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The rise of workplace bullying, unfair dismissal and general protections claims in the Fair Work Commission is not surprising considering the current economic and business climate. Managers and supervisors gaining an understanding of what is reasonable management action done in a reasonable way must be learned and trained – organisations and employers need to seriously…

NB Lawyers – lawyers for employers are assisting a number of clients with business sale transactions. One of the main considerations by many Employers in Australia who are looking to sell their business is the question around employee entitlements and legal obligations. There are 2 main situations in a sale. The first is the sale…

As we all know the primary remedy for an unfair dismissal claim is reinstatement. A recent unfair dismissal decision against a manufacturing food processor led to reinstatement of the employee in the Fair Work Commission. In the decision of Whitfield v Primo Foods Pty Ltd [2021] FWC 2729 (13 May 2021) (Primo Foods Case) the…

Human Resources has an incredible opportunity to build growth and people capability in organisations right now. However, there is also an opportunity to build HR compliance frameworks which might take some capital investment of time and money up front but will give board members, owners, directors and human resources (HR) the ability to sleep at…

The COVID-19 pandemic has led to a number of changes in the workplace and as a result, the Fair Work Commission has seen a major spike in unfair dismissal and general protections claims. Minimising health and safety risks through policy development around exposure to COVID-19 is near the top of many lists for human resources,…

A general protections claim is one application an Employer does not want to receive. Ask any employer lawyer, human resources manager or employee relations specialist and when it comes to employment law – a general protections claim are difficult to traverse. In previous articles we have wrote about: When You Get It Wrong, 3 Mistakes…

As directors, business owners and those with key decision making responsibilities the management of staff comes with several difficult issues involving personal liability of directors. Underpayment of wages is one major factor and a number of clients have sought advice from NB Lawyers – lawyers for employers on undertaking an audit of the wages paid…

We have discussed at length in two articles Can Australian Employers Force An Employee To Get Vaccinated? 3 Considerations From An Employment Lawyer and COVID-19 Vaccinations Are Coming – What Now? 5 Questions For Australian Employers To Consider whether an Employer can direct an employee to get the COVID-19 vaccination for workplace purposes. In the…

Casual Employment has been a flexible and commercial way to utilise a workforce in particular in industries where there is project work or there are natural ebbs and flows. The recent WorkPac cases of Rossato and Skene, the aftershock of COVID-19, a post JobKeeper landscape and high profile political debate from various stakeholders has led…

A question asked many times by clients is when a scenario involving serious misconduct is put to us – can we now terminate their (the employee’s) employment? Our response (with some adjustment) is usually – “of course you can – you are the Employer, however the key question really is – what would happen if…

Scott Morrison and the Federal Government have announced a clear initiative to (in principle) accept a significant amount of the 55 recommendations around sexual harassment. There are some overarching themes with the changes and what has been pushed is a more clear path and more distinctive grounds for employees to file sexual harassment complaints, applications…

The District Court of NSW has made a decision on a case involving a termination of employment mere days before a significant redundancy payment was owed to a long standing employee (20 years). Ultimately the Court found in favour of the employee awarding almost $300,000.00 in damages. The case of Sherry v Toyota Motor Corporation…

The pandemic has led to a number of changes in the workplace – words such as workplace flexibility, working from home, remote working, Zoom, Teams, virtual meeting are now common lexicon of the modern workplace. A number of clients recently have had to deal with Upward Bullying – a trend that has been on the…

There are a number of well documented workplace problems continuing to persist as we continue on this year – sexual harassment and bullying claims, underpayment of wages, the vaccination – mandate or not to mandate, redundancy and termination of employment claims and the end of JobKeeper. Many clients we have spoken to say there hasn’t…

With the backdrop of a number of sexual harassment claims currently in the news cycle and potentially plenty more. The issue of sexual harassment (and to some extent bullying) is prominent, a number of clients have sought our advice in defending their Directors, Executives, Managers and Supervisors and through vicarious liability the company against sexual…

For foreign investors, there are various factors to consider before starting a foreign business in Australia. Depending on the operation and industry relevant for the business, these factors can also vary. Generally, starting a business in Australia for foreigners need to consider factors including business structure, human resources and taxation. Choose Business Structure and IP…

Access to confidential information is part and parcel of work for many employees especially those working in finance, professional services and technology based businesses. The ANZ Bank recently dealt with a case where an employee filed an unfair dismissal claim after she was dismissed for: Undertaking an unauthorised celebrity search on the database Doing searches…

As we head towards the end of JobKeeper and the proverbial cliff for some companies – the term “Zombie Companies” spring to mind. What are “Zombie Companies” – those who are heavily reliant on the JobKeeper payments to pay for operational costs of the business but once the subsidies run dry will have difficulty running…

We recently discussed the Government’s IR proposed changes in the article Loosening The BOOT Straps And 9 Other Industrial Relations Changes. There has finally been some movement in this regard with discussions with the cross-bench proving to be a major stumbling block. As an update the BOOT test changes have now been scrapped (well at…

A number of Employers now must consider the COVID-19 vaccination. In a previous article “Can Australian Employers force an Employee to get vaccinated?” we answered the question – yes (with some caveats) mainly around: Inherent requirements of the position Workplace health and safety obligations Reasonable and lawful directions Dealing with objections Dealing with objections around the inherent requirements of the position and medical grounds. We…

The phenomenon of employees taking on “side hustle” projects or secondary projects is nothing necessarily new. The increase in secondary employment and multiple/diversified income streams has also been given a boost with the onset of COVID-19. A number of Employers have taken to terminating the employment of employees due to secondary employment or side hustle…

COVID-19, lockdown, face masks, illness, border closures and work from home (WFH) and remote working. These words seem to go hand in hand in our current workplace in Australia. Some states and territories are still feeling the effects of the pandemic whilst other workplaces are starting to look towards getting people back to the office…

The workplace is going through numerous change, and dismissal of staff members especially more senior staff and more highly paid employees is highly likely. As rent relief, JobKeeper and Government funding start to end we will start to see a number of organisations make major decisions around executive teams, management and staff. Get these decisions wrong and it could cost a company $5.2 Million! $5.2 Million!…

The answer is probably yes. Amid some false starts at some point and potentially in the near future a vaccine will be rolled out in Australia. The Federal Government have been clear to announce that the vaccine will be voluntary, leaving some Employers with ambiguity as to whether they can force an employee to be…

The Better Off Overall Test (BOOT) is consideration by the Fair Work Commission whether a proposed Enterprise Agreement (EA) or Enterprise Bargaining Agreement (EBA) is better off overall than the applicable industrial award. A proposed bill is looking to change this and give more ability for Employers and the Fair Work Commission to pass EA’s and EBA’s with more…

We ride into 2021 with lockdowns, face masks, UK strains and “your on mute” consistent buzzwords for Employers and the healthcare industry. Directors, practitioners and office managers may be fielding a lot of questions around legal entitlements and obligations so let’s get an assist from the leader of the Avengers himself, Nick Fury. Principle 1…

Personal or director guarantees are commonplace in many commercial contracts. Common transactions that will generally require a personal guarantee include: any business purchase; commercial leases; loans; or trading terms and credit applications. In such instances the personal guarantee will generally be from one or all the directors of the company. What is a Charging Clause?…

Due to the unprecedented impacts of COVID-19, 2020 has seen an array of legislative interventions to protect businesses to trade through the crisis. One of the more significant changes was the extension of the time frame for companies to respond to their creditor’s statutory demands. Statutory Demands Breakdown In ‘normal’ times a creditor’s statutory demand…

Employers are now gradually winding down their operations in preparation for a (well-deserved) Christmas break. The break gives employers and employees an opportunity to reflect on the year. For some employers, they may encounter a situation where their employees, after reflecting on their employment over the break, decide to look for ‘greener pastures’. Illness might…

The post pandemic landscape has meant a number of challenges for Employers and HR. As an Employment Lawyer human resources department ask for assistance on a range of matters. Here are some quick wins for HR for 2021. Tip 1 – Performance Management Training Some companies have seen a spike in productivity and others have…

An unfair dismissal claim has come across your desk. It has been given to the HR team to handle and hopefully the HR team have been involved with the situation prior to dismissal. What do you do now? Here are 3 quick considerations for HR: 1. What are the weaknesses in your defence? Consider the elements –…

Employees getting second jobs. As Employment Lawyers we have been asked to advise on this issue which has now come before the Fair Work Commission. In order to adjust to COVID-19, many employers have required employees to work reduced hours. Positions which have previously been full-time have been varied to part-time, or even casual. Some…

Unfair Dismissal cases have increased this year. Numerous issues have prevailed and as Employment Lawyers we have had to deal with difficult and unique challenges for employers. Cleaning companies have had mixed success during COVID-19 – some companies have been busier than ever. Others have struggled to continue their contracts. Many have unfortunately been in…

Understanding an Employer’s Obligations in Pay And Wages In their preparations for the post-COVID-19 landscape, many employers are reviewing their existing systems with a view on creating efficiencies to reduce operating costs. One of the key areas reviewed by employers is their payroll system. Modern awards are complex industrial instruments which can require a…

As Employment Lawyers we are in a privileged position to gather perspective on a very challenging time for many clients with uncertainty and fear prevailing. For others it has been an opportunity to pivot or seek different options to ensure their business survives and thrives. Discussing these points with many in human resources, personnel management…

The Fair Work Commission’s recent decision in Chambers v Toll Transport Pty Ltd[1] (the Decision) is a useful reminder for employers that not all ‘out of work hours’ misconduct by employees may give rise to a valid reason for dismissal especially in the context of a Christmas party.

We are commonly asked to advise directors and shareholders on how to resolve a management deadlock within their company. Management deadlocks can lead to damage to the business and business relationships and a lose-lose outcome for the partners. What is A Deadlock In A Company? A deadlock occurs when neither party (or factions) within a…

Most people know that transferring of property ownership from one person to another is not a simple task but only a few appreciate how complicated the process of transferring the ownership title from the seller to the purchaser is. How Property Conveyancing Works Conveyancing is the legal process of transferring the property from the seller…

A well drafted shareholders agreement will contain what is known as a “drag along” provision. Here we explain what a drag along clause does and why it can be important. Shareholders agreements – What is a drag along right? A drag along right allows a majority of shareholders to force minority shareholders to join the…

A decision of McKean v Red Energy Pty Ltd [2020] FWC 5688 involving an employee of electricity and gas provider, Red Energy who was a work from home employee due to COVID-19 gave a very reasonable direction to deny a request for a desk. The Fair Work Commission finding that it was “plainly” reasonable to…

Zombie Enterprise Agreements are industrial instruments which have passed their nominal expiry date but have not been terminated or replaced by another agreement. Our 3 Top Tips: Tip 1 – Review pay arrangements of your enterprise agreements Tip 2 – If the enterprise agreement is expired take active steps to mitigate the risk of it…

We have recently been asked by a client if they could treat a resignation by a disgruntled employee as a genuine resignation. The employee had felt stressed by events in his personal life and believed unjustified criticism was being directed towards him. He appeared to have verbally resigned at a performance management meeting and partially…

In 2019, our office released an article regarding the findings in the case of Moffet v Dental Corporations Pty Ltd [2019] FCA 344, focussing on the Federal Court’s decision that a dentist, otherwise considered a contractor for employment law purposes, was in fact an employee for superannuation purposes. This case is important because many allied…

We have recently reviewed a decision[1] of the Fair Work Commission (the Commission) involving the Southern Midlands Council, Tasmania (the Council) and an animal management employee. The decision serves as a useful reminder for employers who provide vehicles to their employees to have clear policies in place regarding their usage. A bit of background on…

Senior employees are often in a position of trust with their employers, to the extent they may owe an implied common law duty of fidelity to their employer, irrespective of the terms of their employment contract. This duty is often implied as a result of a senior employee’s access to confidential information, their knowledge of…

A recent Federal Circuit Court decision has seen 48 employees of Macquarie Bank being awarded in total $1.34 Million in underpayment of wages. Ranging from non payment of: Annual leave loading Periods of annual leave Personal/carers leave (sick leave) Compassionate leave Public holiday leave This was even though in the context of the Modern Award…

#1 Identify when a ‘restraint of trade’ clause is necessary Naturally, employers don’t want their former employees setting up shop next door in direct competition of the business. In our experience, the threat of a current or potential employee becoming direct competition doesn’t always cross an employer’s mind until it is too late. Therefore, our…

Tip 1 – Get it done at the Beginning The single biggest mistake we see is that the participants fail to prepare a shareholders agreement at the outset of the venture. There can be many reasons for this, including but not limited to the following: it may not occur to the parties that they need…

A recent decision of the Fair Work Commission has resulted in an employee being awarded the maximum compensation of 26 weeks pay (a little over $40,000) after it was held she was constructively dismissed. The constructive dismissal arose after the employer accused the employee of spreading malicious rumours in front of the entire workplace. In…

Redundancy in a transfer of business situation will usually be in circumstances where the “new” employer does not want to bring the employee onboard (for whatever reason) or the employee does accept a suitable alternate position. A recent case before the Fair Work Commission of Gravenall [2020] FWC 4499 (26 August 2020) (Gravenell Case) demonstrates…

As part of the Modern Award Review there were changes made to some awards from 1 July 2020. These changes may have the effect of increasing exposure to business risk and costs associated with engaging employees covered under the following Awards: Miscellaneous Award Some changes have included: The clarification of which employees are covered by…

Payroll Tax is a State imposed tax on employers, assessed by the wages paid to employees, applicable when the total amount of wages paid by an employer or a group of employers exceeds a determined threshold. There are special provisions in these laws for ‘employment agents’ who procure the services of workers for their clients.…

The Federal Government recently announced the HomeBuilder scheme in an effort to boost Australia’s limping construction sector by providing eligible applicants $25,000 to put towards building a new home or the renovation of an existing one. The scheme is a tax-free grant and is estimated to directly support 140,000 jobs across the country. Eligibility Criteria…

$664,601.38 payout! A staggering amount was awarded to an employee for breach of the General Protections – a substantial portion of this was assigned to the difficulty the applicant would have in obtaining employment in the current COVID-19, pandemic effected environment. TheFederal Circuit Court (FCC) has recently awarded an employee compensation to the tune of…

In Australia ‘sickies’ have become part of our identifiable culture. They are joked about with work mates and celebrated within social circles, but for businesses they are a serious problem, impacting both the productivity and profitability of an organisation. With a growing number of questionable medical certificates being used to access sick leave, many employers…

Trusts can be beneficial mechanisms for asset protection and tax purposes. There are various types of trusts each with its advantages and disadvantages depending on the desired purpose. Discretionary trusts, sometimes referred to as family trusts, are particularly beneficial for small businesses and estate planning. There are four main roles in a discretionary trust, as…

In Unfair Dismissal Applications – an employee must demonstrate their annual rate of earnings at the time of dismissal were below the high income threshold prescribed by the Fair Work Act 2009 (Cth)[1] in order to be protected from unfair dismissal. The current high income threshold (applicable to all dismissals taking effect after 1 July…

Unfair Dismissal Applications – When an employee alleges their termination of employment was harsh, unjust or unreasonable, the Fair Work Commission (the FWC) is required to consider a number of preliminary matters[1] including whether the employee was a person protected from unfair dismissal. One of these matters is whether the employee’s dismissal was a case…

COVID-19, the pandemic has caused massive disruption to industry. Manufacturing has been no exception and although there have been a number of companies who have benefited from clients “going local” and others who have pivoted into other areas – hand sanitizers been an obvious one. Many HR professionals in Manufacturing companies are coming to grips…

The Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 is one of the latest pieces of legislation enacted as a result of the COVID-19 pandemic. This legislation was made under the COVID-19 Emergency Response Act 2020 (Qld) and Retail Shop Leases Act 1994 (Qld) with the purpose of mitigating the effect of COVID-19 on small businesses and giving effect to the good faith leasing principles as outlined in the National Cabinet’s Mandatory Code of Conduct.

In recent times we have had a number of unique and challenging decisions come out of the Fair Work Commission – Skene and Rossato come to mind. We have also had a pandemic which has led to a number of changes to Modern Awards, directions and stand downs. New challenges have been forced on organisations…

The Fair Work Commission (FWC) was recently invited to consider a jurisdictional objection in a matter[1] involving a personal trainer who used the premises of a gym to conduct his own personal training business pursuant to a written Personal Training Agreement (PT Agreement). The PT Agreement required the personal trainer to pay sums of money…

Buying a new business can be exciting and full of opportunity for a purchaser. The main expense is of course the purchase price, but there are also other ‘hidden’ immediate costs of the transaction. It is crucial to take note and budget for these costs before signing a contract. Transfer Duty Transfer Duty (also ‘stamp…

As we step through the long standing effects of COVID-19, JobKeeper starts to dissipate in time and Employers look to restructure their business in response to less demand or increased efficiencies redundancies will be a very usual occurrence. How can Employers reduce their redundancy entitlement payments? Here are 3 factors to consider……… Factor 1 –…

The Fair Work Commission has vindicated Village Roadshow Theme Parks’ right to request employees on Jobkeeper to take annual leave. Although not going so far as a direction – the words “unreasonable refusal” found in the legislation gives Employers strong grounds to reasonably request employees to take annual leave (with some exceptions) – this is…

Back in August 2018, the now infamous Workpac v Skene case (Skene) dropped a bombshell on the widely held understanding of what it means to be a casual employee – that is, you get paid more money (casual loading) in exchange for certain entitlements afforded to your permanently employed compadres. The Federal Court of Australia…

The Federal Circuit Court have decided – “YES” Qantas are not obliged to pay sick leave (personal/carers leave) if an employee on lawful stand down. WHY? Qantas held the position it had lawfully stood down the employees and was subsequently not required to pay personal/carers leave as the employees were not entitled to take leave…

Force Majeure….breach of contract….termination of contract….performance of contract. Suppliers and service providers alike in industries as diverse as manufacturing and financial services, travel and engineering to marketing and dentistry are feeling the effect of COVID-19 and to a wider extent dispute over contractual obligations. The unprecedented event of the COVID-19 pandemic continues to place stress…

On Wednesday 22 April 2020, the Queensland Parliament sat for the first time in over a month in an effort to pass emergency measures aimed at supporting Queenslanders during the COVID-19 pandemic. Some of the measures passed include the following: $300 million aimed at relieving the cost of living which includes $200 credit for all…

Underpayment of wages by major companies has led to a term being coined “wage theft”. In particular, there has been a push by Unions as well as the Federal and State Governments to put in place criminal penalties for underpayment of wages – wage theft. Woolworths Coles Subway Commonwealth Bank Made Establishment (George Colambaris) Dominos…

sexual harassment

As an employment lawyer and part of a law firm that represents employers in employment law I am regularly challenged by numerous people, be it – clients, managers, supervisors, consultants, accountants, other lawyers with different specialties, and even friends in regards to the complex issues around sexual harassment and workplace bullying. It will usually go…

vendor finance

There are situations in which a bank loan is not a possibility when purchasing a business, property or other asset. This may occur because the buyer is unable or unwilling to secure a bank loan for the requested purchase price. However, the seller may be eager to sell their asset and be willing to come…

As part of its four-yearly review of modern awards, the Fair Work Commission (FWC) handed down a decision to insert two new ‘model’ clauses impacting the payment of Annualised Salaries to employees covered by certain awards. These changes are primarily intended to address a lack of uniformity among the range of clauses currently found in…

NB Lawyers – lawyers for employers recently acted for the Fraser Coast Regional Council (the Council) and successfully obtained a costs order following an unsuccessful application for reinstatement filed by a former employee.[1] We have previously written an article discussing the unsuccessful substantive application (https://www.lawyersforemployers.com.au/application-for-reinstatement-denied). HR Teams in Councils (or any practitioner familiar with employment…

Purchasing or selling commercial property is a big investment decision which you should seek advice from experienced professionals about including a solicitor, accountant and finance broker before signing a legally binding contract. Commercial contracts generally do not include a cooling off period which is why it is important to engage a solicitor prior to entering…

harvey bay marina council

Application for Reinstatement, Denied – How Excellent Complaint Management gives Lessons for HR Teams in Councils Our firm has recently acted for the Fraser Coast Regional Council (the Council) in relation to an application for reinstatement before the Queensland Industrial Relations Commission (QIRC).[1] Following our successful defence of the application for reinstatement, we continued to…

undoumented loans

Undocumented loans between friends and family It is very common to advance money to a friend or family member for a business or personal expense where they are in financial need. These loans are often verbal without a specified date for repayment. Employers may also lend a sum of money to an employee or other…

How Employers can learn from 5,700 employees underpaid by Woolworths – Top 4 tips for Employers Woolworths, Lush and Qantas were some of the big names in the spotlight recently due to underpayment of wages claims. Previously we discussed the wide ranging underpayment of wages issues a former Masterchef judge had to deal with and the…

Managing mental illness in the Workplace Managing mental illness in the workplace is difficult for any employer and management team. When dealing with complaints of mental illness in the workplace, from an employment law perspective, it seems to be categorised into three areas: Disclosure of mental health issues either involving work or not involving work During…

Property - NB Lawyers

There are several factors to be aware of when developing property in order to do so successfully. It will require sufficient research, planning and securing the right property. Property development involves various complex laws and regulations. Therefore, it is inherent that property developers understand and adhere to the laws in this area. Structure It is…

hiring, criminal,

The Australian Human Rights Commission Regulations 2019 (Cth) (AHRC Regs) which commenced on 1 October 2019 has clarified that an employer may be found (by the Australian Human Rights Commission) to have discriminated against a prospective employee if they make a distinction, exclusion or preference due to their “irrelevant criminal record”. The Previous Test The…

Getting a lease

Leases are complex legal documents that can be difficult to understand. We recommend that tenants always consult with a lawyer to advise on the agreement for lease and negotiate lease terms more favourable to you to ensure added security to your business. There are two (2) types of commercial leases, a retail and non-retail lease…

Underpayment of wages – “We have never had an issue before, so there is no need to worry about it” this is a standard line used by many employers and clients of NB Lawyers – lawyers for employers. It is very easy of course to ask for advice as a reaction to being sued by…

Facility Management Arrangements may well be a new way for dealing with “contractors” for those in health and allied health sectors. Those who own businesses in the fields of: Doctors, dentists, chiropractors, speech pathology, physiotherapy, optometry; audiology; occupational therapy should take note of the potential to utilise facility management arrangements. Employees are entitled to the…