Shane Koelmeyer's Blog (166)

An induction on deductions from employees’ pay

Student accommodation provider UniLodge faced reports this month that it deducted a total amount of $74,336.00 for “rent” over the period October 2011 to April 2016 from the combined salary of two of its onsite caretakers.

The husband and wife caretakers claimed that they were paid a total of $85,784.40 gross over the same period, despite being…

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Added by Shane Koelmeyer on July 20, 2017 at 16:08 — No Comments

“O Captain! My Captain!” – Not a vindication, but dismissal was harsh: FWC says captain who failed employer’s alcohol test was unfairly dismissed

Setting policies and procedures for the effective management of drugs and alcohol in the workplace is important, particularly for safety critical industries.

The overarching goal of such policies and procedures is to ensure employees do not show up for work in an impaired state and place themselves, other employees or their employer’s business at…

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Added by Shane Koelmeyer on July 20, 2017 at 15:50 — No Comments

“Because I said so …” The causal link between adverse action and workplace rights

The general protections provisions of the Fair Work Act 2009 (Cth) (FW Act) aim to protect employees from adverse action (including dismissal) because of a proscribed reason. Proscribed reasons include the existence of a workplace right and the exercise (or failure to exercise) a workplace right.

By way of example, an employee has a…

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Added by Shane Koelmeyer on July 20, 2017 at 15:30 — No Comments

“You shall not pass!” Jurisdictional objections in unfair dismissal claims

When an employer receives notice from the Fair Work Commission (FWC) of an unfair dismissal claim, the first question they should ask is – does the FWC have jurisdiction to hear the matter? 

There are numerous circumstances in which the FWC may not have jurisdiction and/or in which an applicant may not be eligible to make a claim to the FWC.…

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Added by Shane Koelmeyer on July 14, 2017 at 14:55 — No Comments

Called out in the Commission: Employee ordered to pay employer’s legal costs

In a rare decision by the Fair Work Commission (FWC), an employee has been ordered to pay her former employer’s legal costs after it held that the employee’s application had no prospects of success, was without basis and was an abuse of process.

Costs under the Fair Work Act 2009 (Cth)…

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Added by Shane Koelmeyer on July 14, 2017 at 12:51 — No Comments

“Let me make one thing perfectly clear …” FWC’s practical approach to notice of termination

Earlier this year, we discussed the importance of providing specific written notice of termination to an employee (see our blog: Two Weeks’ Notice: What are the requirements for notice of termination?) in accordance with section 117 of the Fair Work Act 2009 (Cth) (FW Act).

Section 117(1) of the FW Act states that, an employer must not terminate an employee’s employment unless,…

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Added by Shane Koelmeyer on July 10, 2017 at 14:42 — No Comments

Claiming a pizza the action – FWC lacks jurisdiction to deal with dispute about Delivery Driver of the Year

Reward and recognition programs are a great way to incentivise employees to work that little bit harder. Often these programs take the form of friendly, employer-sponsored competitions between employees where the winner takes home a prize.

These in-house competitions are generally run at the employer’s discretion and it maintains control over the…

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Added by Shane Koelmeyer on July 10, 2017 at 14:26 — No Comments

It’s going viral: E-medical certificates

The colder weather marks the start of the cold and flu season where a cough or sneeze starting from one person quickly spreads throughout the whole office. The season also creates challenges for employers who may have to manage a dwindling workforce where employees (or their family members) may be struck down with an illness and need to take personal (sick) / carers leave.…

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Added by Shane Koelmeyer on July 5, 2017 at 15:56 — No Comments

And the award goes to... FWC finds high income earner covered by modern award

Identifying correct Modern Award coverage and classification can be challenging at the best of times and getting it wrong can have serious consequences. It is well understood that misclassifying employees can impact on rates of pay and result in underpayment claims, but employers sometimes forget that employees who are paid well above modern award base rates of pay can still be covered by a modern award for other purposes,…

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Added by Shane Koelmeyer on July 5, 2017 at 15:30 — No Comments

Under new management: Reasonable management action and psychological injuries

Workers compensation legislation in each jurisdiction provides a “reasonable management action” defence or exception to claims of alleged psychological injury. The defence states that where an employee suffers a psychological injury as the result of management action, the employer will not be liable for that injury if the management action was reasonable and carried out in a reasonable manner.…

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Added by Shane Koelmeyer on July 5, 2017 at 15:26 — No Comments

Can an employer be liable for employee misbehaviour on social media?

A recent civil law suit filed in the US is set to examine how an employer might be liable for an employee’s conduct on social media. The suit alleges the employer is liable for the actions and damage caused by a managing director who used his LinkedIn account for official recruiting purposes but eventually began sending unsolicited and inappropriate (e.g. sexual) messages to a prospective employee.…

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Added by Shane Koelmeyer on July 5, 2017 at 15:00 — No Comments

Uber eX-employee sparks reform of company culture

Uber Technologies now appears to be undergoing a major remodel of its workplace environment, including the dismissal of 20 employees and the departure of CEO, Travis Kalanick, following a self-imposed investigation into the culture of the eight-year old company.  

A fiery blog post by an ex-employee of the popular ride-hailing service was the trigger…

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Added by Shane Koelmeyer on June 22, 2017 at 17:22 — No Comments

Family Portrait: FWC issues interim stop bullying order for family run business

Workplace bullying can often have a significant impact on workplace morale; however it can become compounded when the bullying occurs in small family run businesses where anti-bullying policies and procedures may not be in place.

This is the circumstance that the Fair Work Commission (FWC) recently considered when determining to make, by…

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Added by Shane Koelmeyer on June 22, 2017 at 17:16 — No Comments

It’s a crying sham: Cleaning company engaged in sham contracting ordered to pay over $660,000

Sham contracting and the exploitation of vulnerable workers have been hot topics recently following a series of high profile cases including the likes of 7Eleven, Baiada Poultry and Quest Serviced Apartments. The Fair Work Ombudsman (FWO) continues its crusade, investigating and litigating claims related to worker exploitation in supply chain arrangements.…

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Added by Shane Koelmeyer on June 22, 2017 at 17:06 — No Comments

I’m sorry, Dave. I’m afraid I can’t do that: Can a computer be the decision-maker in an adverse action decision?

There is no doubt that human resources information systems (HRIS) have changed the face of HR.

A good HRIS makes onboarding and compliance easier and can provide real-time data on an organisation’s workforce.

As reported this month in HRM Magazine, Futurist Chris Riddell…

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Added by Shane Koelmeyer on June 15, 2017 at 16:30 — No Comments

I like to move it (move it): Relocation & Redundancy

The issue of relocating employees from one location to another arises when a business is restructuring, when a site closes down, or when a business decides to move its operations. 

A recent decision of the Fair Work Commission (FWC) considered the issues of relocation, redundancy and unfair dismissal. …

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Added by Shane Koelmeyer on June 15, 2017 at 16:00 — No Comments

State of Play: Cricket Australia and NRL Industrial Disputes

Recently, there has been intense focus in the media on two of Australia’s top sporting codes and their negotiations for new pay deals. The threats of strikes and boycotts highlight why it is important to have and maintain good communication between the parties in the collective bargaining process.

Cricket…

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Added by Shane Koelmeyer on June 15, 2017 at 15:30 — No Comments

99 Problems and Agreement Drafting is one

Earlier this month, the Fair Work Commission (FWC) Full Bench handed down its decision in relation to an application to deal with a dispute in accordance with the dispute settlement procedure in the Kentz Pty Ltd Ichthys Onshore Construction Greenfields Agreement (the EBA).  This decision was an appeal of an earlier decision by Commissioner Bissett with respect to the interpretation of clause 19 of the EBA…

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Added by Shane Koelmeyer on June 1, 2017 at 12:59 — No Comments

Super funds not super fun – Employer non-compliance with the superannuation guarantee

Earlier this month, the Senate Economics References Committee (the Committee) released its report on non-compliance with superannuation guarantee legislation in Australia. The report, titled “Superbad – Wage theft and non-compliance of the Superannuation Guarantee”, documents the findings of the Committee’s inquiry and makes recommendations for changes to the law and initiatives run by government agencies to deal…

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Added by Shane Koelmeyer on June 1, 2017 at 12:49 — No Comments

Just one look: Employees’ access to personal information

Just one look... or in the case for one former job centre employee, thirty five unauthorised “looks” at an ex-lover’s job seeker profile.

It was recently reported in the media that an employee who worked for a job services provider was convicted of criminal offences for accessing restricted data without authorisation.…

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Added by Shane Koelmeyer on June 1, 2017 at 12:35 — No Comments

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