Shane Koelmeyer's Blog (287)

Foreign Language - Unfairly dismissed 457 visa employee awarded maximum compensation

Employers are obligated to comply with the Fair Work Act 2009 (Cth) (FW Act) when employing employees in Australia – including providing the minimum terms and conditions of employment as prescribed by the FW Act and an applicable modern award (if any) or enterprise agreement.

Employees who are employed on working visas (for example subclass 457 or 417 visas) are able to make applications for unfair dismissal and have their case heard by the Fair Work Commission…

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Added by Shane Koelmeyer on August 23, 2016 at 14:02 — No Comments

Oops I did it again! Costly spelling mistakes

It was reported in the news that an accounting firm was unsuccessful in its application to restrain its former partners from poaching and soliciting its clients after a spelling mistake in an email address meant critical correspondence was not received. 

The accounting firm’s (now former) solicitors sent an email to the  law firm representing the former partners which was not received by the law firm because the email address of the recipient was spelt…

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Added by Shane Koelmeyer on August 23, 2016 at 14:01 — No Comments

We don’t talk anymore... Consultation and genuine redundancy

The Fair Work Act 2009 (Cth) (FW Act) requires Enterprise Agreements to include a consultation clause obliging employers to consult with their employees about “major workplace change” or a change in regular rostering or ordinary hours of work.

In addition to Enterprise Agreements, Modern Awards also include consultation terms where employers must notify employees of major workplace change and engage in discussion.

Consultation clauses are activated when an…

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Added by Shane Koelmeyer on August 18, 2016 at 17:00 — No Comments

Would I lie to you? – Applicants who provide phony statements of service and referees to secure a job

It has recently been reported that a Melbourne man is about to be sentenced for falsifying accounting documents and obtaining property by deception.  The 313 charges laid against the man related to his employment at an electrical store.  The man had forged four of his character references to secure the employment.  It was discovered at the hearing that one of the referees had never heard of the man and the others denied providing the man with a reference.

In our blog article…

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Added by Shane Koelmeyer on August 18, 2016 at 16:47 — No Comments

No soup for you! – Double dipping and applications “in relation to” dismissals

Jurisdictional objections can sometimes come as an afterthought when employers are faced with defending a claim in the Fair Work Commission (FWC). It’s very easy to get caught up in who-said-what-and-when and forget that if a valid jurisdictional objection is available, you might not have to defend a claim at all.  In a recent decision of the FWC, an employer successfully argued that it did not have to respond to an employee’s general protections application because it was…

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Added by Shane Koelmeyer on August 18, 2016 at 16:07 — No Comments

I'll make you a (redeployment) offer that you cannot refuse!

In our previous blog article Objection! – Access to the Unfair Dismissal Jurisdiction we touched on the exemptions of unfair dismissal, one of which included genuine redundancy. 

If the Fair Work Commission (FWC) finds that an employee’s employment was terminated on the basis of a genuine redundancy, the employee does not have access to the unfair…

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Added by Shane Koelmeyer on August 11, 2016 at 15:00 — No Comments

Apologies for the delay... Time limits for unfair dismissal applications

Under the Fair Work Act 2009 (Cth), employees have 21 days from the date of the termination of their employment to lodge an application for unfair dismissal with the Fair Work Commission (FWC). If an employee misses this deadline, they are barred from bringing their claim unless they demonstrate to the FWC that exceptional circumstances apply to their case.

In two recent decisions, the FWC has considered whether the actions of the employers were contributory factors to…

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Added by Shane Koelmeyer on August 11, 2016 at 14:30 — No Comments

Ride with me – Food delivery bicycle riders and sham contracting

Last month, the Young Workers Centre in Victoria and Maurice Blackburn Lawyers announced their partnership in a new campaign called Rights for Riders. The campaign will aim to improve safety, pay and conditions and job security for food delivery bicycle riders engaged by on demand food delivery services.

In addition to Rights for Riders, Maurice Blackburn has also flagged the possibility of running a test case centred on sham contracting and minimum entitlements for food…

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Added by Shane Koelmeyer on August 4, 2016 at 16:30 — No Comments

Codes and Keys: Small business employers and the Small Business Fair Dismissal Code

For most employers the disciplinary process with its obligation to ensure procedural fairness usually leads to a well-documented but often protracted process.

For small business employers, where an employer has followed and is compliant with the requirements of the Small Business Fair Dismissal Code (the Code), the employee is not (generally) to be considered to be unfairly dismissed.

The Code, which applies to small businesses (i.e. those who employ less than 15…

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Added by Shane Koelmeyer on August 4, 2016 at 15:30 — No Comments

Make it appealing: Appeals in the Fair Work Commission

For the 2014-2015 year, 79% of unfair dismissal applications made to the Fair Work Commission (FWC) were settled at the conciliation phase.

For the 21% that did not settle, some Applicants proceeded to have their matter heard by way of hearing.  If an Applicant is not satisfied with the outcome at the hearing they are able to lodge an application to appeal.  However, in order for an application to appeal to be granted, the Applicant must satisfy the FWC that it has proper…

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Added by Shane Koelmeyer on July 27, 2016 at 15:51 — No Comments

Cold As Ice - Recruitment Company snowed under by social media reaction to misbehaving employees

On 10 July 2016, a Mount Buller Reindeer Ski Club employee posted to Facebook a scathing assessment of guests employed by recruitment company, Michael Page Recruitment (the Company). The Ski Club employee alleged that the 22 guests caused a nuisance, were heavily intoxicated and became abusive to her and the Ski Club’s Manager.

The post detailed that the guests had left rooms in a mess, leaving broken glass on surfaces, rubbish on floors and food and clothes on benches. The…

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Added by Shane Koelmeyer on July 27, 2016 at 15:00 — No Comments

School’s out: How workplace conflict can become bullying behaviour

Left unaddressed, workplace conflict can sometimes evolve into allegations of bullying behaviour.  A recent decision by the Fair Work Commission (FWC) highlights how the working relationship between a school teacher and Principal deteriorated to the point that an application for an order to stop bullying was made.

The Applicant was employed as a teacher at a secondary school in Victoria (the School) in 1998.  The new Principal of the School was appointed in 2013. The…

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Added by Shane Koelmeyer on July 22, 2016 at 17:05 — No Comments

We need to talk... - Reasonable Management Action and Employee Meetings

The ability to counselling employees about their effectiveness in the workplace is important for employers. Unfortunately, not all employees respond to counselling meetings as productively and openly as employers might hope.

A meeting can be severely derailed if an employee responds badly to feedback about their work performance or workplace behaviour and, depending on how such circumstances are handled, the employer may face claims that the meeting, or the employer’s conduct in the…

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Added by Shane Koelmeyer on July 22, 2016 at 17:04 — No Comments

Now we've got bad blood – Difficult enterprise agreement negotiations

As has been widely reported, for the last three years there have been ongoing tensions between the United Fire Fighters Union (UFU) and the Country Fire Authority (CFA).  The main reason for the tension is that the parties have not been able to agree on a new enterprise bargaining agreement (EBA). 

The UFU have been negotiating with the Victorian state government and the CFA over working conditions, safety practices and wages for “career fire…

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Added by Shane Koelmeyer on July 13, 2016 at 15:30 — No Comments

Private eyes (are watching you): Employee access and use of personal information

For some positions, client information is at our fingertips and often just a keystroke or mouse click away.

This was the position that a NSW Police Constable was in when he used the NSW Police database system to look up the police record of a woman he was flirting with earlier this year.

The Police Constable had met the woman on eHarmony and exchanged text messages with her, one of which jokingly stated that he would “check and make sure” that she was the “cleanskin” she had…

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Added by Shane Koelmeyer on July 13, 2016 at 15:00 — No Comments

If the chemistry is right: Safe Work Method Statements

Under work health and safety legislation, persons conducting a business or undertaking (PCBU) have a “primary duty of care” to ensure (so far as is reasonably practicable) the health and safety of workers and others in the workplace.

What is “reasonably practicable” will involve a risk management approach where hazards or risks are identified, assessed and then controlled. A control measure for risks that cannot be eliminated may include implementing a safe work method…

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Added by Shane Koelmeyer on July 6, 2016 at 16:00 — No Comments

When the going gets tough – Reducing staffing costs and being open with employees

When a company is confronted with a downturn in business it can be a very difficult time for both employers and employees.  As part of ensuring the financial viability of the business employers are often forced to consider reducing workforce size by way of forced or voluntary redundancies.

But, it’s not always the case that an employer needs to resort to redundancies to reduce its wages costs. In a recent decision of the Fair Work Commission (FWC), an employer was praised for…

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Added by Shane Koelmeyer on July 6, 2016 at 15:39 — No Comments

I Promised You a Miracle! – The Fair Work Ombudsman and Enforceable Undertakings

The Fair Work Ombudsman (FWO) continues to successfully prosecute and investigate businesses that exploit workers from overseas.

In a recent investigation of a Perth restaurant, the FWO found that two overseas workers had been underpaid by their employer to the tune of $13,822.  After admitting to a number of contraventions, the employer agreed to enter into an enforceable undertaking with the FWO to make good.

Enforceable undertakings permit the FWO to take legal action…

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Added by Shane Koelmeyer on June 29, 2016 at 10:00 — No Comments

You can leave your hat on (but take the union sticker off)

Recently in our blog article It’s my prerogative – Employer permitted to stop delegates wearing shirts with union logo we discussed managerial prerogative and the ability for management to direct employees not to wear shirts with a union logo on them in…

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Added by Shane Koelmeyer on June 29, 2016 at 9:30 — No Comments

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