Shane Koelmeyer's Blog (326)

Super (not so) Simple: Court finds independent contractor owed superannuation

Deciding on the terms under which to engage a person to perform services can be a complex task. There are benefits to engaging individuals as independent contractors where there is a particular task, project or specialised kind of work that needs to be performed. But mischaracterising the relationship can have dire consequences for employers.…

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Added by Shane Koelmeyer on June 11, 2019 at 16:50 — No Comments

The Stalking Horse: FWC warns of abuse of stop bullying jurisdiction

It has unfortunately become a common occurrence for employees who are subject to management action (such as the issuing of reasonable and lawful directions or disciplinary processes) to immediately seek redress by filing a claim against their employer (or other employees) alleging things such as adverse action, discrimination or bullying. In these instances, employers often feel obliged to delay or defer any further management action until the employee’s claim is resolved.

In a recent…

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Added by Shane Koelmeyer on June 11, 2019 at 16:46 — No Comments

Take It Back: Employer ordered to withdraw unreasonable safety warning

A recent decision of the Fair Work Commission (FWC) has reminded employers of the importance of taking a measured and consistent approach to enforcing workplace policies and procedures – particularly those relating to work health and safety.

In Cordowiner v Ashton Coal Operations Pty Ltd [2019] FWC 2525, the FWC ordered an employer to withdraw a formal warning that it had issued to an employee following a safety breach, because its supervisors had condoned the conduct to the…

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Added by Shane Koelmeyer on May 20, 2019 at 9:34 — No Comments

The Clash: The FWC on employee disputes and workplace bullying

When employees clash it can sometimes result in claims that one or both are bullying the other. When emotions are running high and differences are unable to be resolved, employees often turn to the anti-bullying jurisdiction of the Fair Work Commission (FWC).

Under the Fair Work Act 2009 (Cth) (FW Act), the FWC can hear a bullying claim and make any orders it considers necessary (other than orders involving monetary compensation) to stop bullying from continuing. Before…

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Added by Shane Koelmeyer on May 20, 2019 at 9:27 — No Comments

Pay Attention: Director ordered to undertake training following due diligence failure

The model Work Health and Safety Act (Model Act) imposes a duty on officers to exercise due diligence to ensure that the person conducting a business or undertaking (PCBU) complies with safety duties.

In SafeWork NSW v Macquarie Milling Co Pty Limited; SafeWork NSW v Samuels [2019] NSWDC 111, a company and its sole director pleaded guilty to, and were convicted of, failing to comply with their duties to a worker, including a failing on the part of the director to…

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Added by Shane Koelmeyer on May 20, 2019 at 9:00 — No Comments

Talk to Me: the importance of consultation in the redundancy process

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Added by Shane Koelmeyer on April 15, 2019 at 12:07 — No Comments

No good in goodbye – employee on stress leave did not abandon employment

Some employers may find themselves in the situation where an employee fails to show up to work for a period of time with no notice and no communication about their absence – never to be heard from again.

How the employer should respond? Particularly where it appears that the employee has abandoned their employment and has brought the employment relationship to an end.

In the recent decision in Thompson v Zadlea Pty Ltd T/A Atlas Steel [2019] FWC 1687, the Fair Work…

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Added by Shane Koelmeyer on April 11, 2019 at 10:48 — No Comments

Family Feud: FWC orders managing director to stop bullying HR manager

In response to an application to stop bullying, the Fair Work Commission (FWC) has the power to make any orders it thinks necessary to prevent workplace bullying from continuing. The FWC’s exercise of this discretionary power has resulted in some interesting orders over the years, including requiring employees to greet each other in the mornings or directing that an employee stop exercising at work in the vicinity of another employee.

In a more recent decision, the…

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Added by Shane Koelmeyer on April 11, 2019 at 10:44 — No Comments

Safety is not a “sometimes thing”: Employer fined for failing to effectively enforce safe systems

The NSW District Court has convicted and fined a KFC franchisee after a young worker sustained third degree burns when his foot slipped into hot oil while he was cleaning the hoods of an overhead ventilation system.  

The worker, who was 20 years old at the time of the incident, was employed as a Food Service Team Member at a KFC restaurant in North Coffs Harbour, NSW. He was tasked by his supervisor (who was just 19 years old) with cleaning cooking equipment in the kitchen, including…

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Added by Shane Koelmeyer on April 11, 2019 at 10:30 — No Comments

The truth will set you free: Consequences of providing false and misleading evidence

When dealing with litigated matters, we cannot stress enough the importance of having evidence and witnesses that are credible and reliable to support a party’s position in the proceedings.

A recent decision of the Fair Work Commission (FWC) has shown how providing false and misleading evidence can not only be detrimental to the case, but can also have very serious personal consequences for those who…

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Added by Shane Koelmeyer on March 19, 2019 at 9:08 — No Comments

Valid point: Unfair dismissal claims and “valid reasons”

According to the Fair Work Commission’s (FWC’s) most recent annual report, unfair dismissal applications are by far the most common type of application lodged with the FWC. In the 2017-2018 reporting period, more than 13,000 unfair dismissal applications were lodged by employees across Australia.

Clearly, unfair dismissal continues to be one of the main areas of dispute between employers and…

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Added by Shane Koelmeyer on March 19, 2019 at 8:58 — No Comments

Ten in the bin: Injunctions against suspensions from work

A suspension is a reasonable and lawful direction from an employer where, for the period of suspension, an employee will not be required to perform their duties in the usual manner they would normally be performed.

There are certain circumstances where employees may be suspended from work with pay, such as when an investigation is being conducted or in the context of a disciplinary process.

Ordinarily, the power to suspend an employee is a contractual term, but some…

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Added by Shane Koelmeyer on March 19, 2019 at 8:41 — No Comments

A break from banter: FWC upholds dismissals from workplace with “robust environment”

Workplace culture can dramatically vary from workplace to workplace.

It is becoming increasingly challenging for employers and employees to understand where  the line is between a relaxed, open and friendly workplace culture, a robust workplace culture and what is a workplace with a bullying or harassment issue?

In a recent decision, the Fair Work Commission (FWC) was tasked with unpacking these difficult issues (Pridham and Rose v Viterra Operations Pty Ltd T/A…

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Added by Shane Koelmeyer on March 11, 2019 at 9:57 — No Comments

You’ve got email: WCC finds addressing email issues with worker not reasonable action

Under workers compensation legislation, the “reasonable action” defence is one often relied upon by insurers against claims of work-related psychological injury.

The parameters of the “reasonable action” defence differ to some extent across the Australian states and territories. In some states, such as Queensland, Victoria, South Australia and Tasmania, the definition of “reasonable action” is quite broad and can encompass a wide range of actions by the employer. However, in other…

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Added by Shane Koelmeyer on March 11, 2019 at 9:30 — No Comments

Handle with care: Managing the new family and domestic violence leave entitlement

The introduction of family and domestic violence leave entitlements into modern awards and the Fair Work Act 2009 (Cth) (FW Act) last year was a significant development in Australian workplace relations. It has prompted employers to now give considerable thought as to how well their workplace is equipped to deal with such situations involving their employees.



What is the entitlement?

In summary, employees are entitled to a minimum of five days of unpaid…

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Added by Shane Koelmeyer on March 4, 2019 at 13:43 — No Comments

No Ordinary Job – Employer fails to demonstrate that redundancies were due to the ordinary and customary turnover of labour

The Fair Work Act 2009 (Cth) (FW Act) provides a minimum entitlement to redundancy pay in situations where an employee’s position is genuinely made redundant. There are exceptions, however, to when this entitlement will be paid, one of which is when the employer no longer requires the job to be done due to the “ordinary and customary turnover of labour”.

What this phrase actually means was recently considered by the Federal Court of Australia in the…

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Added by Shane Koelmeyer on February 28, 2019 at 14:00 — No Comments

Who’s the Boss? Employee loses redundancy pay after refusing other acceptable employment

The Fair Work Commission (FWC) has reduced an employee’s entitlement to redundancy pay to nil after an employer successfully argued that it obtained ‘other acceptable employment’ for the employee, which the employee had refused.



Under section 120 of the Fair Work Act 2009 (Cth) (FW Act), the FWC has the discretion to reduce an employee’s entitlement to redundancy pay in either of the following circumstances:



(i) the employer obtains other acceptable employment for the…

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Added by Shane Koelmeyer on February 28, 2019 at 13:57 — No Comments

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