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Workplace Relations Update - August 2010
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33KB
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The rise and rise of adverse action claims
By Stephanie Nicol of Gadens Lawyers, Sydney
Adverse action claims are the flavour of the month. More and more employees are bringing them, or threatening to bring them.
With their increasing popularity comes a slowly growing bank of authorities that are, helpfully, shedding some light on how to interpret and apply the adverse action provisions contained in the Fair Work Act 2009 (Cth). The recent decision in LHMU v Arnotts Biscuits Limited is one such authority.
Increase to high income threshold
By Juvena Hannan of Gadens Lawyers, Sydney
Under the Fair Work Act 2009 (Cth), the earnings threshold in relation to a guarantee of annual earnings, and for an employee who is not covered by an award to have access to an unfair dismissal remedy, increases with effect from 1 July each year. Fair Work Australia has recently confirmed that the relevant earnings threshold has increased from $108,300 to $113,800 with effect from 1 July 2010.
‘Serious and flagrant’ bargaining breach results in hefty fine for employer
By Meryl Remedios of Gadens Lawyers, Sydney
On 28 May 2010, the Federal Magistrates Court of Australia handed down its decision to fine an employer $11,000 under section 335(5) of the Workplace Relations Act 1996 (Cth) for refusing to recognise the union’s appointment as a bargaining agent and steadfastly ignoring the repeated attempts of the union to negotiate on a proposed collective agreement.
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Workplace Relations Update - June 2010
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1
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33KB
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Fair Work Australia’s 2010 annual wage review
By Meryl Remedios of Gadens Lawyers, Sydney
On 3 June 2010, the Minimum Wage Panel of Fair Work Australia handed down its inaugural annual wage review determination, awarding an increase of $26.00 per week to the rates of pay for employees covered by modern awards and Division 2B enterprise awards. Importantly, the Minimum Wage Panel did not increase the rates of pay for employees covered by Division 2B State awards. In respect of all other employees (who are not junior employees, trainee employees or employees with a disability), it set a national minimum wage order.
Guidance on the transitional arrangements in modern awards
By Michael Cooper of Gadens Lawyers, Sydney
On 31 May 2010, the Fair Work Ombudsman released a guidance note in relation to the transitional arrangements contained within modern awards that deal with phasing in of pay-related entitlements over four years from 1 July 2010. The guidance note has been published to provide the community with an understanding of how the Fair Work Ombudsman has interpreted and will apply the transitional provisions contained within modern awards, which is relevant to its role in providing education, assistance and advice to employers and employees, and ensuring compliance with, and enforcing the terms of, the Fair Work Act 2009 (Cth) and modern awards.
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Workplace Relations Update - June 2010
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1
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36KB
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Paid Parental Leave Bill makes its first appearance
By Nadine Zets of Gadens Lawyers, Sydney
On 12 May 2010, the long awaited Paid Parental Leave Bill 2010 was introduced into the federal parliament. The Bill seeks to establish, for the first time in Australia, a uniform paid parental leave scheme which will enable eligible primary carers to receive 18 weeks of paid parental leave at the national minimum wage.
Tram conductor reinstated after being dismissed for assaulting a passenger
By Nicholas Linke and Zev Costi of Gadens Lawyers, Adelaide
In a recent unfair dismissal application, Fair Work Australia has reinstated a tram conductor and ordered his employer pay six months back pay after an altercation with a passenger who was preventing a tram from leaving a platform.
Can you be fired for driving under the influence outside of work time?
By Mark Sant of Gadens Lawyers, Sydney
A Full Bench of Fair Work Australia has confirmed that it was not harsh, unjust or unreasonable for J Boag and Son Brewing Pty Ltd to terminate the employment of a process worker within Boags’ packaging department because the worker had been charged with driving his vehicle with a blood alcohol limit of 0.154.
An exciting announcement from Gadens Lawyers Sydney’s Workplace Relations team
We are happy to announce that Jane Seymour and her team have joined the Gadens Lawyers Sydney Workplace Relations team from 31 May 2010.
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Promises and Representations to Employees; Casual Employees and Unfair Dismissal Remedies; Stand Down and Disciplining a Union Delegate was Not Adverse Action; Take Home Pay Orders - Workplace Relations Update - April 2010
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43KB
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Promises and representations to employees – a lesson from the GFC. By Stephanie Nicol of Gadens Lawyers, Sydney
It is not uncommon for employers to make representations as to future matters to lure prospective employees. However, employers who make false representations, or who otherwise make them without reasonable grounds, walk a dangerous path, particularly if the prospective employees can show that they relied on those representations to their detriment.
Casual employees and unfair dismissal remedies.
By Nicholas Linke of Gadens Lawyers, Adelaide
A recent decision of Fair Work Australia in Ponce v DJT Staff Management Services Pty Ltd has provided guidance as to how FWA will determine what constitutes regular and systematic employment for casual employees to provide them access to an unfair dismissal remedy.
Stand down and disciplining a union delegate was not adverse action.
By Michael Cooper of Gadens Lawyers, Sydney
The Federal Court of Australia, in its first decision dealing with an application alleging that an employer had taken adverse action against an employee under the Fair Work Act 2009 (Cth) has found in the employer’s favour.
Take home pay orders – they have arrived! By Mark Sant of Gadens Lawyers, Sydney
With the start of modern awards on 1 January 2010 there has been scope for some employees to experience a reduction in take home pay.
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Fair Work Act 2009 - Enterprise Bargaining; Restructuring and Redundancy; Annual Wage Review - Workplace Relations Update - March 2010
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37KB
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What has been happening in enterprise bargaining
By Michael Cooper of Gadens Lawyers, Sydney
Enterprise bargaining is a key feature of the Fair Work Act 2009 (Cth) which has been used by a number of employers since the FW Act commenced in July last year. However, the processes and steps that an employer must follow to make an enterprise agreement are much more prescriptive than was previously the case.
A cautionary tale – lessons learned for restructuring and genuine redundancy
By Tamara Gillies of Gadens Lawyers, Brisbane
The Fair Work Act 2009 (Cth) brought significant changes to an employee’s ability to challenge their dismissal if their employment was terminated on the ground of redundancy. A recent decision of Fair Work Australia has highlighted the significance of these changes.
Fair Work Australia annual wage review
By Lisa Nash of Gadens Lawyers, Sydney
Fair Work Australia is required under the Fair Work Act 2009 (Cth) to review modern award minimum wages and make a national minimum wage order each year. The annual wage review for the 2009/2010 financial year will be conducted between March and June 2010 by FWA.
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States Refer Their Workplace Relations Powers to the Commonwealth and Miscellaneous Modern Award - Workplace Relations Update - December 2009
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36KB
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With the impending commencement of the remaining provisions of the Fair Work Act 2009 (Cth) (FW Act), and following the push for a single national workplace relations system, the Commonwealth and a number of States have introduced legislation to facilitate the uniform application of the FW Act to employers who would not otherwise be covered by the FW Act. As part of the fourth stage of the award modernisation process recently completed by the Australian Industrial Relations Commission (AIRC), the Miscellaneous Modern Award 2010 (Award) has been released. This is the much-anticipated “catch all” award.
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Caltex Wins the Right to Implement Random Drug and Alcohol Testing - Workplace Relations Update - December 2009
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48KB
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Caltex wins the right to implement random drug and alcohol testing. Caltex and the Australian Workers Union had been negotiating for a new enterprise agreement to cover employees employed at Caltex’s Kurnell refinery. While most of the matters to be dealt with under the enterprise agreement had been finalised, Caltex and the AWU had not resolved the issue of drug and alcohol testing at the refinery, and specifically whether Caltex could undertake random drug and alcohol testing.
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So What Are Reasonable Additional Hours? - Workplace Relations Update - December 2009
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48KB
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So what are reasonable additional hours? A recent decision of the Federal Magistrates Court of Australia has given guidance on what are reasonable additional hours for an employee to work. It is a requirement under the Workplace Relations Act 1996 (Cth), continued under the Fair Work Act 2009 (Cth), that an employee cannot be required to work more than an average of 38 hours per week plus reasonable additional hours.
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Termination Payments Tightened up by Recent Changes to the Corporations Act 2001 - Workplace Relations Update - December 2009
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48KB
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Termination payments tightened up by recent changes to the Corporations Act 2001. The Corporations Amendment (Improving Accountability on Termination Payments) Act 2009 (Cth) came into force on 23 November 2009 and tightens up the provisions in the Corporations Act 2001 (Cth) dealing with termination payments made to directors and other senior executives.
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Changes to the Modern Clerks and Banking, Finance and Insurance Industry Awards - Workplace Relations Update - December 2009
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48KB
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Changes to the modern clerks and banking, finance and insurance industry awards. On 16 November 2009, the Australian Industrial Relations Commission varied the Clerks – Private Sector Award 2010 and the Banking, Finance and Insurance Award 2010 to include a clause allowing an employer to pay an employee an annualised salary.
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Developments Regarding National Employment Standards - Workplace Relations Update - December 2009
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48KB
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Are you ready for the Fair Work Act? With the remaining provisions of the Fair Work Act 2009 (Cth) and modern awards to commence on 1 January 2010, now is the time for employers to consider whether they are ready for the FW Act.
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OHS – Call it Harmonisation or Nationalisation but Either Way a Change is in the Air - Workplace Relations Update - November 2009
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27KB
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The Federal Government continues to push for the implementation of occupational health and safety law reforms. In particular, it seeks to harmonise occupational health and safety laws by introducing a single, national system to replace the many largely State and Territory based systems that currently operate.
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National Code of Practice for the Construction Industry – Workplace Relations Impact of New Implementation Guidelines - Workplace Relations Update - October 2009
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24KB
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In 1997, the Commonwealth, State and Territory Governments published the National Code of Practice for the Construction Industry. Parties to the construction industry (which includes but is not limited to clients, principal contractors, subcontractors, suppliers, consultants, employees, unions (including their officials, employees and members), and industry associations while undertaking a representative role) are required to comply with the Code if they wish to do business with governments or work on government construction projects.
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Transitional Provisions Statement from AIRC; Unfair Dismissal Claims and Income Thresholds; Breach of Grievance Procedure in an Industrial Instrument - Workplace Relations Update - September 2009
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34KB
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Modern awards - transitional provisions statement from AIRC. By Mark Sant of Gadens Lawyers, Sydney. On 2 September 2009, the Australian Industrial Relations Commission handed down it’s much anticipated decision about transitional provisions to be included in modern awards in stages 1 and 2 of the award modernisation process.
Unfair dismissal claims and income thresholds – what is in the cap in the Fair Work Act? By Nadine Zets of Gadens Lawyers, Sydney. Employees earning over a certain amount are not able to bring an unfair dismissal claim against an employer. However, determining whether an employee earns above the cap is not always an easy task. The Fair Work Act 2009 (Cth) helps shed light in this issue.
Breach of grievance procedure in an industrial instrument - significant damages awarded. By Michael Cooper of Gadens Lawyers, Sydney. A recent decision of the Federal Court of Australia involving a breach of grievance procedure has highlighted the importance of employers reviewing the terms of industrial instruments when dealing with their employees.
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Workplace Relations Update - July 2009
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40KB
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Prepare now for 2010 – the modern awards and the NES are coming! by Steven Troeth and Gisella D’Costa of Gadens Lawyers, Melbourne. It is critical that employers begin their preparation now for the start of the new modern awards and the National Employment Standards on 1 January 2010.
Discrimination is expensive - ensure you are dealing appropriately with sexual harassment complaints
by Nadine Zets of Gadens Lawyers, Sydney. Employers should be aware that courts are willing to award significant damages to employees who are the victims of discrimination and sexual harassment, especially where employers do not properly investigate or deal with complaints of unacceptable behaviour in the workplace.
Unenforceable restraint of trade clause for real estate agency by Nicole Linton of Gadens Lawyers, Sydney. In the recent case of Marlov Pty Ltd v Murat Col & Anor [2009] NSWSC 50, the New South Wales Supreme Court held parts of a restraint of trade clause in a real estate agent’s employment contract unenforceable. The case serves as a reminder that restraints of trade in employment contracts will usually be considered unlawful and invalid on public interest grounds, unless they can be justified.
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Workplace Relations Update - July 2009
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17KB
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Australian Fair Pay Commission decision – no raise in minimum rates of pay. By Kathryn Dent and Michael Cooper of Gadens Lawyers, Sydney. On 7 July, The Australian Fair Pay Commission made its fourth and final minimum wage determination. The next minimum wage determination will be made by the Minimum Wage Panel of Fair Work Australia.
The Australian Fair Pay Commission has decided not to increase federal minimum wage levels, maintaining them at the current level of $543.78 per week. The rates of pay within Australian Pay and Classification Scales will not be changed.
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Termination of Employment for Poor Performance - Workplace Relations Update - June 2009
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33KB
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In the current economic climate, employers are monitoring the performance of their employees more closely to ensure they are contributing to the performance of the company. Two recent decisions of the Australian Industrial Relations Commission highlight the importance of appropriately managing the performance of employees before terminating their employment.
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Workplace Relations Update - April 2009
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14KB
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WRTRAIN - a new Workplace Relations training program
gadens lawyers’ Workplace Relations group is launching a new initiative – WRTRAIN.
WRTRAIN is an innovative training program which has been designed to assist managers and staff to effectively deal with important workplace issues and obligations.
Training sessions will run about once a month from May to November 2009 with our first session scheduled for 5 May 2009 – all about ‘Implementing redundancies’.
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General Update - March 2009
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30KB
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Corporate risks in a GFC world - "Red Flag Issues".
The global financial crisis (GFC) will have a significant impact on all businesses.
“Never let a serious crisis go to waste. What I mean by that is that it is an opportunity to do things you could not do before.”
Although there is argument about who was the author of this quote, the fact is that for most companies the GFC provides an opportunity for rebirth, doing things better, and avoiding mistakes of the past.
Part of this opportunity is to better manage corporate risk. Gadens Lawyers can provide very valuable, cost effective assistance in this process through our specific "Red Flag" review program we have developed for the GFC climate.
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Workplace Relations Update - March 2009
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32KB
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Unfair dismissals under the Fair Work Bill – are you exempt or exposed?
This update is the fifth in a series of updates released by gadens lawyers focusing on the key changes proposed by the Fair Work Bill 2008 (Bill). This update deals with the Bill’s proposed unfair dismissal provisions and provides more detail on the changes we initially highlighted in our update of September 2008, which are now being debated in the Senate following the Senate inquiry.
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Workplace Relations Update - March 2009
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22KB
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Award modernisation – what does it mean for your business? - The Australian Industrial Relations Commission (AIRC) is currently undergoing the process of creating a set of modern awards based upon broad industries and occupations, which will replace several thousand existing federal and state awards. These awards will operate from 1 January 2010 and will supplement the National Employment Standards.
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Workplace Relations Update - March 2009
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32KB
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Fair Work Bill 2008 – gadens lawyers’ special series - part three. This update is the third in a series of updates released by gadens lawyers focusing on the key changes proposed by the Fair Work Bill 2008. This update deals with the proposed workplace agreement provisions.
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Workplace Relations Update - January 2009
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26KB
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Fair Work Bill 2008 – gadens lawyers’ special series - part two.
This update is the second in a series of updates released by gadens lawyers focusing on the key changes proposed by the Fair Work Bill 2008. This update deals with the proposed transfer of business and right of entry provisions of the Fair Work Bill 2008 (Cth).
Extension of union officials’ right of entry under the Fair Work Bill 2008 - The Fair Work Bill 2008 proposes to significantly extend the right of union officials’ to enter work premises.
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Workplace Relations Update - December 2008
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44KB
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Fair Work Bill 2008 – gadens lawyers’ special series - part one.
gadens lawyers is issuing a series of updates that focus on the key changes proposed by the Fair Work Bill 2008. This update is the first update in the series and deals with terms and conditions of employment.
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Workplace Relations Update - November 2008
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30KB
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Increases to Rates of Pay, One step closer to paid parental leave: Productivity Commission Draft Inquiry Report, Corporations can access the Independent;
Contractors Act, and Update on the preservation of State industrial laws.
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Workplace Relations Update - September 2008
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44KB
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The government marches further forward with fairness
On 17 September 2008, Minister for Employment and Workplace Relations, Julia Gillard, addressed the nation at a press conference in which she outlined the Federal Government's plan in relation to its workplace relations changes. This update focuses on three core areas of change, namely: agreement making, industrial action and unfair dismissal.
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National Employment Standards - Workplace Relations Update August 2008
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51KB
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Further to our Workplace Relations Update - April 2008, the Government has released its final National Employment Standards (NES) that will apply to all employees. The NES are to replace the Australian Fair Pay and Conditions Standard (AFPCS) currently in force under the Workplace Relations Act 1996 (WR Act). It is expected that the NES will come into effect in January 2010. The details of the NES are outlined below.
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Workplace Relations Update - July 2008
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29KB
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Update to employers: the Australian Fair Pay Commission recently handed down a decision increasing the Federal Minimum Wage. The Australian Fair Pay Commission made its third minimum wage determination on 8 July 2008. In its decision, the Commission awarded an across-the-board $21.66 per week pay increase to employees on minimum rates. The 2008 Australian Fair Pay Wage Commission Decision will come into operation from 1 October.
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Workplace Relations Update - June 2008
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27KB
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Guidelines issued by the Workplace Authority Director on how the "no-disadvantage" test will be applied in assessing workplace agreements.
The Workplace Authority has now published the Agreement Making and No-Disadvantage Test Policy Guide (Guidelines) which:
provides advice on the making and operation of workplace agreements under the Transition Act; and
outlines the policy that the Workplace Authority Director will apply when assessing workplace agreements made after 28 March 2008 under the new "no-disadvantage" test (NDT).
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Workplace Relations Update - April 2008
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41KB
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Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. What are the National Employment Standards? State industrial laws may be preserved as NAPSAs where entitlements are more generous
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Workplace Relations Update - February 2008
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33KB
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The ALP's Forward with Fairness Bill – the first step towards reform of the Australian IR system. On 13 February 2008, the Rudd Labor Government introduced legislation designed to address the first phase of a two phase agenda for the reform of the Australian industrial relations system
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