Legal Updates

Harmers Assists in Obtaining Landmark Award of $5.2 Million in Damages for Adverse Action and Breach of Contract
In the recent decision of Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407, the Federal Court of Australia awarded a senior employee of the ASX-listed software company, TechnologyOne, more than $5.2 million in damages (plus interest) under the general protections provisions of the Fair Work Act 2009 (Cth) (‘Fair Work Act’) and for breach of contract in relation to the payment of incentives.
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Federal Court provides relief for McDonald’s workers
The recent case of Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258 has been highly publicised in Australia as an important decision regarding “workplace rights”, affecting potentially hundreds of thousands of workers nationally. The Federal Court of Australia has found that the right to take a short drink or toilet break outside of scheduled breaks is a “workplace right.”
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Another State Criminalises Wage Theft
On 9 September 2020, the Queensland Legislative Assembly passed the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 (Qld) (“the Bill”). Queensland now joins other Australian jurisdictions that have recently passed legislation criminalising wage theft, following Victoria and the ACT. The Bill received royal assent on 14 September 2020 (Criminal Code and Other Legislation (Wage Theft) Amendment Act 2020 (Qld) (“the Act”)).
Please click here to read the client alert.

FWC Proposes Award Flexibility Schedule and JobKeeper2.0
The Fair Work Commission (“FWC”) has, on its own initiative, published a draft Award Flexibility Schedule (“Draft Schedule”) to promote discussion about appropriate flexibility arrangements to assist industries impacted by the coronavirus pandemic. The Draft Schedule is intended to facilitate further workplace flexibility and enable prompt responses to economic challenges by employers while meeting the expectations of employees.
Please click here to read the client alert.

New Criminal Law Targeting Wage Theft
The Victorian Government has recently passed the Wage Theft Act 2020 (Vic) (“the Act”)which establishes new criminal offences in order to target employers who dishonestly underpay or do not pay workers their employee entitlements. The Act, which will not come into operation until 1 July 2021 unless it is proclaimed otherwise, is the first legislation in Australia to make the deliberate underpayment of workers a criminal offence.
Please click here to read the client alert.

Full Bench decision finds that delivery drivers on ‘Uber Eats’ platform are not employees
25 May 2020 – In Gupta v Portier Pacific [2020] FWCFB 1698, the Full Bench of the Fair Work Commission dismissed an appeal by an Uber Eats delivery driver regarding her unfair dismissal application, on the basis that she was not an “employee” of Uber or its affiliated companies, and thereby was not entitled to an unfair dismissal remedy under the Fair Work Act 2009 (Cth).
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When is a “casual” not a “casual”? WorkPac Pty Ltd v Rossato [2020] FCAFC 84
Under the Fair Work Act, and under various Modern Awards, “casual” employees are not entitled to paid annual leave, compassionate leave, personal/carer’s leave and public holiday pay. The Full Federal Court has recently handed down a landmark decision on the entitlements to these benefits for some workers who were both labeled and paid by their employer as “casual” employees. This decision overturns the widely held belief that payment of the casual loading justifies the absence of these leave entitlements.
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Changes in Modern Awards to Allow for COVID-19 Related Leave
The Fair Work Commission made a determination on 8 April 2020 to vary 99 of the Modern Awards. The determination inserted a new temporary schedule known as Schedule X, which allows for certain Award covered staff to take 2 weeks’ unpaid pandemic leave and annual leave at half pay in certain circumstances. These changes provide some much-needed flexibility for many Australian employers grappling with the unprecedented impact of the COVID-19 on their workplaces.
Please click here to read the client alert.

9 April 2020 : JobKeeper Amendments to the Fair Work Act
The Australian Federal Parliament has passed legislation to give effect to the JobKeeper scheme that was announced on 30 March 2020. For the next six months, qualifying employers can claim a JobKeeper payment of $1,500 per fortnight for each eligible employee who was on the books on 1 March 2020 and who stays on the books. It is a flat amount for each full time or part time employee. Casuals need to have had regular work with the same employer for 12 months. Payments will be made on 1 May 2020, and backdated to 1 March 2020.
Please click here to read the client alert.

Australian Human Rights Commission proposes significant reforms to anti-discrimination, industrial relations, and health and safety laws to curb workplace sexual harassment
The Australian Human Rights Commission has released its landmark report arising from its national inquiry into sexual harassment in Australian workplaces.
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Timesheets for Lawyers Under the New Annualised Salaries Provisions
New changes to the Legal Services Award 2010 will have significant implications for graduate lawyers, law clerks, and clerical and administrative employees in law firms who receive an annualised salary. These changes will require employers to keep records of the hours worked by these employees in order to ensure that the employees are not disadvantaged under an annualised salary compared to what they would have received under the Award rate. This will ensure greater transparency and accountability for employees and marks a shift away from graduate lawyers being required to work long ‘reasonable additional hours’ without overtime pay.
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New Year – New You – Gender Neutral Policies
With many Australian businesses responding to shifting trends in parenting dynamics, it is now more crucial than ever to re-assess your own strategies when it comes to tackling this area of employment. Specifically, you may need to consider whether your policies reflect the 21st-century gender-neutral approach to parenting.
Please click here to read the client alert.

Work in the Time of Coronavirus
The news cycle is abuzz with updates on the outbreak and spread of novel coronavirus. The viral epidemic which started in mainland China has now proliferated worldwide, leading the World Health Organisation to declare an international public health emergency for just the sixth time since 2009. Along with the humanitarian, health and economic concerns created, a public health epidemic offers unique challenges for employers managing workers returning from at-risk areas. Amongst the panic and concern, it is important that employers act rationally and in full view of their legal obligations, in contract, statute and common law, in dealing with this growing health risk.
Please click here to read the client alert.

Proposed Religious Discrimination Bill – Changing the Landscape of Federal Discrimination Legislation
The Federal Government has released a second draft of its Religious Discrimination Bill 2019 (Cth), following widespread criticism of the first draft. If passed, the Bill will add religion as a protected attribute in a wide range of areas of public life, including employment, and may have serious implications on employers and employees. Amongst other things, the Bill provides that religious statements of belief do not constitute discrimination for the purposes of any of the currently protected attributes (age, sex, sexual orientation, race, marital status and disability), provided they are not malicious and are not likely to harass, vilify or incite hatred or violence against another person or group of person.
Please click here to read the client alert.

Emergency Essentials: 8 Rights and Obligations when an Emergency Strikes
With devastating bushfires continuing to burn around the country and the threat of a global pandemic in relation to the coronavirus, many employers may be wondering what their rights and obligations are in respect to their employees in the event of an unexpected natural disaster or emergency event that is beyond their control. Given the broad, intertwined and overlapping legal framework regulating employee safety, employer rights and leave entitlements, this isn’t as straightforward as you might think. This legal update outlines 8 emergency essentials to keep in mind to ensure the best outcome for everyone involved.
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Common Law Course of Conduct Principle Affirmed by the Federal Court of Australia
The Federal Court of Australia has applied the common law course of conduct principle (where contraventions committed by the same person arose from a single course of conduct can result in a single penalty) to multiple contraventions by the Construction, Forestry, Maritime, Mining and Energy Union, in both organising and being involved in industrial action in two separate locations (different Australian States), on the basis that it was one concerted industrial campaign against a shipping terminal operator’s proposed redundancies, and therefore should not involve “double punishment”
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Annualised Salaries and Implications for Employers
Underpaying employees on annualised salaries has recently become a multimillion-dollar issue for Australia’s largest retailer, Woolworths. Any business with annualised salary arrangements should immediately be reviewing and reconciling its pay arrangements for Award covered employees to ensure compliance. In this alert, we explain what annualised salaries are, why people are getting them wrong, new requirements coming into effect on 1 March 2020, what businesses need to do and how we can assist.
Please click here to read the client alert.

Managing Exposures During the Festive Season
Work Christmas functions are a great opportunity to celebrate and have fun with your colleagues, but, as is still too often the case, work Christmas functions can become a source of considerable distress when inappropriate employee conduct at these functions puts employers at risk of claims of sexual harassment, bullying, adverse action, and unfair dismissal.
Please click here to read the client alert.

Federal Court of Australia finds that reliability and credibility issues insufficient to discharge reverse burden of proof
The Federal Court of Australia has upheld an appeal from the Industrial Magistrates Court of Western Australia, finding that an employer had failed to disprove underpayment allegations made by a pair of former visa workers that it had employed.
Please click here to read the client alert.

Full Bench Quashes Ruling that CCTV Footage of Employee’s Serious Misconduct was Inadmissible
The Full Bench of the Fair Work Commission has quashed a Commissioner’s ruling that a Krav Maga Institute’s installation of CCTV devices failed to comply with the Workplace Surveillance Act 2005 (NSW) (“WS Act”) and that the CCTV footage it had obtained had been illegally or improperly obtained.
Please click here to read the case alert.

Important Reforms to the Law Governing “Whistleblowers”
Corporations—particularly public companies and large proprietary companies—will need to be aware of recent amendments to the corporations (and taxation) legislation that give greater protection to “whistleblowers” (those that make disclosure of corporate wrongdoing and breaches of the taxation laws). These changes impose additional duties on corporations to have mechanisms in place to deal with such disclosures. The legislation (Treasury Laws (Enhancing Whistleblower Protections) Act 2018) received Royal Assent in March this year, but the provisions affecting the Corporations Act 2001 (Cth) will take effect on 1 July 2019. Importantly, as noted below, there are obligations to have an appropriate policy dealing with whistleblowing in place before 1 January 2020. Because liability for breaches of the amendments can run before 2020, it is recommended that companies covered by the legislative amendments act as soon as possible to implement a policy and ensure compliance with the legislation.
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“Unlawful” and “unreasonable” to direct employee to submit to fingerprint scanner: Full Bench of the Fair Work Commission
The Full Bench of the Fair Work Commission has ruled that a casual general factory hand employed by a sawmill operator had been unfairly dismissed, finding that the sawmill operator had unlawfully and unreasonably directed the factory hand to consent to submit to fingerprint scanning, which would have monitored and tracked his attendance at the worksite.
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New Licensing Arrangements for Labour Hire Operators
On 29 April 2019, the Labour Hire Licensing Act 2018 came into effect. From this date onwards, labour-hire providers will have a six-month transition period to apply for a licence under the Act’s Labour Hire Licensing Scheme.
Please click here to read the news alert.

Federal Court of Australia Dismisses Lawyer’s Disability Discrimination Claim Against Former Legal Practice
The Federal Court of Australia has dismissed a lawyer’s claims for disability discrimination and victimisation against his employer, a small specialist family law legal practice.
Please click here to read the news alert.

Company directors held to be personally liable as accessories to corporate respondents’ underpayment of employees in the Federal Circuit Court of Australia
The Federal Circuit Court of Australia recently ruled that two company directors were personally liable as accessories to the corporate respondents’ contraventions because they were “involved”, within the meaning of section 550 of the Fair Work Act 2009 (Cth), in the underpayment of employees. The two directors were “involved” because, despite the fact that they relied on others to perform day to day human resources functions, they knew the employees were not being paid their wages or salaries as they should have been.
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Fashion start-up fined $274,000 for employee and “intern” underpayments, failing to comply with the regulatory investigation
The Federal Circuit Court of Australia has ordered an employer and its managing director to pay pecuniary penalties for the underpayment of its employees and non-compliance with a Fair Work Ombudsman (“FWO”) investigation.
Please click here to read the news alert.

Employees cannot be required to work “split shifts” under airline award: Federal Court of Australia
26 February 2019
The Federal Court of Australia has ruled that an employer cannot require an employee to work a “split-shift” under the Airline Operations – Ground Staff Award 2010 (“Award”). In doing so, the Federal Court has also held that rostering an employee on for more than one period of paid work within a 24-hour period impermissibly constituted a split-shift under the Award.
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New legislation about Domestic Violence Leave
On 12 December 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Act) came into effect.
Please click here to read the news alert. 

New legislation targeting modern slavery pass New South Wales Parliament
The Modern Slavery Act 2018 (NSW) places new requirements on large companies to publish supply chain information. Failing to publish a modern slavery statement or providing false or misleading information in connection with a modern slavery statement may result in penalties of up to $1.1 million.
Please click here to download the news alert.

Increases to minimum wages and the high income threshold
Important changes re wages to take effect from 1 July 2018.
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Parliament passes “vulnerable workers’ amendments to the Fair Work Act
The Commonwealth Parliament has passed a range of amendments to the Fair Work Act 2009 (“the FW Act”) aimed specifically at protecting those employees the Government describes as Australia’s ‘vulnerable workers’. All employers – including those who genuinely believe they are fully-compliant with the FW Act – should have regard to the important changes these new amendments have made to the FW Act.
Please click here to download the news alert.

The Corrupting Benefits Legislation: What All Employers Need to Know
August 2017

Recent amendments to the Fair Work Act 2009 (Cth) which criminalise the giving, receiving or soliciting of ‘corrupting benefits’ have now been passed by the Commonwealth Parliament. Given the severity of the penalties which now apply to such conduct, all employers should now carefully consider how these latest updates to the Act affect their dealings with unions.
Please click here to download the news alert.

 Employees Must Take Care When Paying Annualised Salaries to Award-Covered Employees
A recent Western Australian Industrial Relations Court decision regarding annualised salaries paid to Modern Award covered employees serves as an important reminder of the importance
of identifying, and carefully complying with applicable Modern Awards.

Important Changes to Annual Leave for Modern Award-Covered Employees
Effective from July 2016, the Fair Work Commission (“Commission“) made a number of important changes to annual leave for employees covered by a Modern Award. As a result of these changes, most Modern Award-covered employees can now cash-out a portion of their accrued annual leave; and be directed by their employer to take annual leave when their accrued balance has become ‘excessive’. The Commission has imposed a number of very strict rules which must always be followed whenever annual leave is being cashed-out or an employee is being directed to take ‘excessive’ leave.
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Far Work Commission Announces Changes to Penalty Rates
On Thursday 23 February 2017, The Fair Work Commission announced important changes to Sunday and public holiday penalty rates payable to employees working in specific industries in Australia. These changes will require amendments to be made to a number of Modern Awards, and will result in a slight reduction in the penalty rates payable for affected employees working on Sundays and public holidays only.
Please click here to download the news alert.

Fair Work Ombudsman Targeting Small to Medium Enterprises
August 2016
The Fair Work Ombudsman has become increasingly vigilant in pursuing small to medium employers who are not compliant in their obligations in relation to employee entitlements, in particular the payment of wages. The fact that individuals may be held personally liable for wage and entitlement contraventions provides a further incentive for company officers to take the precautions necessary to ensure their employer is complying with workplace laws.
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More than $330 in damages awarded to sexually harassed employee
On 23 December of 2015, the Victorian Civil and Administrative Tribunal (“VCAT”) awarded more than $330,000 as compensation to Ms Collins, an employee who had been repeatedly sexually harassed by her employer, Mr Smith, the owner and manager of the Geelong West Licensed Post Office. This case, Collins v Smith (Human Rights)[2015] VCAT 1992 (23 December 2015), continues a recent trend whereby courts and tribunals are awarding significant awards of damages in sexual harassment and human rights cases. It is vital that employers are aware of the significant exposure that unlawful sexual harassment can cause their organisations, and that employers take pro-active steps to mitigate against this risk.
Please click here to download the news alert.

Adverse action on the basis of role or responsibility
The Fair Work Act 2009 (Cth) prohibits adverse action against employees because they have a “role or responsibility” under a workplace law or workplace instrument. A recent decision of the Federal Court of Australia, Hansen v Mt Martha Community Learning Centre Inc [2015] FCA 1099, clarifies this for the first time. This decision confirms that in order to satisfy the relevant requirements of the adverse action regime, the agreement must not just refer to a role or responsibility; rather, the agreement must require or authorise the role or responsibility by its operative terms.
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Contractor or Employee? High Court reinforces the importance of proper description
The recent High Court decision in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd on 2 December 2015 is a stark reminder that all employers need to carefully consider the nature of the relationship with their workers, and to accurately describe that relationship, even where the workers may be engaged through a third party.
Please click here to download the news alert.

Managing exposures during the festive season
1 December 2015
The festive season is here!  Many employers will be celebrating the end of 2015 with their employees, with many work Christmas parties beginning to be celebrated across the country.
Work Christmas functions are a great opportunity to celebrate and have fun with your colleagues, but as is still too often the case, work Christmas parties can become a source of considerable distress when inappropriate employee conduct at these functions puts employers at risk of claims of sexual harassment, bullying, adverse action and unfair dismissal.
Please click here to download the news alert.

Landmark decisions under the WHS Laws – meaning of ‘officer’ explained and record $1.1 million fine imposed
The first decision explaining the meaning of an “officer” under the harmonised Work Health and Safety laws has been recently delivered in the ACT Industrial Magistrates Court. The harmonised
WHS Laws have applied across Australia since 2012, with the exception of Victoria and Western Australia. The recent decision sheds much needed light on the new obligation for officers to exercise due diligence.
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Termination of employment by text message: Dismissal in the Digital Age
6 August 2015
The decision by Hutchison Ports to retrench 97 workers has generated substantial media interest and publicity. The controversy seems to surround not so much the retrenchment of staff itself, but the manner in which the news was delivered to the employees by Hutchison Ports – in the form of a text message and email. In this alert, Harmers outlines the risks for employers of using electronic media to terminate staff as well as best practice recommendations for serving a notice of termination.
Please click here to download the news alert. 

What the Productivity Commission Workplace Relations Framework – Draft Report Means for Employers
4 August 2015
In December 2014, the Federal Government commissioned an inquiry by the Productivity Commission into the operation of the Fair Work laws. The Productivity Commission was tasked with assessing the performance of the workplace relations framework, focusing on key social and economic indicators important to the well-being, productivity and competitiveness of Australia and its people. The Productivity Commission released their Workplace Relations Framework – Draft report on 4 August, 2015.
Please click here to download the news alert.

L&E GLOBAL ANNUAL PUBLICATIONS:

L&E Global’s Employment Law Overviews 2019-2020 Global Edition
L&E Global’s Employment Law Overviews 2019-2020 Global Edition guide is now available! As the proud Australian L&E Global member firm, Harmers Workplace Lawyers is delighted to provide the Australian chapter. The Global Edition guide outlines the employment law regime across 20+ key jurisdictions worldwide. In keeping with the principal themes of Pre-Employment, Employment and Post-Employment issues, the Global Edition delivers invaluable insight into the fundamental labour and employment law matters that national and international employers need to be aware of. Please click here to download or read the publication.

L&E Global’s Fourth Annual Global Handbook:
Employees vs Independent Contractors
May 2017
This handbook includes analysis from 32 key jurisdictions across 6 continents (complete with an Australian chapter drafted by Harmers Workplace Lawyers).  Since last touching upon the issue of “Employees vs Independent Contractors” and the consequences of the re-characterisation of a contractor into an employee back in 2014, there has been a universal effort to eliminate “sham” contracts, which are commercial contractor arrangements that seek to mask the existence of an employment relationship.
Please click here to download the publication.

L&E Global’s Third Annual Publication:
Employment Litigation: Procedures, Remedies and Best Practices
April 2016
This comprehensive publication has been expanded from the 2015 edition (below) to include contributions from 28 L&E Global firms across 5 continents and will be a valuable resource for all HR and in-house legal departments, as well as other professionals who manage and defend employment claims.
Please click here to download the publication.

L&E Global’s Second Annual Publication:
Employment Litigation: Procedures, Remedies and Best Practices
April 2015
For employers with operations in multiple jurisdictions, litigation over disputes related to employment matters is a very real concern, which applies to every sector of industry, in every region of the world. This comprehensive publication includes contributions from 18 L&E Global firms and will be a valuable resource for all HR professionals.
Please click here to download the publication.

L&E Global’s First Annual Global Handbook:
Employees vs Independent Contractors
28 May 2014
Harmers Workplace Lawyers is delighted to provide you with the first annual L&E Global handbook on Employees vs Independent Contractors. This comprehensive publication includes analysis on the difference between a contractor and an employee and the potential re-characterisation of a contractor as an employee. Contributions have been provided from 15 L&E Global country member firms. It is a valuable resource for all HR professionals.
Please click here to download the publication.