Stephen Edwards LLB Call now 0427329514   -   Employment Law and Fair Work Consultant
Blog and issues commentary

Restructuring and genuine redundancy

On employer is entirely within its rights to restructure its operations and in the process redistribute the tasks which may have previously been performed by another employee, even if the new role has a need for higher qualifications and thus the occupant of that former position is no longer suitable to fill it.. The fact that much of the functionality of a former position still needs to be carried out does not mean that the position has not become legitimately redundant.  The question is whether the changes are reasonable from an operational perspective, in which event the Fair Work Commission will not interfere with the exercise of legitimate managerial prerogative.

Recovering entitlements

Proceedings for the recovery of remuneration earned under the terms of a modern award or enterprise agreement may be pursued in the Federal Circuit Court by way of civil penalty. Sec 323, Fair Work Act 2009. They may also be pursued in the Western Australian Industrial Magistrates Court upon application. The Fair Work Ombudsman, which can sometimes be persuaded to take proceedings without charge against an employer in default appears to prefer the former jurisdiction. I have previously blogged about the ability of an applicant in the Federal Circuit Court who is bringing such a case to tack on common law claims, for example for breach of contract, as well. This is called the accrued jurisdiction of the Federal Court, which includes the Federal Circuit Court.

Redundancy and small business employers

Almost unbelievably one member of staff at the Fair Work Ombudsman’s Office has orally advised one of my client’s, an employer, that the provisions of the Building and Construction General On-site Award 2010, a modern award, have the effect of requiring my client to pay redundancy pay to an employee who resigns, freely and voluntarily.
Clause 17 of the award contains an industry specific redundancy scheme which under sec  123 of the Fair Work Act does apply to the exclusion of the NES prescriptions as to redundancy.

Industry specific redundancy schemes

The Fair Work Act provides that as a general rule an employee of a small business is not entitled to redundancy compensation (sec 121). Small business employer is defined in sec 23. However the Act does allow for modern awards and enterprise agreements to make provision for “industry- specific redundancy schemes” to apply in which event they have the same enforceable effect as all lawful terms of modern awards and enterprise agreements (sec 123 (4)(b) and (c). An example of this can be found in clause17 of the Building and Construction General On-site Award 2010.

Individual flexibility arrangements

There is a distinction, rather significant, between the types of individual flexibility agreements which may be made under modern awards and those which can be made under enterprise agreements.
IFAs made under modern awards;
Individual flexibility terms within modern awards will only allow IFAs to vary arrangements for when work is performed such as working hours, overtime rates , penalty rates, allowances and leave loading.
This means that  modern award entitlements relating to any of these five award matters may be varied by agreement between an employer and an individual employee provided that, overall, the employee is ‘better off’ under the IFA at the time that the IFA is made.

Non compete conditions

An employee, who worked in a largely administrative position, has won 5 months’ compensation for unfair dismissal when her employment was terminated for a breach of her employment contract which contained a clause to the effect that she would not “work” for a competitor. The employee, operating on commission and as an independent contractor, sold products of a competitor but in a majority decision of a Full Bench, the Fair Work Commission held that in operating what was in effect her own business, she was not “working” for a competitor and was not thus in breach of any term of her employment agreement; thus there was no valid reason for the dismissal.

Dismissal by e-mail or text

The question whether an employee can be lawfully dismissed by electronic communication (e-mail or telephone  text) is the subject of Martin v Deco Glaze Pty Ltd (2011) FWA 6256 and Sokolovic v Modestie Fashion Australia Pty Ltd (2011) FWA 3063. Sec 117 of the Fair Work Act renders it unlawful for an employer to purport to dismiss an employee without written notice. Both cases expressly disapproved as a general rule of providing notice of dismissal by electronic means. However in Martin’s case the Commission did not construe the means of communication as a factor to render the dismissal unfair, even though the employee was absent from work and on sick leave.

Adverse action; no multiple actions

The question of what type of action might constitute multiple causes of action to trigger the provisions of the Fair Work Act which prohibit multiple actions over a dismissal (sec 732) was the centre of Qantas v Lawless (2014) FWCB 3582. In that case the question was whether a worker’s application under State workers’ compensation legislation to have a rehabilitation plane reviewed wasfor a remedy other than "reinstatement, re-employment or compensation in respect of a dismissal".
Inter alia a Full Bench of the Fair Work Commission has ruled that

Annual leave loading on untaken leave?

There is a live issue about whether or not annual leave loadings are payable on top of a payment for untaken annual leave when an employee’s termination pay is calculated. The question was indirectly raised in proceedings before the Fair Work Commission (or FWA as it was then known) in 2012 ((2012) FWA 2408) when a Commissioner decided that the inclusion of a provision in an enterprise agreement to the express effect that annual leave loading was not payable upon termination pay for unused leave did not breach sec 55 of the Fair Work Act as a contravention of the National Employment Standards.

Enterprise bargaining technical procedures

In Hydro Electric Corporation (2014) FWC 4169 delivered on 24 June 2014, a senior member of the Fair Work Commission has refused to register an enterprise agreement because the 7 day period required for the pre-approval process during which time the required in formation about the agreement and the ballot procedure must be available to affected employees for consideration fell  a few minutes short. The case identifies previous decisions by the Commission about time limits and is an authority if it was required for the proposition that part days cannot count and the measure is full calendar days.

Industrial action

The Federal Coalition Government has amended the Fair Work Regulations so as to empower the WA Government to apply for an order from the Fair Work Commission to suspend or terminate protected industrial action for a proposed enterprise agreement under sec 424 of the Fair Work Act
Where the Commission is satisfied that the action might endanger life, safety, health or welfare of the population or which might cause significant damage to the Australian economy or an important part of it. Previously, the States which have handed their constitutional industrial relations powers to the Commonwealth had that power, but Western Australia did not.

Unfair dismissal and casual employees

Sokolovic v Modestie Fashion Australia Pty Ltd (2011) FWA 3063 contains a thorough analysis of the circumstances in which the Fair Work Commission (then Fair Work Australia) will factor the regular and systemic employment of an employee otherwise regarded by the employer as a casual employee in determining whether the employee qualifies under secs 382 and 384 of the Fair Work Act to be protected from un fair dismissal. The case also includes a reference to all of the important decision of FWA on this issue until then.

Representation in the Fair Work Commission

The ability of an employer to be represented by a lawyer in a bullying case where the applicant was not are illustrated by a recent case of the Fair Work Commission which granted the employer leave to be represented but only because there were legal issues about jurisdiction involved.
Deputy President John Kovacic based the grant of leave on the jurisdictional issues which arose from argument to be put about the applicant’s employment status, the legal status of the employer and whether it is a constitutional corporation , whether the application had reasonable prospects of success and the issue whether the applicant had been subject to reasonable management action, carried out in a reasonable manner, which is a defence to a bullying claim.

Superannuation to increase on 1 July 2014

The mandatory minimum superannuation guarantee levy will rise from 1 July from 9.25% to 9.5% and remain at that level until 2018 from when it will increase in annual increments of 0.5% until it totals 12% in 2022. At least that is the position of the Coalition government announced by the Treasurer during the delivery of the 14/15 budget.

Employment law cases which are interesting but not significant

This case easily fits my criteria for employment law cases which are interesting from a social and human nature perspective without being particularly useful as a guide to employment law outcomes, and precedents. A woman has been nominally fined $10,000 and ordered to pay costs of $15,000 for contempt of court for disobeying a Federal Court order that she not contact former employees, from whom she said she was seeking support in a claim against her former employer for dismissing her allegedly for making complaints of workplace bullying and harassment.

Repudiation of employment contract

An interesting decision of the Full Court of the Supreme Court of South Australia has provided an insight into what might constitute the repudiation of an employer’s obligations under a contract of employment in the context of a transfer by an employer of an employee to a new position whilst maintaining the same salary."True repudiatory conduct by the employer, irrespective of whether the executive elected to treat the contract as continuing or not, would entitle the executive to claim damages for breach, the measure of which would be an amount reflecting the sum the executive would have earned had the contract been performed, perhaps subject to any amount earned by way of mitigation.

Remedies for adverse action

A recent Federal Court decision on an application by a union for an order for the interim reinstatement of a union official who had been dismissed for  "multiple acts of dishonest and fraudulent conduct" has failed with Judge Nicholls saying that while he was not suggesting that the union's case was "hopeless, bound to fail or even that there are no reasonable prospects of success",  the NTEU had not been able to demonstrate that reinstatement was the most likely result and therefor interim reinstatement was inappropriate.

Redundancy while on parental leave

A series of related decisions of the Federal Court have put beyond doubt the capacity of employers to lawfully make the positions of employees taking parental leave redundant, subject of course to the unfair dismissal laws. The cases arise from claims of discrimination, but clear the air about lingering doubts some have had about the issues of redundancies and parental or other forms of leave. See for example Stanley v Service to Youth Council Inc (No2) (2014) FCA 644.

Bullying

The need for repetitiveness in behaviour to constitute actionable bullying in the anti bullying jurisdiction of the Fair Work Commission is seen in a decision in which Commissioner  Roe has dismissed a claim of bullying.  Although the applicant’s  manager’s conduct was not above reproach, Commisioner Roe concluded that it did not constitute"repeated incidents of unreasonable behaviour which were not reasonable management action carried out in a reasonable manner" which was required before the Commissioner had jurisdiction to interfere.

Reninstatement for adverse action

A recent Federal Court decision on an application by a union for an order for the interim reinstatement of a union official who had been dismissed for "multiple acts of dishonest and fraudulent conduct" when the union is claiming that dismissal contravened the general protections provisions of the Fair Work Act is interesting because the judge was sceptical about the union’s chances of obtaining a remedy by way of reinstatement.  Judge Nicholls said he was not suggesting that the union's case was "hopeless, bound to fail or even that there are no reasonable prospects of success", but that the union had not been able to demonstrate that reinstatement was the most likely result.
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Restructuring and genuine redundancy
Recovering entitlements
Redundancy and small business employers
Industry specific redundancy schemes
Individual flexibility arrangements

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