Month in Review – November 2016

Take a look back at the stories that have made headlines over the past month in the employment law and the human resources sphere and how these might affect your business as we approach the end of 2016.

In the News

Safe Work Australia has reported that almost one in ten Australian workers now experience bullying, particularly in the utilities, government administration and defence industries.

The ATO has revealed that each year they receive reports from more than 5,500 workers alleging that their bosses pay them ‘cash in hand’. Small businesses in high-risk industries are audited more frequently, such as restaurants, carpentry and electrical services.

The Workplace Gender Equality Agency gender equality scorecard showed positive signs that the ‘pipeline of women into leadership in Australia is strengthening’.

Former Australian Army Head of Personnel, Brigadier Peter Daniel, has encouraged business leaders to follow the Australian Army’s example in ‘leading from the top’ in order to effect cultural changes addressing problematic behaviour in organisations.

Limited public transport is a major barrier preventing young people from getting and keeping a job. Youth unemployment, at almost 13%, is double the national rate and is particularly concentrated in regional areas and fast-growing outer suburbs with poor transport links.

The Victorian Labor Government committed to a controversial proposal to make long-service leave ‘portable’ for security guards, social workers and contract cleaners, a policy which would affect tens of thousands of workers.

ABS’s released statistics for October showed a surge in new full-time jobs but weaker than expected overall growth in roles, although the unemployment rate remained steady at 5.6%.

Another ABS/RBA research paper also reported that more than two-thirds of the reduction in wage growth since 2012 was due to smaller pay rises, with the remaining third due to the lower frequency.

In the Courts

The Fair Work Ombudsman successfully used accessorial liability provisions to penalise across the chain of command of Yogurberry for its involvement in one of its franchises underpaying four overseas workers, proving their promise to place strong obligations and accountability on head companies.

In a sexual harassment case, the NSW Civil and Administrative Tribunal reiterated that an employer’s duty of care extends beyond physical safety to maintaining an environment free from potentially extreme mental and emotional distress.

The Victorian Supreme Court ordered ANZ, its chief executive and a further two executives to pay the costs of a case brought by an employee alleging they failed to make reasonable adjustments during her pregnancy.

The High Court confirmed that employees are not entitled to workers compensation if they develop psychological injuries as a result of reasonable management action, in a long-running case between Comcare and an ABC producer.

An employee who copied his employer’s files and worked for a competitor during gardening leave has been ordered to pay over $200,000 for copyright infringement and breach of employment contract.

The Federal Circuit Court held in favour of a labour hire worker’s claim that he was permanent full-time employee and not a fixed term or casual, as there was no element of choice in his daily working arrangements, duration of employment and his hours of work were clear and predictable.

The Fair Work Commission rejected a sales consultant’s anti-bullying application, stating that the workplace sales culture of hype and competition was not repeated and unreasonable bullying behaviour.

Our contributors

Meanwhile, our contributor, Brian Powles has written two articles about restraints of trade. In the first article, Brian talked about what steps a business can take to ensure that restraints are enforceable. In the second article, Brian analysed a recent Victorian case where the restraint of a former Cotton On CFO was found to be unreasonable and therefore, unenforceable. Brian talked about the difference in interpreting restraints in NSW versus in Victoria and the fact that the decision would likely have been very different if it was in NSW.

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Alecia Thompson

Alecia is known around the PCC offices as the strange one that doesn't drink coffee. Despite her lack of coffee drinking, Alecia works as an employment law solicitor and is passionate about providing practical advice that can help make your business a success. Alecia has visited all seven continents so can keep up in just about any conversation about travel. Contact her here.

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