Posts: FWC

The passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) has resulted in several significant changes to the Fair Work Act 2009 (Cth). With some of these changes already in force, employers must now turn their minds to 6 June 2023 – the date of which the next wave of amendments will take effect.

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.

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.

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.

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.

In April 2020, the Fair Work Commission introduced temporary measures in modern awards in response to the need to provide employers and employees flexibility in the context of the COVID-19 pandemic and lockdowns.

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.

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

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.

In the post COVID-19 environment, one of the most common issues faced by employers is facilitating the return of employees to the office or normal workplace. In particular, many employers have been required to deal with increased reluctance by employees to return to the workplace following lengthy periods of working from home.

It is not uncommon for employees to raise allegations against Employers in order to divert attention away from, or attempt to excuse their own misconduct.

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.

The stop-bullying provisions of the Fair Work Act 2009 (Cth) provide a mechanism for the Fair Work Commission to impose orders upon employers (as well as individual employees) which are aimed at stopping bullying behaviour in the workplace.

The Fair Work Commission has continued its review of annualised wage arrangements in modern awards.

Employees are often provided with benefits by their employer in addition to their normal salaries or wages. It is often when an unfair dismissal application is made that a dispute arises as to the value to be attributed to a benefit for the purposes of calculating whether an employee’s earnings are above the high-income threshold.

In our last Conversations, we discussed two recent decisions of the Fair Work Commission (FWC) which looked at an employee’s conduct outside of work and whether or not that conduct could be sufficiently connected to their employment so as to constitute a valid reason for dismissal.

While the internet has made the world seem smaller and more connected, the ability to have unlimited information at our fingertips carries a risk for employers that what is found on the internet will be used to unlawfully discriminate against people in their employment.

Today, HR administration systems make it easier than ever for employees to update their personal contact details. However, when there is formal communication to be sent to employees, employers should also ensure that they have the most up to date details for their employees to avoid any dispute about when information was sent or communicated.

The physical return-to-work happening at many workplaces will also see the return of work-related events in an effort to reacquaint employees after a string of lockdowns and stay at home orders.

Employees have a duty to ensure that their out of hours conduct (including social media posts) is not contrary to the obligations they owe to their employer. Further employees should also ensure that out of hours conduct is not in breach of workplace policies or damaging to the reputation of their employer.

There is no doubt that the introduction of mandatory vaccination policies and the collection of information about a person’s vaccination status has raised debates and concerns surrounding personal choice and privacy.

In the unfair dismissal jurisdiction, the Fair Work Commission (FWC) imposes a strict 21-day time limit for employees to file unfair dismissal applications. The clock starts running from the date the dismissal takes effect.

A recent decision of the Fair Work Commission (FWC) has highlighted the privacy considerations for employers when implementing vaccination policies in the workplace, particularly in this COVID-19 environment.

Two decisions of the Fair Work Commission (FWC) have reinforced that a failure to comply with public health orders or directions which mandate vaccinations will be a valid reason for dismissal.

Consultation with employees always plays an important part when introducing changes in the workplace. Under work health and safety legislation, employers have a duty to consult with their workers as far as reasonably practicable in relation to health and safety matters.

Employees have a duty to comply with lawful and reasonable directions from their employer. In the current COVID-19 context, a key concern for employers is whether it is lawful and reasonable to issue directions related to safety matters arising from the pandemic.

If considering taking disciplinary action due to an employee’s misconduct, it is critical that an employer makes a decision based on wrongdoing as opposed to a mere suspicion of wrongdoing.

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.

Communication between the employer and employees is essential for a good working relationship. Poor communication in the disciplinary process may lead to a deficiency in the process which renders the dismissal unfair.

On 2 September 2021, the Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill).

In the unfair dismissal jurisdiction, the Fair Work Commission (FWC) is required to consider a number of factors under the Fair Work Act 2009 (Cth) (FW Act) when considering whether a dismissal was ‘harsh, unjust or unreasonable’.

Generally, the way in which an employee conducts themselves out-of-hours does not fall within the realm of what the employer can supervise or control. However, there are times where an employee’s conduct after business hours and away from work can impact the employment relationship.

The Fair Work Act 2009 (Cth) imposes a strict 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission. The statutory limit starts from the date the dismissal takes effect.

In the unfair dismissal jurisdiction, where it is found by the Fair Work Commission (FWC) that an employee has been unfairly dismissed, the primary remedy under the Fair Work Act 2009 (Cth) (FW Act) is for the employee to be reinstated to the position they held immediately prior to their dismissal or another position on no less favourable terms.

In our August webinar, our Managing Director and Principal, Athena Koelmeyer, discussed the challenges faced by modern employers when managing workplace behaviour. In that webinar, Athena examined a number of recent unfair dismissal decisions of the Fair Work Commission which provide some good guidance for employers.

Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.

Out of hours conduct and its impact on the employment relationship is always a hotly debated topic – particularly between employers and their employees.

In deciding whether to take disciplinary action against an employee, it is important for employers to ensure that the employee is given a reasonable opportunity to provide a response or explanation before a final decision is made, particularly when it concerns matters that could result in summary dismissal.

The Fair Work Commission (FWC) has a vital role to play in the management of the current COVID-19 pandemic as it continues to impact employment relationships across the country.

In response to the impacts of the COVID-19 pandemic on businesses and employment across Australia, the Fair Work Commission (FWC) has already introduced (and proposes to further introduce) a range of temporary variations to modern awards to provide increased flexibility for employers and employees during this challenging time.

The commencement of a disciplinary process against an employee is not an insignificant matter. It serves to notify an employee that their employer has serious concerns about their employment; whether that is the standard of the employee’s performance, their conduct or their behaviour.

Dismissing an employee for inappropriate conduct can be a challenging process, particularly when the employee does not accept that their conduct was inappropriate.

When an employer is required to make changes to the workplace which are likely to have significant effects on employees, the employer must ensure that it meets any consultation obligations which might apply under various laws and industrial instruments prior to implementing any redundancies that might arise.

In the reporting year 2018/2019, the Fair Work Commission (FWC) received 13,928 unfair dismissal applications. Undoubtedly, unfair dismissal applications are amongst the most common received by the FWC.

Organisational change is a constant for business – whether it involves wider cultural change within a company, the introduction of new technology or systems of work, or even a restructure or downsizing of the workforce.

The Federal Court of Australia has ordered the Australian Workers Union (AWU) to pay $18,000 in penalties following its pursuit of disciplinary action against its own members.

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.

Employers often supplement their workforce by utilising casual employees to perform work in addition to that performed by permanent employees. While such engagements might start out as irregular (or, truly casual), it is not uncommon for casual employment to become regular and systematic, and for a casual employee to develop an expectation of continued employment.

It goes without saying that employees should treat each other with respect and courtesy in the workplace. In a recent decision, the FWC was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal.

As we have discussed in previous blogs, it is not uncommon for an employer and employee to enter into a deed of release or settlement when ending the employment relationship.

The Fair Work Commission recently issued interim orders in an application for orders to stop bullying, which required the parties to, amongst other things, treat each other with respect and dignity, and to not yell in an unreasonable manner.

A recent dispute between one of Australia’s leading sports agencies and two of its ex-employees is a reminder to employers about the importance of implementing processes to protect confidential information, including that of their customers and clients.

When considering claims of adverse action under the Fair Work Act 2009 (Cth) (the FW Act) a key focus of inquiry is the actual reasons of the decision-maker for engaging in the action.

One of the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act) is the entitlement for employees in particular circumstances to request a flexible working arrangement with their employer. Such requests can only be refused by employers on reasonable business grounds.

A bottle shop attendant in Cairns was recently awarded compensation in excess of $39,000 after she was dismissed for being pregnant.

The Full Court of the Federal Court of Australia recently handed down a decision that is likely to have significant impacts on the accrual and taking of personal/carer’s leave, not to mention the management of the entitlement by employers.

There is no doubt that swearing in the workplace is unacceptable - the Fair Work Commission (FWC) has repeatedly held that swearing in an abusive manner that is directed towards others is a valid reason for dismissal.

Workplace bullying can be extremely serious and should not be tolerated by employers.

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

When emotions are running high and differences are unable to be resolved, employees often turn to the anti-bullying jurisdiction of the Fair Work Commission (FWC).

When dealing with litigated matters, we cannot stress enough the importance of having evidence and witnesses that are credible and reliable to support a party’s position in the proceedings.

“It has become extremely difficult to get enterprise agreements through the FWC, largely in light of the loaded rates decision that came out earlier this year,”