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Nick Tindley

Fairness in Franchising Report and Migrant Worker Taskforce – Looming Crackdown on Employee Exploitation

March 22, 2019

The Parliamentary Fairness in Franchising Report (Report) into the franchise sector delivered last week outlined a number of key recommendations all businesses should be aware of.  The Report found that underpayment of employee wages and entitlements occurred in many franchises and in response the Committee recommended that: …the Australian Government ‘amend the Franchising Code of Conduct to require, as part of mandatory disclosure, guidance on employment matters, especially Awards, minimum wages, and overseas workforce issues to be developed by the Fair Work Ombudsman’. The Report also made recommendations to address exploitation of some franchisees by franchisors by recommending higher penalties for breaches of the Franchising Code, increased powers of the ACCC and greater transparency in disclosure of franchise documents. It appears likely there will be significant change to franchising laws after the election. Additionally, on 7 March 2019 the Final Report of the Migrant Workers Taskforce (Taskforce) was released further highlighting the extent of the exploitation of Australia workers. Unsurprisingly, the Taskforce found worker...

Alex Kaufman

‘Aged Care Labour Agreement’ explained

March 13, 2019

Observers in the Aged Care space would have welcomed Immigration Minister Coleman’s announcement promising to give aged care providers access to Company Specific Labour Agreements (CSLA) in order to sponsor skilled carers from overseas. However, some keener observers might recall that Fronditha Care has already had successive Company Specific Labour Agreements allowing bilingual carers (with Greek backgrounds) to work in Australia, and with an option for permanent residence under the Employer Nomination Scheme (‘ENS’). So, if this mechanism has always been in place, what does the announcement actually mean for aged care providers? Further enquiries were made to the Minister’s media office, and we have since received confirmation from the Department that the following concessions should now be more readily available to aged care operators who are seeking a CSLA: a permanent residence pathway to an ENS visa, conditional on nominees having been employed for at least three years on a Temporary Skill Shortage (TSS) visa, an age concession allowing ENS visa nominees to be up to 55 years old, and/or a lower English language proficiency requirement...

Bianca Seeto

Being Mean Won’t Keep Them Keen: The Role of Psychological Safety in High-Performing Workplaces

February 27, 2019

Bianca Seeto, Partner and Solicitor of FCB Workplace Law and FCB’s Happiness Conductor, explores the benefits of psychologically safe workplaces and outlines some of the legal consequences for getting it wrong. I’ve always been a fan of the art of gentle persuasion, but now research shows that if we want to get the best from our employees, we need to ensure they feel safe. The old “Treat them mean, keep them keen” attitude doesn’t work in personal relationships (ask Matthew Hussey), nor does it work if you want a workplace brimming with long term growth and sustainability. But what does it mean to ‘feel safe’? Physical safety is easily understood, but just as important is for workers to feel safe to ask questions, be curious, and express an opinion. What is psychological safety? Amy Edmondson, a Harvard Business School professor, defines psychological safety “as a team climate characterised by interpersonal trust and mutual respect, in which people can learn and become their full contributing selves”. We’re taught from a young age that there’s no such thing as a stupid question, yet so many of us hesitate to ask that burning query in a group environment...

Bianca Seeto

Does 1 + 1 =Overtime? The Federal Court Says No

February 22, 2019

In the recent decision from the Federal Court of Australia Lacson v Australian Postal Corporation [2018] FCCA 511, the Court has confirmed that if an employee has two clearly distinct jobs with one employer, overtime or other penalty rates under an enterprise agreement are calculated separately on each job, not cumulatively on all hours worked for the one employer. Mr Lacson held two separate jobs with Australian Postal Corporation (Australia Post).  Mr Lacson’s first job was as a part-time employee as a Postal Delivery Officer (PDO) at the Collingwood Post Office.  In this role Mr Lacson’s duties consisted of sorting mail.  In his second job, he was employed in a part-time role as a Postal Services Officer (PSO) at the Melbourne Parcel Facility.  In this role Mr Lacson’s duties consisted of sorting parcels some of which was performed by driving a forklift.  Importantly, each role (i.e. the PDO and PSO roles) were classified separately and attracted different hourly rates under the relevant enterprise agreement.  Ultimately, the Court made a finding that Mr Lacson had two contracts of employment with Australia Post – one for each role. Mr Lacson performed...

FCB Workplace Law, Campbell Fisher, Rod Marshall & Matt Robinson recognised in Doyles Guide Legal Rankings for 2019

FCB Workplace Law, Campbell Fisher, Rod Marshall & Matt Robinson recognised in Doyles Guide Legal Rankings for 2019

February 21, 2019

We are delighted to announce that FCB Workplace Law was  listed as a third tier ‘Leading Employment Law Firm (Employer Representation)’ in Doyles Guide Legal Rankings for 2019. In addition, we are pleased to announce that Campbell Fisher (Managing Partner & Solicitor Director) and Rod Marshall (Partner) have been recommended as Leading Employment Lawyers for 2019. Matthew Robinson (Partner) has also been listed as a recommended Leading Workplace Health & Safety Lawyer in Doyles Guide Legal Rankings for 2019. For more information and access to the full list of Leading Employment Law Firms in NSW for 2019, please click here. For the full list of Leading Employment Lawyers in NSW for 2019, please click here. For the full list of Leading Workplace Health & Safety Lawyers  in NSW for 2019, please click here...

Alex Kaufman

The Royal Commission into the Aged Care sector – perspectives for sponsors of expatriate health and community care professionals

November 7, 2018

As most are aware, on Sunday, 16 September Prime Minister Scott Morrison announced the Government's decision to ask the Governor General to establish a Royal Commission into the Aged Care sector. The Royal Commission will primarily look at the quality of care provided in residential and home aged care to senior Australians, and young Australians with disabilities living in residential aged care settings. The demands for accountability in the Aged Care sector will properly focus on the welfare of staff and patients, and for many operators, it will mean time to take stock of their track record with regulators exercising powers under the Aged Care Act 1997. Adverse information A large number of operators in the Aged / Community Care sectors are reliant on supplementing their local workforce with skilled expatriate healthcare professionals. For most, this will mean access to the 457 (now ‘TSS’) programme, and the Employer Nomination Scheme. Users of employer-sponsored migration will have no doubt encountered the declaration relating to ‘Adverse Information’ in connection with those applications.  Unless ‘it is reasonable for the Minister to...

Nick Tindley

Are the days of enterprise bargaining numbered?

October 9, 2018

Australia’s top union official Sally McManus is calling on the Labor Government to back a radical reform to Australia’s Fair Work Act if it wins the next election. As part of the reform McManus is ramping up pressure for industry wide bargaining stating the “enterprise-only bargaining system is failing.” McManus outlined the ACTU’s plans to shake up the system and move away from enterprise bargaining toward industry-wide bargaining in a speech last week at John Curtin Research Centre. The union leader has argued Labor needs to move away from the “inefficiencies” of enterprise level bargaining and reinvent the industrial relations system to ensure employees “get a fair go”. McManus’ speech comes as the ACTU prepares for mass protest rallies across the country. This will begin with a rally of up to 150,000 workers in Melbourne on 23 October in what is described as Melbourne’s “largest” union rally. These protests are set to continue to build momentum for the upheaval of federal industrial relations laws in the lead up to the election. The union movement is reasserting itself and applying significant pressure to Labor to meet their demands if...

Campbell Fisher

Bianca Seeto has been shortlisted for the prestigious Women in Law Awards!

October 8, 2018

Bianca Seeto, Partner and Accredited Specialist at FCB Workplace Law, has been named a finalist for Mentor of the Year at the 2018 Women in Law Awards. In partnership with Taylor Root, the Lawyers Weekly Women in Law Awards covers 20 individual and group categories. Winners in the individual categories are automatically shortlisted for the coveted Women in Law Excellence Award. Lawyers Weekly editor Emma Ryan said the awards recognises female legal professionals who have demonstrated strength and excellence in their field, as well as highlights women’s contributions to their respective organisations and communities.“It is my honour to congratulate all of the finalists for this year’s Women in Law Awards,” Ms Ryan said. “Being a woman in the business of law isn’t always easy; however, these finalists represent all of those who have broken down the barriers, challenged the status quo and enhanced the practice of law in Australia for the better.” “They have gone to incredible lengths to demonstrate exceptional performance in their respective areas of expertise, as well as made an outstanding contribution to their organisations, clients and the...

Nick Tindley

Bargain Smarter, not Harder: Loaded Rates in Enterprise Agreements

August 15, 2018

A decision in June of the Full Bench of the Fair Work Commission (FWC) has confirmed the ground rules for the better off overall test (BOOT), and provided clarity as to when enterprise agreements with loaded wage rates can be approved.  With the impact of the decision now being felt in agreement approvals, we analyse that impact, and identify what employers seeking to implement loaded rates agreements need to be mindful of. Loaded rates of pay, whereby an employer offers or agrees to pay a higher base wage rate in substitution of penalty rates or other monetary benefits, have been widely adopted by employers through enterprise bargaining, particularly those in the retail, fast food and hospitality industries.  The justification for loaded rates is that the employees are better off overall, even if certain hours of work would result in the employees being paid lower than the hourly rate in the applicable modern award. However, in a decision handed down in late June this year, the Full Bench highlighted the uncertainty in bargaining for an enterprise agreement containing loaded rates, by emphasising the principle confirmed in Hart v Coles Supermarkets[1] in 2016: that to...