BlandsLaw - Blog posts from Employment Law - Page 12
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Employees can get themselves into all sorts of trouble through the misuse of social media in the workplace. But is social media really to blame? Not in all cases - as this cautionary tale illustrates.

The Fair Work Commission recently rejected an unfair dismissal claim from an employee who used LinkedIn to solicit work for his own private business. The employee showed that he had disclosed to his employer, an architectural design practice, that he did small design projects for private clients outside his normal working hours. The employer had accepted this.

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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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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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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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Under provisions in the Fair Work Act 2009 (FWA), an employer cannot take adverse action against an employee because they possess, or are exercising, a ‘workplace right’. These provisions are found in Chapter 3, Part 1 of the Fair Work Act and are referred to as the ‘general protections’ provisions. General protections included workplace rights, industrial activities and other protections. These general protections are designed to protect freedom of association in particular.

The meaning of a workplace right includes the situation where a person is;

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In a ruling that serves as a warning to employers, the Federal Magistrates Court rejected an employer's contention that pre-employment negotiations were not binding.

In the case of McRae v Watson Wyatt Australia Pty Ltd, Federal Magistrate Raphael found that a redundancy provision that was discussed in pre-employment negotiations formed part of the employee’s contract.

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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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Deadline 1 March 2020 - How do the new annualised salary provisions affect your business?

A large number of employers will be affected by the introduction of new annualised salary provisions from 1 March 2020. Over 20 modern awards will have the new or amended annualised salary provisions and it may mean big (or small) changes for your business.

We have recently seen an increasing number of underpayment claims and a renewed focus by the Fair Work Ombudsman on pursuing these claims. Even if the new provisions do not apply to your business, it is a timely reminder to undertake an assessment of your agreements and record-keeping procedures to ensure you are compliant and minimise the risk of being on the receiving end of an underpayment claim.

Do you currently pay a salary to your award employees?

If you are already paying a salary to affected employees, you will fall into one of the following categories:

  1. Paying salary but no written agreement or employment contract
  2. Paying salary under an agreement or employment contract that has no buyout or offset clauses (or clauses are non-compliant)
  3. Paying
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New annualised salary provisions to take effect 1 March 2020

As part of its 4-yearly review of modern awards, the Fair Work Commission is making key changes to the annualised salary provisions of many modern awards from 1 March 2020. Most of the affected awards already include annualised salary provisions, however the new provisions will also be newly incorporated into the Pastoral Industry Award 2010, Horticulture Award 2010 and Health Professionals Award 2010.

The new provisions introduce a number of obligations on employers where annualised salary arrangements are entered into with award employees, including detailed record-keeping and annual reconciliations each 12 months from the commencement of the agreement.

Key points to note about the new provisions

  • Not all annualised salary arrangements require agreement with the employee. While in most cases employee agreement is required, employers of “Category 1”[1] employees can implement an annual salary arrangement without employee agreement.
  • Notification and record-keeping obligations for employers are more onerous and require employers to:
  1. notify employees of the specific award provisions that are satisfied by the annualised wage
  2. notify employees of how
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Terminating employment during probation – why you should provide a reason

Most employment contracts contain a probation clause stating that, during the probation period (usually 3 to 6 months from the employment commencement date), either party can terminate the employment by providing one week’s notice. Even if there is no probation clause, or no employment contract, a minimum employment period applies before an employee is eligible to make a claim for unfair dismissal. For a small business with less than 15 employees that minimum period is 12 months; for others it is 6 months. The practical effect of this is that the employer can terminate the employment without cause during the minimum period simply by providing the required notice.

However, many employers do not realise that there is no minimum employment period for other types of claims such as adverse action and discrimination claims. If an employee is terminated and believes that the reason falls within the general protections provisions, they are entitled to bring an adverse action claim, with the onus then falling on the employer to show that the

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Workplace investigations can be an important and useful tool. When used in the right situations and conducted appropriately a workplace investigation can resolve a range of issues including bullying and harassment complaints. A recent case, however, has highlighted the ramifications that may occur when an investigation is not conducted properly.

In Romero v Farstad Shipping (Indian Pacific) Pty Ltd[1] a shipping officer sent an email to her superiors alleging bullying by her ship’s captain during a 12 day sea voyage. In addition to Romero’s bullying allegations, the captain separately raised issues of competency in relation to Romero.

The employer, Farstad, proceeded to investigate the issues although failed to follow their own internal policy and the processes outlined within in. Specifically, Romero’s bullying complaint was investigated as a formal complaint although it had not been formally lodged as a complaint and this had not been the intention of Romero’s email. Added to this, the captain was interviewed before Romero (the complainant) about the alleged bullying and the issues of competency

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