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A Full Federal Court decision confirms that an approved enterprise agreement remains legally binding even where deficiencies in making the agreement are later discovered
In an important case regarding the enforceability of approved enterprise agreements, a Full Federal Court has held that an enterprise agreement approved by the Fair Work Commission will remain legally binding, even if it is subsequently discovered that there were deficiencies in the agreement-making and approval process. Contextual background After the relevant EA was approved by the FWC in 2017, it was discovered that a number of pre-approval steps failed to meet the requirements of the Fair Work Act. In particular, about 40% of relevant employees were deprived of the opportunity to vote on the EA. The Full Federal Court “safely assumed” that had the FWC known of that issue when the application was made for the approval of the 2017 EA, the EA would not have been approved by the FWC. When the voting deficiency became known to the employer and the union, they began negotiating another enterprise agreement and ultimately a new enterpri...
5 April 2022Out-of-hours conduct sufficiently connected with employment? The Commission “draws the line” in a recent unfair dismissal case
A recent unfair dismissal case has further explained where the Fair Work Commission “draws the line” on when out-of-hours conduct is sufficiently connected with employment to provide a valid reason for an employer to dismiss an employee for out-of-hours conduct. On 10 March 2021, following a compulsory Workshop that ended at 4pm, the employer had organised a social event for employees, the “Sundowner”. Some of the features of the “Sundowner” event included: optional attendance; employees were not paid for this time if they chose to attend; employees wore smart casual dress, not uniforms; there was no employer signage or branding, but employees were encouraged to gather at a particular section of the main bar; employees had a wristband identifying them as the employer’s guests so they could obtain free drinks at the bar; and the employer’s bar tab closed at around 7pm. The employer termina...
15 February 2022New Sex Discrimination and Respect at Work Legislative Changes
Provisions in the Fair Work Act 2009 (Cth), the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) were amended on 11 September 2021 with the passing of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth). Some of the key amendments are: Fair Work Act 2009 (Cth) Compassionate Leave The amendments provide another ground of entitlement for two days of compassionate leave where the employee, or the employee’s spouse or de facto partner, has a miscarriage. The legislation already provides compassionate leave to an employee in circumstances of a stillborn child in the employee’s immediate family or employee’s household. Compassionate leave is paid leave for employees except for casuals where the leave is unpaid. Unfair dismissal A new note has been inserted into the unfair dismissal provisions t...
4 October 2021