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On 27 March 2021 a number of amendments to the Fair Work Act 2009 (Cth) commenced operation that relate to employment of casual employees and rights and obligations of casual employment.

A number of the changes were introduced in an attempt to remove uncertainty around engagement of casual employees that has arisen in recent cases that deal with the definition of casual employees and their entitlements if a court rules they should properly be classified as a permanent employee.

The legislation includes the introduction of a statutory definition of casual employment, along with provisions that address the double-dipping and set-off implications of the Rossato decision. The amendments also include new casual conversion provisions.

Statutory definition of “Casual Employment”

The proposed statutory definition of casual employment draws on current terminology relied upon by the Federal Court, referring to the absence of any “firm advance commitment” between employers and casual employees that the work will continue indefinitely or follow an agreed pattern of work. The definition is based on the circumstances understood

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Performance Management Done Properly is Not Bullying

In a decision that provides reassurance for compliant employers, the Fair Work Commission has dismissed a former employee’s unfair dismissal claim, stating “It is unfortunately easy to respond to performance or disciplinary allegations, with counter allegations of bullying, but such counter allegations have to be substantiated otherwise they may not be accepted.”


The case involved an employee who claimed she had been forced to resign due to “mental harassment” and bullying by the employer. The employer responded by stating that:

“the applicant has simply taken extreme exception to being brought into a procedurally fair and reasonable performance meeting, being issued a first written warning and being placed on a performance management plan. Any unsubstantiated claims of harassment and bullying made after the fact are a direct result of her objection to being taken through a fair and reasonable performance management process.”

Deputy President Hamilton effectively agreed with the employer, taking into account the timing of the allegations by the employee and the fair and reasonable performance management process that

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JobKeeper 2.0 ending on 28 March 2021: what next?

The Treasurer, the Hon Josh Frydenberg, has indicated that it is likely that JobKeeper payments (and by inference flexibilities) will cease as planned on 28 March 2021. Many employers continue to rely on JobKeeper payments and flexibilities to keep their business going and to keep employees employed.


Employers who have enjoyed the benefits of JobKeeper-enabled directions under the legislation, both those receiving JobKeeper payments and those who are not, are questioning whether they can require employees to continue working reduced hours and what options are available if their business is still not back to pre-COVID capacity.

In the absence of JobKeeper payments, and the associated temporary flexibilities in the Fair Work Act 2009 (FWA) that permit the employer to give JobKeeper-enabled stand down and other directions, employers must abide by the usual requirements under the legislation and case law.

Options for employers include:

  • Stand Down under s.524 FWA:
  • an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of
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Dismissal of Casual Employee Must Be Fair

A recent decision of the Fair Work Commission is a reminder to employers to ensure the dismissal of a regular and systematic casual employee is based on valid reasons and is not unfair, unjust or unreasonable.

It is not uncommon for employers to approach dismissal of a casual employee with the mistaken belief that, as they are not permanent employees, the employer can terminate the employment without cause by providing the minimum notice period (often one hour or one day).

However, provided they have served the minimum employment period, a casual employee employed on a “regular and systematic basis” is eligible to make a claim for unfair dismissal on the basis that there was no valid reason for the dismissal and/or the dismissal was harsh, unjust or unreasonable. “Regular and systematic” has been interpreted widely by the courts to include situations where there is no clear pattern or roster of work, for example if the employee was generally available when requested to work and the engagement was regular enough

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Procedural Flaws Enough for Unfair Dismissal

In two separate recent decisions of the Fair Work Commission, a lack of procedural fairness in the process leading up to dismissal has been found to render the dismissal unfair, despite there being valid reasons for the dismissal in both cases.


In the first decision[1], a golf club had terminated the employment of its head greenkeeper following his failure to prioritise work in accordance with the general manager’s direction and failing to take proper care of one of the greens (leading to shortening of a major tournament). While Deputy President Abbey Beaumont agreed that these were valid reasons for dismissal, she found that the procedural flaws were “unacceptable” leading to a dismissal that was ultimately unfair.


The procedural flaws included:

  • The employee was informed that the board had lost trust and confidence in him and that he should consider resigning
  • The employee enquired about taking his case to the board but was told there was little point
  • The employee was dismissed with immediate effect



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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 focused 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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The Personal Property Securities Act 2009 (Cth) (PPS Act) establishes a new national system for the registration of security interests in personal property. PPS reform introduces fundamental changes to the law of personal property and is also designed to establish one central register (PPS Register) administered by the Commonwealth of Australia.‬

The aim of the PPS reform is stated to be to improve the ability of individuals and businesses, particularly small-to-medium size businesses, to use all their property in raising capital.

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Circumstances may arise in which the employment of your employees need to be terminated. Termination attracts various legal obligations of which employers ought to be mindful in order to avoid or minimise litigious repercussions.

From 1 July next year, the Federal Government's changes to the Work Choices unfair dismissal laws will take effect, which will in turn alter the current legislative termination landscape.

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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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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.

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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Treasurer, Wayne Swan, and Minister for Superannuation and Corporate Law, Senator Nick Sherry, have announced new laws regulating executive termination payments.

Under the proposed new laws, termination benefits for directors and certain senior executive employees exceeding one year’s average base salary will require shareholder approval.

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