Employee Notice Periods

Are you an Employer? If so, are you aware of each of your employee’s termination notice period entitlements are?

Many employers do not take the time to understand their employment contracts and the effects of the National Employment Standards (NES). This can lead to harsh financial implications when terminating employees or, for example, selling your business, due to the requirement to provide the minimum period of notice or payment in lieu of notice.

If the notice period in the employment contract is greater than the minimum provisions under the NES, then the employment contract will apply. However, if the notice period in the employment contract is less than in the NES, the NES will prevail.… Read More

Is this only a casual relationship? – Libby Campbell

Libby_Campbell web croppedOn 16 August 2018 the Federal Court handed down a significant judgment in the matter of Workpac Pty Ltd v Skene relating to the classification of casual employment. The case involved a dump truck driver, Mr Skene who applied for a “fly in, fly out” position with Workpac at a coal mine operated by Rio Tinto in Central Queensland. Mr Skene was informed the work would be 12 hours per shift, 7 days on, and 7 days off, on a continuous roster arrangement. Mr Skene was successful in obtaining the position and was provided a “Notice of Offer of Casual Employment”, his employment was also governed by an industrial agreement.… Read More

Domestic Violence Leave for Workers – Employers Take Note – George Hoddle

GRHRecently the Fair Work Commission during its four-yearly review of Modern Awards has ruled on Domestic Violence Leave.

In response to the submissions of Unions and the demands of the general public on the issue, the Fair Work Commission has sought to protect workers, noting “family and domestic violence is a community issue and requires a community response.”

The Fair Work Commission has released the final domestic violence leave model which will be inserted into all modern awards which will see Domestic Violence Leave being made available to workers from 1 August 2018.

The key elements of the incoming domestic violence leave are as follows;

  • The Leave will be unpaid;
  • The entitlement is up to 5 days leave annually;
  • It will apply to all employees including full time casuals and part-time employees;
  • The leave will not accumulate from year to year but will be available in full at beginning of each 12 month period;

The new provision will protect employees from any adverse action an employer may take against an employee for taking time off in accordance with the Domestic Violence Leave regime.… Read More

Pro Rata Long Service – George Hoddle

GRHUpon the continuous service of 10 years a worker in most circumstances is able to qualify for long service leave. It is worth noting however, that in certain situations an employee may be able to qualify for long service leave on a pro rata basis before the expiry of obtaining 10 years continued service.

The Long Service Leave Act provides that an employer must pay an employee (with more than five years but less than 10 years’ service) their pro rata long service leave entitlements where the employee resigns from their employment “on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker.”

To be able to satisfy a claim for pro rata long service leave a worker must be able to satisfy the following;

  1. Was the reason claimed for termination one which fell within the section?
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Is your employment documentation ready to go for 2017? – Keiran Breckenridge

KXBbwThe Australian Institute of Company Directors released its Director Sentiment Index for the second half of the year on 1 December 2016.  One of the headline findings is that, despite greater global uncertainty, 34% of directors expect their business to increase both levels of staffing and investment.  Business confidence among directors has increased by ten index points and is at its highest since 2013.

When a business increases its staffing levels, it also adjusts all manner of systems and processes. The risks to the business associated with its employees increase.  At Everingham Solomons, we hold a comprehensive database of employment documents that can be tailored to the needs of your business to assist you to manage risks around the employer/employee relationship.… Read More

Can employers become responsible for the criminal acts of their employees? – George Hoddle

GRHThrough the employment of staff an employer has exposure for the actions of an employee that bind the employer. This long established legal principle is referred to as Vicarious Liability.

Vicarious Liability is a liability imposed on one person for the wrongful act of another on the basis of a legal relationship existing between them. This extends to an employer being liable for the wrongful act of an employee.

An employer has long been found to be liable for the harmful acts of an employee if they are done within the course of their employment. A simple example of this would be an employers liability to pay damages in circumstances where an employee in the course of their employment has negligently caused harm to another person.… Read More

Are small business employers exempt from paying redundancy pay?

TLRbwAs a general rule, a small business employer is not required to pay redundancy pay, as set out in the National Employment Standards however there are some circumstances where you may be legally required to make these payments.

A “small business employer” is defined under the Fair Work Act as an employer who employs fewer than 15 employees at the time of the redundancy. This includes all employees you employee, the employee who is being dismissed, and any other employee who is being dismissed or terminated.

A casual employee is not to be counted unless they are employed on a regular and systematic basis.… Read More

Restraint of Trade – George Hoddle

GRHOften, after the separation of employment both employees and employers are concerned about whether or not restraints will apply to the former employee as part of their post-employment obligations to their former employer.

In New South Wales a restraint is valid to the extent to which it is not against public policy bearing in mind an employer is not entitled to be protected against mere competition but is protecting its legitimate interests by enforcing the restraints. Such interests may include employer’s trade secrets, confidential information, the employer’s goodwill, including its connections with its customers.

It is also worth noting that there are statutory obligations under the Corporations Act that an employee cannot use information obtained to gain advantage for themselves or for someone else which may cause detriment to a corporation.… Read More

Can I cash out my employees’ annual leave? – Keiran Breckenridge

KXBbwOften a business will have staff who hoard their annual leave, whether it is to insulate themselves for a rainy day, to seek longer periods of leave in the future, or perhaps they just prefer to work rather than holiday.

For a business, this hoarding can create issues. Greater financial provision has to be made for annual leave entitlements.  Uncertainty can exist as to whether those staff members may seek long periods of leave at a time not suitable to the business.  Employee errors or even fraud can remain undetected if an employee never takes annual leave.

The ability for an employer and an employee to agree to cash out some of an employee’s annual leave has not featured in most Modern Awards.… Read More

Consider Fixed Employment Term Contracts – George Hoddle

GRHWhat is a Fixed Term Employment Contract?

Sometimes it suits employers to hire people for short, fixed periods of time. For example, there may be a specific project with a defined period that requires specialised staff.

A fixed-term contract is an employment agreement which will continue until an agreed date. The term is fixed and it is clearly defined as having a start date and a finish date inserted into the employment contract.

The benefits for an employer of a fixed-term contract is that the employer can conclude the employment relationship upon the expiry date without the need to give reason for termination.… Read More