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.
With the start of the new financial year and the annual increase in minimum wages, many businesses have most likely reviewed their pay rates and modern awards to ensure their company’s compliance in this regard. However, many businesses are failing to get some of the other basics right when it comes to record-keeping for their employees. In this week’s article we review an employer’s obligation in relation to payslips and employee records, the Fair Work Ombudsman’s current campaign on this issue and we review a recent decision which has imposed a record fine as a result of inadequate record-keeping.
Flexible working arrangements have become more and more popular over the years. Traditionally, this was something used by working mothers and carers, but as social norms have evolved, it has become very common for all types of workers to want to adopt flexible working arrangements. For example, flexible working arrangements allow employees to balance family, carer and other responsibilities and interests alongside their work commitments and career goals.
In a society where the use of technology including mobile telephones and computers has become so prevalent, it is no surprise that electronic devices are changing the way in which we communicate. There has been a growing trend where employees and employers now communicate almost exclusively via email or text message. As such, it is not unexpected that there are a number of employers who have terminated the employment of their staff by phone, text or email in order to avoid those hard to have conversations with their employees.
Ordinarily, there is nothing very comic about legal contracts. In particular, employment contracts can be long, difficult to understand and full of legalese. As a way of tackling this, there is an emerging trend to think outside the box when it comes to contract law and expressing legal concepts. In this week’s client alert, we discuss the creative innovations that are being considered in contract design, specifically through the use of illustrations, diagrams and other comic-book like imagery.
If your business has a matter before the Fair Work Commission (“FWC”) you may automatically think that the you are entitled to legal representation in that matter and that your legal representative is able to appear for the business in the FWC proceedings. You would be wrong. The issue of legal representation before the FWC has become a hot topic as a result of a number of recent decisions. In this client alert we consider the extent to which employers have a right to be legally represented in FWC proceedings, and what this means for companies involved in such matters.
We hear the words “duty of care” used commonly but in terms of an employment relationship, what does this really mean for employers and how far does the duty really go? By way of introduction, there are a number of duties that are owed by an employer to an employee. These include, but are not limited to:
The duty to provide competent staff;
The duty to provide a safe place to work;
The duty to provide proper and adequate materials; and
The duty to provide a safe system of work and supervision.