Category: Workplace Relations

Large penalties for ‘providing’ or ‘using’ unlicensed labour hire in the Transport industry

The Labour Hire Licensing Act 2018 (Act) establishes a licensing scheme to regulate labour hire providers and labour hire users in Victoria.

A recent Federal Court judgment demonstrates it is more crucial than ever that employers keep accurate records in accordance with the requirements in the Fair Work Act 2009 (Cth) (FWA) and Fair Work Regulations (Regulations).

The Labour Hire Licensing Act 2018 (Act) establishes a licensing scheme to regulate labour hire providers and labour hire users in Victoria.

With the ever increasing responsibility on companies and their directors and officers to ensure safety and security in the workplace, as well as to ensure compliance with the Heavy Vehicle National Law (HVNL), various forms of workplace surveillance are increasingly being used by employers in the transport and logistics industry.

Safety v privacy: In a landmark decision, the Fair Work Commission (FWC) Full Bench has held that an employee was unfairly dismissed for refusing to use biometric scanners to sign in at work.

The Fair Work Act 2009 (Cth) (FW Act) does not specifically deal with whistleblowers, and the Federal Government has previously rejected proposals to amend the FW Act to link disclosure rights under public and private sector whistleblowing laws with the General Protections in Part 3-1. That said, whistleblowers can still utilise provisions in the FW Act to gain additional protection, including where their disclosure may not actually qualify for protection under whistleblowing laws.

The last few years have seen several high profile cases of senior executives being ‘caught out’ providing fake or misleading information on their CVs/ job applications.

What is the employer’s duty of care?

Employers have a duty under workplace health and safety legislation, including the Occupational Health & Safety Act (2004) (Vic), to provide and maintain (as far as is reasonably practicable) a safe workplace. In addition, employers have a duty to monitor the health of their employees. Criminal prosecution, penalties and potentially imprisonment can result if these statutory duties are breached.

20 June 2019 – Correction to article in footnote 5

Annual Wage Review Decision

On 30 May 2019, the Fair Work Commission handed down its 2019 Annual Wage Review Decision. The key elements of the decision are:

Last year the Victorian Government passed the Labour Hire Licensing Act 2018 (Act). The Act legislates a scheme to regulate labour hire providers and labour hire users in Victoria (Labour Hire Participants). The scheme legislated by the Act will commence operation on 29 April 2019 and labour hire providers are required to have applied for licences under the Act by no later than 29 October 2019.

The memory of the summer holidays are long over. And, as a full working year looms, some employees will consider looking for opportunities elsewhere.

There may be many motives to contemplate change. More pay or new career challenges, for example, a promotion. Or, the motive, as the common social media catchphrases go, might be that an employee leaves their boss, not the organisation – seeking neither money nor career advancement, but simply respect.

On 19 December 2018, the Latrobe Valley Magistrates’ Court sentenced a 72 year old employer to prison for breach of her duties to provide a safe workplace under the Victorian Occupational Health & Safety Act 2004 (OHS Act).

The Fair Work Commission (FWC) has recently considered whether a dismissal for incapacity was harsh, unjust or unreasonable, in circumstances where the employee was unable to return safely to her substantive position and had declined to accept alternative employment due to her personal circumstances.

Following a health and safety related incident in the workplace, there are several actions that employers may need to take depending on the type of incident.

The Fair Work Commission (FWC) recently considered whether an employee’s employment was terminated on the employer’s initiative of whether the employee had resigned.

In response to the decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPac Decision), the Minister for Jobs and Industrial Relations has made the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) (Casual Loading Offset Regulations).

It is often said that the one constant in life is change. Employers in the health and welfare industry are well aware of that fact of life, given the frequency of regulatory change. One of the consequences of those sorts of changes for employers is that they often result in the need to modify or reshape the skills or qualification mix or working hours of the workforce.

Changes to the Heavy Vehicle National Law (HVNL) took effect on 1 October 2018. These changes relate to new inclusions to Chain of Responsibility (CoR) laws, and resemble the current risk-based approach that is applied in workplace health and safety law.

On Thursday 1 November 2018, the Long Service Leave Act 2018 (Vic) (LSL Act 2018) took effect.

Although the rate at which long service leave (LSL) accrues (0.8667 weeks per year) will not change, there are other significant changes that businesses operating in Victoria need to ensure they comply with to avoid exposure to penalties which have tripled under the new law.

In September 2018, the Fair Work Commission (FWC) published a new model award term to supplement the flexible work provisions in s65 of the Fair Work Act 2009 (Cth) (FW Act). In another decision, when arbitrating a dispute under an enterprise agreement, it found that the employer had not demonstrated that it had “reasonable business grounds” for refusing an employee’s flexible work request.

On 2 October 2018, a Full Bench of the Fair Work Commission, headed by Ross J, partially overturned a decision of Deputy President Colman, regarding the cases of Mr Gelagotis and Mr Hatwell which received media coverage because of the industrial context that the dismissals arose.

The prevalence of mental health issues and its impact on individuals and the workplace is now well-known and accepted by employers. Around 45% of Australians between 16-85 experience a mental health condition at some point in their lifetime[1]. In a given 12-month period, one in 5 Australians will have experienced a mental health condition[2].

The process of making an enterprise agreement and having it approved by the Fair Work Commission (Commission) is becoming ever more pedantically complicated.

A recent decision of the Fair Work Commission (FWC) provides insight into the meaning of “acceptable” alternative employment and when the FWC will use its discretion to reduce a redundancy payment in circumstances where an employee, whose position has become redundant, has declined an offer of alternative employment.

In recent months there have been several important developments which affect businesses which employ casual employees directly or use casual labour hire workers.

On 26 June 2018 the Labour Hire Licensing Act 2018 (Act) was assented to after it passed the Victorian Parliament on 20 June 2018. The Act legislates a scheme to regulate labour hire providers and labour hire users in Victoria (Labour Hire Participants).

Every four years the Fair Work Commission (FWC) reviews the Modern Awards that apply to a significant portion of Australia’s workforce. In 2017, the ACTU made a submission to the FWC as part of that process proposing that Family and Domestic Violence leave (FDV leave) be included in the Awards. Research indicates that family or domestic violence had a negative impact on their work for nearly 60% of women experiencing family or domestic violence.

This article was updated on 29 August 2018 and provides an update to our previous coverage on this matter.

Slavery is thought of as something from a past era. However, legislators across the world have passed laws this decade to combat modern slavery, for example, in 2010 California passed the Transparency in Supply Chains Act. In 2015, the UK followed with the Modern Slavery Act.

The National Employment Standards (NES) in the Fair Work Act provide that employees are entitled to accrue 10 days of personal leave per 12 months of continuous service. Where employees regularly work a standard 7.6 hour day in a 76 hour fortnight, this is not problematic. However, problems can arise where an employee works a non-standard or varying work pattern.

The Modern Slavery Bill was promoted to prompt businesses to consider how they do business on a global scale, including within their supply chain, and take steps to eradicate any risk of modern slavery.

The Fair Work Commission (FWC) recently considered whether a dismissal for incapacity was “harsh, unjust or unreasonable” in the following decisions.

This is the story of a worker who sent an offensive text message to his co-workers, and the legal battle that ensued. The key message… context is key.

This quote is taken from an online platform dedicated to employees expressing their anonymous opinions about their employers.

Transport companies often have people working for them, or providing services to them, in a number of different capacities.

Transport companies often have people working for them, or providing services to them, in a number of different capacities. In addition to full-time, part-time and casual employees, transport companies may engage drivers or other workers who are described as independent contractors and who may rely exclusively on the transport company for work and income and be subject to significant control of their activities by the transport company.

The following tables detail the new minimum rates of pay for part-time and full-time employees under various modern awards, applicable to employees in the transport industry.

Demotion of an employee may arise when there is a change in the operational requirements of a role or as a disciplinary consequence following an employee’s unsatisfactory performance or conduct.

Incorrectly assuming that an employee is a casual, rather than a full time or part time employee can be a very costly mistake, as a recent Federal Circuit Court decision has again highlighted.

An employee’s contract reaches its expiry date and the employment ends. Can the employee claim that they were unfairly dismissed?

On 2 April 2018 significant changes to the Real Estate Industry Award 2010 (Real Estate Award) made by the Fair Work Commission (FWC) came into effect.

Employees might assert they have a ‘right’ to have a support person present during certain processes, for example during performance management, investigations and disciplinary procedures.

Understanding the role of a support person, and how far an employer can go to control what they can do, is an important element of successfully and lawfully managing employees.

Managing the relationship with your WorkCover Agent and the Return to Work Inspector.

Whether you operate in an office or a warehouse, workplace injuries can happen to any business!

If an accident happens, as an employer, you must understand the obligation for returning an injured employee to work, in circumstances, where a WorkCover claim has been accepted. The Victorian WorkCover Authority (VCA) has a central role in overseeing this process.

A Supreme Court order which saw a financial services firm pay $423,445 to a former accountant provides a reminder of how repudiation of employment contracts can be used by employees to obtain significant damages awards and prevent employers from enforcing otherwise valid post-employment restraints.

Changes to the Heavy Vehicle National Law (HVNL) are due to take effect in mid-2018. These changes relate to new inclusions to Chain of Responsibility (CoR) laws, and resemble the current risk-based approach that is applied in workplace health and safety law.

Rigby Cooke Lawyers’ Workplace Relations team continues our strong presence in the market, with the expertise of partners Sam Eichenbaum and Rob Jackson recognised by independent survey and review source Doyle’s Guide, in their 2018 Employment (Employer Representation) and Workplace Health & Safety lists.

The festive season is upon us, with many companies having hosted their end of year celebrations over recent weeks. Although most parties go off without a hitch, sometimes there can be post-event fallout which needs to be addressed.

When an employee is struggling with meeting company expectations, often a performance improvement plan (PIP) is implemented as an opportunity for the employee to rectify unsatisfactory performance and/or problematic behaviours. Unfortunately this process is not always successful, and in some cases a disciplinary process will commence and dismissal may result.

Franchisors and holding companies will now face much greater accountability for failing to act when a franchisee or subsidiary is found to be breaching the Fair Work Act (FWA).

Not-for-profit organisations often have people working for them in a number of different capacities. In addition to employees, there could be independent contractors or volunteers.

On Thursday 23 February 2017, the Full Bench of the Fair Work Commission (FWC) delivered its long awaited decision on penalty rates as part of its four yearly review of modern awards.

A recent decision of a Full Bench of the Fair Work Commission (FWC) has examined the operation of the Abandonment of Employment clause in the Manufacturing (etc) Award (Bienias v Iplex Pipelines Australia Pty Ltd [2017] FWCFB 38).

Prudent business owners will go to great lengths to protect their intellectual property and confidential information from their employees and competitors.

There is a range of scenarios in which the interaction between notice of termination and leave can arise and, unhelpfully for employers, neither the Fair Work Act 2009 (Cth) (FW Act) nor the Long Service Leave Act 1992 (Vic) (LSL Act) specifically address these issues.

Cashing out annual leave, excessive annual leave and annual leave in advance.

The Fair Work Commission (FWC) has reviewed annual leave in modern awards and there have been changes to the annual leave provisions to the transport industry modern awards to¹ :

Avoid underpayment claims: This year’s award wage increases explained

Award rates and the national minimum wage increased by 2.4% from the first full pay period on or after 1 July 2016. Award allowances were also increased.

In a sobering lesson for trucking companies, the Industrial Relations Court of South Australia has ordered Atkins Freight Services Pty Ltd (Atkins Freight), an Adelaide transport company, to pay penalties of $93,000 and back-pay more than $374,000 to 10 truck drivers.

On 31 May 2016, the Fair Work Commission handed down its 2016 Annual Wage Review Decision.

A recent decision of the Supreme Court of NSW¹ has provided a timely reminder of the importance of ensuring the existence and currency of employment contracts.