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Casual or permanent? If you don’t have a written contract of employment, consider it permanent

The Federal Circuit Court has held that a long-term employee was employed as a permanent employee and not as a casual as claimed by the employer. This finding was made despite the fact that the employee, although he was not provided with a written contract of employment, acknowledged that when he entered into the employment, he fully understood that he was to be engaged as a casual employee. The Court’s finding of permanent employment was primarily made based on a clause of the Quarrying Industry Award which provided that in the absence of a contract in writing to the contrary, the employment is deemed to be permanent. It is not uncommon for industrial instruments, and in particular enterprise agreements, to have provisions in them, similar to the Quarry Industry Award, state that unless an employee is specifically engaged as a causal, they will be deemed a permanent employee and entitled to all of the benefits of permanent employment including annual leave, personal/c...

20 March 2018

Clauses in enterprise agreements that limit the use of labour hire not permitted unless clear connection with employment

Section 172(1) of the Fair Work Act 2009 provides a list of permitted matters that can be included in an enterprise agreement. In short, this section provides that an enterprise agreement can only contain terms that relate to the employer and its employees or a relevant union. There has long been legal conjecture as to the extent to which clauses in an enterprise agreement that restrict the use of labour hire workers is a permitted matter in an enterprise agreement. Relevantly, the explanatory memorandum for the Act provides as follows in relation to the legality of a clause in an enterprise agreement restricting the use of labour hire workers: terms relating to conditions or requirements about engaging labour hire are permitted if those terms sufficiently relate to employees’ job security – e.g.  a term which provided that labour hire workers must not be engaged on terms and conditions that would undercut the enterprise agreement is a te...

19 February 2018

Your lack of employee records may come back to haunt you

In late 2017, the government amended the Fair Work Act 2009 to include provisions aimed at protecting vulnerable workers. These amendments went through without much publicity and, as a consequence, there is a general lack of awareness of the amendments amongst employers – despite the importance of the amendments.  As a part of the amendments, a new section 557C was introduced into the legislation. The practical consequence of that amendment is this – if an employee brings a claim for say an underpayment of wages, annual leave, sick leave, or overtime, and employer did not comply with its obligations to keep employee records for these entitlements, the employer then bears the onus of disproving the employee’s claim. This is exactly how it played out in one recent case. Mr Pulis ran a plumbing business and employed an apprentice plumber on a “trial”. However, this employee was only an “apprentice” in title as the busi...

12 January 2018