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Practical Articles
  • The New Fair Work Act 2009
    Author: Anil Herat
    Firm: Legal Recovery Solutions
    Date: November, 2009
    Times viewed:
  • General Order on termination, change and redundancy introduced to employment in WA
    On 1 August 2005 a new General Order of the Western Australian Industrial Relations Commission (Commission) took effect. Importantly for employers in WA, the changes introduced by the General Order may increase their responsibilities and obligations upon termination, redundancy and the introduction of changes that are likely to have significant effects on employees.
    Firm: Allens Arthur Robinson
    Date: August, 2005
    Times viewed: 1074
  • Three Strikes and You’re Out!
    Getting problem employees dismissed is not just a matter of three warnings.
    Author: Victoria Hiley
    Firm: Toomey Pegg Drevikovsky
    Date: August, 2005
    Times viewed: 1267
  • Indemnity Costs in Unfair Dismissal Jurisdiction
    It is rare for the Queensland Industrial Relations Commission to make a costs order against an applicant in an unfair dismissal matter, much less an indemnity costs order. However, in a recent case1 the Commission showed it is willing to do so where the applicant's conduct warrants it.
    Author: John Naughton
    Firm: Allens Arthur Robinson
    Date: June, 2005
    Times viewed: 829
  • Howard Announces Workplace Reforms
    On Thursday 26 May, the Prime Minister announced a number of important workplace reforms and as a result, employers will confront a vastly different set of workplace laws if these reforms become legislation.
    Author: Peter Arthur
    Firm: Allens Arthur Robinson
    Date: June, 2005
    Times viewed: 1872
  • Show Me More than the Money
    The High Court has confirmed that reinstatement of an employee means more than just payment of remuneration and requires full restoration of pre-termination duties. This article looks at the impact of the appeal on employment relationships.

    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: May, 2005
    Times viewed: 577
  • Implied Redundancy Terms Come Back to Life
    A Full Bench of the Western Australian Industrial Relations Commission (WAIRC) has revisited the issue of implied terms about redundancy and upheld a claim for severance pay made by a retrenched employee.
    Author: John Naughton
    Firm: Allens Arthur Robinson
    Date: April, 2005
    Times viewed: 768
  • Amcor & Gribbles: High Court Rules on Transmission of Business Cases
    Employers may heave a collective sigh of relief now the long awaited judgments of the High Court of Australia in the Amcor[1] and Gribbles[2] cases have been delivered. On 9 March 2005 the High Court found in favour of both Amcor and Gribbles and quashed the decisions of the Full Federal Court that had been causing consternation amongst employers for some time.
    Author: Kathryn Dalton, Partner
    Firm: Herbert Geer
    Date: March, 2005
    Times viewed: 841
  • Too Tired to Work
    Take a minute to imagine the following scenario. It's Friday morning, at the end of yet another long week at the office. As you enter the reception area, you observe that the receptionist appears to be fast asleep. As she slumbers on, you wonder what disciplinary action you are entitled to take. Is hitting the sack a sackable offence?
    Author: Simone Szalmuk- Singer, Consultant and Kathryn Dalton, Partner, Workplace Relations Group
    Firm: Herbert Geer
    Date: March, 2005
    Times viewed: 1324
  • Bonuses and Allowances Do Not Count as Wages
    In Lee Haywood v Repco Ltd, the QIRC has found that car allowances and bonuses paid are not wages for the purposes of determining an employee's eligibility to make an unfair contract claim.
    Firm: Freehills
    Date: February, 2005
    Times viewed: 1662
  • NSWIRC to Determine Redundancy Test Case
    The NSW Industrial Relations Commission has just finished hearing a test case to determine the entitlement of employees to receive redundancy pay in circumstances where they have retained employment with a purchaser of the business.
    Firm: Allens Arthur Robinson
    Date: February, 2005
    Times viewed: 600
  • Restraint of Trade Clause Enforced
    The New South Wales Court of Appeal recently enforced a restraint of trade clause to prevent an executive from working for a competitor.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: January, 2005
    Times viewed: 1800
  • Queensland's Unfair Dismissal Jurisdiction
    The Industrial Court of Queensland has ruled that an employee engaged under either a federal award or a federally certified agreement is still entitled to the benefit of Queensland's unfair dismissal laws.
    Author: John Naughton
    Firm: Allens Arthur Robinson
    Date: November, 2004
    Times viewed: 1125
  • To Which Position Does the 'Inherent Requirements' Defence Apply?
    A recent Federal Court decision confirms that an employer is entitled to terminate an employee's employment on the grounds of a physical disability, provided that the employee is unable to carry out the inherent requirements of the particular position.
    Author: Dana Wintermantel
    Firm: Allens Arthur Robinson
    Date: November, 2004
    Times viewed: 785
  • Implied Right to Redundancy Payments
    The Western Australian Industrial Relations Commission has recognised a management level employee's right to a generous redundancy payment based on a formula in the company's enterprise agreement, despite the agreement being restricted to production employees.
    Author:
    Firm: Allens Arthur Robinson
    Date: October, 2004
    Times viewed: 650
  • Your Contract is Not Unfair if You Earn More than $200k
    The NSW Industrial Relations Commission has emphatically stated that employees earning more than $200,000 a year are not eligible to bring an unfair contract claim, regardless of when their employment ceased.
    Author:
    Firm: Allens Arthur Robinson
    Date: October, 2004
    Times viewed: 598
  • Termination of Employment Not "Industrial Action"
    A Full Bench of the Australian Industrial Relations Commission has recently decided that termination of employment is excluded from the definition of ‘industrial action’ for the purposes of section 127 of the Workplace Relations Act 1996 (Cth). The decision is important because it means that dismissal/redundancy decisions by employers cannot be halted by unions under the guise of section 127 proceedings in the AIRC.
    Author: Paul Burns
    Firm: Freehills
    Date: August, 2004
    Times viewed: 633
  • Guidance about $200K Cap Still Some Time Off
    The eagerly anticipated Full Bench decision in Aveling, concerning a high-earning executive's unfair contract claim, is still a number of months away.
    Author:
    Firm: Allens Arthur Robinson
    Date: August, 2004
    Times viewed: 636
  • Redundancy Pay on Outsourcing? Don't bank on it!
    Two major banks have recently experienced success in outsourcing. The ANZ and Commonwealth Banks have successfully defended claims for severance payments by employees who took up jobs on similar terms and conditions with the company providing the outsourced functions. That is, the employees were prevented from receiving both the money and the job.
    Author: Kathryn Dalton
    Firm: Herbert Geer
    Date: May, 2004
    Times viewed: 908
  • Federal Unfair Dismissal Laws
    The Workplace Relations Amendment (Termination of Employment) Bill (the Bill) was designed to create a single national unfair dismissal system. The House of Representatives passed the Bill on 11 February 2004, but the Senate voted against it on 22 March 2004, by 34 votes to 30.
    Author: Nico Burmeister
    Firm: Allens Arthur Robinson
    Date: April, 2004
    Times viewed: 2229
  • Redundancy Test Case
    The Australian Industrial Relations Commission handed down its decision in the Redundancy Test Case on 26 March.
    Author: Rosemary Bryant-Smith
    Firm: Allens Arthur Robinson
    Date: April, 2004
    Times viewed: 792
  • NSWIRC Unfair Contracts Jurisdiction Limited to Work-related Contracts
    In the much awaited 'Mitchforce decision', the NSWIRC, by majority, came into line with the view expressed in the New South Wales Court of Appeal and held that contracts or arrangements will not come within the NSWIRC's unfair contracts jurisdiction unless the relevant contract or arrangement provides directly for the performance of work.
    Author: Glenn Fredericks
    Firm: Freehills
    Date: March, 2004
    Times viewed: 586
  • “From Redundancy to Re-Instatement” - the Journey of Two Injured Workers
    Employers were recently given an alarming reminder by the Australian Industrial Relations Commission of the importance of implementing fair and lawful selection procedures when downsizing. In a recent case, an employer was ordered to reinstate two injured employees as well as pay them 18 months’ back pay.
    Author: Kris Growcott and Simone Szalmuk-Singer
    Firm: Herbert Geer
    Date: March, 2004
    Times viewed: 641
  • Family Responsibilities Balanced Responsibly
    An employer's decision to relocate a workplace has been upheld on appeal as being non-discriminatory, even though relocation impacted seriously on an employee's family responsibilities. Partner Jamie Wells reports.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: March, 2004
    Times viewed: 552
  • Lack of Suitable Position No Bar to Reinstatement
    Full Bench of the Australian Industrial Relations Commission has found that a lack of suitable positions for employees who are unfairly dismissed is not a bar to reinstatement. Law Graduate Scott Aspinall reports.
    Author: Scott Aspinall
    Firm: Allens Arthur Robinson
    Date: March, 2004
    Times viewed: 595
  • Latham Labor Industrial Relations Policy
    With a federal election on the horizon, Lawyer Nico Burmeister considers how the industrial relations landscape may change, should the ALP gain power.
    Author: Nico Burmeister
    Firm: Allens Arthur Robinson
    Date: March, 2004
    Times viewed: 634
  • Circulating Pornographic Emails at Work Held to Justify Termination
    b>Facts
    Mr Williams began working at Centrelink in October 2000. In November 2002 he became a harassment contact officer for the Ballarat office and was provided with information about Centrelink policies and relevant legislation.

    During his employment Mr Williams sent 23 inappropriate emails on Centrelink’s email system to internal and external recipients. These emails included pornographic pictures. One email sent by Mr Williams was received by a Centrelink employee in Coffs Harbour. Notification of this email prompted investigation into email use at the Ballarat office.
    Author: Nicholas Ruskin
    Firm: Phillips Fox
    Date: February, 2004
    Times viewed: 825
  • No Compensation for Reasonable Dismissal
    An employee who claimed workers compensation for psychological injury following constructive dismissal by her employer has lost her case in the NSW Compensation Court, after the judge found the employer's actions were reasonable under the circumstances.
    Author: Workers Compensation News
    Firm: Abbott Tout
    Date: February, 2004
    Times viewed: 600
  • Employees in Suits – Approach With Care
    Employers in New South Wales must ensure that dealings with employees starting unfair contract actions while still employed do not amount to criminal contempt1. Senior Associate Andrew Cardell-Ree reports.
    Author: Andrew Cardell-Ree
    Firm: Allens Arthur Robinson
    Date: February, 2004
    Times viewed: 657
  • Common Rule Awards for Victoria
    The Workplace Relations Amendment (Improved Protection for Victorian Workers) Act 2003 (Cth) came into effect on 1 January 2004 and reintroduces a system of common rule awards in Victoria. Lawyer Rosemary Bryant-Smith reports.
    Author: Rosemary Bryant-Smith
    Firm: Allens Arthur Robinson
    Date: February, 2004
    Times viewed: 898
  • Outsourcing and Restructuring Risks
    In 2004, the High Court will review two important employment issues affecting plans to restructure. We look at both special leave applications heard by the High Court in December 2003.

    While outsourcing functions such as IT can generate cost savings, there can be unexpected risks in replacing one outsource provider with another. Senior Associate Tony Saunders reports.
    Author: Tony Saunders
    Firm: Allens Arthur Robinson
    Date: February, 2004
    Times viewed: 686
  • Restructuring Risks – Amcor
    Employers intending to transfer employees between related corporations as part of a business restructure will be interested in the outcome of Amcor's appeal to the High Court. Partner and the solicitor for Amcor in these proceedings, Julian Riekert, reports.
    Author:
    Firm: Allens Arthur Robinson
    Date: February, 2004
    Times viewed: 635
  • Positive Discrimination Out of Favour
    Refusing an employee's request to return to work part-time after maternity leave is not discriminatory, so long as there are reasonable grounds for the refusal, according to a judgment handed down this month in the Federal Magistrates Court13. Law graduate Scott Aspinall reports.

    Author: Scott Aspinall
    Firm: Allens Arthur Robinson
    Date: January, 2004
    Times viewed: 656
  • Rostered Casuals and Unfair Dismissal
    Recent amendments to the Workplace Relations Act 1996 and its Regulations have clarified the definition of 'casual employees' who are excluded from accessing the unfair dismissal provisions. Lawyer Rosemary Bryant-Smith and legal clerk Tanya Josev report.
    Author: Rosemary Bryant-Smith and Tanya Josev
    Firm: Allens Arthur Robinson
    Date: January, 2004
    Times viewed: 526
  • High Court to Decide on Redundancy Payments
    The High Court is soon to consider the meaning of redundancy and the right of employees to severance benefits on a sale or transmission of a business. On 12 December 2003, the High Court granted Amcor special leave to appeal the Federal Court's Amcor1 decision. Lawyer Rosemary Bryant-Smith reports.
    Author: Rosemary Bryant-Smith
    Firm: Allens Arthur Robinson
    Date: January, 2004
    Times viewed: 536
  • Can Short-Term Casuals Access Unfair Dismissals in the Australian Industrial Relations Commission?
    Employers are warned to be cautious when terminating casuals as the Australian Industrial Relations Commission has ruled that a casual, with less than 12 months service but engaged in regular and systematic work has jurisdiction to make an unfair dismissal claim. This will be superceeded by legislation.
    Author: Rick Catanzariti
    Firm: Phillips Fox
    Date: January, 2004
    Times viewed: 419
  • Email Policy Precautions
    Recent case has shown that where an employer has a reasonable internet and email policy in place which has been communicated to employees, a termination for serious breach of the policy is likely to be upheld. This article sets out the guidelines of such a policy.
    Author: Joe Ganim, Jill Tudberry and Craig Cameron
    Firm: Hopgood Ganim Lawyers
    Date: January, 2004
    Times viewed: 788
  • What is the General Employee Entitlements and Redundancy Scheme (GEERS)?
    With the recent demise of a number of large corporations you may have heard about a government scheme that pays employee entitlements. This scheme is known as GEERS.
    Author: Joe Ganim, Jill Tudberry and Craig Cameron
    Firm: Hopgood Ganim Lawyers
    Date: January, 2004
    Times viewed: 1603
  • Redundancy obligations of employers and employees
    A recent decision of the NSW Industrial Relations Commission provides valuable guidance relating to the steps that employers and employees need to take in the event of redundancy.
    Author: Damian Sloan and Daniel Miller
    Firm: Ebsworth & Ebsworth
    Date: November, 2003
    Times viewed: 1216
  • When can an employer terminate an expired certified agreement?
    In a recent decision of the Australian Industrial Relations Commission (AIRC), Commissioner Whelan has found that it would be contrary to the public interest to terminate an expired agreement under section 170MH of the Workplace Relations Act 1996 (Cth) (WR Act) where such termination would result in uncertainty about the workers' contingent entitlements.
    Author:
    Firm: Freehills
    Date: November, 2003
    Times viewed: 442
  • Representations during negotiations
    A recent Federal Court decision confirms that rash or vague promises made during employment negotiations can fall foul of the Trade Practices Act 1974. Kirk Lovric outlines some of the legal risks that arise from employment negotiations.
    Author: Kirk Lovric
    Firm: Allens Arthur Robinson
    Date: November, 2003
    Times viewed: 500
  • Short-term 'Casuals' Win the Right to Make an Unfair Dismissal Claim
    A Full Bench of the Australian Industrial Relations Commission (AIRC) has departed from previous authority and held that an employee (in this case a waitress) performing regular and systematic work but with less than a year of service was entitled to make an unfair dismissal claim. However, the recent passage of the Workplace Relations (Fair Termination) Bill through both Houses of Parliament may mean this is only a fleeting opportunity for casuals.
    Author: Paul Burns
    Firm: Freehills
    Date: October, 2003
    Times viewed: 460
  • Can short-term casuals access unfair dismissals in the Australian Industrial Relations Commission?
    On 25 September 2003 the Full Bench of the Australian Industrial Relations Commission handed down a decision ruling that an employee classified and paid as a casual, with less than 12 months’ service, but engaged in regular and systematic work, had jurisdiction to make an unfair dismissal claim (Cetin v Ripon Pty Ltd t/as Parkview Hotel [PR938639]) (Cetin).
    Author: Rick Catanzariti and Tamara Kingsley
    Firm: Phillips Fox
    Date: October, 2003
    Times viewed: 522
  • A lesson for liquidators
    The NSW Industrial Relations Commission (Commission) recently held that a company in liquidation was liable for employee entitlements, despite the employees being nominally employed by a separate company. This landmark case highlights the need for liquidators to be aware of the potential for employee contracts to be varied by the Commission.
    Author: Damien Butler
    Firm: Deacons
    Date: October, 2003
    Times viewed: 498
  • No legal obligation to make redundancy payments
    Employers in Western Australia have no obligation to make redundancy payments as a matter of fairness if there is no contractual or award right. Bronwyn Byrnes and Tom Yuncken review recent developments in WA.
    Author: Bronwyn Byrnes and Tom Yuncken
    Firm: Allens Arthur Robinson
    Date: October, 2003
    Times viewed: 563
  • The disabling effects of drug addiction
    Discrimination against employees on the basis of drug addiction may support a disability discrimination claim. Cathy Scalzo reports on a decision that considered the 'prohibited drug exception' under the New South Wales law.1
    Author: Cathy Scalzo
    Firm: Allens Arthur Robinson
    Date: October, 2003
    Times viewed: 609
  • The Importance of Wage Calculations in Unfair Dismissals
    In a recent case that was decided by the Queensland Industrial Relations Commission ("QIRC"), [State of Queensland (representing Queensland Health and the Princess Alexandra Hospital) and Dr Frank Lepre Case No B632 of 2003], the QIRC held that the term "annual wages immediately before the dismissal" means "those earned in the 12 months immediately prior to termination and not some other period of 12 months that the party may seek to rely upon for their own purposes".
    Firm: Hopgood Ganim Lawyers
    Date: October, 2003
    Times viewed: 470
  • Redundancy entitlements and unfair dismissal cap
    The standard policy for redundancy entitlements in Queensland awards has recently been amended.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: October, 2003
    Times viewed: 782
  • Returning to work after maternity leave
    Managing maternity leave is an important feature of good human resources management. The following case illustrates the importance of managing maternity leave appropriately.
    Author: Rick Catanazariti and Tamara Kingsley
    Firm: Phillips Fox
    Date: September, 2003
    Times viewed: 629
  • Cashing out long-service leave
    A decision of the Queensland Industrial Relations Commission reflects the comparative ease when claiming a payment in lieu of an accrued long-service leave entitlement.
    Author: John Naughton
    Firm: Allens Arthur Robinson
    Date: September, 2003
    Times viewed: 759
  • Transmission of business
    An incoming employer may inherit the industrial agreements of an outgoing employer, even where there is no direct relationship or transaction between the incoming and outgoing employers. The decision of the Full Federal Court in Gribbles Radiology Pty Ltd v Health Services Union of Australia has important implications for the due diligence process involved in the transmission of a business.
    Author: Peter Liaw
    Firm: Allens Arthur Robinson
    Date: August, 2003
    Times viewed: 702
  • One-sided commitment unfair
    Employers should be wary when seeking a long-term commitment to the business from a prospective employee. As Laura Colavizza reports, a recent New South Wales Industrial Relations Commission decision3 demonstrates that such a request can be an inconvenient promise of job security.
    Author: Laura Colavizza
    Firm: Allens Arthur Robinson
    Date: August, 2003
    Times viewed: 520
  • Sacked Employee not Allowed to Double-dip
    Dismissed employees signing deeds of release in exchange for extra termination benefits are unlikely to be allowed to challenge their dismissal. This is a review of Thomas v Logica Pty Ltd.
    Author: Suzanne Weingott
    Firm: Allens Arthur Robinson
    Date: August, 2003
    Times viewed: 638
  • Dispute Resolution Clauses – an Invitation for Intervention?
    The Australian Industrial Relations Commission recently intervened in a dispute brought against Telstra about its planned culling of job numbers. In doing so, the Commission confirmed that it will interpret broadly any power of intervention included in dispute resolution clauses.
    Author: Jonathan Morley
    Firm: Allens Arthur Robinson
    Date: August, 2003
    Times viewed: 509
  • Resignation and Pro Rata Long Service Leave
    A recent decision of the Queensland Industrial Relations Commission addresses the issue of whether pro rata long service leave should be paid to an employee who resigns because of a domestic or other pressing necessity.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: July, 2003
    Times viewed: 1463
  • Post-Dismissal Conduct Relevant to Remedy
    Threats made by an employee after his/her dismissal may be taken into account when determining the type of remedy to award to the employee, according to a recent dismissal case (Galea v Tenix Defence Pty Ltd, 11 March 2003).
    Author: Kathryn Dalton and Simone Szalmuk
    Firm: Herbert Geer
    Date: June, 2003
    Times viewed: 377
  • PANdemonium: A Bitter Pill to Swallow - What Happens to the Employees?
    How would your business manage its workforce if a catastrophic drop in demand for your product or service resulted in reduced or no work? Do your current employment arrangements effectively provide for the business’ needs in times of crisis? Here are some suggestions that could bring your business back from the brink.

    Author: Kathryn Dalton and Simone Szalmuk
    Firm: Herbert Geer
    Date: June, 2003
    Times viewed: 507
  • Employers beware - IT Intellectual Property Ownership, Employees and Contractors
    Adequate protection of a business' intellectual property is not only valuable for income accrual through successful exploitation, but can also be a key indicator of the business' management performance, can add to the value of the business for the purpose of mergers or acquisitions, and may be used as security for loan or equity finance.
    Author: Stuart Gibson and Virginia Wallin
    Firm: Middletons Lawyers
    Date: May, 2003
    Times viewed: 735
  • Employers to make more frequent super payments
    The Superannuation Guarantee (Administration) Act 1992 (SGAA) was introduced to ensure that employees receive superannuation support from their employer.
    Author: Angela Petie and Skiahra Ireland
    Firm: Deacons
    Date: May, 2003
    Times viewed: 539
  • Remedy after unfair redundancy selection process?
    Last year, a Full Bench of the AIRC found that an employer had dismissed employees unfairly by considering their WorkCover history and injury status when implementing redundancies.1 The AIRC has now looked at the best way to deal with the breach.2 Natalie Shaw reports.
    Author: Natalie Shaw
    Firm: Allens Arthur Robinson
    Date: May, 2003
    Times viewed: 760
  • Apprehended bias in unfair dismissal arbitrations
    A Full Court of the Federal Court (Court) has recently dismissed an application for prerogative relief against a Full Bench of the Australian Industrial Relations Commission (AIRC), which found that a senior deputy president (SDP) should have disqualified herself on grounds of apprehended bias during the arbitration of an unfair dismissal claim.
    Author: Adam Strauss and Darren Perry
    Firm: Freehills
    Date: May, 2003
    Times viewed: 500
  • Implied contractual entitlement to redundancy pay - where to from here?
    Should an employer worry when a redundant non-award employee – who is not covered by a company policy or a collective or individual employment agreement providing for severance payments – claims that he or she nevertheless has a contractual entitlement to severance payments?
    Author: Ian Jordan
    Firm: Deacons
    Date: April, 2003
    Times viewed: 1095
  • Qualifying periods and probationary employment: is there a difference?
    Recent Australian Industrial Relations Commission (“Commission”) judgments leave it unclear whether a probationary period of employment agreed between the parties is the same as or different to the qualifying period of employment required by the Federal Workplace Relations Act 1996(“WR Act”).
    Author: Alan Grinsell-Jones
    Firm: Deacons
    Date: April, 2003
    Times viewed: 1418
  • Transparent redundancy selection criteria must be applied
    A recent Full Court of the Australian Industrial Relations Commission (“AIRC”) decision awarding compensation to retrenched employees illustrates the importance of employers applying transparent and objective redundancy selection criteria.
    Author: Helen Karatasas
    Firm: Deacons
    Date: April, 2003
    Times viewed: 690
  • Employees reinstated after breaching alcohol policy
    David Cross looks at a recent decision of the Australian Industrial Relations Commission that illustrates complexities in this area.1
    Author: David Cross
    Firm: Allens Arthur Robinson
    Date: April, 2003
    Times viewed: 607
  • Resignation and constructive dismissal
    The concept of 'constructive dismissal' has proven to be particularly vexing in the field of unfair dismissal.
    Author: David Cross
    Firm: Allens Arthur Robinson
    Date: March, 2003
    Times viewed: 1110
  • The long weekend - reducing absentee rates
    Research produced as a part of the recruitment company Hallis’s annual Contact Centre Turnover Report, has shown that employers who require employees to produce a medical certificate for sick days immediately proceeding and subsequent to weekends or public holidays have significantly lower rates of absenteeism than employers who don’t.
    Firm: Hopgood Ganim Lawyers
    Date: March, 2003
    Times viewed: 383
  • Employee considerations when buying a business
    In a recent New South Wales Industrial Relations Commission Case – Nurhayat Erduran and The Menzies Group of Companies t/as Allcorp Pty Limited [2003] NSWIRComm11(7 February 2003) it was held to be unfair to place long serving employees who’s employment has only changed in the sense that there is a new employing entity, on a probationary period.
    Firm: Hopgood Ganim Lawyers
    Date: March, 2003
    Times viewed: 463
  • Three warnings and you're out - debunking the myth
    Gone are the days where an employee must be given three written warnings before they can be terminated without repercussion or without regard to the actual severity of the performance, capacity or behavioural issues.
    Author: Jill Tudberry
    Firm: Hopgood Ganim Lawyers
    Date: March, 2003
    Times viewed: 465
  • Further Guidance from the Federal Court
    The Federal Court has upheld an application against the decision of the Superannuation Complaints Tribunal in Military Superannuation and Benefits Board of Trustees No.1 v Philip Graham Drake. The trustee argued that the Tribunal had no jurisdiction or power to make the determination it made.
    Firm: Abbott Tout
    Date: March, 2003
    Times viewed: 439
  • Remedying a defective redundancy
    Employers undertaking redundancy programs may find some comfort in the approach of a Full Bench of the Australian Industrial Relations Commission in Smith v Pacific Coal Pty Ltd, when refusing to reinstate redundant employees.
    Author: John Naughton
    Firm: Allens Arthur Robinson
    Date: March, 2003
    Times viewed: 538
  • Job applicant receives $7000 compensation for referee's privacy breach
    In a case recently reported by the Federal Privacy Commissioner (FPC) a Federal Government employee has received compensation for breach of privacy in respect of the disclosure of health information.
    Author: Gayle Hill
    Firm: Freehills
    Date: February, 2003
    Times viewed: 510
  • Superannuation Complaints Tribunal
    There has been some publicity in both the general press and the industry about three recent decisions of the Superannuation Complaints Tribunal, and how they may impact on the vexed question of who "owns" a surplus in a defined benefit plan - the employer or the members.
    Author: Phil Logan
    Firm: Abbott Tout
    Date: February, 2003
    Times viewed: 466
  • Ordinary and customary turnover of labour
    Simon Dewberry reports on a recent Queensland Industrial Relations Commission decision that is relevant to employers in industries that rely upon periodically rotating contracts.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: February, 2003
    Times viewed: 615
  • Food for thought
    Julian Riekert reports on a recent case highlighting the dangers that follow the adoption of a generous position or arrangement regarding rehabilitation of injured employees. The case involved the decision by George Weston Foods, concerned about the rising cost of WorkCover premiums and the number of its employees on restricted duties for injury-related reasons, to review its workforce.
    Author: Julian Riekert
    Firm: Allens Arthur Robinson
    Date: February, 2003
    Times viewed: 594
  • Consultation and redundancy
    The Australian Industrial Relations Commission has found that the failure to consult with a redundant employee rendered the termination unfair.
    The obligation to consult when an employee who is being made redundant requires more than informing an employee of the redundancy.
    Author: Tracey Cross
    Firm: Freehills
    Date: February, 2003
    Times viewed: 704
  • Succession to what? A surprising extension to the definition of transmission of business
    It is now well understood that where there is a transmission of a business from the vendor of that business to the purchaser continuity of employment is preserved for all employees who transfer with the business and become employees of the purchaser. Typically, this occurs when a business is acquired as a going concern.
    Author: Angela Petie
    Firm: Deacons
    Date: January, 2003
    Times viewed: 943
  • Employers tendering for contracts could get more than they bargained for
    The Federal Court of Australia has examined the meaning of ‘successor, assignee or transmittee of part of a business’ under the Workplace Relations Act. An employer who was not named as a party to an award was found to be bound by it when it took over new business, despite no direct contract or relationship.
    Author: Tracey Cross
    Firm: Freehills
    Date: December, 2002
    Times viewed: 554
  • Employee consent to restructure
    The decision of the Federal Court in McCluskey v Karagiozif provides a reminder that the consent of employees is required before transferring those employees from one company to another.
    Author: Peta Nowacki
    Firm: Allens Arthur Robinson
    Date: December, 2002
    Times viewed: 705
  • Lawyers let loose on time limits
    The Australian Industrial Relations Commission has confirmed that employees will rarely be held accountable for their representatives' failure to lodge termination claims within the 21-day time limit.
    Author: Jamie Wells
    Firm: Allens Arthur Robinson
    Date: December, 2002
    Times viewed: 505
  • Reasonable restraints
    The Victorian Supreme Court has upheld restraint of trade provisions. The Court found that a three-month restraint was reasonable to protect the employer’s legitimate business interests.
    Author: Employee Relations Group
    Firm: Freehills
    Date: December, 2002
    Times viewed: 643
  • Termination for off-site sexual harassment
    A report on a decision of the Full Bench of the Australian Industrial Relations Commission, which found that an employee's conduct at an off-site training course justified termination.
    Author: Cathy Scalzo
    Firm: Allens Arthur Robinson
    Date: December, 2002
    Times viewed: 591
  • Leave loading weighs heavily on employers
    Employers may need to review leave loading obligations in applicable awards and enterprise agreements to ensure their pay structure is fully compliant.
    Author: Julia Greenham
    Firm: Allens Arthur Robinson
    Date: November, 2002
    Times viewed: 2415
  • Employee entitlements under administration
    The Supreme Court of New South Wales recently ruled that the Commonwealth does not have any right in a Deed of Company Arrangement (DOCA) to claim funds to the amount it has already paid to the former employees under the General Employees Entitlement and Redundancy Scheme (GEERS).
    Author: Tania Cini
    Firm: Allens Arthur Robinson
    Date: November, 2002
    Times viewed: 688
  • ACTU test case on redundancy
    In late August 2002, the Australian Council of Trade Unions (ACTU) made an application to the Australian Industrial Relations Commission for a redundancy test case. The test case is intended to create a new national standard that will increase severance pay entitlements to Australian workers and include entitlements to long term casuals. It will be the first to test the Termination, Change and Redundancy Test Case established in 1984.
    Author: Gary Smythe
    Firm: Freehills
    Date: November, 2002
    Times viewed: 552
  • What is reasonable notice?
    In a decision by the Queensland Court of Appeal to decide what is reasonable notice, a senior executive has received nine months notice of termination of employment.
    Author: Joanna Glynn
    Firm: Freehills
    Date: November, 2002
    Times viewed: 1078
  • Affording fairness to an alleged harasser
    An employee was reinstated after having his employment contract terminated for allegedly sexually harassing a colleague.
    Despite the alleged harassment resulting in criminal charges and the employer issuing prior warnings for similar behaviour, the employee’s length of service, impact of the termination and the nature of the incident rendered the termination unfair.
    Author: Penny Thew
    Firm: Freehills
    Date: November, 2002
    Times viewed: 435
  • Destruction of documents in an employment context
    The need for best practice record keeping has been highlighted in the recent Victorian Supreme Court decision, McCabe v British American Tobacco Australia Services Ltd (“the BATAS case”).
    Author: Ashley Winnett & Megan Reeve
    Firm: Deacons
    Date: November, 2002
    Times viewed: 535
  • Privacy and employees' records in the transfer of business
    Employers must take precautions when involved in due diligence related to the transfer of a business where the purchaser seeks to access employee records and staff health and WorkCover claim information.
    Author: Stuart Kollmorgen and Karen Palmer
    Firm: Deacons
    Date: November, 2002
    Times viewed: 535
  • New programs for managers and HR professionals
    The Institute of Knowledge Development (IKD) is offering a new series of public and customised equal opportunity programs for managers and human resources professionals.
    Author: Jil Toovey, Institute of Knowledge Development
    Firm: Freehills
    Date: November, 2002
    Times viewed: 505
  • Redundancies stalled
    The AIRC has reaffirmed its broad powers to order consultation with interested unions when 15 or more employees are being made redundant.
    Author: Peta Nowacki
    Firm: Allens Arthur Robinson
    Date: October, 2002
    Times viewed: 521
  • An employer's duty of care - does it extend to termination of employment?
    David Cross reviews decisions of the English House of Lords and the New South Wales Court of Appeal, which each considered whether an employer's duty of care extends to the circumstances surrounding termination of employment.
    Author: David Cross
    Firm: Allens Arthur Robinson
    Date: October, 2002
    Times viewed: 897
  • Employer rights and responsibilities of human genetic information
    Cathy Scalzo reports on the release of an Australian Law Reform Commission discussion paper that considers the rights and responsibilities of employers using genetic information about their employees.
    Author: Cathy Scalzo
    Firm: Allens Arthur Robinson
    Date: October, 2002
    Times viewed: 759
  • Labour hire companies in the firing line
    Increased use of outsourced labour has coincided with a number of prosecutions of labour hire companies under workplace health and safety legislation. Joanne Wallis and Del Bobeff outline recent developments.
    Author: Joanne Wallis and Del Bobeff
    Firm: Allens Arthur Robinson
    Date: October, 2002
    Times viewed: 800
  • Redundancy Payments on Transfer of Business
    The recent decision of Construction, Forestry, Mining and Energy Union v Amcor Limited [2002] FCA 610 (Amcor), has seen a turnaround in the way redundancy payments on the transfer of a business will be treated. Employers may be liable for an employee’s redundancy payments to an employee despite the fact that the employee is transmitted to a comparable position with the purchaser.
    Author: Mark Howard
    Firm: Middletons Lawyers
    Date: September, 2002
    Times viewed: 641
  • Two recent employment decisions
    Two recent employment law decisions are important for insolvency and business sale matters.
    Author: Simon Howard - Employment and Industrial Relations and Keiran Breckenridge - Banking Insolvency and
    Firm: Henry Davis York
    Date: September, 2002
    Times viewed: 592
  • Termination and super: good advice matters
    A recent ACT Supreme Court decision commented on the duty owed by a Government authority in giving retirement advice to a former naval officer.
    Author: Matthew Smith
    Firm: Ebsworth & Ebsworth
    Date: September, 2002
    Times viewed: 644
  • No implied right to redundancy payments
    Emma Miller reviews a decision of the Western Australian Industrial Appeal Court that rejects the notion of an implied contractual right to severance pay on redundancy.
    Author: Emma Miller
    Firm: Allens Arthur Robinson
    Date: September, 2002
    Times viewed: 552
  • Walking the dismissal tightrope
    Simon Dewberry compares two recent decisions contrasting the approaches of tribunals faced with summary dismissal for serious misconduct.
    Author: Simon Dewberry
    Firm: Allens Arthur Robinson
    Date: September, 2002
    Times viewed: 563
  • Recent Federal Court decision has implications for outsourcing
    Justice Branson of the Federal Court (Court) recently held that the sale of a ship to a related company, and replacing the ship’s Australian crew with a Ukrainian crew on lower pay rates and conditions, was not a breach of the freedom of association provisions of the Workplace Relations Act 1996 (Cth) (WR Act).
    Author: Delia Keag and Paul Volich
    Firm: Freehills
    Date: September, 2002
    Times viewed: 476
  • Redundancy windfall in transfer situation
    The Federal Court has held that employees were entitled to redundancy payments in a situation where their employment transferred to a subsidiary company, even though the employees continued working in the same jobs and on the same terms and conditions of employment.
    Author: Paul Burns and Shivchand Jhinku
    Firm: Freehills
    Date: August, 2002
    Times viewed: 394
  • Employer and recruitment agent found liable for misleading and deceptive conduct
    A recent decision of the Full Court of the Federal Court sends a warning to both employers and recruitment agents that they may be found liable for misleading and deceptive conduct under section 52 of the Trade Practices Act 1974 (Cth) (TPA) for representations made to job applicants or persons whom they seek to ‘head hunt’.
    Author: Rebekah Fryer and Paul Burns
    Firm: Freehills
    Date: August, 2002
    Times viewed: 565
  • Federal Court ruling questions conduct of recruitment process
    A Federal Court ruling sends a warning to employers and recruitment agencies that they may both be found liable for misleading and deceptive conduct for representations made to job applicants.
    Author: Paul Burns and Rebekah Fryer
    Firm: Freehills
    Date: August, 2002
    Times viewed: 524
  • Privacy and the employment relationship
    A discussion of what is and is not exempt from the Federal Privacy Act as part of the employment relationship.
    Author: Lisa Matthews
    Date: July, 2002
    Times viewed: 654
  • Expanding your workforce
    In today’s corporate world it is clear that access to skills, ideas, contacts and technology from overseas can be extremely beneficial to the success of Australian businesses. A number of visa categories recognise this and make provision for the recruitment of foreign workers to conduct or establish businesses in Australia.
    Author: Joanne D’Andrea
    Firm: Middletons Lawyers
    Date: July, 2002
    Times viewed: 651
  • Labour reform or regression in WA?
    The Labour Relations Reform Bill 2002 (WA) represents the first real attempt by a Labor government in Australia to roll-back the recent legislative trend towards the primacy of individual agreements in industrial relations. Michelle Barnes reviews the key aspects of the Bill.
    Author: Michelle Barnes
    Firm: Allens Arthur Robinson
    Date: July, 2002
    Times viewed: 607
  • Redundancy - common sense not enough
    Senior Associate, Cathy Scalzo reviews a recent Federal Court decision that sounds a warning to employers to exercise care when drafting and interpreting redundancy clauses in awards, agreements and policies.
    Author: Cathy Scalzo
    Firm: Allens Arthur Robinson
    Date: June, 2002
    Times viewed: 588
  • Redundancy Payments on Transfer of Business - Employers Beware….
    Employers who transmit employees to a new employer may, following a recent case, be liable for redundancy payments even if the employment was reasonably comparable – and this may be retrospective.
    Author: Stuart Kollmorgen and Karyn Palmer
    Firm: Deacons
    Date: June, 2002
    Times viewed: 556
  • Sexual Harassment - A Big Problem for Small Businesses
    Many of the sexual harassment complaints made in the last 12 months relate to small businesses. This article outlines why this is a problem and what can be done.
    Author: Clare Dowling
    Firm: Middletons Lawyers
    Date: May, 2002
    Times viewed: 609
  • Drugs and Alcohol Policies - The Higher the Safety Risk the Greater the Need
    Occupational health and safety laws require employers to ensure that the health, safety and welfare at work of their employees, contractors and any other visitors to their workplace. The requirement to provide a safe environment at work goes far beyond a regular check or routine maintenance of machinery to ensure it is safe.
    Author: Janet Newman
    Firm: Deacons
    Date: May, 2002
    Times viewed: 558
  • Employees Hit With Exemplary Damages
    In a legal first, the Supreme Court of New South Wales has held that two employees who breached their contractual and fiduciary duties of loyalty to their employer were liable to pay to their employer not only damages but exemplary damages, of $10,000 each (Digital Pulse Pty Limited v Harris & Ors [2002]NSWSC 33, Palmer J).
    Author: Fabian Flintoff
    Firm: Deacons
    Date: May, 2002
    Times viewed: 623
  • Priority of Employee Entitlements in Event of Receivership
    The NSW Supreme Court decision in Madden v Fisher recently confirmed that the date for determining claims for, and priority of employee entitlements under s.433(4) of the Corporations Act in the event of receivership was the date of the appointment of the receiver.
    Author: Deacons
    Date: May, 2002
    Times viewed: 506
  • Beware employees who purloin their employer's information for their own gain - Digital Pulse Pty Limited v Harris
    Digital Pulse Pty Limited v Harris is likely to have far reaching consequences for disloyal employees who appropriate business opportunities from their employer.
    Author: iTEAM
    Firm: Henry Davis York
    Date: April, 2002
    Times viewed: 494
  • Court Refuses to Make Fixed Term Contract a Continuing Contract
    Despite the fact that a fixed-term employment contract was clearly in breach of a certified agreement, the Federal Court has upheld the validity of the contract in a recent case.
    Author: Leanne Nickels
    Firm: Deacons
    Date: April, 2002
    Times viewed: 604
  • Unfair Dismissal and Qualifying Periods of Employment
    The Workplace Relations Act, 1996, now provides that an employee who commenced after 30 August 2001 must have completed a qualifying period of employment before being able to make an application to the Australian Industrial Relations Commission (“the Commission”) for a remedy on the basis that their termination of employment was harsh, unjust or unreasonable.
    Author: Alan Grinsell-Jones
    Firm: Deacons
    Date: April, 2002
    Times viewed: 709
  • Employee Option Plans: the "can do" approach
    This articles takes a look at employee option plans in the context of unlisted companies, and dispels the myths surrounding them.
    Author:
    Firm: Abbott Tout
    Date: April, 2002
    Times viewed: 632
  • Immediate Dismissal - When is it an option?
    Negligence at work and failure to comply with directions does NOT justify immediate dismissal. The Supreme Court of Victoria awarded a senior executive $156,836.91 in damages (for the employer's failure to give proper notice), together with long service leave entitlements, after the court ruled that his summary dismissal was not justified (Rankin v Marine Power International Pty Ltd) [2001] VSC 150 (21 May 2001).
    Author: Helen Karatasas
    Firm: Deacons
    Date: March, 2002
    Times viewed: 919
  • Monetary compensation in unfair contract case
    The full bench of the New South Wales Industrial Relations Commission has confirmed that rigid principles cannot be applied in determining compensation in unfair contract cases. So the compensation ordered will largely come down to what the Commission considers just in the circumstances of the case.
    Author: Natalie Shaw
    Firm: Allens Arthur Robinson
    Date: March, 2002
    Times viewed: 789
  • NZ court defines 'good faith' in redundancy situations
    A bried look at the first decision on redundancy and 'good faith' under the Employment Relations Act 2000 in New Zealand.
    Author: HR&IR Group
    Firm: Minter Ellison
    Date: March, 2002
    Times viewed: 438
  • Liquidators Obliged to Remit PAYG Deductions to ATO on Distribution of Dividend
    The Federal Court held on 15 March 2002 that a liquidator distributing a dividend is obliged to deduct and remit to the ATO a PAYG deduction in respect of a dividend being paid to a former employee on account of unpaid salary or wages.
    Author: Deacons
    Date: January, 2002
    Times viewed: 361
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