The explosion of social media use over the years presents many challenges to the employment relationship. The use of social media has blurred the boundaries between work and non-work life. This has led to many employers having to deal with situations where employees have posted something in their private capacity on their own social media accounts, which has (or is likely to have) a negative impact on the employer.
The environment in which work is conducted is no longer constrained by traditional notions of a workplace where certain tasks and activities are completed, between the hours of 9am and 5pm, Monday to Friday. The modern workplace is constantly changing, and employers are having to adapt in order to keep pace. More frequently than not, work is now performed in a more dispersed and flexible manner, with emphasis being placed on the delivery of outcomes rather than satisfying attendance requirements or endless performance milestones. Employers now need to consider the consequential legal ramifications for themselves and individual staff members created by these seismic shifts in the way we work.
There have been a number of interesting and noteworthy cases determined by our judiciary in the employment law space in the last quarter. In this legal briefing we provide an overview of two significant cases. The first of the two highlights the challenge faced by employers in relying upon the opinions of medical professionals in determining whether (or not) an employee can perform the inherent requirements of the role for which they are employed and how employers ought to go about reconciling conflicting medical opinions about an employee’s fitness for work. The second matter relates to the exception available to employers under the National Employment Standards from the obligation to make severance payments in the case of a redundancy in circumstances where the impacted employee’s position is no longer required “due to the ordinary and customer turnover of labour”.
In light of the recent exhaustive and intrusive media coverage about The Honourable Barnaby Joyce MP’s affair with his staffer, the question that should be asked is whether the personal life of an employee is something with which the employer should be concerned or have any say. In this regard, the Prime Minister clearly is of the view that the answer to this question is in the affirmative. In other words, he sees no issue with an employer, in this case the Prime Minister dictating to his ministers what they can and cannot do in their personal lives, and in the most intimate of circumstances. Does this particular stance, however, apply to the working community at large as well as other workplaces?
What is on your agenda for the coming year?
Employers should get ready for what looks to be another fast-paced year filled with employment law developments. In the lead up to an election year next year, employment matters are squarely in forefront of political debate. In our first article for the year we review a number of updates and/or pending legislative amendments as part of the next wave of employment and industrial law regulations about which you should be aware.
With the Christmas and New Year period upon us, many employers will be celebrating the end of 2017 with their employees. Whilst the 2016 comedy film “Office Christmas Party” is an extravagant portrayal of a Christmas function gone bad and which seems, in many ways an over-exaggeration of what really happens, in our experience these Christmas events are notorious for being a potential breeding ground for inappropriate workplace behavior. These parties and events may put employers at risk of litigious actions such as sexual harassment, bullying, discrimination and unfair dismissal claims.
Employers are required to ensure the work health and safety of workers while at work. Not only is work health and safety within the workplace a legal requirement for employers, but workplace injuries can have a significant impact on a business and severe consequences for all workplace participants. Significant workplace injuries can have a lasting negative effect on the business through reduced productivity, lost clients, low staff morale, traumatised staff and the associated reputational costs.
Unpaid internships are increasingly becoming the default way of beginning a professional career in Australia. Last May, we wrote about the increased use of volunteer and unpaid workers by employers and the potential legal issues surrounding the use of unpaid work arrangements.
By way of summary, it is important to remember that some unpaid work arrangements are permissible at law, while others are not. Whether an unpaid work arrangement is lawful under the Fair Work Act 2009 (Cth) (“FWA”) depends on whether an employment relationship exists or whether the arrangement involves a vocational placement for the purposes of training.
There have been a number of interesting legal matters heard by our judicial system within the employment law area in the last quarter. In this legal briefing, we provide an overview of two informative and instructive cases for employers, each dealing with their own unique and distinct employment law issue. In addition, we provide a timely update as to the progress of the union movement’s appeal to the Federal Court of Australia in the penalty rates decision that was handed down earlier this year.
For larger organisations, or employers who engage a multifaceted workforce, an enterprise agreement (“EA”) can be a very sensible and practical instrument to simplify the terms and conditions of employment for its workforce. It is not uncommon for employers to have a number of modern awards applying to their employees and thus creating complexity and administrative difficulties. In addition, as modern awards are not focused on individual businesses but apply across industry, many of the terms are often difficult and costly to implement and on the whole can be a challenge for a business to ensure compliance.
The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (“The Bill”) has passed the Parliament, after the House of Representatives yesterday accepted amendments made in the Senate. The new law will apply from the day after the Bill receives royal assent, except for the new franchisor and holding company liability provisions (discussed below) which will start six weeks later.
The Bill was introduced as a response to the underpayments and exploitation of vulnerable workers within some of the 7/11 franchisees as well as similar subsequent scandals with Caltex, Yogurberry, Pizza Hut and Dominos. The Bill will introduce a number of initiatives to increase deterrence and punishments in relation to systematic exploitation of vulnerable workers. It also strengthens the power of the workplace regulator, the Fair Work Ombudsman.
Hiring a new employee is a crucial decision in any business. However, deciding on the most appropriate employment relationship for a growing business can be a daunting prospect. With so many types of employment arrangements now available such as full-time and part-time permanent employment, casual employment, temporary employment, internships and fixed term employment to name a few, each with their own respective advantages and disadvantages, it can be difficult to know which is the most appropriate arrangement to use for your business. It is crucial for employers to understand the differences between the respective ways in which an employee can be engaged, so as to enable the business to make an appropriate decision regarding the make-up of its workforce. In addition, incorrectly classifying an employment relationship can have serious detrimental consequences. In this article, we provide a summary of some of the most popular employment arrangements and how they can be used.