Pendlebury
workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Largest ever Court Imposed Fine for Breaching 457 Visa Sponsorship Obligations

Five weeks after ordering Darwin-based Choong Enterprises to pay the largest-ever court-imposed fine for breaching 457 visa sponsorship obligations, the Federal Court has directed the Company to backpay 7 of the Filipino workers involved, totalling more than $100,000. Justice Mansfield found in April 2015 that Choong Enterprises Pty Ltd (which operates a number of fast food […]

Brooke Pendlebury
Sunday, June 21, 2015
Entitlements, News, Workplace Investigations


Fair Work Commission – “bullying” was reasonable management action and rejected a long-serving employee’s bullying claim.

The Fair Work Commission said, “bullying” was reasonable management action, and has rejected a long-serving employee’s bullying claim.  The Commission accepted that the employer, Salvation Army Employment Plus, took reasonable management action when it performance-managed its employee after she resisted changes to workplace practices. Commissioner Lee in a ruling issued 4 June 2015 said the issues raised by the Salvation […]

Brooke Pendlebury
Friday, June 12, 2015
Dismissal, Harassment at Work, News, Workplace Investigations, Workplace Safety


The Fair Work Commission has knocked back a ‘trust and confidence’ submission made by an employer.

The Fair Work Commission has knocked back a ‘trust and confidence’ submission made by an employer. The Fair Work Commission reinstated a portable toilet delivery driver who’s employment was terminated with Coates Hire Operations Pty Limited for a safety breach.  The Commission rejected the employer’s claims that the delivery driver should not be returned to the job because it no […]

Brooke Pendlebury
Saturday, June 6, 2015
Dismissal, News, Workplace Safety


Get ready for 2.5% wage increase – Fair Work Commission

The Fair Work Commission has announced a 2.5% increase to minimum wages.  The increase will apply from the first full pay period starting on or after 1 July 2015. The increase only applies to employees that get their pay rates from the national minimum wage, a modern award or in some cases a registered agreement. […]

Brooke Pendlebury
Wednesday, June 3, 2015
News


Coles Supermarkets set to deliver 3% annual pay increases nationally in enterprise agreement

For the first time, Coles Supermarkets has included all non-salaried employees in its new national enterprise agreement, which will deliver 3% annual pay increases to more than 75,000 workers. SDA national secretary Gerard Dwyer has said the union is “very pleased” with the agreement, particularly as it provides significant wage increases for 18- and 19-year-old employees.  Dwyer said […]

Brooke Pendlebury
Saturday, May 23, 2015
News


Age discrimination in the workplace – 2015

What Employers Can Do: The first step toward avoiding age discrimination in the workplace is to understand exactly what it is, and identify potential problems within your organisation or company. You can take action now to reduce or eliminate such discrimination. Some effective strategies include an appraisal of your organisation’s culture, preventive training, revision of […]

Brooke Pendlebury
Thursday, May 21, 2015
News


Age discrimination in the workplace – 2015

A national survey by the Human Rights Commission has found that 1/3 of older job seekers abandoned their efforts after they experienced age discrimination. The first national survey to assess the working experience of older Australians found that 1/4 of Australians aged 50 + years have experienced some form of discrimination in the last 2 […]

Brooke Pendlebury
Sunday, May 10, 2015
News


Unreasonable for an employer to direct workers to attend a compulsory health assessment

The Fair Work Commission has ruled that it is unreasonable for an employer to direct workers to attend a compulsory health assessment aimed at addressing high injury levels in the absence of first establishing genuine need. Cement Australia Pty Ltd introduced a compulsory physical risk review program in 2013 as part of its response to […]

Brooke Pendlebury
Friday, May 8, 2015
News, Workplace Safety


Duty of care, bullying and harassment, and unfair dismissal: Court decision

It was held that Curtin University did not breach a lecturer’s employment contract or its duty of care by failing to make progress with complaints he lodged against his superiors under the University’s grievance policy. The lecturer activated Curtin University of Technology’s Grievance Policy in May 2002 when he made a formal complaint that he […]

Brooke Pendlebury
Wednesday, May 6, 2015
Dismissal, Harassment at Work, News


Redundancy and Offers of Alternative Employment: Fair Work Commission decision

A recent decision of the Fair Work Commission may be of some assistance to your business when considering redundancies and offers of alternative employment. On 27 February 2015, the Fair Work Commission awarded full redundancy pay to a general manager who lost his position after his company acquired another, with a ruling that an offer of […]

Brooke Pendlebury

Dismissal, News


What is a Reasonable & Lawful Direction? Fair Work Commission Recent decision

The Fair Work Commission has upheld the dismissal of a BHP Billiton underground mineworker sacked after repeatedly refusing to shave off his beard for the purposes of  ensuring his respirator operated effectively. Commissioner Hampton found the company’s instructions to the uranium mine employee at Olympic Dam to comply with its Clean-Shaven Policy were lawful and […]

Brooke Pendlebury

Dismissal, News


Job Application Form Discriminatory

Woolworths were found to have discriminated against online job applicants by requiring them to provide their gender, date of birth and proof of their right to work in Australia, as ruled by the Queensland Civil and Administrative Tribunal. The Tribunal said the requirement to provide the information breached the state’s Anti-Discrimination Act, and that Woolworths could […]

Brooke Pendlebury
Monday, December 29, 2014
Casual Employment, General Protection Claims, News


Changes to Penalty Rates – more than 100 hearing days

The employer bid to change penalty rates is shaping as a massive case in the Fair Work Commission that will run until late next year, with almost 200 witnesses to be called over  The Fair Work Commission’s President, Justice Iain Ross, outlined the scale of the case, and set out the timetable for hearings by […]

Brooke Pendlebury

Casual Employment, Entitlements, News


Message to the hair and beauty industry from Judge – “it does not pay to underpay workers”

A long history of employee complaints and the need to send a strong message to the hair and beauty industry that “it does not pay to underpay workers” has led to a hairdressing chain being fined $70,000 for short-changing an apprentice more than $8,000. Federal Circuit Court Justice Riley said significant penalties were required to […]

Brooke Pendlebury
Sunday, November 2, 2014
News


Recent decisions of Federal Court Circuit re underpayment claims from employees – liability of the directors

The following two cases are recent decisions of the Federal Court Circuit in relation to underpayment claims from employees.  You may find these interesting, especially with respect to the liability of the directors. Scotto -v– Scala Bros Pty Ltd & Anor [2014] FCCA 2374 (17 October 2014) The Federal Circuit Court has found that a […]

Brooke Pendlebury

Entitlements, News


Redundancy and Other Acceptable Alternative Employment – Is Redundancy Payable?

A recent case before the Fair Work Commission dealt with the issue of redundancy and suitable alternative employment. In Szanto v ISS Facility Services Pty Ltd the Commission clarified the application of sections 119 and 120 of the Fair Work Act 2009 (the Act) in deciding whether a redundancy payment must be made. The Act Section 119 of the […]

Brooke Pendlebury
Thursday, October 16, 2014
Dismissal, Entitlements


Implied Term of Mutual Trust & Confidence – Commonwealth Bank of Australia v Barker [2014] HCA 32 (10 September 2014)

The High Court has decisively determined that the Australian common law does not imply a term of mutual trust and confidence into employment contracts. The High Court’s decision overturns the previous decision of the majority of the Full Federal Court, which had found that the Commonwealth Bank was in breach of the implied term when […]

Brooke Pendlebury
Sunday, September 14, 2014
News


Penalty Rate form part of the Modern Award Review

Penalty Rate form part of the Modern Award Review The Fair Work Commission full bench is conducting the four-year review of modern awards, and shall consider any possible changes to penalty rates towards the end of the process. The tribunal, in a statement this week, said that awards where penalty rates might be a “contested […]

Brooke Pendlebury
Wednesday, August 20, 2014
Entitlements, News


Australian Privacy Principles (APPs) Guidelines APP1 and APP5

Since the introduction of the new Australian Privacy Principles (APPs), there has been speculation as to which sector might be the first to have their privacy practices assessed by the Privacy Commissioner. Industries such as sport, health, and the banking industry were each considered likely suspects for a test-case of the new requirements. The Office […]

Brooke Pendlebury

News


Superannuation Guarantee rate increases to 9.5%,

From 1 July 2014, the Superannuation Guarantee rate increases to 9.5%, from the 9.25% that currently applies. Superannuation Guarantee (SG) is the official term for compulsory superannuation contributions made by employers on behalf of their employees.  An employer, regardless of whether they are a small or large business, must contribute the equivalent of 9.5% of an employee’s […]

Brooke Pendlebury
Sunday, July 6, 2014
Entitlements, News


High Income Threshold Rises to $133,000

High Income Threshold Rises to $133,000 The Fair Work Commission has increased the High Income Threshold to $133,000 effective 1 July 2014. The high income threshold affects how modern awards apply to employees and affects their ability to access unfair dismissal. The high income threshold affects 3 main entitlements: Employees who earn more than the […]

Brooke Pendlebury

Dismissal, General Protection Claims, News


Court frowns on rewarding workers with Coke and pizza – and issues penalties

Court frowns on rewarding workers with Coke and pizza – and issues penalties Giving teenage employees free and discounted pizzas and soft drink instead of wages has been frowned on by the Federal Circuit Court as a practice belonging “in the dark ages rather than twenty first century Australia,” and has cost a pizza franchise, […]

Brooke Pendlebury
Wednesday, June 11, 2014
News


General Protection Claim – Myer proves dismissal NOT linked to workplace right or to gender

General Protection Claim – Myer proves dismissal NOT linked to workplace right or to gender In the decision of Vukovic v Myer Pty Ltd [2014] FCCA 985 (2 June 2014), a Myer sales manager, Vukovic, who did not disclose he had an anxiety condition to his employer, or make any plan to seek workers compensation, has failed to argue […]

Brooke Pendlebury

Dismissal, General Protection Claims, News


Fair Work Act’s General Protections provisions covered a WIDE range of employment complaints

Workplace Update – Fair Work Act’s General Protections provisions covered a WIDE range of employment complaints In May, the Federal Court ruled that the Fair Work Act’s general protections provisions covered a wide range of employment complaints. However, it found that these were not the reason for a client services manager’s dismissal in the case […]

Brooke Pendlebury

Dismissal, General Protection Claims, News


Federal Court Decision on Labour Hire Sham Contracting Arrangement – Avoiding Employer Obligations

The Federal Court has found that shifting seasonal workers to a new employer after they had worked 40 hours a week constituted a “sham” contracting arrangement with the purpose of avoiding paying overtime. Her Honour, Justice Collier held that a Queensland fruit farm owned by a family trust was in fact the employer of the workers for the […]

Brooke Pendlebury

Entitlements, News


Anti Bullying Provisions

From 1 January 2014, amendments were made to the Fair Work Act 2009 which allow a worker, who believes that they have been bullied at work, to apply to the FWC for an Order to Stop the Bullying. This provision is not limited to employees, but extends to: –                contractors, –                labour hire personnel and –                […]

Brooke Pendlebury
Thursday, March 27, 2014
News


Changes to Queensland Workers Compensation Legislation – What this means for you!

Following the release in May 2013 of the report of the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme, the Workers Compensation Rehabilitation & Other Legislation Amendment Bill 2013 was passed on 17 October 2013. Significant changes were made to the Queensland Workers’ Compensation and Rehabilitation Act 2003 (‘the Act‘).  The Act was assented […]

Brooke Pendlebury
Wednesday, March 12, 2014
News, Workplace Safety


Recent Case in Federal Circuit Court Confirms Calculation of Reasonable Notice where no Written Contract

Miller v Sunland Park Pty Ltd [2014] FCCA 89 (31 January 2014)  The Federal Circuit Court has awarded a general manager six (6) months’ pay upon finding no justification for his summary dismissal over personal spending on his company credit card.  Sunland Park Pty Ltd (the Company) engaged the general manager on an oral contract […]

Brooke Pendlebury
Wednesday, February 12, 2014
News


Implied mutual term of trust and confidence – Commonwealth Bank v Barker

There is now an implied mutual term of trust and confidence in about 9 million Australian employment contracts, according to Victorian barrister, Mark Irving, who appeared for the ACTU in the Federal Court case that confirmed the term’s existence.  In a paper on the Commonwealth Bank v Barker decision, Mark Irving presented to a seminar hosted by the […]

Brooke Pendlebury
Sunday, November 3, 2013
News


Superannuation and Termination Payments in NSW

Superannuation Guarantee contributions are payable on the payment in lieu of notice amount, and is directed into the employee’s superannuation fund. Superannuation is not paid in relation to the following termination payments: accrued annual leave,  redundancy pay, other payments made on termination of employment.

Brooke Pendlebury
Friday, October 25, 2013
News


The Fair Work Commission Upholds the Dismissal of an Employee who refused to Provide a Urine Sample for a Drug Test

A Fair Work Commission (“FWC”) full bench, in Raymond Briggs –v- AWH Pty Ltd [2013] FWCFB 3316 (5 June 2013), has upheld the dismissal of an employee who refused to provide a urine sample for a random drug and alcohol test because he argued that a saliva sample, for which he was willing to provide, was more […]

Brooke Pendlebury

News


Directors and Managers Liable under Work Health Safety Legislation NSW

In New South Wales, directors and managers have onerous obligations and personal liability under work, health and safety laws. In New South Wales the obligation of an employer is to ensure the safety of the work environment.  In fact, individuals who are concerned in the management of the corporation, managers, officers or directors of corporate bodies are personally liable […]

Brooke Pendlebury
Friday, October 18, 2013
News


Consultation regarding Changes to Roster and / or Ordinary Hours of Work

  Consultation regarding Changes to Roster and / or Ordinary Hours of Work Recent amendments to the Fair Work Act 2009 (Cth) (“the Act”) provide increased protections for employees, who will be entitled to the benefit of greater consultation in relation to proposed changes to their rosters and hours of work from 1 January 2014.   […]

Brooke Pendlebury
Sunday, October 6, 2013
News


Summary of Recent Changes to the Fair Work Act 2009 (Cth)

  Summary  of Changes to the Fair Work Act 2009 (Cth)   Amendments to the Fair Work Act 2009 (Cth) by way of the Fair Work Act Amendment Act 2013 came into effect either on 1 July 2013, or shall come into effect from 1 January 2014. Significant changes that employers need to be aware of include; […]

Brooke Pendlebury

News


Independent Contractors or Employees?

Welcome news regarding independent contractors… New Small Business Minister Bruce Billson has engaged in discussions with Treasury officials on sticking “to the letter of the law” in determining whether someone is an independent contractor or employee, and intends to hold similar discussions with other agencies and departments. The Coalition sees the former Labor government as […]

Brooke Pendlebury
Friday, September 27, 2013
News


Court confirms implied term of ‘confidence and trust’ as part of Australian law

A significant decision was handed down on Tuesday, 6 August 2013, by the full court of the Federal Court, on Australian employment contract law: Commonwealth Bank of Australia –v- Barker [2013] FCAFC 83 (6 August 2013) The Full Court has found that the Commonwealth Bank breached an implied term of ‘confidence and trust’ when it failed […]

Brooke Pendlebury
Thursday, August 8, 2013
Dismissal, News


Employer Liable Vicariously for Sexual Harassment of Employee

The Queensland Civil and Administrative Tribunal has found a Gold Coast resort vicariously liable for the sexual harassment of a female employee, further, that its mishandling of her complaint contributed to a psychiatric injury. [McCauley –v- Club Resort Holdings Pty Ltd (no 2) [2013] QCAR 243 (13 May 2013). The Tribunal Member, Jeremy Gordon, found Club […]

Brooke Pendlebury
Thursday, July 25, 2013
Harassment at Work, News, Workplace Investigations, Workplace Safety


Employer unreasonably refused request to work part-time

The Fair Work Commission, in finding that an employer constructively dismissed a female employee when it unreasonably refused her request to work part-time after the birth of her second child, has emphasised that women have the right to “give birth to children without foreclosing their employment.” Hanina Rind –v- Australian Institute of Superannuation Trustees [2013] FWC […]

Brooke Pendlebury
Saturday, July 20, 2013
Dismissal, News


Not given an opportunity to respond to the allegations against you leads to unfair dismissal

A full bench of the Fair Work Commission has reversed a decision that a boilermaker was fairly dismissed for using an unsafe method to cut a steel plate (The boilermaker had suspended the steel plate from a crane, rather than laying it out horizontally, in order to cut it). The full bench found that he […]

Brooke Pendlebury

Dismissal, News, Workplace Safety


Redundancy – Is the Position Redundant or Not?

What’s redundancy? Redundancy under the National Employment Standard happens when an employer either: decides they no longer want an employee’s job to be done by anyone and terminates their employment (except in cases of ordinary and customary turnover of labour), or becomes insolvent or bankrupt. Note: What constitutes ordinary and customary turnover of labour will […]

Brooke Pendlebury
Friday, June 21, 2013
News


Superannuation Changes 1 July 2013

Annual increases to superannuation guarantee contribution rates commence from 1 July 2013. Effective 1 July 2013 the rate rises to 9.25%, and shall continue to rise until 1 July 2019, when the rate will have risen to 12%.  Please see the table below, for your reference: Financial year SGC rate Current year 2012 – 2013 […]

Brooke Pendlebury
Thursday, June 20, 2013
Entitlements, News


Workplace Bullying – remove it from its current legal and cultural designation as an OHS issue

National law firm principal, Josh Bornstein, says criminalising workplace bullying will not work, and Fair Work Australia should be given a new early intervention role to prevent cases reaching the point of irreversible damage. In a presentation at a Legalwise seminar in Melbourne last week, Mr. Bornstein addressed “myths” perpetrated about workplace bullying, including that […]

Brooke Pendlebury
Tuesday, September 11, 2012
Harassment at Work, News, Workplace Safety


Managerial Duties were not an “add-on” and the Award does not Apply – FWA Full Bench say in Unfair Dismissal Claim Appeal

Manager fails in arguing his managerial duties were simply an ‘add-on’ to his technical responsibilities, before FWA. A consultant, who became a manager, for a consulting firm, Thomas Duryea Consulting Pty Ltd, has failed to successfully appeal against a FWA decision of Senior Deputy President Drake, that his managerial duties excluded him from the unfair […]

Brooke Pendlebury
Monday, September 3, 2012
Dismissal, News


Costs Awarded Against Applicant in Sexual Harassment and Discrimination Case

Claims of discrimination or sexual harassment are not all just high stakes for employers. In a recent Federal Court decision in Dye v Commonwealth Securities Limited (No 2) 1 [2012] FCA 407, Vivienne Dye is now faced with the prospect of having to declare herself bankrupt, having been ordered to pay $5.85 million in indemnity […]

Brooke Pendlebury
Friday, August 31, 2012
Harassment at Work, News


Employer Escaped Liability in Sexual Harassment Case before NSW ADT

 In the most recent case before the NSW Administrative Decisions Tribunal Cooper v. Western Area Local Health Network [2012] NSWADT 39 (9 March 2012) , a male health care worker, who was employed by the Western Area Local Health Network, was fined $10,000 for sexually harassing a colleague. The employer, however, has escaped liability, and was […]

Brooke Pendlebury
Thursday, August 30, 2012
Harassment at Work, News, Workplace Investigations, Workplace Safety


When is Redundancy Pay NOT Payable?

Redundancy pay is generally notpayable under the National Employment Standards (‘the NES’) to any of the following: an employee whose period of continuous service with the employer is less than 12 months; an employee of a small business employer (a small business employer, for the purpose of determining redundancy pay under the NES, is an […]

Brooke Pendlebury
Wednesday, August 29, 2012
Dismissal, Entitlements


Sexual Harassment and/or Sex Discrimination Complaints in the Workplace in Australia

Employers should recognise that the areas of risk when dealing with a sexual harassment and/or sex discrimination claim are expanding.  The way in which sexual harassment and sex discrimination complaints are being brought and litigated is increasingly becoming more sophisticated and complex.  This includes bringing claims that rely not only on the anti-discrimination legal framework, […]

Brooke Pendlebury
Monday, August 27, 2012
Harassment at Work, News, Workplace Investigations


Fair Work Australia had no jursidiction to hear after-hours behaviour dispute

Fair Work Australia has held that it has no jurisdiction to hear a dispute over disciplinary action taken against three coal-mining workers for alleged after-hours behaviour. One of the Thiess employees who worked at its Wilpinjong Coal Mine, in the Hunter Valley in NSW, was given a final warning, and the other two employees received […]

Brooke Pendlebury
Friday, August 24, 2012
News