BlandsLaw - Blog posts from employers
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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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Clearly an employee who is intoxicated at work will suffer from impaired judgement and may seriously jeopardise their own and other employees’ safety. A common question we are asked is: When can I test employees for drug and alcohol use?

This area is a tricky one for employers as there are competing interests to consider: the employer’s obligation to provide a safe workplace, versus an employee’s right to privacy.

Procedural Fairness v Safe workplace

A recent FWC decision[1] highlights the complexity of this issue. An Ensign employee was summarily dismissed after failing a random drug test, testing positive for methamphetamine, THC and amphetamine. He claims he was wrongly terminated as he did not use drugs, the testing was unreliable and he was denied procedural fairness in the testing and disciplinary procedure.

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Employers generally want to ensure that a potential employee is honest, reliable and trustworthy. Conducting a police check can be a good indication of whether or not a job candidate possesses these qualities; however this may not always be reasonable or appropriate.

What needs to be considered when conducting criminal history police checks?

The first issue to consider is why the police check is required. The employer should ensure that the information is relevant and necessary, and that it will assist them to make a decision about whether the candidate is able to perform the role for which they are being considered and should be offered the job.

Secondly, the employer should take privacy considerations into account. If a criminal history check is to be conducted, the applicant should be informed from the outset about the police check and the timing of when this will occur. Employers also need to ensure that the information collected from the police check is only seen by the appropriate person(s), and that this information

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With the commencement of Modern Awards on 1 January 2010 there were a number of applications made by certain employer groups seeking amendment to the General Retail Award, 2010 which were subsequently determined by Fair Work Australia.

In a full bench decision of FWA last week, the applications were determined resulting in a number of changes to the Award which we briefly summarise in this document: Blandslaw retail changes.

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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Performance Reviews- A Guide for Employers

 

The procedural fairness requirements of the Fair Work Act, 2009, together with recent decisions of Fair Work Australia (FWA), impose on employers an obligation to act carefully and consistently when managing and disciplining employees. This article addresses some practical strategies for effective performance management in the workplace.

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Drug Testing in the Workplace - FWA Full Bench Declares HOW it Can be Done

Recent Fair Work Australia determinations have reiterated that even compulsory testing is a reasonable employer instruction in response to the risks to employee safety posed by drug and alcohol use. However the tribunal has taken a balanced approach in upholding a FWA decision which prohibited urine testing on employees on the basis that it was “unjust and unreasonable”. The tribunal stated that urine testing would potentially detect drugs taken days earlier or over a weekend and this would not be a reasonable indicator of whether the employee was unfit for work on the day of testing.

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