Latest News in Workplace Law
Sex worker found not to be an employee
The Fair Work Commission (FWC) has found that a sex worker dismissed for “unacceptable and threatening” behaviour was an independent contractor and not an employee. Top Of The Town (TOTT), a Melbourne brothel, successfully challenged the unfair dismissal claim on the basis that it provided booking, introduction, accommodation and related support services to sex workers who in turn provide services as sole traders.
The judgement particularly emphasised the worker’s right to control, noting that ‘historically’ it has been the most significant indication of an employment relationship. The sex worker was able to determine when she could work, could request to work shifts outside of rostering arrangements and could reject shifts after they had been allocated. She also had the right to refuse bookings and negotiate prices and the types of services with clients. Deputy President Millhouse held that “the absence of any significant right of control by [TOTT] over [the sex worker] indicates the relationship is one of independent contractor”.
Lucy Helft v Top Of The Town [2022] FWC 2656 (5 October 2022)
Aldi to pay $10 million in unpaid wages after pre-shift tasks found to be work
Aldi have been directed to pay up to $10 million in unpaid wages to a western Sydney distribution centre in relation to workers who were required to clock on 15 minutes before the start of their paid shift to perform safety checks, collect and assess equipment, and transport stock to a central location. Employees could be exposed to disciplinary action where they repeatedly fail to compete these tasks before starting.
While Aldi maintained that workers had only been required to be ready to begin work at the beginning of their shifts, Judge Doug Humphreys held that there was a “clear implied direction that employees had to arrive early” to complete tasks that were “solely to the benefit of the employer”. The work was not considered to be a private activity because it did “not involve any activities that are for the benefit of the employee, such as storing personal effects, putting on uniforms or PPE”.
The Court found Aldi to be liable for an average of 10 minutes of unpaid work per worker since 2018.
Tram driver reinstated after employer fails to adhere to disciplinary processes
A Melbourne tram driver was dismissed with pay in lieu of notice after being told twice that ‘horseplay’ in the workplace was unacceptable. The first incident involved the prodding of another colleague in the back with his knee, and the second incident involved lifting of a knee towards the same colleague’s groin almost a year later (no physical contact was made). Ultimately the tram driver was dismissed.
Deputy President Colman found the tram driver’s conduct to be inappropriate, ‘silly pantomime’ and the dismissal to be disproportionate and harsh, finding the employer failed to clearly communicate its expectations of the tram driver to him. Further, that the employer had not followed the disciplinary process in the ‘Yarra Trams Enterprise Agreement 2019 – Operations’ (EA), mean that it had deprived the driver of his procedural rights. The EA outlined a policy of verbal and written warnings as well as interviews and consideration of alternatives to dismissal. None of these steps had been followed. The tram driver was reinstated and awarded $29,000 in lost wages.
Gregory Brass v KDR Victoria Pty Ltd t/a Yarra Trams [2022] FWC 2527 (21 September 2022)
Labor to increase paid parental leave by six weeks
Following a significant push for changes to the Paid Parental Leave (PPL) scheme at last month’s jobs summit, the Albanese Government has announced that the government funded paid parental scheme will be gradually increased from the current 20 weeks to 26 weeks in 2026.
Prime Minister Anthony Albanese, Finance and Women Minister Katy Gallagher and Social Services Minister Amanda Rishworth stated that under these changes families will have access to more leave and enjoy greater flexibility. The changes also aim to encourage more dads and partners to access PPL so caring responsibilities can be shared more equally.
The current 20 weeks of paid leave is made up of 18 weeks paid leave for the mother or primary care-giver and 2 weeks of dad or partner pay, both of which are paid at the minimum wage. The period of paid leave will increase to 22 weeks in July 2024, 24 weeks in July 2025 and reach the full 26 weeks in 2026. The 26 week period will be made up of 24 paid weeks for the mother or primary care-giver and 2 weeks for dad or partner leave. However, single parents will be entitled to the whole 26 week period. The Government will also make changes to boost the flexibility of the paid parental leave scheme from July of 2023.
