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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

Fixed term contracts no longer as effective in preventing unfair dismissal applications

Unfortunately for employers, the concept of an employee’s employment coming to an end by the “effluxion of time” is no longer a jurisdictional protection against unfair dismissal claims. Up until the handing down of this decision by the Full Bench of the Fair Work Commission in December last year, employers were always able to argue that an employee, who finished up his or her employment on the last day of their fixed term contract, was jurisdictionally prevented from bringing an unfair dismissal application because they did not meet the requirement that the dismissal was “at the initiative of the employer”. Rather, it was argued, that the dismissal came about by the “effluxion of time” in accordance with the operation of the terms of the employee’s fixed term contract. The Full Bench in this case overturned the previous case law that stated an employee had no access to unfair dismissal laws when their employment ended by the &ldqu...

8 December 2017