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Your Employment Law Update – August 2018

The last few weeks saw some significant employment law cases decided, important decisions handed down which may impact your business.

· An employer in the Security Industry was personally fined heavily because of breaches of the Fair Work Act 2009 (the “Act”), which included underpayments and failure to pay penalties in accordance with the relevant industry awards and the failure to keep proper records.[1]

· A win for casual workers with a decision made in relation to workers in the mining and labour hire industries affecting all industry sectors. The decision by the Full Court defines the line between casual and permanent employment .

· A further significant change - the introduction on 1 August 2018, of family and domestic violence leave.

Employer Personally Fined for Underpayments and Breaches of the Fair Work Act.

This past week the Federal Circuit Court of Australia ordered the director, of a security company Mr Marcinkowski, to personal pay more than $115,000 for contravening several provisions in the Fair Work Act.[2]

The security company decided to pay their workers a flat rate, which did not include night span, overtime, public holiday and weekend penalties (which a report showed was standard practice in the industry).[3] The employer made unlawfully deductions from employee’s wages for uniform expenditures without reimbursements and the flat rate approach resulted in the employees’ wages being less than the relevant Award.

The employer did not act on directions from the Fair Work Inspector, highlighting the shortfalls of their employees engagement. The Fair Work inspector determined that the employees of the Security company were not better off overall on the flat rate arrangement.

The decision refers to a 2016 judgement highlighting exploitation of vulnerable workers and inadequate record keeping.[4]

The original Company was wound up during the proceedings and a new company was formed to take over the business of the first under a new name. This did not allow Mr Marcinkowski to avoid the penalty imposed by the Federal Circuit Court.

Implications for Employers

1. Flexible work arrangements outside of the award are allowable but the arrangement must pass the BOOT test and the employee must be Better Off Overall.

2. The Fair Work Regulations 2009 state the records an employer must keep include:[5]

(a) general records on the employer and employee (for example, commencement date, the type of employment… etc.);

(b) pay records;

(c) hours of work;

(d) leave records;

(e) superannuation contribution records;

(f) individual flexibility arrangement records;

(g) guarantee of annual earnings records;

(h) termination records; and

(i) transfer of business records.

3. Employers have an obligation to ensure they are paying all employee entitlements, ignorance and the business’ inability to meet the costs will not avoid this liability.

Casual Workers - What’s in a name?

Simply declaring or starting employment as casual does not mean that it is. Often employment was start as casual and move toward a regular rhythm and flow.

The Full Federal Court decided in a landmark decision that whether an employee is casual is a matter of looking at “the real substance, practical reality and true nature of the relationship”.[6]

Mr Skene was engaged by Workpac Pty Ltd as a casual worker in the mining industry. However, as he was working a regular roster, the Court found that he was entitled to annual leave upon his termination. Even though his original contract was under a casual basis, his employment was not found to be casual in nature.

With this judgment, the Courts emphasised that a casual employment must feature aspects of uncertainty and irregularity. If the employment has a level of regularity and predictability regarding the hours, employees may be entitled to annual leave and other benefits of a permanent employment.

Implications for Employers

4. Review your employees entitlement and status regularly

5. Issue new agreements to reflect the true nature of the employment

Family and Domestic Violence Leave

As many of you know, Voice Lawyers is a keen advocate for individuals that have experienced or are experiencing domestic violence. It was great news when the Fair Work Ombudsman updated their industry and occupation awards to include a new clause for domestic violence leave. This clause came into effect on 1 August 2018 (which happened to be our firm’s first Birthday and the day of our fundraiser to support women moving on from domestic violence).

What is family and domestic violence?

Behaviour by an employee’s family member that is violent, threatening, or abusive that seeks to control/coerce the employee or causes them harm/fear.

Who is entitled to this leave?

All employees covered by an award with the updated clause (including part-time and casual employees) are entitled to the family and domestic violence leave.

The only awards that do not include the new clause are enterprise awards and state reference public sector awards.

What does this entail?

You can receive up to 5 full days of unpaid leave. The days do not have to be taken all at once. You may take single days or multiple days. Unused leave days do not carry over to the next year.

How much notice do you need to provide?

You should let your employer know as soon as possible and this can happen after the leave has started.

Do I need evidence?

Yes, evidence can include police documents, court documents, family violence support documents, or a statutory declaration. Your employer can ask for evidence even if you only take 1 day or less off work.

Will it be confidential?

YES! Employers are required to take reasonable steps to keep any information regarding the employee confidential. This includes the notice and the evidence provided for taking the leave.

Resources for Employers

6. Here are some links to assist your business integrate these changes.

Information on domestic violence leave:

If you would like advice on this or other aspects of your business, call at Voice Lawyers on (02) 92318602 or email to make an appointment. Voice Lawyers have offices in Sydney CBD and Macquarie Park.

Kayte Lewis is principal lawyer at Voice Lawyers, practicing in commercial and family law; a nationally accredited mediator and professional development specialist with a passion for communication and helping people find their voice.

Call Voice Lawyers today (02)9231 8602 or email

[1] Fair Work Ombudsman, NSW Mid-West and Mid-North Coast Campaign Report (2018).

[2] FWO v VIP Security Services Pty Ltd & Anor [2018] FCCA 2969.

[3] Ibid.

[4] FWO v Grouped Property Services Pty Ltd [2016] FCA 1034.

[5] Fair Work Regulations 2009 sub-div 3.

[6] Workpac Pty Ltd v Skene [2018] FCAFC 131

#employmentlaw #domesticviolence #DVO #businesslaw #FairWork #employers #employmentpolicies #employmentcontracts

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