Bullet proofing against adverse action claims
Published 01 May 2013
As first published on Workplace Info (www.workplaceinfo.com.au). The adverse action provisions in the Fair Work Act 2009 (Cth) (‘the Act’) have the potential to provide very broad protections to employees and others. Taking adverse action is not, on its own, unlawful; however, it is unlawful to take adverse action because of a prescribed ground such as union membership, sex, race and disability.
A key question in a claim for adverse action under the Act is the causal link between the adverse action alleged and the prescribed ground. How the link is proven in practice is usually the central issue.
This article briefly outlines the adverse action framework with a focus on the link between union membership and adverse action and how the Federal Court in a recent case applied the High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32 (7 September 2012).
‘Go away money’— will it now go away?
Published 21 Feb 2013
First published in WorkplaceInfo.
One of the most common complaints to the Fair Work Act Review was that the Act has led to employers increasingly having to pay compensation (‘go away money’) to settle claims, irrespective of their merits. All experienced advisors, however, are well aware that ‘go away money’ has always been a feature of the system. Have amendments to the Act meant that this will finally go away? A Sydney law firm comments, based on its experience.
Fair Work Act Review
Published 15 Aug 2012
The recently released Report of the Independent Panel conducting the Review of the Fair Work Act -- “Towards more productive and equitable workplaces; an evaluation of the Fair Work legislation” has attracted very considerable comment, much of it is politically motivated.
Drugs and alcohol at work
Published 01 Nov 2011
First Published in Human Capital. An employee who is affected by drugs or alcohol in the workplace presents a risk to themselves, other employees, customers and your business.
Dismissed for misconduct:facing the consequences of facebook postings
Published 07 Oct 2011
First Published in Human Capital.
Two recent decisions highlight the differing
outcomes for employees who criticise their
employers on social media sites outside
Anti-social media: extending the employer’s tentacles…
Published 28 Sep 2011
There can be no doubt that social media in the workplace has become a live legal issue: judgments reflect it, company policies address it and we have all heard nightmare stories of comments on social networking sites costing people their job.
Peter Punch, Partner at Carroll & O’Dea Lawyers, examines a recent social media decision and the blurring of our personal and working lives.
BULLIES IN THEIR MIDST – EMPLOYERS’ OBLIGATIONS AND RISKS
Published 01 Sep 2011
First published in Human Capital Magazine
Long suffering over Long Service Leave
Published 22 Aug 2011
First published by CCH Australia Limited
FOLLOWING THE BOSS’ INSTRUCTIONS – HR MANAGERS BEWARE
Published 21 Jul 2011
First published in Human Capital Magazine
Serious Safety Breaches – Upholding Dismissals
Published 07 Jul 2011
SHARING A BIRTHDAY WITH THE FAIR WORK ACT – WHAT HAS CHANGED IN TWO YEARS?
Published 19 May 2011
First published by Human Capital magazine.
NEW OHS LAW CHANGES COMING SOONER THAN EXPECTED IN NEW SOUTH WALES?
Published 06 May 2011
First Published by CCH AUSTRALIA LIMITED
Banning Bullying - But What Is It?
Published 01 Apr 2011
The recent initiative by the new Liberal State Government in Victoria to introduce the “Crimes Amendment (Bullying) Bill 2011 has drawn attention again to the apparent epidemic of “bullying” in Australian workplaces and the need for a legislative response to this spreading disease.
The Use of Social Media and Implications for the Employment Relationship
Published 14 Feb 2011
The almost universal usage of computers in the workplace and the emergence of new forms of social networking media such as Facebook, YouTube and Twitter are generating novel challenges for employers. Most employers are addressing the social media phenomenon by implementing acceptable use policies and/or monitoring employee internet usage in accordance with applicable surveillance legislation.
“CASUAL” BY NAME – BUT NOT BY NATURE!
Published 01 Jan 2011
For some years Australia has had one of the highest rates of casual or insecure employment in the OECD. That state of affairs is a result of a number of factors, prominent among which is the changing nature of work in our age of exponential technological advances, increased employer interest in the perceived cheaper option of casuals and employee ‘lifestyle’ choices.
The Fair Work Ombudsman – an industrial watchdog with teeth
Published 01 Dec 2010
The WorkChoices legislation introduced by the Howard Government changed many aspects of Australian workplace law, and some of those changes have been retained by Labor. One of the significant changes has been the establishment of a large and well-resourced federal government agency charged with the tasks of ensuring compliance with workplace laws and the protection of employees’ entitlements – the Fair Work Ombudsman (or “FWO”), previously known as the Workplace Ombudsman. Prior to 2007, state and federal government workplace regulators tended to be under-resourced and their impact on Australia’s workplace culture and the rights of workers was limited. With the FWO now on the scene, that state of affairs has changed fundamentally.
Legal Link - Cyber Safety News
Published 01 Nov 2010
Welcome to the spring edition of Legal Link a publication designed to give you a snapshot of recent issues from Carroll &
Workplace Sexual Harassment: Implications beyond Discrimination
Published 01 Nov 2010
The recent publicity arising from the David Jones case has catapulted the issue of workplace sexual harassment back into the public consciousness and has highlighted the need for employers to ensure that their staff and management comply with anti-discrimination legislation at all times.
Discrimination: The potential for attack on multiple fronts
Published 01 Sep 2010
The potential for discrimination claims by employees against their employers is certainly not new; employees have for many years been able to bring such claims against their employers using federal and state anti-discrimination legislation, and unlawful termination protections. However, since 1 July 2009 employees have also been able to commence proceedings against their employers using the new “adverse action” provisions under the Fair Work Act 2009 (Cth).
Can the new “Transfer of Business” provisions work for employers??
Published 01 Aug 2010
Compared to the provisions in the now repealed “Work Choices” amendments to the Workplace Relations Act 1996, the Transfer of Business provisions contained in Part 2-8 of the Fair Work Act 2009 (“the Act”) provide greater certainty and flexibility for employers in a time of rapid change in modes of employment.
MODERN AWARDS – MISSION ACCOMPLISHED?... NOT YET!
Published 01 Jun 2010
A major element of the Labor Party’s industrial relations policy for the 2007 Federal election was the replacement of the many thousands of State and Federal awards with a limited number of ‘Modern Awards’.
“Workplace rights” and “adverse action” – Fear of the unknown or simply not yet known?
Published 01 May 2010
The Fair Work Act 2009 (Cth), which commenced on 1 July 2009, introduced some new and enhanced provisions relating to the protection of what are called “workplace rights”. These provisions provide an alternative basis upon which legal proceedings can be commenced by employees against employers where they are subjected to “adverse action”. However, in the nine months since the commencement of the Act, there has not been a huge wave of claims. Is it because employees fear the unknown quantity of new legislation or are they simply unaware that such rights exist?
OHS: looking to a fairer future?
Published 01 Apr 2010
Most employers will be aware of the strict obligations they are required to meet under occupational health and safety (OHS) legislation, particularly those employers operating in NSW. Over the past two decades, the NSW regime has earned the reputation for being the toughest in Australia. Unlike the system operating in some other states, the NSW Act imposes on employers virtually automatic liability for alleged OHS offences. The Act requires employers to ‘ensure’ (taken to mean ‘guarantee’) the health, safety and welfare at work of all employees, an obligation that is far more demanding than the common law duty to take reasonable care for workers’ safety.
Managing Chronic Sick Leave
Published 01 Mar 2010
“I have a senior employee who is regularly sick (due to colds, flu, etc). This person calls in sick approximately once a fortnight, sometimes for days at a time, and it’s hard to plan work around this person. He/ she is genuinely sick (displaying obvious signs of illness). The employee follows protocols, provides genuine medical certificates and abides by company policies, and while the employee is in the office, he/she performs ok. The problem is that the employee occupies a full-time position and he/she is not meeting the expectations of the role because he/she is only present around 80% of the time. How do I deal with this issue without breaching discriminations laws?”
The National Employment Standard - The devil is in the detail!
Published 01 Feb 2010
A central feature of the national industrial relations system proposed by the Rudd Labor Government was the establishment of certain minimum employment standards applicable to all employers and employees within this national system. This feature is now found in Part 2-2 of Chapter 2 of the Fair Work Act 2009 (Cth) (“the FW Act”) and became operative on 1 January 2010, at the same time as the Government’s national system of industrial relations came into effect (with some minor exceptions in Western Australia).
The New National Industrial Relations System - Some Certainty for Not For Profit Employers at last
Published 01 Nov 2009
Employment Law Newsletter - NFP Focus - October 2009
Published 01 Oct 2009
Unfair Dismissal Claims Bulletin
Published 01 Jul 2009
Important news about unfair dismissal claims
Some important parts of the Fair Work Act 2009 (C'th) start on 1 July 2009, including the new rules concerning unfair dismissal claims
Will you be ready for the changes in Fair Work Act ?
Published 01 Jun 2009
Fair Work Act 2009 now enacted - National Employment Standards Start 1 January 2010
Published 01 May 2009
HR Policies that promise too much ...
Published 01 May 2009