The Fair Work Commission's Expert Panel recently issued its 2017-2018 Annual Wage Review decision. Among other things, the panel decided that it was appropriate to adjust modern award minimum wages. From the first full pay period on or after 1 July 2018, minimum weekly wages will increase by 3.5%, with commensurate increases in hourly rates on the basis of a 38-hour week.
Navigating the payment of bonuses or incentive payments can be a tricky legal issue. One question that clients regularly ask is how discretionary is an employer's discretion when it comes to awarding a bonus or setting an employee's annual remuneration? As with most legal issues, there is no quick answer, but there are some tips from case law which can provide guidance.
The effects of Australia's ageing workforce are expected to be so pronounced that the government has budgeted for retraining. Between the tax cuts and promises to return to surplus, one of the centrepieces of the 2018 Budget was increased funding to assist Australia's so-called 'greying' population. To manage the changes to Australia's demographics, employers should start to prepare for an ageing workforce and develop strategies to manage and retain older workers.
Under new legislation, labour hire service providers in Queensland and South Australia must be licensed to provide labour hire services in order to avoid costly penalties. Businesses that engage labour hire service providers must also ensure that those providers are licensed. The new licensing schemes aim to regulate the provision of labour hire services and protect employees from exploitation by labour hire service providers.
In January 2018 rail workers employed by Sydney Trains and NSW Trains threatened a 24-hour stoppage and overtime bans. In a noteworthy decision for all employers, the Fair Work Commission ordered that all industrial action be suspended for six weeks, finding that the stoppage threatened to cause significant damage to the economy and endanger the welfare of the community and the people who rely on the network to get to work and school.
Managing a workplace investigation can be challenging at the best of times, particularly where the complainant or alleged offender proves difficult. Employers should consider a number of issues that can arise when managing absent participants or vexatious employees in the context of an investigation, as well as various tips on how to move forward successfully.
Employers should consider a number of legal issues when seeking to integrate apps with their existing systems. In some cases, it may be necessary to tailor apps to the business or to consider changes to instruments which govern the employment relationship. Employers should consider these issues and review existing industrial instruments and employment contracts for their compatibility with apps before implementing them in the workplace.
Most employers are aware of the stringent obligations in place to protect their employees' personal information. What might not be so clear are their obligations where law enforcement has requested this information to be shared with it. Knowing how to act in this situation is crucial. With the introduction of new data breach disclosure provisions, the standard for protecting an employee's personal information has never been higher (nor the punishments more severe).
Under new legislation, bargaining representatives – whether acting for employers, peak bodies or unions – must now disclose any personal financial benefits arising from enterprise agreements before they are voted on. The purpose of the disclosure documents is to help workers, employers and other stakeholders to track the revenue that an enterprise agreement will generate for unions and any other bargaining representative.
A growing workforce, strategic expansion or the end of a lease can force businesses to relocate their premises or employees. While such changes are often positive, relocation can pose a number of practical and legal issues that should be carefully negotiated in order to minimise disruption to the business and employees and reduce exposure to employment-related claims. Two recent unfair dismissal decisions provide useful guidance on business relocation.
The #metoo movement has helped to expose the prevalence of sexual harassment in society, particularly in the workplace. While the spotlight has been on individuals working in Hollywood's film and television industry, a 2012 survey by the Australian Human Rights Commission found that 25% of women in Australia had been sexually harassed at work. Three key tips can help employers to support gender equality, prevent sexual harassment in the workplace and ensure that no one is alienated in the process.
For 74 days in 2017 Carter Holt Harvey Woodproducts Australia Pty Ltd 'locked out' a number of its employees from the workplace during an industrial dispute. The Fair Work Commission was called on to resolve a dispute over whether employees who had been locked out during the industrial action were entitled to accrue annual leave and long service leave during the lock-out.
The Fair Work Commission recently rejected an Uber driver's claim of unfair dismissal on the grounds that he was an employee, upholding Uber's argument that he was instead an independent contractor. It stated that the fundamental elements of an employment relationship were absent from the relationship between the parties, as the driver was not required to perform work or provide services for the benefit of Uber, and Uber made no payments to the driver for the provision of any work or services.
The Fair Work Commission's bullying jurisdiction recently rejected an aged care worker's bullying claim against her supervisors and managers. The employer successfully argued that, at all times, the employee was subject to reasonable management action carried out in a reasonable manner. This case demonstrates that bullying is not always top-down; it can be horizontal or even bottom-up.
The Federal Court recently declined an application for leave to issue subpoenas pursuant to Section 23 of the International Arbitration Act 1974 on the basis that Section 23 of the act did not give the court jurisdiction to do so in aid of an arbitration seated outside Australia. While some practitioners will agree with the court's strict interpretation of the act, others – particularly those engaged in international arbitration in Asia-Pacific – may find the decision less satisfactory.
In a recent case, the Federal Court stayed the proceedings brought before it and referred the dispute to arbitration, save for the ultimate question of whether a winding-up order against the first defendant should be made. Among other things, the decision illustrates the policy of minimal curial intervention that the Australian courts follow where arbitration is concerned. It also confirms the arbitrability of certain claims under the Corporations Act 2001.
In the last few years three subject matters have been lurking on the fringes of patentability: methods of treatment, genes and software. The High Court recently considered methods of treatment (which are generally patentable) and isolated naturally occurring genes (which are not). Now the High Court may have the opportunity to consider the extent to which software is properly the subject of patent protection.
The High Court recently held that an AstraZeneca patent was invalid because it was obvious and therefore lacked the requisite inventive step within the Patents Act. While the court's interpretation of the act was straightforward, it provides useful guidance on obviousness – in particular, that where multiple pieces of information are available and relevant, each must be considered independently alongside the common general knowledge.
The High Court is in the process of hearing an appeal from the Full Federal Court concerning the patentability of isolated genetic materials – in particular, three patent claims for BRCA1, which help to identify women with an increased risk of developing breast and ovarian cancer. If the High Court upholds the inferior courts' judgments, there will be an anomalous position between Australia and the United States regarding the patentability of genetic material.
The process for exporting organic produce into China has been made much easier following the March 2014 signing of the Australia-China Organic Trade Access Agreement. The agreement is predicted to boost Australia's organic and biodynamic industry by up to A$100 million per year, significantly improve the organic export process and help Australian food producers to meet demand for these premium products.