Search Results

In a recent decision by the Fair Work Commission (FWC), a notable case of unfair dismissal was examined, shedding light on the intricacies of procedural fairness in the workplace. The case, Skei Batton v The Environment Centre NT Inc [2024] FWC 597, available in full at www.jade.io, offers a rich discourse on the role of procedural fairness in cases of unfair dismissal. The case revolves around a finance manager at a small not-for-profit organisation, the Environment Centre NT Inc (ECNT), who was dismissed for misconduct and poor performance during a critical audit period. Despite the seemingly clear grounds for dismissal, the FWC found the process fundamentally flawed, primarily due to the lack of an impartial decision-maker. The finance manager, a single mother and a survivor of domestic violence, found herself unfairly dismissed when the executive director of ECNT, also a lawyer, oversaw both the investigation and the decision-making process. This led Commissioner Bernie Riordan to criticise the organisation for its approach, noting that someone independent from the case should have conducted the investigation or, at least, the board should have made the decision regarding the finance manager's employment. The executive director’s dual role as both judge and executioner rendered the dismissal procedurally unfair. The importance of procedural fairness cannot be overstated, and this case serves as a poignant reminder of its role in unfair dismissal proceedings. The ECNT's decision to handle the disciplinary process internally without third-party oversight was a critical error, particularly in a small business environment where impartiality is challenging to maintain. The FWC’s ruling highlights that adhering to the Small Business Fair Dismissal Code does not exempt an employer from their obligations to ensure procedural fairness. In this case, the finance manager was found to have been unfairly dismissed despite the valid reasons the ECNT might have had for her termination. Her reaction to a request from a colleague was deemed overly emotional and disrespectful, and her conduct at a sub-committee meeting was unprofessional. However, these actions, while problematic, were met with a process that failed to afford her a fair go, a cornerstone of Australian employment rights. The FWC's decision to award the finance manager $12,000 in compensation, despite her conduct, underscores the importance of procedural fairness in the context of unfair dismissal. The commissioner took into account her personal circumstances and the overwhelming nature of the tasks she was assigned, which she felt unprepared to handle. This consideration is crucial in understanding the human aspect behind unfair dismissal cases. This case of unfair dismissal serves as an educational cornerstone for both employers and employees. It illustrates the necessity for a fair and impartial disciplinary process, especially in settings where the boundaries between management and staff are inherently close. For organisations, the takeaway is clear: ensure procedural fairness at all stages of the disciplinary process to avoid the ramifications of an unfair dismissal finding. In conclusion, unfair dismissal is a significant concern in the employment landscape, and procedural fairness is its critical counterbalance. The case of Skei Batton v The Environment Centre NT Inc serves as a compelling reminder of the complexities surrounding unfair dismissals and the essential nature of maintaining fairness and impartiality in all employment proceedings. For further details, the full decision is available for reading on www.jade.io, providing invaluable insights into the nuances of unfair dismissal and procedural fairness. [Visit the full decision](www.jade.io) Skei Batton v The Environment Centre NT Inc [2024] FWC 597

In the realm of professional sports, the dynamics between coaching staff and athletes can often illuminate broader workplace issues that resonate across various industries. A recent judgment by the Federal Court has provided a notable example involving Shane Heal, a seasoned coach and former Sydney 2000 Olympics Boomers star, and his professional relationship with the Sydney Flames, a team in the Women's National Basketball League. Justice John Halley clarified in his decision that the suspension of Shane Heal from his position as head coach was not due to the exercise of his workplace rights, but rather was a direct response to serious complaints lodged by players. These complaints, voiced significantly by team captain Keely Froling in a detailed discussion with senior management, covered critical concerns including players' mental health and well-being. The nature of these allegations was not trivial; they included a player experiencing a panic attack and others struggling with mental health issues, pointing to a scenario where player welfare was ostensibly compromised. The gravity of the situation was underscored by a follow-up call from a player agent to the team's management, probing into the actions that would be taken in response to the complaints. While the court sided with the organisation in its decision to suspend Heal, it was not all in disfavour of the coach. The judge acknowledged that Sydney Flames had indeed breached certain terms of Heal's employment contract, particularly around financial entitlements. Heal had successfully secured a sponsorship with a boutique employment law firm, which the club initially denied him the benefits from. This decision was later critiqued by the court, highlighting the importance of honouring contractual agreements concerning employee-generated sponsorships. Additionally, the court found the club guilty of failing to provide Heal with pay slips, a basic yet fundamental aspect of employment compliance. This oversight was admitted by the club, underscoring a lapse in adhering to administrative employment standards. This case serves as a reminder of the complex interplay between employee rights and organisational responsibilities. It highlights how leadership roles, particularly in high-stress environments like professional sports, require not only tactical and strategic acumen but also a keen sensitivity to the health and well-being of team members. Organisations must tread carefully in balancing authoritative governance with empathy and responsiveness to legitimate employee grievances. For advocates and professionals in employment and human rights fields, this case provides a critical lens through which to view the enforcement of workplace rights and the mechanisms for addressing grievances. It underscores the importance of transparent and fair processes in resolving workplace disputes, reflecting a broader commitment to upholding dignity and respect in employment. Read the full decision: Heal v Sydney Flames Basketball Pty Ltd [2024] FCA 401 (19 April 2024)

In the case of George Albert Byrne and George Mortimer Frew [1994] FCA 888 (Byrne and Frew), the principles established concerning procedural fairness revolve around ensuring that individuals are provided with a fair and unbiased process when their employment or human rights are at stake. These principles, as established in Byrne and Frew, are crucial in upholding the principles of justice and protecting the rights of individuals involved in such cases. 1. Right to be heard: The principle of procedural fairness, as established in Byrne and Frew, emphasises that individuals must be given a reasonable opportunity to present their case and be heard. This includes the right to provide evidence, call witnesses, and make submissions in support of their position. It ensures that individuals have a fair chance to present their side of the story and have their voice heard. 2. Impartial decision-maker: Byrne and Frew establishes that procedural fairness requires that the decision-maker be impartial and unbiased. This means that the person or body responsible for making decisions should not have any personal or financial interest in the outcome of the case. An impartial decision-maker ensures that the decision is based solely on the facts and evidence presented, rather than any personal bias or prejudice. 3. Notice and disclosure: As outlined in Byrne and Frew, individuals must be provided with adequate notice of the allegations or issues they are facing. This includes providing them with sufficient information about the case to allow them to understand the nature of the allegations and prepare their defence. Additionally, individuals have the right to access relevant documents and evidence that will be relied upon in the decision-making process. 4. Right to legal representation: Byrne and Frew recognises the importance of legal representation in ensuring a fair process. Individuals should have the right to seek legal advice, be represented by a lawyer, and have legal representation present during any hearings or proceedings. Legal representation helps individuals navigate the complexities of the legal system, understand their rights, and present their case effectively. 5. Reasoned decision: As established in Byrne and Frew, the principle of procedural fairness requires that decisions be based on rational and logical grounds. The decision-maker must provide reasons for their decision, outlining the evidence and factors considered, and explaining how they arrived at their conclusion. This allows individuals to understand the basis for the decision and assess whether it was fair and reasonable. These principles, as established in the case of George Albert Byrne and George Mortimer Frew [1994] FCA 888 (Byrne and Frew), emphasise the importance of fairness, transparency, and accountability in the employment and human rights context. They ensure that individuals are given a fair opportunity to present their case, that decisions are made impartially, and that the process is conducted in a manner that upholds the principles of justice.

In a pivotal legal victory, the Full Federal Court has confirmed that over 4000 Queensland apprentices are due to receive a collective $70 million in back payments. This decision marks a significant triumph for union advocacy, particularly the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), in their efforts to enforce fair wage practices. The court's ruling dismissed appeals from Master Builders Queensland, the Apprentice Employment Network, and the Housing Industry Association, who sought to maintain outdated state awards for determining apprentice wages. The case, known as Master Builders Queensland & Ors v. All Trades Queensland & Ors [2017] FCAFC 167, firmly establishes that modern awards should supersede any previous state awards as of January 2014, aligning with the standards set by the Fair Work Commission. This decision is a testament to the relentless efforts of various unions, including the Electrical Trades Union (ETU) and the Australian Manufacturing Workers' Union (AMWU), which have been instrumental in challenging the inequitable pay conditions under the 2015 apprenticeship agreements by All Trades Queensland. Their advocacy has paved the way for apprentices who were compensated below the modern award rate to now claim the wages they legally deserve. Scott Reichman, an apprentice officer with the ETU in Queensland, lauded the court's decision as a crucial step toward correcting long-standing injustices in apprentice pay. He criticized the systemic exploitation by some employers in Queensland, pointing out that these outdated agreements had resulted in apprentices being paid less than their counterparts in other states for years. It's indeed refreshing to see unions like the CFMEU leading the charge in fighting for the rights of young tradespeople, ensuring substantial financial redress and the upholding of fair labor practices. Ash Borg, a senior industrial officer at the CFMEU, noted the readiness of apprentices to register for back pay, highlighting the tangible benefits of the court's decision. Despite the positive outcome for apprentices, there are concerns from industry leaders about the potential broader impacts on the sector. Grant Galvin of Master Builders Queensland expressed worries that the wage adjustments could affect the intake of new apprentices and the financial viability of businesses that rely heavily on apprentice labor. This ruling is a powerful example of how collective action and union advocacy can bring about substantial improvements in conditions for young workers. As we continue to champion employment rights, this case serves as an inspiring reminder of the positive impact that dedicated and united efforts can have on the workforce. For those interested in the full details of this case, the decision can be accessed on the Fair Work Commission’s website through this [link to the Fair Work decision](https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfafc167.htm). We remain committed to providing our readers with timely and accurate updates on significant legal and employment issues that impact workers across Australia.

The Fair Work Commission (FWC) recently delivered a judgment in the case of Audrey Campbell v Gold Tiger Logistics QLD Pty Ltd [2024] FWC 913 (9 April 2024), which highlights the complexities surrounding issues of unfair dismissal due to linguistic misunderstandings. The decision underscores how accents and cultural differences can impact interpretations of conversations in the workplace, leading to significant employment disputes. In this particular case, a customer service coordinator at Gold Tiger Logistics faced unfair dismissal after a heated argument with her supervisor, which stemmed from a misunderstanding attributed to her Scottish accent. The supervisor claimed the employee stated "I have had enough, and I quit," leading to her dismissal. However, the employee contested this, asserting she actually said "this is shit," expressing frustration with her tasks, and did not resign. The situation escalated during a subsequent investigation where the state manager involved decided on dismissal, influenced by his own interpretation of the employee's words, rather than seeking clarity or further confirmation. This pivotal decision points to a critical oversight in handling disputes where linguistic misunderstandings occur. Commissioner Sharon Durham, presiding over the case, determined that the unfair dismissal was not based on valid grounds of serious misconduct as the employer alleged. Instead, it was found that the misunderstanding of the employee's spoken words due to her accent played a significant role. This decision draws attention to the need for employers to consider cultural and linguistic nuances seriously to ensure fairness and equity in disciplinary processes. The ruling not only brings to light the challenges non-native speakers might face in the workplace but also sets a precedent for how such cases of unfair dismissal are to be judiciously examined. Employers are urged to develop clearer communication guidelines and training to accommodate diverse workforces, thereby preventing similar cases of unfair dismissal. This case serves as a reminder of the potential for accents and linguistic differences to lead to significant misunderstandings that can unjustly affect employees' careers. Employers must take proactive steps to ensure that all employees are fairly heard and understood, regardless of their background, to prevent unfair dismissals. In conclusion, the FWC's decision in this case not only addresses the specific injustices experienced by the employee but also calls for broader reflections on workplace practices. It is crucial for employers to be vigilant and sensitive to the diverse linguistic landscape within their workforce to foster an inclusive environment and avoid unfair dismissals. The case of Audrey Campbell v Gold Tiger Logistics QLD Pty Ltd is a stark reminder of the impact that misunderstandings and preconceptions can have on fairness in the workplace. It reinforces the need for employers to critically assess and adapt their communication and managerial approaches in cases involving diverse accents and cultural backgrounds to prevent unfair dismissals and uphold justice in employment practices.

In a decision that resonates widely across the gig economy, a recent ruling involving Brian AJ Newman LLB, Principal of 1800ADVOCATES, has brought to light the complex nature of employment classification in modern workforce arrangements. The case, involving our client, Jessica Tidmarsh, is a pivotal example of the evolving understanding of worker rights within service sectors that utilise digital rostering systems. The Fair Work Commission (FWC) has recently adjudicated on a matter where a home care worker, originally signed on as an independent contractor through various agreements, was recognised as an employee, thus eligible to file for unlawful dismissal. Jessica Tidmarsh’s employment with Aspire 2 Life was terminated after she expressed concerns to a company director about the legality of her working arrangements, specifically after consulting with the Fair Work Ombudsman. The core of the dispute was addressed by Deputy President Roberts, who critically examined the employment documents that defined Tidmarsh as a contractor, such as the Contracted Service Provider Agreement and the Contractor Work Opportunity document. These contracts laid out conditions typically associated with contracting, including the requirement to hold an Australian Business Number (ABN) and responsibilities related to taxation and insurance. Despite these provisions suggesting a contracting relationship, Deputy President Roberts noted significant elements that pointed to an employer-employee relationship. The level of control Aspire 2 Life had over Tidmarsh’s duties and the integral role she played in delivering services aligned more with employment status. The examination went beyond the contractual terms to look at the operational realities, where Tidmarsh was found to be less of an independent contractor and more an integral part of the company. This ruling is particularly instructive as it clarifies the distinction between contract language and the practical nature of work conditions, a delineation that has been previously explored in significant legal precedents. The decision emphasises that the characterisation of employment cannot solely rely on the labels assigned in contracts. This case highlights the ongoing dialogue around gig economy roles and the classification of workers therein. It serves as a critical reminder for companies to reassess how they categorise their workers to ensure compliance with employment laws. For detailed insights into the legal proceedings and implications of this case, the complete judgement is available at www.jade.io, under the citation: Ms Jessica Tidmarsh v Aspire 2 Life Pty Ltd [2024] FWC 289 (5 February 2024). The advocacy and expert handling of the case by Brian AJ Newman and the team at 1800ADVOCATES not only underscored their commitment to justice but also provided a significant benchmark for employment law practitioners and businesses across Australia.

In a recent decision that has resonated across employment law circles, the Fair Work Commission (FWC) ruled in favour of a worker who was dismissed for being vaccinated against COVID-19, a stance deemed 'demonic' by her employer, a Newcastle-based church. This case, Lainie Chait v The Church Of Ubuntu Inc [2024] FWC 703, highlights the complex interplay between employer beliefs and employee rights within Australian workplaces. [Read the full case on Jade](https://jade.io/article/703). The Church of Ubuntu summarily dismissed the employee after adopting a retroactive policy against COVID-19 vaccinations, which it labelled as part of "the world's largest ever untested medical experiment". This decision was made without prior warning to the employee, reflecting a stark example of what the church described as a reaction against a perceived "medical apartheid" instigated by public health mandates. The church’s refusal to participate in the unfair dismissal proceedings following a lost jurisdictional objection signifies a broader issue of non-compliance with legal frameworks that aim to protect worker rights. The FWC's Vice President, Ingrid Asbury, took a critical stance against the church's actions, which she found to lack any reasonable ground. Her ruling underscored that employers do not have the right to impose such health-related policies on employees, particularly when these policies do not align with lawful and reasonable personal health measures and do not impact the employee’s capacity to fulfil their duties. This case sheds light on the essential considerations employers must weigh when formulating policies that affect the health choices of their employees. The vice president’s findings emphasised that the role was not inherently religious and that the church’s constitution did not support its claims against vaccinations. Moreover, she highlighted the importance of fair treatment and the opportunity for dialogue, which the church notably disregarded by dismissing the employee summarily and without consultation. The compensation of $8,000 awarded to the employee, while modest, reflects the limited claim made by the worker rather than the full extent of damages that could have been pursued. This outcome serves as a reminder of the protections afforded to workers under Australian law, ensuring that employment decisions, particularly those involving health and safety, are founded on fairness, legality, and reasonableness. This ruling is particularly relevant for employers who might consider implementing policies influenced by health, religious beliefs, or other potentially discriminatory criteria. It serves as a critical reminder of the need to balance organisational policies with the rights and freedoms of employees, ensuring that such policies are not only lawful and reasonable but also clearly communicated and equitably applied. For advocates and professionals focused on employment and human rights, this case offers a pivotal example of the judiciary's role in upholding worker rights against the backdrop of broader societal issues and health crises. It provides a significant point of reference for discussions on how workplaces can navigate the challenges of personal beliefs and public health responsibilities without infringing on individual rights.

In a recent and pivotal decision by the Fair Work Commission (FWC), the redundancy entitlements of five employees from Bartercard Digital Australia Pty Ltd were significantly adjusted. This adjustment followed their refusal to transition to new roles requiring 100% work-from-home (WFH) setups, as the company underwent a restructuring process. This decision casts a spotlight on the concept of unfair dismissal and the nuanced criteria for 'reasonable alternative employment' set by the Fair Work Commission. The Transition to Work-From-Home Roles The employees, formerly business development managers at Bartercard, were offered newly created trading specialist roles as the company decided to close its physical offices. Despite a pay rise and a revised incentive structure, the new roles eliminated a vehicle allowance and involved complete remote work. This shift led the employees to perceive the new role as a downgrade, likening it to a "call centre operator" position, and flagged concerns about the adequacy of their home spaces for professional work. The Role of the Fair Work Commission Bartercard applied to the Fair Work Commission under s120(2) of the Fair Work Act seeking to reduce the workers' redundancy payments to potentially nil, after they rejected these new positions. The FWC's decision highlighted the challenges in defining what constitutes unfair dismissal within the realm of organisational changes and evolving employment landscapes. The Fair Work Commission had to carefully consider whether the offered positions constituted 'reasonable alternative employment'. Understanding Unfair Dismissal Through the FWC's Lens Deputy President Nicholas Lake's ruling emphasised that while job satisfaction and role importance are legitimate concerns, they should not singularly justify an unfair dismissal claim if reasonable alternative employment is available. The FWC's stance suggests that an employer’s effort to innovate and improve efficiency should not be stymied by resistance to change, particularly when the change involves reasonable adjustments to employment conditions. Unfair Dismissal Claims and Individual Circumstances In assessing the fairness of the transition to remote work, the Fair Work Commission took into account individual circumstances, such as living arrangements and the practicality of establishing a home office. This highlights that the concept of unfair dismissal is not only about the role but also about the suitability of the employment conditions to the employee’s specific situation. For instance, one worker was given a shorter notice period to reconsider the role change, which the FWC considered when adjusting the redundancy payout. The Broader Implications for Unfair Dismissal This case reflects broader implications for unfair dismissal claims, particularly in the context of WFH policies. It underscores the need for employers to provide clear, reasonable alternatives and for employees to adapt to organisational changes, barring significant personal constraints. The Fair Work Commission's decisions serve as a guidepost for both employers and employees navigating the complexities of employment restructuring in a digital age. Conclusion The Fair Work Commission's role in mediating disputes over unfair dismissal remains crucial, especially as workplaces evolve and remote work becomes more common. This case from Bartercard not only sheds light on the specific conditions under which redundancy entitlements may be adjusted but also helps in understanding the intricate balance between business needs and employee rights under the Fair Work Act. As we continue to witness shifts in working norms, the principles laid out by the Fair Work Commission in unfair dismissal cases will undoubtedly influence future employment practices and legal frameworks. Understanding and navigating these principles is essential for both employers and employees to ensure fair and reasonable employment practices are upheld.

In a significant development for the rights of casual workers in the higher education sector, the Federal Court has handed down a substantial penalty against Melbourne University. This decision, presided over by Federal Court judge Craig Dowling, marks a critical moment for casual and fixed-term employees, particularly in the academic world. On April 5, 2024, the court ruled that Melbourne University had engaged in adverse actions against two of its casual employees. This case arose when a supervisor at the university threatened the workers with non-renewal of their contracts should they claim hours beyond those contracted. Moreover, when one worker claimed additional hours rightfully worked, the university ceased to engage with her further, disparagingly branding her a "self-entitled Y-genner" on a "crusade behind the scenes". Judge Dowling imposed two penalties totalling $74,590 on the institution, taking into account not only the university's subsequent compliance improvements and compensation payments to the affected workers but also emphasising the need for general deterrence across a sector that heavily relies on casual and fixed-term staff. The Court's Findings Justice Dowling's findings were clear: the workers were entitled to claim their worked hours without facing threats of adverse consequences. This right is protected under section 341(1)(c)(ii) of the Fair Work Act, which qualifies the ability to make an inquiry or complaint about one's employment as a workplace right. The court's decision highlighted a prevalent issue in universities—the vulnerability of casual staff. These employees often find themselves dependent on the favour of supervisors for their continued employment, a situation that leaves them particularly susceptible to exploitation and unfair treatment. Implications of the Case This ruling is a poignant reminder of the obligations employers have towards their employees, especially in understanding and respecting workplace rights. The substantial penalties reflect the seriousness of the contraventions and serve as a warning to other institutions that similar conduct will not be tolerated. In response to the ruling, Melbourne University has implemented several compliance measures. These include the introduction of casual compliance manager roles and a HR Assist phone line to help workers raise issues about pay and other concerns. Enhanced training for casual employees and supervisors on the approval process for additional time worked also forms part of the university's strategy to improve its handling of casual staff. Moving Forward The case of Melbourne University is not isolated. The Fair Work Ombudsman has flagged the university sector as a regulatory priority, with ongoing investigations into other allegations of underpayment and unfair treatment of casual academics across the nation. This ruling should therefore be seen as a catalyst for change, urging all higher education institutions to reevaluate and improve their employment practices. For casual academics and other employees in similar positions, this case underscores the importance of understanding and asserting their rights. It also highlights the role that judicial and regulatory bodies play in upholding these rights and ensuring fair treatment. The outcome of this case is a step towards more equitable employment practices in Australian universities, ensuring that the rights of the most vulnerable workers are protected and respected. For those advocating for employment rights, it serves as a reminder of the need for vigilance and the continuous push for improvements in worker protections. Read the full decision Fair Work Ombudsman v University of Melbourne [2024] FCA 330 For further updates on this topic and more insights into employee rights, stay tuned to the 1800ADVOCATES™ blog.

In the bustling world of workplace relations, the Fair Work Commission's April 2024 Bulletin stands out as a beacon of insight and guidance. Here's a more engaging and detailed look into the pivotal updates and landmark decisions that could reshape how we navigate employment and workplace rights in Australia. Fresh Off the Press: Vital Fact Sheets for Modern Workplaces In an era where the dynamics of work and personal life increasingly intertwine, the Commission's latest fact sheets couldn't be timelier. One illuminates the recent amendments to general protections, shining a light on family and domestic violence as a protected attribute, marking a significant stride towards safeguarding employees' rights. Another details new protections for workplace delegates, reinforcing the backbone of employee representation in negotiations and disputes. The Aged Care Industry Decision: A Milestone Moment The aged care sector witnessed a watershed moment with the conclusion of stage 3 of its Work Value Case. This pivotal decision, aimed at revising the Aged Care Award, Nurses Award, and Social, Community, Home Care, and Disability Services Award, could herald a new era of fairness and recognition for those at the heart of our healthcare system. A New Rulebook for Fair Work The introduction of the Fair Work Commission Rules 2024, superseding the 2013 iteration, promises a smoother, more intuitive navigation of the Commission's procedures. This overhaul not only updates the legal framework in line with current legislation but also makes the Commission's workings more accessible to the layperson. Groundbreaking Decisions Unveiled - Navigating the Waters of Unfair Dismissal: One case dissected the intricate details of a small business's decision to terminate employment, setting a precedent on the interpretation of the Small Business Fair Dismissal Code. Another delved into the contentious issue of vaccination mandates, offering clarity on employers' boundaries in enforcing health policies. - The Dynamics of Industrial Action: In a case involving the Transport Workers’ Union, the Bulletin outlined the complex dance between bargaining and industrial action, providing a rare glimpse into the delicate balance of power in employer-union negotiations. - Bullying in the Digital Workplace: An anti-bullying application explored the nuances of online interactions in remote work settings, setting a landmark precedent for what constitutes reasonable management action in the digital age. Beyond the Bulletin: A World of Resources The Bulletin doesn't just stop at updates; it opens a portal to a wealth of information, from subscription services offering real-time decision updates to a comprehensive list of websites and legal resources. It's a treasure trove for anyone keen to delve deeper into the labyrinth of workplace relations and legislation. Fair Work Commission Addresses: Your Gateway to Justice With a detailed list of Fair Work Commission offices, the Bulletin ensures that anyone, anywhere in Australia, can find their way to support, advice, or the resolution of disputes. The April 2024 Bulletin: Not Just an Update, but a Lifeline This Bulletin is more than just a monthly update; it's a lifeline for navigating the complex seas of employment law. Whether you're an employee seeking to understand your rights, an employer striving to navigate the legalities of workplace relations, or a legal professional keeping abreast of the latest in labor law, the April 2024 Bulletin offers invaluable insights and resources. For more information or assistance with an employment or human rights matter, call 1800ADVOCATES or gethelp@1800ADVOCATES.au

Australia's approach to long service leave (LSL) involves a mix of state, territory, and federal laws, which can vary significantly in terms of eligibility, accrual rates, and entitlements. Notably, long service leave is primarily governed by state and territory legislation, rather than the Fair Work Act 2009. However, the National Employment Standards (NES) under the Fair Work Act provide a safety net of minimum employment conditions, including some aspects relevant to long service leave for employees who aren't covered by state or territory laws. Here's a breakdown of long service leave entitlements across different Australian jurisdictions: New South Wales - Governing Legislation: Long Service Leave Act 1955 (NSW) - Accrual Rate: 2 months of leave after 10 years of service, and 1 month for each subsequent 5 years. - Pro-rata Entitlement: After 5 years of service, under certain conditions like redundancy. Victoria - Governing Legislation: Long Service Leave Act 2018 (VIC) - Accrual Rate: Entitlement is 1 week of leave for every 60 weeks worked (approximately 8.67 weeks for 10 years). - Pro-rata Entitlement: After 7 years of service, regardless of the reason for termination. Queensland - Governing Legislation: Industrial Relations Act 2016 (QLD) - Accrual Rate: 8.6667 weeks of leave after 10 years of service, and 4.3333 weeks for each subsequent 5 years. - Pro-rata Entitlement: Generally available after 7 years of service, under certain conditions. Western Australia - Governing Legislation: Long Service Leave Act 1958 (WA) - Accrual Rate: 8.6667 weeks after 10 years, and 4.3333 weeks for each subsequent 5 years of service. - Pro-rata Entitlement: After 7 years of continuous service, under certain conditions. South Australia - Governing Legislation: Long Service Leave Act 1987 (SA) - Accrual Rate: 13 weeks for 10 years of service, with pro-rata after 7 years. - Pro-rata Entitlement: Available after 7 years of continuous service. Tasmania - Governing Legislation: Long Service Leave Act 1976 (TAS) - Accrual Rate: The entitlement is 8.67 weeks after 10 years of service. - Pro-rata Entitlement: Available after 10 years, with some exceptions allowing for earlier entitlements. Australian Capital Territory - Governing Legislation: Long Service Leave Act 1976 (ACT) - Accrual Rate: 6.0667 weeks for the first 10 years and 4.3333 weeks for each subsequent 5 years. - Pro-rata Entitlement: After 7 years of continuous service, in certain circumstances. Northern Territory - Governing Legislation: Long Service Leave Act 1981 (NT) - Accrual Rate: 13 weeks for the first 10 years of service, with additional entitlements accruing thereafter. - Pro-rata Entitlement: Available after 7 years of continuous service, under specific conditions. Fair Work Act 2009 While the Fair Work Act 2009 (Cth) sets the National Employment Standards (NES), it references long service leave only to the extent that it preserves existing state and territory entitlements and clarifies that an employee's entitlement under those laws is not affected by the NES. The Fair Work Ombudsman provides guidance on long service leave based on state and territory laws, as the specifics of long service leave entitlements are determined by the local legislation rather than by the Fair Work Act itself. For detailed provisions, including the conditions under which pro-rata long service leave may be paid and the specific rates of accrual, it is necessary to refer directly to the legislation of the relevant state or territory. Please remember, the above information serves as a general guide, and for specific cases or detailed queries, consulting the legislation directly or seeking legal advice is recommended.

In a pivotal High Court decision, Hurt v The King; Delzotto v The King ([2024] HCA 8), the conversation about the principle of legality illuminated its crucial role in statutory interpretation, especially within the context of the Fair Work Act. This principle, deeply embedded in the judiciary's approach to legislation, insists on a clear and unmistakable intention from Parliament before it is concluded that any legislation seeks to override established common law rights, privileges, or liberties. With Justices Gageler, Edelman, Steward, Gleeson, and Jagot dissecting this principle, its relevance to the workplace and employment law, particularly under the Fair Work Act, becomes increasingly apparent. They underscored the principle's inherent flexibility, allowing its application to be finely tuned to the specifics of each case. This is particularly significant in the realm of employment law, where the rights and freedoms at stake are not only fundamental but integral to the fair treatment and protection of workers. The discussion emphasized that the more critical the right or the more substantial the potential infringement on these rights, the more explicit Parliament must be in its legislative intent. However, it was also made clear that the principle of legality is, at its core, a tool for interpretation focused on discerning Parliamentary intent. Its applicability could be limited, especially where legislation, including sections of the Fair Work Act, explicitly aims to curtail or specify certain rights, freedoms, or immunities. This judicial exposition draws upon a rich legal heritage, with precedents like Potter v Minahan (1908) providing foundational support. These cases have shaped the principle's application, ensuring a balanced approach that protects individuals' rights while allowing for legislative action in areas like employment law. The insights from Hurt v The King; Delzotto v The King resonate deeply with the application of the Fair Work Act, offering a nuanced perspective on how courts navigate the complex interplay between legislative intent and the protection of common law rights within the workplace. This decision reaffirms the judiciary's commitment to safeguarding fundamental rights and freedoms, underscoring the need for clear legislative intention when such rights are to be adjusted or clarified, ensuring the Fair Work Act continues to operate as intended, within the bounds of fairness and legality.