Employment Related Legal News


Owner Drivers under Victorian State Law

Article written by Deacons.

This article is relevant to businesses which engage owner-drivers or deliver in Victoria. One area which the proposed Commonwealth Independent Contractors legislation will not be affecting is state legislation dealing with owner-drivers. State laws regulating owner-drivers will continue to apply. This news comes hot on the heels of the passage through the Victorian Parliament of the Owner Driver and Forestry Contractors Act 2005 (Vic) (the Act).

View the full article in PDF version  (from Deacons web site)

Published with permission from Deacons.


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Update on Diplomatic Immunity from Unfair Dismissal Proceedings

Article written by Deacons.

In the previous issue of Enterprise we reported on a decision of the Australian Industrial Relations Commission which had confirmed that foreign states do not have immunity from unfair dismissal proceedings taken by employees engaged in Australia. That decision concerned the law before the changes to the legislation introduced as a result of the Work Choices legislation in March of this year. There has been a further decision of the Australian Industrial Relations Commission which has again confirmed that there is no immunity for foreign states, notwithstanding that they may engage less than 100 employees in Australia.

View the full article in PDF version  (from Deacons web site)

Published with permission from Deacons.


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Treating sick employees fairly

Article written by Deacons.

A recent decision by the NSW Industrial Commission has shown that, in order to avoid unfair dismissal claims, employers should put employees on notice that their continued absence could lead to dismissal on medical grounds. Employers must also take steps to ascertain an employee's fitness for work before deciding to dismiss them.

At the same time, the latest amendments to Work Choices limit the notice and evidence which can be required from sick employees and prohibit employers for penalising employees for failing to meet those notice and evidence requirements.

View the full article in PDF version  (from Deacons web site)

Published with permission from Deacons.


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Recent further amendments to WR Act

Article written by Deacons.

On 4 December 2006 Federal parliament raised further amendments to the Workplace Relations Act 1996 (the WR Act) designed to address the expressed concerns of employers and employees.

View the full article in PDF version (from Deacons web site)

Published with permission from Deacons.


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Recent trends in NSW restraint of trade cases

Article written by Deacons. 

In a series of decisions handed down this year, the New South Wales Supreme Court has awarded injunctive relief in favour of employers who were seeking to enforce restraint clauses against former employees.

The reasoning adopted by the Court in these cases suggests that greater weight is being given to the employer's desire to protect client relationships from exploitation by former employees.

View the full article in PDF version (from Deacons web site)

Published with permission from Deacons.


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Employer's failure to follow policies unreasonable

Article written by Deacons.

The Commission has ordered Sydney South West Area Health Services (SSWAHS) to pay an employee 26 weeks pay on the ground that his employment was terminated unreasonably during a process of restructure within the organisation. Despite the existence of a voluntary redundancy policy which applied in circumstances of restructure, SSWAHS failed to consider this as an option for the employee and instead attempted to coerce him into accepting positions of lesser grades. When the employee refused to accept these positions the SSWAHS purported to terminate his employment for reasons relating to performance going back 6 years.

View the full article in PDF version  (from Deacons web site)

Published with permission from Deacons.


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Risk management and the end of year staff party - A Timely Reminder

Article written by Deacons. 
 
We are at that time of year when many employers will be throwing an end of year party for their employees. The mixture of alcohol and the informal setting may lead to inappropriate or unlawful behaviour. Such behaviour could result in complaints of sexual harassment or unlawful discrimination.

An employer will be deemed vicariously liable for the discriminatory actions of its employee unless the employer is able to prove that it has taken all reasonable precautions to prevent the unlawful discrimination from occurring.

This article is designed to give employers helpful information on how to prevent unlawful discrimination and ensure that all employees act appropriately at such functions.

View the full article in PDF version  (from Deacons web site)

Published with permission from Deacons.


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Employment of overseas workers under section 457 visas

Article written by Deacons.

The current skills shortage in Australia has led to many employers sponsoring overseas workers to work in Australia. A common arrangement for this sponsorship is for the employee to obtain a long stay temporary business visa (subclass 457) (457 visa). These visas have been the subject of recent press reports of exploitation of workers, and criticism by unions. This article provides some guidance for employers on employment rights and obligations in relation to engaging employees with 457 visas.

View the full article in PDF version (from Deacons web site)

Published with permission from Deacons.


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Employer's responsibility for plant and equipment extends to repair - 25 Sept 06

By David Cross, Deacons, 25 Sep 06
Published with permission from Deacons.

A recent decision1 by a Full Bench of the Industrial Court of New South Wales has illustrated the extraordinary reach of the Occupational Health & Safety Act 2000 (NSW) (the Act).  The case is a further reminder that employers need to anticipate risks that will arise outside of the workplace and take proactive steps to eliminate those risks.
Read more ...
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Federal government opens way to cashing out annual leave under WorkChoices - 29 Sept 06

By Andrea Motbey and Stuart Kollmorgen, Deacons. 29 September 2006

On 22 September 2006, the federal government amended the Workplace Relations Regulations 2006 (Cth) (the Regulations). The amendments have clarified the operation of the Workplace Relations Act 1996 (Cth) (the Act) and make it clear that the Australian Fair Pay and Conditions Standard (AFPCS), which all employees must receive as a minimum, does not apply to annual leave accrued before WorkChoices came into effect on 27 March 2006 (called pre-reform annual leave). This opens the way for employees and employers to agree to cash out most of an employee's current accrued annual leave balance.

The amendments to the Regulations now draw a clear distinction between pre-reform annual leave and post-reform annual leave (which is annual leave accrued after 27 March 2006).

For a printable (PDF) version of this article click here.

Published with permission from Deacons.


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Long service leave under State law - interaction with Federal system - 25 Jul 06

By: David Cross, Deacons
25 Jul 06
Published with permission from Deacons

A recent decision (Beattie & Ors v Commonwealth Bank of Australia [2006] NSWIRComm 238) by the Industrial Relations Court of New South Wales shows that it may not be easy for employers to use Federal instruments to overcome the application of State long service leave rules. Read more...


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Work Choices record-keeping obligations - a further update 26 Apr 06


Deacons Workplace reform update - Edition 10
by Stuart Kollmorgen and Jonathon Hadley
26 April 2006

Work Choices record-keeping obligations - a further update
 
The Government has taken on board employer concerns about the new onerous record-keeping requirements imposed by Work Choices. Federal Workplace Relations Minister Kevin Andrews announced in a media release on 17 April that an amendment would be made so that no records for hours would need to be kept for workers earning $55,000 or more annually (this will be indexed) who have no award or certified agreement overtime entitlement.

This means that daily start and finish times will not have to be recorded for these employees.

Employees who earn under $55,000 (annual salary) will still have to have records kept of their total hours worked whether they have an award or certified agreement overtime entitlement or not. Employees earning under $55,000 and has provisions for overtime still must have records kept of their daily start and finish times as well as their total hours worked.

There is one remaining complication, which continues from previous legislation. Employers of employees who earn over $55,000 and are entitled to overtime through common-rule awards, Federal or State, are still required to follow the strict regulations of record-keeping. Employees in this category must have records kept of their daily start and finish times as well as their total hours worked. Employees in this category include administrative and even some middle level managerial employees who:

Implications for Employers

Employers need to determine which employees fall under these record-keeping regulations. This will involve examination of the relevant awards.

The maximum penalties for non-compliance will remain at $550 for individuals or $2,750 for a company. Deacons can assist employers in determining which employees need to have their daily start and finish times recorded.

Note: This article is re-published with the permission of Deacons.


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Long service leave: Early access for Victorian employees from 1 January 06

By: Jeff Krins, Dian Adams - Deacons, 16 January 2006
On 1 January 2006, long service leave in Victoria changed so that employees will have earlier access to long service leave, more employees will receive pro rata long service leave on termination of employment and more employees will be entitled to long service leave. These changes will not be directly affected by the changes to the Commonwealth industrial relations system.

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Work Choices - what it means for you - 3 November 2005

Deacons Workplace reform update - Edition 5,  3 November 2005  

The new Federal industrial relations changes set out in the Workplace Relations Amendment (Work Choices) Bill 2005 introduced into parliament on Wednesday 2 November 2005 are proposed to take effect no later than 6 months after the Act is passed. All constitutional corporations who are employers in Australia and all of their employees at every level will be subject to the new laws. Click here a printable PDF (Acrobat) version of the full article...
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WorkChoices - a new national workplace relations system - 31 October 2005

Deacons Workplace reform update - Edition 4, 31 October 2005
The Federal government's new national workplace relations system - WorkChoices - is set to become law in 2006. A new bill - the Workplace Relations Amendment (WorkChoices) Bill 2005 - will, it is anticipated, be introduced to Parliament on Wednesday 2 November 2005.
Click here a printable PDF (Acrobat) version of the full article...
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Foreseeing employee's risk of psychiatric injury

The High Court recently considered an employer's duty to foresee the risk of psychiatric injury to an employee. Importantly, the Court held that employers are entitled to assume, in the absence of signs warning of the possibility of psychiatric injury, that employees can perform their tasks or jobs.
Click here to read the full article..
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Industrial agreements in the Victorian retail industry and the impact of Common Rule Awards

By conferring a broad range of entitlements upon employees across different industries, common rule Awards have changed the face of industrial relations across Victoria. One of the industries that will shortly be affected is the retail industry sector.

The majority of employers in the retail industry have not historically had to comply with any (or only minimal) industrial obligations. Common rule Awards are changing the nature of the way these employers need to treat their employees. Click here to read the full article..
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Fines for employers who fail to provide suitable employment for injured workers

Most workers' compensation schemes (including those in Victoria, Western Australia and New South Wales) require an employer to provide an injured employee with suitable employment once they are well enough to perform some duties. Suitable employment generally means employment for which the employee is currently suited, having regard to such factors as the nature of the employee's incapacity and pre-injury employment.

In a recent case, the Magistrates Court of Victoria, imposed a $4000 fine on an employer who failed to provide an injured nurse with suitable employment and told her that she should not return to work until she could perform all her pre-injury duties. This is the first time the Court has imposed a fine for this offence. Click here to read the full article..
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Transmission, outsourcing and redundancy - clarity at last?

While the High Court did not find that a legal transaction is necessary between the old and new employer in order for there to be a succession, the practical impact is that in most cases - at least involving private sector employers - it will be difficult to establish a transmission of business for the purposes of the Workplace Relations Act 1996 (Cth) without it. Click here to read the full article..
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Stressing out over redundancies - OHS and workers' compensation issues for employers in corporate restructures

The employee claimed, and was successful in establishing that his stress was directly caused by his employer's failure to keep him informed of changes in the workplace. In essence, the prospect of redundancy was seen as a sufficient causative factor in the employee's work related injury. Click here to read the full article..
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Commission clarifies what can be included in certified agreements

A Full Bench of the Australian Industrial Relations Commission has provided guidance on what can and cannot be included in certified agreements in the first decision on appeal since the High Court's decision in Click here to read the full article..
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Record damages award for bullying claimant

By Danielle Flint, Deacons, 2 August 2005

It is trite to state that bullying is an occupational safety and health issue. However courts and tribunals have signalled a clear intention of getting tough with workplace bullies. In a recent decision, the New South Wales' Supreme Court has awarded a former security guard exemplary damages of $150,000 for the bullying he was subjected to in his workplace.
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Workplace Reform update - Edition 3 - 27 July 2005

A national workplace relations system

In a move that has divided employers and employees and been a headline maker over the last few months, the Federal Government has commenced unveiling its workplace reform agenda. The most significant changes being the introduction of a national industrial relations system, a new compliance standard for workplace agreements and a greatly expanded exemption from unfair dismissal laws.

Printable (PDF) version and full contact details
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Record costs order in the Queensland Industrial Relations Commission

The Queensland Industrial Relations Commission has ordered a former employee of a Gold Coast medical practice to pay almost $110,000 to her former employer, for the employer's legal costs of defending her unsuccessful unfair dismissal claim. The Deacons Workplace Relations team in Brisbane acted for the employer and secured the order. By Deacons. 18 May 2005
click here to read more...
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The NSW Workplace Surveillance Bill 2005 - what does it mean?

Lawyers Harris Wheeler summarise the New South Wales Government's exposure draft of the Workplace Surveillance Bill 2005 (NSW).
Click here to read the full article...
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New Australian Immigration Law effective April 2005

The Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA') have announced a number of legislative changes effective from April 2005, in relation to the sponsoring of overseas workers by Australian employers. This legal update outlines the changes for both the Temporary (Long Stay) Visa subclass 457, effective 2 April 2005, and the Employer Nomination Scheme Visa subclasses 121 (offshore) or 856 (onshore), effective 1 April 2005. It provides crucial information for all employers seeking to sponsor temporary or permanent overseas workers. By Deacons. Click here to read the full article ...
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Legal update from Deacons: Family Provisions Test Case

On 8 August 2005, the Full Bench of the Australian Industrial Relations Commission handed down its decision in the long running Family Provisions Test Case.
 
 This interesting and important test case shows how various unions and employer representative groups are seeking greater 'work-life balance' provisions in award employment conditions.
 
 To read more click on the link below:
 www.deacons.com.au/news/article.asp?nID=787 
 
 If this article interests you, note the link at the end of the article to a more detailed document.

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Proposed NSW Workplace Surveillance Bill 2005

The NSW Workplace Surveillance Bill 2005 was introduced to Parliament on 4 May. While the Bill is still a matter for debate in the Legislative Assembly, if passed in it's current form it may have far reaching ramifications for some companies.

Although the Bill would not necessarily stop all workplace surveillance, it will prohibit some forms of surveillance and force employers to notify employees of all other surveillance activities so that they are not covert. This includes blocking of outbound and inbound email and access to web sites, unless clearly stated in company policy. As the proposed legislation stands, employers will be required to communicate their email and internet access policy to employees via their desktop computers in such a way that ensures employees have read and understand the policy. Employers will not be able to block email on the grounds that they relate to industrial relations issues.

This Bill has not yet been passed but employers in NSW may be wise to start thinking about it's consequences and budget for audit and update of policies.

Click here to view the Explanatory Notes for the Bill on the NSW Parliament web site.

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Mining company entitled to sack worker who lied about her health

By Andrew Tobin, Skiahra Ireland, Deacons, 16 June 2005

The Australian Industrial Relations Commission recently upheld the termination of a truck driver who failed to disclose a relevant medical condition during her recruitment. The decision illustrates the right of employers to dismiss employees where they are not truthful about material matters during the recruitment process and highlights the utility of appropriate pre-employment medical screening by employers. To read more click here
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Benefit of restraints may be lost in company restructure

Employment contract terms do not necessarily transmit from one company to another in a restructure. Click here to read the full article 
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Employers must ensure that any variation to an AWA is approved by the Employment Advocate

This article by Deacons concludes with three important lessons for employers with respect to creating and making AWAs. Click here to read full article on Deacons web site
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TAFE fined $180,000 for OHS offences following campus explosion

In February 2001, three students were injured in an explosion at TAFE's Tamworth campus. The students were welding pieces of steel in an open cement quadrangle when the explosion occurred. Two of the students were thrown sideways and the other student was thrown almost 3 metres in the air. A concrete and cast-iron lid weighing approximately 200 kilograms, and a number of 8 metre long steel rods, also became airborne in the explosion. Click here to read the full article..
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Choice of fund - State Awards, AWAs and certified agreements

Recent amendments to the Superannuation Guarantee (Administration) Act 1992 (SGAA) will mean that, from 1 July 2005, employees will be able to choose the fund into which their mandatory 9% superannuation contribution is deposited. Previously, in many instances the employer chose the fund for these contributions. There are however a number of exceptions...
Click here to read full article


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