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  • Employment Law - Part 1 - How will the new workplace relations laws introduced on 1 July 2009 affect you?

Employment Law - Part 1 - How will the new workplace relations laws introduced on 1 July 2009 affect you?

Date: July 04, 2009

Authors: LAC Lawyers

The introduction of new workplace relations laws through the Fair Work Act 2009 has changed employment law in Australia as we know it. The aim of the Australian Government in implementing this change is to effectively balance the various needs of employees, employers and unions with a view to ensuring Australia becoming a better country financially and guaranteeing minimum workplace standards and maintaining workplace rights.
 
Who will oversee the new workplace system?
 
The body created by the government with the task of overseeing the new work place system is “Fair Work Australia”. It is essentially a national workplace relations tribunal with numerous powers and functions. This includes: termination of employment claims, the ability to vary awards, make minimum wage orders, make bargaining and industrial action orders, resolve disputes in the workplace.
 
Minimum Employment Conditions
 
Employees under the new system will effectively have stronger protection of their rights through what the government calls a “safety net”.

This safety net is comprised of 10 National Employment Standards as follows:

  1. maximum weekly hours of work;
  2. the right to request flexible working arrangements;
  3. parental leave and related entitlements;
  4. annual leave;
  5. personal / carer's leave and compassionate leave;
  6. community service leave;
  7. long service leave;
  8. public holidays;
  9. notice of termination and redundancy pay;
  10. A 'Fair Work Information Statement' for all employees that makes clear their rights and entitlements under the new system and how to get advice and help.

And, new modern awards.

Modern awards will be industry or occupation based, in that they will have terms that are designed to cover the needs of a specific industry.

Such terms may include but are not limited to; minimum wages, overtime rates, penalty rates, superannuation, annual wage, allowances, types of employment, and leave.

It should be noted that modern awards can be negotiated between both employee and employer to ensure each individual circumstance is taken into account.

The safety net will apply to employees who are in the federal system as of 1 January 2010.

Employment Law: Employee Dismissal - Pornograhic Emails - Part II

Date: January 24, 2014
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.

Employment Law: Employee Dismissal - Pornograhic Emails - Part I

Date: January 23, 2014
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.

Employment Law - Murrihy V Betezy.Com.Au Pty Ltd - Adverse Action

Date: November 10, 2013
Author(s): Michael Tourkakes LL.B., Grad.Dip.(Leg Prac), Adv.Dip.Bus.(Leg Prac)

Employment Law - When can an employer ask an employee to take annual leave?

Date: May 09, 2013
Author(s): Michael Tourkakes LL.B., Grad.Dip.(Leg Prac), Adv.Dip.Bus.(Leg Prac)
When employees within a workforce have accrued a vast amount of annual leave, the employers can, within reason, direct the employee to take annual leave to reduce it. The question that most employees have when they are asked to take forced annual leave is whether this is legal?

Employment Law - Employee complaints and inquiries against employers - Case Note: Harrison v In Control Pty Ltd

Date: May 03, 2013
Author(s): Michael Tourkakes LL.B., Grad.Dip.(Leg Prac), Adv.Dip.Bus.(Leg Prac)
Section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) states that a person has a workplace right if the person is able to “make a complaint or inquiry as an employee and it is in relation to his or her employment”.

Employment Law - Adverse Action - Unfair Dismissal Claims - The High Court rules on adverse action in Barclay case

Date: October 29, 2012
Author(s): LAC Lawyers
The purpose of this article is to outline the principles relating to adverse action under the Fair Work Act in the high court case of Board of Bendigo Regional Institute of Technical Further Education v Barclay [2012]HCA 32 decided 7 September 2012. The court provided some valuable precedent on how to interpret the reverse onus provisions pursuant to sections 360 and 361 of the Fair Work Act.

Employment Law - Unfair Dismissal - Serious Misconduct - When can an employer dismiss for Serious Misconduct?

Date: September 14, 2012
Author(s): LAC Lawyers
The purpose of this article is to review the recent case of Davies v State of Victoria [2012}VSC 343 (15 August 2012) in the Victorian Supreme Court. This case highlights how the court will deal with matters where the employer argues that the employee was summarily dismissed for serious misconduct. EMPLOYMENT LAW- UNFAIR DISMISSAL-SERIOUS MISCONDUCT-WHEN CAN AN EMLPOYER DISMISS AN EMPLOYEE FOR SERIOUS MISCONDUCT?

Employment Law - How $16,000 in underpayments can turn into $200,000 in fines.

Date: April 30, 2012
Author(s): LAC Lawyers
This article pinpoints the importance of obtaining advice on employee entitlements and early intervention by a lawyer when the Fair Work Ombudsman(FWO) initiates a workplace investigations. This case concerned a retail shoe business that underpaid employees.

Employment Law - Contract Law - Contract of Employment - Reisgning in fixed term contracts

Date: March 27, 2012
Author(s): LAC Lawyers
The purpose of this article is to review the Purcell case. This case is significant in so far as it highlights the application of contract theory to employment contracts. Theoretically when one party elects to terminate/breach the contract by resigning the law provides that the innocent party may elect to accept the repudiation or keep the contract on foot.

Employment Law - Restrain of Trade Clause - Restraint clause held to be reasonable but court would not grant injunction

Date: March 02, 2012
Author(s): LAC Lawyers
The purpose of this article is to analyse the above case. It is a very significant precedent and goes to show the flexibility the courts have when considering whether or not to grant an injunction.

Employment Law - Contractors - GST, superannuation payments and ABN

Date: March 01, 2012
Author(s): LAC Lawyers
Usually independent contractors do not have the benefit of receiving compulsory superannuation contributions. It is prudent, however, to obtain specialist superannuation advice from a legal practitioner or a certified accountant, as to the circumstances in which an independent contractor is entitled to the benefit of compulsory superannuation contributions.

Employment Law - Contractors - How do you draft a contract for an independent contractor?

Date: March 01, 2012
Author(s): LAC Lawyers
It is important to try and avoid creating an employment contract or a contract of services. Legally, this means that you must describe the arrangement as a contract for services.

Employment Law - Contractors - How does the Fair Work Act 2009 (Cth) seek to minimise ‘sham’ arrangements?

Date: March 01, 2012
Author(s): LAC Lawyers
The Independent Contractors Act 2006 (Cth) (the Act) took effect on 1 March 2007. The Act seeks to ensure that genuine independent contractors are not treated as employees. It also protects genuine employees from being treated as independent contractors.

Employment Law - Contractors - What is the difference between a contractor and an employee?

Date: March 01, 2012
Author(s): LAC Lawyers
Contractors are not employees and legally they stand in a class of their own. The parties to a contract need to be clear about their respective rights and responsibilities at the outset because the distinctions between employees and contractors have long vexed the courts.

Employment Law - Contractors - What makes a worker is an independent contractor?

Date: March 01, 2012
Author(s): LAC Lawyers
Many people that operate as independent contractors run their own businesses. The work of an independent contractor may permit a worker to delegate or subcontract performance of the work to other persons.

Employment Law - Unfair Dismissal - Are you a casual or permanent part-time employee?

Date: March 01, 2012
Author(s): LAC Lawyers
The purpose of this article is to address employees and employers obligations under the Fair Work Act with respect to entitlements, payment, classification and remedies for employees.

Employment Law - Adverse Action Claim - An example of a case where the employer rebutted presumption that employee was dimissed due to complaining about work conditions and entitlements

Date: February 27, 2012
Author(s): LAC Lawyers
Mr. Manchin(employee) commenced employment with Miners Tipper Services as a truck driver.(Herein the employer). The employer dismissed him on the grounds that his conduct jeopardised the reputation and business relationships of the business. In response he filed an application claiming that the real reason for his dismissal was because he exercised workplace rights with the employer by complaining about wage conditions and entitlements.

Employment Law - Unfair Dismissal - Can an employee be dismissed for comments made on Facebook regarding work colleagues?

Date: February 27, 2012
Author(s): LAC Lawyers
Mr. Stutsel had worked for Linfox for over 22 years. Fellow managers had learnt of comments made about them on face book. One manger of Muslim origin was called a “bacon hater” and sexual innuendos and jokes were made about a female manager. An investigation was conducted. Mr. Stutsel was subsequently dismissed.

Employment Law & Commercial Law - Restraint of Trade Clause - Introduction Fees? Are they restraint of trade clause?

Date: February 27, 2012
Author(s): LAC Lawyers
The purpose of this article is to analyse a recent decision in the Supreme Court of Victoria regarding the interpretation of restraint of trade clauses. In Earth Force Personnel Pty Ltd v E A Negri Pty Ltd & Anor [2010] VSC 426 (22 September 2010) a labour hire company appealed a decision by the Magistrates Court regarding the interpretation of an introduction fee. In that case the respondents argued that the introduction fee was unenforceable as a restraint of trade clause and that the introduction fee was therefore not payable.

Employment Law - The Enforceability of Post Employment Restraints of Trade (Vic.)

Date: December 18, 2011
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employing highly intelligent and highly qualified employees in a range of sophisticated commercial businesses is a risky business for employers.

Employment Law - Redundancy - Unfair Dismissal - Should Employers Offer a Lower Paid Position to Employees?

Date: November 29, 2011
Author(s): LAC Lawyers
The purpose of this article is to review Margolina v Jenny Craig Weight Loss Centres Pty Ltd [2011]FWA 5215. This case addressed issues of whether it would have been reasonable to redeploy the employee into a lower paying position when she was made redundant. She argued that it was not a genuine redundancy as the employer never offered her alternative employment in a lower paid position.

Employment Law - Unfair Dismissal or a Genuine Redundancy? When is Redeployment Reasonable?

Date: November 29, 2011
Author(s): LAC Lawyers
A common issue in termination of employment is determining whether the employee has been unfairly dismissed or made redundant. The employer may have told the employee that it is a genuine redundancy.

Employment Law - How your Criminal History may affect your future Employment

Date: March 14, 2011
Author(s): LAC Lawyers
A concern faced by many who are facing prosecution is the influence a conviction may have on them should they be found guilty of a criminal offence.

Employment Law - Employee Theft

Date: March 07, 2011
Author(s): LAC Lawyers
Employees stealing from employers in an increasing problem. This is increasingly evident when approximately 80% of workplace crime is carried out by employees. Employee dishonesty is a crime, it can take many forms such as embezzlement of funds, false invoicing, theft of cash, false inventory, payroll fraud and computer fraud.

Employment Law - Restraint of Trade - Cascading Clauses

Date: December 20, 2010
Author(s): LAC Lawyers
Restraint of trade has garnered an ever increasing amount of attention over the past few years as employers attempt to restrain former employees in their conduct after they leave their employ.

Employment Law - Unfair Dismissal and Discrimination Provisions

Date: December 07, 2010
Author(s): LAC Lawyers
If you can answer yes to any of the following questions then this article on Unfair Dismissal and Discrimination is for you

Unlawful Discrimination Claims and Limitation Periods

Date: December 01, 2010
Author(s): LAC Lawyers
Having established your right to make an unlawful discrimination claim, the next step that one needs to consider is the limitation period for the lodgement of such a claim.

Business and Commercial Law - Restraint of Trade

Date: October 08, 2010
Author(s): LAC Lawyers
Key employees have always been the cornerstone of every successful business or enterprise and great difficulties are caused by the sudden loss or departure of key employees which in turn could harm the relationship between the business and its clients. Key employees have over the years enjoyed a close relationship with clients and losing them would have a detrimental effect on the management and reputation of the business.

Employment Law - The Rights of an Employer and their Employee

Date: October 08, 2010
Author(s): LAC Lawyers
With the Law in this area constantly changing, many employers and employees are uncertain as to their rights with respect to such things as employment contracts, termination of employment and redundancy.

Employment Law - You Have Been Terminated, Does it Amount to Unfair Dismissal?

Date: October 08, 2010
Author(s): LAC Lawyers
Organisations with It is becoming more rampant in the current times that an employee is found to have been terminated. Termination of employment can take several forms and unfair dismissal seems to be a common occurrence.

Small Business Fair Dismissal Code - Termination Of Employment Rules For Small Business Under The Fair Work Act 2009 (Cth.)

Date: July 30, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
One of the significant changes made to unfair dismissal laws by the Rudd Government under the Fair Work Act 2009 was the introduction of the Small Business Fair Dismissal Code (“the Code”). The Code included a check list for employers to complete when terminating employment. Small employers hoped that by complying with the check list, it would be easier to dismiss staff.

Employment Law - Unfair dismissals under the Fair Work Act

Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The Fair Work Act 2009 (Cth) became fully operational from 1st January 2010. The Fair Work Act changed the rights of employees and responsibilities of employers relating to dismissals.

Employment Law - Unfair dismissals under the Fair Work Act - General Protection Provisions

Date: April 15, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
The Fair Work Act incorporates general protection provisions in Part 3 – 1. This Part incorporates the type of protection provided under unfair dismissal and freedom of association provisions which was incorporated into the Work Choices legislation. The unlawful termination provisions of Work Choices have been re-enacted in Part 6 – 4 of the Fair Work Act. However, the Fair Work Act provides that a person may not apply for help against an unlawful termination if they are also entitled to challenge the dismissal under the general protection provisions.

Employment Law - Can Employers Be Stopped From Discriminating Against Employees Upon The Basis Of Lifestyle Or Philosophical Beliefs As Opposed To Religious Or Political Beliefs?

Date: January 13, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
An English Decision and its Implications for Australian Emloyment and Discrimination Law

Employment Law - Employee and Employer Duties in Common Law Employment Contracts

Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
In addition to the express terms of a common law contract of employment, the contract may also include implied terms.

Employment Law - Restraints Of Trade: Restraining Former Employees When The Work Agreement Has Ended

Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Employment restraints are contractual terms which seek to limit the activities of the employee once their period of service ends.

Employment Law - The New Fair Work Act - Collective Agreements (4)

Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.

Employment Law - The New Fair Work Act - Consequences & The Agreement Making Process (5)

Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
If a workplace agreement replaces guaranteed agreement terms or conditions in a reference instrument with benefits that may or may not be realised during the life of the agreement, the Workplace Authority Director would consider these arrangements to be a reduction in the employees’ terms and conditions.

Employment Law - The New Fair Work Act - Contracting With Employees (3)

Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Essentially, with the introduction of the Fair Work Act, there are two ways in which an employer can contract with the employees in its workforce. The first is by way of common law contracts of employment. This is the subject of a separate LAC Lawyers’ article available through the website.

Employment Law - The New Fair Work Act - New National Employment Standards (2)

Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
Under the Fair Work Act, the new National Employment Standards provide a new national safety net, irrespective of whether or not businesses enter into a Workplace Agreement.

Employment Law - The New Fair Work Act - What Is It and What Does It Do (1)

Date: August 14, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
On Friday, 20 March 2009, the Fair Work Bill was finally passed by the Australian Senate after Family First’s Senator Fielding voted with the Government after doing a deal in relation to the unfair dismissal provisions. It received Royal Assent on 7 April 2009.

Success in an Appeal to a University Body for an Accusation of Plagiarism

Date: August 04, 2009
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.

Employment Law - Redundancy - Transmission of Business

Date: July 04, 2009
Author(s): LAC Lawyers
Your employer writes to you informing you that the company has sold its business together with its assets to another entity and that you are to re-apply for the same position in the new company. What are your rights? Have you been terminated? Are you entitled to claim redundancy payments?

Employment Law - The Three 'R's' & Unfair Dismissal

Date: July 04, 2009
Author(s): LAC Lawyers
What we’re referring to here is not the traditional ‘three R’s’ associated with education, but rather, the ‘R’ words in the context of employment and industrial law: resignation, retrenchment, and redundancy. Perhaps the word ‘retirement’ could also be added. This has great relevance in the current economic climate.

Employment Law - General Employee Entitlement & Redundancy Scheme (GEERS)

Date: June 05, 2009
Author(s): LAC Lawyers
If you have been made redundant or have lost your job because your employer has gone bust and you have not been paid your outstanding wages or entitlements, then you may be eligible for payment under GEERS.

Employment Law - Unlawful Termination of Employment, Where Do You Stand?

Date: September 11, 2007
Author(s): LAC Lawyers
The Workplace Relations Act 1996[1] (‘WRA’), states that an employee’s employment is not to be terminated on certain grounds and section 659(2) of the WRA provides the appropriate coverage.

Unfair Dismissal - Your In the Wrong Class?

Date: September 11, 2007
Author(s): LAC Lawyers
The unfair dismissal provisions of the Workplace Relations Act 1996[1] (‘WRA’) are buried in the detail of the Act and for an employee to determine whether they have a valid unfair dismissal claim they need to establish if any exclusionary provisions apply to their particular employment circumstances.

Employment Contracts and Restraint of Trade Clauses

Date: April 22, 2007
Author(s): LAC Lawyers
This paper explores restraint of trade and confidentiality agreements between employers and employees. It is common for employers to have a global restraint clause to restrain departing employees from working for a competitor and that may not be sufficient.

What to expect when you call LAC Lawyers

Date: December 13, 2006
Author(s): LAC Lawyers
LAC Lawyers is a full service firm dedicated to the provision of superior legal services in Australia. Our aim is to provide unrivalled client satisfaction coupled with high quality service and advice. When you call LAC Lawyers our friendly reception staff will spend time with you to identify the area of law your enquiry relates to then pass you on to one of our qualified solicitor's who can help you.

The Benefits of Hiring A Lawyer

Date: August 16, 2006
Author(s): LAC Lawyers
The old adage “you get what you pay for” is as true today as it has ever been.

Why stay with your lawyer

Date: August 01, 2006
Author(s): LAC Lawyers
The lawyer/client relationship is a personal one and there are many reasons which will dictate who you can and cannot work with. If you don’t like your lawyer, should you change? Ultimately, the relationship between a lawyer and client must be built on mutual trust.

Employment Law – Unfair Dismissal and the Workplace Relations System

Date: March 26, 2006
Author(s): Frank Egan B.A., LL.B., A.C.L.A., F.T.I.A. (Notary)
The Federal Government has announced widespread changes to the Australian workplace relations system, by relying upon one of the heads of power under the Australian Constitution, namely the Corporations Power.

Employment Law - Workplace Bullying

Date: February 17, 2006
Author(s): LAC Lawyers
Workplace bullying has been with us ever since the advent of the Industrial Revolution. Interestingly in New South Wales the Office of Industrial Relations of the NSW Department of Commerce provides scant information about this anti-social workplace behaviour.

Employment Law - What Type Of Employee Am I?

Date: February 13, 2006
Author(s): LAC Lawyers
Sometimes people become confused as to exactly which category of employment they fall in to. Of course there is the permanent employee or the casual or part-time or permanent part-time or even the independent subcontractor. The real difference between the various categories of employment is whether there is a contract of service or a contract for services.

Employment Law - Bullying - Adults in the schoolyard

Date: September 26, 2005
Author(s): LAC Lawyers
The idea of bullying has long been associated with naughty children in a schoolyard. But in recent years, there has been increased awareness and recognition in Australia that adults can be bullies too. Nowhere is this notion more alive than in the workplace, where high stress levels and hierarchies create a framework for day to day life.

Employment Law, Contract Law - Is a person who has a services company entitled to relief under s 106 of the Industrial Relations Act (NSW)?

Date: September 26, 2005
Author(s): LAC Lawyers

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