News & Updates

The promise of Shangri-la: Employment claims under the Australian Consumer Law

 As more employers look to replace guaranteed salary payments with profit share schemes and other forms of “at risk” remuneration, the impact of the Australian Consumer Law (ACL, previously the Trade Practices Act) can be easily overlooked with respect to employment relationships.  A recent decision of the Federal Court of Australia illustrates why employers should […]

Proceed with caution when dealing with difficult employees

The Federal Court of Australia has signalled the importance of careful consideration before action by employers who have difficulty with union representatives. In one of the first significant decisions since the High Court of Australia decision in Bendigo Regional Institute of TAFE v Barclay,the Court has made clear that employers still need to justify why […]

Dealing with union visits

Two of the most common questions raised by employers have been addressed by separate decisions of the Federal Court and Fair Work Australia. Union right of entry A large number of employers, particularly those who do not have a strong union presence, regularly face the question of what to do when a union representative requests […]

Why employers can’t tolerate victimisation

Employers need to take care to ensure that employees and managers are aware of their obligations under Equal Opportunity, Work Health and Safety, and Fair Work laws to ensure workers are not disadvantaged because they have rights or characteristics protected by that legislation. Equally importantly, the message that it is unacceptable to victimise anyone who […]

Media boss flags trend away from traditional litigation

Reports that former Financial Review boss Michael Gill is suing his former employer for breaches of anti-discrimination laws reflect a growing trend away from the limitations of suing for breach of contract. Employees – or at least their lawyers – are becoming increasingly creative with the use of human rights legislation to press claims arising […]

Industrial relations issues to watch out for in 2012

The Federal Government would like to have you believe that it will be all smooth sailing on the industrial relations front for 2012. But there are some things that the Government and, in particular, the new Minister Bill Shorten, will have to work hard to sell as good for the economy. SMEs might find that […]

Court forces directors to quit new job over restraint

The New South Wales Supreme Court has acceded to an employer’s request that two former employees should be forced to resign from directorships of their new employer. The case demonstrates the broad powers which Courts may exercise to effect what it considers as a just outcome. In Red Bull Australia Pty Ltd v Stacey, the […]

High Court to clarify adverse action law

The High Court of Australia will hear an important appeal on the meaning of the adverse action provisions of the Fair Work Act. It will be the first time that the new provisions have been tested in the highest court. Bendigo TAFE appealed against a decision of the Full Court of the Federal Court of […]

Are you monitoring your employees’ social media use?

Fair Work Australia has confirmed that sacking an employee for comments made on social media websites can be justified in appropriate circumstances. Deputy President Swan of FWA decided in O’Keefe v Troy Williams’ Good Guys that the employee’s use of Facebook to post abusive comments about a manager at his workplace was related closely enough […]

Termination for theft: still okay

Just when some employers were starting to wonder about unfair dismissal claims, two recent FWA cases confirm that, when handled correctly, termination for fraud or theft is still a valid reason. For SMEs the cases demonstrate how learning from the practices of larger employers in these cases can make dealing with termination a little easier. […]

What employers can learn from Seven and Ten’s fight for James Warburton

It’s hard to believe that barely three weeks ago, media and public interest in the case of James Warburton, the “defecting” television executive was as high as you are likely to see for any event where seven or eight barristers engage in dry legal argument with a Supreme Court Judge. Even though Warburton’s immediate future […]

New adverse action lessons for employers

Two recent Federal Court decisions contain important guidance for employers about the Fair Work Act’s adverse action provisions. Adverse action claims are becoming a substitute for unfair dismissal claims in many cases. One case heralds good news, the other greater cause for concern about how entrenched in the landscape adverse action claims will become. In […]

When discretionary bonuses are not discretionary

The New South Wales Court of Appeal has recently highlighted the importance of ensuring that bonus provisions in contracts of employment properly reflect the intent of the parties. In short, the court found that a contractual stipulation that the payment of bonuses to an employee was within the discretion of the employer was not enough […]

Adverse action claims just got harder to fight

Adverse action claims under the Fair Work Act are becoming a tool used more frequently by employees and former employees to press claims against employers. A recent decision of the Federal Court compounds the effects that is likely to have on employers’ abilities to defend those claims. A majority of the Court found that the […]

New Year’s new laws for employers

Every New Year brings its own challenges for small and medium sized employers.  One of those challenges is the prospect of more new laws, and the compliance obligations that follow from them.  Here are a selection of legal changes in store for 2011 – keep on top of them and stay out of trouble. Small […]

Why we need a review of IR laws

As we approach the end of a year of change in industrial relations, revelations that the Federal Opposition might review its policy stance on industrial relations should be welcomed. During the recent election campaign the Opposition played a dead bat on industrial relations, declaring it would not alter Labor’s Fair Work legislation. This tactic may […]

FWA defines redeployment obligation

The Fair Work Act prevents employees who have been made genuinely redundant from making a claim that they have been unfairly dismissed. But in order to show that a redundancy was “genuine”, employers have to satisfy three basic tests. First, the employer must no longer require the employee’s job to be done by anyone, due […]

Are your restraints of trade effective?

The New South Wales Court of Appeal has upheld a decision of a single judge to enforce a post employment restraint of trade, preventing an employee from trying to canvass clients of his former employer. In June, OAMPS Insurance Brokers successfully obtained an injunction from the Court, preventing a former employee, Mr Hanna, from soliciting […]

How the Fair Work IR rules need to change

After the Coalition’s election driven “no change” policy, workplace relations is easing back into the national policy debate. Much is being written and said in 20-20 hindsight, or maybe with the campaign shackles released, about the need for the Opposition to distinguish itself from the government on workplace relations policy. SME’s will be glad to […]

The perils of “after 5” social media use

The explosion of the use of so-called social media has employers and employees wondering where the line between work and play is drawn. The courts and industrial tribunals have reasonably well defined the circumstances in which the behavior of an employee outside of the work environment may nevertheless justify termination of employment. A large number […]

Sham contractors still a risk

Legislative provisions designed to stop employers from engaging employees as independent contractors was introduced by the Howard Government, and then apparently all but disappeared. Neither the unions, nor the regulators have shown a great deal of interest in enforcing the legislation. That is now changing, with the Australian Building and Construction Commission launching a prosecution […]

Fair Work Ombudsman targets directors

In a reflection of the growing trend for managers and directors to be targeted by the Fair Work Ombudsman, a string of recent cases have resulted in fines being imposed against individuals as well as the companies they run. Those people in business who are responsible for ensuring that employees receive all of their legal […]

Adverse action threat to employers

Discrimination cases are attracting some pretty hefty headlines at the moment. But these headlines don’t capture a key aspect of these cases that should make employers redouble their efforts to introduce policies and education programs to ensure that discrimination never happens in the first place. You would have to have been on vacation in another […]

Four Modern Award transition tips

With July 1 as the start date for the “transition” to pay arrangements under Modern Awards made under the Fair Work Act, there has been some activity from Fair Work Australia (FWA) and the Fair Work Ombudsman (FWO) to try and help employers understand their obligations. The Fair Work Ombudsman has recently issued its “Guidance […]

Bargaining with Fair Work Australia

Fair Work Australia has become increasingly involved in enterprise bargaining since the commencement of the Rudd Government’s good faith bargaining requirements. While the decisions of the Tribunal have gone both for and against employers, looking a little deeper at what unions are chasing gives you a better idea of the significant influence the legislation is […]

FWA defines redeployment obligation

The Fair Work Act prevents employees who have been made genuinely redundant from making a claim that they have been unfairly dismissed. But in order to show that a redundancy was “genuine”, employers have to satisfy three basic tests. First, the employer must no longer require the employee’s job to be done by anyone, due […]

Dealing with a sick employee

Employers can require employees to provide medical certificates for sick leave absences which explain more than just that the employee has a “medical condition”. Many employers would have had the experience of employees presenting medical certificates to cover absences from work which have little or no detail about what, in fact, is the illness and […]

Award modernisation far from over

For many employers, particularly SMEs, the real spadework associated with award modernisation has only just begun. And even the Fair Work Australia’s job isn’t finished. The anecdotal evidence strongly suggests that SMEs are only now coming to grips with the impact that Modern Awards will have on business. Fair Work Australia has so far received […]

Fair Work redundancy minefield

Employers need to be wary about terminating employees for reasons of redundancy under the Rudd Government’s new Fair Work arrangements. Under the Howard Work Choices regime, employees whose employment had been terminated because of redundancy were excluded from making an unfair dismissal claim: full stop. The Fair Work Act retained this provision, but qualified it […]

Restraining employees, the right way

Post-employment restraints can be necessary to maintain the integrity of your client base, but it is a tricky area of law and will need a back-up plan. Recently I wrote that courts in Australia were taking a dim view of lengthy post employment restraints. In uncertain times, a lot of employees and employers are thinking […]

Employee theft: Bosses still have a duty

Theft – no matter how small – is grounds for dismissal, but employers must investigate allegations of theft and give employees a chance to respond in full. The Australian Industrial Relations Commission has once again indicated the seriousness with which it views employee theft. In Whiting v Greenbank RSL, the AIRC backed the employer’s decision […]

Workplace law and the Christmas quiet

The Christmas and new year period can be the quietest time of the year. But managing staffing needs (or lack of them) has some legislative limits. For many businesses, the Christmas and new year period can be the quietest time of the year. Managing staffing needs (or lack of them) has some legislative limits. Businesses over […]

Xmas party perils

If your employees have a Christmas party, make sure you don’t get the hangover. PETER VITALE lists the top six tips to avoid the litigeous dangers of the Christmas function. Take precautions before the work Christmas party – you shouldn’t be taking aspirin for anything other than your own headache. The holiday season is generally […]

Change employee hours at your peril

Bosses beware. Employee entitlements are not always those written on paper, as a recent case exemplifies. If you want to change employees working hours or days, watch out. Many employers wanting to change aspects of their operations, such as working hours, are tripped up by long-standing practices than may override any written agreement or award. […]

Watch for workplace bullies

A new Federal Court case confirms that bosses who turn a blind eye to mistreatment of employees are making a very expensive mistake. But what exactly is bullying? PETER VITALE explains. Bullying can take many forms, from spreading rumours to physical violence. Employers should have procedures to deal with claims of grievances, and for disciplining employees found […]

Bullying can be financially painful

Bullying is on the rise and employers who turn a blind eye to bullying risk fines, higher WorkCover claims, lower productivity and higher absenteeism.  Last week a victim of a schoolyard bully in New South Wales was awarded almost $1 million in damages because the state education system failed in its duty to protect him […]