We provide clients with expert advice with respect to various aspects of workplace and employment law, such as offering general advice on legal obligations of employers and employees to representing clients for disputes including unfair dismissals and discrimination claims. Our expertise includes employment and consultancy agreements, enforcement of restraints, work health and safety and employee disputes and terminations.

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Kenneth Hong

Kenneth Hong

Principal

Yukio Hayashi

Yukio Hayashi

Principal

John Kim

John Kim

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Victoria Cha

Victoria Cha

Special Counsel

Daisuke Ueda

Daisuke Ueda

Associate

Gina Jung

Gina Jung

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Workplace & Employment

Casual vs Permanent

On 20 May 2020, the Full Court of the Federal Court of Australia handed down its decision in WorkPac Pty Ltd v Rossato. The case centres around labour hire firm WorkPac, which employed Robert Rossato as a mine worker at two Queensland mines owned by Glencore. Mr Rossato was a casual employee, on rolling contracts, over a three-and-a-half-year period. As a casual, he was paid an extra 25 percent loading on top of his wage — which is the usual practice to make up for not being given benefits such as annual leave. The Full Federal Court dismissed WorkPac’s application for a declaration that Mr Rossato was a casual employee, instead finding that Mr Rossato was a permanent employee. It was found that because Mr Rossato's employment was "regular, certain, continuing, constant and predictable", and he was given rostered shifts well in advance, he was eligible to entitlements that full time employees receive under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) and the relevant Enterprise Agreement: being paid annual leave, paid personal/carer’s leave, paid compassionate leave, and payment for public holidays. This is an important decision for employers who engage casuals, whether directly or as a host employer. Pending any intervention by the Federal Government or appeal to the High Court, employers should now carefully review their casual employment arrangements, update the terms of their casual contracts, and revisit their arrangements with labour hire companies and their workers.  In particular: • Employers should review their casual arrangements with a view to determining whether some other form of engagement is more appropriate – including part time and fixed term arrangements. • Assuming casual engagement is still appropriate, specific attention should be given to the employee’s written contract to ensure that the casual loading is a separately identifiable amount that is stated to be paid as a result of the employee not being entitled to NES or other entitlements peculiar to permanent employment. We also suggest a statement to the effect that if the employment is subsequently determined not to be casual employment, the employer is entitled to repayment of the casual loading. • Regular reviews of casual arrangements should be conducted – at least once every 12 months – to assess the likelihood of the employment being a “firm advance commitment” of employment. We can assist you if you have any questions about how the Workpac v Rossato decision may impact the work arrangements in your own organisation or more generally in relation to how you are employing or engaging your workforce.


Workplace & Employment

Needs for employment contract in writing

Q: Some mid-career employees have been working for 10 years without a formal employment contract. I've had no problem without an employment contract, but should I still have a written employment contract? (Male in his 40s working in the HR department of a Japanese company) A: Employment contracts do not necessarily have to be reduced in writing. Oral employment contracts have legal effect. Even if specific terms of employment contract have not been discussed, there is in principle an employment relationship if an employee actually works for an employer. It goes without saying that wages, working hours, annual leave and superannuation, etc. must meet the minimum labour standards set by law, even if no detailed employment conditions are negotiated. However, labour standards set by law are complex. Employers may inadvertently violate minimum labour standards if they do not ensure that minimum employment standards are well covered in the employment contract. Fair Work Ombudsman may impose a fine in case of violation of the standards. Also, even if employees are employed under conditions that exceed the minimum labour standards, it is necessary to confirm and reduce in writing that both parties understand the details of the terms. When an annual salary is presented (as opposed to hourly wages), there could be a disagreement between the parties about what their wage covers. For example, an employer may understand that the salary includes reasonable overtime work, while an employee understood that overtime works are billable separately. In this case, the employer is legally required to notify the employee in writing that the overtime payment is included in the salary. Another common issue is that in the absence of a contract, an uncertainty arises whether a notice is required to terminate an employment contract. Generally, if an employment contract states that a notice of dismissal should be given before certain weeks (except for unfair and illegal dismissal), an employee must be informed of the termination before that period. However, in the absence of a written agreement, the notice of termination must be a reasonable period. The reasonable period is determined case-by-case. If you hire a position that involves creativity, you need to make sure who owns the intellectual property that arises as your employees perform their duties. In addition, it will be disadvantageous for employers if an employment contract fails to incorporate confidentiality obligations and non-competition obligations after termination. Especially for mid-career employees or employees in senior management positions, if above terms are not stipulated in their employment contract, it can lead to major legal issues later. Though it may be difficult to ask an employee to sign an employment contract suddenly, it is recommended that a written employment contract is presented to employees at their promotion.


Workplace & Employment

Unpaid internship and Fair Work Ombudsman

In May 2016, The Federal Circuit Court imposed a $272,850 penalty against Sydney-based media company AIMG BQ Pty Ltd to send it a “serious message” not to disguise employment relationships as unpaid internships. The Court handed down the penalty against the company following an investigation and legal action by the Fair Work Ombudsman. Judge Tom Altobelli also penalised the company director $8,160 over his failure to comply with a Notice to Produce document 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.


Workplace & Employment

Workplace discrimination

Q: I heard abusive words and was harassed from my boss at work because I am Japanese. Can this be racial discrimination? A: There are many laws in Australia that prohibit discrimination based on race, gender, or physical or mental disability. Taking racial discrimination as an example, there is a non-discrimination law that applies at the state level in addition to the Racial Discrimination Act 1975 (Cth) that applies to the entire Australian Federal jurisdiction. In NSW, the Anti-Discrimination Act 1977 (NSW) applies. Most of all, the word "race" is a broadly defined concept. Under the NSW law, not only skin colour but also nationality, ethnicity and religion are included in the definition of "race". A question of whether or not there has been racial discrimination is determined by asking how the person who has acted against you would treat another person in the same situation. In the current case, for instance, if an Australian colleague in the same position as you was treated differently from you, it is likely that such conduct amounts to racial discrimination. There are three legal measures to deal with racism at work. First, an employee may submit a complaint to the state agencies. In NSW, the Anti-Discrimination Board (ADB) deals with such complaints. Second, lodging a complaint to the federal agencies such as the Australian Human Rights Commission (AHRC) would be an alternative. However, complaints to these agencies do not immediately initiate a legal proceeding. These institutions generally provide opportunities for the parties to discuss, such as through mediation. Negotiations on this occasion may result in apologies and reparations, and the dissemination of rules to prevent racism in the workplace as remedies. If the negotiation fails to lead to a settlement, you can bring a legal action before the court. Third, if racial discrimination occurs in the workplace, the aggrieved party may bring legal action. With regard to complaints under employment law, whether to bring a case to the Fair Work Commission or the Federal Court depends on the nature and consequences of the discrimination. It is important to note that you must file an action with the Fair Work Commission within three weeks of the day of dismissal


Workplace & Employment

Unfair dismissal - immediate termination

Q: I worked as a waiter at a restaurant for about two years. Yesterday, my employer suddenly said, "Did you steal cash from the cash register last night? Surveillance cameras caught you. You are fired. Get out now." I was fired without being given any opportunity to explain my situation. Is this an unfair dismissal? (waiter, 25-year-old male) A: In principle, if an employee commits a serious misconduct in connection with his or her job, the employer can dismiss the employee immediately without notice. However, it is sometimes difficult to determine what action would result in an immediate dismissal. Often issues arise when there is no evidence proving the serious misconduct, and for that reason, an employee sues for unfair dismissal. Such theft is a “serious misconduct” under the employment law, which can be justified as a reason for immediate dismissal. However, if the employee was falsely accused and fired unilaterally without being given the opportunity for clarification, this would likely be an unfair dismissal. In this case, the employer should show the CCTV footage to the employee, and give the employee the opportunity to explain his reasons. Once the theft is confirmed, then the employer needs to decide whether to terminate the employment contract. Furthermore, "serious misconduct" includes not only theft and embezzlement, but also fraud, violence in the workplace, drunkenness, use of illegal drugs, violation of work regulations, conduct that threatens the safety of the workplace and that significantly impair the productivity and reputation of the company. An example of a case of serious misconduct would be one in which an employee sends emails with abusive words to their colleagues and business partners. However, if your company is a “small business” with fewer than 15 employees, Australian employment law provides a provision that will make it easier to terminate employment contracts including the immediate dismissal of an employee due to a serious misconduct. It is presumed that for a small business, a serious misconduct has been committed if there is sufficient suspicion of illegal conduct. In one case there was a discussion over whether an employer sufficiently investigated the serious misconduct and whether the employee was given a reasonable opportunity to explain his situation. In that case, the court held that it was not an unfair dismissal on the grounds that a small business was not required to investigate an employee’s conduct as a big company would be. Moreover, in cases in which an employee was dismissed due to excessive use of illegal drugs outside of working hours, despite such dismissal being normally unfair, the dismissal was justified because of the employer’s small business status. In the current case, if the restaurant is a small business and the surveillance camera footage satisfies “sufficient suspicion”, it is likely that an immediate dismissal would be justified.


Workplace & Employment

Are You At Risk of Sham Contracting?

Online food delivery competitor Foodora has been accused of sham contracting its own employees and now faces legal action launched by Australia’s Fair Work Ombudsman. As business opportunities increase in Australia, more employers turn to flexible and intuitive ways to cut costs and maximise profits, which can sometimes lead to cutting corners and the underpayment of employees. It is important for an employer to enter into valid employment contracts with its employees, as it will assist them in avoiding the risk of being accused of sham contracting. What is Sham Contracting?Sham contracting is an illegal method of employment under section 357 of the Fair Work Act 2009 (Cth), in which the employer misrepresents the employee as an independent contractor. Any employer that makes such misrepresentation of the employment relationship is liable for penalties under that Act. Penalties for sham contracting include sanctions made against the employer and financial penalties up to $54,000.00 for each contravention. Sham contracting is typically instituted by an employer for their own benefit as it allows an employer to avoid being responsible for an employee, or to avoid paying an employee their entitlements (such as superannuation, worker’s compensation and leave). More likely than not, a sham contract is entered into by an employer either knowingly to avoid their employer obligations or because of an employer’s recklessness in considering whether or not the individual was an employee. One recent example of potential sham contracting is by the online food delivery business Foodora. Online food delivery businesses are expanding worldwide, giving consumers a quick and efficient food experience. The concept of having all types of food delivered to you wherever you are is a great idea and will only keep developing, but a non-traditional approach to staffing has left these types of businesses subject to legal action brought against them for sham contracting. If an employer is not careful they can be liable for serious penalties and so it is important that an employer abides by their employment obligations and responsibilities. The differences between an employee and independent contractor?Before entering into any employment contract it is critical for both the employer and employee to understand the difference between an employee and an independent contractor. The main factor that differentiates between the two is the control that the individual has over their work responsibilities and obligations. The characteristics of an employee are: Any employee working for an employer receives at least minimum entitlements – paid leave, long service leave, worker’s compensation, superannuation. An employee is not responsible for paying for their own tax, an employer will deduct the income tax from an employee’s wage/salary. An employee typically only works for one business. An employee has no control over what type of work is to be completed as it is controlled by the employer. An employee works according to standard or set hours.  The characteristics of an independent contractor are: A contractor is essentially their own employer. A contractor controls how work is to be completed and how long the work will take to complete. Contractors are not restricted to one business but are able to work for multiple businesses/people. Contractors do not have set hours of work, instead they agree on how many hours it takes to complete a job. Contractors have high responsibility and liability for their work or injury and need to have their own insurance cover.     Contractors are responsible for filing their own tax and GST. A contractor has an Australian Business Number (ABN) and submits invoices. Unlike employees, contractors receive no entitlements and pay for their own superannuation.   Actions to take as an employer to minimise riskAs an employer, it would be prudent to review all existing contractual arrangements to ensure that you have not unknowingly misrepresented your employee as a contractor. It is important when hiring an employee that you confirm with them the details of the work and type of work that is required of them throughout their employment contract so that there is no confusion about the employment relationship. You will also need to be aware and up to date with any entitlements and payments that you owe the employee.