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Who Is a Casual Employee, and Do I Owe Backpay for Leave and Other Award Benefits?

In the last 12 months there has been considerable debate and angst over the proper characterisation of casual employment, and entitlements owed to long term casual employees. This uncertainty arose as a result of f the Full Court of the Federal Court of Australia decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 (“Rossato”), which followed the earlier decision of WorkPac Pty Ltd v Skene [2018] FCAFC (“Skene”) (refer to our previous articles on these two cases in 2020 and 2019). We have previously cautioned that as a result of these judicial decisions there was a real risk that employers owed significant backpayments to long term casual employees.

“Ordinary and Customary Turnover of Labour” What Does This Really Mean?

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.

The Impact of the UK Uber Decision on the Australian Gig Economy

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.

Can Employers Force Employees to be COVID-19 Vaccinated?

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.

COVID-19, Working from Home, Mental Health Challenges and the Office Christmas Party!

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.

Working From Home: Some Insightful FWC Decisions

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.

Conflicts of Interest in Employment Law

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:

The Reasonable Notice Trap – The Importance of Written Contracts

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.

Redundancy in a COVID World

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.

Absent Employees: Are they still entitled?

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.

Jobkeeper 2.0 – What does it mean for your business?

The Australian Government’s introduction of JobKeeper on 9 April 2020, has helped Australian businesses, not-for-profits and workers get through one of the most difficult times in our history in dealing with the COVID-19 pandemic. With Stage 4 restrictions in place in Victoria and the threat of similar lockdown in other states, the untimely termination of JobKeeper support on the 27 September 2020 brought great panic to businesses and employees.

Bullying in the Workplace – No matter where you work

Workplace bullying is a dynamic and complex phenomenon, its causes are often multifaceted and its impact individual and varied. It can have a profound effect on all aspects of a person’s health as well as their work and family life, undermining self-esteem, productivity and morale. For some it can result in a permanent departure from the labour market and in extreme cases, suicide.

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