Prior to a recent decision by the Full Federal Court of Australia in Anglican Care v NSW Nurses’ & Midwives’ Association [2015] FCAFC 81 (5 June 2015) employers often believed that whilst an employee was not at work and receiving weekly payments of compensation, they were not entitled to accrue annual leave.
In the case that was before the Full Bench of the Federal Court, an aged care worker was not at work, but receiving weekly payments of compensation from December 2009 to May 2011. The worker had not been terminated and was still employed. The argument was whether the worker was entitled to accrue annual leave during that period, with the total value of the claim being $3,000.
The worker was represented by her union, as such the legal costs which would have far exceeded the claim, was not in issue.
The Federal Legislation, that being section 130 of the Fair Work Act 2009 (Cth), provides that an employee is not entitled to accrue annual leave if off work, unless permitted to by the State Law.
The State Legislation being section 49 of the Workers Compensation Act 1987, provides that workers are entitled to receive weekly payments of compensation, even though they are entitled to receive annual leave. It has always been thought that this meant that if you had accrued annual leave, you were entitled to take it even though you were receiving weekly payments of compensation.
Prior to going to the Full Bench, Justice Emmett of the Federal Circuit Court decided that this meant that a worker could accrue the annual leave whilst receiving weekly payments of compensation. This decision was then upheld by the Full Bench of the Federal Court.
This situation may however be reversed by Federal Legislation and there is at present an amendment to the Fair Work Act that is before the Senate.
At the moment however, workers are entitled to accrue annual leave whilst receiving weekly payments of compensation.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
In certain circumstances, a change to more flexible working arrangements can be requested by employees with at least 12 months continuous service with an employer and by long term casuals who have a reasonable expectation of continuing regular and systematic work. These could include changes in hours of work, patterns of work or even location of work.
Employees with the following types of circumstances can request such a change:
those who are parents, or who have responsibility for the care of a child who is of school age or younger;
carers;
those with a disability;
those who are 55 or older;
those experiencing domestic violence, or those caring for, or supporting, an immediate family member experiencing domestic violence.
An employee’s request must be in writing, must set out the details of the change sought and the reasons for the requested change. The employer must then respond to the employee in writing within 21 days. A request can only be refused on reasonable business grounds. A refusal must include the reasons for the employer’s refusal.
The reasonable business grounds on which a request for flexible working arrangements can be refused include:
that the new arrangement would be too costly for the employer;
that there is no capacity to change other employees’ arrangements to accommodate those requested by the employee;
that it would be impracticable to change the arrangements of other employees, or recruit new employees, to accommodate those requested by the employee;
that the arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
that the arrangements requested by the employee would be likely to have a significant impact on customer service.
If an Award, enterprise agreement or, less often, an employment contract allows workplace disputes to be taken to the Fair Work Commission, an employer who refuses a request may find itself before the Commission if the employee disagrees with the refusal. Further, if an employee feels discriminated against because of a refusal, he or she may challenge the employer under relevant discrimination legislation.
At Everingham Solomons, we provide guidance to both employers and employees in managing requests for flexible working arrangements because Helping You is Our Business.
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A asked his colleague B (a long term employee and union delegate at their workplace) to be his support person during an investigation process being conducted by their employer. A gave B a copy of a letter A had received from the employer. The letter referred to the confidential nature of the investigation being undertaken. B responded to that letter to the employer on behalf of A and provided a copy of the letter and his response to the union, and to other members of his work group at the workplace.
The employer was not impressed with B, who later acknowledged and apologised for the breach of confidentiality as a support person but said he was not aware of his confidentiality obligations. The employer then issued B with a final written warning.
The union applied to the Fair Work Commission (FWC) on B’s behalf, submitting that the final written warning was harsh and disproportionate in all the circumstances, and should be removed from B’s employment record. The employer said that it had considered summarily dismissing B for serious misconduct but had settled on the lesser disciplinary measure of a final written warning.
The FWC held that:
“Any person in that role of support person should understand an investigation into issues to do with an employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times”.
Nevertheless, the FWC held that the decision to issue B with a final written warning was harsh and warranted review. Relevant factors were:
B’s role as union delegate meant he should know better but also that he had an active role to play for employees in that workplace;
there was little in the letter B circulated that was truly confidential;
B was a long term employee (over 11 years) with a clean disciplinary record;
B did not act intentionally or maliciously to damage the employer.
The FWC ruled that B’s final written warning should be downgraded to a written warning only. The FWC “emphasised that it is to be expected the parties involved in issues to do with individual employee disciplinary processes will respect the confidentiality and privacy of those processes”.
For employers, a lesson is to ensure that, when an employee requests a colleague as a support person, the colleague is clearly informed of the strict confidentiality of the process and then disciplinary measures can result if that confidence is breached. When an external support person is brought in, an employer may wish to request that person sign a brief confidentiality undertaking (even if just to re-emphasise the confidentiality of that process).
At Everingham Solomons, we have the resources and expertise to assist with issues in your workplace because Helping You is Our Business.
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It is very common to find restraint on competition clauses in commercial agreements such as employment contracts and business purchase agreements.
There is a very developed body of law in relation to restraint clauses in employment contracts. Essentially they are very difficult to enforce as they are scrutinised very carefully by Courts with the onus being on the employer to prove that they are reasonable and necessary to protect the employer’s legitimate interests. For that reason, employee restraints need to be very carefully and conservatively drafted. Broad probations on the employee trading in competition with the ex-employer are most unlikely to be successful.
In a purchase of business situation however anti-competitive restraints have traditionally been viewed more favourably by the Courts. If a purchaser has paid a large amount of money for the good will of a business, it is often reasonable that the purchaser be protected from future competition by the vendor which might diminish the value of what the purchaser has paid for.
A recent decision of the NSW Supreme Court in the case of “Then There Were Three Pty Ltd v Douglas” is a reminder that even in a purchase of business situation, restraints will be carefully considered with the onus still being upon the party seeking the protection of the restraint to prove that it is reasonable and necessary.
In that case, the vendor and purchaser to a share sale transaction had agreed to a restraint which even contained an express acknowledgement by the vendor that it was reasonable in all the circumstances. The purchase price was payable by instalments over a four year period with those instalments being subject to adjustment depending upon the financial performance of the business after completion and also the retention of a key employee. Ultimately the Court held that these other grounds for adjusting the purchase price made the restraint clause less important to the protection of what the purchaser had paid for and declined to enforce the restraint.
Proper drafting of restraint provisions and enforcement of them when necessary is a matter requiring expert advice.
At Everingham Solomons, we have the expertise to assist you in all issues relating to the drafting and enforcement of commercial contracts becauseHelping You is Our Business.
An interesting case arose recently in the High Court of Australia (‘HCA’) when a loyal employee took on his former employer, one of Australia’s largest banks.
Mr Barker had been employed by the Commonwealth Bank of Australia (CBA) for about 18 years in its financial services sector, which was being restructured.
On 2 March 2009, Mr Barker was told by his bosses that the bank had decided to make him redundant. The bank was going to try and find Mr Barker another suitable position within the bank (‘the redeployment’), but failing that, he would be terminated four weeks later (‘the notice period’). Mr Barker was told to spend the rest of the day cleaning out his desk, but not to return to work the following day, or for the remainder of the notice period. At the same time Mr Barker’s access to his work email account and his work voicemail messages was blocked.
On 20 March 2009, members of the bank’s management sent correspondence to Mr Barker’s work email, seeking to assist Mr Barker with the redeployment. Having no access to his work email, Mr Baker did not receive that correspondence until it was passed onto him later on 26 March 2009.
Having received notice of the possible redeployment initiative only days before his scheduled termination, Mr Barker argued that he had lost the chance to participate in the redeployment process.
Mr Barker was covered by a written employment contract (‘the contract’) and his termination had largely been conducted in accordance with it. Mr Barker argued however, that although it did not appear in the writing of the contract, the court should imply into the contract a term that the bank would maintain trust and confidence with [Mr Barker] (‘the term of trust’). Mr Barker further argued that, because of the failure on the bank’s behalf to properly notify him of the redeployment initiatives, the bank had breached the term of trust, which he asserted to be implied.
Mr Barker won his argument in front of a single Judge of the Federal Court of Australia (‘FCA’), but the bank appealed to the full court (seven Judges) of the FCA, where Mr Barker won again. The bank then appealed again to the High Court of Australia (‘HCA’), which is the last right of appeal in the Australian court system.
Mr Barker lost in the HCA. The HCA said that the term of trust could not be implied into the contract because it was not necessary for the contract to act effectively. The fact that such a term may have made the contract more reasonable, was not enough to force its implication.
If you have an employment law question, contact Everingham Solomons because Helping You is Our Business.
People change jobs for a variety of reasons, from not getting on with the boss to career advancement. Usually notice is given by the employee and they will work with their employer to train a replacement. But how should an employer react when an employee abandons their position?
Abandonment of employment arises where an employee:
is absent from work
without a reasonable excuse
for an unreasonable period of time
without having advised their employer why
The employee is, by their actions (or lack thereof), demonstrating an intention to no longer be bound by the terms of their contract of employment.
Abandonment of employment is a repudiation of the employment contract, however the contract isn’t terminated until the abandonment is accepted by the employer.
If you find your employee has gone “absent without leave”, employers should:
attempt to contact the employee (by phone, email or through work colleagues)
if contact cannot be made verbally, a letter should be sent to the employee’s home address by registered mail requesting the employee contact the employer as soon as possible
if the employee does not attempt to contact your office, or is unable to provide a satisfactory “excuse”, you must assume that the employee has abandoned their employment. The abandonment will be taken from the date the employee last attended work.
It is important for employers to note that:
an absence for a day or two cannot be considered abandonment (most Modern Awards provide that an absence of more than 3 days without consent is required)
if an employee’s leave application is unreasonably withheld, and the employee proceeds to take leave, abandonment does not apply
If you are an employer and you require assistance in determining whether you can terminate an employee for abandonment of their role, contact the employment Law team at Everingham Solomons where Helping You is Our Business.
With the temperatures rising, and Christmas just around the corner, the annual office Christmas parties are now in full swing.
For both employers and employees this presents a welcome relief from their yearly work commitments and a time in which an employer can show appreciation for the year’s hard work to their employees.
What should be remembered, however, is, put simply, the Christmas party is a ‘workplace’, regardless of when and where it is held.
Employers can be liable for the actions of their employees at work-related events, such as seminars, conferences, work functions and Christmas parties.
In the spirit of the season, Everingham Solomons now presents a ‘do’s and don’ts’ for both employees and employers for office Christmas parties.
Do’s
Turn up! It is a great opportunity to interact away from the office environment, it builds morale and strengthens relationships.
For employers, leading up to the Christmas party, remind your staff that it is a workplace event and that you expect their behavior to reflect this. Remind staff of any existing office policies and procedures, particularly in relation to sexual harassment and bullying.
As alcohol will normally be served at office events, employers should organize travel arrangements, such as a taxi or courtesy bus to ensure their employees get home safely.
Choose your karaoke song wisely.
Dust off your worst Christmas themed tie and wear with pride
Enjoy yourself and get to know your work colleagues in a more relaxed environment.
Don’ts
Employees and employers should refrain from posting photos of the Christmas party on social media to avoid embarrassing pictures of themselves or colleagues entering the Twitter-sphere!
Avoid religion and politics. These are hard topics to approach sober, but with a drink or two can lead to an inflamed situation.
Do not do something that you know you would not be allowed to do in the office. Remember the policies of bullying and harassment apply!
Do not harass your boss for a pay rise! The Christmas party, and a few drinks in, is not the time to campaign!
Know your limits. Alcohol will be served and you do not want to be “that guy” or “that girl”, your hard earned respect from colleagues can be eroded quickly.
For Employers do not dismiss a post-Christmas party complaint, take it seriously and investigate as you would an office incident.
Merry Christmas
Everingham Solomons wishes everyone a safe and merry Christmas and please don’t drink and drive.
Remember, an incident or dispute arising at or after a Christmas party where alcohol was served is not a valid defence or excuse.
From Terry Robinson and the Directors of Everingham Solomons
As a result of a decision by the Federal Court of NSW on 11 November 2014, workers in NSW are entitled to accrue annual leave whilst they are receiving weekly payments of compensation.
The case, NSW Nursing & Midwives Associations v Anglican Care [2014] FCCA 2580, involved a lady by the name of Ms Copas, who was receiving weekly payments of compensation as a result of a workplace injury for a number of years.
The question the Court had to answer was whether Ms Copas was entitled to accrue annual leave whilst she was not working and receiving weekly payments of compensation. Importantly, Ms Copas had not been terminated and was still an employee of Anglican Care.
Section 49 of the Workers Compensation Act 1987 provides that an injured worker is entitled to compensation even though they are entitled to holidays or long service leave. That has been long interpreted as allowing an injured worker to receive both, workers compensation payments and annual leave or long service leave, assuming the worker had annual leave or long service leave owing.
Section 130 of the Fair Work Act 2009 (Cth) provides that a worker is not entitled to take or accrue any leave if they were absent from work because of a personal injury or personal illness, unless the taking or accruing of leave is permitted by compensation law.
The Federal Court held that the NSW legislation is a ‘compensation law’ and that because of section 49 of the NSW legislation, it allows workers to accrue annual leave and long service leave throughout the period that they off work receiving weekly payments of compensation, and prior to them being terminated.
This decision has wide ranging consequences for both employers and employees, for both the past and future. As the decision is very recent, it may well be that there is an appeal to a higher court and the full ramifications take some time to filter through.
If you require any assistance in respect to these or other matters, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
We often have a business client or an individual come to see us with one or more mystery notices from the Australian Taxation Office, their bank or their creditors. The notices contain lots of small print, intimidating language and tight deadlines for action. Too often, days or even weeks have passed before we see the notices because they have been sent to the client’s accountant initially, which ís commonly the registered office for the company behind the business, or the client’s tax agent. Or, quite frequently as well, the notices have arrived and been put straight in the client’s “too hard” or “rainy day” basket.
The notices turn out to be Director Penalty Notices from the ATO (a precursor notice to directors of a company that the ATO intends to recover from them personally the company’s PAYG withholding and/or SGC liabilities), a formal demand from the bank before possession action is taken regarding mortgaged property, or a creditor’s statutory demand for payment of a debt. With the latter type of notice, the company behind the business will be presumed to be insolvent if the demand is not dealt with in the 21 day period. That can lead to winding up proceedings being brought against the company.
In short, these types of notices are serious and need to be actioned as soon as they are received. Advice from experienced professionals should be sought and lines of communication opened with the party that has issued the notice. Otherwise, the future of the business, the company or individual behind it, and the personal assets of the company’s directors can be put at risk.
Keep those “too hard” and “rainy day” baskets empty, and ensure you have a good understanding with the registered office for your company to get such notices to you as soon as possible.
There is always a solution that can be fashioned if such notices are acted on early and proactively. At Everingham Solomons we will work with you to find the solution because Helping You is Our Business.
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In our practice, we find that our business clients are increasingly focused on workplace matters – how they can effectively recruit, retain, train, manage and support their employees, while also keeping their employees healthy, safe, happy and productive. There can be many twists and turns, successes and mistakes in an employer’s journey with its workforce. There can also be some very difficult times – when an employee is injured or dies, suffers from a mental health issue, redundancies and dismissals, legal action around unfair dismissal and so on.
It is for all these “Workplace Matters” that we say “Workplace Matters”! Or at least it should for our region’s many employers.
On Wednesday, 15 October 2014, I will be joining Tania Thompson of Tania Thompson & Associates (an HR Consulting firm) and Greg Parkinson of Subsyst (a Work Health and Safety Consultancy) on an interactive Q & A panel as part of The Tamworth Toolbox series coordinated by the NSW Business Chamber. We will be answering your questions about Work, Health & Safety, Human Resources and Employee Relations.
Our goal is to have our region’s employers better understand their obligations and rights in relation to workplace matters.
We encourage you to join us from 12.00 pm to 1.00 pm next Wednesday, 15 October 2014 at The Pub, Gunnedah Road, Taminda.
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 Keiran Breckenridge.
Prior to a recent decision by the Full Federal Court of Australia in Anglican Care v NSW Nurses’ & Midwives’ Association [2015] FCAFC 81 (5 June 2015) employers often believed that whilst an employee was not at work and receiving weekly payments of compensation, they were not entitled to accrue annual leave.
