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One of the biggest challenges for Australian employers is navigating the often complex and confusing landscape of the modern awards.

Last-minute meetings and unexpected emergencies (especially safety emergencies) mean that messages and information often need to be relayed to employees almost instantly.

Employee, worker, talent, resource, temp, contractor – there is an abundance of terms used to describe the people that perform work in a workplace.

Sports and pop culture website named ‘The Ringer’ published a report about the NBA’s Philadelphia 76ers that sparked controversy worldwide.

Tennis champion Serena Williams as she returned to her first Grand Slam tennis tournament following the recent birth of her daughter.

Intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

Disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present.

Unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.

Settlement agreements, terms of settlement, deeds of release or release and undertakings are all terms which are used interchangeably to refer to the binding and confidential agreements.

It started out as the humble smiley emoticon “:-)” in 1982 created by a computer scientist who wanted a “joke marker” to help people decipher his jokes in emails.

In June 2015, Judge Jarrett of the Federal Circuit Court of Australia found that a Northern Queensland-based tour company and its owner had underpaid five employees and contravened the Fair Work Act 2009 (Cth).

Managing conflicting personalities can be one of the most challenging aspects of being a manager. Particularly when low level disagreements escalate to formal complaints, investigations, attempts at character assassination and breaches of confidentiality.

FWC has found an employer was unreasonably inflexible when it dismissed an employee who had requested to finish work 15 minutes early to attend prepaid Pilates classes.

In a clear sign that employers should act on inappropriate behaviour, the Fair Work Commission (FWC) has held that an employee’s dismissal for serious misconduct arising from his unacceptable behaviour was not unfair.

It has often been the case that “managers” and senior officers of an enterprise will not be covered by a modern award or enterprise agreement.

Conducting a comprehensive induction for new employees is critical for compliance reasons but should also be viewed as an opportunity to connect new employees to the values and culture.

The purpose of the Fair Work Commission’s anti-bullying jurisdiction is not to punish bullies or to compensate an individual who has been bullied but to prevent future bullying in the workplace.

Job advertisements should be carefully drafted to ensure that they focus on the essential skills of the position and not any irrelevant or subjective factors.

It is rare to come across someone who does not have their mobile phone in their hand, pocket, bag or otherwise within reaching distance at all times.

Baseless complaints or attempts at extortion are capable of amounting to serious misconduct, as exemplified in this case.

If dishonesty does find its way into the workplace, employers must act swiftly and hold employees accountable where necessary, so that it does not become a part of the workplace culture.

Australian sports fans were shocked when three Australian cricketers were caught up in a ball tampering scandal, leading to the downfall of the Australian cricket captain and his deputy.

Employers should be mindful that employees have a responsibility for health and safety within the workplace and are entitled to (and should be encouraged to) raise health and safety matters.

For employers, the sick leave provisions of the FW Act and the authority to issue directions are excellent ways to manage both “sickies” and “workplace warriors.”

A failure to take into consideration an employee’s health concerns during a performance management or disciplinary process may not only place an employee’s health at further risk but can also increase an employer’s exposure to claims under employment, workers compensation, bullying or discrimination laws.

General Manager of a labour hire business was fined $43,000 for his involvement in contraventions of the Fair Work Act.

It is estimated that there is over $70,000 in unpaid wages owing to employees, and many of those are international workers on visas who are not eligible for the government-funded Fair Entitlements Guarantee scheme.

Multi-hire arrangements are a popular way for employees to supplement their income and to have flexibility.

When an employee refuses to hand over information or evidence that the employer considers is relevant to an investigation, a formal direction may be issued.

Where possible, employers should be upfront with their workers about changes to usual business processes and procedures and the reasons for those changes.

Employers can often find themselves in a difficult position when they are advised by an employee that they have been charged with a non-work related criminal offence and may be unable to attend for work.

Some employers operate exclusively on a continuous rotation of cycling client contracts won and lost regularly, but what does it mean for the employees engaged to perform work under those contracts?

Codes set out the minimum standards to meet work health and safety requirements and are admissible in WHS prosecutions. Guides and Australian Standards will also be relevant safety material that employers should consider when creating safety documentation.

Issues arise when casual employees are engaged on a long-term basis, have regular and systematic hours and a reasonable expectation of ongoing employment.

Employers can be penalised for failing to keep proper records and for failing to issue their employees with pay slips in a timely manner.

A teenage employee of a yoghurt shop has successfully applied to the Fair Work Commission (FWC) for the termination of a workplace collective agreement.

Employees who are experiencing fatigue pose a work health safety risk to themselves and to others in the workplace.

When responding to an unfair dismissal claim or an adverse action claim involving dismissal, there are a range of jurisdictional objections available to employers depending on the circumstances.

Financial misconduct committed by employees is unfortunately all too common in Australian businesses. It can range from invoice forgery to stealing from the register to abusing expense reimbursement entitlements or corporate credit cards.

While it is often an unpleasant process, in some circumstances (depending on the nature of the workforce) employers may choose to call for expressions of interest for voluntary redundancies before moving to compulsory redundancies.

In a proactive attempt to combat the issue of workplace sexual harassment, Facebook and Google have implemented new policies on dating in the workplace. This new approach adopts a “one strike and you’re out” rule, which states that employees only have one opportunity to ask a co-worker out on a date.

Welcome to our February edition of Conversations.

Implementing a Code of Conduct is vital to establish and maintain expected standards of behaviour in the workplace. For some workplaces, it may also be appropriate for organisations to regulate the out-of-hours conduct and behaviour of employees.

In a recent decision of the Queensland Industrial Relations Commission, a self-insured employer’s decision to deny a worker’s workers compensation claim was upheld on the basis that the worker’s own serious and wilful misconduct lead to his injuries.

Most employers have a clear understanding of the importance of cultural “fit” to having a happy and productive workforce. Questions about “fit” usually arise during the recruitment process, but are rarely addressed in circumstances involving redundancy and redeployment.

The Fair Work Commission recently handed down a decision in which it considered whether an Uber driver could be an employee for the purposes of the Fair Work Act 2009.

Across the world, issues of equality and justice have taken centre stage recently. We are experiencing a time of increased awareness about the need to redress past discrimination and prejudice towards many minority groups.

Licensing schemes for labour hire operators will commence operation in both Queensland and South Australia in the first half of 2018, with the Victorian Government also introducing legislation into the State Parliament.

Ending the employment relationship can sometimes be difficult and often, those responsible for facilitating the termination are so relieved to have it all over that they don’t worry about pursuing the return of seemingly insignificant employer property, like used uniform items.

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process.

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process.

An employer who relied on their zero-tolerance alcohol policy when dismissing an employee who drunkenly tried to access the workplace out-of-hours has successfully defended the dismissal before the Fair Work Commission.

Employees have an implied duty to obey their employer’s reasonable and lawful directions. Whilst employers cannot direct an employee to engage in conduct which is unlawful, the reasonableness of an employer’s direction will depend on the individual circumstances.

We cover a range of issues and wrap things up in our final Conversations for this year.

Recently, the South Australian government announced that two of its employees engaged as carers were found unsuitable to work with children, following the introduction of a new testing and screening process involving psychological testing.

In recent years, the Fair Work Ombudsman has made it clear that it is prepared to prosecute not only employers, but also individuals and third parties ‘involved in’ contraventions of the Fair Work Act 2009 (Cth) (FW Act). Most recently, the FWO was successful in its prosecution of a Chinese restaurant as well as its sole director, its human resources manager and its store manager for various breaches of the FW Act, which resulted in 85 employees being underpaid a total of $583,688.68 over a 16 month period.

In McLachlan v Illawarra Coal Holdings Pty Ltd T/A South 32 [2017] FWC 5167, an employer sought to argue that they validly dismissed an employee for his organisation of, and participation in, unprotected industrial action.

In a recent Federal Circuit Court decision, Fair Work Ombudsman v Commercial and Residential Cleaning Group Pty Ltd & Ors [2017] FCCA 2838, Judge Lucev ordered significant penalties against a Perth cleaning company and two of its directors.

There is no doubt that social media has changed workplace relations. It has impacted the employment relationship and the relationships employees have with each other. We look back on some of the more interesting social media cases from the year that was 2017.

There are two remedies available to an employee claiming unfair dismissal under the Fair Work Act 2009 (Cth) (FW Act) – reinstatement (with any required back-pay) and compensation. Section 390 of the FW Act makes it clear that reinstatement will be the primary remedy and that the Fair Work Commission must not make an order for compensation unless it is satisfied that reinstatement of the person is inappropriate.

It is almost undisputed that the majority of Australian workers are spending more of their time at the workplace. It is therefore unsurprising that employees and employers are becoming more concerned with the quality of the time that employees spend at work and the relationships they have with their co-workers.

In Colella v Aroona P&T Pty Ltd T/A Aroona Alliance [2017] FWC 5533, the Fair Work Commission decided an unfair dismissal case involving GPS tracking, alleged absenteeism and interference with a GPS device.

In this month’s edition of Conversations we look at: What a business should do to protect itself against sudden leadership departures; Managing flexible work requests and arrangements; The dangers of unpaid and under-paid employment; and Why one employer entered into a compliance deed to avoid potential worker exploitation. We then discuss the use of statutory declarations and the fallout of providing false statutory declarations & more.

In Australia, we rely on statutory declarations for a range of purposes, from declaring identity details when documents are lost to making statements about particular situations, including in the employment context.

Just like other risks to health and safety in the workplace, a person conducting a business and undertaking (PCBU) must take steps to eliminate or minimise the risk of bullying.

A recent survey conducted by global workplace solutions group, ManpowerGroup, has revealed that almost 90% of workers are opting for, or at least open to, arrangements that allow for flexibility in lieu of traditional “9 to 5” work arrangements.

Earlier this year, we told the tale of the of the trolley collectors in Once upon a trolley – an ongoing saga involving underpayments, vulnerable workers and the Fair Work Ombudsman’s (FWO’s) scrutiny of labour supply chains. In that blog, we focussed on an enforceable undertaking that involved Coles supermarkets and the FWO. Now, Woolworths have come to the trolley collectors’ party, this time in the form of a Proactive Compliance Deed with the FWO.

The anti-bullying jurisdiction of the Fair Work Act 2009 (Cth) (FW Act) gives the Fair Work Commission (FWC) a broad power to make any order it considers appropriate to prevent a worker from being bullied at work (except an order which requires monetary payment).

It’s true that many safety breaches in the workplace are the result of momentary lapses in judgement, however employees who are recklessly indifferent to their health and safety obligations will not always be saved by arguing this point.

In its first ever underpayment prosecution relying on the race discrimination provisions of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Ombudsman has successfully established that two employees of Chinese descent and Malaysian extraction were underpaid because of their race and/or national extraction.

Consider the scenario of a CEO who has been with a company for over ten years. The CEO advises shortly before the end of the financial year that they will be leaving to join another company… How does a business respond to this scenario?

Work experience placements, vocational placements and internships can be particularly beneficial to students as they not only provide invaluable experience in a workplace but can often lead to opportunities for permanent employment. In such cases, there must be a clear distinction between the initial unpaid engagement and the ensuing employment relationship.

In this month’s edition of Conversations our feature discussion is on older employees. We look at the value older employees can add to a business – think of the movie The Intern starring Anne Hathaway and Robert De Niro. We also tackle the issue of age discrimination in recruitment and look at ways to keep older employees engaged as workplaces embrace technology. We close off the discussion in our blog titled End of the line by looking at a recent age discrimination claim arising out of a termination.

We’ve all heard of “blind” recruiting, particularly in the early phases of the recruitment process, but what about the opposite? Actively recruiting based on a visual medium? Look no further than the “Snaplication.”

In the modern day workplace, employers are becoming increasingly reliant on computer systems and introducing new forms of technology and equipment to increase productivity and output. It is often therefore a requirement that employees be proficient in certain computer programs or, at least, that they undergo training to become proficient.

At the end of the employee lifecycle, older employees often face ageism where they are perceived to be coming to the “end of the line” and are “ready for retirement” or forced to retire in order to bring in “young blood.”

Most employers and employees do the right thing with employee personal information by keeping it securely stored and protected from disclosure or loss. However, occasional slips by employees with control over personal information can be costly both in a financial sense and in an emotional sense.

A recent decision of the Fair Work Commission has highlighted the importance of correctly managing employees’ requests for annual leave (Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo’s IGA Horsley Park [2017] FWC 4626).

In determining whether an employee’s termination was harsh, unjust or unreasonable, s 387 of the Fair Work Act 2009 (Cth) (FW Act) provides a list of criteria the Fair Work Commission will consider. One such criterion is whether there was any unreasonable refusal by the employer to allow the person to have a support person present in any discussions relating to dismissal.

All too often workplace disputes arise out of conversations or meetings where the participants have wildly different versions of events. The parties then end up before a court or the Fair Work Commission (FWC) where a judge or FWC member is tasked with deciding whose evidence they prefer – essentially, who appears to be more credible and reliable.

The world has been following the NFL with keen interest these past few weeks after President Trump called on NFL owners to fire players who refused to stand for the US national anthem and flag before a game – raising interesting questions for us sports-loving employment lawyers.

In most cases, a finding of deliberate non-compliance by a business will result in the imposition of a hefty fine by a court (a pecuniary penalty order). It is also not uncommon to see courts issue other orders such as requiring non-compliant businesses to undergo external audits or requiring managers to undergo specific training. The Federal Circuit Court of Australia has recently utilised the wide scope of this power in Fair Work Ombudsman v Greenan (No. 2) [2017] FCCA 2059.

In unfair dismissal applications, the Fair Work Commission must look at the factors under section 387 of the Fair Work Act 2009 (Cth) (FW Act) when considering whether a dismissal was ‘harsh, unjust or unreasonable’.

Text messaging is a good way for people to communicate as messages are generally short meaning senders stick to the point and messages are direct to a person’s phone. Unfortunately there are some major drawbacks to the use of text messaging in the employment context and we have noticed a steady increase in cases before the Fair Work Commission (FWC) where text messages have contributed to the situation in dispute.

When employers conduct an organisation-wide review of their operations, it can be both an exciting and challenging time. There are significant gains to be made by identifying inefficiencies and addressing them. However, the desire to move too swiftly and rush this process should be avoided. Moving too fast may result in employers either intentionally or unintentionally disregarding their legal obligations to employees.

In Willmot v BlueScope Steel Limited [2017] FWC 4309, the Fair Work Commission considered an unfair dismissal application made by an employee who was summarily dismissed for serious misconduct in relation to his worker’s compensation claim.

Managing workplace behaviour is a balancing act for employers and HR. Some workplace policies provide examples of unacceptable behaviour and how to deal with it, but these policies cannot hope to address all types of behaviour or prescribe every appropriate redress. Employers need to exercise some judgment when they become aware of inappropriate behaviour and consider carefully whether an employee’s conduct will warrant disciplinary action and, if so, what type.

In this month’s edition of Conversations we look at unacceptable workplace behaviour and how employers should manage and respond to such behaviour. We also observe what employers can learn from some recent case law around employee dismissals.

Allegations of workplace bullying can present some of the most demanding circumstances that an employer will face in the course of the employment relationship. There is the initial response to consider, an investigation, the possibility of counter allegations and, of course, the potential involvement of lawyers and unions.

In a recent decision of the NSW Industrial Relations Commission (NSW IRC), a senior corrective services officer (the Employee) was reinstated following his dismissal for involvement in an incident which lead to the escape of a maximum security inmate (Collins v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1051).

It is no secret that the Fair Work Ombudsman (FWO) has been cracking down on employers breaching their employment obligations under the Fair Work Act 2009 (Cth) (the FW Act) and exploiting vulnerable workers in order to gain financial and competitive advantage. Indeed, the Federal Government is very close to passing a Bill through Parliament that will not only impose much harsher penalties on employers but will also increase the FWO’s powers to investigate this type of behaviour.

In Shakir v Department of Family and Community Services [2017] NSWIRComm 1040, Commissioner Newall upheld the dismissal of an employee but criticised the employer for relying on conclusions made in an investigation report that were factually wrong.

Technology is often used to make the performance of our daily or work tasks easier – however it has become increasingly sophisticated and can now be used to measure and monitor our every move and task.

In King v The Trustee for Bartlett Family Trust T/A Concept Wire Industries [2017] FWC 3867, the Fair Work Commission considered an unfair dismissal application where an employee was dismissed after it was found that he bullied another employee about joining the union.

At the recent AHRI National Convention there was a focus on the relevance of people in managing the modern workplace within the ever increasing presence of AI. In this month’s edition of Conversations we feature our thoughts on the topic and more.

Employers and human resources professionals may often be provided with medical certificates which they are not quite sure about, prompting them to look at the certificate a bit more closely.

Google’s much-publicised decision to dismiss an employee in America who wrote an internal memo to all staff criticising the tech company’s diversity policies has highlighted the necessity of a workplace Code of Conduct.

It’s been said many times before, but we simply can’t understate the importance of employers enforcing health and safety policies and procedures in the workplace, including incident management procedures. These policies and procedures can save lives and limbs and allow employers to investigate incidents to prevent future occurrences.

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).

HR professionals inhabit a unique environment with a unique set of challenges – they are expected to balance compliance, business interests and employee interests all at once. The most difficult position a HR professional can find themself in is being asked to carry out a business decision by a superior that conflicts with their obligations to ensure compliance with workplace laws, including the protections afforded to employees under the Fair Work Act 2009 (Cth) (FW Act).