Welcome back to all our readers and best wishes for a successful 2019!
It is fair to say that the new year is certainly underway and with it, a raft of key changes to legislation have been ushered into the employment law arena. In this client alert we discuss the consequences of the Fair Work Commission Full Bench decision in Huntsman Chemical Company Australia Pty Ltd TA RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (“Huntsman”) delivered on 18 January 2019 which considers the effect of the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2019 (“Amending Act”) which provides a mechanism for the Commission to dispense with minor procedural errors relating to the making of enterprise agreements where it is concluded the enterprise agreement has otherwise been “genuinely agreed”.
It is now 12 months since the insidious discriminatory and sexually predatory behavior of powerful Hollywood moguls was exposed by a few very brave women. It is also 12 months since the phenomena of the #metoo movement. The fallout from all this publicity is certainly a heightened awareness of the unacceptable behaviours that occur at work, mostly against women. Now with the Christmas and New Year period upon us, many employers will be celebrating the end of 2018 with their employees. This is a fertile breeding ground for employees to “forget” they are required to adhere to a certain standard of behavior. However, with all employees more emboldened by the current climate, unacceptable behavior is far less likely to be tolerated and certainly much more likely to be reported.
It is that time of year again. Employers are looking at the holiday period and how this is managed. Many employers will be closing down operations over the festive season and want employees to take this time as annual leave. However, employees are not always so willing to take annual leave at this time.
It is not uncommon that we receive queries as to whether employers can direct employees to take annual leave. This often arises when the business shuts down usually over the Christmas and New Year season. Conversely, it is not uncommon that we receive a query as to whether, and in what circumstances, employees are able to trade in a portion of their annual leave entitlement for cash.
Last night I attended the eightieth commemoration of Kristallnacht, or the Night of Broken Glass at Sydney’s Great Synagogue. The events that occurred in Nazi Germany and its surrounding European countries, on Kristallnacht was the precursor to the worst atrocity committed by humans against one another in modern times, if not all times. How it could occur in the country that produced, Beethoven, Mozart, Freud, and many other intellectual giants remains one of the greatest questions. The answer I think is based on the concept of “Humans Rights” and what this means and what can occur when those rights are denied or not recognised in others.
The #MeToo movement has continued to expose the frequency of sexual harassment that occurs and continues to occur against women on a global level. Sexual harassment continues to be front and centre as a growing number of victims have come forward with their own #MeToo experiences.
In this week’s article we consider the continued effect of the #MeToo movement on Australian workplaces, the legal definition of sexual harassment and an employer’s responsibilities in relation to sexual harassment in the workplace. Most importantly, we consider what steps employers should be taking within their business to reduce the risks in this area. We also examine a recent decision which demonstrate the changing attitude of the Fair Work Commission towards sexual harassment in the workplace.
It is unusual for us to write a case note on one particular case, but the recent High court decision in Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited [2018] HCA 43 (10 October 2018) (“Ancient Order of Foresters”), merits such an article.
Is it acceptable for an employee to approach the clients and connections of their previous employer for the benefit of a new employer? The answer to this question depends on a number of matters including whether the employee is subject to restraints preventing such conduct, whether the approaches to the clients occurs before or after the employee leaves the employment and whether the employee uses their old employer’s confidential information. In many of our previous articles, we have discussed the enforceability of restraints of trade and the protection of confidential information.
When an employee or independent contractor leaves a business, they have the potential to significantly damage the business by misusing confidential information and client relationships. To prevent this, many businesses utilise restraints and confidentiality clauses within their employment contracts and independent contractor agreements.
A restraint of trade clause attempts to prevent an employee and/or independent contractor from engaging in competitive activities which may adversely affect the business. However, given that independent contractors are engaged to provide services on an independent basis, the ability to restrain them from working for competitors is problematic as it places fetters on the very independence that marks a contractor relationship.
For most employers, hiring casual employees has a number of advantages. Whether you are a small or large business, engaging casual employees can help increase flexibility in your workforce and afford you the ability to increase staffing levels during your busier months, whilst providing the ability to reduce headcount and/or wages during the quieter months.
However, in recent years there has been a significant focus on what casual employment actual means and it is now crucial that if businesses are engaging casual employees they are doing so on a genuine basis. To this end, employers that incorrectly classify an employee as a casual may leave themselves open to significant liability and potential risk.
With the Sydney housing boom slowing, in combination with a weakened Australia dollar and political instability as a consequence of the Turnbull government being ousted, it is no surprise that big corporates with large footprints in Australia are thinking about, and in the case of Singtel Optus (“Optus”), are in fact implementing significant restructuring and change management initiatives. As many of our readers would have seen in the news, Optus has announced plans to eliminate 400 local jobs in an effort to reduce its labour costs amid a more competitive landscape for telecommunications service providers in Australia.
When you think about it, it is inconceivable to imagine certain Australian industries such as construction, agriculture and the resources sector (to name a few), continuing to function, much less survive, without the supply of labour via labour hire. Given that many Australian companies utilise labour hire services of some kind either directly or via third party contractors, and the spotlight which is continuing to be shone by unions and regulators on the protection of vulnerable classes of workers in Australia, various State governments have recently enacted legislation to reform how labour hire activities are provided.
In an effort the keep abreast of these developments, this article will examine the labour hire schemes that have been legislated so far in Queensland, South Australia and Victoria.
Under Part 6-4B of the Fair Work Act 2009 (Cth) (“Act”), the Fair Work Commission (“Commission”) has the power to make a ‘stop bulling order’ when a worker has been bullied at work, unless the alleged bullying conduct amounts to “reasonable management action” carried out in a “reasonable manner”. This jurisdiction, which commenced on 1 January 2014 with widespread community support and in particular from the Commonwealth government, has been in operation for over 4 years, and in this time, it has had much lower rates of utilisation than expected. Evidently, much the same can be said for the success rates of those who have pursued a bullying application through the Commission.
“If I pay above minimum wage, does the modern award still apply”?
Many employers struggle with the complex myriad of legislative and regulatory requirements surrounding the employment and remuneration of workers. The role of modern awards and how they apply are one of the most misunderstood aspects of the Australian industrial landscape. Many employers do not properly understand their obligations and the requirements imposed on them by the operation of modern awards that cover their employees.