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What’s new this fortnight?

You’ll be excited to see that our fortnightly newsletter is back after something of a hiatus as a result of a very busy start to the year!


Court Services Victoria receives significant fine for psychological safety breach

The Melbourne Magistrates Court has fined Court Services Victoria nearly $380,000 (with an additional $13,863 in costs) in relation to a toxic workplace culture and a range of psychosocial hazards that contributed to the suicide death of an employee of the Coroners Court of Victoria.

The Court heard that from 2015 to 2018, Coroner Court workers were placed at risk of hazards including exposure to traumatic materials, role conflict, high workloads, extreme work demands, poor workplace relationships and inappropriate work behaviours. WorkSafe Victoria alleged that this led to numerous complaints of bullying, verbal abuse, derogatory comments, intimidation, invasions of privacy, threats to future progression, and the unfortunate suicide of a principal in house lawyer after being diagnosed with a work-related major depressive disorder.

The Court emphasised that all employers have an obligation to ensure, so far as reasonably practicable, that workers are not exposed to risks to their psychological or physical health and safety. Employers should seek specialist workplace law advice as to different preventative measures toward meet their duties to adequately identify and minimise the psychosocial risks that arise across all workplaces.

WorkSafe Victoria


High Court clarifies requirements around employees working Christmas holidays

The High Court of Australia has recently rejected an employer’s challenge of a Full Court of Australia’s ruling clarifying when employees can reasonably refuse requests to work on public holidays.

The Full Court previously held that the employer breached section 114 of the Fair Work Act 2009 (Cth) (FW Act) by unreasonably requiring up to 85 production employees to work a standard 12.5 hour shift on December 25 and 26.The employer failed to make a request to the employees to work the public holiday as required by the FW Act.

The Full Court held that ‘an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday’, and ‘ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable’.

Employers who operate on public holidays and roster employees on those days should seek advice regarding the consequences of this decision for their operations.

Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51

OSMCAP Pty Ltd ACN 626 224 655 v Construction, Forestry, Maritime, Mining and Energy Union, B24/2023


Federal Court orders employer to pay $80K for breach of statutory obligation

The Federal Court of Australia (FCA) has fined an employer $80,000 for breach of a modern award and the FW Act for failing to comply with statutory obligations to make superannuation contributions each financial quarter.

The employee sought to make a $100,000 claim for injuries suffered at work under an insurance policy maintained by his superannuation fund. The claim was rejected as a superannuation account had not been created nor had any employer contributions been made until six weeks after the employee sustained the injuries.

The FCA held that the employer was required to have made superannuation contributions prior to the employee sustaining the injuries and was therefore in breach of the FW Act and fined 80% of the employee’s initial insurance claim.

Payne v Secure Melbourne Protective Services Pty Ltd [2023] FCA 1311


Employer request to return to work considered reasonable

The FWC has found in favour of an employer in an application to deal with a dispute about the right to request flexible working arrangements.

An employee requested to work 100% of his hours from home, despite the employer having a hybrid working guidelines policy that required employees to work at least 40% of their hours from the office to ‘improve [employee’s] productivity and provide [them] with greater support’.

The employee supported his request by citing his inflammatory bowel syndrome (particularised as a disability) and his intended parenting arrangements. The FWC held that inflammatory bowel syndrome is not ‘capable of being described as a disability in the normal context of that word’ and that the employer’s flexibility in ‘[offering] to allow [the employee] to work from home in the weeks that he is the primary care giver of his child’ meant that the request to return to work was ‘on reasonable business grounds’.

Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768


Acute stress disorder warrants extending time in unfair dismissal case

The FWC has extended time for a worker to lodge an unfair dismissal claim, finding that a delay in receiving workers’ compensation payments prevented him from seeing his psychologist for an acute stress disorder, which justified the 38-day delay.

Section 366 of the FW Act provides that an application for unfair dismissal must be made within 21 days after the dismissal took effect, however the FWC can extend this period if they are satisfied there are exceptional circumstances.

The FWC held that ‘due to [the worker] suffering from an acute stress disorder together with an inability to access his treating psychologist due to a delay in receiving workers compensation payments’ amounted to ‘exceptional circumstances’ warranting the extension. The FWC further held that ‘a clinical diagnosis of acute stress disorder and a medical report which ascribed the [worker’s] delay to that condition can be described as ‘out of the ordinary, unusual or special’’.

Xavier Menta v Tree Amigos Victoria Pty Ltd [2023] FWC 2943


Limit on fixed term contracts

From 6 December 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 prohibits the use of fixed term contracts which exceed 2 years for the same role. This includes any renewal of an existing fixed term contract or consecutive contracts – i.e. the total term cannot exceed 2 years (with some limited exceptions).

From 6 December 2023, employers are required to issue a Fixed Term Contract Information Statement to all employees that are engaged on new fixed term contracts – before or as soon as practicable after entering into the contract (this will be available to download from the Fair Work Ombudsman’s website from 6 December 2023).

Importantly, if a fixed term contract is made in breach of the new provisions, the employee will automatically become a permanent employee with all terms of the contract continuing to apply. Employers should be mindful of this change and start reviewing their existing arrangements or seek specialist employment law advice to navigate around these reforms.

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

Fair Work Website

We hope you have enjoyed this fortnight’s employment law news. See you next fortnight!

The receipt of any information from us in this publication is not intended to create nor does it create a solicitor-client relationship between you and O’Reilly Workplace Law. This publication is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

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