Criminal Record Discrimination Change Now Law

Discriminating against a prospective employee on the basis of a criminal record is generally a no-no, but the regulations have been amended to re-cast the ground as “an irrelevant criminal record”. It is a significant distinction, and the change has a back story. About a year ago, the Australian Human Rights Commission (AHRC) found an […]

Red Tape, Record Keeping and Reverse Onus of Proof

One of the changes to the Fair Work Act as part of the ‘protecting vulnerable employees’ amendments, that has slipped under some employers’ radar is section 557C. This provision reverses the onus of proof where there is a dispute about the number of hours an employee has worked. In a recent federal court case, the […]

Failure to Fully Consult Not Necessarily Fatal

When making employees redundant, if an employer fails to properly consult with those affected beforehand, the termination can be deemed not a genuine redundancy. If this finding is made, it is then open for the Fair Work Commission to find a termination to be harsh, unjust or unreasonable. This is what nearly happened to a […]

Trading-Off the Essence of Bargaining

Assessing the better off overall test for enterprise bargaining should focus on objectively verifiable matters and not descend into speculation about subjective or unquantifiable matters the FWC has said when rejecting union objections to a proposed agreement. The agreement had a fixed 43 hour week which the union contended eliminated the employees’ opportunities to accrue […]

Job and Not the Duties Count

When a business experiences a downturn, it is not unusual for the response to include redundancies. And when this is achieved by dispersing the duties of an employee, who is to be made redundant, among other staff who will remain, it can create some ill-will, and even claims of unfair dismissal because the work is […]

You Can’t Pick the Opposing Team

When an employee is a member of a union that is a bargaining representative for an enterprise agreement, then that employee is able to attend negotiations under the union’s umbrella. And an employer’s attempt to exclude such an employee from discussions has been thwarted by the Fair Work Commission. The employee had filed for workers’ […]

Annualised Salaries and Superannuation

The often-vexed question of exactly how much of an employee’s annualised salary is to be taken into account to calculate superannuation entitlement has been analysed by the full federal court. And it has found that the component of an annualised salary attributed to work beyond ordinary time, is not to be counted for superannuation purposes. […]

No Cap on Bargaining Reps

While it may make good sense to keep bargaining committees down to a manageable size, arbitrarily limiting the number of bargaining representatives is not the way to go. This, along with a few other procedural flaws, resulted in an agreement being knocked back by the FWC recently, when it became clear the mistakes were too […]