Have you ever looked at your payslip and thought that something isn’t right? Maybe your hourly rate seems too low, you’re not getting paid for overtime, or your superannuation hasn’t been paid into your account. These situations, if they are not honest mistakes, could be a form of wage theft.

This article explains what ‘wage theft’ means, the national laws that make it a criminal offence, and the practical steps employees can take if they believe their employer is deliberately underpaying them.

The information is general only and does not constitute legal advice. For help and guidance with any workplace matter, we recommend you speak with an experienced employment lawyer.

Wage Theft Laws in Australia

In Australia, the law now takes a serious stance on the issue of wage theft. From 1 January 2025, intentionally underpaying an employee’s wages or entitlements can be a criminal offence, as provided in the national Fair Work Act (Cth) 2009. Employers can face criminal penalties for intentionally underpaying their staff.

These laws complement or reinforce existing legislation in some other jurisdictions, such as Queensland and Victoria, that already criminalise the deliberate underpayment of wages.

What is ‘Wage Theft’ and What are the Red Flags?

Wage theft is the deliberate and dishonest underpayment of an employee’s correct wages and entitlements. This is different from an honest mistake, which can happen in any business due to a payroll error or a misunderstanding of an award or agreement.

Wage theft can include:

• Paying less than the legal minimum wage: This is the most straightforward form of wage theft. The Fair Work Act mandates a national minimum wage, which is reviewed annually by the Fair Work Commission. This provision ensures that all employees receive a fair and reasonable wage for their work, regardless of their industry or occupation.

• Not paying for all hours worked: This might include the requirement of unpaid ‘trial shifts’ or asking an employee to work off the clock.

• Not complying with modern awards/enterprise agreements: Modern awards are industry, or occupation, specific legal documents that outline minimum pay rates and employment conditions for specific sectors. Enterprise agreements are negotiated between employers and employees (or their unions) and provide tailored conditions for a particular workplace. Both instruments play a role in preventing wage underpayment by setting clear and enforceable standards.

Deliberately failing to pay penalty rates such as for evening, weekend, or public holiday work, or not paying for overtime or allowances as provided for in an award or an agreement, could constitute wage theft.

• Underpaying or not paying superannuation: The Superannuation Guarantee (Administration) Act 1992 (Cth) requires employers to pay a percentage of their employees’ earnings into a superannuation fund.

• Incorrectly classifying a worker: An employer might call a worker a ‘casual’ when their working pattern suggests they are a permanent employee or classify the employee in a lower pay bracket than the job requires.

Taking Action

If you suspect you’ve been a victim of wage theft, it is important to approach the situation in a calm, methodical way. Here are the steps you can take:

Step 1: Check Your Entitlements

First, you need to be sure that you have been underpaid. You can use the Fair Work Ombudsman’s Pay and Conditions Tool to check your correct pay rates, including any penalty rates or allowances that apply to your industry award. This will give you a clear picture of what you should have been paid.

Step 2: Gather Evidence

Once you know what you should be paid, you need to collect evidence to support any action you might take. Your best resources are:

• Your payslips: If your employer provides them, check them carefully. Do the hours and pay rates look correct?
• Your bank statements: These show exactly what you have been paid.
• Your own records: Keep a diary or use an app to record the hours you work, including any overtime, breaks, and the tasks you performed. This can be your timesheet if your employer has not kept accurate records.

Step 3: Talk to Your Employer

The thought of confronting your employer may seem daunting, but sometimes underpayments are just an honest mistake. Try to arrange a private meeting with your employer or a manager and present your findings calmly and factually. It’s a good idea to write down what was discussed and any agreement reached. If you’re a member of a union, you can ask a union representative to come with you.

Step 4: Contact the Fair Work Ombudsman

If talking to your employer doesn’t work, or you don’t feel comfortable doing so, you can make a formal complaint to the Fair Work Ombudsman (FWO). This is the government body responsible for investigating and prosecuting wage theft.

The FWO can:

• Investigate your complaint
• Contact your employer on your behalf
• Mediate a resolution between you and your employer
• In serious cases, take legal action against your employer to recover your unpaid wages and seek penalties

You can also make an anonymous tip-off to the FWO if you’re not ready to make a formal complaint but want to report a problem.

Step 5: Consider Legal Action

If all else fails, you may need to consider taking legal action to recover your unpaid wages. This is often done in a court, such as the Federal Circuit and Family Court of Australia.

The court process can be complicated, but there is a small claims procedure for amounts of $20,000 or less, which is designed to be more accessible for individuals without a lawyer. However, a lawyer can help you understand your options, represent you, and ensure you have the best chance of recovering what you are owed.

Conclusion

From 1 January 2025, deliberately underpaying an employee is a criminal offence across Australia. If you are a victim of wage theft, there are resources and legal pathways available to help you get the money you are owed.

If you or someone you know wants more information or needs help or advice, please call 07 3281 6644 or email mail@powerlegal.com.au.

Work Christmas parties provide a great opportunity to mix with fellow colleagues and bosses, reflect on the year’s activities and get to know each other on a more personal level.

With each social function however, employers and employees have certain rights and responsibilities. Understanding these and working together should ensure everybody’s welfare is protected and avoid some of the pitfalls that can arise from poorly managed events. Issues can range from the embarrassment of having ‘one too many’ to serious claims of sexual harassment, bullying and discrimination.

So, while preparing to let your hair down for the end of year celebrations, it’s a good idea to brush up on some essential work function responsibilities so that your next event is not too eventful. This information is general only and you should obtain professional advice relevant to your circumstances.

Laying down the law

Despite a work function being held off work premises and out of normal working hours, workplace laws still apply and an employer’s duty of care for its employees remains as if they were at work.

Accordingly, without resorting to becoming the ‘fun police’, it is appropriate for employers to remind their employees about acceptable behaviour, codes of conduct, workplace and social media policies, responsible alcohol consumption and the prohibition of illicit drugs. This reminder should be in writing, issued before the event, and may accompany the invitation.

Employer’s liability

Employers may be liable to compensate an employee if, through a negligent act or omission, they fail in their duty of care to prevent injury and the person suffers harm. This liability extends to work functions and events.

Employers may also be vicariously responsible for the behaviour of their employees both in the workplace and at work functions. Vicarious liability is a type of secondary liability whereby a superior (employer) is responsible for the actions of a subordinate (employee).

An employer can therefore be liable for harm suffered by a worker (such as discrimination, harassment including sexual harassment, and bullying) due to the inappropriate conduct of an employee. The effects of too much alcohol or simply forgetting that the work function is deemed a workplace can often fuel behaviour leading to these issues.

Employee behaviour and misconduct

Employees who behave inappropriately at a work function not only reflect poorly on themselves and their employer but may risk losing their job. Although there are laws to protect employees from unfair and harsh dismissal, certain misconduct and serious misconduct can be grounds for formal disciplinary action and even termination.

Social media

Employees should ensure they comply with their work social media policy – just because it’s a party does not mean that posting inappropriate images and/or comments will not breach policy. Whether or not a social media policy is in place, the best advice is, if in doubt, don’t post.

Top tips for a smooth event

The following checklists for employers and employees may help keep everybody safe and ensure that your next event is enjoyable and runs smoothly for all.

Employers

• Consider your employees’ religious and cultural beliefs, family and caring responsibilities, and travel requirements when planning, to foster an inclusive event.
• Remind employees before the function that workplace policies and codes of conduct will apply, a breach of which may result in disciplinary action.
• A mere reminder about workplace policies may be insufficient if employees do not have access to, nor training in, such policies.
• Set specific starting and finishing times, reminding employees that a decision to ‘party-on’ after the event will not be condoned by the employer.
• Ensure sufficient food, non-alcoholic beverages and water are available.
• Liaise with function centre management to ensure that responsible service of alcohol rules will be upheld and that a key employer will be notified of any employee or guest in danger of excessive alcohol consumption.
• Provide employees with access to safe transportation after the party and ensure that they start their journey home from the event safely.

Employees

• Be respectful of others, their opinions and beliefs and conduct yourself appropriately. Try to avoid topics that are likely to become heated and, if discussions get too controversial, walk away and get on with enjoying the party.
• Make sure you are familiar with company policies and codes of conduct.
• Drink sensibly and eat well to slow alcohol absorption.
• Look out for your colleagues and guests and ask for assistance if you believe somebody’s welfare might be compromised.
• Don’t get drawn into office gossip or behaviour that may be perceived as offensive, lude or explicit.
• Be mindful about social media – apart from checking on the children and calling a taxi to get home safely, why not just leave the mobile aside and get on with enjoying the night.

Conclusion

Well-planned end of year work celebrations can be rewarding and build morale within the workplace. By following some simple steps, employers and employees can help to ensure the party is inclusive and fun for everybody, while keeping professional and personal reputations intact and avoiding complications. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

In a move towards improving work-life balance, Australian workers now have a legislated right to disconnect from work. The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 adds new provisions to the Fair Work Act 2009 giving employees a “right to disconnect”, enabling them to “switch off” from certain out-of-hours work-related contact. This means that employees should not be penalised or reprimanded for not responding to work-related matters during their personal time unless their refusal to respond is unreasonable.

This new right addresses the increasingly blurred lines between work and personal life, particularly in the age of remote work and constant digital connectivity. It’s a step towards empowering employees to reclaim their personal time and prioritise their well-being.

Understanding the “right to disconnect”

The right to disconnect gives employees the right to switch off from certain out-of-hours work-related contact. Employees can now refuse to respond to after-hours texts, emails, and calls from their employers or associated parties unless it is unreasonable to do so.

The provisions cover national system employees and employers and commenced on 26 August 2024, unless the employer is a “small business employer”, in which case the provisions apply from 26 August 2025. All modern awards will be reviewed to include industry-specific rights to disconnect for employees.

What factors determine whether a refusal to respond is unreasonable?

The right to disconnect does not necessarily prohibit your employer from contacting you out of hours, however, it will inform the circumstances through which such contact should be made and when it will be deemed unreasonable for you to refuse to respond.

The following factors are not exhaustive, however, must be taken into account in determining whether your refusal to respond is unreasonable:

• The reason for the contact/attempted contact.
• The method of contact/attempted contact and level of disruption caused.
• The extent of compensation (monetary and non-monetary) provided for you to be available or working hours outside of your ordinary hours.
• Your role and level of responsibility.
• Your personal circumstances including family and carer responsibilities.

Where the contact or attempted contact is required by law, an employee’s refusal to respond will be deemed unreasonable.

If your employer contacts you outside of work hours, you can refuse to respond unless it is unreasonable to do so. If you are unsure whether it is unreasonable to respond, you should consider the factors listed above.

If your employer takes adverse action against you for exercising your right to disconnect, you may have a complaint under the Fair Work Act. You should contact your union or a lawyer for advice.

Navigating the right to disconnect: challenges and opportunities

While the right to disconnect is a positive step, its successful implementation will require careful navigation. Clear communication and collaboration between employers and employees are important to ensure its effectiveness.

Employers

Employers should establish clear policies and guidelines around after-hours communication, ensuring that employees understand their rights and responsibilities. Processes might include:

• Having discussions with employees to determine reasonable out-of-hours contact and reviewing internal processes.
• Reviewing employment contracts and position descriptions to ensure they include expectations on employees’ availability outside of working hours and whether such availability is reflected in remuneration.
• Implementing policies to deal with issues raised by employees who wish to exercise the right to disconnect.
• Having discussions with clients and other stakeholders to ensure boundaries and expectations regarding out-of-hours contact with employees are set.

For workplaces operating in a global environment with different time zones, special consideration will be required to navigate expectations for employees to participate in out-of-hours meetings, zoom conferences, telephone calls, etc.

Employees

In exercising a right to disconnect, you might consider:

• Setting boundaries and communicating your expectations around availability clearly to your employers and colleagues.
• Taking ownership of your personal time and resisting the urge to check work communications outside of work hours.
• Turning off your work phone and email notifications outside of work hours, if it is reasonable to do so.
• Taking breaks from work during the day to relax and recharge.
• Making time for yourself and your loved ones outside of work.

Conclusion

The right to disconnect is expected to have a significant positive impact on employee well-being and mental health. By allowing workers to truly switch off from work, it enables them to rest, recharge, and engage in personal activities that contribute to their overall well-being. Whether an employee’s refusal to respond to a work-related request is unreasonable will likely play out differently across different workplaces and for different roles.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

In the modern era of advanced technology, the issue of employee surveillance and privacy in the workplace has become increasingly relevant. Workplace surveillance can take various forms, including video surveillance, computer monitoring, telephone monitoring, email monitoring, and GPS tracking. There are certainly legitimate reasons for employers to monitor their employees using these means, such as ensuring productivity, preventing theft, or maintaining cybersecurity. However, in Australia, employee surveillance is subject to legal regulation, and employees have certain rights regarding privacy and monitoring in the workplace. This article will provide an overview of the legal framework concerning workplace surveillance.

Legal Framework

The legal framework governing workplace surveillance in Australia is a mixture of federal and state or territory legislation. Generally, state and territory law cover the installation and use of CCTV, and some states also have specific workplace surveillance legislation, while federal law provides broader privacy protections.

Under the federal Privacy Act 1988, and the related Australian Privacy Principles (APPs), employees across Australia have a right to personal privacy, even while performing their job duties. Under this legislation, employers should respect the privacy of their employees and ensure that any surveillance measures are reasonable, proportionate, and necessary for the legitimate business needs of the employer. Excessive or intrusive surveillance that goes beyond what is necessary may infringe on employees’ privacy rights.

It is important for employers to know that data that they collect through surveillance of employees is considered personal information. This includes the image of individuals collected through CCTV recording. Employers must take reasonable steps to protect this personal information from misuse, interference and loss, as well as unauthorised access, modification or disclosure. When an employer no longer needs to hold the personal information for the purpose for which it was collected, it must take reasonable steps to destroy the information or ensure that it is de-identified.

Employees who believe their privacy rights have been violated by surveillance undertaken by their employer have the right to lodge a complaint with the relevant authority, such as the Office of the Australian Information Commissioner (OAIC) or the Fair Work Commission.

Employee Consent to Surveillance

In most states it is necessary for employees to be notified about surveillance in their workplace. This can be achieved through clear policies, employment contracts, or workplace agreements. For some forms of surveillance, the employer must not only inform the employee, but also seek consent. When consent is required, it must be freely given, informed, and voluntary.

There are also specific areas of a workplace that cannot be monitored, including toilets, changing rooms and shower facilities. It is essential that any permitted surveillance does not accidentally record an area where an employee has a higher expectation of and right to privacy.

Covert Surveillance

Covert workplace surveillance is surveillance that takes place without the awareness of employees, and it is strictly prohibited in many jurisdictions across Australia. Even where covert surveillance is prohibited, however, there are exceptions for an employer who has sought authority through the courts. In New South Wales, for instance, a magistrate can issue an authority for the purposes of monitoring unlawful activity in a workplace.

Case Study

Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch was a case that considered the use of covert surveillance in the workplace. In New South Wales, the Workplace Surveillance Act 2005 requires that an employee be given at least 14 days’ notice prior to workplace surveillance commencing and, in the case of camera surveillance, there must be signs notifying employees that they may be under surveillance clearly visible in each entrance. In this case, however, surveillance cameras were installed at a gym with no prior notification and no signage.

An employee at the gym was observed acting in a way that his employee considered a reasonable basis for termination. The dismissed employee applied to the Fair Work Commission on the basis that his dismissal was predicated on information gathered through unlawful surveillance.

When the case was first heard, the CCTV footage was excluded because it was recorded in breach of the requirement that employees be given proper notice. On appeal, the Full Bench of the Fair Work Commission held that, even if the employer’s CCTV footage had been illegally or improperly obtained, the Commissioner had erred in automatically excluding such evidence. The Full Bench stated that the proper approach to be applied in considering whether or not illegally or improperly obtained surveillance should be admitted as evidence requires the consideration of the factors in the Evidence Act 1995 (NSW), including the probative value of the surveillance and its importance to the case.

This case illustrates that, although employers in NSW are required to give notice of surveillance, employees should be aware that their conduct can still endanger their employment if it is captured by undeclared covert surveillance.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Employers are responsible for creating safe working conditions for their employees. Most employers are familiar with the need to ensure that their working conditions do not expose their workers to unreasonable physical risk, but employers may be less familiar with the need to reduce psychosocial hazards.

Proactive Duty for Employers to Manage Psychosocial Hazards

From April 2023, employers in Queensland have a positive duty to do what is reasonable to prevent or reduce risk of psychological injury to their workers. This means that it is not enough for an employer to do nothing wrong: rather, an employer in Queensland must take active steps to help to reduce psychosocial risks and hazards. This is an increased duty of care compared to what has existed in the past.

An employer must eliminate psychosocial risks where this is reasonably practicable. If it is not reasonably practicable to eliminate such a risk, an employer must take steps to minimise any psychosocial risk as far as reasonably practicable.

Most employers in Queensland will need to take some steps in addition to their current arrangements to meet this new obligation. The officers of a company must exercise due diligence to ensure that these obligations are discharged. These duties cannot simply be transferred or delegated to another person.

The Code of Practice

The Queensland Government has issued a code of practice to help employers to understand their duty of care in relation to psychosocial hazards. In most cases, following this code will ensure that they are compliant with the safety duties in the WHS Act in relation to psychosocial hazards. Employers should become familiar with the code of practice and seek expert guidance on applying the guidelines in practice.

The code of practice provides guidance to employers on how to identify, assess, and control psychosocial hazards in the workplace. The code can also help workers to identify potential risks in their workplace and provide them with the knowledge and tools to raise concerns with their employer.

What are Psychosocial Hazards?

A psychosocial hazard is any situation in a workplace which may cause psychological harm to a worker. Issues such as workplace stress, bullying and harassment, for example, can affect an employee’s mental health and wellbeing. In extreme circumstances, exposure to psychosocial hazards may lead to suicide.

Psychosocial hazards can be caused by the nature of the work itself. They can also be created by how the work is managed, the environment, or interactions and behaviours with others. Common psychosocial hazards include:

• high or low job demands
• low job control
• poor support
• low role clarity
• poor change management
• low reward and recognition
• poor organisational justice
• poor workplace relationships
• remote or isolated work
• poor environmental conditions
• traumatic events
• violence and aggression
• bullying and harassment

It is important to note that an employer’s duty includes protecting workers from acts by third parties. For instance, an employer must take steps to protect workers in a hospital from hazards created by patients, and workers in a school from hazards created by students.

Reasonably Practicable

An employer must do what is “reasonably practicable” to ensure the health and safety of their employees. It is important to know that what is reasonably practicable is measured objectively (that is, by what a reasonable person would do).

In determining what is reasonably practicable, consideration can be given to:

• the likelihood of the hazard arising
• what the employer knew, or ought to have known, about the hazard
• the degree of harm that might result from the hazard
• the availability of ways to eliminate or minimise the hazard
• the cost of steps that would eliminate or minimise the hazard

An employer should consider all of these matters when determining what they can do to provide the highest level of protection for their workers in all of the circumstances. A business cannot expose workers to a lower level of protection simply because it has fewer financial resources compared to another business facing the same hazard.

Consulting with Workers

As far as practical, employers must consult with workers directly affected about ways to reduce psychosocial hazards in the workplace. Consultation is aimed at improving decision-making processes regarding health and safety, and reducing work-related injuries and illness. For instance, workers may have practical suggestions or potential solutions to address hazards they encounter in their daily work.

In relation to the requirement for consultation, the term “workers” includes anyone carrying out work in any capacity for the business or undertaking, including contractors and their employees, labour hire workers, outworkers, apprentices, trainees, work experience students and volunteers.

Duty of Workers

Not all of the liability for reducing psychosocial hazards rests with employers. Workers must take reasonable care for their own psychological health while in the workplace. In addition, workers must take reasonable care that they do not adversely affect the health and safety of other persons in the workplace. Amongst other things, this involves complying, as far as they reasonably can, with reasonable instructions given by their employers or supervisors and health and safety policies or procedures.

Taking care of their own health can involve a worker refusing to undertake certain tasks. If a worker has a reasonable concern that carrying out the work would expose them to a serious risk to their health or safety, they can cease performing the work or refuse to perform the work in the first place. In that situation, they must notify their employer and carry out suitable alternative work until it is safe for them to resume normal duties.

Conclusion

The code of practice aims to help employers and workers understand what psychosocial hazards are, the risks associated with these hazards, and to provide practical steps to eliminate or minimise these risks.

This information is for general purposes only and you should obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

In 2022, the Australian Government passed legislation to amend the Fair Work Act. Under this amendment, changes were made to some existing rules and a number of new workplace laws were introduced. Some of these changes are already in force, while others will be introduced progressively throughout 2023. A calendar of these amendments can be found here.

Notable changes are outlined below.

Prohibition of Pay Secrecy

Employees now have a protected right to share – or not share – information about their pay and the terms and conditions of their work with their colleagues. While an employee cannot be forced to give this information to another employee, they have the right to discuss their pay if they want to, and to ask other employees about their pay and work conditions.

This right does not apply to employees with an existing contract that includes a pay secrecy clause. However, new employment contracts (including renewals or amendments of existing agreements) cannot include pay secrecy clauses. If such a clause is included, it will have no effect.

Prohibition on Job Ads Including Unlawful Pay Rates

Job advertisements must not include pay rates that breach the Fair Work Act or a fair work instrument (such as an enterprise agreement). Members of the public can make an anonymous complaint to Fair Work if an advertisement includes a pay rate that is less than the minimum for the position.

In addition, advertisements for pieceworker positions where an employee is entitled to a periodic rate of pay must specify the pay rate that applies or state that a periodic pay rate will apply.

Increased Rights to Access Flexible Working Arrangements

From 6 June 2023, workers will have the right to request flexible working arrangements if they are pregnant, or if they (or a member of their family or household) experience family violence. Employers can only refuse such a request in certain circumstances. First, an employer must discuss the request with the employee and make a genuine effort to accommodate it. The employer must also consider the consequences of refusal for the employee.

If the request is refused, a written response must be provided that explains the grounds for the refusal, any other changes the employer will make to accommodate the employee’s circumstances, and information about referring the dispute to the Fair Work Commission. If an employer and employee agree to make changes that differ from the terms originally requested by the employee, the employer needs to confirm these agreed changes in writing within 21 days of the request.

The Commission can hear and make orders about disputes over flexible working arrangements requests if the parties can’t resolve the dispute at the workplace level. For example, if an employer refuses an employee’s request, or does not respond to a request within 21 days, the employee can apply to the Commission for redress.

New Gender Equality Measures

Following the amendments, job security and gender equality are now included in the objectives of the Fair Work Act. In addition, job security and gender equality have been made part of the objectives of modern awards and are two of the principles to be considered when setting minimum wages. This means that when interpreting the legislation, or setting awards or minimum wages, the Commission must strive to promote job security and gender equality. The Commission will also take steps to promote equal remuneration.

The amendments to the Fair Work Act also introduce breastfeeding, gender identity and intersex status as protected attributes. This means employers are prohibited from taking adverse action against current or future employees because of these attributes.

Prohibition of Long Fixed-Term Contracts

From 6 December 2023, changes will come into effect to prevent workers being engaged on long contracts, or successive contracts, rather than as a permanent employee. From this date, employers will have to give employees engaged on new fixed term contracts a “Fixed Term Contract Information Statement” (which will be available on the Fair Work website).

Under these changes, employers can no longer employ someone on a fixed-term contract that is more than two years in duration (including extensions) or issue successive contracts to the same worker performing the same role. In addition, the amendments prohibit contracts that can be extended more than once. In effect, this means that employees can only be engaged on contracts for less than two years.

Employers are prohibited from taking actions to avoid the new restrictions, such as delaying re-engagement of the same employee or engaging someone else on a contract to perform the same role as someone previously on a contract.

Some exceptions apply, such as if the fixed term contract is for a training arrangement, or the employee is covered by an award that allows fixed term contracts.

Enterprise Agreements and Enterprise Bargaining

A number of changes have been made to how industrial instruments and enterprise bargains must be commenced and terminated, and what happens if there are errors in these documents.

Notably, all agreements made before the commencement of the Fair Work Act that are still in operation will automatically terminate on 7 December 2023, although parties to an agreement can apply to extend the agreement for up to 4 years at a time.

Abolition of ABCC and ROC

The Australian Building and Construction Commission (ABCC), the former workplace regulator of the commercial building and construction industry, has been abolished. Its function has been taken up by the Fair Work Commission. The Commission will also now conduct the work of the abolished Registered Organisations Commission (ROC), the former regulator of unions and employer groups.

Conclusion

The Secure Jobs Better Pay reforms are likely to have far-reaching effect. It is important for employers to understand their obligations under these laws and to implement systems, as necessary, to deal with them.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Have you been working from home during the pandemic and are wondering if you are still able to do so, as people return to the pre pandemic world and go back to the office. The answer will really depend upon your particular workplace and circumstances.

This article provides a general guidance for workers as to when it is practical and reasonable to work from home.

Staying safe at work and home

Workplaces can generally allow their employees to work from home at their discretion. Obviously, a workplace must take into account whether there are any health orders mandating that certain employees work from home.

Work health and safety laws require employers to take all reasonable and practicable steps to ensure the health and safety of their workers from the risk of contracting COVID-19 in the workplace.

Employees also have health and safety obligations to minimise any risks when working from home. This may include:

• following work procedures about how your work is performed
• keeping your work equipment in good working order and using the equipment provided by your workplace per employer instructions
• maintaining a safe work environment, such as having a designated work area
• adjusting your furniture to ensure comfortable access, providing adequate lighting and ventilation in the area you are working from and repairing any uneven surfaces or removing any hazards
• continuing to ensure your own in-house safety, such as keeping up maintenance of electrical equipment and smoke alarms
• notifying your employer of any risks or potential hazards present in your workplace
• immediately reporting any changes that may affect your health and safety when working from home

When is working from home practical and reasonable?

This will largely depend on your particular workplace and the facilities available to work remotely and safely from home. When deciding whether working from home is appropriate for your particular situation, your employer should consider:

• your individual role and whether working from home is suitable for your work activities
• workflows, expectations and your workstation set up
• the surrounding environment in which you will be working from, such as ventilation, lighting and noise, and your home environment, such as partners, children, vulnerable people and pets
• any communication requirements such as frequency and type
• your mental health and emotional wellbeing
• the type of safe working procedures and training required

Any existing workplace policies will continue to apply when working from home. Employers must also continue to consult with their employees and any elected health and safety representatives on working from home arrangements.

What happens if I test positive for COVID-19 while working from home?

If you test positive for COVID-19 you must follow the health advice provided by your local public health authority and notify your employer as soon as possible.

Your employer should have discussed your leave arrangements with you prior to you working from home. If you are unsure of your leave arrangements, you should contact your employer and confirm same. It is also possible that you may continue to work from home if you have no symptoms, or only minor symptoms.

When can I be required to return to my workplace?

This is dependent on a range of factors, including:

• any public health requirements
• the individual circumstances of an employee working from home

All employers must ensure return to work arrangements adhere to relevant Australian and local government advice, legislation and that they also undertake a risk assessment and consult with employees before requiring them to return to the workplace.

Conclusion

Whether you are entitled to continue to work from home now that people are returning to the to the office will mostly depend on your type of work and workplace circumstances.

You will also need to continue to have health and safety obligations in place to help minimise any risks when working from home.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

All workers have the right to carry out their employment without being harassed or discriminated against. If you find yourself in this position, you may feel alone and powerless. However, it is important to remember that you have legal protections and rights when it comes to harassment and discrimination.

The discussion below provides guidance for workers on what steps to take if they find themselves being discriminated against or harassed in their workplace.

What is “harassment”?  

Under federal legislation, it is unlawful to treat a worker less favourably on the basis of their particular protected attributes such as, a worker’s sex, race, disability or age.

Below are some examples of behaviour that may amount to harassment;

• telling insulting jokes about specific racial groups
• sending sexually explicit or suggestive emails or texts
• displaying racially offensive or pornographic material
• making derogatory comments or jokes about a worker’s disability
• asking intrusive questions about a worker’s personal life, including their sex life

Some examples of bullying include:

• physically or verbally abusing another worker

• yelling, screaming or using offensive language towards another worker
• purposefully excluding or isolating a worker
• psychological harassment or intimidation of another worker

What is “discrimination in the workplace?”

Discrimination occurs where an employer takes adverse action against a worker or prospective worker because of a “protected attribute.” Protected attributes include:

• race, colour, religion, social origin or national extraction
• sex or sexual orientation
• age
• physical or mental disability
• marital status
• family or carer’s responsibilities
• pregnancy
• political opinion

“Adverse action” is defined as either doing, threatening or organising any of the following:

• firing a worker
• contributing to a worker’s injury as a result of not allowing them legal entitlements such as pay or leave
• making changes to a worker’s job to their disadvantage
• treating a worker differently to their colleagues
• not hiring a potential worker

An example of a recent discrimination case occurred where a labour hire company was found to have discriminated against a worker when they refused to hire the qualified 70 year old due to his age.

What can I do if I’m being harassed or discriminated against?

There are a few options available to you. Initially, you can approach your workplace health and safety or human resources officer or union representative. These people should be able to provide you with helpful advice. You can also report harassment or discrimination to your supervisor or manager.

You can also refer to your workplace policies and procedures which should provide a guide on how your workplace deals with discrimination and harassment, and what prevention strategies are in place.

If your type of employment comes under the jurisdiction of Fair Work Australia, you may also apply to the Fair Work Commission (FWC) for an injunction to stop the harassment or discriminatory behavior. The FWC can also make an order for compensation or reinstatement.

Negotiating with an employer can become overwhelming as there may be a power imbalance. We recommend seeking legal advice from an experienced employment lawyer to ensure you receive the best outcome possible.

Seek legal advice

If you feel that you have been harassed or discriminated against, an experienced lawyer can provide legal advice and options of realistic solutions for your particular situation.

A lawyer can also advocate to protect your current and future earnings and professional reputation by helping you claim compensation for lost income, distress and pain and suffering.

Who else can help me?

The Australian Human Rights Commission (AHRC) has the power to deal with complaints of workplace harassment or discrimination if the harassment or bullying has breached federal legislation. The AHRC resolves complaints through a conciliation process.

Conclusion

Workers who are dealing with harassment and discrimination in their workplace can often feel isolated and overwhelmed. However, it is important to understand the law provides workers with the right to carry out their work, free from discrimination and harassment.

This area of law can become complex and overwhelming, so we recommend you seek advice from an experienced lawyer.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Fixed-term employment contracts are common in many workplaces. Understandably, most employers consider they would be protected from an unfair dismissal claim once the term ends. However, in Saeid Khayam v Navitas English Pty Ltd t/a Navitas English (‘Navitas’) [2017] FWCFB 5162 the Full Bench of the Fair Work Commission found that an employee may have rights to pursue unfair dismissal proceedings even though the employment ends at the expiration of a fixed-term contract.

The case emphasises the need for businesses to remain vigilant in their employment practices and stay abreast of current workplace laws and their interpretation.

The case

Mr Khayam was employed by Navitas to perform teaching duties on a casual basis between 2005 and 2012. He was subsequently offered two consecutive fixed-term contracts, the last for the period 1 July 2014 to 30 June 2016 (the expiry date). This contract was entered despite Navita’s initial reluctance to offer a further term due to concerns over Mr Khayam’s unsatisfactory performance of administrative work.

The contract provided for the automatic termination on the expiry date. The enterprise agreement applicable to Navitas at the time both authorised the fixed-term engagement of employees and provided ‘absolute discretion’ as to whether or not Navitas would offer or renew such contracts.

Navitas informed Mr Khayam a few weeks before the last contract was to expire that further employment would not be offered based on his ‘performance and disciplinary record’. Mr Khayam’s employment ended on 30 June 2016 and he made an unfair dismissal claim with the Fair Work Commission.

Navitas argued that it had not dismissed Mr Khayam, rather his contract had simply ended upon expiry. The Commission initially agreed with Navitis and Mr Khayam appealed.

Termination at the ‘initiative of the employer’

Establishing that he was dismissed was key to Mr Khayam’s appeal. The Fair Work Act 2009 (Cth), at s 386 provides:

• ‘A person has been dismissedif:
  

• the person’s employment with his or her employer has been terminated on the employer’s initiative…
  

• However, a person has not been dismissedif:
  

• the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period…’

Upon reading s 386, it may have been plausible that Mr Khayam had not been dismissed however the Full Bench considered that such a decision was ‘artificially constrained and did not take into account all the relevant circumstances’. Consequently, the appeal was upheld.

The Full Bench declined to determine whether Mr Khayam had in fact been dismissed and the matter was referred back to the Commissioner, who had already heard the evidence and would now be equipped with the Full Bench’s reasoning to re-determine the case.

So, what does this mean?

Employers now face uncertainty as to the effectiveness of a fixed-term contract that is not renewed on expiration, for avoiding an unfair dismissal claim.

Rather than relying solely on the employment contract, emphasis must now be placed on the employment relationship in its entirety (in this case comprising a series of contracts over an ongoing and significant period). The Full Bench stated:

‘The analysis of whether there has been a termination at the initiative of the employer…is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment….

This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment…’

If the termination is initiated by the employer and not agreed by the employee:

‘… the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.’

Whilst not exhaustive, the Full Bench indicated the following factors that may be relevant and / or determinative in such cases.

• The contract itself and whether it may be invalidated or impaired due to:
• misrepresentation, misleading or unconscionable conduct, duress or coercion on the part of the employer;
• serious mistake as to the contents or subject matter, or lack of legal capacity on the part of the employee;
• terms that do not reflect the reality or totality of the terms of employment;
• terms that are inconsistent with an award or enterprise agreement;
• a sham arrangement.
• Where the actual contract is for a fixed term but the employer, during the period of employment, makes representations to the employee or engages in conduct that misleads the employee into thinking the employment would continue in certain circumstances, such as satisfactory performance.

Key takeaways

• Employers may not be protected from an unfair dismissal claim once a fixed-term contract ends.
• Employment contracts should be reviewed to ensure they are enforceable and do not contain voidable terms.
• Processes should be implemented to manage casual and fixed-term employees to limit exposure to an unfair dismissal claim, particularly when determining whether to renew fixed-term contracts.
• Managers and supervisors should ensure that their conduct does not mislead or misrepresent to the employee the true nature of the employment arrangement.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Sexual harassment is unfortunately still a common occurrence in the workplace. The Sex Discrimination Act 1984 (Cth) (Act) describes sexual harassment as any unwelcome conduct of a sexual nature, it also makes sexual harassment in the workplace unlawful.

There are many examples of behaviours that amount to sexual harassment. If you are an employer, you have a duty to prevent, to the best of your ability, sexual harassment occurring in your workplace. There are various things you can do to ensure you meet your responsibilities as an employer and minimise the risk of paying out compensation for sexual harassment claims.

What is ‘sexual harassment’ in the workplace?

The Australian Human Rights Commission (AHRC) has found that 72% of Australians have experienced sexual harassment in their workplace.

As mentioned above, sexual harassment involves any unwelcome or unwanted sexual conduct to an employee while they are working.

Examples of sexual harassment can include;

• inappropriate touching or text messages;
• sexually suggestive taunts or remarks;
• unwanted sexual requests;
• inappropriate questions about a person’s body.

Sexual harassment in the workplace isn’t strictly limited to a place of work, it also includes sexual harassment that occurs at work-related activities or can come from colleagues, managers or customers and clients. Acts of indecent exposure, stalking, sexual assault, obscene or threatening communications may amount to a crime and should be reported to Police.

What can I do to prevent sexual assault occurring in my workplace?

Under Workplace, Health and Safety laws (WHS) an employer must do all they reasonably can to prevent and manage the risk of sexual harassment occurring in the workplace.

The AHRC provides various guides to help employers understand and meet their legal obligations under the Sex Discrimination Act. You can find this helpful information here.

You should also have an accessible and simple complaint process available for employees to report sexual harassment informally, formally, anonymously and confidentially, including a list of information on support services available. You also cannot discriminate against or disadvantage an employee in any way for reporting sexual harassment. Having an effective complaint process can also help to identify ways to improve your workplace procedures and policies. It can also help avoid complaints to external organisations and from employees taking legal action against you.

If you want to ensure you are compliant with the procedures discussed above, we recommend you speak with one of our experienced lawyers.

Can my employee claim compensation for sexual harassment?

Yes! Employers can be ordered to pay compensation to employees who have been sexually harassed in the workplace for anxiety, depression, and other psychological effects caused by sexual harassment. Employers can also be made to pay compensation for economic loss if an employee chooses to leave their employment because of the harassment.

An employee is entitled to lodge a claim for compensation with the AHRC, within 12 months of when the harassment occurred.

The AHRC will then investigate and conciliate the employee’s complaint and determine whether the sexual harassment was unlawful. The AHRC can also arrange for the parties to attend mediation to see if a settlement can be reached.

If no agreement is reached through the AHRC, the employee has 60 days to apply for monetary compensation in the Federal Court.

The Federal Court can award damages for unlawful discrimination which includes sexual harassment. For example, in a couple of recent cases, an employee who was sexually harassed received $100,000 in compensation for the value of loss of enjoyment of life and the mental illness and distress resulting from sexual harassment and $30,000 in compensation for loss of income. In another case, an employee was awarded $120,000 in compensation for loss of income and psychological distress. A further $50,000 in compensation was awarded for aggravated damages because the employer failed to stop or prevent sexual harassment from occurring.

The above examples demonstrate the importance of having effective procedures in place that can prevent and manage sexual harassment in your workplace. If you want to minimise your risk of paying out compensation for a sexual harassment claim, we strongly recommend you speak to our experienced employment lawyers.

Conclusion

Employers have a duty to ensure they take reasonable steps to minimise the risk of sexual harassment occurring in the workplace and to have effective procedures in place to manage any sexual harassment complaints made by their employees.

Putting together effective procedures to minimise sexual harassment and handling sexual harassment claims can be a daunting and overwhelming task. This is why we recommend employers seek advice from an experienced lawyer.

This information is for general purposes only and you should obtain professional advice relevant to your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.