Shane Koelmeyer's Blog (287)

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

Nothing but Net – The 76ers Twitter saga and confidentiality in the employment relationship

In May 2018, a sports and pop culture website named ‘The Ringer’ published a report about the NBA’s Philadelphia 76ers that sparked controversy worldwide.

The report claimed that Mr Bryan Colangelo has been secretly operating five Twitter accounts under various pseudonyms for the last two years whilst employed by the 76ers’ in the prestigious role of President of Basketball Operations.

The Ringer stated that the Twitter accounts had been used, amongst other things, to disclose…


Added by Shane Koelmeyer on June 12, 2018 at 9:30 — No Comments

I want it that way: FWC upholds dismissal following obstructive and uncooperative conduct of employee and union rep

Where a disciplinary process involves discussions about dismissal, employers should not unreasonably refuse a request from the employee to have a support person present. We have discussed the role of the support person in previous posts. A support person can include a friend, family member, an impartial colleague or a union representative.

The presence of a support person or a representative affords the employee a degree of procedural fairness whereby they can turn to a trusted…


Added by Shane Koelmeyer on June 4, 2018 at 16:12 — No Comments

Respect my authority: Employee awarded compensation for dismissal over Facebook Messenger

The Fair Work Commission (FWC) recently considered an unfair dismissal application lodged by an employee who was summarily dismissed in a Facebook Messenger chat.

In Morris v Alphaeus Hair Salon [2018] FWC 2642, Commissioner Riordan was provided with a Facebook Messenger chat transcript in which a salon owner accused an employee of participating in a conspiracy against him before advising her: “Good luck in your new job if you can find…


Added by Shane Koelmeyer on June 4, 2018 at 16:11 — No Comments

Say it to my face: FWC sends strong warning to employees about social media

The Fair Work Commission (FWC) has applied a “common sense” approach to a recent unfair dismissal claim that involved intimidating and threatening behaviour by a supervisor towards a subordinate employee via text message and on social media.

In Natoli v Anglican Community Services t/a Anglicare [2018] FWC 2180, a Servery Supervisor at a residential aged care facility was summarily dismissed after it was determined that she had sent inappropriate text messages…


Added by Shane Koelmeyer on June 4, 2018 at 16:07 — No Comments

Hush Hush, Hush! Why the term ‘hush money’ is misleading

Settlement agreements, terms of settlement, deeds of release or release and undertakings are all terms which are used interchangeably to refer to the binding and confidential agreements reached between parties in good faith to resolve claims or disputes. 

Employees can make any number of claims against their employer, including but not limited to:

  • Unfair dismissal claims;
  • General protections claims;
  • Underpayment claims; and
  • Discrimination…

Added by Shane Koelmeyer on May 21, 2018 at 15:53 — No Comments

A New World Language: Managing emojis in the workplace

It started out as the humble smiley emoticon “:-)” in 1982 created by a computer scientist who wanted a “joke marker” to help people decipher his jokes in emails.

Some 36 years later, we now have an entire lexicon of emoticons (known as emojis) that can help decipher more than just jokes in an email. This lexicon includes a wider range of faces with emotions, hand and body gestures as well as other objects such as buildings, foods, animals and almost any other symbol you can think…


Added by Shane Koelmeyer on May 21, 2018 at 15:48 — No Comments

Jailhouse Rock – Court orders jail term for owner-operator who failed to comply with orders resulting from Fair Work action

In June 2015, Judge Jarrett of the Federal Circuit Court of Australia found that a Northern Queensland-based tour company and its owner had underpaid five employees and contravened the Fair Work Act 2009 (Cth) (FW Act) (Fair Work Ombudsman v Trek North Tours & Anor (No.2) [2015] FCCA 1801).

Prior to commencing the Federal Circuit Court proceedings, the Fair Work Ombudsman (FWO) conducted an investigation into several complaints…


Added by Shane Koelmeyer on May 21, 2018 at 15:38 — No Comments

Vendetta, vendetta! FWC finds attempted character assassination and confidentiality breach valid reasons for dismissal

Managing conflicting personalities can be one of the most challenging aspects of being a manager. Particularly when low level disagreements escalate to formal complaints, investigations, attempts at character assassination and breaches of confidentiality.

These issues were recently traversed in the Fair Work Commission’s (FWC’s) decision in Lecaude v Westpac Banking Corporation T/A Westpac [2018] FWC 1969.

The employee in this case was dismissed after…


Added by Shane Koelmeyer on May 14, 2018 at 10:35 — No Comments

Meet me halfway? FWC criticises employer’s inflexible refusal of Pilates

In commentary that is particularly fitting for the story behind it, the FWC has found an employer was unreasonably inflexible when it dismissed an employee who had requested to finish work 15 minutes early to attend prepaid Pilates classes.

In Khutson v Chesson Pty Ltd T/A Pay Per Click [2018] FWC 2080, the employee argued that her dismissal was unfair because she refused to sign a revised employment contract that, amongst other things, had sought to change her working hours…


Added by Shane Koelmeyer on May 14, 2018 at 10:32 — No Comments

Not on the shop floor: Inappropriate workplace behaviour justified summary dismissal

In a clear sign that employers should act on inappropriate behaviour, the Fair Work Commission (FWC) has held, in Talevski v Chalmers Industries Pty. Ltd. [2018] FWC 1807, that an employee’s dismissal for serious misconduct arising from his unacceptable behaviour was not unfair.

The employee had been employed since 1986, most recently in the position of Handyman, with the employer who operated a truck transportation and logistics company.

In November…


Added by Shane Koelmeyer on May 14, 2018 at 10:25 — No Comments

Show and Tell: Employer ordered to advise employees about FWC’s stop-bullying orders

The purpose of the Fair Work Commission’s (FWC’s) anti-bullying jurisdiction as provided by the Fair Work Act 2009 (Cth) (FW Act) is not to punish bullies or to compensate an individual who has been bullied but to prevent future bullying in the workplace. It is for this reason that the jurisdiction does not allow the FWC to make a monetary order. The FWC does however have a broad jurisdiction to make any other orders it sees appropriate to prevent…


Added by Shane Koelmeyer on May 7, 2018 at 16:19 — No Comments

Director delusion: FWC finds title of “Director” not sufficient to defeat award coverage

To be protected from unfair dismissal the Fair Work Act 2009 (Cth) (FW Act) requires an employee to:

  • Have completed the minimum period of employment; and
  • Earn less than the high income threshold; or
  • Be covered by a modern award or enterprise agreement.

It has often been the case that “managers” and senior officers of an enterprise will not be covered by a modern award or enterprise agreement, given the executive…


Added by Shane Koelmeyer on May 7, 2018 at 16:13 — No Comments

Induction Construction: How to level-up your induction process to increase buy-in

Conducting a comprehensive induction for new employees is critical for compliance reasons but should also be viewed as an opportunity to connect new employees to the values and culture of the organisation they are joining.

An induction usually includes some kind of welcome, a walk around the workspace, a copy of the employer’s policies and procedures and a review of the emergency exits and muster points in case of an emergency.

Some inductions also include a workplace health…


Added by Shane Koelmeyer on May 7, 2018 at 16:05 — No Comments

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