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When an employee doesn’t show up to work and is unable to be contacted, termination seems like the next obvious step; however, acting hastily can result in the termination being overturned. Recently, the Fair Work Commission (Commission) held that an employee is entitled to pursue his general protections claim after his employer wrongly determined that he had abandoned his employment. The facts The employee, a cook, had been deemed unfit for work after suffering from a psychological injury since late 2022 and was receiving weekly workers’ compensation payments. By May 2023, the employee was still certified as suffering from severe…
Read MoreWhen an employee behaves inappropriately, a quick termination may seem like a no-brainer. However, acting hastily can result in a finding of unfair dismissal if a proper process and procedural fairness is not adhered to. Recently, the Fair Work Commission (FWC) found that the sacking of bar attendant to be unfair after being dismissed from his employment for bullying, sexual harassment and swearing at his colleagues. Over a period of April 2023 to June 2023, the employer received numerous reports that the bar attendant, Mr Ashburner, was speaking to his colleagues inappropriately including telling them to “get the f*ck out…
Read MoreEarlier this month, it was confirmed that both Houses of Parliament passed the second tranche of amendments to the Fair Work Act 2009 (Cth) under the Albanese Government’s Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill), with amendments as proposed by the Senate last week. We will update our Fair Work Amendment ‘Closing Loopholes’ Act 2023 Factsheet to reflect these changes and will ensure our members are informed about its publication date. It is expected that the Bill could receive Royal Assent later this week. The key amendments that will come into effect after the Bill receives Royal Assent…
Read MoreUtilising employees on a fixed term basis is an important tool for many businesses to undertake projects, cover long-term absences, and manage their workforce. However, as of 6 December 2023, new restrictions on the operation and duration of fixed term contracts have commenced, after being introduced as part of last years’ Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). These alterations carry profound implications for employers, including civil penalties for attempting to avoid these restrictions, so it’s important to understand them and take proactive measures to ensure your business’ compliance. So, what do employers need to know…
Read MoreIn the lead up to the peak retail trade season, employers may have additional hours on offer to staff during busy times. Importantly, beyond being aware of the applicable rates of pay for additional ordinary hours and overtime, employers ought to familiarise themselves with the factors necessary to consider when determining whether to offer additional hours is reasonable, or not. The phrase, “reasonable additional hours” refers to the section 62 of the Fair Work Act 2009 (FW Act) that states that an employee may be required to work up to a maximum of 38 hours per week by an employer…
Read MoreIn a further significant development in the industrial relations arena, the Fair Work Commission (the Commission) announced on Friday that it will be reviewing seven commonly used modern awards. The announcement follows correspondence from the Hon. Tony Burke MP, Minister for Employment and Workplace Relations to Adam Hatcher, President of the Fair Work Commission dated 12 September 2023 requesting a review. The seven modern awards proposed for review are: General Retail Industry Award 2020; Fast Food Industry Award 2010; Restaurant Industry Award 2020; Hospitality Industry (General) Award 2020; Clerks—Private Sector Award 2020; Social, Community, Home Care and Disability Services Industry…
Read MoreIn a timely reminder about wage compliance, the Fair Work Ombudsman has recently persuaded a court to hold a director personally liable for underpayments made to staff. This case serves as a reminder that those who make executive decisions that result in contraventions of minimum conditions, may be held personally liable for such decisions. What is personal liability? The Fair Work Act 2009 (Cth) (Act) provides not only for a company to be able to be held liable for certain actions, but for individuals to be held liable too. Section 550 of the Act provides that “a person who is…
Read MoreSince the passage of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Act), employers have been grappling with how they can meet their duty to proactively prevent sexual harassment. The Act introduced a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sexual harassment, as far as possible. What measures are ‘reasonable and proportionate’ will depend on the organisation and the risk factors that are present, but it is clear that simply responding to complaints of sexual harassment when they occur will not be sufficient. The new President of…
Read MoreAs a manager or human resources professional in the retail or quick service sectors, managing employee performance can easily fall by the wayside amongst the hustle and bustle of day-to-day operations. In many cases, poor performance will fester because employees have not been made aware of their poor performance issues, and because their managers: don’t act promptly and skirt around key performance issues; are afraid of confrontation and dislike engaging in uncomfortable conversations; and/or are simply too busy to address the problems. However, businesses that fail to take adequate and swift action when performance issues arise are likely to face…
Read MoreThe entitlement to 10 days of paid family and domestic violence leave (FDV Leave) has now been extended to small business. Effective from 1 August 2023, small businesses must ensure that they are complying with their obligation to provide up to 10 days paid FDV Leave to their employees (as opposed to the previous 5 days). Who is entitled to the FDV Leave? FDV Leave is available to all employees who are experiencing family and domestic violence, who need to do something to deal with the impacts of that family and domestic violence, and find it impractical for them to…
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