law

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Can my employer make me take Long Service Leave
Can my employer make me take Long Service Leave 1024 768 MJT Law - Brisbane Employment Lawyers

This is another question that I get asked when talking about long service leave (“LSL”).  First it is important to go to your work contract, then to your Award or Enterprise Agreement.  Once you have established that there are not provisions for how LSL is to be taken it is time to go to the legislation.

An employer must make an agreement with the worker about the time, the way and the conditions of how LSL is to be taken.  This means that you must come to an agreement between you and your employer as to when you are going to take LSL and for how long.

If you and your employer can’t agree then it is the employer who will decide when you will take LSL.  There are conditions though: the employer must give at least 3 months’ written notice of the date which you are to take LSL if they direct you to take 4 weeks or more.  Of course this is subject to any Award or Enterprise Agreement.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Bullying in the workplace – how defriending a colleague on Facebook can attract sanctions
Bullying in the workplace – how defriending a colleague on Facebook can attract sanctions 1024 768 MJT Law - Brisbane Employment Lawyers

A recent application to the Fair Work Commission brought up the issue of how people can use on-line media to perpetuate a bullying regime that can attract sanctions.  The definition of what constitutes bullying includes a requirement that it occurs more than once.  For most businesses or companies this can be a very low bar.

Earlier this year a worker for a small business made a complaint to the Fair Work Commission which included an application for an order to stop bullying.  In his decision the Commissioner stated the following about the employee’s situation and the actions of her boss

“This action (the unfriending of the employee from Facebook) by Mrs Bird evinces a lack of emotional maturity and is indicative of unreasonable behaviour, the likes of which I have already made findings on. The ‘school girl’ comment, even accepting of Mrs Bird’s version of events, which I am not, is evidence of an inappropriate dealing with Ms Roberts which was provocative and disobliging. I am of the view that Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her”

It was the unfriending of the employee on Facebook along with other actions that were aggressive and demeaning that amounted to bullying under the definition provided in the Fair Work Act.

If you are a victim of bullying or have an issue that could amount to bullying in the workplace, please contact us for assistance.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Restraint of Trade – how it affects you
Restraint of Trade – how it affects you 1024 768 MJT Law - Brisbane Employment Lawyers

Quite often when an employee is looking at moving on their first thought is to take clients with them.  This can be a minefield because of the legal restraints they have agreed on in their employment contract.

It is legitimate for a company or business to protect its intellectual property when operating.  Protecting goodwill is common and is usually done by inserting a non-compete or restraint of trade clause into an agreement or contract.

Restraint of trade clauses are generally difficult to enforce; this is because the courts do not want to restrain or stop a person from carrying on a business or trade.  For a restraint of trade to be acceptable it must not go any further than what is necessary to protect a legitimate business interest.  For example, preventing an employee from poaching clients which they have met during the course of employment may be reasonable but preventing that person from placing a bona fide job advertisement and attracting clients that way is not.

It is ultimately up to the Court to decide whether a restraint of trade clause is valid or not and whether a worker or employee has breached that clause.  When considering a clause, it is important to look at the following:

  1. what is the activity that is prevented or stopped;
  1. whom is the clause trying to prevent from the activity;
  1. how long must the activity be stopped; and
  1. where is the clause attempting to prevent the activity.

If the balance between the interests of the business/company and the worker are unreasonable then then the Court may consider the restraint of trade clause to be invalid.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Texting Afterhours ends in Termination of Employment
Texting Afterhours ends in Termination of Employment 1024 768 MJT Law - Brisbane Employment Lawyers

Facts

In the case of Ambrose v Moolarben Coal Operations Pty Ltd [2014] FWC 3899 an employee was dismissed after sending a co-worker an obscene image and comment to him with a mobile phone after work hours.

In July 2013 the employee had been working at the coal mine for about three years when he received an official warning noting that behaviour was against the company’s harassment creed.  In August 2013 the employee sent the co-worker the mms at which point the co-worker complained to his employer and the police.  After a disciplinary process he was dismissed.

The employee complained to Fair Work Australia claiming that the dismissal was harsh, unjust or unreasonable citing a number of reasons including that the conduct was not sufficiently connected to the employment relationship to warrant disciplinary action.

The Fair Work Australia rejected the arguments, stating that the mining company’s creed and its bullying and harassment policy clearly prohibited such conduct.  Fair Work Australia found that the company made all employees aware of the policies and had provided training on them.  It went on to say that the employee has been warned about inappropriate behaviour and there had been a clear breach of policies.

What to learn

It goes without saying that sending an obscene text messages to a work colleague is not a good idea with or without explicit policies prohibiting such behaviour.  The mining company ticked all the right boxes by having the policies in place that enabled them to discipline the employee.  They also effectively put into practice the policies to successfully defend a Fair Work Australia claim.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Helping young job seekers – they have all the incentive they need
Helping young job seekers – they have all the incentive they need 1024 768 MJT Law - Brisbane Employment Lawyers

The Job Commitment Bonus is part of the Australian Government’s plan to boost workforce participation and productivity in Australia.

The Job Commitment Bonus will provide a payment of $2500 to eligible young Australians aged 18 to 30 who have been on Newstart Allowance or Youth Allowance (as a job seeker) for 12 months or more, if they find and keep a job and remain completely off welfare for a continuous period of 12 months.

Eligible young people will receive a further payment of $4000 if they remain in a job and off welfare for a continuous 24-month period.  Eligible young people may undertake more than one job either at the same time or one after the other and still qualify for the Job Commitment Bonus however they will not be eligible for more than one Job Commitment Bonus for the same 12-month period.

The Job Commitment Bonus will provide long-term unemployed young Australians with a real incentive to get into paid work.

Claims for the Job Commitment Bonus must be made within 90 days after the end of the 12 and 24-month qualifying periods. The Department of Human Services will pay the Job Commitment Bonus directly to the job seeker at the end of the 12 and 24-month qualifying periods upon suitable confirmation that their work has been ongoing and they have not returned to income support.

Employing a young person can be a great way to get someone at ground level that will give you both enthusiasm and loyalty.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Contractor or Employee – are you in a sham contracting arrangement?
Contractor or Employee – are you in a sham contracting arrangement? 1024 768 MJT Law - Brisbane Employment Lawyers

A business or company may have many types of workers on their payroll.  Permanent or casual, full time or part time, flexible working arrangements and contractors.

If you are a contractor it’s time to have a think about the arrangement you have.

The ATO has one view of what a contractor is verses an employee and in many ways the Fair Work legislation holds the same views.  In employment law it is important to consider the differences between employees and independent contractors.

Key Indicators of being a Contractor

  1. You will run your own business with a view to promote your business and run a profit.
  2. You usually have to negotiate the fee and working arrangement and usually work with more than one client at a time.
  3. You will generally have your own ABN.
  4. You are in control of your own work

Difference between Employee and Contractor

The difference between employees and contractors can be difficult to figure out, it is not about any one difference it is about looking at the list as a whole and coming to a decision.

Employee Independent Contractor
Have your work directed and controlled by your employer Have a high level of control over how the work is done
Work set or standard hours, remember casual work hours can vary Can hire others to do the work or assist you to do the work
Usually have an ongoing expectation of work You have agreed on the hours required to complete the job
Bear no financial risk – its covered by the employee’s insurance Usually engaged for a specific time or task
Are provided by your employer all the tools or toll allowance You bear the risk of making a profit and you usually bear the risk of injury or poor work
Have your income tax deducted by your employer You use your own tools and equipment
Are paid wages or a salary regularly You pay your own taxes and GST
Are entitled to paid leave You have an ABN and submit invoices
Usually entitled to superannuation You don’t receive paid leave

What if I think I am an Employee but I am a Contractor?

If you are in a working situation where you are a contractor but think based on the above table, you are actually a contractor you could be in a sham contracting arrangement.   There are things that you can do to help resolve this problem, give us a call for a free 30-minute consultation to find out what your options are.

Sham contracting is illegal, and it is also illegal to:

  1. claim that an employee is an independent contractor when they are not;
  2. say something false to convince you to become an independent contractor;
  3. dismiss or threaten to dismiss you if you don’t become a contractor;
  4. dismiss you and then hire you as a contractor to do the same work.

If this article has brought up any questions that you may be in a sham contracting arrangement, give us a call for a chat.

Sources from Fair Work Ombudsman

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Firing and Hiring – notice and final pay
Firing and Hiring – notice and final pay 1024 768 MJT Law - Brisbane Employment Lawyers

Most employers and employees find it really hard to discuss wages and conditions with each other.  Employers often are paying as much as their business can afford and employees can feel like their bosses are not appreciating them and their wages reflect that.  One of the questions we get asked in and around the issue of firing and hiring is the notice and final pay.

How to give notice

When your employment ends or if you are the one firing the employee the notice must be in writing and it must be given at least on the last day of work.

Employers giving notice is often no problem because the worker is generally at work to receive the notice.  But if you are trying to give notice to an employee who is not actually at work?  An employer can give notice to an employee by:

  1. delivering it personally;
  1. leaving at the last known address;
  1. sending it by pre-paid post to the last address.

Employees don’t need to provide notice in writing when resigning it is okay to just verbally tell your boss or employer that you resign.

If you do not want your employee to work out the notice period, you can pay the employee out their notice period which is called “pay in lieu of notice”.  This amount must equal the full amount the employee would have received if they had worked out their notice period this includes any employee on probation.  This includes:

  1. incentive-based payments and bonuses;
  1. loadings;
  1. monetary allowances;
  1. overtime;
  1. penalty rates; and
  1. any other separately identifiable amounts.

If the termination is due to serious misconduct then there are different rules on termination notice, but the usual payments such as annual leave, outstanding payments and long service leave still need to be paid.

Sources from Fair Work Ombudsman

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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My employee is on a salary so the award doesn’t matter right?
My employee is on a salary so the award doesn’t matter right? 1024 768 MJT Law - Brisbane Employment Lawyers

It is a really common misbelief that if your worker is on a salary then you as the employee doesn’t need to worry too much about the award.  Usually I get this question because of a genuine misconception or misunderstanding of the law rather than an employer trying to get away with something.  The truth is that the Fair Work legislation is a mine field of rights and responsibilities that even the savviest employer will get their eyebrows singed once and a while.

I think this question is best answered against an award.  I am going to use a really common one the modern award for retail employees called the General Retail Industry Award 2010 [MA000004].

This award states that there is some flexibility in the award, this means that an employer and employee can come to an agreement that must be in writing to change certain conditions of the award.  If you a mad enough to venture into the award you will find under Part 7 that this includes pay.  The tricky thing is, that under this Part if you read on it states that the new agreement

“Must result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to”

That is just legal speak for: you can’t change the conditions unless your employee is better off overall then he/she would have been if the change had not been made

It is also important to understand that if there is an issue with the pay and an employee has been underpaid then they have 6 years to recover that money.  It might not happen the moment they leave but consider the possibility that their financial position changes and a few thousand dollars is looking pretty good.

If you think that you are being underpaid or you think that your employment contract has placed your staff in positions worse off than they would have been if the agreement was not entered into then we can help.  Just give us a call and we will see what we can do.

Sources from Fair Work Ombudsman

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.

			
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Demystifying Long Service Leave – what you should know
Demystifying Long Service Leave – what you should know 1024 768 MJT Law - Brisbane Employment Lawyers

Most of us know that long service leave (“LSL”) exists but very few of us really understand the rules that surround LSL.  LSL is a period of leave with pay much like your annual leave that is granted to employees in recognition of their long service as an employee.  Almost everyone is covered by long service leave.

The Law Stuff

In Queensland LSL is regulated by the Industrial Relations Act 1999 and covers the provisions for LSL for casual, permanent part/full time workers and, subject to certain conditions seasonal workers.

The legislation in this area can be confusing so let’s break it down a bit.

Entitlement

If you are an employee and have worked for 10 years or more of continuous service, then you will be entitled to8.6667 weeks of paid LSL.  After the first 10 years the next threshold is 5 years when you are entitled to 4.3333 weeks paid LSL.  After the first 15 years LSL accumulates much like your annual leave with no threshold time frames.

What is continuous service? The easiest definition is given by the Qld Government who states that:

Continuous service refers to paid working time and paid leave.  Employment is the total period engaged and can include unpaid leave.  The LSL entitlement is based on continuous service with the same employer including instances where the Act states that an employee’s continuity of service is both taken to be with the same employer or not broken in certain circumstances”

Although the above definition is not totally clear it does broadly mean that if you have been with the same employer for the period required then you should be entitled to LSL.

What if I haven’t worked at the same place for 10 years

The other question that I get quite a lot is “what happens if I want to take my long service leave earlier than 10 years?” the easy answer is unless there is a very good reason you will not be entitled to LSL if you leave before the 10 years.  There may be provision in your employment contact that states that you can pro-rata your LSL after a certain amount of time but that would be an agreement between you and your employer.

Generally

Employees who have completed between 7-10 years of service will be entitled to pro-rata LSL only if:

  • the contract is terminated due to the employee’s death;
  • the employee terminates their service due to illness or incapacity or because of a pressing necessity like domestic necessity;
  • the employer dismisses the employee for any other reason than conduct, capacity or performance; or
  • the employer unfairly dismisses the employee.

NOTE: if you have more than 10 years of service the payment of pro-rata LSL on termination is not subject to the criteria above.

What if I am a casual worker

All continuous service of a casual worker will be taken into account when calculating LSL.  This only applies if the continuous service is not broken by 3-months.

Casual long service leave is calculated in the following way:

hours worked / 52 x 8.6667 / 10 = hours entitled x hourly rate

hours worked/52 = a

a x 8.6667 = b

b /10 = number of LSL hours owed

hours owed x hourly rate

e.g. 100 / 52 X 8.6667 / 10 = 1.666 x hourly rate

hours worked = 100 :::> then 100/52 = 1.923

1.923 X 8.6667 = 16.666

16.666 / 10 = 1.666 (hours of LSL)

1.666 x hourly rate

What if my company gets bought out

The Act states that any accumulated LSL entitlements will transfer from one employer to another if the business changes hands.  This is also the case if you are terminated at the time the business changes hands and then within 3 months the new owner then re employees you.

Can my employer make me take Long Service Leave

This is another question that I get asked when talking about LSL.  First it is important to go to your work contract, then to your Award or Enterprise Agreement.  Once you have established that there are not provisions for how LSL is to be taken it is time to go to the legislation.

An employer must make an agreement with the worker about the time, the way and the conditions of how LSL is to be taken.  This means that you must come to an agreement between you and your employer as to when you are going to take LSL and for how long.

If you and your employer can’t agree then it is the employer who will decide when you will take LSL.  There are conditions though: the employer must give at least 3 months’ written notice of the date which you are to take LSL if they direct you to take 4 weeks or more.  Of course this is subject to any Award or Enterprise Agreement.

Sources from QLD Government

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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Redundancy during parental leave – employers catch a break
Redundancy during parental leave – employers catch a break 1024 768 MJT Law - Brisbane Employment Lawyers

The Case

In a series of related cases the Federal Circuit Court held that employees who were made redundant during parental leave were not discriminated against.  In these cases, the employees were working for Service Youth Council Inc. (“SYC”) P as a marketing manager and Y as a facilities manager.  Both P and Y claimed that once they told their manager that they were pregnant that they had individually became a target for dismissal (Y later abandoned that allegation).   The claim was that the actions of the employer breached the Sex Discrimination Act1984 which outlines that dismissal or any other detriment on the grounds inter alia of an employee’s sex, pregnancy/potential pregnancy and family responsibilities is unlawful.

The Decision

After taking into account all information the Court concluded that the P & Y were not targeted because of their pregnancy status.  The Court accepted that because of P’s maternity leave it enabled SYC to trial alternative arrangements and as a result found that P’s job was no longer necessary and in fact redundant.

To come to its decision, the Court compared a hypothetical employee who had taken leave and concluded that the result may have been the same and would not be treated any differently.  There was a contravention under s65 Fair Work Act 2009 because SYC failed to respond to P & Y’s requests for a more flexible working arrangement within the 21 days’ time frame.  The court then imposed a penalty of $2,500 to be paid to P and $4,000 to be paid to Y.

What to Learn

It is important to consider all the consequences when making an employee redundant while on parental leave.  It is also important to make sure that any requests are responded to within 21 days of the request being made.  While the Commission appears to be more flexible in its decisions relating to redundancy, the time frames however, are not up to interpretation.  If you get a request for a more flexible working arrangement, start the clock and make sure you are responding to those requests on time.

The information in this document, broadcast or communication is provided for general guidance only. It is not legal advice, and should not be used as a substitute for consultation with professional legal or other advisors. No warranty is given to the correctness of the information contained in this document, broadcast or communication or its suitability for use by you. To the fullest extent permitted by law, no liability is accepted by the publisher for any statement or opinion, or for an error or omission or for any loss or damage suffered as a result of reliance on or use by any person of any material in the document, broadcast or communication.
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