To properly assess whether an employee’s out of hours conduct is a valid reason for dismissal, an employer needs to make findings about the nature of the conduct and its relationship to the inherent requirements of the employee’s job, according to an appeal FWC full bench.
Sometimes bargaining gets bogged down and the way out gets harder to see. What many bargaining parties overlook is to use the FWC as a sounding board for their respective positions and maybe a way forward. And the FWC stands ready to serve as a recent case clearly demonstrates.
Some employers who have their own enterprise agreement (EA) make the mistake of pretty much ignoring what is going on in modern awards. They reason modern awards provide bare minimum standards whereas their EA provides superior conditions, often considerably so. This tends to encourage ambivalence about what’s going on in the modern award space.
During the life of their employment an employee can become attached to the job they are performing. This can lead to an employee believing the details of that job are one and the same as their employment contract. Consequently they form the view that any changes to those duties or details can only occur with mutual agreement.
But almost universally, the tasks or duties identified on recruitment or thereafter are not implied terms of the contracts of employment such that a change of duties required by the employer is a repudiation. This fundamental aspect of the employment relationship led an employee into error when she claimed constructive dismissal.
Even though legislative and regulatory efforts to protect from sexual harassment have been around for decades, the mechanisms to deal with it have not always been the most efficacious. But that maybe about to change with the FWC gaining additional powers to deal with sexual harassment complaints specifically.
What to do with an agreement with generous conditions when your competitors keep beating you on all your tenders? This problem faced a company that found earlier largesse was coming back to bite as more players entered their patch, leaving them behind.
When a services company was faced with a mining operator’s ultimatum to reduce costs or lose the contract, it acted. It decided that without a reduction in wage rates, penalties, and overtime entitlements (to apply only to new recruits), the contract would be lost.
Once again the FWC has baulked at approving agreements where it was not convinced the employers had taken all reasonable steps to explain the proposed deals to the employees.
Ross Clarke has more than a decade’s experience in the enterprise bargaining room.
The knowledge and skill he has acquired in this time has enabled him to develop a highly sophisticated planning and process model for successful enterprise bargaining. This proven methodology delivers results across all industries including distribution, hospitality, banking, retail, manufacturing, telecommunications and gaming.
“Ross’s knowledge of industrial relations and his ability to understand how and when to communicate internally with government; and with the media were instrumental in guiding the Association’s successful response to the campaign.”
Patrick Griffin OAM, Australian Hotels Association
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