Shane Koelmeyer's Blog (118)

It is all in the flexicution: Flexible working arrangements

What does an employer do in circumstances where it has granted flexible working arrangements and it is no longer able to accommodate the employee? 

The NSW Industrial Relations Commission (NSW IRC) in Construction Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local…


Added by Shane Koelmeyer on February 22, 2017 at 15:18 — No Comments

That’s my pejorative – Ethnic slurs in the workplace

All employers should be aware that discrimination in the workplace on the basis of a “protected attribute” is unlawful. For example, Australia’s anti-discrimination legislation provides that it is unlawful to discriminate on the basis of “race.”

Significantly, however, the legislation extends beyond “race”: the Racial Discrimination Act 1975…


Added by Shane Koelmeyer on February 22, 2017 at 15:14 — No Comments

Appeal dismissed – Investigation letters issued to ill employee not a breach of duty of care

In Govier v UnitingCare Community [2017] QCA 12, an employee’s appeal was dismissed, confirming an earlier decision that her employer did not breach any duty of care when it issued letters to the employee in the course of an investigation, resulting in aggravation of her psychiatric conditions.

The employee in this case was a disability worker…


Added by Shane Koelmeyer on February 22, 2017 at 15:00 — No Comments

Employer Alert: New Deadline for Building Code Compliance

Employers seeking to undertake Commonwealth funded building and construction work will be required to ensure that their enterprise agreements comply with the 2016 Building Code by 31 August 2017 under a new Bill introduced in Federal Parliament.

The Code for Tendering and Performance of Building Work 2016 (the 2016 Code) requires all…


Added by Shane Koelmeyer on February 17, 2017 at 8:22 — No Comments

The Intern: Study finds over 500,000 people are participating in illegal unpaid work experience

When it comes to unpaid work experience, the question to be asked is, “Is it legal?”

In a recent study commissioned by the Commonwealth Department of Employment, it was found that in the last five years there were over half a million Australians engaged in (or who were engaged in) unlawful work experience. …


Added by Shane Koelmeyer on February 17, 2017 at 8:16 — No Comments

The punishment did not fit the crime: FWC awards maximum compensation to dismissed employee who stole company property

A Qantas flight attendant (the Applicant) who was sacked for stealing alcohol from a flight and lying about it was awarded $33,731 in compensation by the Fair Work Commission (FWC) after it found that the decision to terminate the Applicant’s employment was harsh.

The FWC concluded that the Applicant was dismissed because he stole…


Added by Shane Koelmeyer on December 12, 2016 at 12:00 — No Comments

Home Improvements: Dreamworld issued with 10 improvement and prohibition notices by WHS Queensland

Since the tragic events of October this year, Queensland theme park Dreamworld has come under intense scrutiny from the public, the media and a range of investigative bodies. The park gates have remained closed to guests over recent weeks while investigations and audits of the park’s facilities and processes have been conducted.

One such agency…


Added by Shane Koelmeyer on December 7, 2016 at 15:40 — No Comments

Copy and paste: Employee admits to copying and accessing former employer’s confidential information

SAI Global Property Division Pty Ltd v Johnstone [2016] FCA 1333

Employees have ready access to their employer’s confidential information during the course of their employment. For an employee, this information is important in order to carry out their duties but for an exiting employee, they may be tempted to improperly retain confidential…


Added by Shane Koelmeyer on December 7, 2016 at 15:34 — No Comments

Licence to labour hire: Victorian Government explores licensing system for labour hire companies

Underpayment and sham contracting in the labour supply chain has been the focus of much of the Fair Work Ombudsman’s (FWO) and the media’s attention this year.

The FWO has conducted a number of campaigns and inquiries into industries where the use of labour hire and independent contractors is prevalent.  In some circumstances, it has taken…


Added by Shane Koelmeyer on December 5, 2016 at 12:43 — No Comments

“Inadequate” WHS penalty increased seven-fold on appeal

In June this year, a Victorian textiles company was fined $7,000 for breaching work health and safety laws when a subcontractor truck driver was floored by a 185kg bale of wool. In an appeal of that decision earlier this month, the County Court of Victoria increased the penalty to $50,000 when the Office of Public Prosecutions successfully argued that the $7,000 fine was inadequate.…


Added by Shane Koelmeyer on December 5, 2016 at 12:30 — No Comments

Use it or lose it: Terminating employment and police investigations

The decision of the Fair Work Commission (the Commission) in NW v Taitung Australia Pty Ltd [2016] FWC 7982 reminds employers of the requirement to act quickly where an employee has been found guilty of serious misconduct even if the matter is the subject of a police investigation.

NW was working as a delivery driver for an Asian…


Added by Shane Koelmeyer on December 2, 2016 at 12:03 — No Comments

Significant decision case study: FroYo master franchisor penalised for involvement in workplace law contraventions


Yogurberry World Square Pty Ltd (Yogurberry World Square) operated a take-away frozen yoghurt and drinks franchise in World Square, Sydney.

Yogurberry World Square was a member of a group of family of companies including a payroll…


Added by Shane Koelmeyer on November 24, 2016 at 14:30 — No Comments

World in Motion: FWC clarifies status of volunteer coaches

The Fair Work Act 2009 (Cth) (FW Act) provides a protection from unfair dismissal and permits an application to be made for remedy. In our previous blog Objection! – Access to the Unfair Dismissal Jurisdiction we outlined some of the jurisdictional objections that can be raised by an…


Added by Shane Koelmeyer on November 17, 2016 at 16:01 — No Comments

Shamming it up – Cleaners misclassified as independent contractors back paid $1.9 million

Earlier this month, the Fair Work Ombudsman (FWO) announced that cleaners working at hotels run by Oaks Hotels & Resorts Limited (Oaks), a major operator of more than 43 properties across Australia, have been back paid a total of $1.9 million.

This significant back payment followed a FWO inquiry earlier this year which resulted in…


Added by Shane Koelmeyer on November 17, 2016 at 15:46 — No Comments

Small business matters: Procedural problems did not make dismissal unfair

The Fair Work Commission’s (FWC) recent decision in CA v Lane Cove Retirement Units Association Ltd t/as Pottery Gardens Retirement Village [2016] FWC 7504 put the small business fair dismissal code (the Code) in the spotlight.

Since the Code came into effect in 2010, there have been varied responses from the FWC decisions about the Code.  Some decisions have criticised the Code, with some…


Added by Shane Koelmeyer on November 9, 2016 at 16:00 — No Comments

You’re making me angry! – FWC confirms dismissal of hot-headed employees

The Fair Work Commission (FWC) has recently handed down two separate decisions confirming that angry and aggressive conduct in the workplace will provide an employer with a valid reason or reasonable grounds (as per the Small Business Dismissal Code) for terminating an employee’s employment.

WK v Advantage…


Added by Shane Koelmeyer on November 9, 2016 at 15:50 — No Comments

Pick and pay: FWO crackdown on piecework rates

This month the Fair Work Ombudsman (FWO) launched unprecedented legal action in the Federal Court against a large mushroom farm that paid hundreds of its employees based on how much they picked at a rate of 60 to 80 cents per kilogram.  It is alleged that the employees had been exploited and underpaid almost $650,000 in eight months.



Added by Shane Koelmeyer on November 3, 2016 at 13:46 — No Comments

We’ve hit the jackpot! - Workplace lotto syndicates and bullying

Recently it was reported that a Sydney factory employee applied to the NSW Supreme Court in an attempt to claim a share of the $40 million jackpot, won by 14 employees of a cable manufacturer in Liverpool. 

When the employee realised that the winning numbers had come up, the employee approached the syndicate organiser who advised him that he was not…


Added by Shane Koelmeyer on November 3, 2016 at 13:30 — No Comments

One size does not fit all: Is your investigation process flexible enough?

In our previous blog - Conducting Investigations: Are you in or out? we discussed internal and external investigations. The Queensland Industrial Relations Commission (QIRC)’s decision in East Coast Pipeline Pty Ltd v Workers Compensation Regulator [2016] QIRC 101 (East Coast Case) suggests to employers…


Added by Shane Koelmeyer on October 31, 2016 at 11:00 — No Comments

Clarity: FWC decision reminds employers about the need to be clear about termination dates

Fair Work Commission’s (FWC) Full Bench decision in Mohammed Ayub v NSW Trains [2016] FWCFB 5500 (Ayub Case) is a good reminder for employers about the need for clarity with respect to termination of employment and in particular when a termination is to take effect.    

Mr Ayub lodged an application for unfair dismissal and there was a dispute between the parties as to the correct date of termination of employment.  This was significant in terms of determining…


Added by Shane Koelmeyer on October 31, 2016 at 10:47 — No Comments

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