High Court’s decision to reject backpay to Casual Workers

High Court’s decision to reject backpay to Casual Workers

The High Court of Australia has recently affirmed that casual workers are not entitled to receive payments for annual, sick, or other forms of leave, and that if a worker is receiving these benefits and being promised ongoing employment, that worker may not legally be considered casually employed under the Fair work Act 2009 (Cth) (‘Fair Work Act’).

The decision in Workpac v Rossato

 The High Court’s decision was made after allowing the appeal of Workpac in their case against casual mine worker Robert Rossato. The courts had investigated Mr Rossato’s alleged status as a ‘long-term employee’ for the labour- hire company and found that he was actually only employed in the capacity of a designated ‘casual-worker’.

Mr Rossato was employed by Workpac for four years. During the time, he received a total of six employment contracts which described his role as a ‘casual employee’. Mr Rossato claimed that by working on a fixed weekly roster – sometimes over several consecutive months – he was more than just a ‘casual-worker’ and that there was a discrepancy between his title and the actual nature of his work. At first instance in the Federal Court it was found that Mr Rossato was not a casual employee upon this basis. However, upon appeal, the High Court found that Mr Rossato was a casual employee under the Fair Work Act.

The Court made this decision on the basis that although Mr Rossato had been given rosters several months in advance, this did not constitute a ‘firm advance commitment’ of work, as the shifts could have been changed or taken away from him at any time. Additionally, the Court concluded that Mr Rossato was employed on an ‘assignment-by-assignment’ basis, as he was entitled to accept or reject any offer of assignment, and Workpac had no obligation to offer additional assignments.

Mr Rossato was not receiving any paid annual or sick leave and he was receiving casual loading. The Court held that these were “compelling indicators” of a casual employee.

Fair Work Act 2009

The Fair Work Act is an essential Commonwealth statutes that governs employment by setting out terms, conditions, rights and responsibilities in the relationship between employers and employees. It regulates the rights of both employers and employees to request flexible working arrangements, and also deals with things such as termination and the general protection of workers’ rights.

The Federal Court’s initial decision in Workpac v Rossato necessitated a change to the definition of a casual employee under s 15A of the Fair Work Act. The new definition states casual work involves an employment relationship in which ‘employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”.

How Etheringtons Solicitors can help

If you would like further information regarding employment issues or paid entitlements, please do not hesitate to contact one of our solicitors on 9963 9800 or via our contact form here.

Fair Work Commission Rejects Unfair Dismissal of Unvaccinated Employees

Fair Work Commission Rejects Unfair Dismissal of Unvaccinated Employees

Australia’s national workplace tribunal, the Fair Work Commission (FWC), has upheld the dismissal of unvaccinated employees for failing to comply with relevant public health orders (vaccination directions) regarding COVID-19. To mitigate the risk of unfair dismissal claims, employers must ensure that procedural fairness is upheld.

Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.

Can an employee be terminated for refusing to be vaccinated?

The cases explored in this article have established a precedent for the lawful dismissal of unvaccinated employees. The cases demonstrate how an employee’s decision to remain unvaccinated against COVID-19 can prevent onsite work. The refusal of vaccination directions can result in an employee being incapable of performing the inherent requirements of their role, thus leading to a valid reason for dismissal.

Floors Aucamp v Association for Christian Senior Citizens Homes Inc [2021] FWC 6669

Background:

In January 2016, Mr Aucamp commenced employment with the Association for Christian Senior Citizens Homes Inc (the Association) in the role of a full-time maintenance manager.

On 4 October 2021, a meeting took place between Mr Aucamp and two representatives from the Association to discuss the vaccination directions that were going to be implemented on 7 October 2021. The Association was aware of Mr Aucamp’s objection to the vaccine. Mr Aucamp agreed to the possibility of dismissal should he refuse to comply with the vaccination orders.

Mr Aucamp’s employment was terminated on 14 October 2021 on the basis that Mr Aucamp could not lawfully enter the premises and was therefore unable to perform his duties.

FWC Decision:

The FWC agreed that Mr Aucamp was required to be vaccinated in accordance with public health orders. The FWC held that Mr Aucamp’s decision to remain unvaccinated rendered him incapable of achieving the expected standards of performance, thereby constituting a valid reason for dismissal.

Isabella Stevens v Epworth Foundation [2022] FWC 593

Background:

On 20 September 2021, the management of Epworth HealthCare (Epworth) informed all employees that mandatory vaccination directions required healthcare workers to ‘be vaccinated and provide appropriate evidence of vaccination, or have a booking to receive a vaccination by 29 October 2021, unless the exception for medical contraindications applied.’

Ms Stevens, a dietician at Epworth, communicated her objections to the vaccine to the executive general manager of Epworth Richmond. The executive general manager advised her that it would not be feasible to ‘perform the key requirements of her role from home.’ Owing to Ms Stevens’ incapacity to attend the workplace, her employment was terminated.

FWC Decision:

The FWC upheld the dismissal of Ms Stevens on the grounds that she refused to provide her employer with proof of her vaccination status.

The FWC rejected the following submissions from Ms Stevens:

  • that taking the vaccine was to ‘participate in a “medical trial procedure”’
  • that the vaccination directions were inconsistent with federal law
  • that the vaccination directions were inconsistent with the Privacy Act 1988
  • that the vaccination directions were inconsistent with anti-discrimination legislation
  • that the vaccination directions were inconsistent with international human rights conventions
  • that Epworth should have lobbied against the Victorian Government to have the vaccination directions revoked

The FWC held that Epworth’s dismissal of Ms Stevens was in accordance with vaccination directions which imposed a duty of care on healthcare facilities. These directions imposed a ‘regulatory requirement’ in relation to the vaccination status of Epworth’s employees, rendering the dismissal lawful.

Likewise, the FWC rejected the contention that the COVID-19 vaccination rollout was a “medical trial,” as the relevant tests had taken place before the Therapeutic Goods Administration approved the vaccines.

What are the obligations of an employer?

It is the responsibility of the employer to take steps to comply with the relevant public health orders. When implementing policies such as mandatory COVID-19 vaccine policy, employers must ensure procedural fairness by undertaking a consulting process with their employees.

To understand how the vaccination directions apply differently across each state and territory, please visit the Fair Work Ombudsman website.

Additionally, if you would like to learn more about the complexities of unfair dismissal claims, please visit our blog.

How Etheringtons Solicitors can help?

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with any employment law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

The Legality of Cash in Hand Wages in Australia

The Legality of Cash in Hand Wages in Australia

Some businesses choose to pay their employees cash in hand wages rather than transferring them to a nominated bank account. Whilst this method is generally believed to be illegal, that is not necessarily the case. Employers must meet their obligations to their employees and the government, whether they make payment in cash or otherwise. This article will explain how cash in hand wages can be legal and the obligations employers must observe when paying their employees.

What is ‘cash in hand’?

Payment of wages as cash in hand means that a person is paid directly in cash rather than through a bank or with a cheque. In small hospitality and maintenance businesses, where this practice is common, it is an easy and efficient way to operate the business.

Employer obligations

If an employer wants to pay wages through cash in hand, it is important that they ensure their obligations are still being met by:

  • Paying their employees the correct amount under the relevant award;
  • Paying the correct amount as stipulated in employment contracts and allowing for any leave entitlements;
  • Taking out the relevant tax amount to ensure employees aren’t left with the bill;
  • Contributing superannuation payments to employees superannuation funds; and
  • Being covered by workers compensation in case an employee is injured at

To legitimise the cash in hand payment, it is advisable to provide your employees with a pay-slip to prove that their earnings correlate with the award, the correct tax is being taken out and superannuation payments are being made. Pay slips should generally include:

Employer and employee names; Australian Business Number; Pay period (weekly or fortnightly);

Gross and net pay (pay before and after tax); Applicable hours worked and rate of pay; Any additional loadings or penalty rates; and Superannuation contributions.

Employers can also provide employees with a payment summary at the end of each financial year which outlines how much they have been paid throughout the year, and what amount of this is going to tax.

Once these records have been provided to employees, it is essential that employers keep and file a copy for their own records. Employers are expected to keep a record of their employees and their pay and this can be as simple as keeping a physical or electronic copy of employees’ pay slip.

It is also important as an employer that you ensure that you comply with the requirements of the Australian Taxation Office. Committing tax fraud or other tax related offences can attract severe criminal penalties. Therefore, it is important to comply with the ATO’s requirements and withhold the correct tax amount from your employees’ wages. If you are concerned about tax thresholds or understanding your reporting obligations, it is imperative that you seek the appropriate financial and legal advice.

There have been a number of high-profile cases involving the systemic underpayment of workers in restaurants, convenience stores and petrol stations. It is critical that these sorts of practices do not continue into the future.

Receiving cash in hand wages

As an employee, receiving cash in hand payments may be more convenient for you and your employer. However it is important to ensure that you are not being paid less than what you are owed under your contract or under the correct award rate. You are also obligated to declare your income to the Australian Taxation Office when completing your tax return. It is advisable to confirm with your employer that they are paying superannuation contributions to your nominated super fund. If you are concerned about the way in which you are being paid, speak to your employer or seek experienced legal advice.

How Etheringtons Solicitors can help? 

We can help you by providing advice and representation in any employment law matter, whether you are the employer or employee. If you need any assistance contact one of our lawyers here or call 02 9963 9800 for a no- obligation discussion and for expert legal advice.

Independent Contractor v Employee

Independent Contractor v Employee

Ongoing structural shifts within the workforce have exacerbated the importance of a clear distinction between employees and independent contractors. Flexible working-from-home arrangements and the rise of the gig economy have attracted the global workforce to a non-traditional means of employment. Greater autonomy and a more sustainable work-life balance are factors which are likely to catalyse the growth of independent contractors, a sector which already accounts for 7.8% of Australia’s total employment (as of August 2021).

Although this broadens opportunities for employers, there have been frequent legal disputes in distinguishing between employees and independent contractors. Fortunately, in February 2022, the High Court handed down a decision which aided in clarifying the nature of independent contracting relationships; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek).

Who is an independent contractor?

An independent contractor provides agreed services under a contract for those services. Contractors, or subcontractors, usually negotiate their own fees and working arrangements because they represent their own work, not the work that is executed by the business they are contracting for. Although there are many professions which are capable of being performed by independent contractors, the most common examples include freelance writers, graphic designers and auctioneers.

Who is an employee?

Employees on the other hand, are workers who represent the business they are working for. An employee works in the service of the employer under a contract, which establishes work duties and employee entitlements, which must be in accordance with the National Employment Standards.

How does the court differentiate between contractors and employees?

Previously, courts considered the manner in which parties conducted their relationship after the contract was signed. Courts applied a multifactorial approach in determining whether a worker was an employee or an independent contractor. The terms of the contract were relevant but not decisive.

However, in Jamsek, the High Court found that the key differentiation between contractors and employees is to be found within the terms of the contract (whether written, oral or a combination thereof). In Jamsek, the court had significant regard to the nature of legal rights and obligations held within the contracts. Specifically, the court noted that each partnership (provision of delivery services) paid for running costs and expenses of their trucks, and would invoice ‘ZG Lighting’ (the company) for the delivery services provided. By examining these features within the contract, the High Court concluded that these “partnerships” were operating as a business of their own.

How relevant are contracts in determining the relationship between contractors and employees?

The majority decision in Jamsek concluded that the way in which ‘contracts are played out in practice’ is, in most cases, no longer relevant in determining the nature of the relationship. Rather, post-contract conduct is only relevant when identifying relevant contractual terms (where the contract is not wholly in writing), or challenging the enforceability of the contract under the provisions of the Fair Work Act 2009.

It should not be assumed, however, that post-contract performance is entirely irrelevant to the categorisation of work relationships. In particular, it is crucial that parties avoid the following:

  1. Waiving their rights under the contract
  2. Varying their contracts by way of conduct; or
  3. Making representations which may be used to compromise their interests.

Why is it important to distinguish between independent contractors and employees?

The choice between employees or contractors will affect an employer’s tax, super and other obligations. For instance, an independent contractor is not entitled to paid leave and for the majority, pay their own superannuation. On the other hand, employees are entitled to paid leave, are covered under the National Employment Standards and are entitled to a compulsory superannuation provision by their employer. Hence, an ambiguous distinction is likely to create disputes, resulting in severe penalties for employers.

How Etheringtons Solicitors can help?

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with any employment law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Am I Liable For the Voluntary Assumption of Risk?

Am I Liable For the Voluntary Assumption of Risk?

In this article, we identify the liabilities involved in the voluntary assumption of risk and how to avoid breaching duty of care.

In March 2010, a security guard sued his employer and the owner of Lidcombe Power Centre, for PTSD resulting from an intruder threatening his life. This case, Capar v SPG Investments Pty Ltd t/a Lidcombe Power Centre (2020) (‘Capar’), sheds light on how far an employer’s duty of care extends when an employee voluntarily assumes risk of injury.

The Capar case

The plaintiff was employed as a security guard for Lidcombe Power Centre. Whilst on duty surveying the CCTV footage, he detected an intruder entering the premises. As the plaintiff left the control room to investigate, he came upon the intruder who wielded an axe and threatened to kill him. The security guard fled to the control room for safety and called the police; who arrived shortly and apprehended the intruder. The guard suffered from PTSD as a result of the incident and initiated proceedings in negligence against the owner of the shopping centre, the security company that was paid to provide security for the premises, and his own employers (the sub-contractors of the security company).

Injured persons and “obvious risks”

The plaintiff’s negligence claims were initially dismissed by the NSW Supreme Court.

In accordance with the Civil Liability Act 2002 pt 1A div 4, the Court ruled that the security guard was aware of the “obvious risk” of mental or physical harm when he chose to leave the control room and confront the intruder.

In negligence proceedings, the injured person is ‘presumed to have been aware of the risk of harm if it was an obvious risk’.  This means that the injured person is assumed to be conscious of risk ‘even if the person is not aware of the precise nature, extent or manner of occurrence of the risk’.

Voluntary assumption of risk and duty of care

The Civil Liability Act 2002 states that ‘a person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff’.

In the Capar case, the security guard’s contract did not specify that he was obligated to confront the intruder. Owing to his voluntary assumption of an obvious risk, his employer’s duty of care was found not to extend to the actions which caused PTSD.

The principles of duty of care in the Civil Liability Act 2002 pt 1A div 2 stipulate that a person is negligent in taking precautions against a risk of harm if;

  1. the risk was foreseeable, and
  2. the risk was not insignificant, and
  3. in the circumstances, a reasonable person in the injured person’s position would have taken those precautions.

Owing to these conditions, neither the occupier of the premises, the contractors nor the security guard’s employers, were made liable for negligence.

How do I avoid breaching duty of care?

There are a number of steps that can be taken to help protect your business from risks of liability in negligence:

  • Ensure all staff understand their duties and perform them correctly. Have a clear written guide because if staff are unclear on their responsibilities, the likelihood of risk and personal harm may increase.
  • Implement security measures on your premises that reduce the risk of liability caused by the actions of trespassers.
  • Communicate a clear plan to all employees in case of an invasion. In the case of an invasion, staff should not approach or confront an intruder. They should retreat to safety and contact the police immediately.
  • If you are employing security personnel, have clear and explicit discussions on the extent of their role and the potential risks that may arise.

If you would like to learn more about how breaches to duty of care may affect your personal or professional life, please see our blog for more information.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with employment law or negligence matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Can I Be Fired For What I Post on Social Media?

Can I Be Fired For What I Post on Social Media?

The expectation to maintain professionalism as an employee is a crucial responsibility. In the age of social media, the need to act in accordance with company policies and preserve company reputation has evolved into an assumed etiquette. The Fair Work Commission has seen an increase in employment termination due to the improper use of social media in the workplace. As such, it is crucial that employees understand how their behaviour on social media may detrimentally impact their employment contract.

Why is it important to monitor your social media posts as an employee?

It is expected that employers and employees practice appropriate etiquette on social media in order to uphold company standards.

In NSW, employers are bound by ethical codes contained within the Fair Work Act (No 28) 2009 (Cth) (‘Fair Work Act’). These codes impart values of “fairness” to prevent employers from acting in discriminatory ways. The Fair Work Act serves to protect an employee’s workplace rights. It also enforces provisions that support employees in unfair dismissal cases.

It is expected that employees act in accordance with company policies when maintaining an online presence. When an employee’s social media presence reflects negatively against their company’s image and reputation, the employer may take disciplinary action including terminating their contract of employment.

Folau v Rugby Australia: Codes of conduct and social media

In 2019, Rugby League player, Israel Folau was fired after Rugby Australia flagged Folau’s Instagram posts for homophobia. His contract was terminated because he breached the company’s code of conduct which prohibited players from partaking in discriminatory behaviour whilst employed.

Folau argued that he was unfairly dismissed because he was only wanting to express his Christian faith on his personal social media account. He brought the dispute to the Federal Circuit Court of NSW and claimed that his employment was terminated for a prohibited reason (i.e. religion) under s772 of the Fair Work Act. Folau argued that he had a right to freedom of expression on his own social media profile. However, Rugby Australia disputed this claim by asserting that employers have the capacity to regulate an employee’s behaviour both publicly and privately to ensure that they adhere to the company’s code of conduct.

The employer argued that Folau’s Instagram posts breached his employment contract and therefore resulted in his termination. His case demonstrates how employees can jeopardise their employment if their social media posts are against the ethical codes of company policy. To better understand the consequences of making defamatory or discriminatory social media posts, please refer to our blog for more information.

How should employees behave on social media?

When posting online, it is important to be aware of the following:

  • It is your responsibility to monitor and regulate your behaviour on social media platforms. Be sure to familiarise yourself with company policies and code of conduct so that you are not at risk of breaching codes of conduct.
  • Never disclose personal or propriety information belonging to an employer. Always seek permission before posting on behalf of another person.
  • To avoid your personal information from being revealed to your current or potential employer, check the privacy settings of your online profiles. Keep personal accounts, devices and internet searches completely separate to your work account.
  • Be aware of the consequences of posting inappropriate material. Your employer can use your social media posts to take disciplinary action against you.

How can Etheringtons Solicitors help?

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further clarification on employment law, or believe you may have behaved inappropriately on social media, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.