Shane Koelmeyer's Blog (280)

PCBU fined $375,000 following death of turf stacker

In yet another decision resulting from a tragic workplace safety incident, an employer has been fined $375,000 after one of its workers was fatally crushed by a turf harvester being driven by a co-worker.

In SafeWork NSW v Turfco Australia Pty Ltd [2018] NSWDC 191, the Court heard that, at the time of the incident, Turfco had in place a ‘hop-off’ system used by its workers that was contrary to its own operator’s manual.

Turfco is engaged in the growing, harvesting and…


Added by Shane Koelmeyer on August 17, 2018 at 16:28 — No Comments

Deficient work practices resulted in ladder fall death

In SafeWork NSW v Li [2018] NSWDC 189 the NSW District Court convicted a person conducting a business or undertaking (PCBU) of failing to comply with a health and safety duty after a worker died following a fall from a ladder as a result of a poor system of work.

Mr Li, who traded as Apple Electronic Security, operated a business that involved installing security systems. In June 2016, Mr Li was engaged by a smash repair business to install seven security…


Added by Shane Koelmeyer on August 17, 2018 at 16:25 — No Comments

A moving experience – what to expect and what to consider when relocating Part 1

Down-sizing, upgrading, outgrowing and restructuring – change in the life-cycle of a business is inevitable and changes in size and operational needs often demand a relocation.

Relocating a business is a huge logistical challenge in itself and as a result, it’s not uncommon for the employment and HR aspects of a relocation to become secondary considerations.

In this two-part blog, we outline some of those key considerations and touch on a few issues that HR, managers and…


Added by Shane Koelmeyer on August 17, 2018 at 16:21 — No Comments

Are you ready (willing and able) for it? When employees are unable to perform their contractual duties

One of the fundamental principles of the employment relationship is the work-wages bargain – an employer pays an employee wages in exchange for work performed. The work-wages bargain assumes that employees are ready, willing and able to perform the work requested of them by the employer. This assumption is challenged when an employee is unable to perform the required work because of some limitation such as the loss (or suspension) of an essential qualification such as a driver’s…


Added by Shane Koelmeyer on August 13, 2018 at 10:47 — No Comments

Flight of fancy – flight attendant’s claim that excessive drinking was not his fault rejected by FWC in unfair dismissal case

In Urso v QF Cabin Crew Australia Pty Limited T/A QCCA [2018] FWC 4436 the Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.

The flight attendant was scheduled to operate a seven-day flight pattern of Brisbane-Los Angeles-New York-Los Angeles-Brisbane.

After arriving in New York, the flight attendant visited a bar with another employee. The…


Added by Shane Koelmeyer on August 13, 2018 at 10:46 — No Comments

Cecchin in on your employees: Managing mental health in the workplace

The recent decision by one of the National Rugby League’s (NRL’s) leading referees to retire at the end of the 2018 season has (again) prompted discussion about the obligations of employers when managing mental health in the workplace.

For some time now, Matt Cecchin has bravely spoken publicly about the extreme pressures of his job and their effect on his mental health. To summarise, in 2017, Cecchin revealed that he had almost feigned an injury because he felt too…


Added by Shane Koelmeyer on August 13, 2018 at 10:40 — No Comments

The fine cut: Small Business Employers and Anti-Discrimination Legislation

Small businesses have a litany of rules, regulations and red tape they are required to comply with, including registration and tax compliance, employee minimum entitlements, fair trading, work health and safety and privacy obligations.

Small businesses are also subject to anti-discrimination legislation which prohibits direct and indirect discrimination on the basis of a protected attribute. Australia’s federal anti-discrimination legislation prevents discrimination on the basis…


Added by Shane Koelmeyer on August 6, 2018 at 9:43 — No Comments

And a Step to the Right – Coles loses appeal of $1 million claim for safety step injury

The ACT Court of Appeal has dismissed an appeal by Coles Supermarkets and confirmed an earlier decision in which a Coles employee was awarded more than $1 million in damages after she injured her right hip in a fall after stepping sideways down from a safety step (Coles Supermarkets Australia Pty Ltd v Harris [2018] ACTCA 25).

The employee claimed that she was not trained in the proper use of the safety step and was not told by Coles that she should step backwards down from…


Added by Shane Koelmeyer on August 6, 2018 at 9:41 — No Comments

Size doesn’t matter – Dismissed employee compensated despite vulgar language

A small business employer’s “disgraceful and grossly unfair” dismissal process has cost it over $10,000 in compensation, despite the Fair Work Commission (FWC) finding the dismissed employee had used language “so grossly vulgar” that it would have been sufficient grounds for his summary dismissal.

In Trialonas v Steric Solutions Pty Ltd [2018] FWC 3996, the FWC was required to consider the summary dismissal of a yard hand who had been employed with Steric…


Added by Shane Koelmeyer on August 6, 2018 at 9:39 — No Comments

The truth Hertz: Vehicle services attendant dismissed for lying on his CV

Employers are often required to exercise a significant degree of trust and reliance in job candidates, believing that they will be truthful in recruitment processes. Whilst it is good practice for employers to double-check a job candidate’s qualifications and experience prior to making an offer of employment, the reality is that information provided in a curriculum vitae or an interview will be relied upon by an employer when considering who to recruit.

For employers, the consequences…


Added by Shane Koelmeyer on July 16, 2018 at 9:16 — No Comments

Checking it twice: the importance of pre-employment and reference checking in recruitment

The applications have closed, the interviews are conducted and you think you have your ideal candidate– but HR tells you that you cannot make an offer until pre-employment and reference checking is conducted.

For some, pre-employment and reference checking may be considered a needless step which creates additional administrative burden – particularly when an employer has their candidate ready and able to start. However, conducting pre-employment and reference checks may turn out to be…


Added by Shane Koelmeyer on July 16, 2018 at 9:15 — No Comments

You say it best when you say nothing at all – The risks of providing unfavourable or false references

Providing references to prospective new employers about employees can be a tricky business. There are range of important considerations for those delivering references to take into account and often conflicting interests can creep into the equation.

Common concerns include:

  • The risks of providing an unfavourable reference;
  • The risks of giving an exaggeratedly favourable reference;
  • How much information to give away;
  • The impulses of managers to…

Added by Shane Koelmeyer on July 16, 2018 at 9:12 — No Comments

Yes, yes, no: FWC rejects employee’s bid to reopen unfair dismissal claim after parties fail to sign terms

One of the first steps that the Fair Work Commission (FWC) takes when dealing with unfair dismissal claims is to require the parties to participate in a conciliation.

The purpose of a conciliation is to help the parties resolve the matter without the need go to a full hearing before a FWC member. In its most recent quarterly report on unfair dismissal applications, the FWC reported that about 59% of unfair dismissal claims were settled at…


Added by Shane Koelmeyer on July 9, 2018 at 10:19 — No Comments

Take me to your leader: FWC Full Bench rejects Aldi’s EAs due to restrictive NERR

A recent decision of the Full Bench of the Fair Work Commission (FWC) has once again confirmed that the precise content and form required for notices of employee representational rights is no trivial matter.

At the commencement of bargaining for a proposed enterprise agreement, employers are required to give relevant employees a notice of employee representational rights (NERR).

The Fair Work Act 2009 (Cth) is very specific about the…


Added by Shane Koelmeyer on July 9, 2018 at 10:12 — No Comments

Welcome to the 21st Century: Social Media and Industrial Action

Most people use social media to keep in contact with family and friends, watch funny cat videos or to share a clever thought or pretty picture. However social media is also recognised as a powerful information sharing tool and many social movements are commenced and advanced online (think hashtags including #metoo, #loveislove).

It is not a surprise then that internet activism is also being utilised by employees in their industrial disputes. In June 2018, staff from the Bureau of…


Added by Shane Koelmeyer on July 9, 2018 at 10:08 — No Comments

Careless whisper – A lesson on the importance of formal communication structures in the workplace

Clear and effective communication structures are crucial to the smooth running of a workplace. Last-minute meetings and unexpected emergencies (especially safety emergencies) mean that messages and information often need to be relayed to employees almost instantly.

Thankfully, there are numerous ways in which employers are now able to communicate urgent messages to their employees where doing so in person is not practical, including by email, phone call, text message – or even through…


Added by Shane Koelmeyer on June 18, 2018 at 10:30 — No Comments

Resistance is futile: Modern award basics for employers

One of the biggest challenges for Australian employers is navigating the often complex and confusing landscape of the modern awards.

In this blog, we provide some basic information about modern awards to help employers find their way.

What is a modern award?

A modern award is a document made by the Fair Work Commission (FWC) that sets the minimum terms and conditions of employment for employers and employees in a particular…


Added by Shane Koelmeyer on June 18, 2018 at 10:28 — No Comments

Losing on penalties: $200,000 penalty imposed for adverse action taken against employees underpaid because of their race

Last year in The INNS and outs of adverse action: FWO prosecutes hotel owner for underpaying employees because of race. we reported on the Fair Work Ombudsman’s (FWO’s) successful prosecution of a hotel operator and its owner who took adverse action against two employees because of their Chinese race and Malaysian extraction.

Yenida Pty Ltd operated…


Added by Shane Koelmeyer on June 18, 2018 at 10:25 — No Comments

100% guaranteed – the return to work guarantee under the Fair Work Act 2009 (Cth)

Last month, all eyes were on tennis champion Serena Williams as she returned to her first Grand Slam tennis tournament following the recent birth of her daughter.

At the time she left the tennis tour, Williams was the first placed seed, however by the time of her return to participate in the French Open, Williams’ ranking had plummeted to number 453 in the world.

Under the Women’s Tennis Association (WTA) special ranking rule, players who have been out of the…


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

You’re banned: what to do when a client or host employer won’t work with an employee

Employee, worker, talent, resource, temp, contractor – there is an abundance of terms used to describe the people that perform work in a workplace. There are often technical reasons for these differences but to an outsider, those differences rarely matter - if a person works at that place, they must be an employee.

This misconception can create some challenges for employers who either share their workplace or business space with employees of an entirely different employer or who send…


Added by Shane Koelmeyer on June 12, 2018 at 9:50 — No Comments

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