Under the National Employment Standards (NES), employees have an entitlement to a paid day off on a public holiday unless it is reasonable to ask an employee to work. Many businesses remain open over public holidays and need employees to work. This can lead to confusion and disputes over whether or not it is reasonable to ask an employee to work on a public holiday.
Requests to work on a public holiday
The factors set out in the NES to determine the reasonableness of a request to work (or the reasonableness of a refusal to work) on a public holiday are:
the nature and operational requirements of the workplace
the type of work required to be performed
the employee’s personal circumstances (eg family responsibilities)
any reasonable expectation that public holiday work is required
entitlements to be compensated for working on the public holiday
the type of employment of the employee (ie full-time, part-time or casual)
the amount of advance notice provided to the employee to work on the public holiday, and
the amount of advance notice given by the employee if refusing to work on a public holiday.
What does this mean for employers?
Employers requiring employees to work on public holidays should:
consider the reasonableness of the request
provide as much notice as possible to avoid an employee claiming that the request was unreasonable, and also
consider any obligations that may arise under industrial instruments such as enterprise agreements or modern awards that regulate employees’ entitlements on public holidays
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
Most casuals know from week to week whether they will be offered more work. That however does not mean that only those employees that do not know, would be treated as casual.
It is the informality, uncertainty and irregularity that gives rise to the characteristics of being a casual.
In the recent decision of Williams v McMahon Mining Services Pty Limited [2009] FMCA 511 the court held that as the employee’s work were performed according to a stable organised and certain roster, with certainty of working hours throughout the term of employment, he was not a casual worker.
There is however no one characteristic that makes an employee a casual and each case needs to be looked at on an individual basis.
Another older case is Licensed Clubs Association of Victoria v Higgins (1988) AILR497 where the court examined the following factors to determine what the ongoing relation was:
the number of hours worked each week;
whether a roster system is published in advance;
whether the employment pattern is regular;
whether the employee has an expectation of continuity of work;
whether the employer requires notice before an employee is absent or on leave;
whether the employee works to consistent starting and finishing times.
Implications for getting it wrong are significant. Apart from fines, there are also entitlements to personal leave, notice of termination, redundancy pay, annual leave and protection from unfair dismissal.
Employers should carefully consider when engaging a casual employee whether the employee can be considered a true casual. Employers should also review the employment contracts they use, particularly for casual employees, to ensure that they reflect the true legal relationship created.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Independent contractors are usually self-employed and accordingly are their own boss – providing their own tools, deciding which jobs to take on, being paid to achieve a result and bearing the risk of non-payment.
Employees on the other hand are paid to work certain hours for an agreed wage, and are usually entitled to paid leave.
A common distinction between contractors and employees is the documentation used to engage the worker – an employee will usually be provided with an employment agreement for ongoing services; an independent contractor will usually enter into a contract specifying the nature of the work to be carried out during a particular period. The difference is sometimes small and it can be difficult to ascertain whether a person is a contractor or employee.
Whilst a difficult distinction, contractor versus employee is an important one for businesses to make.
A recent Federal Court case has held that signing contracts indicating an independent contractor relationship is not sufficient to shirk responsibility if the real nature of the relationship is that of employer/employee.
The case involved a number of insurance sales representatives who signed contracts to provide independent contractor services. The sales representatives however were trained by the insurance company, supervised and directed by the insurance company, and worked closely with the insurance company. The Court held that the insurance company’s ability to control the sales representatives placed them into the category of employee rather than contractor. The decision resulted in more than $500,000 in accrued annual and long service leave being paid to the insurance representatives by the company.
To avoid a costly claim for back pay or other entitlements such as superannuation or long service leave, contact the employment law team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
The Christmas/New Year period provides employees with an opportunity to celebrate the year that has passed. Employees can ‘forget’ the appropriate conduct required of them, particularly when alcohol is involved and when functions are held offsite and outside normal working hours. As a result, employers may now been dealing with the ramifications of any incidents which occurred during this period.
Recent Decision
An employee was involved in a physical assault (head-butting another employee) at a Christmas function. An investigation into the incident was not finalised until April in the following year, but by this time another allegation of assault had been made against the same employee.
In response to the second incident, the employer concluded that the second alleged assault (which was denied by the employee), together with the head-butting incident at the previous Christmas party, established a pattern of unacceptable misconduct. The employer dismissed the employee for serious misconduct.
When considering the employee’s subsequent unfair dismissal claim, Fair Work Australia found that:
No proper investigation had been undertaken.
The relevant manager displayed manifest bias.
The manager had pre-determined his views before hearing from the employee.
The manager ambushed the employee with the allegations and he unreasonably refused to allow the employee to have a support person of his choice attend the investigative interview.
All of these actions resulted in the employer failing to provide procedural fairness to the employee. Fair Work Australia decided the employee’s termination was unfair and awarded compensation.
Proper investigation is the key
To minimise the effect of any claims for unfair dismissal, you should take steps to properly investigate the incident and provide procedural fairness to employees during the process.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
It is becoming more common for employers to be asked by employees to connect their personal devices such as smart phones, laptops and tablets to the employers’ IT systems. The convenience, flexibility and potential productivity gains make allowing an employee to ‘bring your own device’ (BYOD) appealing.
However the use of BYOD, including in non-work hours, can present a number of risks for employers, if the arrangements are left unmanaged.
Factors to consider with BYOD arrangements
Employers need to consider whether it is appropriate to allow employees to access work systems from a personal device which may not have the security, and controls that company devices have. In order to protect a business’ interests it may be necessary for IT to have access to the personal device in order that confidential or sensitive information can be wiped in the event that the device is corrupted or lost.
Additionally, unmonitored connection of a business’ IT systems to personal devices could lead to breaches in confidentiality, unauthorised disclosure of confidential information and use of personal information that is contrary to privacy laws.
Employers may be able to avoid this by implementing measures that require employees to use passwords and report lost devices where confidential or sensitive information is available on the device.
There may also be surveillance issues for employers in certain circumstances when BYOD arrangements are entered into.
The value of appropriate policies
If employers wish to protect their legitimate business interests and guard against inappropriate employee conduct, appropriate policies are essential.
Policies should be put in place to cover BYOD arrangements where:
employees are required by the business to use their own device such as a smart phone or tablet in the performance of their job; or
an employee wishes to use their device to receive work related data and information via their own device.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate policies for your workplace because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
The Australian managing Director of Rio Tinto, David Peever says that the Fair Work Act is the elephant in the room when it comes to the productivity debate in Australia.
Heather Ridout, who used to be the head of the Australian Industry Group and is now on the Reseve Bank board said on a recent Q & A programme that the “Fair Work Act gives 120 new rights to unions and nothing to employers”. On the same programme, Judith Sloan, an economist and commentator suggested that it was ironic that the Act assumes that the right of unions is paramount when it comes to work place contracts but only 13% of the private work sector belong to unions.
Calls by industry leaders for a more flexible, productive and fair work place relations system are becoming more strident.
Perhaps the Government has heard the calls. There are amendments proposed to the Fair Work Act involving an overhaul of the costs provisions. Under the proposed changes, Fair Work Australia will have new powers to make cost orders against Applicants who bring “unreasonable claims”.
At the moment, it is most unlikely that, if an applicant fails in Fair Work Australia, he or she will have to pay the employer’s costs. This is because the employer must make application for costs swiftly and, more importantly, must demonstrate that the applicant’s proceedings were manifestly untenable or brought vexatiously.
It is understood that, under the costs regime proposed, an employer will be able to recover its costs if the applicant’s claim is unreasonable. This is still not the way things work in other litigation concerning breach of contract or statutory obligation, where costs follow the event unless the circumstances are exceptional.
The commentators suggest that the proposed changes to the costs regime will provide some relief for small business. It is hoped that it will enable litigation in Fair Work Australia to be conducted more efficiently and drive early resolution.
Costs aside, the best way for a small business to protect itself from unmeritorious claims is to implement fair and compliant dismissal processes. The employment team at Everingham Solomons can help with dismissal issues because at Everingham Solomons Helping You is Our Business.
Employers have an obligation under the Work Health & Safety Act to ensure, so far as is reasonably practicable, the health and safety of workers.
One of the increasing areas of concern is drug and alcohol use which affects a workers’ performance or has the potential to cause harm or injury to other employees.
Many employers are implementing workplace drug and alcohol polices in an effort to satisfy their WHS obligations.
A recent decision by Fair Work Australia illustrates that in attempting to comply with WHS legislation, employers need to consider the privacy rights of workers.
The case involved a company implementing a new drug and alcohol testing policy which included urine testing. Both the employer and the Union representing the employees of the company, agreed that random drug and alcohol testing was appropriate from a WHS perspective. The cause for disagreement was the appropriateness of urine testing.
The general principle is that a judicial body should not seek to interfere with the right of an employer to manage its business, unless the employer is seeking from the employees something which is unjust or unreasonable.
Fair Work Australia found that urine testing was an unjust and unreasonable method because:
oral (saliva) testing was available;
oral testing is able to identify whether there has been recent consumption of drugs, whereas urine testing cannot; and
urine testing can have a positive result even where the consumption of drugs occurred several days prior. There was therefore a risk that employees might be disciplined for drugs taken outside the employment context which at the time of testing had no WHS ramifications.
The decision illustrates the need for employers to be reasonable in their requirements of employees, whilst also balancing their WHS duties.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate employment policies because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
There are many different ways for an employer to engage an employee, so it is vitally important that the employment contract correctly reflects the actual employment relationship.
Various employer/employee relationships
Employees are generally engaged on a:
full-time
part-time, or
casual basis.
The terms and conditions of employment may change if the employee is:
employed for a fixed-term
covered by an award or enterprise agreement, or
an executive employee.
Courts have found in many cases that employees are in fact a different type of employee to that stated in their employment contract. For example, workers who the employer considered to be casuals have been found actually to be permanent employees, with the result that they had access to employee entitlements such as the unfair dismissal jurisdiction or parental leave.
In the case of Williams v McMahon Mining Services, Mr Williams’ letter of employment noted that he was employed as a casual, however he worked the same hours on a set roster. The Court found that Mr Williams was not a true casual because he was employed on a regular systematic basis. As a result his employer was required to pay Mr Williams the entitlements of a permanent employee, including accrued annual leave.
What can happen if I use the wrong contract?
Using the wrong type of employment contract could result in:
accrual of leave entitlements
access to unfair dismissal
access to leave the employee may not otherwise be entitled to
a breach of industrial instruments, such as an Award, or
an underpayment claim.
Additionally, using the wrong type of employment contract could expose you and your company to the imposition of fines, including a maximum civil penalty of up to $33,000 in the case of a corporation, and $6600 for an individual.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate employment contracts for your staff because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
Most employers implement policies and procedures to minimise liability which may arise from their employees’ actions. It is also important for employers to make their employees aware of the policies, train and implement them into the workplace, and penalise employees who breach those policies and procedures.
A recent case before the Administration Decisions Tribunal (ADT) shows how these actions can make all the difference.
In this case the Applicant, ‘C’, received a piece of paper at a training session from ‘L’ which contained sexually explicit material. C felt so violated it led her to the police station. C returned to work and made a complaint against L alleging sexual harassment.
C also sued her employer, claiming it was vicariously liable for the conduct of L.
The ADT dismissed C’s complaint against the employer and found the employer never authorised L’s action and took ‘all reasonable steps’ to prevent this behaviour.
This was established because:
The employer had provided employees with relevant policies and procedures
L was provided with the Code of Conduct on five occasions
L had undertaken mandatory training on harassment, bullying, and the Code of Conduct on four occasions
The employer acted upon the complaint immediately by conducting an investigation
The employer apologised to C
As a result of this investigation, L was disciplined and provided with a first and final warning
The ADT substantiated the complaint of sexual harassment against C, and L was ordered to pay $10,000 in damages to C.
Employer tip
To avoid your business being held vicariously liable for an employee’s conduct, ensure it is taking all reasonable steps to educate staff about what is acceptable behaviour in the workplace.
A good practice is to:
Have policies and procedures in place
Implement the policies
Provide regular education and training sessions to all employees
Deal with all complaints promptly, and investigate the situation thoroughly
Penalise breaches of the polices and conduct
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
<In 2009 Safe Work Australia, a national statutory body was given the job of nationalising state occupational health and safety laws. This was designed to harmonize the laws across the various jurisdictions.
On 1 July 2012, the Work Health & Safety Act (NSW) 2011 (WHS Act) commenced operation replacing the Occupation Health & Safety Act (NSW) 2000. The NSW legislation, although not identical, is very similar to the legislation across the various States in Australia.
The reason for the changes has been the change in the workforce. Over the years workplaces have become far less structured. It is becoming far more common for people to do their work from home, be employed by labour hire companies, use contractors, sub-contractors as well as volunteers. These changes to the workforce are reflected in the changes to the legislation and it attempts to encompass all workers as more broadly defined.
For NSW employers, there has been a shift away from an ‘absolute duty’ towards a duty to ensure safety ‘insofar as it is reasonably practicable’. Having said that it also requires employers to be more proactive in respect to the safety measures they implement and their obligations are far broader.
What is ‘reasonably practicable’ depends on a number of factors which include the time and expense it takes to eliminate or reduce the risk. If the steps required are disproportionate to the risk, then they may not be reasonably practicable.
The WHS Act also requires an ‘officer’ of the business to exercise due diligence to ensure the person conducting the business complies with its duties. To exercise due diligence requires positive action which is to say it cannot be passive or disinterested in its obligations.
There is also a raft of regulations that have been introduced to place further obligations on employers and require them to, in effect, self regulate themselves. This includes the introduction of health and safety representatives which will be discussed in a later advertorial.
If you should have any queries in respect to the Work Health & Safety Act, please contact the writer to discuss because Helping You is Our Business.
Under the National Employment Standards (NES), employees have an entitlement to a paid day off on a public holiday unless it is reasonable to ask an employee to work. Many businesses remain open over public holidays and need employees to work. This can lead to confusion and disputes over whether or not it is reasonable to ask an employee to work on a public holiday.
