Employment Relations

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Court says personal leave is by the “day”, not the hour, and that “randomness is inherent in the concept of personal/carer’s leave” - Sep 2019

On 21 August 2019, the Full Court of the Federal Court handed down a decision clarifying that personal leave under the NES is calculated in units of days and part-days (not hours).

Tim Lange, Partner, Professor Andrew Stewart, Consultant, and Mark Caile, Lawyer, review the decision and the implications for employers. 

Consultation opens on proposed ASIC Regulatory Guidance for mandatory private-sector whistleblower workplace policy content: Best practice, or expecting the tail to wag the dog? - Aug 2019

The new private-sector whistleblower scheme introduced into the Corporations Act 2001 came into operation only on 1 July 2019, but has already prompted significant action by the large, small business, and not-for-profit entities it covers.

Recklessness, negligence, increased fines and the end of insurance – is your workplace ready? - Jul 2019

The Review of the Model Work Health and Safety Laws: Final Report (the Review) was handed down in December 2018.  The Review provided multiple recommendations which could have significant impacts on penalties contained within the model work health and safety (WHS) laws.  These recommendations included that duty holders commit a Category 1 offence if they are grossly negligent in exposing an individual to a risk of serious harm or death, the introduction of a specific offence for industrial manslaughter, significant increases to the maximum monetary penalties and the prohibition of entering into a contract of insurance to cover liability for penalties.

Emily Haar, Senior Associate, and Daniel Bartlett, Law Clerk, discuss the potential impacts should the recommendations in the Review be adopted within the model WHS laws.

What do you mean by ordinary? Regular overtime, regular public holiday work, ordinary time earnings and the impact on superannuation contributions. - Jun 2019

What pay is earned for ordinary time work, and what is pay earned for other work, especially when an employee is engaged on an aggregate or annual salary?  For Bluescope, the answer to this question at its Port Kembla operation could have run into millions of dollars in compensation for unpaid superannuation.  However, in May 2019, the Full Court of the Federal Court overturned an earlier decision and determined that components of pay for ‘additional hours’ and public holiday work were not part of Ordinary Time Earnings and are not superable.  The Full Court’s approach is potentially of much wider application as to when there is a binding legal obligation to pay superannuation.

Partner, David Ey and Law Clerk, Daniel Bartlett discuss the decision and its implications in relation to superannuation contributions.

Pointing the finger at privacy law: Commission’s new take on when a direction is lawful and reasonable - Jun 2019

The Fair Work Commission has upended the accepted understanding of the “employee records” exemption in the Privacy Act 1988 and in the process, potentially severely impacted the ability of employers to manage issues of medical capacity and unlawful discrimination in the workplace.

Partners, Tim Lange (Employment Relations), Andrea Beatty (Financial Services and Privacy) and Lawyer, Chelsea Payne look at the implications. 

Freedom to hire: discrimination damages awarded for failure to hire because of a candidate’s political activities - Jun 2019

An individual’s right to be “political”, regardless of their work situation, has been in the headlines recently with respect to the idea of freedom of speech for government-employees.  But what about freedom to be hired?  A recent Queensland decision where a former politician was denied a job because of his political activities is an interesting development. 

Senior Associate, Emily Haar, unpacks the $1.4 million damages awarded in Davis v Metro North Hospital and Health Service and Others [2019] QCAT 18. 

Labour Hire Licensing is back on in SA! - Jun 2019

Consumer and Business Services (CBS) announced on 7 June 2019 that they will recommence accepting applications for labour hire licences from 14 June 2019.

Senior Associate, Emily Haar, and Daniel Bartlett, Law Clerk, discuss the announcement and implications for employers and users of labour hire services in South Australia.

Are requests for medical information bullying? Commission says no to “self-serving” applicant - Jun 2019

If an employee cannot perform the “inherent requirements” of the job they are employed to do, and is unable to safely work, that can eventually be a ground for termination of employment – there is no entitlement to unending personal leave.  However, if the true problem is an unreasonably unsafe workplace, then it stands to reason the employer could have facilitated a return to work and a termination of employment may be challenged.  How does the Fair Work Commission identify whether it is the workplace or the employee’s inherent capacity that is preventing a return to work, especially when the issue is workplace stress?

Partner, Tim Lange and Lawyer, John Evans discuss the implications of a recent case for employers. 

Potential prosecution by a safety regulator for poor workplace culture – is it coming to a workplace near you? - Apr 2019

In December 2018, the Review of the Model Work Health and Safety Laws: Final Report (the Review) was handed down. Within the Review, one key recommendation was to amend the model work health and safety (WHS) regulations to specifically require businesses to identify and effectively manage the risks of psychological injury in the workplace.  This represents a considerable shift in policy. 

Emily Haar, Senior Associate, and Daniel Bartlett, Law Clerk, review the recommendation and its potential impact should it be adopted within the model WHS laws.

The curious case of the calculating courier - Mar 2019

Engagement of “gig-economy” workers has been a hot topic, particularly in the case of food delivery businesses.  The Fair Work Commission recently concluded that a delivery rider for Foodora was in fact an employee, rather than an independent contractor. 

Emily Haar, Senior Associate, reviews the decision.

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