Does every employee get 10 days personal leave a year? The High Court has decided…

On 13 August 2020 the High Court handed down their decision in the appeal of the Full Federal Court’s decision in the Mondelez case. The previous decision stated that based on the National Employment Standards all employees, regardless of whether they were part time or full time employees, were entitled to 10 days personal leave each year.

The High Court has now overturned the decision in the case Mondelez Australia Pty Ltd v AMWU & Ors [2020] HCA 29. The High Court established that the 10 days of personal leave referred to in the National Employment Standards, is to be known as 10 ‘notional days’ of leave. The duration of a ‘day’ is to be determined by one-tenth of the hours of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period. Alternatively it is 1/26 of the employee’s ordinary hours of work in a year.

For example, if a full time employee works the standard 38 hour week (7.6 hours x 5 days) and therefore 76 hours in a fortnight, then the notional day will be 7.6 hours.

If a part time employee works 10 hours a week and therefore 20 hours a fortnight, the notional day will be a 2 hour day, as opposed to 7.6 hours. Meaning over the course of the year the part time employee would be entitled to 10 x 2-hour notional days.

In effect, each notional day is calculated on a pro rata basis depending on how many hours the employee works.
If you have an employment law issue that you require clarification and advice on please contact our office because Helping You is Our Business.

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Is the Redundancy “Genuine”?

Due to the unprecedented disruption caused by COVID-19, many employees’ positions have been made redundant throughout Australia. However, employers should note that if the redundancy is not “genuine”, the employer can be liable for unfair dismissal of employees.

According to section 389 of the Fair Work Act 2009 (the “Act”), to be a genuine redundancy all of the following requirements must be satisfied:

a. The employer no longer requires the employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise.

The employer must consider whether the job is no longer required and will not be performed by anyone else. If an employee’s job still exists after his/her dismissal and the job is performed by another employee, it would not be viewed as a genuine redundancy.

The Act does not define the term “operational requirements”. But some common examples include business downturn, business closure, restructure and introduction of new technology.

b. The employer has complied with the obligations under the applicable modern award or enterprise agreement.

For example, it will not be a case of genuine redundancy if an employer does not comply with consultation obligations under industrial instruments. Typically, this requires employers to notify the employees of major workplace change including its effect and engage in meaningful consultations about the change.

c. A redundancy will not be genuine if it would have been reasonable in all the circumstances for the employee to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

The employer should consider all available positions to see if there is any suitable position for the employee. In determining whether redeployment is reasonable a number of factors may be relevant, such as the nature of any available position, the qualifications required to perform the job and the employee’s skills and experience.

Where an employee has made an application for an unfair dismissal remedy, the employer must prove that the requirements of section 389 have been met; otherwise, the Fair Work Commission may determine that the dismissal was unfair.

Everingham Solomons have experienced Solicitors who can provide redundancy advice, or any other advice on employment law you may require, because Helping You is Our Business.

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Restraint Of Trade

Employment Contracts can contain Restraint of Trade clauses which affect the post-employment obligations of employees to their former employer.

Employees who are contemplating new employment in a similar area either for a competitor or related industry should first review the status of their post-employment obligations.

Often new employers require that an incoming employee warrant that they are not bound by any restraints.

When reviewing whether or not a restraint is valid the starting point is Section 4(1) of the Restraint of Trade Act 1976 which provides:

“A restraint of trade is valid to the extent to which it is not against public policy, whether it is several terms or not”.

A basic interpretation of this section is that a person has the right to pursue their chosen profession in the area in which they live.

This is reflected in the Court’s interpretation of restraint as articulated in the judgment of Vanderall Products Ltd v McLeod [1956] RPC185:

“An employer is not entitled to be protected against mere competition, a legitimate interest in the employer which may be subject of protection by covenant are in the nature of proprietary interest”.

An employer is entitled to protect their property. Such property includes client lists, intellectual property and trade secrets.

A restraint however can still be valid in circumstances where the parties have agreed to the restraint in writing and it is reasonable given the seniority and public perception or “face of the business” that the employee held whilst employed.

This position was articulated in the judgment of Cactus Imaging Pty Ltd v Glen Peter [2006] NSW SC717:

“It is plain that employer’s customer connection is an interest which can support a reasonable restraint of trade. Such a restraint is legitimate if the employee has become vis-à-vis, the “human face” of the business, namely the person who represents the business to the customer.”

In these circumstances it is merely a matter of interpretation as to restraint, time and geographic area as to what is reasonable.

Everingham Solomons has the specialist knowledge to assist in the interpretation of reasonable enforceable restraints for either a potential exiting employee or drafting the necessary Employment Contracts for a prudent employer.

If you require assistance, please contact Everingham Solomons because Helping You is Our Business.

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Employ Skilled Migrants in Regional Areas

If your business need skilled workers that are in short supply, a good option for your business is to employ skilled migrants who are already in Australia on a skilled visa such as subclasses 189, 190 or 489/491. Many skilled migrants have high-level qualifications and years of work experience. You may find them valuable to the operation and development of your business.
In regional areas, the most common skilled visa held by migrants is 489 visa (to be replaced by 491 visa as from 16 November 2019). The 489 visa is also called Skilled Regional (Provisional) visa. Typically, under the invited pathway of 489 visa a skilled worker is nominated by an Australian state/territory or sponsored by an eligible relative and is then invited to apply for the visa. Once being granted a 489 visa, a skilled migrant is allowed to live, work and study in a specified regional area of Australia for up to 4 years (extended to 5 years under the new 491 visa). In New South Wales, a specified regional area means anywhere except Sydney, Newcastle, the Central Coast and Wollongong. For the new 491 visa, the specified regional areas in NSW are extended to cover anywhere except Sydney.
489/491 visa holders are eligible to apply for permanent residency if they have satisfied certain conditions relating to residence and work. Accordingly, they have a strong incentive to remain in employment with their employers in regional areas.
If you intend to employ a skilled migrant, you will need to first check if he/she has permission to work and any other work restrictions. You may use the free online service Visa Entitlement Verification Online (VEVO) to check the visa details and conditions of a particular skilled migrant.
When employing a skilled migrant, the employer must comply with Australian employment law. Migrants enjoy the same employment rights and protections as any other Australian employees do.
Employers are reminded that it is unlawful to disadvantage employees and job seekers because of their race, colour, descent, or national or ethnic origin. Therefore, it is important to ensure that your business have a discrimination-free workplace.
If you require assistance with any immigration and/or employment law matters, please contact Everingham Solomons because Helping You is Our Business.

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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.

If your employment contract does not provide for a notice period, then the notice of termination provisions in the applicable modern award will apply. If your employees do not operate under an award and have no employment contract, then “reasonable notice” will apply.

What is “reasonable notice”?

The purpose of providing a period of notice is to enable an employee to obtain new employment of a similar nature. Despite the minimum periods of notice of termination set out in the NES or your employment contract, a greater period of notice may be required for an employee if the circumstances of their employment requires it, for example, senior executive employees.

The relevant factors taken into consideration for reasonable notice are length of service, seniority and status of the position, the level of remuneration, experience and expertise, whether the employee was approached by the employer to join the organisation and the prospects for the employee to find alternative employment.

If you are an employer and are unaware of what your notice period obligations are under your employment contracts and the National Employment Standards, please contact Everingham Solomons for advice because Helping You is Our Business.

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Is this only a casual relationship? – Libby Campbell

On 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.

Mr Skene commenced work on 20 July 2010 and was provided a roster ending in December 2010. In the first two weeks of work he was provided a different room to stay in each time, he was then assigned a permanent single room and storage in the room for his belongings. In January 2011 and 2012 Mr Skene was provided with a roster for the entire following year in advance.

On 23 April 2012 Mr Skene’s employment was terminated.

The issue before the court was firstly the nature of Mr Skene’s employment and the entitlements that might be available to him based on his employment classification, in particular, Mr Skene argued he was entitled to annual leave and consequential entitlements.

The terms of the offer of employment as signed by Mr Skene were consistent with the employment being an ongoing position in that the hours of work were fixed and payment was regular. This was also reflected in the rosters provided months in advance, as well as the permanent accommodation provided to Mr Skene. He was not able to pick and choose the days he worked, particularly once he was flown to the location. Additionally, the hours did not fluctuate, it was always 12 hours per shift.

Despite Mr Skene being aware he signed the Notice of Offer of Casual Employment, the Court held the offer of employment was not enough to determine a casual relationship existed, but rather the Court was required to look at the real substance of the employment relationship. It was a question of fact whether he was a casual employee or not.

Mr Skene was found not to be a casual employee and therefore was permitted to further entitlements not previously paid to him.

If you have questions about casual employment arrangements or any other employment law matter please contact our office, because Helping You is Our Business.

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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.

The change to the modern awards is significant and will require employers to review and update their policies and procedures.

Everingham Solomons has the specialist skills to be able to assist in the implementation of new or the updating of existing policies in respect to Domestic Violence Leave and other workplace policies because at Everingham Solomons, Helping You is Our Business.

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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?
  2. Was the reason generally held by the worker not simply colourable or a rationalisation?
  3. Although the reason claimed may not be the sole ground which led the worker in his decision to terminate, was it the real and motivating reason?
  4. Was the reason such that a reasonable person in the circumstances in which the worker found himself/herself placed might have felt compelled to terminate his employment?

When considering whether or not an employee is entitled to a pro rata long service leave after five years will be fact-specific. For example the Supreme Court has recognised that uncertainty regarding the future of one’s employment and the need for security of employment both for an employee’s professional reasons, and to support their family, is a circumstance which can be taken into account when determining whether or not an employee resigned on account of “pressing necessity”.

Whilst less than 10 years, pro rata long service leave entitlements can be significant. Whether you’re an employee or an employer it is worth considering whether or not the circumstances give rise to a payment or claim for pro rata long service leave. At Everingham Solomon’s we can provide you that advice, because Helping You is Our Business.

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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.

For example, we can set your business up with template engagement letters for casual, part time, full time, Modern Award and non-Award staff. We have a comprehensive and robust employment contract for managerial and professional staff.  We can assist with agreements for your independent contractors as well.

You may be struggling for time to document your own policies and procedures for your business. We have over 50 template policy documents from which you can choose: Anti-Discrimination and EEO; Code of Conduct; First Aid; Internet Email and Computer Use; Personal Grievance; Work Health & Safety; Workplace Bullying, and so on.

When you need to write to your employees about various issues, you need to follow certain steps and use appropriate language. For example, in show cause or warning letters, letters for the recruitment process, letters regarding the taking of various forms of leave, and the like.  We can provide you with a set of correspondence documents covering these matters and others.

We invite you to make an appointment for January 2017 to see us about your employment document needs and start the year on the right track. Everingham Solomons can tailor a document package for the needs of your business because Helping You is Our Business.

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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.

A recent High Court decision has explored the possibility that an employer could also be held responsible for the actions of an employee when they have gone beyond their normal course of employment and have engaged in intentional and criminal acts.

The recent High Court decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 dealt with a horrific systematic sexual abuse of school children performed by an employed master of a boarding school.

Whilst the victim did not succeed ultimately due to limitation issues, the High Court’s decision has opened the door for liability of employers for the criminal acts of employees in certain circumstances.

In the Prince Alfred College case the High Court looked at the role the employee was appointed to, the special position he was placed in with respect to the victim and the high level of authority, power, trust and control that was delegated to the employee. This combined with the vulnerable position of the victim, presented a factual scenario whereby the occasion for wrongful conduct was as a result of the employee’s role.

Whilst this is not an absolute rule in respect of the criminal acts binding an employee it does present an indication for employers in scenarios whereby they have highly dependent and vulnerable people under their care, such as schools, hospitals, aged care facilities, disability providers and alike.

Employers need to ensure that they have proper systems and polices in place to maintain supervision of staff and ensure transparent reporting systems.

At Everingham Solomon’s we have the skills and expertise to assist you with your employment needs because Helping You is Our Business.

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