breasfeeding |
| On 7 October 2003, the Sex Discrimination Amendment (Pregnancy and Work) Bill 2002 ("the Bill") passed through Federal Parliament. The Bill amends the Sex Discrimination Act 1984 to clarify certain provisions regarding discrimination on the grounds of pregnancy ("the Act"), potential pregnancy and breastfeeding. |
|
|
| Notifications to WorkCover in NSW |
| Changes to the occupational health & safety laws in NSW have come into effect from 1 September 2003. There is requirement under the Occupational Health & Safety Act 2000 (NSW) ("OHS Act") and the Occupational Health & Safety Regulation 2001 (NSW) ("OHS Regulation") that WorkCover must be notified of any serious incident or incident. |
|
|
| Victorian occupational safety laws reviewed |
| The occupational health and safety laws in Victoria are undergoing review, for the first time in 20 years. |
|
|
| Termination remedies for casuals |
| The Workplace Relations Amendment (Fair Termination) Bill was passed recently, allowing casual employees access to termination remedies. |
|
|
| Age discrimination laws |
| The Australian Chamber of Commerce and Industry ("ACCI") states that Age Discrimination Bill 2003 ("the Bill") is flawed. |
|
|
| E-mails contain company secrets |
| Beware of the risk of misdirected work e-mails. |
|
|
| Are pay slips unnecessary paperwork? |
| In NSW, every time an employer pays an employee, they must provide a pay slip. A pay slip is a written document that contains particulars of the employee's pay and is provided to the employee usually when the employee is paid (some awards provide when a pay slip should be provided). |
|
|
| New work and family website |
| The Office of Industrial Relations ("OIR") is developing a new work and family website. The aim is to ensure easy access to information and legislation regarding parental and carer's leave, and flexible workplace arrangements for both employers and employees alike. |
|
|
| Dismissal? |
| If you are a non-award employee, you will not be able to make an unfair dismissal application if your remuneration is more than $85,400. |
|
|
| Stevedoring company owes a duty of care to the children of an employee. |
| In a recent case, Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33 ("Gifford's Case"), the High Court declared that a stevedoring company had a duty of care to children of an employee killed in a forklift accident at Darling Harbour. The family was told of the employee's death that day but did not see his body. |
|
|
| Unfair contract cap may not be retrospective |
| In a recent case, Kennedy v Contract Transport Solutions Pty Ltd [2003] NSWIR Comm 158 (19 May 2003) ("Kennedy's Case"), the Industrial Relations Commission of NSW ("IRC") stated that the recent amendments to the Industrial Relations Act 1996 (NSW) ("the Act") regarding unfair contract claims did not have retrospective effect. |
|
|
| Companies taking on outsourced work |
| In PP Consultants v Finance Sector Union of Australia [2000] HCA 59 (16 November 2000), the High Court held that a company that takes on outsourced work is not bound by the same industrial arrangements as the company who employs their outsourcing services. |
|
|
| Employee Share Schemes (PS 49) |
| ASIC has updated Policy Statement 49 to assist employers offering share schemes. The aim of the amendments are to permit Employee Share Schemes where the aim of the offer is employee participation rather than fundraising, where it supports long term mutual interdependence between employer and employee and adequate disclosure is provided to investors. |
|
|
| Does sick leave accrue while the employee is on maternity leave? |
| Maternity leave is a type of parental leave which is governed by the Industrial Relations Act 1996 (NSW) ("the Act"). Other types of parental leave include paternity leave and adoption leave. |
|
|
| New Unfair Dismissal Scheme |
| The Federal Government will expand the Australian Industrial Relations Commission, following passage of the Workplace Relations Amendment (Termination of Employment) Bill 2002 ("the Bill"). |
|
|
| Tongue stud breaches grooming policy |
| The Australian Industrial Relations Commission ("AIRC") has found an employer was justified in sacking an employee for wearing a tongue stud because it was in breach of the company's grooming policy, despite the employee claiming it was "private and internal" and that it could not be seen. |
|
|
| Employee Share Ownership Development Unit |
| The Government has established an Employee Share Ownership Development Unit within the Department of Employment and Workplace Relations. Funding of $1.7 million over four years has been provided to establish the Unit. |
|
|
| Implicated by implied terms |
| Provided a number of rigid tests are satisfied, it is well accepted that in common law a court has the power to imply terms in an ordinary contract. However, for contracts made in a relatively informal context, the courts often take a more liberal approach and may be prepared to imply a term if it is necessary for the reasonable or effective operation of the contract, and if there are no express terms in the contract to the contrary. |
|
|
| Commonwealth Unfair Dismissal Scheme - Expanded Coverage |
| The Federal Government will spend $16.8 million over four years on an expanded Australian Industrial Relations Commission. The money will be needed following passage of the Workplace Relations Amendment (Termination of Employment) Bill 2002 ("the Bill"). The Bill will amend the Workplace Relations Act ("WRA") to enable the employees of corporations to use the Federal termination of employment regime. Presently, only employees bound by Federal awards or agreement can use the WRA. |
|
|
| When is immediate dismissal an option for employers? |
| The Supreme Court of Victoria has found that failing to comply with work directions and negligence at work does not justify immediate dismissal. In a recent case, the Supreme Court awarded an employee $156,836.91 in damages for the employer's failure to give proper notice, together with entitlements, after it summarily dismissed an employee. |
|
|
| Redundancy and an injured employee - when and how can an employer terminate employment? |
| Dismissing an employee who is receiving workers compensation payments is an extremely difficult and complex matter. Employers need to be sure they are not only acting in accordance with any obligations under workers compensation legislation but also that they are acting fairly and thereby limiting an unfair dismissal claim. |
|
|
| Workers can now say "no" to unreasonable hours |
| More then two million people employed under NSW award and agreements now have the legal right to refuse to work unreasonably long hours following a unanimous decision of the Full Bench of the Australian Industrial Relations Commission on 10 April 2003. |
|
|
| Family friendly workplaces |
| The latest hot topic for employers and employees is developing a workplace which appropriately balances work and family life. |
|
|
| You have mail: Substance X justifies summary dismissal |
| An employee's unauthorised email use was found to be a reason for summary dismissal in a recent Australian Industrial Relations Commission case. |
|
|
| Employer Liability for Psychiatric illness confirmed |
| In a long running Patrick Stevedores Case the NSW Court of Appeal has found that an employer can be negligent in asking employees to attend a workplace where the employee is in a situation of risk. |
|
| Employees in Government Regulatory Roles may need to become Accustomed to longer Probationary Periods |
| A customs officer was dismissed within a 12 month probationary period. |
|
| Targeted policy justifies Random Searches |
| The Tasmanian Industrial Commission has allowed the introduction of random searches of employee's bags at Incat Tasmania Pty Ltd. The searches were introduced to stop theft within the company. |
|
| NSW Supreme Court kisses goodbye to exemplary damages for employee breach of duty |
| In a recent case the NSW Court of Appeal has found that an equity Court has no power to award exemplary damages for breach of fiduciary duties by an employee. |
|
| Sacked NSW Executives can still get compensation for unfair dismissal. |
| The NSW Government has clawed back the unfair contracts jurisdiction of the Industrial Relations Commission, used by senior executives to get their contracts rewritten to make them fair. Now you cannot make a claim if your total remuneration exceeds $200K, and you only have 12 months to lodge your claim. |
|
| Employees have their redundancy cake and eat it too |
| If you have acquired a new business including employees in the last six years, you might be open to a claim for redundancy for the transferred employees. |
|
| When is a secret no longer a secret - High Court flags status of confidentiality agreements |
| It is increasingly important for corporations to have their employees sign confidentiality agreements and to also ensure that they know what secrets can be protected by a confidentiality agreement. |
|
| Don't Trip on O H and S |
| The new Occupational Health and Safety Act 2000 (NSW) started on 1 September 2001. |
|
| Casual Employees may not be that Casual |
| Hands up all those who understand the definition of "casual employee." You may be in for a surprise. |
|
| Directors and Managers Liable for Workplace Injuries |
| Directors and managers of corporations can be held individually liable for breaches of workplace safety resulting in injury to workers. They will be found to be in breach of the law on behalf of their company unless they can show that they were unable to influence the conduct of the corporation in workplace safety matters. |
|
| You Thought Divorce was Hard, Try Leaving Your Job! |
| Many employment contracts provide that if the employee leaves employment, he or she cannot work for particular clients, or in the industry or for a competitor of the employer, for a period of time in a geographic area. |
|
| When Redundancies are Found to be Unfair |
| Employers wishing to restructure their businesses by changing their employees’ positions need to offer their employees positions at a comparable status and level of pay, otherwise the courts may find the employees have been made redundant. |
|
| Sacked Executives Compensated for Unfair Dismissal |
| A Full Bench of the NSW Industrial Relations Commission has ruled that sacked executives may claim compensation on the basis that their employment contracts were unfair. |
