Newsletter Archives - PH Solicitor

Thank You

admin — Mon, 10 Feb 2025 02:58:41 +0000

We are so grateful to clients who take the time to provide feedback on our services.

At PH Solicitor we value our clients’ satisfaction above anything else and this is even more gratifying when we are complimented publicly.

Read what our clients have to say about our services here:

https://au.trustpilot.com/review/www.phsolicitor.com.au

The post Thank You appeared first on PH Solicitor.

PH solicitor Newsletter – February 2020

admin — Mon, 24 Feb 2020 06:19:43 +0000

Business requirements can change quickly and drastically, sometimes requiring the creation of new roles and the end of others. When a role is no longer required to be performed, employers ought to take great care in making such a role redundant. Failing to do so may open an employer up for an unfair dismissal claim if the redundancy is not, or does not appear to be, genuine.

What is redundancy?

Under the National Employment Standards, redundancy happens when an employer either:

decides they no longer want an employee’s job to be done by anyone and terminates their employment (or in cases of ordinary and customary turnover of labour – which depends on the relevant circumstances); or
becomes insolvent or bankrupt.

When it comes to redundancy, it is important to remember that it is the role, not the employee, which becomes redundant.

When may redundancy happen?

Redundancy may happen in a number of scenarios, including when:

the job someone has been doing is replaced due to the employer introducing new technology (i.e. it can be done by a machine);
business slows down due to lower sales or production;
the business relocates;
a merger or takeover happens; or
the business restructures or reorganises.

Is the redundancy genuine?

A dismissal is not a genuine redundancy if the employer:

still needs the employee’s job to be done by someone else;
has not consulted with the employees about the redundancy under an award or registered agreement; or
could have reasonably given the employee another job within the business.

If the redundancy is not genuine, the employee may make an unfair dismissal application to the Fair Work Commission, which can be a costly exercise for employers.

What notice am I required to give my employee of the redundancy of their role?

The amount of notice that is required to be given in relation to a redundancy depends on the employee’s period of continuous service. A detailed table setting out the notice period required to be given for redundancies, based on an employee’s period of continuous service with the employer, can be found on the Fair Work Commission’s website at https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/notice-of-termination-and-redundancy-pay

Standard redundancy pay entitlements

Employers are generally required to make a redundancy payment (in addition to payment of other legal entitlements) to an employee who loses their job due to a role becoming redundant. The Fair Work Commission website has an informative table which sets out the number of weeks of pay that an employee is entitled to receive where the employer is required to make a redundancy payment (see https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/notice-of-termination-and-redundancy-pay).

It is also possible for employees and employers to negotiate an appropriate redundancy payment should they choose to do so.

In addition, redundancy pay will not be payable in any of the following circumstances:

an employee whose period of continuous service with the employer is less than 12 months
an employee employed for a specified period of time, for a specified task, or for the duration of a specified season
an employee whose employment is terminated because of serious misconduct
a casual employee
an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement
an apprentice
an employee to whom an industry-specific redundancy scheme in a modern award applies
an employee to whom a redundancy scheme in an enterprise agreement applies if:
- the scheme is an industry-specific redundancy scheme that is incorporated by reference (and as in force from time to time) into the enterprise agreement from a modern award that is in operation
- the employee is covered by the industry-specific redundancy scheme in the modern award.
An award that is in operation may include a term specifying other situations in which redundancy pay does not apply to the termination of an employee’s employment.

I run a small business. Am I required to make a redundancy payment to my employee?

An employer who is a small business employer is not required to provide redundancy pay on the termination of an employee’s employment. A small business employer for the purpose of determining redundancy pay is an employer who, at a particular time, employs fewer than 15 employees.

When calculating the number of employees employed at a particular time, the following factors are to be taken into account:

all employees employed by the employer at that time are to be counted
a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis
associated entities are taken to be part of the one entity
the employee being terminated and any other employees being terminated at that time are counted.

Please contact us if your business requires advice in relation to managing the redundancy of a role. We can be reached on (03) 9642 0435 or at admin@phsolicitor.com.au. Nothing in this article should be relied on as legal advice. The contents of this article should be regarded as general information only, and for specific legal matters, independent advice should always be sought

The post PH solicitor Newsletter – February 2020 appeared first on PH Solicitor.

PH Solicitor Newsletter – December 2019

admin — Wed, 11 Dec 2019 03:26:45 +0000

PH SOLICITOR DECEMBER NEWSLETTER

Navigating the process for an injured worker to return to work can be a difficult task for employers. Approaching the process with care and attention can not only help to ensure a smooth transition back to work for the employee, it can also help to ensure productivity in the workplace, help to ensure WorkCover premiums do not rise, and importantly can help employers to protect themselves from legal claims which may arise for failing to adhere to applicable workplace laws.

Employers who breach their return to work obligations risk a WorkSafe workplace investigation, prosecution and significant financial penalties to both individuals and corporations for any breaches of return to work obligations.

As an employer, what legal responsibilities do I have if my employees get injured at work?

In Victoria, employers have certain legal responsibilities under the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 if an employee is injured at work. All Australian states have similar laws relating to injuries occurring at work and the obligations that employers have in such circumstances.

Injured employees are only required to return to work when they are well enough to do so and they are entitled to access an occupational rehabilitation program, if required.

When a person takes time off work after having been injured at work, employers must (amongst other things):

hold the injured person’s position open for 12 months;
help a worker return to their job within 12 months of an injury (if they are capable of doing so);
help a worker to return to different or modified duties within 12 months of an injury (if they are fit for work but not able to perform their previous duties);
consider workplace support aids or modifications to assist an employee’s return to work; and
nominate a return-to-work coordinator with the ability to assist the employee to prepare to return to work.

In addition to obligations under the legislation above, employers also ought to be aware of other State and Commonwealth laws that apply to their business and employees, including occupational health and safety, anti-discrimination, plus privacy legislation.

What do employers have to do when a worker returns to work after an injury?

When an injured worker returns to work, employers must make sure that they are given appropriate duties and assistance while they continue to recover from the injury or illness. This might include making reasonable adjustments to the workplace. Some adjustments that an employer may need to make to the workplace include:

reviewing and, if necessary, adjusting the performance requirements of the job;
arranging flexibility in work hours;
providing telephone typewriter (TTY) phone access for employees with hearing or speech impairments;
purchasing screen reading software for employees with a vision impairment;
approving more regular breaks for people with chronic pain or fatigue; or
buying desks with adjustable heights for people using a wheelchair.

What are unreasonable adjustments?

In some cases, an employer can lawfully decide not to make requested adjustments to the workplace.

This can occur when:

the adjustments needed are not in fact reasonable (with reference to the relevant circumstances); or
the person with the disability or injury could not perform the genuine and reasonable requirements of the job even if the adjustments were made.

When thinking about reasonable adjustments employers need to weigh up the need for change with the expense or effort involved in making it. If making the adjustment means a very high cost or great disruption to the workplace, it is less likely to be a reasonable adjustment.

Under the Disability Discrimination Act 1992, an adjustment made to accommodate an employee with a disability is considered reasonable unless it causes “unjustifiable hardship” to the employer or organisation.

What are alternative and suitable duties?

Reasonable adjustments do not require employers to change the inherent requirements of the position of the employee returning to work, or provide a permanent alternative duties position or create an alternative duties position when one does not exist.

Alternative duties may include, for example:

Administrative/Seated Duties;
No Lifting Required Duties;
Lifting Less than 5kg Duties;
No Bending or Twisting Duties; or
Driving/Operating Machinery Duties.

What can be done at a practical level to help with a return to work?

Employers are advised to consult directly with the injured worker about their return to the workplace. It is recommended that this be done in conjunction with the employee’s treating medical practitioner (where consent has been obtained from the employee) along with any occupational rehabilitation provider who is engaged to assist in the return to work process.

Employers also ought to consult with other employees about assisting with the return to work process where required and should also make it known to all employees what it will do to support them if they ever become injured at work.

Employers also ought to have a designated Return to Work Coordinator who is best placed to assist the company adhere to its obligations in relation to injured workers returning to the workplace.

How can Paul Horvath Solicitor help your business?

With significant penalties facing employers for failing to adhere to return to work obligations, it is paramount that employers get it right when faced with an injured worker returning to work. With over 15 years of experience, Paul Horvath Solicitor is excellently positioned to assist you navigate the process of having an employee return to work after an injury. Let us help you today and assist you with meeting your legal obligations.

Contact Paul Horvath or Ned Puddy at admin@phsolicitor.com.au, or give us a call on (03) 9642 0435 to book an appointment today.

Disclaimer: This article contains information of a general nature and should not be relied upon or taken to be legal advice. You should speak with a lawyer about your situation before applying any of this information.

The post PH Solicitor Newsletter – December 2019 appeared first on PH Solicitor.

PH Solicitor Newsletter – May 2019

admin — Wed, 26 Jun 2019 11:29:23 +0000

To restraint or not restraint?

Restraint of trade clauses (or non-compete as they are also known) can be a useful tool for an employer to protect its interests after the employment relationship comes to an end. Restraint clauses can also act as a deterrent for employees seeking and engaging employment with clients or competitors after their employment has ended. However, there are a number of considerations that employers must weigh before including a restraint of trade clause in an employment contract¹some of which are outlined below.

What is a restraint of trade clause?

A restraint of trade clause is usually contained in a contract of employment. The restraint clause will only come into effect post-employment. However, it does become more difficult to enforce in circumstances where the employer has engaged in conduct that effectively repudiates the employment contract . If an employer terminates the contract of employment, the restraint of trade clause will continue to be enforceable. Likewise, where an employee resigns, the restraint of trade clause will continue to be enforceable.

Restraint clauses, if effectively drafted, can go to protecting the employer’s legitimate business interests in preventing an employee from engaging in work with a former client of the employer, customer or competitor for a period of time, and within a specified geographical location. The restraint clause does not come into effect from the date of notice given by the employee to resign or termination by the employer. Rather, the restraint clause will come into effect at the end of employment.

What is considered ‘legitimate business interests’?

A restraint clause can go no further than what is necessary to protect the employer’s legitimate interests. In some cases, preventing the solicitation of clients of the employer who the employee had specific dealings with during their employment would be considered reasonable. Conversely, a restraint preventing the employee from engaging with any client of the employer (regardless of whether the employee specifically dealt with those clients during employment) would be less likely to be considered reasonable.

What activities are subject to the restraint clause?

The restraint clause may seek to prevent the employee from engaging in the following conduct² :

i. competing directing with the employer’s business operations, including setting up a business in direct competition;
ii. soliciting or inducing any employees of the employer to leave their employment or interfere with the employment relationship;
iii. soliciting or inducing or attempts to include competition with the employer custom or business of any client of the employer.

What is a “cascading clause”?

A cascading clause is the scope at which the restraint enforces. It includes the temporal and geographical operation as well as the activities that the restraint seeks to prevent. Some contracts will include a cascading clause so that if sought to be enforced post-employment, there are a number of options available for the judge to consider reasonable and enforceable in the circumstances.

While some employers believe that a cascading clause is a better protection, it is not always the best option. An alternative would be to include a specific and narrow location and time for the restraint, which in some cases, may be easier to enforce if a breach occurs. For example, in reference to the restraint activities, an employee may be restrained for a period of 2 months within a 25km radius of the employer’s operating location.

An example of a cascading clause is set out below:

Restraint Area means each of the following areas separately:

i. Australia, or if this restraint area is not held to be reasonable;

ii. The State of Victoria, or if this restraint area is not held to be reasonable;

iii. Melbourne CBD.

Restraint Period means each of the following periods separately:

i. Twelve (12) months from the date of end of employment, or if this restraint period is not held to be reasonable;

ii. Six (6) months from the date of end of employment, or if this restraint period is not held to be reasonable;

iii. Three (3) months from the date of end of employment.

How are restraint of trade clauses enforced?

To determine the reasonableness of a restraint, consideration will be given to the acts that the employee is prevented (or restrained) from doing. Restraints are usually enforced against an employee in relation to their involvement and connection with particular clients of the employer, as well as competitors. However, restraining an employee from engaging in work with an employer will only be reasonable where it does not restrict the employee from earning an income given their specific skills set, and the time that the confidential information an employee has accessed during their employment would remain commercially viable.

In circumstances where an employer believes a former employee has breached their post-employment restraint, time to enforce the restraint clause is important. Some employers elect to send the employee a letter of demand directing them to cease employment and pointing to the operational clause in their contract regarding restraint. However, this may not be effective, and in the circumstances, if the employer is aware of the breach, the alternative remedy is to file an application for an injunction in the court of competent jurisdiction.

It is important to note that evidence of breach is vital in order to pursue injunctive relief, and in some circumstances, damages. If a breach of restraint matter comes before the court for injunctive relief proceedings, it is worth noting that very few of those cases proceed to a final hearing due to early settlement, or discontinuance of proceedings (which may be because the employee stops the breach of the restraint).

Do employers enforce restraint clauses?

There have been a number of decisions in the Supreme Court of Victoria relating to restraints and their enforceability. Some of the published decisions for injunctive relief demonstrates the difficulties that may arise in enforcing a restraint.

In Georges Apparel Pty Ltd v Giardina ³, the employer had a restraint clause for a period of 6 months in relation to competing with the employer’s business. The business was importing and sales of school clothing in Australia. After her employment ended, the employee sought to establish her own business. In the Supreme Court, McDougall J refused to enforce the restraint in its entirety, and instead, held that sufficient protection of the employer was able to be obtained through the return of any confidential information belonging to the employer by the employee, and enforcements of the non-solicitation terms (relating to preventing her approach to other employees).

Where to next?

Restraint clauses are generally found in the contract of employment between the employer and employee. Importantly, if an employee is promoted within the business during the tenure of their employment, the seniority of the employee may give rise to a restraint clause being added, if it was not already in the employment contract.

In some circumstances, the employer may have an opportunity at a later date to include a restraint clause against the employee if they had not already done so in the contract of employment. This may be for example, where there is a settlement agreement between the employer and employee for departure from the business, and a restraint clause can be added in the deed of release. However, this is in limited circumstances, and the preference is for the restraint clause to be included in the contract of employment so as to avoid ambiguity. Due to the nature of restraint clauses, it is recommended that employers have their contracts of employment reviewed, and if required, restraint clauses to be drafted by a lawyer. It is also just as important for employees to understand their obligations to the employer post-employment if they have restraint of trade clauses in their contract of employment.

If you require assistance with drafting or enforcement of restraint clauses, please contact us. Paul has extensive experience in this area. He can be contacted on admin@phsolicitor.com.au or (03) 9642 0435.

⁽¹⁾ Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181.

⁽²⁾ This is not a comprehensive list of the extent that a restraint clause can go to prohibiting an employee from engaging in.

⁽³⁾ [2017] NSWSC 290.

The post PH Solicitor Newsletter – May 2019 appeared first on PH Solicitor.

PH Solicitor Newsletter – March 2019

admin — Mon, 18 Mar 2019 22:03:24 +0000

The #MeToo movement has brought sexual harassment in the workplace into the spotlight. It is no longer acceptable for workplaces to ignore, or fail to adequately address concerns or complaints regarding sexual harassment.

In Victoria, the Equal Opportunity Act 2010 (Vic) defines sexual harassment as unwelcome sexual behaviour (either physical, verbal and/or written), which could be expected to make a person feel offended, humiliated or intimidated. Section 28A of the Sex Discrimination Act 1984 (Cth), defines sexual harassment as conduct where a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed or engages in other unwelcome conduct of a sexual nature (including making a statement to, or in the presence of a person either orally or in writing). The conduct occurs in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The circumstances that are taken into account when determining whether there has been sexual harassment pursuant to the Sex Discrimination Act 1984 (Cth) includes the following¹:

i) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
ii) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
iii) any disability of the person harassed;
iv) any other relevant circumstance.

It is important to understand that even if the person did not intend for the conduct to be sexual harassment towards another person, it does not mean that it does not fall within the ambit of sexual harassment. Furthermore, sexual harassment can be conduct that is a one-off, a series or pattern, and a person does not have to say no for it to constitute sexual harassment.

Sexual harassment is prevalent in the workplace in Australia. In 2012, the Australian Human Rights Commission conducted a national survey which found that one in four women and one in six men had been sexually harassed in the years 2007-2012. For sexual harassment to be considered “in the workplace”, it occurs in either of the following settings:

At work;
At work-related events or where people are carrying out work-related functions; or
Between people sharing the same workplace ².

Australians, generally, have a reputation for being humorous. However, in the workplace, a higher standard applies to how employees behave and conduct themselves and attempted humour of a sexual nature is likely to constitute harassment. Despite the widespread media interest, as well as political responses to the #MeToo movement, the prevalence of sexual harassment claims within the workplace continues to steadily rise. While this in part can be attributed to employees feeling more empowered and comfortable raising their concerns or complaints about conduct of colleagues, there is still a gap between the education and changing behaviour patterns.

A national inquiry into sexual harassment in Australian workplaces was announced in June 2018 by the Australian Sex Discrimination Commissioner, Kate Jenkins. The purpose of the inquiry is to facilitate the conversation around sexual harassment in the workplace and identify the prevalence of sexual harassment within the Australian workplace.

The existence of workplace policies and clearly articulated codes of conduct assists employers establishing the standard and expectation of employees. It also provides employees with the information on what is deemed to be sexual harassment and the process by which they can bring any concerns or complaints to management or human resources. The induction process that employers undertake with employees can also assist in making clear the standards and obligations that employees are expected to meet, under workplace laws and policies of the company.

Ensuring that employees are aware of the employers’ expectations and high standards of behaviour required of them assists in preventing sexual harassment in the workplace and may protect an employer from being liable in the event of a harassment claim. It is also recommended that employers remind employees of their policies and code of conduct in the lead up to any work-related functions. This includes prior to attendance at seminars and conferences, internally, domestic or international functions where the line between work and social is sometimes blurred.

The consequences of not addressing, or failing to adequately address complaints of sexual harassment in the workplace can extend beyond the individuals involved. There have been a number of decisions handed down in the Fair Work Commission and Federal Courts relating to sexual harassment in the workplace and the consequences that result. In a case decided in 2014, Richardson v Oracle Corporation Australia Pty Ltd and Tucker [2014] FCAFC 82, the Court raised the bar in regards to compensation awarded to an individual for general damages and economic loss flowing from sexual harassment by a colleague in the workplace. The Court awarded the applicant damages of $130,000 for sexual harassment by a former colleague, comprising $100,000 in general damages and $30,000 for economic loss.
In the Fair Work Commission decision of Colin Ramon Reguero-Puente v City of Rockingham [2018] FWC 3148, the applicant brought an unfair dismissal claim against the respondent. The applicant’s employment was terminated for misconduct relating to a number of allegations of sexual harassment which were investigated and substantiated by an external investigator. The applicant contended that the female colleagues who were the subject of his inappropriate conduct should have told him to stop. The Fair Work Commission held that “young women should not have to tell their older superiors that they do not want to be sent salacious texts during or after working hours, nor have comments of a sexual nature made about them, or be directed toward them in their workplace.”

It is acknowledged that employers have a responsibility to ensure a safe work environment for all employees. Updating workplace policies, and providing ongoing training for employees will enable a clear message to be portrayed to employees about the standards and expectations of the workplace.

Paul has extensive experience in this area. If you require assistance with your workplace policies, or with harassment (and bullying) training, please contact him on admin@phsolicitor.com.au or (03) 9642 0435.

¹See ss 28A(1A) of the Sex Discrimination Act 1984 (Cth)

The post PH Solicitor Newsletter – March 2019 appeared first on PH Solicitor.

PH Solicitor Newsletter – October 2018

admin — Sat, 13 Oct 2018 03:02:33 +0000

Casual employees – really just a casual?

It has long been considered by employers that casual employees do not have the same entitlements as permanent employees. However, a recent decision handed down by the Full Court of the Federal Court of Australia (Court) will have a widespread effect on how casual employment is classified.

The way that a casual employee is rostered and allocated shifts can now be used to demonstrate that they are not a true casual employee. In this article, we look at a recent decision handed down by the Court.

WorkPac Pty Limited v Skene

In August 2018, Court handed down a decision in WorkPac Pty Limited v Skene [2018] FCAFC 131 (Skene). The impact of this decision, particularly on the labour-hire industry is widespread in regards to the entitlements that a regular casual employee may be entitled to receive, despite any casual loading that may have been paid.

Facts

Mr Skene had been employed by Workpac Pty Ltd since April 2010 as a dump-truck operator. From July 2010 to April 2012, he was working 12 hour shifts on a rotating roster of seven days on and seven days off at the Clermont Mine in Central Queensland.

Throughout his employment, he was engaged, as per his contract of employment, as a casual employee.

He was paid a flat rate of pay under the terms of the Workpac Enterprise Agreement (Enterprise Agreement). Mr Skene was rostered on the same shifts, and his roster was provided 12 months in advance. During his employment, Mr Skene was not paid annual leave due to his classification as a casual employee under the Enterprise Agreement. Upon adoption of the casual conversion clause into modern awards, an employer will be required to provide casual employees with a copy of the clause within 12 months of employment.

Upon termination of his employment, Mr Skene did not receive any payment in lieu of unused annual leave which he believed he was entitled based on his employment. He subsequently filed an application to recover monies in payment of unused and accrued annual leave. Mr Skene argued that he was a permanent employee on the basis of his employment arrangement with Workpac and as such, he should be paid for annual leave accrued and not taken, during his employment.

Decision

The Court considered the circumstances in which Mr Skene was employed by Workpac and the nature of the employment relationship. Despite the fact that Mr Skene was paid a casual loading, the Court had to determine what factors define the type of employment

The Court referred to the decision in Hamzy v Tricon International Restaurants [2001] 115 FCR 78, where the definition of casual employment was considered. In that decision, and the position that the Court took in Skene was that “the essence of casual employment is the absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work, but that is not inconsistent with the possibility of the employee’s work pattern turning out to be regular and systematic”.

The Court held that the payment of a casual loading was not a determinative factor as to whether an employee is classified as a casual. Further, the Court noted that the casual loading, at the very least, had to be identifiable. The Court then set out a number of factors to be considered in classifying an employee as a casual including:

The hours of work and work pattern;
Provision of a regular roster;
Fluctuation in the work pattern; and
Term of employment – whether fixed-term or contractor.

The Court determined that Mr Skene was entitled to annual leave upon the termination of his employment and made orders to that effect.

National Employment Standards

The National Employment Standards (NES) are 10 minimum statutory employment entitlements provided for in the Fair Work Act. The conditions set out in the 10 NES are the minimum standards that all national system employees are entitled to in their employment.

The Court in Skene addressed the statutory entitlements of national system employees in determining the employment status of Mr Skene. The Court maintained the position that if an employee meets the criteria and definition of a permanent employee, yet the employer pays them above the applicable Award or Agreement rate in the form of a loading, does not mean that the employee is a casual.

Future of casual employees

It is important for employers to understand the classification of employment to ensure that employees are accurately classified.

Correct classification of the employment status of casual, part-time, full-time employees, or contractors will ensure that the correct statutory entitlements are paid to employees.

In light of the decision handed down in Skene and the nature of the employment relationship in the modern day, it is important for employers to be aware of the way in which they employ casuals. If an employee is classified as a casual and paid an amount above the applicable minimum wage, it is important for employers to be able to clearly demonstrate the loading, as well as the considerations outlined above if they are to rely on this as a factor in classifying the employee as a casual.

The post PH Solicitor Newsletter – October 2018 appeared first on PH Solicitor.