Posts: FW Act

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.

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.

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.

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.

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.

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.

Under the Fair Work Act 2009 (Cth), employers are prohibited from requesting or requiring full-time employees to work more than 38 hours per week, unless those additional hours are reasonable.

There are often misconceptions about how many times an employee must be warned regarding their poor performance before they are able to be dismissed. Although there is no legislative requirement stipulating the number of warnings required, the Fair Work Act 2009 (Cth) provides that an employee must be warned about their unsatisfactory performance before they are dismissed for that reason.

A recent decision of the Federal Circuit and Family Court of Australia has reaffirmed the standard of proof that is required to disprove allegations of unlawful adverse action under the Fair Work Act 2009 (Cth).

The question of whether a demotion will constitute a dismissal under the Fair Work Act 2009 (Cth) was considered by the Full Bench of the Fair Work Commission NSW Trains v James [2022] FWCFB 55.

Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury.

The Fair Work Commission (FWC) has a broad power under section 590 of the Fair Work Act 2009 (Cth) (FW Act) to “inform itself in relation to any manner before it in such manner as it considers appropriate”. Under this general power, the FWC may inform itself by requiring the production of documents or records to the FWC (such as all documents or records relating to a dismissal process).

The Federal Circuit Court of Australia (the Court) recently ruled on an application brought by an employee alleging that three respondents had engaged in breaches of the Fair Work Act 2009 (Cth) (FW Act), including sham contracting and dismissing the employee because she was pregnant.

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful.

Employers have long known that they are obliged to try to find new employment opportunities for employees who are faced with the redundancy of their current role.

An external HR consultant and a supervisor have been found accessorily liable for contraventions of the Fair Work Act 2009 (Cth) (FW Act) after they were involved in the dismissal of an employee who raised a potential award non-compliance issue.