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Beware of errant signposting - Feb 2017

The Fair Work Commission Full Bench’s decision Construction, Forestry, Mining and Energy Union v Sparta Mining Services Pty Ltd [2016] FWCFB 7057 (CFMEU v Sparta) has cast doubt over whether a reference to external documents (e.g. workplace policies)  within an enterprise agreement is merely a ‘signpost’ or actually incorporates those documents. Erin McCarthy, Partner, discusses the implications of CFMEU v Sparta for employers generally and consider how the decision may make the road to enterprise agreement approval even rockier.

Paid Parental Leave changes back on the parliamentary agenda - Feb 2017

On 20 October 2016 the Government introduced the Fairer Paid Parental Leave Bill 2016 containing a revised proposal to remove “double dipping” from the federally funded scheme.  Erin McCarthy, Partner and co-author of Parental Leave: A User Friendly Guide discusses the major changes contained in the Bill.

Do we need an exemption to only advertise this job to women? VCAT says no - Feb 2017

As the pursuit for more substantive equality in society continues, many employers actively seek to employ people from groups that are disadvantaged in what is sometimes called “positive discrimination”.  A question that frequently arises is whether these proposals require a specific exemption for employers from anti-discrimination legislation, or whether such action is already covered by a legislative exception. The Victorian Civil Administrative Tribunal has recently considered this issue in some detail in Re Waite Group (Human Rights) [2016] VCAT 1258.  Emily Haar, Associate, sets out the key take-home points from this decision.
 

South Australian Parliament passes the Surveillance Devices Act 2016 (SA) - Feb 2017

For many years, the regulation of surveillance devices in South Australia has been less comprehensive than in other Australian jurisdictions. Recently, the South Australian Parliament took action to bring South Australia in line with other States and Territories by passing the Surveillance Devices Act 2016 (SA) (the 2016 Act) and repealing the Listening and Surveillance Devices Act 1972 (SA) (the 1972 Act). Ahead of the likely commencement of the new legislation in or early 2017, Erin McCarthy, Partner and Shauna Roeger, Law Graduate examine the new Act and its impact on how employers can legally conduct workplace surveillance in South Australia.

Further developments in the implied term of reasonable notice of termination - Feb 2017

Late last year we wrote about the case of Kuczmarski v Ascot Administration P/L [2016] SADC 65 (Kuczmarski), in which the SA District Court held that a term of reasonable notice of termination is not implied into a contract governed by section 117 of Fair Work Act 2009 (Cth) (FW Act). Kuczmarski was appealed to the SA Supreme Court, but it is understood that the parties to that case have resolved their differences and that the appeal will not be proceeding. This means that Judge Clayton’s decision stands. Meanwhile, a recent decision of the Federal Circuit Court - McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227 (McGowan) – has generated further uncertainty, with Judge McNab declining to follow the Kuczmarski reasoning. David Ey, Partner and Shauna Roeger, Law Graduate explain these decisions and the implications they have for employers.

The Fair Work Commission awards a 2.4 percent increase to minimum wages - Jul 2016

Is there still an implied term of reasonable notice on termination? - Jul 2016

It is generally accepted that where a contract of employment has no agreed duration and makes no provision for termination, the common law will imply a term that the contract may be terminated on the giving of ‘reasonable notice’.

Over the last two decades, this position has been supported by a number of higher court decisions. However, a recent decision of the South Australian District Court, Kuczmarski v Ascot Administration P/L [2016] SADC 65 (Kuczmarski), has thrown into doubt the correctness of this view. In this case, Judge Clayton held that the term of reasonable notice on termination was not implied into an employment contract where section 117 of the Fair Work Act 2009 (Cth) (FW Act) applies. Shauna Roeger, Law Clerk, and Professor Andrew Stewart, Legal Consultant, explain this case and its implications for employers.

Pre-employment misleading and deceptive conduct: be careful what you promise - Jul 2016

In Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) [2016] FCA 430, the Federal Court awarded an employee compensation of over $300,000 for loss suffered after she was misled by representations made to her by Johns Lyng prior to taking up her role as General Manager. The case should serve as a cautionary tale to other organisations that many kinds of statements made to prospective employees, such as those about future remuneration or the profitability or financial position of the company, must only be made where there is reasonable basis to do so.

Fair Work Commission hands down first formal bullying ruling - Mar 2016

The early days of the anti-bullying jurisdiction saw little activity and few substantive decisions.  However, there have recently been a number of decisions made by the Fair Work Commission providing guidance on the operation of the anti-bullying jurisdiction, and the types of behaviours the Commission will consider as bullying.

Amongst these decisions is the Commission’s first formal ruling that bullying had occurred. In this article, Tim Lange, Partner, and Katherine Lee, Law Graduate, discuss a number of these recent cases in order to help employers, human resource managers and employees alike to better understand exactly what constitutes “bullying” in the eyes of the Commission and could therefore potentially give rise to an order to stop bullying.

Employer’s failure to make “reasonable adjustments” to accommodate employee with disability leaves it liable to pay over $13,000 in damages - Feb 2016

In the recent Victorian case of Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056, a not-for-profit disability service provider was ordered to pay more than $13,000 to a former employee who suffered a workplace injury, for failing to provide reasonable adjustments. This case highlights the risks associated with managing injured employees and the importance of employers being across all relevant legislative duties and responsibilities. Ben Motro, Senior Associate, and Shauna Roeger, Law Clerk explain the case and, most importantly, the lessons employers can learn from it.

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