Unpaid Work Experience Not Protected From Unfair Dismissal

Greg Arnold – Director, Principal Consultant

15th September, 2021

trainee website - Unpaid Work Experience Not Protected From Unfair Dismissal

In a recent case, the Fair Work Commission (FWC) considered the difference between volunteer work, unpaid work experience, and employment to find whether a recent law graduate was able to take an unfair dismissal claim. The FWC found that there was no contract of employment in place and the graduate was not eligible to bring an unfair dismissal claim.

In August 2020, the law school graduate commenced a role with a legal practice in Sydney. Although the graduate asserted that he had been “actively recruited” by a solicitor at the firm, the FWC found that the initial meeting had occurred at his own request.

In November 2020, the law firm advised the graduate that they were “restructuring the firm to meet the current economic crisis” and was unable to offer him any further volunteer work. He subsequently filed an unfair dismissal claim, asserting that he was an employee of the legal firm.
The FWC commented on the difficulty of differentiating between internships, unpaid work experience, and employment. The FWC considered several factors surrounding the graduate’s service to determine whether or not a contract of employment existed.

Based on the evidence, the FWC determined that the graduate was not an employee of the law firm, and therefore was not eligible to bring an unfair dismissal claim.

Lessons for Employers

  • ensure that prospective workers are aware of their title and the terms of their service;
  • do not lead volunteers and other unpaid workers to believe that they are employed by the company;
  • the terms of any working relationship should be documented in writing.

If you would like assistance in determining the terms and conditions for unpaid workers and volunteers, please do not hesitate to contact us at Effective Workplace Solutions.

Sexual Harassment Legislative Changes and a Holistic Approach to Prevent Sexual Harassment

Greg Arnold – Director, Principal Consultant

15th September 2021

Harass 1024x576 - Sexual Harassment Legislative Changes and a Holistic Approach to Prevent Sexual Harassment

Sexual harassment is an issue that sadly affects many people in the workplace – often it is a problem that may be difficult to handle from an employer’s standpoint but not impossible to tackle. It is therefore important employers foster a culture that positively supports victims and witnesses to speak up.

Legislative Changes
At the beginning of this month the Federal Government made legislative changes, with the introduction of the new Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.
This new legislation made the following important changes:

  • inserts a new provision in the SD Act to make it expressly clear that sexual harassment is unlawful;
  • the introduction of the stop sexual harassment orders (FWC);
  • sexual harassment can be a valid reason for dismissal under the Fair Work Act;
  • Fair Work Regulations now specifically prescribes sexual harassment as serious and wilful misconduct;
  • Timeframe for claims under the Sexual Discrimination Act is extended from 6 months to 2 years.

These changes arose out of the Government’s the ‘Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’ (the Roadmap) developed in April this year and was in response to the Respect@Work Report released last year by the Sex Discrimination Commissioner, Kate Jenkins.

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FWC Approves Amendments to Restaurant Award

By Andrea Vickery – Consultant

16th August, 2021

casual laws change - FWC Approves Amendments to Restaurant Award

On 2 August 2021, the Fair Work Commission approved the following amendments to the Restaurant Industry Award 2020:

  1. A simplified classification level system;
  2. An ability to agree with senior employees to avoid paying penalty rates, overtime and providing meal breaks, for up to 57 hours of work a week, if they are paid a rate higher than 170% above the Award rate ; and
  3. The ability for employers to pay allowances via a “rolled-up” hourly rate rather than for each instance they are accrued (a “Substitute Allowance”).
    The changes were made following an application made by the Minister to assist industries most affected by COVID-19. The changes are optional for business to adopt and are temporary amendments that will apply during the COVID-19 recovery period, from 11 August 2021 to 10 August 2022.
    It is expected similar amendments will be made to the Hospitality Award in the coming weeks.
    If you are covered by the Award and you require further details in relation to these new changes and how to implement these changes, please do not hesitate to contact us.

Mandatory COVID Vaccinations in the Workplace

The Fair Work Ombudsman Now Provides Some Further Guidance

By Greg Arnold, Director & Principal Consultant

16th August, 2021

jabby 1024x731 - Mandatory COVID Vaccinations in the Workplace

In recent weeks we have received increased enquiries from our clients about mandatory COVID vaccinations in the workplace for all of their employees.
This is a very vexed question with so many legal factors in play. The SPC decision to make vaccinations mandatory for its staff and visitors seems to be driving renewed enthusiasm for employers to make it compulsory for staff to be vaccinated.
In light of this very perplexing area of employment law the Fair Work Ombudsman (FWO) has provided a 4-tier guide for employers who are considering making the COVID vaccination compulsory. The FWO states:

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The New World of Working From Home

By Karen Arnold, Director

16th August, 2021

WFH - The New World of Working From Home

In a world where snap lockdowns, hotspots, border closures and close and casual contacts have become part of our daily lives, we have also been thrust into the world of working from home and stay at home orders.

With the realisation that working from home may be here to stay and for many employees (and indeed employers) is a very appealing option, some consideration should be given to developing a policy and framework for working from home.

As businesses delve into this new concept, we would recommend that businesses develop a Working from Home Policy. Below is our guide to the considerations when developing this policy:

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