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The Federal Circuit Court has imposed a record $238,920 penalty on a company providing an airport shuttle service from Newcastle to Sydney airport, for underpaying its drivers. 

Interestingly, the Fair Work investigation arose not from an employee complaint, but as part of a national compliance campaign focussed on sham contracting. The penalty imposed was made up partly of breaches relating to misrepresentation of employees as contractors, and partly for failing to meet award requirements.

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While there is no general entitlement to unpaid leave under the Fair Work Act 2009, there are some provisions that deal with the question of when unpaid leave can be taken. In other cases it is a matter for agreement between the employer and employee.

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We regularly provide advice around redundancy and know from practice that it can be an area fraught with pitfalls. To meet the test for genuine redundancy under the Fair Work Act the redundancy process must include the employer exploring, with the employee, any available redeployment options. Related to this concept is that of ‘alternative acceptable employment’ which may affect the redundancy pay.

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Social media in the workplace: practical tips for best practice policies

Internet Law Bulletin (Lexis Nexis) – June 2013

Andrew Bland and Sarah Waterhouse look at the rise in employment law decisions involving social media, particularly in unfair dismissal cases, and examples of emerging case law including the recent appeal in Linfox Australia Pty Ltd v Glen Stutsel. This paper – aimed at legal advisors in the areas of workplace and internet law – proposes that a comprehensive and effectively-implemented policy for employee use of social media is an essential legal risk management tool. It also provides practical hints on what to include in a social media policy for employees.

Click to download article > Internet_Law_Bulletin_June_2013 SM articles

 

The recent federal court decision in CFMEU v Bengalla Mining Company Pty Ltd [2013] FCA 267 held that a warning letter issued for an employee’s unauthorised absence did not amount to adverse action. This case is important as it demonstrates that clearly communicated workplace policies, and consequences for breach, may mean the difference between allowable disciplinary action and unlawful adverse action.

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The recent Fair Work Commission decision in Mr Georg Thomas v InfoTrak Pty Ltd T/A InfoTrak [2013] FWC 1134 highlights the importance for  employers of considering both the substance and the process surrounding redundancy.

In this case, Mr Thomas, an Operations Manager of an IT company, brought an unfair dismissal case alleging that his redundancy was not ‘genuine’ because his employer had not discussed it with him or considered him for alternative positions.

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The Fair Work Ombudsman (FWO) has recently commended McDonald’s Australia for conducting a self- audit on its employees’ wages and other entitlements, leading to improved workplace relations for the 90,000-strong restaurant chain.

McDonald’s had agreed to participate in the self-audit following an unsuccessful attempt to have an enterprise agreement approved by Fair Work Australia. Although the enterprise agreement was approved on appeal, McDonald’s agreed to enter into a Deed to achieve two compliance activities:

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We live in a country that unfortunately experiences catastrophic bushfires, flooding, cyclones and other similarly damaging natural events. If your business  is negatively impacted by a natural disaster, what are your obligations towards your employees during this difficult time? We briefly consider three scenarios affecting the employment relationship in the event of such a disaster.

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Harmonisation background

In late 2012 an Exposure Draft of proposed new federal anti-discrimination legislation was released by the government. The draft bill seeks to harmonise federal anti-discrimination legislation. Currently there are multiple different federal Acts[1] each of which deals with a different ground of discrimination. The proposal seeks to consolidate all these into one piece of legislation which will cover all the different grounds within one standard legal framework.

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A recent tribunal decision in Queensland highlights how important it is for employers to understand the dos and don’ts of performance management. In Ram v Yes Distribution Pty Ltd and Anor[1], the employer, an Optus reseller, required a sales employee to move to their Townsville store when forced to close their Cairns store for business reasons. The catch, however, was that during discussions with the employee about this relocation the employer chose to raise performance issues as part of the discussion. The employee subsequently claimed that she had been discriminated against on the basis of family responsibilities and that her family commitments prevented her making the move from Cairns to Townsville.

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It’s mid February already. If you’re a small to medium business owner you may be finalising your business plan for the year ahead – or perhaps your team has its head down, on the way to achieving its goals for this quarter. Managing your business’ performance effectively entails managing your employees’ performance effectively. An annual performance appraisal is an integral part of this process but should not be the only time that there is feedback between the employer and the employee.

Regular performance reviews enable you to: 

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The Federal House of Representatives Standing Committee on Education and Employment has released its findings on bullying in the workplace. The report, entitled Workplace Bullying: We just want it to stop was tabled on Monday 26 November 2012 and provides 23 recommendations to create a harmonised set of minimum standards and guidelines for the management of bullying in workplaces.

A nation-wide definition of workplace bullying

The Committee recommends the establishment of a national advisory service to offer advice and guidelines to both employers and employees on what does and does not constitute workplace bullying.  To this end it recommends the adoption of a nationally consistent definition of bullying and what constitutes bullying behavior:

“Workplace bullying is repeated, unreasonable behavior directed towards a worker or group of workers, that creates a risk to health and safety.”

This contrasts with the current situation where there is no express prohibition on workplace bullying in any Australian laws, and with different definitions of bullying and no real guidelines in State and Territory legislation. Add

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 Andrew Bland on Switzer's Business program: Linfox, social media and unfair dismissal

Hear Andrew Bland of BlandsLaw discussing with Peter Switzer the recent Linfox v Stutsel case: the Linfox employee who successfully claimed unfair dismissal after his employment was terminated, because he made inappropriate remarks about his managers on Facebook. He was found to be unfairly dismissed by Fair Work Australia because, among other things, he had inadequate knowledge of Facebook, and his employer didn't have an adequate social media policy.

Four important changes to unfair dismissal laws: how they impact you

In October, the Workplace Relations Minister Bill Shorten announced that parliament will implement numerous important changes to the Fair Work Act this year, following an independent review of the Act in June 2012. Chief among these changes are those concerning complaints brought about by employees upon termination of their employment. Here is a summary of the four key changes that we believe will impact positively on businesses and workplace relations.

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Employers beware: Be clear – and legal – when dismissing an employee

If you are a business owner or HR practitioner, consider this fraught scenario: an employee is dismissed after refusing to agree to changes in his employment terms and conditions, and threatening to involve a union – leading to a claim of adverse action against the company. The employer claims the person was terminated for causing a workplace accident, but did not state this reason in his letter of termination. The result: reinstatement of the employee until his case of adverse action against the company is determined.

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