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“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 2018Casual 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 2018Clauses 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