HR Legal

A ‘Campaign of Pressure’ Led to $42K Compensation A former manager was awarded $42,552.06 compensation after being pressured by his employer to sign a new contract with a significant increase to his sales target for commissions and extensive post-termination restraints. The manager was told by his employer to “finish up” after refusing to sign the new contract.   Contrary to the employer’s claim that the manager had resigned after a meeting to discuss the new contract, the FWC found that he was placed in “a background of pressure” and that the company had demonstrated “clear unwillingness” to address his concerns regarding the terms. Moreover, the manager had reiterated throughout the meeting that he was not resigning. It was apparent that the manager sought to remain employed but would not accept the changes to his employment contract.    The manager’s decision not to sign the proposed contract did not amount to misconduct of any kind, nor did it relate to his performance. The employer did not have a sound reason for the dismissal, which ultimately was unfair. In particular, the FWC found that the manager was not: ✅ Notified of his dismissal in explicit, plain and clear terms; ✅ Notified of a valid reason for his dismissal; ✅ Provided with an opportunity to respond to any arguments about his conduct; and ✅ Paid his statutory entitlements such as annual leave and accrued long service leave in a timely manner.   The FWC held that reinstatement was inappropriate, and the employer was ordered to pay compensation of $42,552.06 plus superannuation. This case prompts employers to take a considered approach in amending employment contracts and establishes that placing unnecessary pressure on an employee to sign up to a new contract can lead to legal proceedings.    Case Reference: Clint Dupre v Excell Protective Group Pty Ltd

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At HR Legal, we take great pride in our supportive and inclusive workplace culture, where team members consistently check in with one another. Celebrating #RUOKDay2024 Day strengthens our dedication to mental health, encouraging open dialogues and reminding us all of the importance of connecting—even if just for a quick chat over a cup of coffee. In addition to our R U OK? Day efforts, we are launching on-going coffee roulette, a fun initiative designed to encourage team members to regularly meet up and engage in meaningful conversations, in line with this year’s theme - ‘R U OK? Any Day’.

Georgie Chapman GAICD (she/her), Partner, spoke to ABC News this morning on the Fair Work Commission Working From Home proceedings regarding the Clerks – Private Sector Award 2020.   The FWC is considering the introduction of a term into the Clerks Award regarding working from home arrangements ‘to remove existing award impediments to working from home arrangements’ such as provisions concerning the spread of hours and continuous ordinary hours.   We will keep you updated as to the progress of these proceedings. https://lnkd.in/gSnhyWUN

New Insights on Part-time and Flexible Work The Workplace Gender Equality Agency (WGEA) has this week released its Gender Equity Insights 2024 Report which provides a detailed snapshot of the incidence and evolution of part-time work in Australia. Some key findings of the report include: ✅ Women working part-time has decreased by 3.2 %, to 29.7% in the last 3 years. ✅ Flexible or hybrid full-time roles have increased by 2.3%, to 42.5%. ✅ More employees are working part time because it’s their preference (rather than because of ither reasons for example, childcare responsibilities). ✅ Implementing flexible work strategies increases the number of women working part-time by 3.6% and the number of female managers working part time by 1.8%. ✅ Part-time work for women is less common in larger, male dominated workplaces. However, for organisations with majority women on their boards, this increases part time opportunities for women by 3.4%. ✅ Promotion rates for women and men in part-time employment are half of their full-time counterparts ✅ The most rapid increase in full-time work over the past 3 years has been for women aged between 35 and 55. ✅ 65% of full-time managers can access flexible start and end times. Interestingly, this report suggests that there has been a structural move towards full-time work for women with hybrid/flexible arrangements. Consequently, to ensure workers' pay, career progression, or performance perceptions are not negatively impacted by the nature of their employment, WGEA recommends that employers normalise part time and flexible work arrangements, and consistently conduct pay gap audits. These measures are more likely to create a more equitable and supportive work environment for all employees as it promotes opportunities for women to boost their economic participation and career growth. If you would like any assistance in enhancing gender equality in your workplace, please contact HR Legal. Report Reference: Gender equity insights 2024, the changing nature of part-time work in Australia, BCEC|WGEA Gender Equity Series, Issue #9, by Alan Duncan, Silvia Salazar and Lilli Loan Vu, September 2024 https://lnkd.in/dn7dAyS9

Is compassionate leave the same as bereavement leave? Generally speaking yes, those terms are often used interchangeably. Under the National Employment Standards, employees can take compassionate leave if: ✅ A member of their immediate family or household dies, or contracts or develops a life-threatening illness or injury; ✅ A baby in their immediate family or household is stillborn; ✅ They have a miscarriage; or ✅ Their current spouse or de facto partner has a miscarriage. Employees are entitled to 2 days compassionate leave each time they meet the criteria. These days can be taken in a continuous period or over 2 separate periods of 1 day each. Full-time and part-time employees receive paid compassionate leave, which is paid at their base pay rate of pay for the ordinary hours they would have worked during the leave. Casual employees receive unpaid compassionate leave. There are also certain rules regarding notice and evidence that may be required to take compassionate leave. Note that enterprise agreements may contain more beneficial or different compassionate leave entitlements. If you have any questions about leave entitlements, please contact HR Legal. 

FWC Verdict: COVID Fears Alone Doesn’t Justify Permanent WFH: The FWC has upheld ANZ Bank’s decision to deny a 62 year old employee’s request for a permanent work-from-home arrangement due to concerns about contracting COVID. The employee commenced proceedings in the FWC in February after ANZ rejected her request to work from home permanently. She claimed that given her age, she was at a higher risk of contracting COVID, and that remote work had not negatively impacted her productivity in the role. ANZ refused the request on the grounds that there was no medical reason or evidence to support the request. Further, ANZ noted that its existing Flexible Working Policy, which enables employees to work half their time remotely, already provides a ‘significant amount of flexibility’. ANZ also offered a number of alternate options including a staged return to work, providing an anchor desk away from others in the office, additional breaks during the day, and the use of an outdoor space or meeting room for lunch. Ultimately, the FWC ruled in favour of ANZ, stating that the employee had not demonstrated that she had any underlying condition or contraindication that would make her more vulnerable to COVID. The FWC stated that the premise of the employee’s case “appears to be that ANZ is required to accommodate her fears about attending the workplace due to the risk of contracting COVID”. The FWC noted that “to accommodate those fears no matter how disproportionate those fears may be to the risk is simply unreasonable”. The FWC expressed that whilst the employee may choose to take precautionary measures in her private life to protect herself against COVID, that does not oblige ANZ to accept or apply measures in the workplace beyond what is ‘reasonably practical’, particularly given that workplace restrictions were relaxed by the Victorian government almost 2 years ago. This decision is particularly timely amid growing debate between workers and employers regarding demands to return to work and hybrid working arrangements. If you require assistance with managing hybrid working arrangements or return to work requests, please do not hesitate to get in contact with the HR Legal team. Case Reference: Deborah Lloyd v Australia and New Zealand Banking Group Limited [2024] FWC 2231

⚠ $350k fine and conviction for workplace fatality a grave reminder of crucial safety obligations on employers:   This month Gippsland grain transporter, D&A Martin Transport Pty Ltd pled guilty in the Melbourne County Court and was fined $350k for failing to provide and maintain a safe plant without risking the health and safety of its employees.   In January 2022, an employee of the company climbed to the top of the trailer to check the hatches while collecting a load of grain at a Maffra depot. While the sides of the trailer were fitted with guard rails, which can be activated by flicking a switch, the front right section of the guard rail failed to raise. Consequently, when the employee reached out to grip onto the rail he overbalanced and fell 3.9 metres to the concrete ground below. He died in hospital the following day.   Worksafe’s investigation found the guard rail failed due to a lack of inspection and maintenance, despite previous repairs which were deemed unsatisfactory.   The Court held that it was reasonably practicable for the company to have implemented a qualified inspection and maintenance regime for the guardrails, alongside ensuring any faults were competently repaired.   The case sadly highlights the potential consequence of employers failing to meet its safety obligations and the importance of employers and key personnel understanding their workplace health and safety law obligations.   HR Legal provides several training courses that can help organisations and key employees create a working environment that is safe and limiting health risks, including:   1️⃣ Critical Incident Management: The training provides managers and people leaders with practical understanding of business procedures and the legal risks of noncompliance. 2️⃣ Moot Courts: This training involves running a hypothetical WorkSafe prosecution in a mock court setting. This practical and immersive learning experience provides participants with an understanding of how prosecution of workplace safety incidents run, which reinforces the need for organisations, and all staff, to take a proactive approach to workplace health and safety.   If you are interested in either of these courses or require advice regarding workplace health and safety, contact HR legal today. You can view WorkSafe’s news article regarding this case here: https://lnkd.in/ge3tUD9D

Webinar: Changes to Casual Employment From 26 August 2024, as part of the latest Closing Loopholes amendments, a number of changes came into effect that impact casual employees and their employers.  Join us online for our FREE webinar during which Nathaniel Ganeson, Senior Associate at HR Legal, will discuss the key changes relating to casual employees and practical tips for employers to remain compliant moving forward. The webinar will cover:  ✔ Changes to the definition of casual employment with a focus on the practical reality of an employment relationship ✔ The expanded casual conversion pathway ✔ Changes to modern awards ✔ How these changes impact casual employees covered by an enterprise agreement ✔ Expanded jurisdiction of the Fair Work Commission to deal with disputes ✔ Fixed term contracts for casual employees in higher education ✔ The requirement to provide a Casual Employee Information Statement (CEIS) ✔ Strengthened protections for casual employees against unlawful adverse action ✔ Steps for employers to ensure they remain compliant with the new laws Don’t miss this opportunity to stay informed and ensure your business is compliant with these critical changes. Event Details: Delivery: Online via GoToWebinar Date: Friday 11 October 2024 Time: 12:30pm to 1:30pm AEDT Cost: Free

Are you confident in your understanding of your legal obligations and entitlements as an employer? HR Legal offers a wide range of training courses designed to upskill you and your team to appropriately handle employment and safety issues while managing legal risk. Our “Employment Law Awareness” course covers issues such as performance management, unfair dismissal, discrimination, workplace safety and injury management. This training course, taking place over a whole day, is delivered by leading workplace lawyers and consultants specifically for Managers, Supervisors and HR professionals. Enquire about training for your team today by visiting https://lnkd.in/g52SM4Xk