budgeting for wage cuts

COVID-19: Business cost-cutting and Employee rights

By | Employment Law

With Australia’s economy plunging into its first recession in almost 30 years, it’s no surprise many employers are looking for ways to cut costs.

But what happens when this cost-cutting clashes with your workplace rights?

Linked below is a helpful article by the ABC News which answers this very question.  

Can your boss cut your pay or conditions without asking you? How does coronavirus affect workplace rights? by Business Reporter Michael Janda posted Tuesday 1 September 2020.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer before you rely on this information.

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Strike Out Dismissed – Former HR Manager accuses company & CEO of underpaying staff

By | Employment Law

Susan Moriarty & Associates acts for Ms Liesa Oldfield, former Human Resources Manager of One Stop Warehouse Limited (‘OSW’) – Australia’s largest solar panel distributor. The solar giant, founded by chief executive, Anson Zhang, and co-founder Jeffrey Yu, is a national company with offices in all state capitals. In 2019, OSW was one of Australia’s fastest-growing private companies. Relevantly, in September of 2019, The Australian Financial Review reported that “Zhang’s One Stop Warehouse Group grew revenue 108 per cent to $391 million in 2018-19, the most of any company on the Top 500 Private Companies List”. 37-year-old Chinese-born Queenslander, Mr Zhang, was on the 2019 Financial Review Young Rich List and won a 2019 Australian Young Entrepreneur Manufacturing, Wholesale & Distribution Award, together with Yu.

In October 2019, Ms Oldfield filed a general protections application against OSW, Zhang and Wu alleging unlawful adverse action during her employment from 3 April 2017 to 2 November 2018. Ms Oldfield claims that in contravention of s.340 of the Fair Work Act 2009 (‘FW Act’) adverse action was taken against her because she had, or had exercised workplace rights as defined by s.341 of the FW Act. She also claims that adverse action was taken against her because of her race, national extraction or social origin and an imputed disability contrary to s.351 of the FW Act. The adverse action she pleads as having been taken against her is:

(a) injuring her in her employment or altering her position to her prejudice by:

(i) removing the payroll process from her position;
(ii) countermanding a verbal warning issued by her to an employee;
(iii) employing a HR assistant;
(iv) removing Warehouse recruitment from her roll;
(v) removing her WHS role;
(vi) advising her she did not fit the “culture” of the business;
(vii) suggesting she was “unstable”;
(viii) advising her a number of complaints had been made against her;
(ix) removing her from sales team recruitment duties;
(x) progressively removing her core duties and responsibilities;

(b) discriminating between her and other employees by:

(i) removing payroll process responsibility;
(ii) removing Warehouse staff recruitment from her role;
(iii) injuring her by causing her humiliation anxiety and distress; and

(c) injuring her in her employment by exposing her to liability as an involved person pursuant to s.550 of the Act to civil penalties for contraventions of the Act as a result of failure to rectify contraventions brought to the respondents’ attention by her in her roles as HR Officer and HR Manager.

On 8 July 2020, Judge Jarrett of the Federal Circuit Court in Brisbane delivered an interlocutory judgment, (Oldfield v One Stop Warehouse Pty Ltd & Ors [2020] FCCA 1865) dismissing the Respondents application to strike out Ms Oldfield’s claim on jurisdictional grounds stating that Ms Oldfield “claims to have been put in the invidious position that she was responsible for human resources at a company which did not comply with its legal obligations towards its workforce. She alleges that she made various complaints and sought, to no avail, an indemnity from her employer in the event of an investigation by the Fair Work Ombudsman of the business.

The Respondents sought to strike out Ms Oldfield’s substantive application and claim on an interesting point regarding the jurisdictional parameters for a person filing a General Protections Claim involving Dismissal (pursuant to section 365 of the FW Act) and the Courts ability to deal with such dispute (pursuant to section 370 of the FW Act) and a person filing a General Protections Claim Not Involving Dismissal (pursuant to section 372 of the FW Act). Importantly, as Judge Jarrett, detailed at [11]:

…if a person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by her employer, then that employee has been dismissed for the purposes of the Fair Work Act. If they allege that they were dismissed in contravention of Part 3–1 of the Act, they cannot bring a general protections court application in relation to the dispute unless they meet the conditions set out in s.370(a) or (b) of the Act.

Whilst Ms Oldfield resigned from her employment to avoid exposure to liability for any Fair Work Ombudsman investigation regarding One Stop Warehouse underpaying its employees, she does not claim that her resignation was a constructive dismissal or that it was adverse action taken against her by the first respondent.

After a consideration of the issues and the legislation, Judge Jarrett ultimately dismissed the Respondents’ application for summary dismissal of Ms Oldfield’s claim finding that:

19. The applicant does not allege she was dismissed in contravention of Part 3-1 of the Act. Whilst the circumstances of her resignation might mean that she was dismissed according to the definition in s.385 of the Act as the respondents argue, her case is not that she was dismissed in breach of a general protection.

20. Because she does not argue that she was dismissed in contravention of Part 3-1 of the Act she is not a person caught by s.370 of the Act. She is not a person who was entitled to apply under s.365 for the Commission to deal with her dispute. That is because she does not allege, and seemingly has never alleged, that she was dismissed in contravention of Part 3–1 of the Act. Whilst she does claim that the first respondent took adverse action against her, the adverse action that she alleges the first respondent took for one or more proscribed reasons does not include her  dismissal, actual or constructive. Nothing in the previous proceedings taken by her in the Fair Work Commission indicates to the contrary. In those proceedings, she may have claimed that she was forced to resign but I do not understand that her case was that she was forced to resign because of the adverse action that was taken against her. In any event, that is not her case in these proceedings.

21. The applicant’s application is not liable to be summarily dismissed on the basis that her claims for relief are frivolous, vexatious or an abuse of the process of the Court. I cannot be satisfied that her claim generally has no reasonable prospects of success. She pleads material facts that, if accepted, may lead to the grant of the relief or part of it, that she claims. The basis of the respondents’ claims to have the proceedings dismissed is not made out. The applicant’s claim is not a dismissal dispute for the purposes of the Fair Work Act and she is not precluded from bringing these proceedings by s.370 of that Act.

With regards to the Respondents’ alternative claim of relief to strike out parts of Ms Oldfield’s claim that if the applicant was not dismissed because her resignation was voluntary, then the Respondents cannot be liable to compensate the applicant for the consequences of her own decision, Judge Jarrett ultimately refused the relief sought and found that:

30. Whilst the applicant does not accept that she has no reasonable prospects of success on this aspect of her claim, she does concede that at trial it may be more difficult to persuade the Court that it is appropriate to make an order for compensation in respect of her claimed economic loss.

31. She argues that her economic loss is a loss which may be characterised as “a not unlikely consequence of the taking of the adverse actions against the applicant”. Thus, she argues, the loss incurred after the applicant’s decision to resign her employment may therefore be argued to be loss which has a sufficient causal connection with the contraventions of the Act to be compensable. She argues that the Court may be persuaded to exercise the discretionary power to order that the respondents pay compensation in respect of part or all of that loss and that is properly a matter to be considered in the light of all the evidence at trial.

32. I accept that argument. The question of causation – that is to say what compensation is due to the applicant because of the adverse action taken against her – may be answered by an examination of the reasonableness of the applicant’s decision to resign her employment. It is not difficult to envisage that confronted with the situation as described by the applicant in her pleading, it would be a reasonable thing for her to resign her employment so as to limit her exposure to any accessorial liability. Her resignation might be seen as a reasonable and foreseeable consequence of the adverse action taken against her.

33. I cannot accept the respondents’ argument that merely because the applicant chose to resign her employment, she has no reasonable prospect of successfully pursuing a claim for economic loss. Given that the basis upon which the respondents seek to have this aspect of the applicant’s claim “struck out” is that she has no reasonable prospect of  successfully pursuing this aspect of her claim, their application for relief must be refused.

On 16 July 2020, the Respondents’ filed an application to appeal Judge Jarrett’s decision to the Federal Court of Australia. On 17 July 2020, the parties attended mediation before a Registrar of the Federal Court of Australia, but the matter failed to resolve. The matter is back on for directions before Judge Jarrett on 21 August 2020.

Benedict Coyne, Special Counsel at SMA who has carriage of Ms Oldfield’s matter stated:

We are delighted that the Court has so clearly said that our client has a right to be heard on her claims but incredibly disappointed that One Stop Warehouse has now filed an appeal against this Decision. 

Now that mediation has failed, this will add further delay to our client telling the Court of the incidents she has documented in her pleadings and affidavit. 

Nevertheless, she is committed to telling the truth to the Court so that her colleagues, who may not be able to do so, receive their rightful wage and benefit entitlements as soon as possible.”

This article is legal information and should not be seen as legal advice. Please consult with a lawyer before you rely on this information.

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COVID-19: Workplace Safety

By | Employment Law

As Queensland’s COVID-19 curve reduces and restrictions ease, plans for returning to work are a hot topic among many businesses.

But before rushing back to business as usual, the Government is urging workplaces to implement a plan outlining how they will keep returning workers safe in accordance with their key workplace health and safety (‘WHS’) duties.

Importantly, employers owe their employees a duty to provide and maintain a working environment that is safe and without risk.

Under this duty falls the responsibility to protect employees from exposure to COVID-19.

Numerous health and safety recommendations have been released regarding what action employers should be taking to prevent exposing their employees to COVID-19 and other related risks upon returning to work.

For more consumable reading, we have condensed some of the important suggestions into one easy-to-read factsheet.

With workplaces adapting to reflect community changes such as caring responsibilities and commuting needs, employers are tasked with creating an environment which is enjoyable and safe for their workers. 

Certainly, not all employees will feel the same about returning to work, because no two workers or workplaces are the same. You will need to understand what is right for each individual to format a return to work plan.

Importantly, Australian HR Institute suggests that support & communication is paramount – urging employers to prioritise their workers’ emotional safety.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer before you rely on this information.

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Healthcare professionals, have you been “regulated”?

By | Employment Law | No Comments

Our guest contributor, Dr Anchita Karmaker, brings a wealth of skill and knowledge bridging the great divide between legal and medical professions. Having worked for 11 years as a medical practitoner in Australia, she is currently completing her legal qualifications, with the hope to specialise in regulatory and administrative/constitutional legal issues at Susan Moriarty & Associates. 

5 reasons not to fear the regulators

Once you finish all those years of grueling study with sleepless nights, finally you get to call yourself a healthcare professional. Whether you are a Doctor, a Dentist, a Physiotherapist, or a Nurse, there is no doubt that you have sacrificed some portion of your life and brain cells to hold the privilege of becoming a gatekeeper of life and death. Going through university, you are never really taught about how the so-called registration process occurs and what happens to you once you graduate. Do you just automatically become part of this secret noble club where maybe you hold a membership ID card that you can flash, declaring your stature? What you get in your dreams and what you get in reality is painfully different, and as always, ignorance and the unknown is what breeds fear, and poor decision making. In this short editorial piece, I would like to share with you all some thoughts and facts about what it means to be regulated as a healthcare professional in Australia and where there may be some gaps that need some serious reconstruction and reform.

There are currently (approx) 700,000 healthcare professionals registered in Australia holding various titles. They are all ‘registered’ under AHPRA, short for the Australian Health Practitioner Regulation Agency. This organization is not a government organization. It is not a delegated, statutory power of the Health Minister as such. It is not a company. It is not a teaching or accreditation body and or a college. It is simply an agency that, as one of its functions, helps the various Health Practitioner Boards investigate potential risk to the public. In other words, 700,000 healthcare professionals pay a fee to this agency to make sure complaints by the public are looked into, in order to keep patients safe.

The Registration process also allows practitioners to hold a prescriber number and a provider number.  Without registration as a medical practitioner (or in some other health profession that would permit it) a person is not permitted to prescribe medications or claim from Medicare for medical services.

It is all about accountability and protection for the public against “bad” practitioners.

When did all this happen and who oversees what AHPRA does?

In 2008, the Council of Australian Government (COAG) decided to establish a single National Registration and Accreditation Scheme (National Scheme) for registered health practitioners. The COAG Health Council has ultimate oversight of the National Scheme. AHPRA is simply an agency that supports the National Boards (i.e. Medical Board of Australia, Dental Board of Australia, Pharmacy Board of Australia) to implement the National Scheme.

Why so serious?

That all makes sense, right? So why do so many practitioners fear and stress over the dreaded AHPRA complaint? Being accountable when holding such a title as a “Doctor” or a “Nurse” surely comes with a multitude of responsibilities and therefore, as healthcare professionals we are bred to be accountable and transparent with our work. Then why the fear? Investigation of complaints should be welcomed!

The truth is far from this. Regardless of the nature of the mistake, omission, or even criminal conduct, in a democratic society, one would think that the interrogation process is prevalent and necessary on the proviso that is it conducted fairly following the principle of due process/natural justice. However, case after case have come to light illustrating that this is not so for many who are subjected to this onerous process. It is often characterized as a never-ending investigation, onerous, with potential for long-standing conditions on your registration or slow, painful further tribunal/legal proceedings.

A classic example of a potential breach in natural justice is the fact that when a medical practitioner is referred to AHPRA, they have a panel of medical practitioners who are employed and paid by the agency to review and provide advice to other AHPRA staff who, in turn, make recommendations to the relevant board. The practitioner under scrutiny may never know that this has occurred, who the medical practitioner who reviewed their case was, what the person’s qualifications were, or whether there’s some reason why that person may not have brought a fair and impartial mind to the case. The Board may not even know this. This is one example of a flawed system that needs urgent attention from the finest minds of both the healthcare industry and the legal industry.

Knowing all this, and hearing all the nasty stories of how AHPRA or other regulatory bodies have allegedly destroyed practitioner’s lives, is fear and quasi-legal arguments and or fierce unorganized revolt the answer?  Here are 5 reasons I think it should not be a fear and hate-driven process:

  1. AHPRA – they are all normal people employed to do their jobs according to what training and standards they have been given to work with. They are not ogres or gods. They are simply doing their jobs. They are not Goliath. In general, they think they’re doing the right thing.
  1. Being reported to AHPRA should not be the trigger to get a mental health condition. Nor should a potential referral to AHPRA be the reason not to seek mental health treatment and support. If you have mental health issues, seek help, and get it under control. Although limited, there is case law emerging which supports this proposition. Better to be honest and upfront about your impairment rather than causing harm and then being interrogated.
  1. Let’s make a small change. If you are not happy with decisions made against you for whatever reason it may be, use the avenues of appeals and judicial review. If you do not put your hand up and protest, nothing will change, and nothing can be argued to better the system.
  1. We are part of the system. To make a change, yelling and shouting in an unorganized manner only cements the suspicion of our interrogators that we are slightly crazy. As practitioners we get people out of life and death scenarios, keeping our cool and collected face, concentrating on our craft. Why not apply these skills? We can put our minds together, identify issues such as lack of procedural fairness or lack of peer-reviewed, and agreed clinical standards, work on these issues and present a proposal as a collective to the COAG? Not as part of some politically or financially driven union or body, but as independent healthcare professionals with the sole agenda of providing a better and sustainable healthcare system for us all.
  1. Understand that there are no shortcuts. Just like we cannot be ‘half’ pregnant, you cannot complain and wish for change just by reiterating sad and emotional anecdotes. One must take action. If we want to change as a profession, we must gain the knowledge base and expertise plus the willingness to take risks with all our hearts. A Doctor cannot pretend to be a lawyer and visa versa. Perhaps, the study of law and understanding regulatory issues may have to be a compulsory part of all healthcare-related degrees so that fatal errors and holes in the system can be identified and rectified.

What’s the catch?

Although this is a NATIONAL scheme, applicable to all practitioners regardless of which state they are in, the actual NATIONAL LAW itself is a state and territory-based legislation and it is not a Commonwealth law.

Therefore, arguments regarding section 51 of the Constitution will not succeed – AHPRA/Boards are not created under Commonwealth law!

Others have thought of challenges based on section 75(iv) but recent case law and analysis of this may have made this difficult too (see below for example case law).

What to do now?

Things are changing and things will continue to change. If you are interested, read cases such as:

Craig v The Medical Board of South Australia [2001]SASC 169 this is not a recent case but it is regularly cited and gives details around what the Board should/shouldn’t do when regulating a profession.

DYB v Medical Board of Australia [2019]

HCA Burns v Corbett

If you are committed to change and would like to see this happen, there are two things you can do as a healthcare professional. One, study law and become a Lawyer. Two, support those who have already done this through fundraising and peer support groups.

Once we know what the problems are we will be able to find a solution. Surely it can’t be harder then restarting a heart that has stopped beating. Together we can create change for a fair and better tomorrow. 

We are collecting data regarding need for reform. Please answer a short survey if you are a healthcare professional: Survey Monkey

Disclaimer: this article is written as an editorial /opinion and it is not a legal advice. I am not a lawyer.

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JobKeeper and COVID-19: Workplace rights in a changing world

By | Employment Law

The COVID-19 pandemic that has swept across the globe has caused suffering to employers, employees and the global economy. The Australian Government responded to the economic crisis with the JobKeeper payment to keep as many people in their jobs as possible. The JobKeeper payment is a $130 billion package that an eligible employer can access to keep the jobs of their eligible employees.

The JobKeeper payment was intimated in early March and was officially announced on 31 March 2020. The measures passed through parliament via the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) which will make Part 6-4C of the Fair Work Act 2009 (Cth) (‘Act’). Since then, employers have had the ability to apply for the JobKeeper Payment that commenced on 1 May 2020, subject to the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (‘JobKeeper Rules’). Employers can continue to apply for the JobKeeper payment until it ends in September 2020.

At Susan Moriarty & Associates we have seen cases where employers have made workers redundant and/or dismissed them due to the economic consequences of COVID-19 without consideration/with ignorance to the JobKeeper allowance.

This article will answer the following questions:

  1. Can I ask my employer about the JobKeeper payment and if they have applied for it?

  1. If my Employer has applied for it, do they have to tell me?

  1. If my Employer is looking at COVID-19 related redundancies, can I raise the issue of the JobKeeper allowance?

  1. If I am on the JobKeeper allowances, what rights do I have?

  1. What can I do if my employer has made me redundant/dismissed me due to COVID-19 and they do not do anything about JobKeeper?

Note: These answers are crafted in a way to give you short responses that does not delve into the detail regarding the elements that must be satisfied such as the wage condition or how the Commonwealth government calculates whether an employer is eligible for the JobKeeper allowance. Should you wish to obtain that information regarding your particular circumstances, we would be happy to help you.

1. Can I ask whether my employer has applied for JobKeeper?

You can ask your employer whether they have applied for the JobKeeper allowance. If you are an eligible employee, you can inform the employer pursuant to the Part 6-4C of the Act that you intend to participate in the scheme and want to know whether they are applying for the JobKeeper subsidy.

An ‘eligible employee’ is one that:

  • Is a full time, part time or long-term casual (ie. over 12 months);
  • Is not a short-term casual (ie. less than 12 months);
  • Is at least 16 years old as at 1 March 2020;
  • Was employed by the employer as at 1 March 2020;
  • An Australian resident or a New Zealand citizen but registered with the ATO;
  • Was an employee during the relevant fortnight that the JobKeeper payment applies to;
  • Notice is given to the employer in the ‘approved form’; and
  • The Employer is not excluded from the JobKeeper subsidy.

Section 789GB of the Act makes it clear that the purpose of the JobKeeper allowance is to keep employees employed during the COVID-19 crisis. Therefore, your employer should tell you about it particularly if they are applying for the subsidy as it is a requirement they must meet. If they are not applying for JobKeeper, then they should tell you, especially if you work multiple jobs because you would need to establish which employer to get it from (as it is illegal to double-dip).

An important note is that an employer who has not applied for the JobKeeper subsidy does not have the protections given in the JobKeeper Rules and in the Act, such as being able to stand down employees with less legal risk and being able to change an employee’s responsibilities or their place of work. It is therefore beneficial for businesses to apply for the JobKeeper subsidy, and one would wonder why a business that may be suffering in the COVID-19 economic crisis would not be seeking the JobKeeper help if they are eligible.

2. If your Employer has applied for JobKeeper, do they have to tell you?

Yes. According to rule 6(4) of the JobKeeper Rules, the employer must notify an individual within seven (7) days of giving the Commissioner the employee’s details when they apply for the JobKeeper subsidy.

3. If my Employer is looking at COVID-19 related redundancies, can I raise the issue of the JobKeeper allowance?

If you are being made redundant, your employer must follow the law including discussing the redundancy with you. Section 389 of the Act states that a genuine redundancy is when:

  • The employer no longer required the person’s job to be performed by anyone because of the operational requirements of the business; and
  • The employer has complied with the relevant award/agreement regarding the requirement to consult about the redundancy.

During the consultation with your employer, you will be able to raise the JobKeeper allowance because it has been created to assist employees to keep their job. The employer will let you know if they are eligible for the payment or not, and consequently whether they will apply for it or have applied for it. If the employer has applied for the JobKeeper subsidy, they have to apply for all their employees and cannot choose who gets it and who does not.

It must be noted that there is no obligation on the employer to apply for the JobKeeper payment if they do not want to. Not applying for JobKeeper simply means the business can weather the COVID-19 economic crisis without government intervention.

If your employer is not applying for JobKeeper, section 389(2) of the Act makes it clear that the employer must consider whether it is reasonable to redeploy you to another role in the business or an associated business. If the employer fails to do so, they will be breaching the law. It would be worth in consultation to discuss this option because the availability of the JobKeeper subsidy would be taken into consideration if the employee is dismissed and the Fair Work Commission looks at whether the dismissal was harsh, unjust or unreasonable in section 389 of the Act. Make clear what you want and explore all the options, and make sure to document these discussions in writing.

4. If I am on the JobKeeper allowance, what rights do I have?

The JobKeeper payments do not change the protections you have against unfair dismissal as well as any adverse action claim about your workplace rights. The proposed section 789GY of the Act also gives further workplace rights that are protected, including:

  • the benefit that an employee should be paid in accordance with the JobKeeper rules;
  • agreeing, or not agreeing, to perform duties on different days or at different times;
  • agreeing, or not agreeing, to take paid annual leave after a request by the employer;
  • agreeing, or not agreeing, to take paid annual leave on request by the employer; and
  • making a request if stood down for secondary employment, training or professional development.

The employer can request an employee to make an agreement regarding:

  • Requesting the employee to take annual leave;
  • Taking annual leave at half pay; and
  • Varying the hours and days of work.

It is important to note that your contractual hours remain in effect until there is an agreement to alter it. The employer cannot take unilateral steps at changing your hours or days of work without an agreement with you. This has been a common tactic we have witnessed during this pandemic.

Whilst there are many protections and any substantive changes must be made by agreement between you and your employer, the employer does have the following powers if they are under the JobKeeper scheme:

  • To take the stand down power pursuant to the requirements of section 789GDC of the Act;
  • Directions to change duties in section 789GE of the Act; and
  • Direction to change the place of work in section 789GF of the Act.

In essence these powers give the employer the ability to give you a stand down order where necessary, however you still must be paid appropriately. The power to change duties allows the employer to provide alternative duties to the employee regardless of the contract, in an attempt to prevent standing you down. The third power allows the employer to change your place of work.

Overall if you are on the JobKeeper allowance, your workplace rights are enshrined in the JobKeeper Rules and the Act, which should prevent any unconscionable conduct by the employer. If you are being forced to accept new hours or your hours are being reduced without consent, we suggest that you talk to us about it.

5. What can I do if my employer has made me redundant/dismissed me due to COVID-19 and they do not do anything about JobKeeper?

If you have been made redundant or dismissed due to COVID-19 and JobKeeper did not make part of the consultations with you about the redundancy, then you may be able to make an unfair dismissal application or an adverse action claim against the employer. Whether you have a potential case must be analysed on a case by case basis, and that is why getting legal advice is important.

Please note that there is a 21 day timeframe in which you must make an application in the Fair Work Commission. There are some exceptions to this timeframe, however if possible, seek advice within that timeframe.

We can help you

During the current COVID-19 economic crisis, keeping your job is more important than ever and we are happy to help you and the community get through this. We are experts in employment law and have a firm grasp of the JobKeeper legislation and the current economic and legal landscape, and will be able to give you an understanding of where you can go, what you can do, and whether you have a potential case.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer should your require advice.

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JobKeeper: Misuse will be penalised, Government cautions employers

By | Employment Law | No Comments

Despite being in force for less than a month, the JobKeeper scheme has already attracted opportunist employers who are asking their employees for a ‘cut’ of their fortnightly payment.

According to the ABC News, reports have already been made by nervous employees that their bosses are trying to “skin the payment” from them.

Employees are being reminded the JobKeeper payment is an entitlement for their immediate benefit – not their employer, nor the business.

Importantly, employers do not have any claim over the payment and are required by the Fair Work Act to pass on the amount in full to staff. The penalties for misuse or theft can include fines and jail time.

Calls are being made for the government to create a hotline to both deter employers from being deceitful, and provide support to anxious, uncertain staff.

Read more from the ABC News here: Employers rorting JobKeeper payment will feel full force of the ATO, warns government

To understand the JobKeeper scheme and your rights as an employee read our previous blog: JobKeeper: How you are doing your employer a favour by applying for the payment

For further JobKeeper information and advice see the Fair Work Ombudsman here: https://www.fairwork.gov.au/

This article is legal information and should not be seen as legal advice. Please consult with a lawyer before you rely on this information.

OUR RECENT WRITINGS

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JobKeeper: How you are doing your employer a favour by applying for the payment

By | Employment Law

It seems obvious to suggest that during the pandemic employees still have workplace rights protecting them and ensuring they are treated fairly.

However, there are already cases emerging where employers are trying to take advantage of their workers. It is important to know that there are remedies available to employees if an employer takes inappropriate or adverse action against an employee in the current environment of COVID-19.

What is the ‘JobKeeper’ scheme?

On 14 April 2020, the JobKeeper scheme was introduced by the Commonwealth Parliament to temporarily amend Fair Work Act 2009. These amendments are contained within the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) Sch 1 (Coronavirus Amendment).*

The purpose of the scheme is to support the employers, so they are able to retain their existing employees.

There are already statements surfacing, like:

“Your boss is doing you a favour by keeping you employed”

“You are lucky your boss is giving you the JobKeeper payment”

This is not the case.

The purpose of the JobKeeper payment is to save, not cut, jobs AND ensure the economy keeps turning.

What has the affect of COVID-19 been on employment?

Many employees are unsure what to do when confronted with their employer cutting usual hours, transferring employees to part-time, or even standing employees down due to a decline in usual business activity because of COVID 19.

Frequently, our firm has been receiving calls for help from employees who have either been:

  • Treated unlawfully;
  • Denied their rights; and/or
  • Not made aware of the JobKeeper laws and what it means for them.

Our office has witnessed some employers viewing this pandemic as an opportunity to cherry-pick those employees to remain employed and those who can go or have their hours increased to pay for the JobKeeper wage payment they get.

We have seen unlawful changes to terms of conditions of employment at the start of the coronavirus shutdown, hours unilaterally removed from employees and shifts cut or no hours given to a regular and systematic casual employee altogether.

But it is not just our firm noticing this trend. Disappointingly, these coronavirus-related workplace violations have been emerging in the media. Already, an employer has been ousted for horrendous behaviour telling their employee by text,

“…you work when I need you to…[don’t] forget I am doing you a favour”

Read the enraging story here: JobKeeper Australia : Shop owner’s blunt texts to employee over $1500 payment

So, what are your rights?

You have workplace rights and protections, originating under legislation and other regulatory instruments.

These protections include, but are not limited to:

  1. You remain protected against adverse action;
  2. You have a right to challenge your employer;
  3. You cannot suffer discrimination;
  4. You cannot be unlawfully or unfairly dismissed;
  5. You don’t have to agree to taking annual leave at half pay (but you also can’t unreasonably refuse);
  6. You cannot be terminated, or singled out, for no valid reason; 
  7. JobKeeper payments are ‘one in, all in’ (meaning, if your employer chooses to claim one eligible employee, they must claim for all employees);
  8. If you have two part-time jobs, you can elect which employer you wish to nominate on the approved form as the nominated employer;
  9. You are still protected from misrepresentations – you can’t be misled about your employment;
  10. Your employer cannot be dishonest with you about your employment;
  11. You can be represented by your union, our firm, or other representative of your choice;
  12. You cannot be treated unfavourably and if you work less hours than the JobKeeper payment would cover, you cannot be forced to work more hours; and
  13. Your employer can ask you to work different hours or different days, only where it is reasonable.

What can you do?

Employees do not need to be grateful, compliant or humbled. The JobKeeper payment is not a prize – it is a workplace right under the Fair Work Act. It is the employee who nominates the employer, not the other way around.

We reiterate that this unprecedented time is not a free for all. Do not be afraid to ask questions and don’t be afraid to stand up for yourself.

If you are in immediate need, contact Susan Moriarty & Associates for a short consult. Alternatively, contact our office to arrange a long consultation, where one of our expert staff will examine all of your material and advise on how to keep your employment or challenge your employer.

You don’t have to be compliant.

You still have workplace rights.

You do have protections.

* Note: the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) can be accessed here: https://www.legislation.gov.au/Details/C2020C00128

And the explanatory memorandum can be found here: https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r6535_ems_1daae531-9b3a-493f-8596-23432c143fb3/upload_pdf/735865.pdf;fileType=application%2Fpdf

Contact us on 07 3352 6782 or email admin@susanmoriarty.com.au

This article is legal information and should not be seen as legal advice. Please consult with a lawyer should your require advice.

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NEWS ALERT!

By | Employment Law | No Comments

In response to the anticipated issues employees will experience at work as a result of workplaces responding to COVID 19 virus, and to provide a quick service to employees for any urgent reason, Susan Moriarty & Associates is offering a telephone advice service with a Senior Practitioner. 

We understand how employees find themselves needing quick advice in a workplace crisis affecting their employment.  Whether you are being bullied, have a disciplinary matter ‘sprung’ on you or you have been given unreasonable time to respond to allegations of under performance, conduct at work or are the subject of a complaint made against you, we can help with urgent advice over the phone.  For a flat fee of $200.00 plus GST we are offering up to 45 minutes on the phone with a skilled employment advocate who can provide you with a quick assessment of your issue and give you confidential and strategic advice on your workplace matter, your workplace rights and how to respond to your employer.

For help call our office on (07) 3352 6782 and ask for our urgent need telephone consultation.   

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Corona Virus (COVID-19) and your rights at work

By | Employment Law | No Comments

These times employees face are unprecedented in workplace relations.  How each case is handled will depend on all the circumstances of a workplace dispute or any other action taken by Employers to an employee issue.  Nonetheless, workers have rights and the various Tribunals that determine matters have an obligation to look at community expectations and not doggedly follow the rules of evidence and black & white law. 

The Tribunals are not Courts, nor should they be, as their history is framed in either human rights or conciliation and arbitration between employer and employees and/or their representatives.  The scales of justice and natural justice principles have never been so important for the world of work. 

At Susan Moriarty and Associates we understand this and while we are a law firm, we commit to these principles and what the ‘common person’ or ‘person in the street test’ would think of employer behaviour.  There are laws to follow but common sense should prevail.

Here are some tips and some challenges any employee might face during the Corona Virus response and our united efforts to curtail the dangerous impact this virus has on our populace and our health system.

1. Do I have to attend work if I am frightened of getting the virus or passing the virus on to another vulnerable person with whom I have regular contact?

Employers have an obligation under Work Health and Safety Laws to ensure the health of safety of their workforce.  You have an obligation too to ensure you don’t breach your own or a colleagues health and safety.  If you suspect infection, stay home, notify your employer in the usual or directed way and claim sick leave if you are a permanent employee.  If you don’t have enough sick leave you are able to access your annual leave or long service leave (if your entitlement is due).  Some employers require approval for you to access these entitlements, ask your employer.  If you are permanent part-time you have the same rights pro-rata.  If you are casual employee you can access without threat to your ongoing employment, unpaid sick leave.  We note the Federal Government is looking at implementing some assistance to casual employee so familiarise yourself with these.

There is a risk you can be deemed that you have abandoned your employment,  if you are just scared and don’t turn up for work and don’t contact your employer.  It is acceptable to refuse to work in an unsafe environment where your employer has done nothing to mitigate the spread of the virus by providing personal protective equipment (PPE), social distancing or any like strategies.  Be careful here and contact us or your union for advice.    

2. Can I lose my job if I have to self-isolate or take time off work for any reason related to contracting corona virus or if a family or household member contracts or is ill who you must care for.

No.  The anti-discrimination legislation and the state and federal industrial relations laws protect you from unlawful discrimination on the basis of a disability or medical condition or association with a person who has a disability or a medical condition.  The industrial relations laws protect you from adverse action being taken against you for an unlawful reason such as unlawful discrimination.  You have a right to access your personal leave to provide care and/or support for a family member or member of your household who is ill.  You industrial instrument, which might be an enterprise agreement as well as an Award, may provide better entitlements.

Ensure you apply for personal leave promptly and notify your employer.

3. Can I access all the usual remedies and lodge applications in the Tribunals for things like unfair or unlawful (wrongful) dismissal, discrimination or make adverse action claims not involving dismissal?

Yes,  but you should get advice from your union or us or contact the Fair Work Ombudsman or visit their site on www.fwo.gov.au.  There have been recent posts on the Fair Work Ombudsman Website regarding COVIT 19.  It is useful information that is readily available.  The Fair Work Ombudsman will not give legal advice or advice on the potential success of a matter that is lodged with the Fair Work Commission.  The Tribunals have arranged for matters to be conducted by teleconference, including hearings.

4. If I am a public servant what are my rights?

If you work in the public service as a professional or support employee in an office environment, your employer should be taking the same preventative measures of clear advice to workers and social distancing required by all employers under Work Health and Safety Laws.  Discrimination and General Protections laws against adverse action, equally apply to the public service and public sector.  If you are a frontline worker in health or other social or support services (eg; departmental public offices servicing the community, including Teachers, transport workers and other government services), you are entitled to work in a workplace free from discrimination and where work health and safety measures are taken to protect you from an unhealthy or unsafe workplace.

Remember, there will be expectations of common sense – what would a reasonable person expect and what do the laws say.  An employer cannot protect you from Corona Virus as a guarantee but they must take reasonable steps to ensure your workplaces are healthy and safe.  If you believe there is a risk in your workplace raise it, in the first instance, with your supervisor and if you are ignored or dismissed out of hand seek advice and help.  Frontline workers in the public service or sector have a right to expect that their employer will provide them with adequate personal protective equipment, you do not have to put yourself at risk.

Thank you for reading our first blog with tips for employees.  We will be keeping a close watch on issues and complaints that come our way and post further blogs to assist employees, alert employers and stakeholders of what is happening on the ground in workplaces. 

We hope humanity prevails and issues are few.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer should your require advice.

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Landmark Appeal win for a sexual harassment victim after waiting 6 years for judgment!

By | Discrimination Law, Employment Law

After experiencing sexual harassment over 11 years ago, Lilo Von Schoeler (Lilo) can finally say that justice has been served in a land mark decision handed down by the Full Court of the Federal Court of Australia in the matter of Von Schoeler v Allen Taylor & Company Ltd Trading as Boral Timber & Ors (Federal Circuit Court of Australia), BRG 893 of 2011.

In 2011, Lilo filed her claim for sexual harassment, sex discrimination and victimisation against Allen Taylor & Company Ltd trading as Boral Timber, a subsidiary of Boral Limited, and two of its employees, Timothy Hey and John Urquart. The Judge at first instance found that Lilo had been sexually harassed however did not find Boral Timber vicariously liable for their employee’s conduct and dismissed her other claims outright.

In bizarre circumstances, that still remain unexplained, the judgement was not provided to any of the parties until November 2018. The parties were told by the Judge’s Associate that the reasons for judgement had been released in April 2015 but due to an ‘administrative oversight’ the judgment had not been sent to the parties.

Susan Moriarty & Associates filed an appeal on ten grounds, including one which alleged that the delay was of such a magnitude and so inexplicable that Lilo had been denied justice and another which asserted that Lilo’s employer, Boral, were vicariously liable for their employee’s conduct.

In a scathing judgement at the final paragraph of the decision, their honours stated:

It should finally be noted that the delay on the part of the primary judge in delivering his judgment has—regrettably—brought the administration of justice into disrepute.

The full court upheld Lilo’s appeal, declaring Boral was vicariously liable for the sexual harassment, set aside the primary judge’s costs order against her, ordered Boral to pay Lilo’s appeal costs and remitted the issue of victimisation, sex discrimination and assessment of damages to a different judge in the Federal Circuit Court.

Lilo described to her legal team at Susan Moriarty & Associates when she was notified of her win that she was:

“just so damn happy, I just want to dance!” and added she was “grateful that the full court acknowledged the strain” she had laboured under for over 6 years and was “delighted that after all this time, justice has finally been served”.

Postscript –
Susan Moriarty & Associates filed a freedom of information request in regard to how such an ‘administration oversight’ had happened. However, the application was denied on the grounds that the documents in question were ‘judicial’ in nature and therefore exempt under the Act. Ms Moriarty has lodged an application for review of the Court’s decision with the Commonwealth Office of the Information Commissioner.

Ms Moriarty said that “We want to understand what happened here, to discover how such an astonishing delay could have occurred. This is in the interest of all litigants. The old proverb remains prescient ‘Justice delayed is Justice denied’. The court’s managers needs to understand how and why this happened so that it never happens ever again”.

This article is legal information and should not be seen as legal advice. Please consult with a lawyer before you rely on this information.

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