Workplace & Employment
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.
24 Jun 2020
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
Congratulations Ken on being recognised as a finalist in the Professions category at the “40 Under 40: Most Influential Asian-Australian Awards”. The Awards recognise the achievements of young Asian-Australian leaders in their fields. They are designed to celebrate the achievements of the next generation of Asian-Australians, making them more visible in the wider community and providing a stepping stone to further leadership opportunities.
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
Workplace & Employment
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.
08 Feb 2019