Latest News In Workplace Law
1 January 2019 deadline for providing casual employees with copy of casual conversion clause, and potential casual conversion right for all federal system employees.
The 1 January 2019 deadline for employers to provide to casual employees employed as at 1 October 2018 with a copy of any award casual conversion clause is approaching. This obligation applies with respect to the vast majority of award employees covered by the federal system. For casuals employed after 1 October 2018, a copy of the clause must be given to the employee within 12 months of their commencement.
Further, the Federal Government has also announced plans to extend this casual conversion right to all employees – not just award covered employees. Legislation to this effect has yet to be passed. It has also announced a new regulation to be made to the effect that casuals who are paid an identifiablecasual loading, may potentially be offset against any subsequent claim for NES entitlements (such as annual or paid personal leave). This will increase the impetus for employers to update casual employment contracts to include terms to facilitate such an offset.
Right to unpaid domestic violence leave for all federal system employees
The Federal Government has passed legislation that will extend the right to up to 5 days per year of unpaid domestic violence leave to all employees covered by the Fair Work Act 2009 (Cth). Modern awards were varied earlier this year to include a right to domestic violence leave for award covered employees only. With this right now available to all employees, employers will need to consider policies and processes for dealing with and managing requests for this new category of leave.
Former employee dismissed due to suffering from poor mental health
The Court found Western Union Business Solutions discriminated against the former employee who had been absent for many months due to his mental health condition. The employer had communicated to the employee that his employment was to be terminated because of his lack of cooperation with participating in an independent medical examination (IME), and also because of ‘concerns’ regarding his fitness for work. However, the Court found that being dismissed due to ‘concerns’ about his fitness, but with no decision having been made that the employee was unable to perform the inherent requirements of the role, the dismissal was unlawful and did not fall within the relevant exception to s.351 of the Fair Work Act 2009 (Cth). Accordingly, Justice Flick concluded that Western Union took adverse action against Mr. Robinson contrary to section 351 of the Fair Work Act 2009 (Cth) on the basis of his medical condition and awarded $160,000 in damages.
Source: Robinson v Western Union Business Solutions (Australia) Pty Ltd [2018] FCA 1913
Journalist awarded $27,500 in underpayments
Nikola Jovic, a former FL Press journalist, was subjected to adverse action once he revealed that he had made enquires with the Fair Work Ombudsman’s office about his employment. The Ombudsman alleged that FL Press failed to pay Mr. Jovic minimum rates of pay, redundancy pay or make payment in lieu of notice when his full-time employment ended. Further, the Ombudsman alleged that Mr. Jovic made an enquiry to their office and as a result of this, was subjected to adverse action from his employer at the time, FL Press. The Court was satisfied that FL Press had failed to meet its obligations under the Fair Work Act 2009 (Cth) and awarded Mr. Jovic $27,500 in damages.
Source: Fair Work Ombudsman v F.L. Press Pty Ltd & Anor (No.3) [2018] FCCA 3339
