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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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Changes to Portable Long Service Leave
Changes to Portable Long Service Leave 1024 768 MJT Law - Brisbane Employment Lawyers

As of 1 July 2014 there were changes to the building and construction industry’s portable long service leave legislation.  The changes affect the long service levy rates which are now reduced from 0.3% to 0.25% of the total cost of building and construction work for projects where the total cost of work is up to $1 billion dollars.

There is a tiered levy rate for projects that are over $1 billion dollars but below $5 billion, any work over $5 billion will not attract the levy.

Exemptions

The amendments exclude ‘resource operation work’ which is defined as:

  • Mining under a mining tenement.
  • Separating, producing, gathering, storing, processing, refining or smelting a substance that is the product of mining, whether or not under a mining tenement.
  • Treatment operations undertaken in relation to a substance that is the product of mining, whether or not under a mining tenement.

Under the definition of ‘resource operation work’ also includes activities ancillary to, or undertaken in connection with, a resources operation.

A person may be exempt from paying the levy, or part of the levy, if the person their workers or contractors are considered to be not substantially engaged in the building and construction Industry.

There are transitional provisions that will apply to construction projects which will not apply to works that cost over $5 billion.

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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Think about employing someone who needs to relocate – more incentives to get them to you
Think about employing someone who needs to relocate – more incentives to get them to you 1024 768 MJT Law - Brisbane Employment Lawyers

The Relocation Assistance to Take Up a Job programme provides practical and financial assistance to job seekers who need help to relocate to take up ongoing and sustainable employment.

To be eligible to receive assistance under the Relocation Assistance to Take Up a Job programme the job seeker must:

  • be registered as a fully eligible job seeker with a Job Services Australia provider or be participating in Disability Employment Services
  • have been receiving an eligible income support payment (Newstart Allowance; Youth Allowance (other) or Parenting Payment) for the last 12 months
  • have activity test or participation requirements.

The programme provides long-term unemployed jobseekers who live in areas of high unemployment with the opportunity to secure employment in regions that have more jobs on offer.

What funding is available?

Eligible job seekers may be entitled to be reimbursed up to:

  • $3,000 (GST exclusive) if relocating to a capital city
  • $6,000 (GST exclusive) if relocating to a regional area, and
  • An extra $3,000 (GST exclusive) if relocating with dependent children.

Helping potential employees tap into this new resource may be just the thing you need to get a greater applicant pool in a ‘hard to employ’ area.

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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Restart is here – incentives to employ people over the age of 50
Restart is here – incentives to employ people over the age of 50 1024 768 MJT Law - Brisbane Employment Lawyers

The Australian Government will be providing subsidies to businesses who employ eligible job seekers who are over the age of 50 or have been unemployed and on income support for six months or more.

Employers can receive up to $10,000 (GST inc) to assist in employing an eligible job seeker over two years.  This subsidy is called Restart and will be paid in four six-monthly payments:

  • $3,000 after 6 months’ employment;
  • $3,000 after 12 months’ employment;
  • $2,000 after 18 months’ employment; and
  • $2,000 after 24 months’ employment.

Mature age job seekers employed for at least 30 hours per week will attract the full rate and eligible job seekers employed between 15-29 hours per week will receive a pro-rate subsidy.

The Restart subsidy is only available for employers who employ an eligible job seeker on or after 1 July 2014 for a minimum of 15 hours per week and not be receiving any other Government wage subsidies with the exception of the Tasmanian Jobs Programme wage subsidy.

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.