We have written previous articles regarding the #metoo movement and sexual harassment and what this means in the context of employment law. Community expectations are rapidly changing in this area especially as the issues of sexual harassment and sex discrimination have come to the fore in recent times as a result of the increased media attention following allegations being aired about sexual assault and inappropriate conduct in our Federal Parliament. Sex discrimination issues continue to garner political and media attention, with the lens of sex discrimination being applied to the treatment of Australia Post’s former CEO, Christine Holgate by the Federal Government.
There are many reasons why an employer and employee may want an employment relationship to end. If the termination of the relationship is at the initiative of the employee, and the employee resigns, there is usually not any significant risk to an employer that there will be resulting claims by the employee, but this is not always the case. In this article, we examine the manner in which the relationship can be terminated and the associated risks, and how these risks may be obviated.
Important amendments have been made to the Fair Work Act 2009 (Cth) which introduce new workplace rights and obligations with respect to casual employees. These changes came into effect on 27 March 2021.
The changes to casual employment are significant and will affect every national system employer in Australia which has a casual workforce.
Many labour hire and contract for service employers (such as commercial cleaning, security and maintenance companies) exist as a result of contracts they have with clients for their services, for which they engage staff. When these contracts come to an end, there is no need to retain the staff and as such their positions are redundant. It has been widely accepted that if this is the manner in which these businesses did business, and it was an ordinary and customary part of the business model, then the employer would not be liable to pay the employees redundancy pay as a result of the terminations due to loss of contracts. This idea has been enshrined in the Fair Work Act 2009 (Cth) which provides that redundancy pay is not required if the termination of employment is a result of the “ordinary and customary turnover of labour”. However, there has been much uncertainty as to when this actually applies and what these words mean. There has also been significant recent judicial scrutiny of the issue.
When the High Court decided in 2001 that an injured courier was, in fact, an employee rather than an independent contractor, the decision had a significant impact on the relationship between workers and business. This shift is occurring again in relation to the Gig Economy. In Hollis v Vabu Pty Ltd (2001) 207 CLR 21, the Court determined that what had once been assumed as an independent contractor, being a courier delivery rider, was determined to be an employee. The Court found that factors such as level of skill, control and work hours, presentation to the public, and tools of trade were all relevant to whether the legal relationship was one of contractor or employee. The Court in effect, developed the multi-factorial test to determine this issue, which has been applied consistently since to determine whether a worker is an employee or independent contractor. Later decisions have added other qualities, such as an ability to subcontract work, in determining the nature of an engagement.
As the Federal Government has recently announced, the COVID-19 vaccination rollout will commence in mid to late February, a full month ahead of the previously foreshadowed commencement schedule at the end of March 2021. As business and industry of all sizes has suffered during the pandemic, not to mention the complete shutdown of international air travel, many Australians, if not looking forward to the jab itself, are looking forward to a gradual return to normalcy and it is increasingly apparent that normalcy might only return once the majority of the population have been vaccinated.
As we have covered in previous client alerts, the COVID-19 pandemic has created a raft of unique challenges for employers striving to maintain safety, efficiency and productivity, and employees who, perhaps for the first time in their working lives, are now consistently working from home. For many of these employees, feelings of social isolation have led to reports of anxiety and depression, and with the Silly Season just around the corner, this means some serious red flags for employers. In this client alert we examine some of the current difficulties, and projected difficulties that COVID-19, will have on employees, and how best employers might deal with them.
For many of us, working from home at least some of the time this year has become the norm. For quite a significant number of employees, working from home has become a regular and permanent (or at least current) way of working. We have written previous client alerts regarding the steps employers should take to ensure they are meeting their legal obligations if they have employees working from home. In this client alert, we examine some recent cases in the Fair Work Commission (FWC) which have had to deal with the legal implications when working from home, is not all its cracked up to be.
It would seem self-evident to most people that if you are employed, as an employee you owe certain duties to your employer, the most basic of which is not to put yourself in a position of conflict with that of your employer. This idea that as an employee you owe certain duties to your employer is certainly one of the cornerstones of the employment relationship. It is so important that the law implies certain duties into the relationship of employment, including the duty of fidelity and good faith. This duty of fidelity is extremely broad and would encompass most activities associated with the proper performance of the role. It should however, be distinguished from the fiduciary duty owed by senior employees and officers of the employer. The fiduciary relationship imposes duties over and above those required by the duty of fidelity, and has been described as follows:
As the nation begins to emerge from the COVID pandemic and businesses slowly recommence their ‘as usual’ activities, employers are understandably keen to return to commerce as soon as possible. No doubt, many sectors of industry were hit hard by the pandemic; industries such as hospitality, retail, travel and tourism, professional sports and the arts, and despite the welcome assistance of the Federal Government’s JobKeeper programme, in its various forms, redundancies were inevitable.
Australia has officially entered its first recession for 29 years after the economy went backwards in the March 2020 quarter. The ongoing impact of COVID-19 has continued to have a significant detrimental effect on many businesses across a variety of industries.
In addition, the upcoming changes to JobKeeper later this month will also result in some employers no longer receiving JobKeeper payments to subsidise wages. As a result, many businesses are considering their options to safeguard their business and reduce expenditure over the coming months.
A client of ours was recently approached by one of its employees, who had been on paid workers’ compensation benefits for several years and asked to be paid his accrued annual leave entitlements. After all, he had not taken annual leave at any stage during his recuperation from injury and understood that he had accrued a significant entitlement. Our client had simply assumed that because the employee was not working, was not on paid personal leave, and was receiving compensation payments, he was not continuing to accrue entitlements. They were wrong.