Shane Koelmeyer's Blog (399)

Consult, co-ordinate and co-operate: SafeWork NSW successfully prosecutes a PCBU for failing its consultation obligations with other duty holders

Persons conducting a business or undertaking (PCBUs) have a range of positive duties and obligations to ensure the health and safety of workers under the model work health and safety laws in Australia. These duties and obligations can at times be forgotten, especially when PCBUs are engaged in complex work arrangements that involve a number of duty holders.

In such cases, PCBUs must be aware of the duties they bear, such as the consultation obligation which requires a…


Added by Shane Koelmeyer on February 24, 2021 at 9:10 — No Comments

Sexual harassment and work health and safety – New guidance material released by Safe Work Australia

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful. Under sex discrimination legislation, such as the Sex Discrimination Act 1984 (Cth), employers are obligated to ensure that workplaces are free from sexual harassment and can be held vicariously liable for the unlawful acts of their employees.

New guidance material has been…


Added by Shane Koelmeyer on February 24, 2021 at 9:00 — No Comments

Less is more: Fair Work Commission critical of investigation process despite the employer’s valid reason for dismissal

Employers often see the disciplinary process as an opportunity to raise every single indiscretion by an employee – even though the issues occurred in the past or are minor in nature when compared to other misconduct. However, this approach can weaken the employer’s position, rather than strengthen the decision to dismiss.

In Lupson v Australian Pacific Airports (Melbourne) Pty Ltd [2020] FWC 6721, the Fair Work Commission (FWC) was critical of an employer’s…


Added by Shane Koelmeyer on February 10, 2021 at 15:03 — No Comments

Fine following workplace fatality quadrupled following government intervention

Work health and safety legislation in Australia places significant duties and obligations on persons conducting a business or undertaking (PCBU) to ensure the health and safety of workers. These duties and obligations, and the penalties for non-compliance, are intended to reflect the serious harm that could be suffered by workers at work and to act as deterrents to employer staking shortcuts when it comes to health and safety.

PCBUs must have the correct processes and…


Added by Shane Koelmeyer on February 3, 2021 at 11:01 — No Comments

The daily commute: Fair Work Commission accepts that role with additional travel time was acceptable redeployment employment

Employers have long known that they are obliged to try to find new employment opportunities for employees who are faced with the redundancy of their current role.  This might include redeployment within the employer or its related companies, or finding employment with a third party.

Despite employers’ best efforts to preserve employment, from time-to-time disputes arise when employees would rather have redundancy pay than a new role – or where the new role is not an adequate…


Added by Shane Koelmeyer on January 22, 2021 at 9:00 — No Comments

Put your records on: Court penalises accountant for involvement in employer's failure to keep employee records

The Fair Work Regulations 2009 (Cth) (FW Regulations) impose a number of obligations on employers with respect to the making and keeping of employee records and pay slips.

The FW Regulations set out what records an employer is required to hold and the period for which they must be…


Added by Shane Koelmeyer on November 17, 2020 at 9:18 — No Comments

Construction Zone: FWC upholds objection to constructive dismissal claim

In order to access the unfair dismissal jurisdiction, an employee must be “dismissed” from their employment by the employer. One of the instances in which an employee may be “dismissed” from their employment is if they were forced to resign because of the employer’s conduct or course of conduct. This is referred to as “constructive dismissal”.

This can often be a contentious issue as employees may perceive that…


Added by Shane Koelmeyer on November 17, 2020 at 9:15 — No Comments

It's on you: The onus and presumption in adverse action matters

Under the general protections provisions in the Fair Work Act 2009 (Cth) (FW Act), it is unlawful for a person to take adverse action against another person for a proscribed reason.

One of the features of the general protections provisions under the FW Act is the presumption that…


Added by Shane Koelmeyer on November 17, 2020 at 9:13 — No Comments

In your letter: Termination of employment letters

A termination of employment letter serves a significant purpose in bringing the employment relationship to an end.

Termination letters are frequently relied upon by employers and employees alike when a claim for unfair dismissal is made. Given their tendency to arise in legal proceedings, it is important that these documents are correct, provide as much detail as possible and meet the requirements under the Fair Work Act 2009 (Cth) (FW…


Added by Shane Koelmeyer on October 15, 2020 at 10:01 — No Comments

Put it in writing: Notice of termination in the employment contract

When it comes to engaging new employees or promoting existing employees, it is crucial that employers prepare and review contracts of employment to ensure that they accurately reflect the terms which will govern an employee’s employment.

Standard clauses, such as clauses providing notice of termination, can easily be overlooked. This can be a critical error because, in the absence of a contract or certain clauses within a contract, a court will imply those terms. For example,…


Added by Shane Koelmeyer on October 15, 2020 at 9:49 — No Comments

Draw the line: Managing employee conduct and behaviour in the workplace

Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.

In claims…

Added by Shane Koelmeyer on August 11, 2020 at 17:08 — No Comments

All in good fun: Company vicariously liable for injury resulting from skylarking supervisor

Enjoying the company of your colleagues is something most people hope to find in the workplace. It can make work much more enjoyable and lead to lasting friendships. However, fun in the workplace can cross a line when it takes the form of dangerous skylarking or roughhousing.

Dangerous behaviour by colleagues can pose…

Added by Shane Koelmeyer on August 11, 2020 at 17:01 — No Comments

Below not above: Salary reduction brought employee under high income threshold

The COVID-19 (coronavirus) pandemic has significantly impacted the financial stability of many businesses. Employers have had to make difficult decisions and implement different measures to ensure the ongoing viability of their businesses. Some of these measures have included asking employees to agree to temporary reductions in their hours of work or to a reduction in their remuneration.…

Added by Shane Koelmeyer on August 11, 2020 at 16:51 — No Comments

Relationship status: It’s complicated - Understanding your contract in eSports and gaming

Being offered, or offering a person, a new opportunity in the gaming or eSports industry can be incredibly exciting. 

Everyone is looking to the road ahead and enthusiastically imagining a long and fruitful relationship. Gamers are understandably keen to get the work or training underway but, in that excitement, can…

Added by Shane Koelmeyer on July 21, 2020 at 13:16 — No Comments

Patience, you must have: FWC upholds safety-related dismissal of employee given multiple chances

The Fair Work Commission’s (FWC’s) recent decision in Hafsteins v Correct Installs Pty Ltd [2020] FWC 2729 has showcased a “patient” employer’s handling of an employee’s numerous workplace health and safety breaches. 

The employee was employed at a racking and storage system installation…

Added by Shane Koelmeyer on July 21, 2020 at 13:05 — No Comments

Bus money: FWC upholds dismissal of employee who borrowed money from bus passenger

Out of hours conduct and its impact on the employment relationship is always a hotly debated topic – particularly between employers and their employees.

Many employees hold the belief that their conduct outside of work is entirely irrelevant to their employment. However, this is not always the case as recently…

Added by Shane Koelmeyer on July 14, 2020 at 15:36 — No Comments

Brisbane company first to be convicted of industrial manslaughter

Workplace fatalities are tragic and devastating events. In order to reflect the seriousness of these incidents, some jurisdictions across Australia have amended their work health and safety laws to establish the offence of industrial manslaughter, where the negligent conduct by a person conducting a business or undertaking (PCBU) or officers causes the death of a worker.…

Added by Shane Koelmeyer on July 14, 2020 at 15:30 — No Comments

The probation myth: Probation and the "minimum employment period" in the Fair Work Act 2009 (Cth)

There is a common misconception that probationary periods allow an employer to dismiss an employee for any reason (or for no reason at all) prior to the confirmation of their employment. This is not necessarily the case and, in fact, there is no statutory basis that entitles an employer and an employee to a probationary period.…

Added by Shane Koelmeyer on July 14, 2020 at 15:00 — No Comments

A-League club facing adverse action claim in Court

It is sometimes forgotten that sporting clubs and organisations are employers who are also subject to workplace laws and regulations in relation to their employees.

In a stark reminder that sporting clubs and organisations are not exempt from the rules, the former team manager of Western United has commenced…

Added by Shane Koelmeyer on June 22, 2020 at 10:51 — No Comments

No competition: Conflicts of interest in the employment relationship

Many standard employment contracts contain a clause that addresses an employee’s obligations in relation to secondary employment and conflicts of interest. The obligation is generally that an employee will not act in a manner that conflicts with the interests of their employer or their duties as an employee. This contractual obligation is reflective of the common law duty that an employee must not engage in conduct that is incompatible with their duties to…

Added by Shane Koelmeyer on June 22, 2020 at 10:42 — No Comments

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