Shane Koelmeyer's Blog (233)

Turn around: What is proper notice of termination and when does the exception to redundancy pay apply?

The loss of client contracts can be devastating for businesses – it can also be par for the course.

Some employers operate exclusively on a continuous rotation of cycling client contracts won and lost regularly. Of course, this a perfectly reasonable way of conducting a business, but what does it mean for the employees engaged to perform work under those contracts?

What is the status of their employment if a client contract is lost? And what are their entitlements if their…


Added by Shane Koelmeyer on March 12, 2018 at 14:33 — No Comments

Don’t be so reckless: Work health safety prosecution update

Two recent work health and safety prosecutions highlight to employers the importance of following adopted safety plans and having regard to available guidance material when developing safety documents and the serious consequences for safety offences.

The harmonized work health and safety legislation creates three categories of offences, the most serious of which is a Category 1 offence, which attracts maximum penalties of 

  • $3 million for a…

Added by Shane Koelmeyer on March 12, 2018 at 14:30 — No Comments

Let’s keep it casual: “Casual” employee entitled to annual leave after 15 years of service

For roles that do not require fixed hours or only require staff “as needed”, hiring casual employees is a favoured option of many employers.

The benefit of hiring casual employees is that it provides both the employee and employer with flexibility. Casual employees are engaged to perform work on an ad-hoc basis and do not generally have fixed or regular hours, there is also no guarantee of ongoing employment and the employment relationship technically ends at the conclusion of each…


Added by Shane Koelmeyer on March 12, 2018 at 14:30 — No Comments

Frozen in time: Outdated yoghurt agreement terminated by the FWC

A teenage employee of a yoghurt shop has successfully applied to the Fair Work Commission (FWC) for the termination of a workplace collective agreement that was “out of step with the contemporary minimum standards set by modern awards”.

In a blog late last year, we discussed the process by which an enterprise agreement can be terminated. In short, the Fair Work Act 2009 (Cth) (FW Act) provides that, once the nominal expiry date of an…


Added by Shane Koelmeyer on March 8, 2018 at 14:25 — No Comments

Broken record (keeping): The importance of keeping employment records and providing pay slips

Record keeping - it’s not many people’s favourite pastime, but it is a critical task for every responsible employer.

Under the Fair Work Act 2009 (Cth) (FW Act), employers can be penalised for failing to keep proper records and for failing to issue their employees with pay slips in a timely manner.

The types of records that employers must keep include (but are not limited to) information about the position of the employee (e.g. commencement date and…


Added by Shane Koelmeyer on March 8, 2018 at 14:00 — No Comments

Extension tension: FWC to rehear extension of time application following Full Bench finding that partially unexplained delay not fatal to employee’s case

When responding to an unfair dismissal claim or an adverse action claim involving dismissal, there are a range of jurisdictional objections available to employers depending on the circumstances. One of the most frequently utilised jurisdictional objections is that the employee lodged their application outside the 21-day statutory time limit.

When this happens, the only option available to an employee who seeks to make an application out of time is to apply to the Fair Work Commission…


Added by Shane Koelmeyer on March 1, 2018 at 13:46 — No Comments

Tired and Sleepy: Worker’s car accident on journey home a reminder of managing fatigue

Fatigue has been identified as a workplace risk that needs to be managed like other workplace safety risks.

The SafeWork Australia Guide for Managing the Risk of Fatigue at Work (the Guide) defines fatigue as “a state of mental and/or physical exhaustion which reduces a person’s ability to perform work safely and effectively.” The Guide also identifies that some of the factors which may contribute to and increase the risk of fatigue include work…


Added by Shane Koelmeyer on March 1, 2018 at 11:45 — No Comments

One strike and you’re out: Facebook and Google’s new workplace dating policy

In a proactive attempt to combat the issue of workplace sexual harassment, Facebook and Google have implemented new policies on dating in the workplace. This new approach adopts a “one strike and you’re out” rule, which states that employees only have one opportunity to ask a co-worker out on a date. If the co-worker rejects their offer, that employee is not allowed to ask again.

Like Facebook and Google, most employers have recognised that workplaces are often environments in which…


Added by Shane Koelmeyer on February 23, 2018 at 15:00 — No Comments

Let me go: Voluntary redundancies prove too popular

Making a decision to restructure operations, particularly where it may result in a reduction in the number of positions, is not easy for businesses.

While it is often an unpleasant process, in some circumstances (depending on the nature of the workforce) employers may choose to call for expressions of interest for voluntary redundancies before moving to compulsory redundancies.…


Added by Shane Koelmeyer on February 23, 2018 at 14:18 — No Comments

The need for checks and balances on cheques and bank balances: Understanding and preventing employee financial misconduct

Financial misconduct committed by employees is unfortunately all too common in Australian businesses. It can range from invoice forgery to stealing from the register to abusing expense reimbursement entitlements or corporate credit cards.

Financial misconduct is, essentially, a form of theft from an employer but unlike most kinds of theft it can go undetected for long periods of time and in some cases, continue while the offender remains an employee.

This month alone, Fairfax…


Added by Shane Koelmeyer on February 23, 2018 at 14:12 — No Comments

The last straw: Assaulted worker denied access to workers comp for baiting and taunting co-worker to breaking point

In what circumstances must employees take responsibility for their own actions leading to injuries in the workplace?

In a recent decision of the Queensland Industrial Relations Commission (OneSteel Recycling Proprietary Limited v Workers’ Compensation Regulator [2017] QIRC 113), a self-insured employer’s decision to deny a worker’s workers compensation claim was upheld on the basis that the worker’s own serious and wilful misconduct lead to his injuries.

The worker,…


Added by Shane Koelmeyer on February 12, 2018 at 15:07 — No Comments

Living together in (im)perfect harmony: Redeployment not appropriate for employee who did not trust manager

Most employers have a clear understanding of the importance of cultural “fit” to having a happy and productive workforce. Questions about “fit” usually arise during the recruitment process, but are rarely addressed in circumstances involving redundancy and redeployment.

The requirement to implement redundancies usually results from an organisational restructure where an…


Added by Shane Koelmeyer on February 12, 2018 at 14:48 — No Comments

Well that escalated quickly: Worker’s aggressive response was a breach of Code of Conduct and warranted summary dismissal

Implementing a Code of Conduct is vital to establish and maintain expected standards of behaviour in the workplace. In our previous blog Oh Behave!: What is a workplace Code of Conduct? we discussed the typical content of a Code of Conduct and how to utilise this Code to uphold the values of the organisation and provide a behavioural framework in the…


Added by Shane Koelmeyer on February 12, 2018 at 14:00 — No Comments

New rules: Australian States move toward licenses for labour hire operators

Licensing schemes for labour hire operators will commence operation in both Queensland and South Australia in the first half of 2018, with the Victorian Government also introducing legislation into the State Parliament.

The licensing schemes will commence in South Australia from 1 March 2018 and from 16 April 2018 in Queensland, while the Labour Hire Licensing Bill 2017 is currently before the Victorian Parliament.

These legislative measures have been introduced to…


Added by Shane Koelmeyer on February 5, 2018 at 12:57 — No Comments

I’m free, to drive when I want, any old time: FWC finds Uber driver not employee

There can be no doubt that the emergence of the “gig economy” has changed the way we work and is challenging our understanding of the employment relationship.

Since its launch in 2009, Uber has been at the centre of many debates about the gig economy and the characterisation of workers as either employees or independent contractors. Internationally, the status of Uber drivers has played out in several courts and tribunals, with findings on both sides of the aisle according to local…


Added by Shane Koelmeyer on February 5, 2018 at 12:45 — No Comments

The balancing act: Positive discrimination in the workplace

Across the world, issues of equality and justice have taken centre stage recently. We are experiencing a time of increased awareness about the need to redress past discrimination and prejudice towards many minority groups.  

In the employment context, that impact of discrimination and prejudice is most clear when looking at the under-representation of certain groups in particular industries and positions. In response, many employers are making it a goal to rectify those imbalances…


Added by Shane Koelmeyer on February 5, 2018 at 12:00 — No Comments

No Vacancy: Employee’s drunken attempt to re-enter workplace warranted dismissal

An employer who relied on their zero-tolerance alcohol policy when dismissing an employee who drunkenly tried to access the workplace out-of-hours has successfully defended the dismissal before the Fair Work Commission (FWC).

In Lewer v Inco Ships T/A Inco Ships Pty Ltd [2017] FWC 6666, the FWC heard that an employee, who worked on a tanking vessel, attempted to re-enter the vessel after dinner and a few drinks so that he could sleep-off the alcohol. When he…


Added by Shane Koelmeyer on January 10, 2018 at 13:24 — No Comments

Lawful but not reasonable: Employer unreasonably ends Bryon Bay “work from home” arrangement

Employees have an implied duty to obey their employer’s reasonable and lawful directions. Whilst employers cannot direct an employee to engage in conduct which is unlawful, the reasonableness of an employer’s direction will depend on the individual circumstances.

In Parkes v Fat Prophets Pty Ltd [2017] FWC 6121, the Fair Work Commission (FWC) held that an employer’s “unreasonable ultimatum” to an employee that he relocate to Sydney or lose his job was a…


Added by Shane Koelmeyer on January 10, 2018 at 13:13 — No Comments

Puddle trouble: $275,000 damages bill flows from shallow puddle injury

In a recent decision of the Victorian County Court, a university has been ordered to pay $275,000 in damages to a security control room operator who worked on the university campus (Savage v Monash University and Programmed Maintenance Services Ltd [2017] VCC 1774).

The control room operator was walking from her car to the security control room in steel capped boots when she stepped through a puddle onto the uneven surface below and injured her ankle. The ankle injury…


Added by Shane Koelmeyer on January 10, 2018 at 12:54 — No Comments

I can show you the world – Misleading and deceptive conduct in recruitment

During the recruitment process, employers want to present their best side to prospective employees in order to entice top talent to join them. Employers can potentially expose themselves to litigation for representations made or made on their behalf that are misleading and deceptive and later relied upon by prospective employees in the recruitment process. 

The Australian Consumer Law (ACL) provides that it is illegal for a business to engage in conduct that…


Added by Shane Koelmeyer on January 10, 2018 at 12:30 — No Comments

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