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casual or full-time employment

Is Casual Employment Really Casual Employment?

By | General

A recent decision of the Federal Court has blurred the lines between permanent and casual employment with a casual worker being found to be eligible for entitlements usually reserved for permanent employees.

Around 20 per cent of Australian workers are engaged as casuals. As a result of this casualisation of the workforce many workers are now in a situation where they are working full time hours on singular or multiple contracts of employment without the security or benefits of full time on-going employment.

Casual employees are not generally entitled to paid personal leave, annual leave, or for public holidays when not worked. In consideration for not being eligible for these entitlements casuals are supposed to be paid a higher hourly pay rate than a permanent employee.

However, there have now been two cases Workpac v Skene and Workpac v Rossato which have examined and determined that just because an employer says an employee is a casual in a contract of employment does not mean that the employee is actually a casual. In each of these cases the courts found that the two employees were not casuals.

These cases were in relation to a labour hire company however, the rulings are not limited to labour hire company employees and the principles can be applied to the facts of any casual employment.

In order to consider whether a casual employee is really a casual employee some of the facts which are now necessary to look at are:

  • how the rate of pay is set out in a contract of employment and whether it specifies a separate casual loading rate;
  • whether the pay rate is in accordance with relevant casual rates provided by the applicable modern award or enterprise agreement;
  • the commitment given by the employer to the providing work and whether this work was stable, regular and predicable;
  • the length of time the employee has been working with the employer;
  • whether there was regular rostering; and
  • where there is an ongoing contract or a number of contracts.

If there is no written contract of employment the same principles can still be applied.

The current legislation and the current rulings in the Workpac cases may give some employees, the right to be correctly classified as permanent employees and be paid or back paid statutory leave entitlements, though it is noted that Commonwealth has signalled that it may look at amending the legislation on which the Workpac rulings are based.

Should you think that your casual employment might be permanent employment please contact us for a free case evaluation.

Am I being paid enough? What is my right rate of pay?

By | General, Unfair Dismissal, Unpaid Wages

Am I getting the right amount of pay?

You would think this is a simple question, but it’s not.  There is no doubt that today’s workplace laws are complicated.  So it is no wonder that employees have difficulty in trying to work out what their rate of pay should be in return for a days hard work.

To work out the minimum rate of you are entitled first requires you to work out whether or not you are covered by an award.  An essential feature of an award is to prescribe the rate of pay for all employees covered by that particular award.

While trying to work out what particular award applies to you is difficult, we have set out below a simple process that is designed to give you some guidance.  So:

  • Step 1, review the award title to see if it might apply. For example, employees in the construction industry, might start by looking at the Building and Construction Onsite Award 2010, because, as the name suggests, it applies to that industry.
  • Step 2, go to clause 4 of the Award (it’s the same clause for all Modern Awards) and look to see whether the award covers the industry in which your employer operates. If it does, then that award is likely to apply to you.  If the award does not cover the industry in which your employer operates, then you’ll need to look at other awards to see if they might apply.
  • Step 3, turn to the classification definitions (usually found at Appendix B), and read through the classifications to identify the classification that best fits the actual duties you do on a day-to-day basis.
  • Step 4, check the rate of pay that relates to your classification of work in the body of the Award.

You must remember that the award sets out your minimum rate of pay.  So if you are not being paid the amount that relates to your classification of work under the award, then you might be being underpaid.

If you have a contract of employment that also sets out a rate of pay, then the rate of pay stipulated in the contract must be equal to or more than the rate you are required to be paid as set by the award.  If the contract states that your pay is less than the award rate, then again, you might not be being paid the right amount.

If the contract amount is more than the award rate, then for your ordinary hours of work, you’re probably going to be being paid the correct amount.  However, if you work more than 38 hours per week (on a full time basis), or more than the agreed hours (if you are a part-time employee), then the rate of pay needs to adjust to take account of your entitlement to overtime and/or penalty rates.

If you have any questions contact one our experienced employment lawyers.


Photo by James Sutton on Unsplash

Don’t Suffer in Silence! You CAN Ask Questions about your Entitlements

By | General, Unfair Dismissal

Enquiring of your Entitlements

The Fair Work Act provides that an employee is entitled to make a complaint or enquiry about their employment. It also provides that an employee should not be treated adversely because they made a complaint or enquiry about their employment.

A recent decision handed down by the Federal Circuit Court has identified that the court is willing to impose hefty penalties on employers (and individual directors) for treating an employee adversely after the employee made a complaint about his wages. In the case of Fair Work Ombudsman -v- Windaroo Medical Surgery Pty Ltd & Ors [2016] FCCA2505 (28 September 2016), Judge Jarrett penalised the Surgery and two of its directors because:

1. they threatened to stop paying a Doctor who had complained to the FWO about not being paid;

2. they did stop paying him until the Doctor resigned a few months later.

The Surgery and its Directors were collectively penalised over $50,000 for their involvement in the poor treatment of their employed Doctor.

The message here is that, as an employee, you have the right to complain to your employer about your workplace entitlements. If you suffer a loss because of that complaint, then the employer will be taken to have breached certain provisions of the Fair Work Act and you are likely to be entitled to compensation.

If you think that this has happened to you, then please give us a call.

AGL Team

Lawyers for Employees – specialising in unfair dismissal claims


 

Bullying young people in the workplace all too common

By | General

October is safe work month.

I thought it was an opportune time to blog about young people at work. Young adults – aged between 15 and 25 years old – make up a significant proportion of today’s, modern work force. Quite alarmingly, a recent report (referenced in today’s Sydney Morning Herald) has suggested that 50 per cent of young adult workers had experienced bullying and harassment at work.

A number of young adults surveyed indicated that bullying and harassment (including sexual harassment) was so common place, that many instances were treated by employers as a ‘non-issue’.

Whilst the legislators have progressed the law to the point of making bullying and harassment unlawful, it seems that not enough is being done to re-enforce the message to employers that ‘bullying and harassment is unlawful’. It is also un-safe and has the potential to seriously affect a young adults’ capacity to remain engaged in meaningful employment.

Importantly for young adults at work, you have the right to complain to your manager or your local workplace health and safety officer about legitimate unsafe work practices, including instances of bullying and harassment. The aim of any such complaint should be to try to resolve your concerns in a meaningful and respectful way.

And if that doesn’t work, we’re always here to help you in any way we can.

The AGL Team

Lawyers for employees – specialising in unfair dismissal


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unfair dismissal reasons

The Right Pay Dilemma

By | General, Unfair Dismissal, Unpaid Wages

Getting Paid the Right Amount

Being paid the right amount for hard work is an employee’s absolute right.  Incorrect or unpaid wages can seriously impact the working relationship between employee and employer.

The complex and often overlapping maze of awards, enterprise agreements and employment contracts often over complicates a basic and fundamental employee entitlement.  This maze of contractual terms often has the effect of confusing entitlements relating to overtime, penalty rates, time off in lieu and other employee entitlements.

Unfortunately, and perhaps because the system is complex, employers happen to apply the wrong minimum rate of pay for work performed.  Sometimes the employee is at fault, sometimes the adviser also gets it wrong.  Either way, ignorance is no excuse.

A recent case in the Federal Circuit Court has shown that even ‘expert’ advisers can get it wrong.  In this case, Ezy Accounting 123 Pty Ltd was pursued by the Fair Work Ombudsman for providing the employer with the wrong advice.

Whilst this is a potentially ground-breaking case in terms of extending the persons responsible for getting it wrong, it doesn’t change the fact that an employee should be paid the right rate for putting in a hard day’s work.  Unpaid wages are a genuine problem in businesses across Australia.

The good news is that the process for trying to recover your unpaid wages is fairly straightforward.  Often it will involve making a demand and then (if the matter is not resolved) seeking help from either the Fair Work Ombudsman or the relevant Court or Commission.

At Anderson Gray, we’d love help out anyone who’s been paid the wrong amount – because employees deserve the right pay for hard work done. Get in touch with our Melbourne unfair dismissal lawyers.

Bullying – have you been affected?

By | Bullying & Harassment, General

Somewhat disappointingly, a study has found that more than one in five persons are bullied at work.  Further, one in three people are affected by workplace bullying.

What is bullying?

Well, at law, a person is ‘bullied at work’ if an individual (or group of people) repeatedly behaves unreasonably towards a person (or a group of persons which the worker is a member) and that behaviour creates a risk to the person’s health and safety.

Quite often, managers and supervisors try to ‘lead’ a group of individuals.  However, because they don’t have the proper skills, they are often unsuccessful at ‘leading’ and instead act in a manner that may be described as ‘bullying’.  This isn’t necessarily the manager or supervisors fault, it’s just that they don’t know how to properly manage their co-workers.  It is easy to say fault then rests with the employer (and may be that is right), but often it’s the lack of attention to managerial and supervisory training and education by all people involved that is the real problem.

I am regularly contacted by people who have been bullied and/or harassed at work.

The impact (that I see) is that bullying has a real and often debilitating impact on an individual.

Further, it creates an unhappy and unproductive workplace, and this is where I don’t get the lack of investment by employers in developing and nurturing good managerial and supervisory practices. It ultimately impacts on profit.

Raising awareness of bullying and harassment is important and hence the reason for this blog.  And perhaps our education should start a little earlier than the workplace.

I recently read an article whereby a 12-year old boy in America committed suicide in response to alleged bullying at school.  He did it to “stop the pain”.

Closer to home, a recent ABC poll uncovered that 86% of school children have experienced bullying at school.

We are doing our best to try and prevent bullying occurring at the workplace.

If you believe you have been bullied at work, then  please contact us.  We might be able to help you out.

 

who is protected from unfair dismissal

We’re employees…not children!

By | General

I have heard it said by professional advisors that ‘managing employees’ is akin to ‘supervising children’.

As a general employer attitude, this is obviously wrong on many fronts. Wrong, because it undermines the belief that for most of the time on most days, employees across Australia are doing the right thing.

Nearly all employees require little management, they are autonomous and they are hard working.

If the advisor’s attitude is to manage employees like ‘children’, then it is little wonder that some employer’s (who rely on that advice) approach management decisions from completely the wrong angle.

Recently, the Fair Work Ombudsman commenced a Federal Circuit Court claim against an employer’s third party advisor. It alleges that the third party advisor was complicit in the employer’s breach of the Fair Work Act.

Perhaps this type of claim by the FWO may seek to remedy the actions of employer’s who (on advice) act to belittle their employees.

We’re doing our best to change the attitude …

The silver lining….

By | General

Whatever happens, it’s the consequences of the dismissal from work that causes me the most concern. In my experience, rarely is any thought given (by either side of the equation) to the personal circumstances of the dismissed person. Only after it happens, and the reality of a situation sinks in, does the individual start to come to grips with the mountain of problems they will face.

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Helping Employees….it’s what we’re about!

By | General, Unfair Dismissal

Getting Help for Unfair Dismissal

Being told you don’t have a job, regardless of your status in the world, is always a difficult moment.  I know this, because in a legal career expanding some 16 years, I’ve seen the hurt and damage associated with the dismissal of many persons.

The initial reaction is largely the same – bitter disappointment and anger.  Sometimes, the employee is at fault and shouldn’t have done what they did.  Similarly, there are unscrupulous employers who simply do the wrong thing.

The law is designed to protect the individual from the unscrupulous employer.

Helping an employee out in times of trouble is our business.

And here’s where we want to helpout.

Helping an employee out in times of trouble is our business.  Whether that is by way of making a demand on your employer, commencing proceedings or simply pointing you in the right direction – for us, it’s all about helping out.

You should expect from every advisor that they go about their business in a cost-effective, efficient and diligent manner. At Anderson Gray Lawyers, it’s what we strive to do every day.

And, we know our business doesn’t stop with you.  We want to be the law firm that you are happy to refer to your network of friends, if ever any of them find themselves in trouble at work. You can contact our Sydney branch, or search for us in a city near you.