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Author: PWLadmin

  • 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 restaurants and cafés) had underpaid the workers who were 457 visa holders, only $12 an hour between 2009 and 2012.

    The Company failed to pay entitlements such as loadings, sick leave and superannuation contributions and failed to comply with record-keeping obligations, produced false pay records and had recovered the costs of migration agent fees from 4 of the visa holders.

    Justice Mansfield in April ordered the Company to pay $175,400 in pecuniary penalties and ordered its sole director and shareholder, Ronald Choong, to pay $800, finding he had aided and abetted the Company’s actions.

    However, his Honour refused to impose a penalty on the director’s wife (who was not a company officer), finding that while she was aware “more broadly” of the Company’s failure to comply with its sponsorship obligations, she “was not doing so in a considered and consistent way“.

    The government subsequently sought $125,956 in total reimbursements for 7 of the affected employees (all from the Phillippines) under the Migration Regulations 1994.

    The judge rejected the Company’s application for periodic payments, noting that while Choong Enterprises’ trading assets had been reduced to operating a fish and chip shop in Nightcliff, it had sold most of its business to D & C Gourmet Pty Ltd, whose director shared an address with Ronald Choong.  He noted the “stark” difference in restitution payable under the Migration Act to the exploited employees, depending on whether it was calculated using the base rate prescribed for the purposes of section 140(1) of that Act, or the relevant award.

    His Honour said, “Without going into the detail of each of the 7 sponsored employees involved, as the PAYG tax adjustment in each case is different, the total claimed by way of reimbursement of regulation 2.79 fixes the entitlement, the total reimbursement sought by the Minister is $125,956 compared to $52,480 if the Award is the appropriate starting point.”

    After Justice Mansfield made the initial ruling in April, Assistant Minister for Immigration and Border Protection, Senator Michaelia Cash, in a statement said it was the department’s first Federal Court civil penalty application and the largest civil penalty any court had imposed for a breach of sponsor obligations.

    Senator Cash said, “The stiff penalty this company has received should send a warning to other sponsors: if you fail to meet your requirements, my Department may impose administrative sanctions, issue an infringement notice, execute an enforceable undertaking, or apply to the federal court for a civil penalty order” .

    [Minister for Immigration and Border Protection v Choong Enterprises Pty Ltd (No 2) [2015] FCA 553 (4June 2015)]

    Taskforce Cadena

    Senator Cash in a statement issued Friday 5 June 2015, welcomed the Federal Court result and said to expect further investigations with the commencement of Taskforce Cadena from 1 July.

    Senator Cash said, “The Coalition Government understands that at times businesses need to access foreign labour for positions that cannot be filled locally, however we are committed to ensuring integrity is maintained across our migration programmes through rigorous enforcement of the rule of law“.

    The task force (headed by the Department of Immigration and Border Protection and the Fair Work Ombudsman) will work with the Australian Federal Police, Australian Securities and Investment Commission, the Australian Tax Office, and various state and territory agencies to investigate instances of worker exploitation and visa fraud.

    Senator Cash said, “The Department of Immigration and Border Protection and the Fair Work Ombudsman are active in ongoing compliance campaigns to ensure that temporary visa holders are being paid in accordance with Australian pay and conditions. This taskforce will greatly complement those existing efforts.”

  • 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 Army Employment Plus job placement consultant in her bullying claim “are reasonable management action undertaken in a reasonable manner”.  The Commissioner said the consultant particularly objected to a change that involved her seeking to place in jobs clients from the full “rainbow” of applicants, rather than just the “generally job ready” clients she had dealt with in her 9 years with the organisation.

    The placement consultant told the Commission at the hearing in April that the change meant she was now required to deal with stream-4 clients who “may be somebody who is recently out of prison and they have drug issues, mental health issues, schizophrenia, they are considered not job-ready”.  The consultant refused to deal with the stream-4 clients claiming it was unsafe, but Commissioner Lee, after considering evidence including a recent Worksafe inspection, said he was satisfied there was no such risk.  Commissioner Lee said the change in client mix, alongside the employer’s new approach to performance management, “is a major driver” of the consultant making the bullying claim.

    The consultant claimed she was being unreasonably performance managed and micro-managed.

    The Commissioner said the consultant was “deeply distressed that her refusal to service ‘stream 4’ clients was the basis for the finding [in a performance assessment] that she was not meeting the values of the organisation”.  The employer gave her a score of 57 out of 100 in her most recent assessment, against an average across all employees of 62, marking her down for failing to service the stream 4 clients.

    Commissioner Lee said that it was “not unreasonable” for her refusal to “become a matter of note in her performance appraisal“, given that it was part of her position description.  The Commissioner said Employment Plus had in the past failed to assess individual performance but while its introduction had been “a significant change” for the consultant, “the manner in which it has been introduced or administered does not appear to be unreasonable.”

    Organisation shifting from “moribund” to “performance focussed“

    Commissioner Lee said the organisation had shifted from “a long period of moribund management to an environment where the organisation is performance focussed… However, while this represents a significant change in her working environment, the fact that it occurred and the method of its implementation did not amount to bullying”.

    Commissioner Lee said the change within Employment Plus was a response to the Salvation Army seeking to implement a “high performance culture” to turn around losses that meant the job agency was being subsidised.

    Commissioner Lee said “She was forced to adjust to a more active management after a lengthy period of the organisation managing her and her colleagues very poorly… However, while this was a change that had a personal impact on the [consultant], particularly with the high turnover, there is no evidence that the approach taken amounted to bullying behaviour directed at the [consultant], particularly given the evidence of the timely replacement of vacancies in the organisation.”

    [A. B. [2015] FWC 3353 (4 June 2015)]

  • 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.

    workplace-safetyThe 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 longer had ‘trust and confidence’ in him.

    Commissioner Booth said the driver’s behaviour did not constitute serious misconduct because there was no element of the conduct being “wilful or deliberate”.  Commissioner Booth said the driver’s error “was not a deliberate, wilful, reckless or even negligent breach of safety requirements“.

    Coates dismissed the driver after he stopped his truck on the then new 13km Gold Coast Light Rail line early in 2014.

    Commissioner Booth accepted that the driver genuinely believed the track and wires were not live and that it was safe to park his truck on the track while he picked up a damaged portable toilet.  The Commissioner noted that video evidence indicated “no visible hazard zone signs, tape, bunting or other indicia that would objectively give rise to concern that the site was live and dangerous”.

    The Commissioner took into account evidence from Coates’ northern region HR Manager that the dismissed driver’s group had not been “toolboxed” about the advice provided to Coates about when the line would go “live“.

    The HR Manager also admitted in evidence to the Commission that the work order given to the driver did not contain a safety warning, whereas work orders issued after the driver’s incident incorporated such a warning.

    Commissioner Booth rejected Coates’ argument that the driver should not be reinstated because it had lost ‘trust and confidence’ in him.  The Commissioner said the driver “struck me as an honest and very willing worker, albeit one who had, in his own words and with hindsight, done the wrong thing, an admission against interest that reinforces my conclusion” and if reinstated there is no reason why “he would not perform his duties in a satisfactory manner and in the best interests of Coates”.

    The Commissioner noted that the driver had served the Company for almost 12 years without any criticism of his work performance.

    Commissioner Booth has requested Coates and the former employee provide further submissions on compensation for lost earnings.

    [Harrington v Coates Hire Operations Pty Limited [2015] FWC 2598 (6 May 2015)]

  • 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.

    The new national minimum wage will be $656.90 per week or $17.29 per hour. The national minimum wage applies to employees who are not covered by an award or agreement.

    Most employees are covered by an award.

    Award rates will increase by 2.5%.

    What happens next?

    The Fair Work Commission will issue draft determinations and orders about how this decision affects each modern award.

    I will keep you informed of the new pay rates.

  • 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 junior rates for 18-year-olds will move from 67.5% of adult rates to 75% over the life of the agreement, while rates for 19-years-olds will increase from 80 to 90%.

    The retail giant will now lodge the draft agreement, which will replace the 2011 agreement, which expired in the middle of last year, with the Fair Work Commission for approval.

    Coles informed the SDA, TWU, AWU and AMIEU in April last year that it wanted to move to a national deal for all non-salaried employees in its 760 Coles and Bi-Lo supermarkets, including “customer service agents“, a new role which resulted from bringing in-house the delivery of online-purchased goods, which had previously been performed by Linfox drivers.

    The TWU failed to convince the Fair Work Commission that there were sufficient grounds for a separate agreement for these drivers.

    Dwyer said the unions had now agreed that customer service agents should be classified as retail employees and that the agreement will mean an initial rise in mid-2016 of over $50 for some of those workers.

    Coles operations and supply chain director Andy Coleman said the company is pleased employees have endorsed the enterprise agreement, which, he said, will deliver increased benefits and flexibility, while reducing complexity.

    Coleman said younger employees will be the main beneficiaries of the new agreement, with additional wage increases for 18- and 19-year-olds.

    “Coles is also offering additional support to families, with step-parents now treated the same as biological parents with up to five days’ compassionate leave, and an additional type of leave for team members who experience domestic and family violence.”

    The SDA and Woolworths are expected to finalise a new pay deal in the coming weeks.

  • 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 hiring and screening processes, carefully crafted policies, and a renewed commitment to provide a supportive work environment for adults of all ages. This requires a well-thought-out plan and the commitment of management.

    Effective training sessions can raise employee awareness of discriminatory practices. Encourage (or require) participation in these sessions for employees at every level of the organisation. The focus of the training should go beyond mere information to include real changes in behavior.

    Peer reinforcement is also helpful. Encourage employees to speak up when they encounter or witness discrimination firsthand. Individual responsibility should be emphasised.

  • 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 years.

    About 1/3 of people who had experienced age discrimination stopped looking for work as a result and almost half considered retirement or accessing their superannuation fund.

    The National Prevalence Survey of Age Discrimination in the Workplace 2015 also found that:

    • 58% of those who looked for paid work reported they were a target of discrimination because of their age compared to 28% of those who worked for a wage or salary, and 26% who were self-employed;
    • 41% of those on an income of $35,000 or less reported that they experienced some form of discrimination, compared to 20% of those earning more than $150,000;
    • 32% who had participated in the workforce in the last 2 years, reported that they were aware of other workers aged 50 + years experiencing age discrimination, and of those 10% believed that it occurred all the time, and 46% said that it occurred frequently;
    • 33% of managers aged 50 + years reported that they took an employee’s age into consideration when making decisions, while 34% of managers had experienced age discrimination themselves.

    The report found no significant difference found in the discrimination rates for men (24%) and women (22%).

    The most prevalent forms of age discrimination reported was limiting employment/promotion/training opportunities (52%), followed by the perception of outdated skills (44%), and jokes or derogatory comments by colleagues or managers (42%).

    About 90% of respondents who claimed they were the target of jokes and derogatory comments based on their age said they did not make a complaint unless specifically asked.

    Significantly, of those who experienced discrimination in the last 2 years, 18% were unaware that the behaviour they had experienced was a form of age discrimination.

    Roy Morgan Research conducted and reported on the results of 2,109 telephone interviews with people aged 50 + years in consultation with the Australian Human Rights Commission.

    The report has been prepared as part of the the “Willingness to Work” national inquiry into employment discrimination against older Australians and the disabled.

    Treasury’s 2015 ‘Intergenerational Report’, predicts a doubling of the population aged 65 and over by 2055.

    Age Discrimination Commissioner Susan Ryan called the report a “benchmark against which we can measure future gains in addressing age discrimination“.

    [National Prevalence Survey of Age Discrimination in the Workplace 2015]

  • 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 the frequency of injuries reported by heavy vehicle drivers in its distribution division, which were higher than the average injury rate across the rest of the business.

    Previous efforts by the company to reduce the injury statistics had been unsuccessful, including voluntary functional capacity assessments and practical measures to reduce the risk of slips, trips and falls when drivers were working on or around their vehicles.

    The 45-minute assessment was to be carried out bi-annually by an external provider called Kinnect, focusing on areas including blood pressure, muscle and joint function, waist and neck circumference and abdominal strength.

    The results were to go on an employees’ health file, while the health professional was asked to identify any programs the employee might benefit from, including a “12 Week Body Transformation Program”.

    But the union, the TWU, disputed the company’s right to direct drivers to participate in the assessment, especially given they were already required to have regular medical assessments under the National Heavy Vehicle Accreditation Scheme.  The union also had privacy concerns about how the information would be stored and used.

    The Company told Commissioner Spencer that the program was designed to test workers’ level of risk in performing their duties, rather than advising of a workers fitness to perform the inherent requirements of their job.

    However, the Company admitted that workers who refused to participate in the assessments “could be subject to disciplinary action“, because it deemed participation to be “an essential tool for addressing the level of risk of injury“.

    Commissioner Spencer distinguished the case from Grant v BHP Coal Pty Ltd, in which a FWC full bench upheld her earlier ruling endorsing BHP’s right to direct a single employee to participate in a medical assessment by a company-nominated doctor to ensure he could perform the inherent requirements of his position.

    In contrast, Commissioner Spencer said Cement Australia sought to direct only its drivers to take part in the medical assessment “based on a general concern regarding the trend of musculoskeletal injuries for the group overall“, without first establishing genuine need for the assessment that was relevant to the requirements of the workers’ jobs.

    The Commissioner found that the Company’s direction for the program was unlawful or unreasonable. “There has been an insufficient particularisation of the data to establish a genuine need to direct an entire segment of the workforce to undertake this assessment… Further, the outcome of the Risk Review Program will not provide medical information directed to the inherent requirements of the job or provide a link to reduce the musculoskeletal injury rate,” Commissioner Spencer said.

    “In addition, given that there remain questions regarding the process and contradictory information and questions regarding the discharge of the process, the direction has not been made on reasonable terms. The [company] could not conclusively provide that the privacy of employees’ medical information would be secured.”

    In Summary: 

    This case tested what is lawful and reasonable when it comes to directions issued by employers to their employees that invade their personal life.  Importantly, the decision confirmed that an employer could not direct an individual to undertake a medical assessment unless it had a particular concern that the employee was unable to perform his or her job.  There must be a genuine need for the assessment and it must be relevant to the requirements of the worker’s job.

    [TWU v Cement Australia Pty Ltd [2015] FWC 158 (20 April 2015)]

  • 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 was being marginalised and humiliated by his department and school heads.

    GrievancesIn line with the policy, the University’s Grievance Resolution Officer (GRO) forwarded the complaint to the lecturer’s Executive Dean, who said he would take it up with the alleged perpetrators.

    But the Dean did not raise the matter with them, and little progress was made with the grievance by September 2002 when a number of students lodged complaints about the lecturer’s teaching methods.

    The University stood the lecturer down while it investigated the students’ complaints, and in November he went on extended sick leave for a stress-related condition.

    The University ultimately rejected most of the students’ complaints.  From the start of 2003, the lecturer took a mixture of long service leave, annual leave and sick leave, and never effectively returned to work.

    He was certified totally unfit for work in February 2003, and his condition did not improve.

    Progress on the lecturer’s grievance stalled in 2003, with the University initially concerned that it could not proceed while he was on sick leave, followed by disagreement over who would conduct the investigation and the need for him to provide a coherent summary of his concerns, which had expanded since the initial complaint.

    In September 2004 the University sacked the lecturer after it found pornographic material and illegally downloaded music on his work laptop.

    The lecturer filed an unfair dismissal as a result of his sacking.

    The Australian Industrial Relations Commission (AIRC) rejected his unfair dismissal claim in a decision handed down in March 2006.

    A full bench refused the lecturer leave to appeal the AIRC decision, later that year.

    Following a deterioration in his psychiatric condition, the lecturer sued the University in the WA Supreme Court in February 2009, claiming that it had breached its duty of care to him by failing to deal with the alleged bullying and harassment, and not resolving his formal grievance.

    He also argued that the grievance process breached his contract of employment.

    images-2Drawing on the definition of ‘bullying’ adopted by the Federal Court in last year’s Farstad case, his Honour Justice McKechnie said that assessing “unreasonable behaviour” required an objective test, not a subjective one, “this must plainly be right as it accords with the general law of negligence“.

    Justice McKechnie held that none of the University’s employees bullied, harassed or victimised the lecturer, finding their “predominant motive” was his welfare, given they knew he was stressed and fragile.

    Policy contractually binding, but no breach

    Following the Farstad ruling, Justice McKechnie found that the University’s Grievance Policy imposed “mutually binding obligations” on the lecturer and the University.

    But he said any inaction by the University before February 2003 was statute-barred by section 38 of the Western Australian Limitation Act.

    The judge said the Executive Dean had breached “the protocol” in not raising the grievance with the department and school heads. And he said that while “in retrospect” the decision to suspend the process pending the lecturer’s return to work might have been wrong, “not every wrong decision is a negligent decision”.

    Justice McKechnie said the University’s failure to deal with the grievance while he was on leave was not a breach of its duty of care nor a breach of any implied condition of employment.  He said, “The correspondence and emails flowing between the [lecturer] and Curtin tell a story of a [lecturer] who kept expanding his grievances and adding persons each time he disagreed with them… The Curtin responses and communications between staff show an organisation concerned about the plaintiff’s fragile state and wanting to resolve outstanding issues if possible.”

    His Honour said the lecturer “blew hot and cold” about the grievance process, at times being unwilling to proceed and at other times wanting it expedited.  He said, “The actions taken by Curtin over the relevant period were reasonable responses. For most of the period, the [lecturer] was certified as unfit for work and Curtin reasonably exercised its duty of care by not permitting [him] to work during the periods he was so certified.”

    Justice McKechnie said the inquiries the University made of him from time to time did not breach its duty of care “nor did they demonstrate bullying“.

    His Honour found that the lecturer’s suspension following the student complaints caused his adjustment disorder, rather than the University’s failure to resolve his bullying grievance.

    [Please refer to Christos v Curtin University of Technology [No 2] [2015] WASC 72 (27 February 2015)]

  • 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 a different senior role at the same salary level was not acceptable alternative employment.

    Senior Deputy President Richards held that the employer’s offer (Datamars (Australia) Pty Ltd) of a Business Development Manager (or BDM) position in the expanded post-merger organisation did not meet the requirements of section 120 of the Fair Work Act.

    SDP Richards found that he had no scope to vary the amount owed to the general manager on redundancy, despite the employer wanting to reduce the payout to zero.

    It was observed by SDP Richards that the employer’s offer had a number of characteristics that would ordinarily appear to be an acceptable alternative position.  The former general manager’s pay, job security, and hours would have remained the same, and the offer preserved his continuity of employment.  Furthermore, the BDM position was “within a much larger organisation which presumably afforded a wide range of opportunities compared to the narrower base in the pre-acquisition period”, with no concern that the prospect of “underperformance or incapacity” would have undermined his employment security.

    However, SDP Richards found that beyond those listed points “doubts emerge” in relation to the offer.   Importantly, he said that while it was not necessary for the employer’s offer to “replicate the various functions of the original position” in order to be acceptable, “it is a salient consideration as to whether or not the alternative position manifests the same degree of seniority and executive status within the employer’s business“.

    Furthermore, he said the BDM position “does not provide compensatory executive level functions sufficient to retain the same degree of seniority within the employer’s business as did the role of General Manager“.

    Importantly, SDP Richards said it was necessary to give “considerable weight” to issues of seniority and status.  The former employee, “after all, was the General Manager for the business in Australia and reported only to the Chief Operating Officer in Switzerland prior to the acquisition“.

    He said the alternative position suggested that the former general manager would have a role in securing corporate business in Australia and through that, “in growing the business… but the offer of employment stated that he would be working with the national sales manager in that respect (or independently as appropriate) and would be required to achieve revenue and margin levels in line with budget expectations… This appears to be more of an operational level sales oriented function than the largely executive level function undertaken previously by [the general manager].”

    SDP Richards also noted that the employer “was not able to identify over whom [the general manager] would exercise. . . managerial control” and it “does not appear to me that there was any clarity around the precise role envisaged“.

    SDP Richards said the proposal had “all the appearance of a ‘work in progress’” and that while “quite a number of indicia” supported the employer’s case, “I consider that absence of any definable and substantial executive/strategic function and a very different measure of seniority and status in the new position inhibits a determination that the alternative position was acceptable“.

    Request to Reduce Obligation To Pay Redundancy

    Datamars had argued as a fallback position from its application to seek to pay zero to the general manager, there “should at least be an appropriate reduction for the role that was offered to him“.

    But SDP Richards noted that the scope to vary the redundancy pay obligation where an employer found acceptable alternative employment “may be limited, or problematic, given the 2004 Redundancy Case Full Bench commentary at least… Such exemptions from the obligation to pay redundancy pay (which arise in instances in which an employer has not obtained acceptable alternative employment and must otherwise pay the full amount of redundancy pay) do not form part of the National Employment Standards and are not able to be relied upon any longer by employers.”

    SDP Richards said that, given his finding on the offer, there was “no scope for me to vary the amount the Company must pay as redundancy pay as a consequence (notwithstanding that the alternative position maintained a number of key conditions of the original position)”.

    Please refer to: Section 120 Application to vary Redundancy Pay, Datamars (Australia Pty Ltd T/A Datamars [2015] FWC 1269 (27 February 2015).