BlandsLaw - Blog posts from Fair Work Australia
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Calculating Redundancy Pay: Do previous casual hours count?

A full bench of the FWC has handed down a landmark decision which has changed the previously accepted interpretation of ‘service’ under the FWA and, in effect, turned upside-down the way in which redundancy payments are usually calculated.

Following the decision in AMWU v Donau[1], a permanent employee’s initial period of regular and systematic casual employment with the same employer will now count towards their period of continuous service used to calculate redundancy pay. Whilst many employees will be rejoicing with this news, the decision holds considerable and far-reaching ramifications for employers who will have to pay the price.

The case involved Donau, a Newcastle engineering and ship-building company, who commenced a large scale redundancy process. Initially, the company did not include prior continuous service by casuals in their redundancy pay calculations. The AMWU argued that this was in breach of their enterprise agreement, which specified that redundancy pay is to be calculated according to periods of continuous employment. The dispute then turned its discussion towards the definition of

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Termination for serious misconduct

An employer is permitted to instantly dismiss an employee when their actions amount to serious and willful misconduct. Serious misconduct can severely damage the employment relationship and indicate that the employee no longer wishes to be bound by the employment contract. Typically, this kind of conduct includes theft, fraud, assault, intoxication at work and actions that put other employees and the business itself at risk.

However, the tricky part for employers is knowing when an employee’s actions constitute serious misconduct, and when they don’t. Employers will need to assess the seriousness of the conduct in the circumstances and determine whether the punishment fits the crime. Employers also need to ensure that in all situations they follow a reasonable disciplinary process. Otherwise, employers run the risk that any dismissal will be harsh, unjust and unreasonable.  

The importance of procedural fairness has been a hot topic as of late and even when facing misconduct, employers are urged to follow a fair and reasonable dismissal process. In a recent FWC[1] case,

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Social Media & Unfair Dismissal - A Guide for Employers

The recent decision by a full bench at Fair Work Australia in Dianna Smith T/A Escape Hair Design v Sally-Anne Fitzgerald [2011]FWAFB 1422 (15 March 2011) upholding an unfair dismissal finding is a timely reminder for employers to ensure they observe the correct procedures when considering terminating an employee, and that they have clear guidelines in place for the use of social media where employees comment on their place of work.

Historic Legislation meets Senate approval. Paid Parental Leave Entitlements are here!

 

Australia’s first national paid parental leave scheme has officially passed the vote of the Senate which from next year, will provide 18 weeks parental leave paid at the minimum wage.

Read the full article here

With effect from 1 January 2010, the redundancy provisions in the Fair Work Act, 2009 (Cth) came into operation the result of employers and employees in the national workplace system being covered by the National Employment Standards (NES). The new redundancy provisions bestow a positive obligation on employers to fully explore opportunities within an employer’s wider corporate structure to redeploy. For employers, proactively pursuing and proposing alternate employment opportunities before redundancy termination, will minimise the risk of unfair dismissal or adverse action litigation being brought by employees.

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Various parts of the Fair Work Act came into effect on 1 July 2009. Among them are the provisions enacting the new 'adverse action' jurisdiction of Fair Work Australia (FWA).

The ‘adverse action’ provisions under the new industrial relations legislation will compel employers to be more cautious when making decisions that affect employees.

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On 1 January 2010 the modern award system provided for in the Fair Work Act 2009 will come into effect. It is possible that awards will cover employees who were previously regarded as ‘award free’, even though this was not the stated intention of the modern award process. Employers will need to determine which employees will be covered by which modern awards or face exposure to penalties of up to $33,000 per breach. Click here to read more

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