A recent Federal Circuit Court judgment (WorkPac v Skene [2018]) has turned the commonly understood definition of a ‘casual employee’ on its head, bringing to light the fact that employers could be blissfully unaware of the fact that their labour hire workers or casual employees are in fact permanent employees!

Celebrity Chef George Calombaris is under fire for reportedly underpaying 515 past and current workers a staggering $7.8 million in wages.

Last week the Fair Work Ombudsman slapped the celebrity Chef and his Made Establishment business with a $200,000 fine for the underpayment wages to past and current employees.

There are some significant changes coming to the Real Estate Industry Award (‘the Award’) commencing on 2 April 2018.

If you are an employer in the Real Estate sector, it is crucial that you are up to speed with the latest changes so that you can put systems and procedures in place to ensure you meet all the required minimum standards.

Employers in the construction, clerical, food, manufacturing, telecommunications, storage and wholesale industries are among the many industries whose minimum Modern Award wages will be increasing on 1 November 2020.

Each year the Fair Work Commission reviews the minimum wages contained in all Modern Awards and this year it announced a 1.75% increase to minimum wages on 19 June 2020.

Whilst the wage increases usually apply from 1 July for all Modern Awards, this year the Fair Work Commission postponed a number of increases to industries hit hard by the COVID-19 pandemic. All Modern Awards were broken up to three groups, with Group 1 increases starting on 1 July 2020, Group 2 commencing on 1 November 2020 and lastly, Group 3 commencing on 1 February 2021.

The full list of awards that will be increasing on November 1 include:

The third group of awards that will increase on 1 February 2021 include:

To learn more about the Fair Work Commission’s wage increase or to speak to one of our Workplace Relations specialists, contact Enterprise Legal today.

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Obviously one of the biggest areas of uncertainty regarding the impacts of COVID-19 is on staff. Our expert Employment Law Team has put together the following overview, regarding standing-down employees and making employees redundant as a result of the current pandemic.

Employee Stand-Down

Pursuant to sections 524 and 525 of the Fair Work Act, employers can stand employees down without pay during a period in which the employee cannot usefully be employed because of:

• equipment breakdown;
• industrial action, when it’s not organised by the employer; or
• (most relevant given the corona virus outbreak) stoppage of work for which the employer cannot be held responsible.

During a legitimate stand down period, employees do not need to be paid but they will accrue leave in the usual way.

Whether a particular employee can be usefully employed is a question of fact to be determined having regard to the circumstances that face the individual employer and the specific employee. “Usefully employed” has not been defined, but Courts have in the past determined that if an employer is able to obtain some benefit or value for work that could be performed by the employee, then the stand down provisions will not apply.

For example, let’s say a local take away shop has to ‘shut its doors’ due to a government lock-down proclamation, then it may be reasonable to stand the front-line employees down without pay, but employees who do accounts, bookkeeping, marketing and alike may not be eligible to be stood down because there may still exist an opportunity for them to be ‘usefully employed’.

Awards, Enterprise Bargaining Agreements and Employment Agreements could alter the statutory position above, so EL always cautions clients against taking an action as drastic as stand down without pay until considered legal advice tailored to that client’s business and the specific employee(s) have been obtained.

Because of the significant impacts stand down without pay can have on employees, EL would treat such a step with extreme caution. Fair Work guides at the moment are saying that ‘best practice’ would be to discuss different options with each employee, and consider letting employees take leave on the basis of paid leave such as sick, annual, long-service etc. where available, or to allow them to work from home where possible.

However, EL recognises that sometimes when there is a stoppage of work, standing employees down without pay may be the only option available to our clients, and in those circumstances we encourage clients to contact us for a tailored, short-form advice from $1,350.00 (including GST).

Redundancy Option

Some EL clients may see their business take such a downturn that they need to consider making employee(s) positions redundant.

Essentially, a redundancy could be a potential strategy for employers where an employee’s position is no longer required by the employer due to restructure or operational changes in the employer’s business, which renders the position unnecessary. The work or role must no longer be required to be performed by any employee.

The Fair Work Act has strict requirements that employers must meet prior to qualifying for the redundancy provisions, and a relevant Employment Agreement, Award or Enterprise Bargaining Agreement may create complimentary and/or additional onerous obligations on employers in this regard.

Given the current climate, EL’s advice is to approach any redundancy decision with caution, and always ensure you have sought tailored legal advice so as to minimise any risk or unnecessary exposure to your business.

Contact Us

Our expert Employment Law team can also assist your business by developing a range of customised and appropriate policies and documents – please contact us to obtain a fixed fee quote for these services. In the interim, our team has prepared a generic Coronavirus Policy for your free download and use, to ensure that your business is on the front-foot.

The application of the existing law to the current situation is rapidly-developing, so we encourage all clients to ensure they regularly check our platforms for updates or to contact us directly with any concerns that they have.

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Fixed term contracts are back in the spotlight after a recent decision of the Fair Work Commission in Michael Nasr v Mondelez Australia Pty Ltd [2021] FWC 2802 (Nasr), where the Commission held that an employee engaged over a 30-month period under eight separate and successive fixed term contracts, was not dismissed within the meaning of section 386(1)(a) of the Fair Work Act 2009 (Cth) when his last contract came to an end.  

Why is this important? Well, as a general rule, employers need to be very careful when engaging workers on rolling fixed-term contracts, even if there are legitimate business reasons to do so, because there is the risk that such contracts build an expectation that the employment relationship (not just the employment contract) will continue following the expiry of the contract, leading to potential unfair dismissal claims when the final contract is not renewed.

The decision in Nasr sheds some useful light on how employers may still be protected under section 386(2)(a) of the Fair Work Act 2009 (Cth) in circumstances where an employee’s employment is terminated at the end of a fixed term contract.

What Happened?

Following a period of casual engagement as a labour hire worker with confectionery and food giant Mondelez, Mr Nasr was subsequently employed directly by the company over a 30-month period under eight separate and successive fixed term contracts (ranging in duration from one month to 12 months), prior to his final contract expiring on 31 December 2020.

Following the cessation of his employment, Mr Nasr subsequently lodged an unfair dismissal claim and sought to be reinstated in his position on the basis that by his eight contract he had a reasonable expectation of ongoing or permanent employment. Mondelez, on the other hand, claimed that there had been no dismissal within the meaning of s386(1)(a) of the Fair Work Act 2009 (Cth) as Mr Nasr’s employment had not been terminated at the initiative of Mondelez. Instead, his employment came to an end at the expiry of his contract, which is excluded from the meaning of dismissal under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

The Decision

The Commission held that Mr Nasr’s application had no jurisdiction to proceed, on the grounds that his employment had not ceased at the initiative of his employer and Mondelez were subsequently protected under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

The Commission relied on the decision of Khayam v Navitas English Pty Ltd which confirms the principles in determining whether a dismissal occurred ‘at the initiative of the employer’ when an employment contract reaches its expiry date. Such principles include (inter alia):

1. where a series of fixed-term contracts exists, the question is whether the parties genuinely agree that the employment relationship in totality (not just the employment contract) would come to an end at the expiry date of the last contract and importantly;
2. where it has been agreed that a contract will end on a particular date the parties have not agreed that the employment relationship would also terminate, it is arguable that there is an expectation of an ongoing employment relationship and therefore the termination of employment at the end of the contract may still constitute termination at the initiative of the employer; and
3. where the terms of a fixed-term contract reflect a genuine agreement that the employment relationship is not to continue following the end of the contract, the relationship is terminated by agreement, not at the initiative of the employer.

The Commission found that each of Mr Nasr’s contracts contained a clear expiry date and expressly stated that Mr Nasr’s employment (not just the contract) would terminate at the end of the relevant period, and also that there was no guarantee of further employment beyond the expiry date. It was also important that Mr Nasr was not working in the same position under each of the contracts, moving between departments and in various roles which further supported the Commission’s views that the contracts were necessary based on the genuine operational requirements of the company and that there was a real indication that Mr Nasr’s engagement was limited to the scope of each contract.

While the Commission recognised that Mr Nasr had been employed under successive fixed-term contracts for a “greater period than is ordinarily the case”, the Commission accepted that there were genuine operational reasons for him to be engaged under the rolling fixed term contracts.

Important Message for Employers

It is encouraging to see the Fair Work Commission recognise and uphold the genuine and useful role fixed term contracts have in the workforce, however it is also a very important reminder to employers that fixed term contracts need to be done right or the exposure could be significant. Had Mondelez’s contract not been well drafted, the company would have no doubt been exposed and the Commission has set the bar for what is required in order to be protected under section 386(2)(a) of the Fair Work Act 2009 (Cth).  

If you’re wanting to have a chat about whether your current fixed term agreements are up to scratch, or if you would like some guidance on the most appropriate way to engage your employees, contact our dedicated Workplace Relations team today:

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With businesses starting to receive JobKeeper payments, the economy is in the midst of transitioning to the ‘new normal’ and business owners are finally starting to feel like they can, at least somewhat, breathe again. Consequently, now is the time to ‘take stock’, conduct an audit and ensure that the measures that your business implemented (most likely in haste), over the past few months are not now leaving your business exposed to potential claims and other legal risks.  

Notably, a new section was introduced into the Fair Work Act 2009 (the Act), which allows the Commission to deal with disputes specifically regarding employer ‘JobKeeper directions’. This dispute mechanism allows for employees to lodge an application (at no cost) detailing their dispute, to which an employer must then respond to the application in the relevant time frame. Once the application and response has been submitted, the Fair Work Commission will deal with the dispute via arbitration, mediation, conciliation or alike, and it has broad powers to make orders “to give effect to a direction, set aside the direction, substitute the direction for a different direction or any other direction it considers appropriate”. There are also civil penalties that can be imposed on the employer, in certain circumstances.

New figures revealed by the Fair Work Commission show that its overall workload is already up by 40% compared to April 2019, with the increase apparently due to more cases about unfair dismissal, JobKeeper directions and JobKeeper payment disputes.

As at 7 May 2020, the Fair Work Commission had already received 212 disputes pertaining to the JobKeeper scheme, with the leading dispute topic being JobKeeper directions pertaining to changes to employee working hours. 

Most businesses had to respond quickly to be able to adapt to the COVID-19 impacts and this saw a number of businesses taking drastic measures both in the restructuring of their businesses (such as new service offerings and operating hours), but also in the restructuring of their employees and the basis on which they are employed (such as reduced hours, different hours, change of duties and roles, change of location of work and so on). Most of these changes to employees’ employment can be made legally in certain circumstances, provided they strictly comply with the requirements of the Act. The problem is, most of these changes were made in a ‘reactive’ manner by businesses and when businesses ‘react’ they can often fail to comply with the myriad of applicable legal requirements. 

Here are a few things that employers must know in relation to JobKeeper payments:

• no employer is entitled to (and is taken never to have been entitled to), a JobKeeper payment unless it complies with record keeping requirements under the relevant Acts and Regulations - this could very well mean, that if employers and businesses have been receiving JobKeeper payments but they did not comply with the record keeping requirements, they could be required to repay the JobKeeper payments;

• JobKeeper enabling directions cannot be made retrospectively - this means that directions given before the Act was amended on 9 April 2020 are not authorised, meaning they could be construed as unlawful and employees may have remedies against their employers in this regard (or civil penalties may apply);

• JobKeeper enabling directions will not be valid unless an employer gave the requisite written notice to employees (3 days before the direction commenced) and consulted with the employees in accordance with the requirements under the Act; and

• the JobKeeper payments must be dealt with strictly in accordance with the relevant parts of the Act, otherwise the employer risks a claim by the employee and also civil penalties being imposed against the employer.

The above examples are a mere snapshot of certain key considerations that employers ought to turn their mind to, so as to avoid unnecessarily exposing their businesses to legal claims and potential civil penalties. 

It is now critically important that businesses audit the decisions they made over the past few months, to ensure those decisions strictly complied with the relevant laws, regulations and rules. Where it is found that decisions didn’t comply, a number of corrective measures are available to businesses to correct or mitigate any potential impacts.  

If your business needs assistance, our team of employment law experts are standing by ready to guide you through this audit process. 

EL has further put together an exclusive JobKeeper Audit Package, available to the first five businesses (with under fifteen employees) who contact us, under which we will audit your business and provide you with a compliance report and summary of required corrective measures (if necessary) for a fixed fee of $2,200.00 (incl. GST).

Call our team today to take advantage of this exclusive offer:

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Employees covered by the Nurses Award 2010, Health Professionals and Support Services Award 2020 and Aged Care Award 2010 who are employed by residential aged care providers or are required to work in residential aged care facilities are now entitled to two weeks’ paid pandemic leave following a recent announcement from the Fair Work Commission. 

What is the Entitlement?

Permanent and casual employees engaged on a regular and systematic basis under the aforementioned modern awards are now entitled to take up to two weeks’ paid pandemic leave on each occasion they are prevented from working when:

• the employee is required to self-isolate or quarantine by government or medical authorities or their employer;
• the employee is required to self-isolate or quarantine following receipt of medical advice because they are displaying symptoms of COVID-19 or have come into contact with a person suspected of contracting COVID-19;
• the employee is isolating while they await their tests results;
• because of measures taken by the government or medical authorities in response to the COVID-19 pandemic. 

Are There Exclusions?

Yes, employees will not be entitled to access paid pandemic leave if:

• they are not covered by the aforementioned awards;
• they are able to work from home or remotely;
• circumstances dictate that they should access personal/carer’s leave (for example, if the employee was actually unwell, they would be entitled to personal leave);
• they are covered by an Enterprise Bargaining Agreement that does not expressly incorporate the aforementioned awards.
  Importantly, the leave is conditional on employees taking a COVID-19 test at the earliest opportunity. 

Employees requesting pandemic leave are also required to: · provide their employer with notice and the reason why they are taking the leave, as soon as practicable; and if required · provide evidence that would satisfy ‘a reasonable person’ that the leave is being taken for one of the specified reasons; and produce a medical certificate.

Employees are still entitled to workers’ compensation if they test positive for COVID-19 and their paid pandemic leave ceases, provided COVID-19 was contracted during their employment. 

What About Other Industries?

At this point in time it is uncertain whether or not this entitlement will be broadened to other modern awards and employers in other industries are understandably curious and nervous. The Fair Work Commission, in their statement, confirmed that the paid pandemic leave is in response to “The seriousness of the position in the aged care sector”, however time will tell if this will broaden further in the rapid changing times. 

If you have any questions or need any support with your workplace during these times, do not hesitate to contact EL's Principal Legal Advisor – Workplace Relations, Amie Mish-Wills:

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The Fair Work Commission (the Commission) has stepped in to provide support for the real estate industry and commission-only real estate agents who are covered by the Real Estate Industry Award 2020 (the Award), by removing the months of May, June, July, August, September and October 2020 from the calculation of Minimum Income Threshold Amount (MITA) for the preceding 12-month period.

The MITA will be subsequently adjusted in proportion to the number of months disregarded, provided that, where the commission-only employee’s review date falls partway through any COVID-19 month, that month may only be disregarded where the review is due after the 14th of the month.

The Commission has also amended the Award to suspend the eligibility for the engagement of further commission-only agents for the period 6 August 2020 to 1 November 2020. Specifically, the Award has been amended to state:

“An employee who is not employed as a commission-only salesperson as at 6 August 2020, shall not be eligible to be employed on a commission-only basis prior to 1 November 2020.”

The aforementioned changes are in operation from the 6th of August 2020, however, for those recently employed, they do not take effect until the start of the employee’s first full pay period that starts on or after 6 August 2020.

You can read the Commission's decision on The Treasury's website.

Changes to JobKeeper

The recent changes to JobKeeper announced on the 7th of August 2020 will also provide an element of reprieve for some, with businesses now only needing to demonstrate that their GST turnover has fallen in one quarter, instead of two, in order to qualify for the recently extended scheme.

Instead of the requirement to demonstrate a decline in turnover for both the June and September quarters, the 7th of August 2020 announcement confirms businesses will now only need to show that GST turnover has fallen in the September quarter, compared to the corresponding period in 2019.

Employee eligibility and payments have also changed, to the extent that the scheme has been amended to cover those who have been working since at least 1 July 2020, instead of the original deadline of 1 March 2020. The payment rate will also drop from October to $1,500 to $1,200 for full-time workers, and to $750 for part-time workers, before dropping again in January to  $1,000 per fortnight for full-time workers and $650 for part-time workers.

Employers will need to use the two fortnightly pay periods to either 1 March 2020, or 1 July 2020 to calculate JobKeeper payment tiers and if an employee has been eligible for JobKeeper since March 1, the fortnightly period with the highest number of hours worked should be used. 

Click here to read the 7 August 2020 announcement from The Treasury detailing the changes to JobKeeper.

If you have any questions or need any support with your workplace during these times, do not hesitate to contact EL's Principal Legal Advisor – Workplace Relations, Amie Mish-Wills:

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The recent decision in Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867 highlights the risks employers will face if they reduce the hours of their employees without consent.

Broadlex, a cleaning company, experienced a downturn in business which triggered it to advise full-time employee, Ms Vrtovski, that her employment status would be reduced from full-time to part-time, reducing her hours from 38 hours per week to 20 hours per week (with a proportionate reduction in salary).  

Ms Vrtovski declined to sign a form consenting to the change but nevertheless worked the reduced hours as she felt she had no choice. She later filed a dispute and upon examination, Justice Katzmann of the Federal Court of Australia held that Ms Vrtovski was entitled to redundancy pay on the grounds that:

1. Section 119 of the Fair Work Act 2009 (Cth) confirms that a redundancy requires:

• the employee’s employment to be terminated
• the termination to be done at the employer’s initiative because it no longer requires the job to be done by anyone.

2. by reducing Ms Vrtovski’s hours without consent, Broadlex had repudiated her contract of employment, which was accepted by her when she refused to sign the consent form. This, in turn, had the effect of terminating Ms Vrtovski’s full-time employment and when she commenced working on a part-time basis, she did so under a new contract of employment;

3. as the termination of Ms Vrtovski’s employment was initiated by Broadlex (when they changed her employment to part-time), who did not require her full-time role to be done by anyone, Ms Vrtovski’s circumstances met the requirements of section 119 and she was therefore entitled to redundancy pay.

Lesson for Employers 

The decision in Broadlex serves as an important reminder that employers need to be very careful when making changes to an employee’s employment.

If you find yourself in a situation where you are considering making similar changes within your business, we encourage you to contact EL's Principal Legal Advisor – Workplace Relations, Amie Mish-Wills for advice & support:

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An employer has been ordered to pay full redundancy entitlements to employees despite offering them other employment arrangements.

The recent decision of Lee Crane Hire Pty Ltd v Sneek and Ors [2020] FWC serves as an important example of when an employer will be required to pay redundancy entitlements to employees, despite offering them alternative means of employment.

What the Fair Work Act 2009 (Cth) Says:

Section 120 of the Fair Work Act provides a mechanism for employers to apply to vary the amount of redundancy pay owing to an employee (which may be reduced to nil) in circumstances where the employer obtains other acceptable employment for the employee (and they reject it) or the employer simply cannot pay the amounts owing. 

What is ‘Other Acceptable Employment’?

If an employer is able to prove that it offered an employee other acceptable employment and the employee rejected such employment and sought payment of their redundancy entitlements instead, an employer could request the Fair Work Commission reduce the redundancy pay potentially to nil.  

The onus of proving that the alternative employment is acceptable rests with the employer. There is a body of case law which has set the bar particularly high and involves consideration of a range of non-exhaustive factors including, pay levels, hours of work, seniority, fringe benefits, workload, job security, work location, continuity of service, accrual of benefits, probationary periods, as well as the employee’s skills, experience and physical capacity. The location of the other employment must also not be unreasonably distant from the employee’s original place of work. 

So What Happened in Lee Crane v Sneek?  

Lee Crane v Sneek is a prime example of how the Fair Work Commission assesses ‘other acceptable employment’ and is a cautionary tale for employers, particularly those who may wish to offer casual or far away employment to soon-to-be redundant employees. Here’s what happened:  

• Lee Crane Hire operates a mobile crane hire business in Gladstone and operates another depot at Biloela (121kms inland from Gladstone). There had been a downturn in business of the Gladstone Depot such that the business could no longer guarantee full time work to the employees based at the Depot. The owner of the business decided to close the Gladstone Depot and operate all his business through the Biloela depot.

• Employees Sneek, Wiemers and Kennedy worked at the Gladstone depot and were offered two alternatives to a redundancy:

1. 1. continue in the same role, but be based out of Biloela and Gladstone with the only Depot being in Biloela. This option would include payment for time spent travelling to work and accommodation, the same hours of work, a company vehicle supplied, the same salary and leave entitlements. Additionally, as the role was the same mobile crane operations role, the travel to different sites would be largely unchanged; or
   2. to take on casual employment for Lee Crane Hire in Gladstone, this would involve the employees performing the same work, however there would be no guaranteed hours of work.

• Sneek, Wiemers and Kennedy declined the above options and were terminated on the 31^st of March 2020.

• Lee Crane Hire filed an application in the Fair Work Commission seeking the redundancy pay of Sneek, Wiemers and Kennedy be reduced on the grounds that it offered them ‘other acceptable employment’.

• When assessing the alternatives offered to the employees, the Fair Work Commission viewed both alternatives in the negative, and stated: 

• • [29] It is the devil’s alternative: move to a new location some 121kms away and incur a practical detriment on a continuous basis or, keep your job, but as a casual with no assurance of work in an evidently declining market. This should not be classified as acceptable alternative work that would release the employer from their obligation to pay out a redundancy entitlement. In short, the travel to Biloela makes the options, in line with the authority cited, unreasonably distant.
  • [35] My considered view is that the two employment options offered by Lee Crane Pty Ltd are not ‘acceptable other employment’ for the purpose of s.120(1)(b)(i) of the Act.

Ouch.

• Lee Crane Hire were ordered to pay Sneek, Wiemers and Kennedy their full redundancy entitlements which equalled 16, 12 and 7 weeks respectively.

Triple ouch.

What’s the lesson?

Employers need to tread very carefully when navigating redundancies and further, they need to ensure that any offers for other employment are indeed ‘acceptable’ based on the Fair Work Commission’s assessment criteria. 

It goes without saying that if you are wondering if your redundancy process is correct or you are wishing you had some expert assistance to ensure your redundancy alternatives are not labelled “the devil’s alternative”, do not hesitate to contact our Principal Workplace Relations Team: 

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Article last updated 2 June 2023

We can all be forgiven for thinking that employee bonuses are and always will be, subject to the complete discretion of the employer, but what if you were told that that isn’t always the case?

The recent decision in Subasic v Hewlett Packard Australia Pty Ltd [2020] ACTSC 2 has continued to chip away at the ‘absolute discretion’ defence and confirmed that an employment contract that states a bonus is “in the absolute discretion” of the employer, doesn’t mean the employer has the unlimited power to change how the bonus is paid or withhold payment and in fact, such a decision will be a costly one.

So What Happened?

Melinda Subasic was employed by Hewlett Packard Australia Pty Ltd and her contract of employment included the payment of an incentive scheme that was “subject to change or cancellation at [the employer’s] discretion”.

Subasic’s performance was of such a high standard that she generated a significantly large incentive payment of $446,250.39 under the incentive scheme and when it came time to pay up, Hewlett Packard Australia Pty Ltd sought to implement a cap that would limit the amount that she would be paid to just $136,500.00. Understandably, the employee sued.

What Did the Court Say?

The Supreme Court of the Australian Capital Territory found that by changing the incentive scheme, Hewlett Packard Australia Pty Ltd breached the employment contract.

It also held that the discretion to change or amend the scheme was to be exercised “honestly and conformably with the purposes of the contract”, which was not evident in this case.  

The Court also found that the employer was not permitted to decide arbitrarily, capriciously or unreasonably that it need not pay an incentive payment where the set objectives had been satisfied.

Quite simply, Hewlett Packard Australia Pty Ltd did not have the discretion to simply impose new terms and decide to withhold the incentive after it was validly earnt.

The employee was awarded $309,750.39 plus interest in the sum of $61,568.19 and Hewlett Packard Australia Pty Ltd was ordered to pay costs.

The Lesson for Employers

The decision in Subasic v Hewlett Packard Australia Pty Ltd [2020] ACTSC 2 is a worthwhile reminder to employers that ‘absolute discretion’ isn’t actually absolute and employers should plan ahead and tread carefully when implementing and managing employee incentive schemes.  

It is also a worthwhile reminder that withholding employee incentives is a dangerous option as businesses look at ways to reduce costs in the wake of COVID-19 and it is vital to get sound legal advice before taking steps that could cost your business far more in the long run.

Enterprise Legal is aware that this case has been appealed however the appeal was dismissed and therefore the contents of this article remain current. 

If you would like to know more or you would like to speak to one of our Workplace Relations specialists, contact Enterprise Legal today for a free introductory consult:

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After the year that has been, it is understandable that a lot of workplaces will be gleefully looking forward to kicking back a few bubbles and toasting to end of 2020.

But it is important to sing the tale of fateful Christmas parties past and remind employers and employees that the laws of reasonable management action, workplace health and safety and misconduct continue to apply and will land both employers and employees on the naughty list if the elves fall off their shelves.  

The Tale of Vai v ALDI

On a not so merry Christmas, the Dandenong ALDI Store and Distribution Centre held their annual Christmas Party in a private function room at the Brownstone Micro Brewery, with all costs, including alcohol paid for by ALDI.  

At the event, Warehouse Operator, Mr Sione Vai, consumed a significant amount of alcohol and had also had pre-drinks before attending the event. He was subsequently cut off by the bar staff and managers and in a drunken state, threw a glass of beer in the direction of his colleagues, narrowly missing them and smashing on the wall behind them. 

Mr Vai was later dismissed for his conduct and brought an application in the Fair Work Commission alleging that he had been unfairly dismissed.

Mr Vai’s claim was unsuccessful on the grounds that:

• ALDI had taken appropriate steps to control and health and safety of its staff by engaging a private venue with Responsible Service of Alcohol obligations to control and serve alcohol to attendees;

• It was not a situation in which it was a case of “help yourself” in regard to obtaining drinks – unlike the decision in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 where an employee’s drunken antics were held to not be a valid reason for his dismissal in the circumstances where his employer provided uncontrolled access to alcohol at a work Christmas function;

• The throwing of a full glass of beer at colleagues was so significant to warrant his dismissal as it could have had significant consequences had they had been hit; and

• Procedural fairness and natural justice were afforded.

Tips for Having a Safe and Merry Christmas

Whilst it is appreciated that it can be difficult for employers to predict all facets of employee behaviour at work sponsored Christmas events, under occupational health and safety laws employers have a legal responsibility to provide a safe work environment for all employees during work related activities, including Christmas parties.

As such, it is vital that in the lead-up to Christmas, employers take steps to implement effective strategies to prevent unwanted incidents and to ensure the safety of employees at work endorsed Christmas functions.

This may include:

• Refreshing employees' awareness of any applicable workplace policies or codes of conduct;

• Reminding employees to drink responsibly and to organise appropriate transport to and from the venue if they intend to consume alcohol;

• Setting clear standards for behaviour and conduct ahead of the event;

• Monitoring alcohol consumption and ensure supply is not uncontrolled (consider ensuring the service of alcohol is carried out by someone who holds a current Responsible Service of Alcohol certification); and

• Taking proactive steps to manage poor behaviour and conduct immediately.

We hope you all have a safe and merry festive season and you all take steps to ensure neither your employees or your business end up on the Fair Work Commission or Workplace Health and Safety Regulator’s naughty list.

...but if you do, always remember that the experienced team at Enterprise Legal are here to help!

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Casual employment has been a hotly contested topic for quite some time, particularly following the controversial decision in WorkPac Pty Ltd v Rossato (‘Rossato’), which was handed down on 20 May 2020.

In a nutshell, the decisions of Workpac Pty Ltd v Skene [2018] FCAFC 131 and Workpac Pty Ltd v Rossato [2020] FCAFC 84 found that casual employees who work regular, consistent hours with a firm advance commitment to work, may be owed leave and other entitlements such as redundancy pay even where they have received a 25% casual loading (double dipping drama).

There will be no easing of casual employment controversy in 2021 as the Rossato decision is off to the High Court and further, the Australian Government recently introduced the Fair Work Amendment (Supporting Australia’s Job and Economic Recovery) Bill 2020 (the Bill) to Parliament.

If the Bill passes Parliament, it will bring about various changes to casual employment, including certainty to employees and employers regarding the rights and obligations of both parties and the definition of a casual employee is proposed to be amended to where an offer of employment is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

Relevant factors to whether there is a firm advanced commitment to work include:

• the ability to accept or reject work;
• whether the employee will work only as required; and
• whether a casual loading is paid;

assessed at the time the engagement is entered into.

If the Bill is successful and in good news for employers, employers will also have the ability to set off any claim for annual leave, personal leave and redundancy pay against the 25% casual loading in an attempt to reduce the potential for “double dipping”.

The laws are currently proposed to work retrospectively, however, there are no guarantees that this will be held to be valid. The Bill also proposes a number of changes to provisions regarding casual conversion, flexible work directions and enterprise agreements – important but less controversial topics.

It is recommended that employers continue to stay up to date with the developments in the casual employment sphere and be prepared for changes in the future. At this stage, the Bill is only proposed and may change before coming into force.

For advice and support with managing your casual workforce, contact our Workplace Relations team at Enterprise Legal today for a complimentary introductory consultation:

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As discussed during our recent Workplace Relations Video, whether a private employer can direct its employees to get the COVID-19 vaccination is a complex issue, with the primary issue being whether or not an employer’s direction for staff to receive the COVID-19 vaccination is lawful and reasonable.

It is commonly understood that employers can direct their staff to do certain things as part of their employment and employees have a legal obligation to comply with their employer’s directions if those directions are lawful and reasonable.

What Makes a Direction Lawful and Reasonable?

A number of matters are considered when determining whether or not a direction is lawful and reasonable, including (but not limited to):

• the express and implied terms of the employee’s contract of employment;
• the nature of the employment;
• established custom and practice in the workplace, trade or industry; and
• the employer’s workplace health and safety obligations;
• the employer’s duty of care;
• the terms of relevant instruments (eg a modern award and enterprise agreement), and any applicable legislation.

Some examples of directions that might be given by an employer to an employee include a direction to:

• participate in a workplace investigation;
• undertake a medical examination for the purpose of assessing fitness for work;
• comply with work health and safety laws;
• stay away from work or work from home to prevent the risk of exposure to, or spread of a contagious illness;
• report misconduct;
• prioritise projects in a particular way; and
• adhere to a dress code.

In the case of a direction for staff to receive the COVID-19 vaccination, whether such a direction is lawful and reasonable will vary depending on the circumstances of the employer, employee, the workplace and the industry.

As discussed in our video, what is reasonable in the context of an aged care facility, will differ significantly from a marketing office and understandably, one size does not fit all.

Various factors may impact the lawfulness and reasonableness of a direction for staff to receive the COVID-19 vaccination, including:

• whether the employer’s genuine and reasonable work health and safety obligations dictate a particular response;
• whether the employee can reasonably perform the inherent requirements of their role without being vaccinated;
• whether the employer’s common law duties of care owed not only to the employee but their clients dictate a particular response; and
• whether there are legislated or government-issued directions in place that require compliance.

Employers also need to be mindful of whether or not the direction constitutes discrimination or an infringement on a protected human right.

What if it is 'Reasonable' and the Employee Disobeys?

Breach of the implied duty of obedience is by its very nature a breach of the contract of employment, and in principle will attract the normal remedies for breach of contract. More often, employers will consider the following options in response to a failure to obey lawful and reasonable directions:  respond to a breach by either:

• declining to take action;
• disciplining the employee.

Before taking disciplinary action against an employee for disobeying a direction, employers should always consider:

• Whether the direction lawful and reasonable;
• For directions contained in a workplace policy, was the employee required to read and acknowledge the policy? Was the employee trained in the policy and was it consistently enforced?
• Was the employee made aware of the consequences of failing to comply with the direction?
• Would the proposed disciplinary action be proportionate in the circumstances?
• Is the employee of long-standing with a good employment record?
• Can adjustments be made to the employee’s role or can they be suitably redeployed into a position where the vaccination is not required?

As you can see, the issue of whether or not an employer can direct staff to receive the COVID-19 vaccination is not straight forward and it is important employers navigate this issue with caution.

The issue has not yet been determined by the Fair Work Commission, and the matter of Glover v Ozcare [2021] FWC 231 may shed some much needed light on the issue if it proceeds to a formal decision as the employee, in this case, was dismissed after they refused to get the influenza vaccine on medical grounds.

Enterprise Legal's Workplace Relations team can assist with assessing whether or not such a direction is lawful and reasonable based on your workplace, employees and industry. Our team can also assist with issuing and managing the rollout of such a direction, assisting you every step of the way.

Reach out to us today:

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The Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2020 (Act) is now law, a watered-down version of the Federal Government's original IR Omnibus Reform Bill (the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 (Bill)) having passed through both houses of Parliament on the 22^nd of March 2021.

Whilst it won’t commence until it received Royal Assent, we thought we would summarise some of the key points relating to the big changes for casual employment.

Finally, a Definition of a Casual Employee

Excitingly, the Fair Work Act will now define a casual employee as an employee who accepts an offer of employment which makes 'no firm advance commitment to continuing and indefinite work according to an agreed pattern of work'.

This is very important and exciting as up until now, the Fair Work Act has not defined a casual employee and this has caused much contention and pain for employer, employees and the Courts.

To work out if there is a 'firm advance commitment' only the following factors can be considered:

• whether the employer can elect to offer work and whether the person can elect to accept or reject the work;
• whether the person will work only as required according to the needs of the employer;
• whether the employment is described as casual employment; and
• whether the person will be entitled to any casual loadings or a specific casual rate of pay under the offer of employment or a Fair Work instrument.

A regular pattern of hours does not of itself indicate a 'firm advance commitment'.

The question is to be assessed at the time of the offer and acceptance of employment, and without regard to any party's subsequent conduct during the employment.

Casual Conversion

Employers (other than small business employers (less than 15 employees)) will be required to offer to convert any casual employee to full-time or part-time employment if the employee:

• has been employed for at least 12 months; and
• for at least six of those 12 months, has worked a regular pattern of hours on an ongoing basis that, without significant adjustment, could continue to be worked as a part-time or full-time employee,

unless there are reasonable grounds not to do so.

Casual employees will also have a residual right to request conversion to full or part-time employment themselves. Employers can only refuse such requests on reasonable grounds (set out in the Fair Work Act) and must respond in writing within specified timeframes. In the event of a refusal, employers must consult with the casual employee before formally refusing their request for conversion.

There is a 6 month transition/lead time for employers to make offers of conversion to all existing eligible casuals, unless they have reasonable grounds not to.

New Information Sheet

Similar to the Fair Work Information Statement (which is required to be provided by employers to all new employees), employers will need to provide a copy of the Fair Work Ombudsman Casual Employment Information Statement to casual employees before, or as soon as practicable after their commencement. This information sheet is yet to be published and it will be interesting to see what it contains.

Incorrect characterisation and offset provision

If a court finds that a current or former employee has been incorrectly characterised as a casual, the court will be able to offset any identifiable casual loading paid to the employee against claims for certain entitlements.

Importantly, the employer must have properly attributed the loading as being paid for that purpose.

It is vital, now more than ever, to ensure employers have in place well drafted contracts of employment as they will be imperative in enforcing this provision – particularly with respect to carving out the casual rate of pay and loading and defining what the loading is in fact compensation for.  

Where to From Here?

Employers who have not yet taken steps to review their casual workforce, their rosters and contracts of employment should do so now.

For advice and support on how these changes may impact your workplace and to implements measures to support and safeguard your business, contact Enterprise Legal’s Workplace Relations team today:

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Employers need to ensure they are aware that the superannuation guarantee will increase from 9.5% to 10% on 1 July 2021 and then continue to increase incrementally by 0.5% each year thereafter until it reaches 12% by 1 July 2025.

Be sure to add the below dates and rates into your calendars to ensure your business stays up to date with the incremental increases that are on the horizon:

From 1 July 2021, businesses need to ensure that their payroll systems are appropriately adjusted to comply with the increased superannuation guarantee rate and a failure to do so will expose the business to potential charges, fines, interest and administration fees imposed by the ATO.

Employers also need to ensure that they review their current employment contracts and pay close attention to the remuneration they currently provide to employees. If their remuneration package is inclusive of superannuation entitlements, the increased superannuation guarantee may be able to be absorbed into the employees existing remuneration package, however, this will mean their take-home pay will reduce. If the employee’s wage is exclusive of superannuation, additional superannuation will need to be paid.

For workers who are already receiving superannuation contributions above 10%, it is unlikely that any adjustments will need to be made, however, employers should still perform a thorough review for the sake of completeness and to ensure compliance.

If you have any questions in relation to the superannuation guarantee increases or if you would like assistance with ensuring your business is compliant, contact Enterprise Legal’s Workplace Relations team today:

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The Fair Work Commission has just announced that the National Minimum Wage and all wages in Modern Awards will increase by 2.5%.

The new National Minimum Wage will be $772.60 per week or $20.33 per hour from 1 July 2021.

The increases for Modern Awards will be staggered across a select number of Awards.

The General Retail Industry Award 2020 wages will increase by 2.5% on 1 September 2021.

The following Awards will have their minimum wages increased by 2.5% on 1 November 2021:

• Air Pilots Award 2020
• Aircraft Cabin Crew Award 2020
• Airline Operations – Ground Staff Award 2020
• Airport Employees Award 2020
• Airservices Australia Enterprise Award 2016
• Alpine Resorts Award 2020
• Amusement, Events and Recreation Award 2020
• Dry Cleaning and Laundry Industry Award 2020
• Fitness Industry Award 2020
• Hair and Beauty Industry Award 2010
• Hospitality Industry (General) Award 2020
• Live Performance Award 2020
• Mannequins and Models Award 2020
• Marine Tourism and Charter Vessels Award 2020
• Nursery Award 2020
• Racing Clubs Events Award 2020
• Racing Industry Ground Maintenance Award 2020
• Registered and Licensed Clubs Award 2020
• Restaurant Industry Award 2020
• Sporting Organisations Award 2020
• Travelling Shows Award 2020
• Wine Industry Award 2020

All other modern awards will have their minimum wages increased by 2.5% on 1 July 2021.

Learn more about the wage increase: Join Amie Mish-Wills – Principal Legal Advisor Workplace Relations and Alistair Green – Director FocusHR on the 1^st of July 2021 for the Chamber of Commerce Fair Work Legislation Update Breakfast. 

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A childcare worker in Gladstone was dismissed from her role at Goodstart Early Learning (Goodstart) following her repeated refusal to get the flu vaccine, with the Fair Work Commission finding in favour of her former employer in the case of Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156.

Background:

Goodstart had a workplace policy requiring employees to be vaccinated against influenza, stating that vaccines were “mandatory” for employees. Despite this policy, the policy contained an exemption for employees who had medical conditions preventing the administration of the vaccine. Ms Barber repeatedly refused to comply with the policy on the grounds that she suffered from coeliac disease, had suffered an adverse reaction to a previous flu vaccine, and had a “sensitive immune system”.

In attempting to verify Ms Barber’s claims, Goodstart offered to pay for various medical appointments, although following this process, it remained unclear whether Ms Barber was precluded from obtaining the vaccine. In fact, the Commission found that Ms Barber submitted two medical certificates from different medical practitioners, neither providing a “substantive” medical reason justifying her refusal to comply with the policy.

Furthermore, it was noted that Ms Barber was unable to find a doctor willing to complete Goodstart’s pro forma medical certificate which required the doctor to mark a box if they believed her medical condition would place her at an increased risk of an adverse reaction to the flu vaccination. Given that there was an absence of medical evidence to support her concerns, it was held that her refusal to obtain vaccination was more akin to a “conscientious objection” that did not excuse her from the obligation to comply with the policy.

Is a Mandatory Vaccination Policy Lawful and Reasonable?

In her continued refusal to comply with the policy, Ms Barber failed to comply with a lawful and reasonable direction to obtain vaccination. The Commission considered that Goodstart had legal obligations under workplace health and safety legislation to ensure the health and safety of the children in it’s care in addition to employees, with mandatory vaccinations being the most effective way to reduce the risk of transmission of influenza throughout the facility. The Commission also considered that the policy provided employees to be exempt from the vaccination on the provision of sufficient medical evidence, which Ms Barber was unable to do.

The Commission were of the view that Ms Barber worked in a highly regulated industry and was in direct contact with children who did not have fully developed immune systems and were not old enough to be vaccinated. It was relevant to the Commission that the early childhood education industry has a long-standing history of requiring staff to be vaccinated against certain diseases and viruses, and that the vaccination policy implemented by Goodstart was not inconsistent with industry norms.

In determining that Ms Barber’s dismissal was fair, the Commission drew particular attention to the careful process followed by Goodstart in that the process took a number of months and provided the employee with multiple opportunities to provide additional information and to respond to their concerns and requests.

Can Other Businesses Introduce a Mandatory Vaccination Policy?

The Commission’s decision confirmed that lawfulness and reasonableness of a direction for an employee to be vaccinated must be determined on the consideration of a number of factors, including:

1. the type of vaccine that is involved;
2. the type of workplace the employee works in;
3. the nature of the industry; and
4. the individual themselves, including whether any medical exemptions may be applicable.

While such a direction was deemed to be reasonable in the context of early childhood education where hands-on care is provided to vulnerable members of the community, it is unlikely that the decision could be applied more broadly to other industries or workplaces.

If you’re wanting to know whether such a policy would be applicable to your business or if you are considering enforcing or implementing a vaccination in your workplace, contact our dedicated Workplace Relations team today:

Amie Mish-Wills
Principal Legal Advisor – Workplace Relations

Anna Fanelli
Legal Advisor – Workplace Relations

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The High Court has overturned the Federal Court decisions in the WorkPac v Rossato(see our previous article: 'Proposed Changes to Casual Employment') that found that employees who worked regular and predictable shifts over an extended period were not in fact casual employees.

To refresh your memory on the previous WorkPac decisions, the Federal Court had determined that Mr Rossato had been given regular and ongoing shifts and should have been classified as a permanent worker, not casual, and awarded the associated entitlements including annual leave. This decision caused panic for businesses with fears that it would open the floodgates for claims of unpaid leave, despite casual workers already being paid 25% loading to compensate for entitlements. 

This decision provides clarity to employers who can now be satisfied they have certainty when it comes to their casual employees. The High Court expressly stated that casual employment can be long-term with a casual employee working regular and systematic hours.

It was found by the High Court that for an employee to be “other than” casual, there must exist a firm advance commitment to continuing work unqualified by indicia of irregularity, such as uncertainty, discontinuity, intermittency and unpredictability. A firm advance commitment is an enforceable promise, not an ‘expectation’ of ongoing work. Unlike the Federal Court, the High Court took the view that, where an employee’s contract is wholly in writing the terms of the written agreement are construed to determine whether a firm advance commitment exists, rather than looking to post-contractual conduct.

The High Court specifically considered the following aspects of Mr Rossato’s employment agreement provided that:

1. his hours of work “may vary” and were a “guide only”;
2. that WorkPac was not required to offer him any assignment, and assignments could be accepted or rejected;
3. either party could terminate on an hours’ notice;
4. in some of his contracts, Mr Rossato had the right to refuse or cancel shifts;
5. the payment of casual loading;
6. that the employment was to be on a casual basis; and
7. that any offered assignment could be varied on one hour’s notice.

While Mr Rossato did receive his rosters far in advance, the High Court formed the view that this was of limited significance and did not provide a commitment to an ongoing employment relationship. In fact, based on the Agreement, it was clear that WorkPac had avoided making a firm advance commitment to ongoing employment.

What Does This Mean For Employers?

While this decision provides some certainty for employers, it is as important as ever for employers to review any employment agreements to ensure that employment agreements reflect a true casual engagement and that the terms are consistent with the recently introduced definition of “casual employee” in the Fair Work Act 2009 (Cth).

If you’re wanting to have a chat about casual employees and whether your current agreements are up to scratch, contact our dedicated Workplace Relations team today:

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