Articles

The $5.2 million question: employer hit with record adverse action order

The Federal Court has handed down what may well be the largest payout ever in an adverse action claim under the Fair Work Act 2009 (Cth) (FW Act), finding that a senior employee was dismissed for making complaints about bullying. Importantly, the case demonstrates the power of the reverse onus of proof in adverse action claims, with the court finding that the FW Act created a presumption the employer had acted for an improper purpose, and the employer had not proved otherwise. Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407   Ready Players One, Two and Three The applicant…

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When do I need to notify WorkSafe of an incident in the workplace?

Over the past weeks, news has tragically emerged of two delivery riders who were fatally struck by vehicles days apart in Sydney. The incidents have sparked renewed calls for more consistent WHS reporting obligations across Australia. When a serious safety incident occurs in the workplace, you may be required to notify the relevant regulator in your state of territory. This not only extends to employees, but also contractors and subcontractors, outworkers, work experience students, and volunteers. Except in Western Australia, if notification is required you must also preserve the site until an inspector arrives or you are directed otherwise. This…

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Employer dodges conviction for child labour offences as regulator flexes muscles

In a stark sign of the times, the Victorian Wage Inspectorate (VWI) has claimed its first criminal prosecution under child labour laws, and emphasized that it stands ready, willing and unafraid to prosecute wage theft offences when it gains that power next year. VWI has flagged a tougher stance on compliance and a greater willingness to exercise its powers to undertake criminal prosecutions. Macleod (DPC) v Elissa Thomas, K10846028 Child employment in Victoria Despite its name, VWI is not limited to prosecuting “wage theft” offences; it is also tasked with prosecuting offences against the Child Employment Act 2003 (Vic). Under…

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COVID Controversy: Obtaining pandemic-relevant information from employees

As businesses navigate the challenges of ensuring the health and safety of their customers and employees during the COVID-19 pandemic, they must be careful to avoid infringing upon the privacy of their employees. A recent decision in the Fair Work Commission is useful for understanding what information an employer can request of its employees, as well as whether disciplinary action can be taken against an employee who refuses to provide requested information. Case: Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources [2020] FWC 3324   Request to complete COVID-19 travel survey In March 2020, One…

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Presumptuous payroll rules end in heavy penalties for employer

By Alex Millman and Lindsay Carroll In a stern warning for employers who “automate” certain parts of their payroll processes, the South Australian Employment Tribunal (the Tribunal) has slammed an employer with significant penalties for automatically deducting unpaid meal breaks from an employee’s day. The Tribunal also imposed penalties for 10 minutes of unpaid time at the start of each shift, and for “voluntary” overtime offered and paid at base rates. In delivering his decision, Deputy President Lieschke imposed a penalty 24 times the size of the total underpayments. The allegations The employee in this case had been engaged as…

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Parliament passes JobKeeper 2.0

This afternoon, Parliament passed the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020 which gives effect to the previously announced extension of the JobKeeper Payment Scheme until 28 March 2021. To continue participating in the scheme after 27 September 2020, employers will need to meet revised eligibility requirements, and reassess their eligibility for each subsequent phase of the scheme. For the period 28 September 2020 to 3 January 2021, employers will need to demonstrate that their actual GST turnover had fallen in the quarter ending 30 September 2020 by at least 30% (or 50% if their aggregated annual turnover of $1 billion…

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“Hopelessly cavalier”: Fair Work Commission cracks down on discriminatory redundancies

By Calum Woods and Lindsay Carroll The Fair Work Commission has taken aim at a family-owned retail business and a financial services firm, both of whom restructured their operations after they were notified that two respective employees had fallen pregnant. In a rare consent arbitration, Compuworld was found to have breached the workplace rights of a full-time Receptionist after she requested time off work to attend medical appointments associated with complications during her pregnancy. Then, less than two weeks later, a small accounting firm in New South Wales, ‘The Advice Spot’ found itself in the spotlight after it unfairly dismissed its part-time Bookkeeper while…

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Transgender inclusion in the workplace

By Thomas Parer and Alex Millman, NRA Legal Seven years ago, on 1 August 2013, it became unlawful across all of Australia to discriminate on the basis of sexual orientation, gender identity, and intersex status under the Sex Discrimination Act 1984. This change was the result of decades of work from activists in the LGBTIQ+ community and their allies to positively shift society’s attitudes towards the LGBTIQ+ community. In particular, it was a major step for the transgender (trans) community, who have long been stigmatised, oppressed, and ostracised from mainstream society. As societal views and attitudes continue to change for…

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High Court confirms status quo on personal leave

By Thomas Parer and Alex Millman, NRA Legal On 13 August 2020, the High Court of Australia delivered its eagerly-awaited judgment in the case Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 (Mondelez v AMWU). The matter dealt with the interpretation of the entitlement to 10 days of paid personal/carer’s leave in the Fair Work Act 2009 (Cth) (FW Act), specifically what is meant by a ‘day’ of leave. The High Court’s decision comes nearly a year after the Full Court of the Federal Court first threw the existing interpretation of the entitlement into question in Mondelez…

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Night on the town sinks compensation claim

by Andrew Piper and Alex Millman, NRA Legal Many employers offer their employees the opportunity to travel during their employment – whether to meet clients or customers, or to attend training, seminars, or conferences, and this is often considered a “perk” of the job. Often these journeys come with a reasonable amount of down-time between formal engagements, during which the employee may choose to socialise, go out, and enjoy their new surroundings. When unfamiliar territory and alcohol are combined, this all too frequently leads to things going wrong. The first priority in such a situation should always be the health and welfare of…

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