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An employee will only be eligible to request a flexible working arrangement if they are able to demonstrate that there is a sufficient nexus between one of the prescribed circumstances under the Fair Work Act 2009 (Cth) and the request itself.

When relying on a workplace policy as grounds for dismissal, employers must be able to clearly demonstrate that the employee is aware of the policy and has undergone meaningful training on the policy.

Where there is a factual dispute about allegations made against an employee, employers must ensure that the allegations are properly tested before proceeding to a disciplinary process. This will ensure that the employee has been provided with procedural fairness and any reasons relied on by the employer as grounds for dismissal are valid.

An employer may apply to the Fair Work Commission to have an employee’s redundancy pay reduced to a specified amount (which may be nil) in circumstances where it has obtained “other acceptable employment” for the employee.

When engaging overseas workers to perform work for an Australian entity, employers need to be mindful of the risks that such workers may be considered employees to whom the Fair Work Act 2009 (Cth) might apply.

The probation period is commonly used by employers to assess the suitability of an employee for ongoing employment. One of the reasons that the probation period is of benefit to employers is because, when aligned with the minimum employment period set out in the Fair Work Act 2009 (Cth), it allows an employer to end the employment relationship before an employee becomes entitled to protection from unfair dismissal.

You have hired an employee who appears to be perfect on paper, only to later discover that they have misrepresented or deliberately withheld information about their qualifications, employment history or problematic past. A simple and often overlooked way of mitigating unfortunate surprises like these is conducting pre-employment checks to verify whether a candidate is as suitable, qualified and impressive as their resume or interview has portrayed them to be.

There is no doubt that the COVID-19 lockdowns have changed the way in which most businesses work. While working remotely has provided employers and employees with flexibility, many employers have now started directing employees to return to the workplace either full-time or under hybrid working arrangements.

When conducting workplace investigations, one issue that we commonly face is ensuring that the process is completed in a timely manner to minimise any disruption and uncertainty in the workplace. However, whilst investigations should be completed as quickly as possible, this must not come at the expense of procedural fairness being provided to all employees involved.

In a recent decision of the NSW District Court, a sole trader has been convicted and fined $100,000 for breaching his health and safety duty under the Work Health and Safety Act 2011 (Cth), which resulted in workers being exposed to a risk of death or serious injury.

The director and Chief Executive Officer of a group of four sushi restaurants which operated in NSW, the Australian Capital Territory and the Northern Territory was recently ordered to pay $1.6 million for her involvement in contraventions of the Fair Work Act 2009 (Cth) by the Federal Court of Australia.

Employers often do not require (or desire) employees to work through their notice period. This is particularly the case if an employee has provided resignation of their employment and are disruptive to the workplace.

When considering the financial impact of redundancies, employers should be mindful of the operation of s 120 of the Fair Work Act 2009 (Cth), which allows an employer to apply to the Fair Work Commission to reduce the amount of redundancy pay it is obligated to pay redundant employees in certain circumstances.

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks can often arise from hazards such as workplace conflict or poor workplace relationships.

Managing an underperforming employee can often be a complex task, particularly in circumstances where the employee has shown signs of improvement, but their overall quality of work continues to fall below the minimum expectations.

One of the National Employment Standards in the Fair Work Act 2009 (Cth) is the right to request a flexible working arrangement in certain circumstances. In or about mid-2023, the FW Act was amended to give the Fair Work Commission power to conciliate and arbitrate disputes about such requests.

In a recent unfair dismissal decision, the Fair Work Commission has provided support for the position that employees bear the responsibility of complying with workplace policies and procedures and that a failure to do so can amount to not only a valid reason for dismissal but may constitute serious misconduct warranting summary dismissal.

In times of major organisational change which result in restructure and redundancies, employers may overlook obligations they may have to provide notice and consult with employees under industrial instruments.

In workplaces where machinery is operated, it is important that the highest level of safety is adhered to. In Bunce v Pmfresh Pty Ltd [2024] FWC 1577, the Fair Work Commission has recently held that an employee’s admitted drug use and poor regard for forklift safety were valid reasons for dismissal.

When engaging people to perform work, businesses must be aware of the distinction between an employee and an independent contractor as there are varying legal rights, obligations and entitlements which apply to the respective working relationships.

A recent decision of the Office of the Australian Information Commissioner has illustrated how difficult it can be for employers to balance their obligations under various workplace laws when managing ill and injured employees.

Enterprise agreement making under the Fair Work Act 2009 (Cth) requires bargaining representatives to bargain in good faith. Under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), the Fair Work Commission was provided with new powers to arbitrate and issue a workplace determination to resolve intractable disputes about terms and conditions of proposed enterprise agreement in circumstances where there are no reasonable prospects of the parties reaching an agreement.

Employees are protected from adverse action because they have exercised, or propose to exercise, the workplace right to make a “complaint” or “inquiry” in relation to their employment within the meaning of section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth).

An employer has successfully defended an adverse action claim brought by a former employee as the court was satisfied that the employee was not dismissed for a prohibited reason.

A recent decision of the Fair Work Commission has confirmed that an employee’s inappropriate use of social media group chats may form a valid reason for dismissal, particularly when matters relating to work are discussed.

Sexual harassment in the workplace has been the subject of significant reform over the past few years, with an even greater onus on employers now to take proactive measures to minimise or eliminate the risk of sexual harassment in connection with work.

When seeking to enforce a restraint, it is important that employers seek to enforce the restraint in a timely manner to prevent future or an ongoing breach. Any delay will be considered by the courts when assessing whether it is reasonable to enforce the restraint.

When it comes to drafting post-employment restraints in employment contracts, it is important for employers to consider the purpose of the restraint and whether or not the restraint reasonably serves that purpose.

The Fair Work Act 2009 (Cth) sets out the union right of entry to entitlements and requirements. The right of entry provisions are intended to draw a balance between the right of organisations to represent their members and the right of employers and occupiers to operate without undue inconvenience.

Section 389(2) of Fair Work Act 2009 (Cth) provides that a dismissal will not be a case of “genuine redundancy” if it “would have been reasonable in all of the circumstances” for the employee to be redeployed within the employer’s enterprise or the enterprise of an associated entity.

Under work health and safety legislation, persons conducting a business or undertaking have duties to ensure, so far as reasonably practicable the health and safety of workers in the workplace. It is also accepted that workplace bullying is a risk to health and safety of workers which needs to be managed as any other health and safety risk.

Various Australian jurisdictions have been slowly introducing an offence of industrial manslaughter, dealing with workplace fatalities that arise as a result of negligent conduct by a person conducting a business or undertaking or its officers.

The Federal Court of Australia has handed down a record $10.34 million in penalties against two related entities for various contraventions of the Fair Work Act 2009 (Cth) resulting in substantial underpayments.

The Fair Work Act 2009 (Cth) requires employers to keep certain employee records for a period of 7 years. These records are necessary to ensure that employees have been paid their minimum entitlements should an underpayment claim be made.

A recent decision of the New South Wales Personal Injury Commission serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.

Work from home arrangements have become the “new normal” across many workplaces since the COVID-19 pandemic.

A recent decision of the Federal Court of Australia – Full Court has provided some clarity to employers in relation to when the obligation to pay superannuation will or will not arise.

As part of the introduction of the Fair Work system for Australia’s national workplace relations system ushered in by the Fair Work Act 2009 (Cth), the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provided for the continued existence and application of industrial instruments created under the Workplace Relations Act 1996 (Cth) or before the FW Act commenced.

There are a number of personal attributes that are protected by Australia’s federal and state anti-discrimination laws, such as a person’s race, sex, pregnancy, marital status, family responsibilities, breastfeeding, age, disability, sexual orientation, gender identity or intersex status.

Many businesses, and in particular small businesses employers subscribe to human resources information systems which offer access to template letters and policies to provide a ready-made solution or to manage human resources administration.

Disability discrimination legislation protects persons from being treated less favourably as the result of their disability.

With Christmas less than 90 days away, employers should be turning their mind to planning and confirming their Christmas/New Year shutdown arrangements.

In December 2022, a number of significant changes to the Fair Work Act 2009 (Cth) came into effect as a result of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022.

There are only limited circumstances in which a union or union representative are entitled to enter the workplace of an employer. One such circumstance is permitted by work health and safety (WHS) legislation – and it permits a WHS entry permit holder to enter a workplace for the purpose of inquiring into a suspected contravention of WHS legislation that relates to, or affects, a relevant worker.

A question that arises quite often amongst our clients is – do non-disparagement clauses have any practical effect? Or are they even enforceable? The answer is yes, when drafted correctly.

One of the effects of the amendments to the Fair Work Act 2009 (Cth) (FW Act) which came into effect on 6 June 2023 is that employers now have greater obligations when responding to requests for flexible working arrangements made under s 65 of the FW Act.

In cases of workers compensation involving psychological injury, employers may rely on the “reasonable management action” defence to dispute liability for injury.

For most employers, casual employment is favoured because of the flexibility it provides – employees are employed as required and have no guarantee of ongoing employment. This flexibility however does not mean that casual employees are not protected from adverse action.

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks arise from psychosocial hazards including conflict or poor workplace relationships.

Differences in opinion, dysfunctional relationships and disagreements between employees may occur from time to time in the workplace. Generally, these instances of workplace conflict do not amount to bullying behaviour, which is defined as repeated, unreasonable behaviour causing a risk to health and safety.

In a timely reminder about the importance of carefully drafting enterprise agreements, the Federal Court of Australia – Full Court has recently determined a dispute about the definition of “ordinary time earnings” in a particular enterprise agreement. In doing so, the Full Court confirmed that departures from the plain text of an enterprise agreement will not be justified (unless there is an absurdity or a very seriously anomalous result).

All employees (including part-time and casual employees) will soon have the entitlement to 10 days of paid family and domestic violence leave per year under the National Employment Standards, replacing the existing entitlement to five days of unpaid family and domestic violence leave.

With the new Respect@Work amendments now in place, employers should be mindful of a recent decision handed down by the Fair Work Commission where it upheld the dismissal of an employee on the basis that swearing at a colleague constituted sexual harassment.

The NSW District Court has heard how following an incident involving the low voltage pole changeovers which caused significant injuries to a worker, a similar incident occurred about nine weeks later, this time causing a fatality.

It is unlawful in Australia to discriminate against an individual because of their age. Employers are specifically prohibited from discriminating on the basis of age under Federal and State anti-discrimination laws, and a person’s age is also a protected attribute under the general protections provisions of the Fair Work Act 2009 (Cth).

The Fair Work Commission has reminded employers about the duty to afford procedural fairness to employees prior to dismissal.

An employee’s dismissal will not be a case of genuine redundancy if it would have been reasonable in the circumstances for the employee to be redeployed within the employer’s enterprise or one of its associated entities.

When implementing redundancies, it is critical that the process for selecting employees for redundancy is a transparent and objective one. A skills matrix can assist employers in this regard by creating clear and objective criteria against which employees are to be assessed.

Last year, the Federal Circuit and Family Court of Australia found a HR Manager to be accessorily liable for his involvement in an employer’s unlawful adverse action against an employee after she proposed to exercise a workplace right, being her ability to initiate proceedings under a workplace law.

We often speak about the importance of honesty and candour in an employment relationship, particularly when it comes to matters that may be personal to an employee but which may also affect their ability to perform their role, such as their health, family or living status or their criminal record.

In our previous blog “Time to be professional” we reported on the variations to Professional Employees Award 2020 (the Award) proposed by the Full Bench of the Fair Work Commission. The Full Bench has now confirmed is decision to vary the Award.

It is not unusual for employers to want to have a frank discussion with an employee when the relationship is not working out, seeking to agree to an exit strategy. This is often referred to as a “fire side chat”. However, these discussions must be carefully considered and planned because if the employee is not receptive, the employee can claim that the discussion created a situation forcing them to resign.

In a recent decision involving a forklift fatality, the District Court of New South Wales has cautioned growing businesses of the need to ensure that their WHS systems are adequate for the size of the business and the type of work being performed.

Under the anti-bullying jurisdiction of the Fair Work Act 2009 (Cth), the Fair Work Commission has the broad power to make an order (other than monetary payment) that it considers appropriate to prevent a worker from being bullied at work.

When considering changes to an employee’s employment, employers need to be mindful that significant reductions in remuneration or duties may constitute a “dismissal” under the Fair Work Act 2009 (Cth).

For an employee to bring a valid unfair dismissal claim or a general protections claim involving dismissal, it should be obvious that they must have been dismissed by their employer.

Drafting workplace policies and procedures can be a daunting exercise – it requires a careful balance of including (or omitting) information that is necessary from a legal standpoint, whilst still remaining easy to understand and follow for employees.

One of the key issues that has dominated discussion in the workplace relations area in recent years is the unlawful underpayment of employees (particularly of vulnerable workers) and the penalties that should be imposed on non-compliant employers.

Managing disgruntled employees can often be a difficult and drawn out process. It may often also be difficult to see the path forward when an employee who is subject to management action seeks retaliation by lodging grievances or commencing proceedings against their employer.

In NSW, employees are entitled to long service leave after 10 years of continuous service with their employer. A recent decision of the NSW Court of Appeal has redefined the entitlement to long service leave in circumstances where part of their service has been completed outside of NSW.

The Full Bench of the Fair Work Commission has determined that it is appropriate to vary the Professional Employees Award 2020 to better deal with the hours of work and overtime as well as clarify the coverage for employees.

A recent decision of the Victorian Civil and Administrative Tribunal, which has resulted in an employer being required to pay an employee over $53,000 in compensation, has highlighted the need for employers to inform themselves of their obligations in relation to eliminating workplace sexual harassment, victimisation and sex discrimination.

In the second blog of our two-part series on inappropriate conduct and behaviour, we continue our look at the consequences of failing to address poor conduct and behaviour in the workplace.

In the first of a two-part blog series, we look at inappropriate conduct and behaviour in the workplace and the importance of dealing with problematic workplace behaviour.

Employers may only refuse an employee’s request for flexible work arrangements if they have “reasonable business grounds” to do so.

The Federal Court of Australia has issued one of its first penalty decisions since the High Court of Australia’s decision earlier this year of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.

In a recent unfair dismissal decision, the Fair Work Commission has issued a reminder about the importance of honesty and candour in an employment relationship – particularly when it comes to determining an employee’s fitness for work.

Earlier this year the Federal Circuit and Family Court of Australia in Ruttley v Willis Brothers Installation (Qld) Pty Ltd [2022] FedCFamC2G 430 found that an employer breached the Fair Work Act 2009 (Cth) by taking adverse action against an employee who had been diagnosed with silicosis.

If an employee is unable to meet the inherent requirements of their role due to illness or injury, it may be lawful for an employer to terminate their employment on the grounds of incapacity.

When conducting a disciplinary process, it is crucial to ensure that a final decision on disciplinary action is not made until the employee is given a proper opportunity to respond to any allegations made against them.

This blog is a timely reminder of the importance of correctly managing overtime hours and payments to avoid serious financial penalties.

As the end of another year approaches, employers are understandingly planning a well-earned opportunity for employees to celebrate the year that has been.

During the COVID-19 pandemic in Australia, many Government issued public health orders mandated that persons who had contracted and / or were exposed to COVID-19 were to self-isolate for a period of time.

In a recent decision of the Full Bench of the Fair Work Commission, a former NRL referee has had his general protections application dismissed on the basis that his maximum-term employment with the NRL was not terminated at the initiative of the NRL.

As part of any redundancy process requiring a selection of employees, it is critical that employers consider only matters that are objectively related to an employee in their role and not any of the prohibited reasons under the Fair Work Act 2009 (Cth).

The Fair Work Act 2009 (Cth) allows employers to provide high income employees with a “guarantee of annual earnings”. Whether an employee is provided with and accepts a guarantee of annual earnings has a significant impact on whether the terms of a modern award will apply to them.

In the event that an employee’s position is made redundant, employers have an obligation to consider opportunities for redeployment. Where an employer has secured “other acceptable employment” for an employee, they may be able to apply to the Fair Work Commission to reduce the amount of redundancy pay owed if the employee refuses to accept redeployment.

The Full Bench of the Fair Work Commission (the Full Bench) has handed down one of the first decisions on the question of whether a food delivery driver was an independent contractor or an employee following the recent High Court decisions of CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

It is not uncommon for employers to state that they have a “zero-tolerance” policy about breaches of certain workplace policies and procedures – particularly when it comes to compliance with work health and safety obligations.

It is not common for employment contracts to contain restraint of trade clauses which seek to prevent departing employees from joining competitors or using or disclosing their former employer’s confidential information.

One of the key elements of a procedurally fair disciplinary process is for the employee in question to be notified of the seriousness of the process (including the potential disciplinary penalties) and to be provided with an opportunity to respond to any allegations before a decision as to disciplinary action has been made.

The entitlement to redundancy pay under the National Employment Standards of the Fair Work Act 2009 (Cth) is one which is intended to minimise the adverse impact of a redundancy on affected employees, such as loss of job security and the potential difficulties associated with obtaining new employment in the open market.

The Fair Work Act 2009 (Cth) prohibits employers from dismissing an employee from their employment because they have exercised a workplace right or because of a discriminatory reason, such as physical or mental disability.

A recent decision of the NSW Industrial Relations Commission has highlighted one of the pertinent issues currently being faced by employers – that is, to what extent an employer is entitled to require or request an employee provide them with personal medical information.

An employee will have access to the unfair dismissal jurisdiction if they have completed a minimum employment period of six months (or 12 months for small business employers). Generally, service as a casual employee will not count towards the period of service needed to satisfy the minimum employment period unless they were a regular casual, and they had a reasonable expectation of continuing employment on a regular and systematic basis.

Division 4A of Part 2-2 of the Fair Work Act 2009 (Cth), which came into operation on 27 March 2021, imposes an obligation on employers of casual employees to make offers of conversion to permanent employment in certain circumstances.

The Fair Work Act 2009 (Cth) contains provisions which make it possible for individuals to be found accessorily liable for their involvement in a contravention of a workplace law. In particular, section 550 of the FW Act provides that a person “involved in” a contravention will be taken to have contravened that provision themselves.

Under the Fair Work Act 2009 (Cth), whether an employee’s dismissal was procedurally fair is a key factor in determining whether the dismissal was unfair. Procedural fairness requires an employee be given an opportunity to respond to or explain an allegation put to them by their employer. The employer must consider that response or explanation before deciding the disciplinary penalty – eg: a warning, or termination of employment.

Although circumstances may be unique to each case, generally, workplace policies will provide employers with grounds for termination when a significant breach has occurred.