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Benjamin Gee

The latest underpayment scandal: Woolworths

October 31, 2019

On 30 October 2019, Woolworths voluntarily disclosed it had identified 5700 current staff, all paid an annual salary, who had been underpaid, with an unknown number of former employees also impacted. The final underpayment is, at this time, anticipated to be between $200-$300M. While the FCB Group is not involved in this matter, from public reports it appears the underpayments occurred because the annual salaries paid by Woolworths to these employees over multiple years were lower than the minimum rates of pay and penalties payable for their work under the relevant Award. This latest announcement follows other significant underpayment admissions by large employers including the Commonwealth Bank, the ABC and Qantas (among others). The Fair Work Ombudsman has issued a strongly worded response to Woolworths, announcing their own investigation and mentioning Court action as a possible outcome. The FWO has also issued a general warning to Company Boards that enforceable undertakings and litigation will be considered for breaches of workplace laws. This latest announcement comes at a time when the penalties for non-compliance have been significantly increased, a...

Matthew Robinson

Stupid Comes in Every Flavour

September 30, 2019

THESE STUPID EVENTS ACTUALLY HAPPENED. THE STUPID PEOPLE ARE REAL. WE’VE CHANGED THEIR NAMES AND DETAILS TO AVOID ASSAULTING YOU WITH THE IDENTITIES OF THE IGNORANT. YOU HAVE BEEN WARNED. In the FCB professional services business, we regularly help our clients wade through the dank swamps of scandal created by some of their staff. We wade with them, of course, but get to wear the giant pair of rubber waders supplied by experience. Some of the HR problems from which we extract our clients resemble an existential prize-fight between incredulity and hilarity, making our job incredibly rewarding. We’re all human and make mistakes, of course; however, some people’s fall from grace isn’t exactly graceful, more of a frantic windmilling of arms and legs as they plunge from the 10m tower trailed by the echoes of their own screams. We hope that you enjoy this ensemble of anecdotes illuminating the legal life here at FCB. ‘Tis the season to be jolly-well stupid November and December bring the usual series of calls about the ridiculous things people get up to at Christmas parties. Workplace frustrations that have been bubbling away in a shiny pot of resentment and desire boil over...

Matthew Robinson

Litigation or mediation?

September 24, 2019

When a dispute arises, it’s far too common for parties to “lawyer up” before they’ve looked at the dispute from multiple angles and figured out the right way to resolve it. It’s no secret that litigation is time consuming, emotionally wearing and costly. The costs associated with going to court will likely be disproportionate to the nature, size, significance, and value of the claim to be resolved. The first step to resolving your dispute is to pair your problem with the right dispute resolution technique, whether that’s still litigation, or an alternative such as counselling, facilitation, conciliation, or mediation. Mediation Mediation is a form of alternative dispute resolution (“ADR”) that aims to see parties compromise and resolve their differences without going to court. Those involved in a mediation will typically engage a third party, who is adequately qualified, to help them resolve the issue. Mediation is especially successful if used in the early stages of a dispute, and if the parties attending mediation have every intention of reaching a settlement. Mediation has some advantages over litigation: Parties are directly involved in...

Matthew Robinson

It’s been a privilege: The dos and don’ts of legal professional privilege

September 12, 2019

What is ‘legal professional privilege’? When you last corresponded with your lawyer, did you notice that their emails or letters are often headed with the words “subject to legal privilege”, or similar? Ever wondered what it meant, or what burden it put on you to ensure the contents stayed privileged? Legal professional privilege, also known as client legal privilege, is a mechanism designed to protect certain communications from disclosure so as to encourage the free exchange of communication between a client and their lawyer. When a document is protected by legal professional privilege, the document can’t be obtained or viewed by any other person, even if you, your business or your lawyer is the subject of a subpoena. Without privilege, you would have to hand the document over even if it was to your detriment: for example, a report confirming that you had underpaid your staff or engaged in discrimination. To attract privilege, a communication must be between a client and their lawyer (and third parties in some limited circumstances), be confidential, and be made either for the dominant purpose of obtaining or providing legal advice, or for use in anticipated or...

Benjamin Gee

Working Class.. Independent Contractor

August 13, 2019

When, in 1985, Jimmy Barnes immortalised the Australian steeltown disciple, blue denim in his veins, a ‘working class man’, he sure wasn’t singing about a bike-riding, point-to-point self-employed food delivery technician. Two years ago,1 I wrote about the emergence of the gig worker in the Australian labour market. Since then, here at FCB Workplace Law, we’ve been following the developments in business practice and case law in Australia that examine non-standard employment, including workers in the gig economy. Throughout 2018, we saw a noticeable increase in the conversation about this emerging segment of the labour market in the tribunals, political parties and amongst our clients, along with several notable decisions by the Fair Work Commission. Here are some of them… Can you fire your driver? In December 2017, the Fair Work Commission (FWC) dismissed an unfair dismissal application by an Uber driver.2 After examining the nature of the relationship and communications between the driver and Uber, and the terms of the written agreement between them (which expressly identified the driver as an independent contractor), the FWC dismissed the unfair...

Campbell Fisher

FCB Group recognised as an Employer of Choice in The Australian Business Awards 2019

August 2, 2019

FCB Group has been recognised as an Employer of Choice (EOC) in The Australian Business Awards 2019. Now in their fourteenth year, The Australian Business Awards are an annual all-encompassing awards program which recognises organisations that demonstrate the core values of business innovation, product innovation, technological achievement and employee engagement via a set of comprehensive award categories. The EOC accolade recognises organisations which have developed workplaces that maximise the full potential of their workforce through practices that demonstrate effective employee recruitment, engagement and retention. The Australian Business Awards program provides notable opportunities for high-performing organisations to be acknowledged and honoured for their achievements both nationally and internationally. The Employer of Choice Award recipients will participate in the international chapter of the program at the World Business Awards whereby participants are provided with the unique opportunity to benchmark themselves against the top performers globally. The Employer of Choice Framework (EOC Framework) is utilised as a...

Wes O'Donnell

High Profile Underpayment Issues Trigger Criminal Penalties

July 29, 2019

The Coalition Government has recently announced that it will seek to criminalise non-compliant and unethical employer conduct. This has arisen in the wake of the recent George Calombaris underpayment scandal and can be seen as an extension of the Government’s general policy position towards the protection of vulnerable workers and further strengthening the audit and compliance tools available to the Fair Work Ombudsman (FWO) and Courts. This announcement also serves as a timely reminder for employers, particularly those who engage vulnerable workers or pay minimum Award entitlements, to ensure that they are completely compliant with all terms, conditions and obligations of employment as recent experience indicates that ignorance will no longer we tolerated as a defence, and the public at large will expect significantly increased penalties and enforcement action as a result of any identified non-compliant practice. Current Legislation In response to the exploitation of vulnerable workers, there has already been the introduction of a higher scale of penalties for serious contraventions. This includes a tenfold increase in the maximum penalty for serious...

Rod Marshall

WHS and The Professional Athlete: The Final Frontier for Workplace Regulation 

July 2, 2019

When the Field of Play is a legal minefield, you face some tough opposition when it comes to reducing your legal liability. If you want to win the game, or at least survive, it pays to know your WHS. Professional Sport and the Workplace In States where the model Work Health and Safety (WHS) laws are in place any “person conducting a business or undertaking” (PCBU) owes a duty to ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by them, or whose work activities they influence or direct. The duty captures sporting clubs that employ athletes, as well as the governing bodies that manage and oversee the competitions in which those clubs compete (eg. Rugby AU, NRL, Cricket Australia etc.). The model WHS laws also impose a duty on the “officers” in control of PBCU’s to exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. While model WHS laws require PCBU’s to take all reasonable steps to ensure the health and safety of all workers, including professional players, they don’t go as far as to require PBCU’s to ensure that workplace injuries...

Campbell Fisher

Fair Work Ombudsman Targets the Fast Food, Restaurant and Café Industries

June 4, 2019

On Monday, 3 June 209 the Fair Work Ombudsman, Ms Sandra Parker, announced FWO’s priorities for 2019 – 2020, altering the agency’s public image from mediator to regulator.  Law enforcement and adherence to Australian industrial relations laws are the top priorities, with a strong focus on targeting “priority industries” which include the Fast Food, Restaurant and Café industries, and Franchisors. The FWO intends to enforce industrial laws by issuing compliance notices, and also announced that if these notices are not complied with, the FWO won’t be shy in seeking monetary penalties through the Court system. In its stronger approach to enforcement, the FWO stated that it will use its powers to publicly name (and thus shame) employers who are not complying with their obligations to employees. Going forward, the FWO made it clear that if an organisation is found to have underpaid its employees – regardless of whether or not it self-reported the underpayments – it will require the organisation to provide the FWO with an enforceable undertaking.  Effectively, this means that an organisation will be required to provide the FWO with a written assurance...