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Law Institute of VIC

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Amanda Curatore

The FWC has decided on backpay obligations for enterprise agreements.

November 23, 2023

It isn’t uncommon for enterprise agreements to contain clauses that state pay rises apply from a specific date which may be before the time the agreement is approved by the Fair Work Commission (FWC) and formally commences operation. However, what isn’t common is retrospectively back-paying former employees who worked under the enterprise agreement but resigned before it commenced. However, following the recent case of Murtagh v Corporation of the Roman Catholic Diocese of Toowoomba [2023] FCAFC 172 the position has changed. The Full Court of the Federal Court found that two Catholic school teachers were entitled to pay raises contained in newly approved enterprise agreements, despite both teachers resigning from their employment before the enterprise agreements took effect. Here our experts explain the position as it was before this FWC decision was handed down, why businesses must get enterprise agreements right, and share the important lessons from this case. Explaining the position as it was before this FWC decision For example, an enterprise agreement may state that a pay increase applies from the first full pay period on or after 1 July 2023, despite the...
Amanda Curatore

Everything you need to know about the upcoming fixed and maximum-term contract changes.

November 17, 2023

“A better deal and a better future” was how the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Act), was marketed towards Australian workers, and since its passing in December 2022, has started the biggest industrial relations reforms we’ve seen since the introduction of the Fair Work Act 2009 (Cth) (FW Act) in 2009. Not only has this act introduced a raft of significant changes impacting workplaces across Australia, but it also introduced of tighter restrictions on the use of fixed-term and maximum-term contracts. And because these changes were announced almost a year ago and are only now about to become law, we’ve put together an in-depth guide on exactly what’s changing and what employers need to be aware of. Let’s get into it… So, what are the changes? A fixed-term employment contract specifies an end date for employment, whereas, a maximum-term contract also specifies an end date for employment, but allows the parties to terminate the contract before the specified end date. While fixed-term and maximum-term contracts allow employers the flexibility to engage staff on a needs basis, the Federal Government has criticised such use of...
Alexandra Sullivan

Make them an offer they can’t refuse: retaining staff with a great employee value proposition 

November 8, 2023

The great resignation, the great reshuffle, the big quit, the great reimagination, or the great realisation... These terms have been trending in the news since early 2021, and really, they all refer to the same thing: the increase in employees leaving their jobs en masse. As well as the financial impact of staff turnover on businesses, the Great Resignation has led to the unavoidable need for employers to reassess their employee engagement, and ultimately, their employee value proposition (EVP). With the great resignation still upon us, and the quiet quitters finding their way into our workplaces, there has never been a more important time to build a high-performance culture, increase staff retention, and learn how to attract the right staff.  Why? Because during the year ending February 2022, there were 13.4 million people employed in Australia, and of those 13.4 million:  1.3 million people (or 9.5 per cent of employed people) changed jobs – which was the highest rate of job mobility since 2012.  The share of job mobility remained highest for professionals, at 22 per cent of those who changed jobs.  2.1 million people left or lost a job; and  The annual...
Employee Assistance Programs: what are they and do I need one?

Employee Assistance Programs: what are they and do I need one?

October 20, 2023

Did you know that employers are obligated by law to provide a safe and healthy workplace for all employees? This obligation doesn’t just include physical health, it extends to mental health as well. In recent years, the focus has shifted to place employee mental health squarely in the spotlight as an important issue for employers to be across. This focus has concurrently inspired efforts to destigmatise mental health issues, especially in the workplace. Burnout, stress, and anxiety are just some of the mental health issues employees could be dealing with behind closed doors. So how can your business ensure it has the right support structures in place? Services such as an Employee Assistance Program (EAP) could make all the difference in combatting these kinds of psychological risks. In this article I deep dive into what an EAP is and why your business should consider adopting this service. What is an Employee Assistance Program (EAP)? An Employee Assistance Program (EAP) is a free work-based support program aimed at enhancing the emotional, mental, and psychological well-being of all employees. An EAP service allows employees to access external professional mental...
Rod Marshall

Independent’s day – the next chapter in independent contracting

October 6, 2023

In early 2022, the High Court handed down its decisions regarding Personnel Contracting and Jamsek. This decision attracted a significant amount of interest and provided some much-needed clarity in ensuring the primary importance of contractual terms in defining the scope and nature of a particular work-related engagement. However, contrary to some commentary that followed the decisions of the High Court, the old common law ‘multi-factorial’ test has not been totally disregarded, but the High Court has clarified and limited the circumstances in which it is to be applied. The detailed consideration provided in the respective decisions has been analysed and applied in Court and Tribunal decisions that followed through 2022 where, in certain factual scenarios, different outcomes have arisen in contested disputes over employee/contractor status as compared to what would otherwise have been determined prior to the High Court’s rulings. Further proposed legislative reform, as well as certain aspects of the recent Secure Jobs, Better Pay amendments to the Fair Work Act 2009 (Cth) (FW Act) may also see an increase in the prevalence of independent contracting...
Bianca Seeto

Seven years running: FCB receives Employer of Choice Award

September 15, 2023

FCB is delighted to announce that it has been acknowledged as an Employer of Choice in The Australian Business Awards 2023 for the seventh consecutive year. The Australian Business Award for Employer of Choice recognises organisations that develop and nurture workplaces that maximise the full potential of their workforce through established policies, practices, and processes that demonstrate effective employee recruitment, engagement, and retention. Campbell Fisher, Managing Director of FCB, said that receiving this Award is an honour and testament to FCB’s unwavering commitment to fostering a workplace culture that values and empowers its incredible team. “As a people-first business, we recognise that our employees and our values are the heart of our company – they are the driving force behind our innovation, growth, and success and we can’t do what we do without them. Our company was founded on the foundations of family – over 30 years ago my sister and I started FCB, and today our business has continued to thrive on these same values. “FCB is all about creating better workplaces for a better world – not only for our clients and their businesses but...
Are you an NDIS provider in NSW? Portable long service leave is about to affect you

Are you an NDIS provider in NSW? Portable long service leave is about to affect you

September 14, 2023

Are you an NDIS provider in NSW? There’s a good chance major changes to portable long service leave entitlements are about to affect you. It isn’t uncommon for workers in the community services sector to regularly change jobs and employers. And it’s for this reason that New South Wales employers in the community services sector, especially NDIS providers, have relied on their casual and contract-based workforce as reason enough to not concern themselves with long service leave. Plans revealed by the Minns Government may be set to alter how long service leave accrues for employees who work across different employers within the community services sector, by introducing a portable long service leave scheme in the state. Why and when is portable long service leave being introduced? Long service leave entitlements developed throughout the last century have been effective in retaining staff and incentivising loyalty. Portable long service leave schemes peculiar to each state have emerged over the last decade out of recognition that the precarious nature of certain industries and evolving methods of engaging workers have left them with no option to remain with one...
Campbell Fisher

I’m here to hear: R U OK?

September 14, 2023

Today is R U OK? Day, recognised nationally as part of the R U OK? initiative. R U OK?Day is recognised as a day of action where Australians are encouraged to ask, ‘are you OK?’ and start a meaningful conversation whenever they spot the signs that someone they care about might be struggling. In 2023, R U OK? is calling on all of us to let the people you care about know you're here, to really hear them.  In this article, we share the warning signs of poor mental health in the workplace and how employers can proactively promote and support employee wellbeing. Stop, look, and listen: what are the warning signs to look out for? We spend much of our lives at work, and employers may be in one of the best positions to recognise the early warning signs of poor mental health. Such signs vary from person to person, but may include: Increased absenteeism or tardiness. Looking tired and seeming stressed. Having trouble concentrating, making decisions, and managing multiple tasks. Being unusually emotional and getting frustrated with people. Avoiding social activities. Outbursts and mood swings. Increased isolation including sitting alone at lunchtime. Unable to accept negative...
Amanda Curatore

Federal Government tables the Fair Work Amendment (Closing Loopholes) Bill 2023

September 7, 2023

By Amanda Curatore & Nick Tindley With the introduction of the Secure Jobs Better Pay Bill and Respect@Work Bill in late 2022, you’d think any extensive industrial relations reform would be off the table – but think again – on 4 September 2023, the Federal Government tabled the Fair Work Amendment (Closing loopholes) Bill 2023 (Bill) into Parliament. And, in comparison to the recent law changes mentioned above, this proposed Bill is much larger and is set to have significant and substantial impacts on all workplaces across the country. In this article, we highlight the key proposed changes arising from the Bill and explain them in easy-to-understand language. Casual employment Change to casual definition The Bill proposes to replace the existing definition of ‘casual employee’ with a new definition that aligns with the approach adopted in the Full Federal Court decisions in Skene and Rossato.  While the current legislation, and the High Court decision in Rossato, provide that it’s the contract that determines the nature of the employment, the proposed amendments will require consideration of other matters. The proposed definition focuses on...