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Sham contracting = high risk exposure. Court warns "think twice"
The Federal Circuit Court (the Court) has again reaffirmed that harsh penalties will apply to employers found to engage employees under sham contracting arrangements. Background At the heart of the matter were 10 individuals engaged by Linkhill Pty Ltd (Linkhill) to undertake construction work on sites located in Melbourne. In the main, when the individuals were engaged, they were advised they were independent contractors and not employees and that they were required to obtain an ABN to commence work. In the majority of cases the individuals were: not required to provide their own tools as these were provided by Linkhill; told by Linkhill when they were required to work, when their break times would be and their pay rate; worked an average of 40 hours per week; undertook work as directed by and supervised by Linkhill; required to provide Linkhill of notice of any intended leave and did not supply a replacement to undertake their work ...
28 July 2014Court scathing of employer for delaying stay application of reinstatement order
The Technical and Further Education Commission (the Employer) was refused a stay of a Fair Work Commission (the Commission) order when it applied to the Federal Court (the Court) three business days after reinstatement was to take effect. Background The Employer was ordered to reinstate a dismissed employee by 25 June 2014, after the Commission found the employee had been unfairly dismissed. The Employer had previously unsuccessfully argued in the Commission, that the employee had been made genuinely redundant and could not access the unfair dismissal laws. The Employer lodged an application with the Court staying the Commission's order, three business days after it was required to reinstate the employee. The Employer had been paying the employee's salary but did not allow her to attend work to perform her duties. There was correspondence between the parties following the Comm...
21 July 2014Multiple applicants can be listed in one general protections claim and employers may be entitled to request further particulars before participating in the FWC conference
The Fair Work Commission (the Commission) recently found that multiple applicants can be listed in one general protections dispute application. Further, an employer can request more and better particulars from the employee regarding their claim before participating in the conference before the Commission. Background The CFMEU lodged one general protections claim on behalf of approximately 100 members, alleging they were dismissed because they had a workplace right under the relevant enterprise agreement and the National Employment Standards. The employees were named in the application. The employer, Anglo Coal (Dawson Services) Pty Ltd challenged the dispute application on the grounds that: the employer had no record of one of the persons named in the application; four of the employees named in the application are still employed by the employer; 21 employees were terminated on the basis of voluntary re...
21 July 2014