Articles

As of 14 December 2020, New South Wales employers are no longer obliged to allow employees to work from home where they can practicably do so, as restrictions under the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) 2020 have eased. However, employers still have a duty to ensure, as far as reasonably practicable, the health and safety of employees and others is protected. Further, employers are still strongly encouraged to have COVID-19 safe plans to protect the community and prevent the spread of COVID-19, and in preparation for more employees physically returning to the workplace. Victoria continues to require employees to work from home, unless employees cannot perform their role from home or another location; while Queensland and South Australia do not currently have any such directions in place

The Western Australian Parliament has recently passed the Work Health and Safety Bill 2019 (WA). This finally brings that state into line with all other states in Australia (except for Victoria) in adopting the national model Work Health and Safety laws first proposed in 2010. The new legislation will replace the Occupational Safety and Health Act 1984 (WA) and introduce a number of changes including widening the term ‘employer’ to encompass any ‘person conducting a business or undertaking’, as well as introducing a new offence of ‘industrial manslaughter’. Under the Bill, insurance companies are also prohibited from indemnifying businesses from liability penalties that are imposed under work health and safety laws. The new legislation is expected to come into operation in 2021

The Federal Court has recently awarded a landmark figure of $5.2 million to a senior employee of an ASX-listed software company. Mr Roohizadegan, represented by Harmers Workplace Lawyers, was successful in his claims that the respondents had contravened the general protections provisions of the Fair Work Act by terminating him after he made bullying complaints, and breached its contractual obligations in relation to the payment of incentives. The $5.2 million award comprises general damages, past economic loss, future loss of earning capacity and penalties. Given the significant award handed down in this decision, employers and senior management should be mindful of the importance of ensuring any termination process is managed properly

Queensland has recently passed legislation criminalising wage theft. This amends the existing law to classify wage theft as a form of ‘stealing’ under the Criminal Code. Wage theft includes not paying any amount payable to the employee for the performance of work, under legislation, an industrial instrument or an agreement. Whilst the remaining states and territories, and the Federal Government, have yet to criminalise wage theft, this continuing trend indicates it may only be a matter of time before wage theft is criminalised across all jurisdictions

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.

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.

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

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