The Federal Court of Australia has found that the right to take a short drink or toilet break outside of scheduled breaks is a “workplace right”, and that a McDonalds franchise (through its general manager) coercively and recklessly misrepresented this right over a Facebook post was in contravention of national workplace legislation.
Aug
28
2020
Australia: Court Affirms the Seriousness of Sexual Harassment and Availability of Aggravated Damages
The Full Court of the Federal Court of Australia has recently handed down a decision on the availability of aggravated damages and appropriate quantum of general damages in sexual harassment (Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126). In the decision, the Full Court confirmed the availability of aggravated damages in sexual harassment cases where there is bullying by the contravener to deter the plaintiff from making a complaint, and where the conduct of the contravener during trial was deplorable and furthered the psychological damage inflicted on the plaintiff. The Full Court also determined that the quantum of general damages in sexual harassment cases should follow an earlier authority that justified a substantial increase in general damages for sexual harassment cases, to reflect the community’s appraisal of the seriousness of sexual harassment.
Jul
27
2020
Australia: Wage theft against employees criminalised under new legislation in Victoria
The Victorian Government has recently passed the Wage Theft Act 2020 (Vic), which establishes new criminal offences in order to target employers who dishonestly underpay or do not pay workers their employee entitlements. The Act is the first legislation in Australia to make the deliberate underpayment of workers a criminal offence, having been drafted in response to revelations that a string of large, high-profile companies have reported underpayments
May
25
2020
Australia: Full Bench decision finds that delivery drivers on ‘Uber Eats’ platform are not employees
A recent Full Bench decision of the Fair Work Commission has found that an Uber Eats delivery driver was not an “employee” of Uber or its affiliated companies, and therefore was not entitled to an unfair dismissal remedy under the Fair Work Act 2009 (Cth). In reaching this decision, the Full Bench considered the control that delivery drivers have over their hours of work and the work they accept, the fact that delivery drivers could also work for competitor food delivery companies, and the absence of a requirement that delivery drivers wear uniforms or use Uber logos. This decision is now the highest Australian authority on whether workers in the gig economy are classified as employees
Mar
27
2020
Australian Human Rights Commission proposes significant reforms to anti-discrimination, industrial relations, and health and safety laws to curb workplace sexual harassment
The Australian Human Rights Commission has released its landmark report arising from its national inquiry into sexual harassment in Australian workplaces. The Commission’s report has been presented to the Attorney-General Christian Porter and, according to reports, will be reviewed in conjunction with state governments and the private sector.[1] Preliminary responses have been mixed with calls […]
Feb
22
2020
Australia: Timesheets for lawyers under the new annualised salary provisions
New changes to the Legal Services Award 2010 will have significant implications for graduate lawyers, law clerks, and clerical and administrative employees in law firms who receive an annualised salary. These changes will require employers to keep records of the hours worked by these employees in order to ensure that the employees are not disadvantaged under an annualised salary compared to what they would have received under the Award rate. This will ensure greater transparency and accountability for employees and marks a shift away from graduate lawyers being required to work long ‘reasonable additional hours’ without overtime pay
Feb
22
2020
Australia: Employment Legislative Updates (Dec 2019-Feb 2020)
The Federal and Victorian lower house have both passed noteworthy Bills that mark significant changes to the employment law space. The first bill tightens the laws around unions by expanding the situations in which a person may be disqualified from office of a registered organisation, and expanding the grounds under which the registration of a registered organisation can be cancelled. The second bill establishes obligations for public sector employers in the State of Victoria to take positive action towards achieving gender equality and creates the role of a Public Service Gender Equality Commissioner. Both Bills have yet to pass the respective upper houses
Jan
28
2020
Australia: Proposed Religious Discrimination Bill – Changing the Landscape of Federal Discrimination Legislation
The Federal Government has released a second draft of its Religious Discrimination Bill 2019 (Cth), following widespread criticism of the first draft. If passed, the Bill will add religion as a protected attribute in a wide range of areas of public life, including employment, and may have serious implications on employers and employees. Amongst other things, the Bill provides that religious statements of belief do not constitute discrimination for the purposes of any of the currently protected attributes (age, sex, sexual orientation, race, marital status and disability), provided they are not malicious and are not likely to harass, vilify or incite hatred or violence against another person or group of persons
Dec
19
2019
Australia: Common Law Course of Conduct Principle Affirmed by the Federal Court of Australia
The Federal Court of Australia has applied the common law course of conduct principle (where contraventions committed by the same person arose from a single course of conduct can result in a single penalty) to multiple contraventions by the Construction, Forestry, Maritime, Mining and Energy Union, in both organising and being involved in industrial action in two separate locations (different Australian States), on the basis that it was one concerted industrial campaign against a shipping terminal operator’s proposed redundancies, and therefore should not involve “double punishment”
Nov
27
2019
Australia: Legal Action to Challenge the Validity of the Australian Federal Government’s Controversial Backpacker Tax
Australian residents are not required to pay tax on the first $18,200 of their income (a “tax free threshold”). Under provisions colloquially known as the “Backpacker Tax”, those on a working holiday visa were taxed on all their income, including the first $18,200. The Federal Court of Australia has found that a British backpacker who was in Australia on a working holiday visa, was a “resident” under the relevant tax legislation and that the “Backpacker Tax” was discriminatory in contravention of the international double tax agreement between the UK and Australia because it attempted to tax foreign workers in the same circumstances as an Australian resident at a higher tax rate