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New Directors’ and Officers’ exposure to personal liability under Security of Payment Legislation in NSW - Dec 2018

Last week the Building and Construction Industry Security of Payment Amendment Act 2018 (Amending Act) was passed by both houses of NSW Parliament. The suite of changes cover many aspects of payment behaviour on construction and related procurements in the Premier State. Partner, Robert Riddell and lawyer, Brianna Smith consider the new exposure this presents to Directors and Officers of construction companies.

Rubbing salt into the wound of an applicant in unfair dismissal proceedings - Nov 2018

An applicant whose claim was “doomed to fail”, and was pursued by her to inflict as much damage as possible on her former employer, has led to severe consequences when the Fair Work Commission ordered her to pay indemnity costs to her former employer.

Partner, David Ey and Senior Associate, Gemma Twemlow review the decision.  

South Australia Leaves Labour Hire Licensing Behind - Oct 2018

Before it had a chance to come into full effect, the South Australian government has announced that it is scrapping the Labour Hire Licensing Act 2017.

Emily Haar, Senior Associate, reviews the announcement. 

Food delivery service “gig economy” operators under the industrial spotlight - Aug 2018

The Fair Work Ombudsman has recently commenced proceedings against food delivery application “Foodora” in the Federal Court of Australia alleging that the “gig-economy” platform has engaged in sham contracting.  Emily Haar, Senior Associate, and Professor Andrew Stewart, Consultant, consider the implications such a finding could have.

Do Performance Improvement Plans constitute ‘Reasonable Management Action’? - Aug 2018

The recent decision of the Fair Work Commission in Blagojevic v AGL Macquarie Pty Ltd; Mitchell Seears [2018] FWC 2906 has shed further light on what constitutes “reasonable management action” in the context of performance management under section 789FD of the Fair Work Act 2009 (Cth).

Ben Motro, Special Counsel and Emily Setter, Law Clerk, discuss the Fair Work Commission's decision

Incoming private-sector whistleblower protection laws – Preparing for the new rules - Aug 2018

Whistle-blower protection laws applying to internal (and some external) disclosures are on the cards.  The amendments will bring a new and aggressive protection regime into the Corporations Act 2001, replacing the relatively limited scheme that currently exists.  Unlike the current scheme, which has not had a significant impact, the new scheme will significantly alter the landscape in favour of claimants arguing that they have been victimised or exposed as a result of having made a legitimate disclosure of misconduct or breaches of the law.  The amendments are contained in a bill currently before the Australian parliament and expected to be passed with bipartisan support, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017.

Tim Lange, Partner and Michelle Cox, Associate, discuss the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017

Commission clarifies law on constructive dismissals - May 2018

Tim Capelin, Partner and Emily Setter, Law Clerk discuss the recent decision in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2018] FWC 1074 and its implications for employers when handling resignations received from employees. Commissioner Cambridge’s judgment provides important guidance on what conduct will constitute termination at the employer’s initiative.

The judgement arose as a result of a re-hearing on the discrete question of whether the Applicant, who had brought proceedings on the basis that she had been forced to resign within the meaning of section 386(1)(b) of the Fair Work Act 2009 (Cth), was actually dismissed at the initiative of the employer within the meaning of section 386(1)(a) of the Act.

Notice of termination and ordinary and customary turnover of labour - May 2018

In March this year, the Federal Court clarified the requirements for valid notice of termination of employment. The Federal Court also highlighted the limited scope of the “ordinary and customary turnover of labour” exception to the requirement to pay redundancy pay under the Fair Work Act.
Ben Motro, Special Counsel, and Emily Setter, Law Clerk, explore the implications of this decision.

Out of hours conduct: Employee dismissed for explicit private Facebook message - May 2018

In Luke Colwell v Sydney International Container Terminals Pty Limited [2018] FWC 174, the Fair Work Commission found that an employer validly dismissed an employee in circumstances where the employee sent a sexually explicit video privately to 19 work colleagues through the Facebook Messenger app (Messenger).

The decision, if followed, would be a significant expansion of the law as it relates to employers regulating out of work conduct. Tim Capelin, Partner and Amrita Howell, Associate, discuss the implications.

Driving to independence: Fair Work Commission finds ride-share drivers are not employees - Feb 2018

In an Australia first, Uber has now had its ride-share app based business tested in the Fair Work Commission. In Kaseris v Raiser Pacific V.O.F [2017] FWC 6610, the Fair Work Commission held that drivers utilising Uber’s ride-share application are not employees within the meaning of the Fair Work Act. Tim Lange, Partner, and John Evans, Lawyer, discuss the Commission’s findings.

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