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Award covered high paid employee? Oxymoron?

The Fair Work Commission has reaffirmed the principle that in determining whether the job performed by an employee falls within an award classification, the test to be used is the “principal purpose test”. This involves an examination of the nature of the work and the circumstances in which the employee is employed to determine the principal purpose for which the employee is employed. In a recent decision, the Commission found that a real estate employee with the title “Director of Asset Management” was covered by the Real Estate Industry Award 2010 under the classification “Property Management Supervisor”. It was accepted by the employer that whilst the employee performed all of the indicative tasks of a Property Management Supervisor as listed in the Award, the employee performed additional higher-level duties including management of the trust bank account and negotiating management fees with clients for leasing arrangements. Th...

10 April 2018

“No work as directed, no pay” must be reasonable

The Fair Work Commission has recently affirmed the ability for an employer to not provide pay to an employee who does not undertake work as directed. This case involves a unique set of circumstances. The employee’s drivers’ licence was suspended, for three weeks, due to his failure to pay registration. The employer had a policy that required all employees who performed driving duties on the employer’s private property to hold a valid drivers’ licence.  As a result of his licence suspension, the employer put the employee on an unpaid stand down on the basis that he was unable to perform his driving work on the employer’s private property as directed. The Commission in its capacity as a private arbitrator considered whether the enterprise agreement modified the common law right of “no work as directed, no pay” – finding that it did not. The Commission held however that the common law right of an employer to refuse to pay an ...

23 March 2018

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