Pay and Conditions

Exploitation of Migrant Workers: A Systemic Issue

According to a report released by the Senate Education and Employment References Committee entitled “A National Disgrace: The Exploitation of Temporary Work Visa Holders” dated 17 March 2016 there are approximately 1.4 million temporary visa holders working in Australia who are covered by the national Fair Work system. Startlingly, many visa holders experience a significant amount of employment mistreatment. The Fair Work Ombudsman, Natalie James, recently observed that migrant worker complaints of mistreatment have soared in recent years, and sponsorship breaches were often deliberate acts of exploitation by unscrupulous employers. Similarly, Professor Allan Fels of the newly appointed Federal Government Ministerial Taskforce (“the Taskforce”) established to protect migrant workers commented that the exploitation of migrant workers in Australia was “systemic” and “deeply embedded in the practices of some businesses”.

Casual Employees: What You Need to Know

For employers, casual employment has a number of distinct advantages. It provides significant flexibility, allowing employers to rapidly adjust staffing levels when required. For employees, casual employment may provide similar opportunities for flexibility through greater work-life balance and ensuring that personal commitments and family responsibilities can be sustained. If casual employment provides benefits all-round, why is this mode of employment such a contentious industrial relations issue.

I Want a Holiday, or Maybe I’ll Just Take the Money Instead

It is not uncommon that we receive a query 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.

The answer to both questions is far from straightforward. The industrial relations landscape in Australia does permit employers to direct employees to take leave under certain specified conditions. In addition, some employees may be entitled to “cash out” their leave, subject to specific requirements which apply under legislation and various industrial instruments.

Should Interns Be Paid To Get Work Experience?

In recent years, Australia has witnessed a marked increase in the density and willingness of volunteer and unpaid workers to join the workforce. In fact, for many young people at the end of their academic life, undertaking an unpaid internship has become a naturally viable step in scoping the market for work opportunities. For many graduates, an unpaid internship provides practical experience and a launching pad to other possible career paths. For employers, it provides an opportunity to trial an employee’s skills before committing to an offer of employment. But what is the position at law, and what does the Fair Work Act 2009 (Cth) (“FW Act”) and other relevant employment relations legislation have to say about unpaid work arrangements.

Are you the next Seven Eleven? Modern Award Compliance in the Modern Workplace

It is astounding that so often we have discussions with both corporate and individual clients, and when we enquire what Modern Awards apply in their business or cover their employment, they either answer that they don’t have any as all employees are paid above award rates, or they just do not know. Modern Awards cover a vast number of employees across almost all areas of work. It is most unlikely that all an employers’ employees are award free, unless they have an enterprise agreement or other industrial agreement in place that overrides and displaces the operation of a Modern Award.

Independent contractors – the Risk of Sham Contracting

The distinction between an employment relationship and that of independent contractor is often vexed. However, the failure to properly characterize the relationship may lead to significant adverse consequences, including prosecution under the Fair Work Act 2009 (Cth) for sham contracting. In this article we focus on the risks associated with prosecution for sham contracting. However, it should be noted that in addition, employers who improperly classify employees as independent contractors may also be liable for underpayment of wages claims, leave claims, payroll tax and other ATO liabilities, superannuation payments; and civil penalties. Not to mention that misclassified employees will also have all the rights of employment including to unfair dismissal remedies, redundancy entitlements and the like.

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