Source: Courtesy of SBS The ruling found people on casual contracts working "regular, certain, continuing, constant and predictable" hours are entitled to paid leave benefits. The Federal Court found casual staff working predictable hours with a firm advanced commitment did not meet the definition of casuals and, therefore, were entitled to annual leave, sick leave and carer's leave. The Federal Court case was brought by coal mine worker Robert Rossato who successfully argued his three-and-a-half year stint with labour company WorkPac was a permanent role disguised as casual work. Mr Rossato worked on six different contracts at Glencore mines on a casual contract, at one point working 12-hour shifts for seven days straight followed by seven days off. Justice Mordecai Bromberg said that pattern constituted "regular, certain, continuing, constant and predictable" work, rendering the nature of his employment permanent, not casual.
24 Jun 2020
2020年5月20日，澳大利亚联邦法院全席法庭对WorkPac Pty Ltd v Rossato一案作出判决。 此案聚焦并围绕劳务派遣公司WorkPac Pty Ltd（以下简称 “WorkPac”）和Robert Rossato (以下简称“Rossato”)之间的雇佣关系进行展开。该公司派遣Rossato先生到Glencore公司名下两处位于昆士兰州的矿山工作。Rossato先生作为临时员工 （casual employee）工作的三年半期间，签订的是滚动合同（rolling contract）。作为一名临时员工，他在工资的基础上还获得了25%的额外报酬 - 这是为了弥补临时员工未能享有类似年假等福利的通常做法。 澳大利亚联邦法院全席法庭驳回 WorkPac 认为Rossato先生是临时员工的主张，判定他属于正式员工(permanent employee)。联邦法院基于以下理据，做出上述判决：Rossato先生的工作性质是 “定期(regular)、稳定(certain)、连续(continuing)、持续性(constant)” ，而且有事先被告知工作日程。 Rossato先生有资格享受根据《2009年公平工作法》(Fair Work Act 2009 Cth)和企业协议(Enterprise Agreement)中全国就业标准(National Employment Standards - NES)所规定正式员工应享有的福利，其中包括带薪年假，个人病假/照顾者假，丧病假及法定公共假日等。 这一判决对于雇佣临时员工的雇主，无论是通过直接雇用、外包劳务、转包等不同的雇佣途径，都是不能忽视的重要判决。对于该判决，联邦政府可能会采取干预措施或向最高法院提出上诉，但是在判决发生改变之前，雇主现在应该仔细审查与临时员工之间的雇佣安排，更新与临时员工的合同条款。雇主应重新考量与劳务派遣公司以及派遣员工之间的关系，特别需要注意以下三点: 雇主应该进行阶段性审查与临时员工的雇佣安排，并考虑与临时雇佣相比，兼职或固定期限等其他形式的雇佣关系是否更加合适。 如果临时雇佣关系仍然适用，雇主应该注意合同中是否单独列明临时员工会获得额外报酬，由于临时员工不享受全国就业标准（NES）以及正式员工的应享福利。我们建议雇主与临时员工签署一份声明，表明如果之后被认定为正式雇佣关系，雇主有权要求员工退还之前所获得的额外报酬。 我们建议雇主至少每年定期审查临时雇佣合同。以评估该合同下的雇佣关系是否会被认定为工作日程稳定并且持续的雇佣关系。 如果您认为WorkPac Pty Ltd v Rossato的判决结果，会对您公司现有员工的工作安排有所影响，或者在处理与员工之间的雇佣关系上需要专业的法律意见，请与我们联络。
24 Jun 2020
热烈祝贺H & H Lawyers Kenneth Hong，洪敬一律师入选专业职业领域“40 Under 40: 最具影响力的亚裔澳大利亚青年领袖人物“。 此项荣誉由墨尔本大学、澳大利亚国立大学、PwC（PricewaterhouseCoopers）联合举办的澳大利亚亚洲领导力峰会（Asian-Australian Leadership Summit，简称‘AALS’）颁发，旨在表彰澳大利亚亚裔青年领袖人物。 AALS峰会评审团队从包括文化与体育、非盈利与公共事业、公司与商业、教育、创业、科学与医疗、专业职业、政府机构的八个领域评选出40位最具影响力的亚裔澳大利亚青年领袖，庆祝新一代澳大利亚亚裔青年取得的成就，并扩大入选人的社会影响力，使他们出众的领导力广泛惠及大众。
17 Sep 2019
Thursday, 13 June 2019 – Rise of the boutique law firm Doing business with international partners – whether it be an entity operating on Australian soil or a local brand venturing offshore – can be fraught with difficulty. Between establishing a fresh customer base, navigating new laws, regulations and corporate governance, creating effective relationships and becoming nuanced with cultural mores (perhaps the trickiest of all), the business of doing business has the potential to bring an enterprise undone. For instance, exchanging a business card using one hand rather than two can be seen as a sign of disrespect in some cultures. Who would necessarily know? With Australians increasingly undertaking business across the world and with Asian powerhouses such as Japan, Korea and China, navigating the behind-the-scenes landscape, as well as providing direct services and advice, has become all important. Business owners and operators need to focus on what they do best, so employing people who specialise in troubleshooting make-or-break sensitive legal, technical and cultural matters is a vital and strategic move. Sydney’s H & H Lawyers offers this official and unofficial role in its capacity as a firm on the path to being Australia’s biggest ‘‘Asian’’ law firm. H & H Lawyers’ services include commercial and corporate advisory, acquisitions, dispute resolution, employment law, corporate migration and intellectual property. “Our bilingual lawyers have been inundated with work representing multinational corporations and government agencies from Japan, Korea and China that want to expand their businesses into Australia,” says Principal Ken Hong. “We have also been very busy acting for local clients with Japanese, Korean or Chinese backgrounds, or that have transactions with their counterparts in those three countries. “Demand for our services has escalated, so we are rapidly expanding to meet the demand.’’ Fellow Principal Yukio Hayashi says a vital aspect of the firm’s work includes “bridging fundamental cultural differences”. “This cross-cultural dexterity is not necessarily part of our brief, but it’s what we offer as well, as it is so essential,’’ he says. “Our team not only speaks the languages, but also intimately understands the cultural nuances of Asia. This saves our clients so much time in getting straight to the actual issues and resolutions. Without the right knowledge of culture, a lot of key messages can be lost in translation, particularly legal concepts, leading to a frustrating experience for all. “We had one situation recently in which there was an investment in an Australian business by a Japanese company. There were excellent managers and staff in situ, but the incoming management from Japan had their way of doing things that did not rest well with the Australian team, and vice versa.” “This friction was no one’s fault, but we made it our job to navigate the cultural minefield. We were able to get each side to see things from the other’s perspective and that made all the difference.” Hong and Hayashi say that by going this extra mile, the law firm can resolve difficulties and help international-facing businesses to thrive. “The importance of Australia’s trade relationships with Korea, China and Japan need no further explanation,’’ says Hong. “They are our top three trading partners. We look forward to continuing with our work and contributing to Australia’s successful trade relationships with those three countries.” Says Hayashi: “Our firm is well placed and equipped to help clients have a more fruitful, efficient and enjoyable experience in doing business.’’
13 Jun 2019
31 May 2019
In May 2016, The Federal Circuit Court has imposed a $272,850 penalty against a Sydney-based media company AIMG BQ Pty Ltd to send it a “serious message” not to disguise employment relationships as unpaid internships. The Court has handed down the penalty against the company following an investigation and legal action by the Fair Work Ombudsman. Judge Tom Altobelli also penalised company director $8,160 over his failure to comply with a Notice to Produce documents for Fair Work inspectors. Further, the Judge imposed a three-year injunction restraining the director from contravening workplace laws. AIMG BQ admitted in Court that it underpaid two event co-ordinators a total of $18,767 between October 2013 and June 2014. AIMG BQ required the student to do an ‘internship’ of 180 hours of productive work over a period of four months, with duties ranging from administration and office cleaning to event organising and magazine editing - before it started paying her wages. It was unlawful for the internship to be unpaid because the student was performing productive work that was not a formal part of her studies. After the internship period, AIMG BQ paid the student an unlawfully low flat rate of $50 a day, or just $6.56 an hour. In total, the student was underpaid $8,387. When is an internship legal? Internships and work experience placements are not unusual, and are an important experience for young people seeking exposure to the industries in which they wish to be employed. These arrangements are legal, and minimum wage requirements will not apply, as long as: the arrangement is a vocational placement required as part of an education or training course provided by an approved institution; or the person is not in an employment relationship with the host company. While each case will be different, whether an internship is actually an employment relationship will depend on a number of factors, including: whether the intern is doing productive work or just observing; how long the arrangement continues for; whether the work performed by the intern is similar to work performed by other paid employees; whether the work performed by the intern is work that the organisation needs to be done; whether the intern is required to come to the workplace for certain days and hours, as required by the organisation, or if they can nominate their own hours; and whether the intern is doing work that generates income for the organisation. Lessons for Employers Internships and unpaid work experience arrangements are a good way for employers to attract potential future hires and provide valuable industry exposure for young people. However, employers must take care to avoid creating an employment relationship. Employers should: ensure that any vocational placements are arranged through an approved institution such as a TAFE or University; limit the period of any unpaid internships to no more than a few weeks full time (or equivalent part time period); appropriately limit the kind of work that interns are permitted to perform – their tasks should be primarily of the “watch and learn” variety; and ensure that appropriate policies are in place detailing how interns should be treated. Generally, the unpaid work experience placement or internship is less likely to be classified as employment if they mainly benefit the intern, if the duration of the placement or experience is relatively short and if the intern is not expected or required to complete productive work. This particular case highlights the importance of using an intern agreement. As set out in this article, the consequences of getting it wrong can cause significant financial and reputational damage. H & H Lawyers can assist you with the classification of workers and the preparation of suitable documentation to mitigate any risks associated with engaging non-employee workers, including unpaid interns.
08 Feb 2019