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Employment Law – Domestic violence leave

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From 1 August 2018 all employees under modern awards – full-time, part-time and casual – have an entitlement to 5 days unpaid leave to deal with family or domestic violence issues.

The Fair Work Commission decided in their four-yearly review to add a new model term into all modern awards. The Full Bench concluded that:

…retaining employment is an important pathway out of violent relationships. Conversely, a lack of financial security has an adverse impact on the ability to recover from family and domestic violence. Absent an entitlement to unpaid family and domestic violence leave, employees will be reliant on the goodwill of their employer to obtain the leave necessary to deal with the various issues arising from family and domestic violence while remaining in employment.

The model clause will allow unpaid leave for family or domestic violence reasons which are defined as… violent, threatening or other abusive behaviour by a family member that seeks to coerce or control the employee and that causes them harm or to be fearful.

The unpaid leave may be taken for such reasons as to make safety arrangements for the employee or a family member, to attend court, or to access police services.

Employees are not required to access paid holiday or sick leave first before taking the unpaid domestic violence leave.

The leave is available in full at the start of each 12-month period of the employee’s employment, does not accrue and is available to full-time, part-time and casual employees.

Our Employment Law guide has been updated.

Courts and tribunals – 1 July fee increases and legislation updates

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1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

101 Employment Answers – commentary added

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By Lawyers Reference Manual – 101 Employment Answers has been enhanced with the addition of commentary regarding Unfair dismissal – period of continuous employment and Casual Employment.

An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee: see s 384(1).

Under s 384(2), a ‘period of service’ as a casual employee does not count towards the employee’s period of employment unless:

  • the casual employee was employed on a regular and systematic basis; and
  • the casual employee had a reasonable expectation of continuing employment on a regular and systematic basis.

The Full Bench decision of the Fair Work Commission in Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237 (particularly paragraphs 10 to 13) provides guidance as to the approach to take for calculating a ‘period of service’ as a casual employee.

EMPLOYMENT – Tuition reimbursement on termination

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Employers typically deduct from termination monies when an employee terminates after receiving recent employer-funded tuition. Deductions from monies owed is regulated by the Fair Work Act and employers should tread carefully.

Under the Act, employers are required to pay their employees all amounts owing to them in relation to the performance of their work in full. This includes wages, bonuses, loadings, allowances, overtime and leave payments. …

The Act allows for some deductions to be made by employers, but only in four limited circumstances, one being where the deduction is authorised by the employee in writing, and it is principally for the employee’s benefit …

In some cases, deductions for employer paid training courses can be lawful authorised deductions. It will depend on the circumstances of the case but as a general statement, deductions for training course fees are more likely to be considered lawful if the severance of the employee concerned occurs within a short time following the payment of the fee, for example, 6 months or 12 months. Each situation will turn on its facts.

The Standard Individual Employment Agreement and the Executive Employment Agreement precedents have been updated with a clause relating to Refund of tuition expenses by the employee.

 

 

EMPLOYMENT – Reference manual – 101 Employment Answers – Additions

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The By Lawyers Reference Manual – 101 Employment Answers has been updated.

New entries:

Notice and employment ended by abandonment

The question of when an employee can be said to have “abandoned” their employment can be a complex one. The recent Full Bench decision of the Fair Work Commission in Abandonment of Employment [2018] FWCFB 139 [21]–[22], provides excellent guidance.

Unfair dismissal – high income threshold

The high income threshold limits an employee’s eligibility for protection from unfair dismissal … currently $142,000. If an employee is not covered by a modern award, or an enterprise agreement does not apply to them, in order to be able to access the unfair dismissal jurisdiction, the employee must have an annual rate of earnings of less than the high income threshold.

Termination of an employee on a 186 visa

There is no condition on a 186 visa requiring either the employee or employer to maintain employment for the 2 year post visa approval employment period.

Employment Law – 101 Employment Answers – New reference manual

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We are excited to announce that we have significantly enhanced our Employment Law publication by the addition of a new reference manual – 101 Employment Answers.

Sourced from our Mentor service 101 Employment Answers is an extremely useful collection of questions and answers on all aspects of employment law, from various states, on various topics, dealing with the status, rights and obligations of employers, employees and contractors.

101 Employment Answers can be accessed directly from the Employment Law guide within LEAP or from the Employment Law page on the By Lawyers website.

Employment Law

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Employment Law

JANUARY
  • Commentary added on “Cashing out annual leave”
NOVEMBER 
  • Further Information – Added new links
  • Costs Agreements – Reference to interstate costs laws added and updated interest clause
OCTOBER
  • Costs Agreements
    • SA and WA – Added client and firm fields company execution clause trust account details solicitor’s lien.
    • WA – Added clause on scale fees.
    • NSW/VIC – Included reference to time limit for bringing costs assessment, total estimate of legal costs section with provision for variables, and authority to receive money into trust.
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
  • New article – Out-of-hours employee misconduct and social media misuse
SEPTEMBER 
  • New article added – Beware the trap of the disgruntled employee – Part 2
AUGUST 
  • Costs agreements have been added for Tasmania, ACT and Northern Territory.
JUNE 
  • Commentary updated in line with Fair Work Commission’s high income threshold for 2016. The threshold is relevant for the purposes of protection from unfair dismissal, compensation available from an unfair dismissal claim and the applicability of modern awards to certain employees.
APRIL 
  • New article published – Beware of the trap of the disgruntled employee – Part 1
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
MARCH
  • New commentary on casual employees included.
FEBRUARY
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

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