# McDonald Murholme --- ## Pages - [Careers](https://mcdonaldmurholme.com.au/careers/): Do you want to join a leading employment law firm for employees in Victoria? Visit this page and find out how you can apply for a role. - [Compensation Lawyers](https://mcdonaldmurholme.com.au/compensation-lawyers/): The workers compensation lawyers at McDonald Murholme can partner with you to determine if you are eligible for compensation and help you make a claim. Call us today. - [Community Engagement](https://mcdonaldmurholme.com.au/community-engagement/): McDonald Murholme is proudly committed to assisting the community through both legal and social contributions. Find out more information here. - [Workplace Discrimination](https://mcdonaldmurholme.com.au/employment-law/workplace-discrimination/): At McDonald Murholme, our employment discrimination lawyers will stand with you if you have been discriminated against in the workplace. Reach out to our team today on 9650 4555. - [Unreasonable Refusal of Support Person](https://mcdonaldmurholme.com.au/employment-law/performance-management/support-person-meetings/): Find out if your workplace is entitled to refuse access to a support person and your legal rights as an employee by contacting McDonald Merholme lawyers. - [Unfair Suspension from Work Lawyers](https://mcdonaldmurholme.com.au/employment-law/performance-management/unfair-suspension/): McDonald Murholme can often assist employees during the suspension period by providing legal advice, which is usually required at short notice. Find out more - [Client Reviews](https://mcdonaldmurholme.com.au/client-reviews/): McDonald Murholme strives to uphold the rights of employees during difficult times such as unfair termination of employment or workplace bullying. - [Overtime Pay Rates Legal Advice](https://mcdonaldmurholme.com.au/employment-law/underpayments/overtime-rates/): An employee has a right to question whether the unpaid overtime is necessary and legal. Get legal advice on overtime pay rates and penalty rates today. - [Award Pay Rates Legal Advice](https://mcdonaldmurholme.com.au/employment-law/underpayments/award-rates/): Wrongfully classified or underpaid award rates at work? Speak with our award rates lawyers today to find out whether you are eligible to make a claim. - [Sham Contract Lawyers](https://mcdonaldmurholme.com.au/employment-law/underpayments/sham-contracts/): Do you believe that you’re missing out on employee benefits because of a sham contract? For expert legal advice and an assessment, contact McDonald Murholme today. - [Wrongful Termination Lawyers](https://mcdonaldmurholme.com.au/employment-law/unfair-dismissal/wrongful-termination/): Speak with our expert team of wrongful termination lawyers who have worked on thousands of cases for employees just like you. Call us on 03 9650 4555. - [Adverse Employer Action Legal Advice](https://mcdonaldmurholme.com.au/employment-law/workplace-discrimination/adverse-action/): Has your employer taken adverse action against you because of a protected attribute? You may be eligible to make an adverse action claim. - [Pregnancy Discrimination Lawyers](https://mcdonaldmurholme.com.au/employment-law/workplace-discrimination/pregnancy/): An employer cannot legally discriminate against you just because you are pregnant. If you believe you are being discriminated against, we can help you take the next steps. - [Gender Discrimination Lawyers](https://mcdonaldmurholme.com.au/employment-law/workplace-discrimination/gender-discrimination/): It is unlawful for a person to discriminate against another on the ground of their gender identity. - [Age Discrimination Lawyers](https://mcdonaldmurholme.com.au/employment-law/workplace-discrimination/age/): The age discrimination lawyers at McDonald Murholme offer expert advice for employees and employers. Contact us to discuss an age discrimination claim with our team. - [Unfair Written Warning at Work Legal Advice](https://mcdonaldmurholme.com.au/employment-law/performance-management/written-warning/): You are not required to sign a written warning and we recommend you be very careful about what you do next. Seek legal advice or read here. - [Privacy Policy](https://mcdonaldmurholme.com.au/privacy-policy/): McDonald Murholme Pty Ltd respects your right to privacy and is committed to safeguarding the privacy of our client and website visitors. Read more here. - [Restraint of Trade](https://mcdonaldmurholme.com.au/employment-law/executives/restraint-trade-clauses/): If you are being threatened with a restraint of trade clause from your employer, seek legal advice from one of our workplace lawyers at McDonald Murholme... - [Unfair Dismissal](https://mcdonaldmurholme.com.au/employment-law/unfair-dismissal/): If you are unfairly dismissed from your employment, you may be eligible for compensation under the Fair Work Act. Contact us to learn more. - [Workplace Bullying and Harassment](https://mcdonaldmurholme.com.au/employment-law/harassment-and-bullying/): The workplace bullying and Harassment lawyers at McDonald Murholme can fight for your rights, provide expert legal assistance and advice, and assist you in stopping the bullying for good! - [Contract Disputes](https://mcdonaldmurholme.com.au/contract-disputes/): As Australia's essential employment lawyers, McDonald Murholme has extensive experience and insight into contract disputes. Are you in a contract dispute? Learn more here. - [Workplace Investigations](https://mcdonaldmurholme.com.au/employment-law/performance-management/investigations/): No employee should participate in a workplace investigation without proper legal advice. Talk to a specialist workplace lawyer at McDonald Murholme first. - [General Protections](https://mcdonaldmurholme.com.au/employment-law/general-worker-rights/): General Protections provisions in the Fair Work Act 2009 were enacted to expand existing laws to protect workplace rights. Get employment legal advice today.. - [Contact Us](https://mcdonaldmurholme.com.au/contact-us/): Visit McDonald Murholme Level 6, 45 William Street, Melbourne VIC 3000 or call our employment law team on 03 9650 4555 today. - [Deed of Release](https://mcdonaldmurholme.com.au/employment-law/executives/deed-release-advice/): An employee has the right to seek legal advice before signing the deed of release. Contact McDonald Murholme today to speak with our award winning team. - [Leave Entitlements](https://mcdonaldmurholme.com.au/employment-law/executives/leave-entitlements/): If you believe that you are not being granted the appropriate leave entitlements from your employer, contact McDonald Murholme lawyers for legal advice. - [Unfair Performance Management](https://mcdonaldmurholme.com.au/employment-law/performance-management/): McDonald Murholme's legal team will assist employees by intervening early to prevent a performance management plan escalating into an unfair termination. - [Underpayment](https://mcdonaldmurholme.com.au/employment-law/underpayments/): Minimum payments under various Awards, Enterprise Agreements & contracts is a complex issue in Australia.. Get advice from McDonald Murholme lawyers. - [Advice To Employers](https://mcdonaldmurholme.com.au/employer-legal-advice/): Speak to an employer lawyer who will act for the interests of your firm with sound legal advice. - [In The News](https://mcdonaldmurholme.com.au/our-news/): Inform yourself about the latest in workplace law in Victoria from legal specialists at McDonald Murholme to keep up to date with changes and trends. - [Redundancy](https://mcdonaldmurholme.com.au/employment-law/unfair-dismissal/redundancy/): When handled correctly, redundancies can be a welcome outcome for both employers and employees. For redundancy law advice, contact our team today. - [About Employment Law](https://mcdonaldmurholme.com.au/employment-law/): Mcdonald Murholme lawyers provide legal advice and representation to employees and employers across the spectrum of employment law. - [Representing Executives](https://mcdonaldmurholme.com.au/employment-law/executives/): The most common mistake executives make when considering legal advice is to engage an employment lawyer with a history of representing employers. - [Advice To Employees](https://mcdonaldmurholme.com.au/advice-to-employees/): Speak with our legal team who have worked on thousands of cases for employees just like you. Call us on 03 9650 4555. - [Migration – Visa Employees](https://mcdonaldmurholme.com.au/migration-visa-employees/): There are numerous classes of work visas. McDonald Murholme has an experienced migration lawyer, who works with the employment law team assisting visa holders. - [Probate & Estate Lawyers](https://mcdonaldmurholme.com.au/probate-estate-lawyers/): The probate and estate lawyers at McDonald Murholme are here to assist you with all your estate planning needs. Call 9650 4555 or make an online enquiry for a prompt reply.  - [About Us](https://mcdonaldmurholme.com.au/about-us/): Established in 1996, McDonald Murholme has the highest expertise and experience in employment law. Find out more about us. - [Home](https://mcdonaldmurholme.com.au/): McDonald Murholme offers 30+ years wealth of employment law expertise for employees, employers, organisations & executives. Call 03 9650 4555 --- ## Posts - [McDonald Murholme Named Top Employment Law Firm in APAC](https://mcdonaldmurholme.com.au/top-employment-law-firm-apac-2024/): McDonald Murholme wins Top Employment Law Firm in APAC 2024 and features Alan McDonald in Manage HR Magazine's cover story. - [Do I Have to Disclose My Restraint of Trade Obligations to My New Employer?](https://mcdonaldmurholme.com.au/disclose-restraint-trade-new-employer/): A restraint of trade clause is a provision commonly found in an employment contract which limit employees’ activities during or... - [What to Do When Your Job Fails to Deliver on Promises](https://mcdonaldmurholme.com.au/job-promises-failed-legal-remedies/): If you take precautions and still find yourself trapped in a workplace which does not live up to the promises... - [Are You Being Underpaid as an Executive?](https://mcdonaldmurholme.com.au/underpaid-executive-know-your-rights/): As an executive, your role is pivotal to the success of your organisation, often involving long hours, high levels of... - [How to Protect Yourself When a Recruiter Offers You a New Job](https://mcdonaldmurholme.com.au/protect-yourself-recruiter-job-offer/): What should you do to protect yourself if a recruiter reaches out to offer you a shiny new job, while... - [Redundancies in Superannuation Funds](https://mcdonaldmurholme.com.au/redundancies-in-superannuation-funds/): The burgeoning income of superannuation funds has not been enough to stop redundancies occurring in superannuation funds. These redundancies are... - [High Uni Fees but Academics Underpaid](https://mcdonaldmurholme.com.au/high-uni-fees-but-academics-underpaid/): The report of the Australian dated 17 May 2023, that La Trobe University owes backpay to casual academics of up to $6.5 million, should lead to those responsible being made more accountable - [Reserve Bank interest rake hike and job losses](https://mcdonaldmurholme.com.au/reserve-bank-interest-rake-hike-and-job-losses/): McDonald Murholme delivers advice to both employers seeking to do the right thing and employees who have been victims of an employer who flouts the provisions of the Fair Work Act 2009 (Cth) - [Labour Shortages, Inflation, Recession Looming and Workplace Disputes](https://mcdonaldmurholme.com.au/labour-shortages-recession-looming/): Post COVID-19, there is a shortage of employees and record low unemployment levels. How do employers manage this difficult labour market? - [Paid Family and Domestic Violence Leave is to Be Introduced in Australia: Here’s How It Affects You](https://mcdonaldmurholme.com.au/paid-family-and-domestic-violence-leave-is-to-be-introduced-in-australia-heres-how-it-affects-you/): Paid family and domestic violence leave is to be introduced in Australia. Read this McDonald Murholme article to find out how this affects you! - [Virtual assistants; mumpreneurs' secret weapon](https://mcdonaldmurholme.com.au/virtual-assistants-mumpreneurs-secret-weapon/): Virtual assistants for mumpreneurs an extra pair of hands- Our associate explains the difference between a virtual worker and an employee. Read here. - [McDonald Murholme Guide to the Fair Work Act – The Australian](https://mcdonaldmurholme.com.au/mcdonald-murholme-guide-to-the-fair-work-act-the-australian/): The Fair Work Act user guide is a free and accessible resource for those who have been mistreated in the workplace. Learn more in McDonald Murholme's guide to the Fair Work Act. - [Melbourne Uni to Repay Millions in Unpaid Staff Wages](https://mcdonaldmurholme.com.au/melbourne-uni-to-repay-millions-in-unpaid-staff-wages/): As reported in the Australian Financial Review, the University of Melbourne owes more than $20 million to its staff! See what the McDonald Murholme team has to say on this issue. - [BHP sexual harassment claims the tip of the iceberg?](https://mcdonaldmurholme.com.au/bhp-sexual-harassment-claims-the-tip-of-the-iceberg/): Is sexual harassment just one aspect of poor workplace culture at BHP? And is it isolated? See what McDonald Murholme has to say about this news! - [A New Climate for Corporations](https://mcdonaldmurholme.com.au/a-new-climate-for-corporations/): Australia has recommitted to its obligations under the Paris Agreement to combat climate change, but how does this affect small businesses? Read more now. - [Good news for salespeople](https://mcdonaldmurholme.com.au/good-news-for-salespeople/): The Fair Work Commission has found that an NRMA contractor mechanic was not fairly sacked when he "failed to meet KPIs". See what McDonald Murholme has to say on this issue. - [ANZ Takeover of Suncorp Bank Sad News for Employees?](https://mcdonaldmurholme.com.au/anz-takeover-of-suncorp-bank-sad-news-for-employees/): Following ANZ's takeover of Suncorp Bank, McDonald Murholme wonders if this will result in fewer employees and less service and competition in Queensland banking. Read more. - [Costco Australia under fire after ‘wild and intrusive’ cashier job applicant questions are exposed](https://mcdonaldmurholme.com.au/costco-australia-under-fire-after-wild-and-intrusive-cashier-job-applicant-questions-are-exposed/): McDonald Murholme principal, Alan McDonald, provided legal perspective to 7 News in this story about the bizarre and intrusive questions asked when applying for a job at Costco. - [Bunnings sued over ‘vengeful’ sacking for historic sexual harassment](https://mcdonaldmurholme.com.au/bunnings-sued-over-vengeful-sacking-for-historic-sexual-harassment/): The McDonald Murholme team talks about the news report in the Financial Review, which discusses Bunnings Warehouse, historic sexual harassment, and unfair dismissal. - [Sacking over anti-vaxxer protest at CFMEU HQ justified](https://mcdonaldmurholme.com.au/sacking-over-anti-vaxxer-protest-at-cfmeu-hq-justified/): The McDonald Murholme team talks about a news report in the Financial Review, which discusses an unfair dismissal claim by an employee who attended an anti-vaxxer protest. - [Upholding standards and legal rights in the workplace - Australasian Lawyer](https://mcdonaldmurholme.com.au/upholding-standards-and-legal-rights-in-the-workplace/): McDonald Murholme is proud to have been named by Australasian Lawyer as a 2021 Excellence Awardee for Employment Law Specialist Firm of the Year. - [COVID-19 Vaccinations: Workplace Rights and Obligations – Fair Work Update August 2021](https://mcdonaldmurholme.com.au/covid-19-vaccinations-fair-work-update/): As Australia’s vaccination rollout continues to gain momentum, employers and employees are encouraged to work together to find solutions. Read more. - [Authorised Worker Permit requirement in Metropolitan Melbourne](https://mcdonaldmurholme.com.au/authorisedworkerpermit/): An authorised worker in Melbourne? Here's all you need to know about the Authorised Worker Permit requirement in Metropolitan Melbourne. Get details here. - [Swimming coaches to be paid more](https://mcdonaldmurholme.com.au/swimming-coaches-to-be-paid-more/): The Appeal Court overturned a prior finding that coaches with more advanced qualifications do not have access to the Fitness Industry Award 2010. Read on. - [Could a social media policy be your company’s saving grace? - HRM](https://mcdonaldmurholme.com.au/could-a-social-media-policy-be-your-companys-saving-grace-hrm/): Crafting a robust social media policy could protect your company from unfair dismissal claims. At a time when 20 million... - [8 Things You Didn't Know You Could Be Fired For](https://mcdonaldmurholme.com.au/8-things-you-didnt-know-you-could-be-fired-for/): McDonald Murholme lawyer Talitha Curcio shared with the Daily Mail eight common things you didn't know you could be fired for. Find out more here. - [Your coronavirus questions answered - A Current Affair](https://mcdonaldmurholme.com.au/your-coronavirus-questions-answered/): McDonald Murholme Managing Director Alan McDonald recently appeared on A Current Affair as a legal expert, answering questions on the coronavirus vaccine. - [Jailed for a workplace COVID death? A look at industrial manslaughter laws - HRM](https://mcdonaldmurholme.com.au/jailed-for-a-workplace-covid-death-a-look-at-industrial-manslaughter-laws-hrm/): The laws of various states can result in severe penalties for workplace deaths. What does HR need to know? Read on to learn more about the liabilities. - [Overtime audits may be missing deeper underlying issues - Lawyers Weekly](https://mcdonaldmurholme.com.au/overtime-audits-may-missing-deeper-underlying-issues-lawyers-weekly/): Whilst it is crucial that law firms monitor the volume of hours worked by younger professionals, such audits might fail to identify broader workplace problems - [Transport firm faces court as Fair Work sounds sham contracting warning - SmartCompany](https://mcdonaldmurholme.com.au/transport-firm-faces-court-fair-work-sounds-sham-contracting-warning-smartcompany/): The Fair Work Ombudsman (FWO) has marked the New Year with a sham contracting warning for small businesses. Find out more. - [Harris Scarfe saga cherry on top of ‘horror year for Australian workers’ - Lawyers Weekly](https://mcdonaldmurholme.com.au/harris-scarfe-saga-cherry-top-horror-year-australian-workers-lawyers-weekly/): News that retailer Harris Scarfe has entered receivership caps off a “nightmare year” for private sector employees. Learn more about McDonald Murholme's view on this issue. - [Fired Toyota manager denied $379,268 redundancy package seeking $301,000 in damages - news.com.au](https://mcdonaldmurholme.com.au/fired-toyota-manager-denied-379268-redundancy-package-seeking-301000-damages-news-com-au/): Unfair dismissal over a slice of pizza; here's why a Fired Toyota manager seeking $301,000 in damages for dismissal. Read the complete details here. - [Staffing over the holiday season: What’s legal and what’s not? - Seek](https://mcdonaldmurholme.com.au/staffing-holiday-season-whats-legal-whats-not/): From closure and staff leave to public holiday pay, here's all you need to know about what's legal and what's not over staffing in the holiday season. - [What are my rights when it comes to redundancy? - Seek](https://mcdonaldmurholme.com.au/rights-comes-redundancy/): Redundancy at work? Here we discuss the employees’ rights to clear up some of the key questions around the situation. Read the full details here. - [Why the whistleblower protections in Australia don’t work - HRM](https://mcdonaldmurholme.com.au/whistleblower-protections-australia-dont-work/): There is still very little recourse for employees who are punished for shedding light on employer misconduct. Finjd out more. - [Qantas, Bunnings and Super Retail Group among companies caught in underpayment scandal - news.com.au](https://mcdonaldmurholme.com.au/qantas-bunnings-super-retail-group-among-companies-caught-underpayment-scandal/): Qantas, Bunnings and Super Retail Group-top companies caught under the underpayment scandal. Here's how you can get your cash if you have been a victim. - [Australia’s Whistleblower Protections Are Not Working](https://mcdonaldmurholme.com.au/australias-whistleblower-protections-not-working/): For some time, whistleblower protection in Australia in the private sector has fallen far short of achieving protection for employees. Find out more. - [Lessons from engagement of Victorian magistrate to court clerk - Lawyers Weekly](https://mcdonaldmurholme.com.au/lessons-engagement-victorian-magistrate-court-clerk-lawyers-weekly/): What can employers learn from the engagement of a Victorian magistrate to a court clerk, 40 years his junior? We discuss the policies of interoffice romances. - [How to quit a new job if something better comes up - Seek](https://mcdonaldmurholme.com.au/quit-new-job-something-better-comes/): So, you’ve landed a job, signed on and you’re all set to start your new role. Then you get a call that the dream job you’d given up on is now on offer... - [Employment firm slams ‘ill-informed’ comments on unfair dismissal claims - Lawyers Weekly](https://mcdonaldmurholme.com.au/employment-firm-slams-ill-informed-comments-unfair-dismissal-claims/): Here's what the employment lawyers have to say about 'ill-informed' comments to weaken a dismissed employee's ability to hold an employer to account. - [How the High Court’s decision on pieceworker rights will affect Aussie farmers - Smart Company](https://mcdonaldmurholme.com.au/high-courts-decision-pieceworker-rights-will-affect-aussie-farmers/): Underpaid pieceworkers could be compensated according to minimum hourly award rates, following an appeal by the Fair Work Ombudsman (FWO). Find out more. - [Defining a work day: a landmark Federal Court decision - HRM](https://mcdonaldmurholme.com.au/defining-work-day-landmark-federal-court-decision-hrm/): What defines a workday? Here's how the Federal Court decision could affect the businesses and HRs dealing with shift workers. Read the full details here. - [These are the employment law rights of pregnant women and working parents - Women's Agenda](https://mcdonaldmurholme.com.au/employment-law-rights-pregnant-women-working-parents-womens-agenda/): Employment lawyer Alexandra Targett from McDonald Murholme Solicitors speaks about the employment law rights of pregnant women and working parents. Read here. - [Elite swimming club in underpayment stoush with coach - The Age](https://mcdonaldmurholme.com.au/elite-swimming-club-underpayment-stoush-coach-age/): Here's all you need to know about the Melbourne Vicente Swimming Club legal stoush with a former coach regarding allegations of underpayment. Read now! - [Jail time for wage theft: Government moves ahead with plans to criminalise worker exploitation - Smart Company](https://mcdonaldmurholme.com.au/jail-time-wage-theft-government-moves-ahead-plans-criminalise-worker-exploitation-smart-company/): Criminalising worker's exploitation- a major push for broader reforms to Australia's workplace laws. Check out the complete details about the changes here. - [Reflections on 10 years of the Fair Work Act - Lawyers Weekly](https://mcdonaldmurholme.com.au/reflections-10-years-fair-work-act-lawyers-weekly/): Our managing director Alan McDonald comments on 10 years of the Fair Work Act as being functional and effective. Read the complete details online here. - [Calombaris scandal a symptom of ‘incredibly difficult’ rules - My Business](https://mcdonaldmurholme.com.au/calombaris-scandal-symptom-incredibly-difficult-rules-business/): The $7.8 million underpayment of celebrity chef George Calombaris highlights the complexity of Australia's workplace laws. What can employers learn? - [7 things you need to know about probation periods - Seek](https://mcdonaldmurholme.com.au/7-things-need-know-probation-periods-seek/): Got a new job? You may be on probation. 7 things you need to know about your probation period and how you can establish yourself as a valuable employee. - [Finalists revealed for 2019 Australian Law Awards](https://mcdonaldmurholme.com.au/finalists-revealed-for-2019-australian-law-awards/): McDonald Murholme has been nominated for Workplace Relations and Employment Team of the Year and Business Development Professional of the Year! - [Casual, part-time, full-time: what differences matter? - Seek](https://mcdonaldmurholme.com.au/casual-part-time-full-time-differences-matter-seek/): Casual, part-time or full-time? Check out how the benefits, entitlements and conditions of a job can differ as per the type. Read the full details here. - [Calls for unfair dismissal overhaul to stop small businesses paying workers “go-away money” - Smart Company](https://mcdonaldmurholme.com.au/calls-unfair-dismissal-overhaul-stop-small-businesses-paying-workers-go-away-money-smart-company/): Provisions to protect employers from unfair dismissal in the Fair Work Act aren't working; here, we discuss unfair dismissal protections for small businesses. - [Employment Law Firm Calls Out Pollies Pre-Federal Election](https://mcdonaldmurholme.com.au/employment-law-firm-calls-pollies-pre-federal-election-lawyers-weekly/): What's the viewpoint of associates on Mr Shorten's plans to implement a "living wage" through the Fair Work Commission (FWC)? Read the full details here. - [Politics at work - Lawyers Weekly](https://mcdonaldmurholme.com.au/politics-work-lawyers-weekly/): Keeping politics out of the workplace? Employees know your rights, as described by McDonald Murholme’s lawyer, Trent Hancock. View full details here. - [How working from home has become the new sick day - The New Daily](https://mcdonaldmurholme.com.au/working-home-become-new-sick-day-new-daily/): How working from home has become the new sick day- The article discusses the work hours, productivity and other factors. Read the complete article here. - [How law firms can manage office romances: Part One - Lawyers Weekly](https://mcdonaldmurholme.com.au/law-firms-can-manage-office-romances-part-one-lawyers-weekly/): Office romance in Law firms? Our lawyer discusses the issues surrounding office romances and how law firms can navigate such sensitive territory. Read here. - [Lessons for employers from Westpac unfair dismissal case - HRM](https://mcdonaldmurholme.com.au/lessons-employers-westpac-unfair-dismissal-case-hrm/): What could employers learn from the Westpac unfair dismissal case – HRM? Here we have discussed what employers and employees need to know. Read now! - ['Awkward': what job referees fear and what they really want - The Age](https://mcdonaldmurholme.com.au/awkward-job-referees-fear-really-want-age/): Job referrals? What do the job referees fear, and what do they really want? Check out what previous job referees have to say. Read the details here. - [Qantas under fire for volunteer-to-work scheme — but is it even legal?](https://mcdonaldmurholme.com.au/qantas-fire-volunteer-work-scheme-even-legal/): Qantas' program about "spreading a bit of Christmas cheer" didn't come out as expected, and the ASU has slammed the scheme- Read the full story here. - [Foodora decision has huge implications for the gig economy](https://mcdonaldmurholme.com.au/foodora-decision-huge-implications-gig-economy/): The Foodora Case- Here’s what the Fair Work Commission has ruled out in its decision. Read the complete story and the implications of the decision here. - [What does Victoria’s new long service leave law mean for HR?](https://mcdonaldmurholme.com.au/victorias-new-long-service-leave-law-mean-hr/): What changes will the Long Service Leave Act 2018 (Vic) law bring? Legal experts explain what HR needs to know. Check out the complete details here. - [‘It’s valuable data’: Queensland worker sacked for refusing to sign in using fingerprint scanner - news.com.au](https://mcdonaldmurholme.com.au/valuable-data-queensland-worker-sacked-refusing-sign-using-fingerprint-scanner-news-com-au/): Is attendance using biometric scanners a ‘personal and valuable’ data sharing? Here’s how a QUEENSLAND sawmill worker lost an unfair dismissal claim. - [Could Netflix’s culture even exist in Australia? - HRM](https://mcdonaldmurholme.com.au/netflixs-culture-even-exist-australia-hrm/): Organisational transparency is good, but is it possible for transparency to go too far and lead to cult-like practices? Understand with the Netflix example. - [Lego executive sues company for discrimination on family commitments - Australian Financial Review](https://mcdonaldmurholme.com.au/lego-executive-sues-company-discrimination-family-commitments-australian-financial-review/): Lego Australia fired its executive when he returned from an overseas transfer to care for his family. Here's why the executive is suing the company. Read now! - [Firm highlights ‘lasting consequences’ following sacking of ABC MD Michelle Guthrie - Lawyers Weekly](https://mcdonaldmurholme.com.au/firm-highlights-lasting-consequences-following-sacking-abc-md-michelle-guthrie-lawyers-weekly/): What are the consequences of the dismissal of ABC managing director Michelle Guthrie and what employers can learn from it? Get complete details here. - [The ABC’s leadership fiasco has lessons for HR - HRM](https://mcdonaldmurholme.com.au/abcs-leadership-fiasco-lessons-hr-hrm/): What HRs can learn from the termination of ABC’s managing director Michelle Guthrie and what consequences it can have for employment law cases? Read on. - [Is withholding a bonus a smart way to motivate staff? - HRM Online](https://mcdonaldmurholme.com.au/withholding-bonus-smart-way-motivate-staff-hrm-online/): HRM examines the legalities and neuroscience of withholding an employee's bonus. Is it legal to withhold a bonus if a colleague is at fault? Read here. - [Flight Centre accused of underpayment and toxic culture - HRM Online](https://mcdonaldmurholme.com.au/flight-centre-accused-underpayment-toxic-culture-hrm-online/): Travel company Flight Centre accused of underpayments and “alcohol-fuelled” and “cult-like” work culture. Check out the complete information here. - [Hair and beauty salon backpays workers $25,000 but avoid penalties after signing deal with workplace watchdog - Smart Company](https://mcdonaldmurholme.com.au/hair-beauty-salon-backpays-workers-25000-avoid-penalties-signing-deal-workplace-watchdog/): Sydney-based beauty and hair salon underpaid seven workers more than $25,000 and has avoided paying penalties by entering into the EU. Get details here. - [Should criminal history remain in the past when hiring? - HRM](https://mcdonaldmurholme.com.au/criminal-history-remain-past-hiring/): Looking for a job but have a criminal record? HRM investigates the issue in light of the recent AHRC finding of discrimination against Suncorp. Read on! - [Illegal interview questions: what employers have no right to ask - Seek Insights and Resources](https://mcdonaldmurholme.com.au/illegal-interview-questions-employers-no-right-ask/): Preparing yourself for a job interview? Know what employers have the right to ask during the interview from legal experts. Read the complete article here. - [Allens expects partners to retire at 65, KWM pays them to leave at 55 - The Financial Review](https://mcdonaldmurholme.com.au/allens-expects-partners-retire-65-kwm-pays-leave-55-financial-review/): What legal experts have to say about the top law firm Allen's expectations on the retirement of its partners at the age of 65? Isn't it unlawful? Read here! - [KPMG, EY partner retirement ages are 'unlawful discrimination' - The Financial Review](https://mcdonaldmurholme.com.au/kpmg-ey-partner-retirement-ages-unlawful-discrimination-financial-review/): KPMG and Ernst & Young engaged of retiring partners as young as 58 years old. Know what legal experts have to say about unlawful age discrimination. Read now! - [Don’t offer staff free lunch: Underpayment claims at Melbourne cafe Barry prompt legal warning for SMEs - Smart Company](https://mcdonaldmurholme.com.au/dont-offer-staff-free-lunch-underpayment-claims-melbourne-cafe-barry-prompt-legal-warning-smes-smart-company/): Free lunch for the staff? Here's what you can learn from a case of a Melbourne cafe that was hit with underpayment claims from staff. Read full details here. - [Is criminalising “wage theft” a bad idea? - HRM](https://mcdonaldmurholme.com.au/criminalising-wage-theft-bad-idea-hrm/): Is criminalising "wage theft" making the complex even more complex? Read about the deterrent effect, measuring intent and other factors online here. - [Internships: How to hire within the law - Seek](https://mcdonaldmurholme.com.au/internships-hire-within-law-seek/): What is an internship? Can interns be treated as employees? What are their job responsibilities? Check out the complete internship details here. Read now! - [Protecting your SME when an employee leaves - Dynamic Business](https://mcdonaldmurholme.com.au/protecting-sme-employee-leaves-dynamic-business/): Here we discuss the issues small businesses face when conducting the dismissals and how they can protect themselves. Read the complete details here. - [Freehills dispute exposes confusion over who lawyers work for - The Financial Review](https://mcdonaldmurholme.com.au/freehills-dispute-exposes-confusion-lawyers-work-financial-review/): The Freehills dispute highlights the issue over who lawyers work for and the difficulty of taking instructions from a company. Read the complete story here. - [NAB and the marketing behind a massive retrenchment - HR Monthly](https://mcdonaldmurholme.com.au/nab-marketing-behind-massive-retrenchment-hr-monthly/): NAB and the mass layoffs of employees- How making employees redundant can be one of HR’s most complicated tasks? We discuss the common issues here. - [Universities must be ‘held accountable’ for law grad oversupply - Lawyers Weekly](https://mcdonaldmurholme.com.au/universities-must-held-accountable-law-grad-oversupply/): Universities held accountable for the oversupply of Law graduates- Know what McDonald Murholme managing director Alan McDonald has to say about the situation. - [How Esha Oberoi overcame depression to build a $10 million business - The Sydney Morning Herald](https://mcdonaldmurholme.com.au/esha-oberoi-overcame-depression-build-10-million-business-sydney-morning-herald/): Here’s what led Esha Oberoi to overcome depression and build a $10 million business. Know the purpose, policies, culture behind the business. Read now. - [Fair Work Commission backs zero tolerance out-of-hours intoxication - Australian Financial Review](https://mcdonaldmurholme.com.au/fair-work-commission-backs-zero-tolerance-hours-intoxication-australian-financial-review/): FWC backs zero-tolerance out-of-hours intoxication. Our lawyer comments on intoxication in the workplace as a category of serious misconduct. Read now! - ['There can be no winners': The consequences of sleeping with my boss - Sydney Morning Herald](https://mcdonaldmurholme.com.au/can-no-winners-consequences-sleeping-boss-sydney-morning-herald/): 6.6% of members admit they would sleep with their supervisor! We discuss the policies businesses should have on behavioural expectations of employees. - [Small businesses warned not to let their workers foot the bill for work Christmas parties - SmartCompany](https://mcdonaldmurholme.com.au/small-businesses-warned-not-let-workers-foot-bill-work-christmas-parties/): Planning office Christmas parties? Know the rights and obligations of employees and the need for employers to be clear on communication of parties here. - [After the whistle is blown: protecting employees who speak out - The Law Society of NSW](https://mcdonaldmurholme.com.au/whistle-blown-protecting-employees-speak-law-society-nsw/): What are the rights of a whistle-blower if he/she exposes wrongdoing of a business after disciplinary action? Check out the full details in the article here. - [IGA store slammed for mismanagement, ordered to pay worker $13,400 after taking too long to reject leave application - SmartCompany](https://mcdonaldmurholme.com.au/iga-store-slammed-mismanagement-ordered-pay-worker-13400-taking-long-reject-leave-application/): IGA store slammed for serious mismanagement- Know how taking a long time to reject a leave application can have a serious impact on business. Read here. - [The new normal, tattoos in the office - Sydney Morning Herald](https://mcdonaldmurholme.com.au/new-normal-tattoos-office/): Tattoos and the workplace- Our lawyer discusses the need for employers to tread carefully when implementing workplace policies. Read the full details here. - [Virtual assistants: Mumpreneurs’ Secret Weapon](https://mcdonaldmurholme.com.au/virtual-assistants-mumpreneurs-secret-weapon-2/): Virtual assistants for mumpreneurs an extra pair of hands- Our associate explains the difference between a virtual worker and an employee. Read here. - [Why you need to get out of the CEO ivory tower - CEO Magazine](https://mcdonaldmurholme.com.au/why-you-need-to-get-out-of-the-ceo-ivory-tower/): What if employees have better ideas than CEOs? Our lawyer speaks up about the policies that empower the staff to have the confidence to speak up. Read now! - [Lawyers show mental health matters as much as business - Lawyers Weekly](https://mcdonaldmurholme.com.au/lawyers-show-mental-health-matters-much-business-lawyers-weekly/): Mental health matters as much as businesses- here’s what our employment lawyer has to say about mental health. Read the full article here. - [Worker receives $13,000 in compensation for unjust dismissal after her shifts were cut by 75% - SmartCompany](https://mcdonaldmurholme.com.au/worker-receives-13000-compensation-unjust-dismissal-shifts-cut-75/): Forced to resign an employee can cost employers huge. Read complete details of the case where a worker received $13,000 in compensation for unjust dismissal. - [Making Work A Positive Experience For Mums - MyDeal.com.au](https://mcdonaldmurholme.com.au/making-work-positive-experience-mums-mydeal-com-au/): New mother returning to work? Here know your rights about the change of hours, split shifts and change of location of work. Read the complete details here. - [Media Release: McDonald Murholme proudly supports beyondblue](https://mcdonaldmurholme.com.au/mcdonald-murholme-proudly-supports-beyondblue/): McDonald Murholme proudly supports beyondblue by donating $1 for every new client appointment for over 12 months. Check out the full details here. - [Woolworths ordered to pay injured worker $230,000 in compensation after four-year long legal battle - SmartCompany](https://mcdonaldmurholme.com.au/woolworths-ordered-pay-injured-worker-230000-compensation-four-year-long-legal-battle-smartcompany/): Woolworth paid $230,000 in compensation to a former worker- We discuss the need for businesses to be audited by external advisors to avoid injuries. Read now! - [Can you extend an employee’s probationary period? - SEEK insight and resources](https://mcdonaldmurholme.com.au/can-extend-employees-probationary-period-seek-insight-resources/): Planning to extend an employee's probation period? Our principal lawyer discusses the legality surrounding probation periods and the barriers employers face. - [Former first aid manager reveals 'widespread' OHS problems at James Packer's Crown Resorts - Australian Financial Review](https://mcdonaldmurholme.com.au/former-first-aid-manager-reveals-widespread-ohs-problems-james-packers-crown-resorts-australian-finanical-review/): Is disclosing health problems at the workplace unlawful? Employment law firm McDonald Murholme argues about the symptoms. Read here now. - [Spanish Airline Asked Flight Attendant Applicants To Take Pregnancy Test - Marie Claire](https://mcdonaldmurholme.com.au/spanish-airline-asked-flight-attendant-applicants-take-pregnancy-test-marie-claire/): Spanish Airlines asked flight attendants to take pregnancy tests; here's what our lawyer says about women's workplace rights when faced with discrimination. - [Security firm accused of saying staff would be sent “straight to the dole queue” if they spoke to Fair Work inspectors - SmartCompany](https://mcdonaldmurholme.com.au/security-firm-accused-saying-staff-sent-straight-dole-queue-spoke-fair-work-inspectors-smartcompany/): Security firm took unlawful action and underpaid the staff-Know the need for employers to watch penalty rates if employees are working late through this case. - [Criminal background checks and obtaining employment – what you need to know - InterCheck Australia](https://mcdonaldmurholme.com.au/criminal-background-checks-obtaining-employment-need-know/): Criminal background checks and obtaining employment- Our Principal lawyer comments on employee rights when seeking employment with a criminal background. - [Taking parental leave? Know your rights](https://mcdonaldmurholme.com.au/taking-parental-leave-know-rights/): Expecting a baby? Know all about parental leave, eligibility, starting period and all other details here at the McDonald Murholme blog. Visit now! - [Are your employees working overtime during the EOFY rush? If so, you must tread carefully - Dynamic Business](https://mcdonaldmurholme.com.au/employees-working-overtime-eofy-rush-must-tread-carefully/): Are your employees working unpaid overtime to fix up loose ends? Here's what employers have to be careful of as per the Fair Work Act 2009 (Cth.). - [Domestic violence victim told 'keeping you both in the office is a no' – The Sydney Morning Herald](https://mcdonaldmurholme.com.au/domestic-violence-victim-told-keeping-office-no-sydney-morning-herald/): Check out what our lawyer has to say about employers in understanding employees who have been a victim of domestic violence. Read now! --- # # Detailed Content ## Pages Community Engagement “Be the change you wish to see in the world” – Mahatma Gandhi McDonald Murholme has significant pro-bono involvement with community movements where legal services are required but not normally available. A recent example in 2020 is our involvement in the Save Yarram campaign where some 34 industrial wind turbines threatened the functionality and livelihood of the whole community at Gelliondale-Yarram. If you have a community project, especially in rural Victoria, please contact McDonald Murholme, about whether or not we can assist. The McDonald Murholme approach is to show a strong and contemporary leadership style that encourages passionate engagement by our staff and a combined alliance with community organisations, our past and present clients, and other members of the legal profession. McDonald Murholme utilises different approaches to create successful community engagement and to support those who need it most. Factors that work for us include: employees being provided with the correct training employees understanding the importance of mental and physical wellbeing sound communication amongst internal and external personnel participating in workplace and community events, and most of all, engaging with one another as a firm. --- McDonald Murholme strives to uphold the rights of employees during difficult times such as unfair termination of employment or workplace bullying. --- Privacy Policy McDonald Murholme Pty Ltd McDonald Murholme Pty Ltd (McDonald Murholme) respects your right to privacy and is committed to safeguarding the privacy of our client and website visitors. We adhere to the National Privacy Principles established by the Privacy Act 1988 (Cth). This policy sets out how we collect and treat your personal information. ‘Personal information’ is information about you from which you are identifiable. We will only collect, use and/or disclose your personal or sensitive information where it is reasonably necessary for, or directly related to, the functions and activities of McDonald Murholme. By providing us with personal information you consent to the terms of this Policy and the types of collection, use or disclosure covered by this Policy. 1. Collection of your personal information. McDonald Murholme will from time to time receive and store your personal information. We collect personal information from you in a variety of ways, including but not limited to when you interact with us electronically or in person, access our website, and when we provide our services to you. We may receive personal information from third parties. If we do, we will protect it as set out in this Policy. In addition to information such as your name, postal address and email address, we may collect additional information including but not limited to information provided by you including your feedback, your financial/credit card information, and your responses to surveys / promotions. We will endeavour to take such steps as are reasonable in... --- McDonald Murholme lawyers provide legal advice and representation to employees and employers across the spectrum of employment law. Offering workplace-specific legal services since before the 1996 workplace reforms, we are a pioneering firm that has been involved in landmark cases in Australian law. The common employment law topics can be divided into four main categories of workplace disputes. Click below to find out more about the types of workplace legal disputes that we help our clients find a resolution. --- --- ## Posts We are proud to share that McDonald Murholme has been recognised as one of the Top Employment Law Firms in the APAC region for 2024 by Manage HR Magazine, a testament to our unwavering commitment to championing fair workplace practices and achieving exceptional outcomes for our clients. This recognition highlights our dedication to excellence in employment law and reflects the trust we’ve built with our clients and industry peers. Additionally, our Managing Director, Alan McDonald, was featured in a cover story in Manage HR Magazine, celebrating his visionary leadership and the firm’s innovative approach to resolving complex employment disputes. We are honored to continue serving our clients with expertise, integrity, and forward-thinking solutions. --- A restraint of trade clause is a provision commonly found in an employment contract which limit employees’ activities during or following employment which could adversely impact on the employer’s business. Examples of restraint of trade clauses include non-competition clauses, non-solicitation clauses, and non-disclosure clauses. You are not under an obligation to disclose your restraint of trade obligations to your new employer unless there is a warranty clause in your contract of employment. By signing a contract with a warranty clause, you are representing or warranting that when entering into the new agreement, you will not be violating any express or implied obligations to any former employer. Courts generally interpret restraint of trade obligations narrowly, applying them only as far as necessary to safeguard the employer's legitimate interests. There is a strong aversion to limiting an individual's ability to earn a living, so these restraints will only be enforceable if it is deemed reasonable in its scope and necessary for protecting the employer's legitimate business interests. The court will first assess whether there is a legitimate interest that needs protection. It will then evaluate if the restraint is limited to what is necessary to safeguard that interest. If the restraint goes beyond what is essential, it may be considered unreasonable. The onus is on the party imposing the restraint to demonstrate that it is both reasonable and necessary for protecting a legitimate interest Courts determine this on a case-by-case basis. In determining the reasonableness of a restraint of trade clause, a... --- If you take precautions and still find yourself trapped in a workplace which does not live up to the promises made to induce you into the job, what can you do? Both the Fair Work Act 2009 (Cth) and the Australian Consumer Law (ACL) under the Competition and Consumer Act 2010 (Cth) provide essential remedies when an employer fails to fulfill promises made to entice an individual into accepting a job, in such circumstances where you may have been headhunted from a previous position. These laws are designed to protect employees from misleading or deceptive conduct, breaches of employment terms, and unfair practices. At McDonald Murholme, we have a proven track record of successfully prosecuting cases under the Fair Work Act and the Australian Consumer Law, achieving favourable outcomes for our clients through strategic legal action. One notable case is Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) FCA 430. Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) FCA 430 In this case, Ms Rakic was employed by Johns Lyng as General Manager from April 2013 to February 2014. During negotiations for her employment at Johns Lyng, Ms Rakic alleges that the company made misleading representations regarding its profitability, which influenced her decision to leave her position at Pattersons Insurerbuild Pty Ltd (Pattersons) and accept the role at Johns Lyng. Ms Rakic’s remuneration included a percentage of net profit, making the representations about profitability particularly significant. Ms Rakic brought forth three main claims against... --- As an executive, your role is pivotal to the success of your organisation, often involving long hours, high levels of responsibility, and significant expertise. However, it is not uncommon for executives to feel they are being underpaid for the contributions they make. If this resonates with you, understanding your rights and avenues for recourse is essential. Am I Being Paid Fairly? As an executive, your remuneration is typically governed by the terms of your employment contract, which outlines key elements such as salary, bonuses, and other benefits. However, it’s important to note that the Fair Work Act 2009 (Cth) does not set minimum payment requirements for employees. Depending on your role, you may also be covered by a Modern Award or Enterprise Bargaining Agreement, which could provide additional entitlements. Many Australians are aware of the ongoing wage theft scandals that have impacted both employers and employees for many years. In 2022, VanEck, one of the world’s largest asset managers underpaid an Australian executive by over $100,000 over a period of six years. Numerous prominent organisations have faced significant financial and reputational consequences for underpaying their staff. In February 2024, the Fair Work Ombudsman secured a record $10. 34 million in penalties against the Commonwealth Bank of Australia (CBA) and its subsidiary CommSec for underpaying staff a total of over $16 million. Additionally, as of 26 June 2024 University wage theft is on track to exceed $382 million nationally as per the National Tertiary Education Union (NTEU). If you believe you... --- What should you do to protect yourself if a recruiter reaches out to offer you a shiny new job, while you are already in a job? Since the COVD-19 pandemic, remote and hybrid workplaces have become the norm for many industries, which has led to a sustained increase in people working from home compared to pre-pandemic levels. This flexibility has afforded many employees a healthier work-life balance, with many individuals also reporting an increase in their productivity and efficiency levels. However, once the COVID-19 restrictions eased, employer concerns surfaced regarding the ongoing lack of proximity between employees, which they observed to cause poor communication, collaboration and team bonding, and a subsequent poor workplace culture. In response to the reluctance of many employees to ditch the remote and hybrid arrangements, major corporations have begun implementing return-to-office mandates, with the backing of the Federal Government which has been pushing for a return to workforce normalcy since COVID-19 restrictions were lifted. Such large corporations include Amazon, with the CEO Andy Jassy recently announcing that from January 2025, Amazon will be ‘returning to the way we were before the onset of the pandemic’.  The announcement from Amazon, and other large corporations such as Salesforce, has spurred significant backlash from employees, with 91% of surveyed Amazon employees confessing they are “overwhelmingly dissatisfied” with the mandate, and 73% considering quitting because of the mandate.   As demonstrated by the above statistics, the return-to-office mandate is unfeasible for many employees, especially for those who have family and... --- The burgeoning income of superannuation funds has not been enough to stop redundancies occurring in superannuation funds. These redundancies are not well publicised, but McDonald Murholme is noticing increasing use of redundancy to terminate the employment of superannuation workers. Mr McDonald, managing director of McDonald Murholme, said it is very hard to justify redundancy in a superannuation fund when money is pouring into all funds so that they now control trillions of dollars. There are also governance and management issues in prominent funds such as Cbus and AustralianSuper. Where good employees raise governance issues out of concern for their fund, they are sometimes subject to adverse action, resulting in termination of employment, in breach of the Fair Work Act 2009 (Cth). Anyone losing their job at a superannuation fund may not find such a valuable position in any other sector. The superannuation fund EBAs have outstanding conditions of employment, not merely generous remuneration for employees. The threatened loss of a job in a superannuation fund must be viewed suspiciously because funds are growing rapidly every year, and with that growth brings many opportunities. Of course, if there are governance problems, such as with AustralianSuper, the CFMEU, or ESSSuper, good employees can sometimes lose out as a result of the poor performance of others. The law protects good employees, especially in superannuation funds under highly beneficial EBAs. Superannuation fund employees would be wise to take advice on any proposed redundancy. In the future, there will be greater challenges for superannuation funds... --- The report of The Australian dated 17 May 2023 reported that La Trobe University owes backpay to casual academics of up to $6. 5 million. Those responsible for the underpayments should be made more accountable. Vice Chancellors are paid extraordinarily high salaries and student HECS fees are a serious imposition on a younger generation. La Trobe University is created and regulated by statute, and it therefore has clear rules to which it must abide, not just employment laws. It has widespread privileges, but those privileges do not extend to contravening its statutory regulation or employment laws. Query what action is being taken against the university, Vice Chancellor and Executive Management to ensure that lessons are learnt? Small businesses are fined heavily in the Federal Circuit and Family Court of Australia when they fail to pay their workers even if the reason they have not paid is because they cannot afford to do so when their business is failing. Surely, small business associations must be calling for very profitable university businesses who are constantly demanding money from the government to be given equal treatment/penalties. --- The latest shock reserve bank interest rate hike has been roundly criticised. It will cause job losses, whether through business closures or downsizing. Most employers will be entitled to a redundancy, regardless of the financial position of their employer. If an employer cannot pay, the Australian Government will in some circumstances pay through its Fair Entitlements Guarantee scheme. Nevertheless, it is important that employers follow the right processes in creating redundancies. This means not selecting the wrong workers in breach of the Fair Work Act 2009 (Cth). For example, an employer is not entitled to pick off sick or injured workers, aged workers, pregnant women, or the most highly paid with the longest length of service. It must be remembered that it is the job that is made redundant, not the person. An employer must look at its structure, even if hastily, to decide the structure it needs in the downturn, including which jobs are essential, and those jobs which are not. An employer must then looks at the skills of its workers and consult with those workers. Some workers will want to stay on, and some workers may want to leave. To the extent that there is flexibility in positions held by the workers, the employer has plenty of scope to achieve its objectives while at the same time not breaching the Fair Work Act 2009 (Cth). If the redundancies have to be created quickly, legal advice should be promptly delivered, giving the employer security against costly litigation from... --- Post COVID-19, there is a shortage of employees and record low unemployment levels. How do employers manage this difficult labour market? It will be challenging for employers over the next couple of years. Wages will be pushed to new heights as employers pay more to attract the right people. Employees will expect higher wages to deal with higher prices and higher interest rates. Is paying employees more the only answer? Can businesses afford to do so, when all its other costs, including power bills, are rising rapidly? Paying people more is not the only answer to building a better employee workforce. So, what can an employer do to keep a business profitable, while walking on eggshells around some employees who are retained because finding new employees is too difficult? Some employees seeking to stand on their rights will exploit the employer. Those legal rights have been significantly enhanced over the last decade. The Liberal Government kept in place most of the reforms introduced by Julia Gillard in the Fair Work Act 2009 (Cth). First, employers should be quick to improve their own knowledge of workers’ rights. This will prevent them from accidently breaching laws of which they are unaware. The Fair Work Act 2009 (Cth) encourages people to complain, even if ‘the lady doth protest too much methinks’ In the recent case of Ryan v Rugg, Ms Rugg is suing independent MP Monique Ryan for instructing her to work unreasonable hours, and engaging in ‘hostile conduct in the workplace’.  This... --- Employers and employees must be live to recent legislative changes to the Fair Work Act 2009 (Cth) (the Act) which are set to introduce paid Family and Domestic Violence Leave (FDV Leave). What are the key changes to FDV Leave? Under the Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (the Amendments) all full-time, part-time, and casual employees who categorically fall under a modern award, enterprise bargaining agreement or the National Employment Standards (NES) will be entitled to 10 days of paid FDV Leave within a 12-month period. Importantly, whilst these changes mark a significant change to the Act, it is important to note that paid FDV Leave is not an accrued entitlement like annual leave, personal leave or long service leave. The new FDV Leave standards will come into effect from: 1 February 2023, for employers with 15 or more employees; and 1 August 2023, for small business employers. Under what circumstances can I take paid FDV Leave? Employees can take paid FDV Leave if they are: experiencing family and domestic violence; need to take action to deal with the impacts of family and domestic violence; and it would be impractical for the employee to do so outside of work hours. The definition for ‘family and domestic violence’ under the Act is broad. It includes violent, threatening, or other abusive conduct that is undertaken against the employee, a close relative of the employee or a member of the employee’s household. It further stipulates that abuse may occur at the hands of a... --- By McDonald Murholme Senior Associate, Bianca Mazzarella There is an increasing number of professional mothers who have recently given birth and are needing to find more money due the rising cost of living. They either go back to work sooner than planned or decide to start their own business at home so they can spend more time with their children. These mothers are called ‘mumpreneurs’ and are also known as women entrepreneurs. If all goes to plan and the business flourishes, a mumprenuer may find herself looking for some extra help but can’t afford a permanent employee. This is where a virtual assistant can come in to the rescue. What is a virtual assistant? Virtual assistants are rising in popularity for start-ups and are also known as a remote personal or administrative assistant. Instead of working on site, a virtual assistant works remotely, usually from the comfort of their own home. This arrangement removes the need for a mumprenuer to accommodate an extra person in her working environment. Due to technology improvements and advances over the current years such as document sharing and online organisational databases, the dream of working remotely has become a reality. Virtual assistants tend to be highly skilled, independent professionals who can provide a business with administrative, technical and creative business support in an affordable and flexible way. What do virtual assistants do? Virtual assistants can help an employer save a large amount of time at an affordable rate. They can cover aspects of the business... --- A study of 3,100 jobseekers found 80 per cent of respondents over the age of 50 believed they were treated differently because of their age. McDonald Murholme Senior Associate highlights that the Fair Work Act user guide serves as a free and accessible resource to those who have been affected. See below article for further details. McDonald Murholme guide to Fair Work Act Law firm McDonald Murholme has developed a Fair Work Act user guide to help workers who feel they have been unfairly forced into resigning or badly treated at work. Senior associate says the guide highlights integral points of the act and was created as a platform where workers can gain assistance navigating through a complex legal environment. “It is important that there are free and accessible resources available to those who have been affected,’’ Jewell says. Age in IT’s way Technology recruitment consultancy Greythorn has found an alarming number of IT workers believe age discrimination exists in the industry. A study of 3100 jobseekers found 61 per cent of respondents have been discriminated against or are aware of someone who has. The figure rose to 80 per cent for respondents over 50 who thought they were treated differently because of their age. On the move Morgan McKinley’s Asia-Pacific employment monitor for the third quarter of this year shows that while job vacancies remain flat, the number of professionals looking for a job has risen by 10 per cent from this time last year. Those seeking new employment... --- The news in the Australian Financial Review (3. 11. 22) that the University of Melbourne owes more than $20million dollars to its staff is alarming. That an educational institution responsible for training leaders of the future in law and commerce to be delinquent, or worse, in paying its staff, requires a serious investigation and consequences. The university is also in the news for its harsh treatment of the Werribee Animal Hospital. What else is going on at the university that the public should know about? The ghost of the failed Melbourne University Private appears to be haunting the institution still. Melbourne University to repay another $22m in wage theft scandal (afr. com) --- The front page news that BHP is “sorry” for more than 100 sexual harassment claims in the last 12 months is alarming. There is more than one form of harassment that employees can be subject to from an employer. Is the sexual harassment just one aspect of poor workplace culture at BHP? And is it isolated? Are other employees being subjected to bullying and adverse action if they are game to speak up? McDonald Murholme will advise an employee feeling bullied, harassed or subject to adverse action for making a complaint. BHP (ASX: BHP) ‘deeply sorry’ as staff report 103 sexual harassment cases in a year (theage. com. au) --- By Alan J. McDonald The case for a climate clause The newly appointed Albanese Government has flagged the climate crisis as a priority concern going so far as to propose a net zero emission target by the year 2050. Australia has recommitted to its obligations under the Paris Agreement – an international treaty designed to combat climate change at the global level. How does this affect small businesses? Climate conscious consumerism forms the backbone of modern society. In 2021, the United Nation’s Intergovernmental Panel on Climate Change (‘IPCC’), released what is described as its ‘most assertive report in 30 years’. The report found that in the last 2000 years, human influence has accelerated global warming at unprecedented and hazardous rates. In the private sphere, corporations attempt to align themselves with the current government by adapting and implementing meaningful climate protection practices. Growing businesses may seek to implement change by way of introducing climate conscious policies in the workplace. Larger corporations, however, may adopt a more robust approach such as including specific climate conscious provisions within their employment agreements. The Chancery Lane Project (‘TCLP’) is a collaborative international initiative organised by legal professionals with a vision to ensure climate efficient contracting as a solution to climate change. TCLP provides an abundance of free and accessible draft contractual provisions that may be incorporated into employment agreements. One such provision, is the Athena Clause, which requires an employee to participate in environmental educational programs as a condition of employment. The theoretical foundation for... --- In a decision that shines a light on road service provider NRMA's business model, the Fair Work Commission has found a contractor mechanic's failure to meet KPIs - when he spent too much time with customers and failed to sell enough batteries - did not provide a fair basis for sacking him. The decision by Deputy President Boyce to reinstate this roadside service mechanic who missed sales targets sets a new precedent. It is usually considered that if a salesperson does not sell there is little prospect of success in an Unfair Dismissal claim. DP Boyce appears to take a more sensible commercial view of what is reasonable for an employee to be required to achieve. In doing so, DP Boyce puts a spanner in the works of employers who set unrealistic sales targets followed by a Performance Improvement Plan (PIP). Reinstatement for roadside service mechanic who missed sales targets (workplaceexpress. com. au) Yen Yap v Club Assist Pty Ltd FWC 520 (8 July 2022) (austlii. edu. au) --- ANZ Chief Executive, Shayne Elliott, sees $260m in annual synergies from the recent Suncorp Bank deal. McDonald Murholme queries; is this "code language" for a proposed reduction in the number of employees in the combined entity? Will there be less service and less competition in Queensland banking by common ownership of ANZ and Suncorp? The USA thrives because it has a competitive banking sector with hundreds of banks, not a shrinking handful. Recent reports that the ANZ have been losing its share of home mortgages might explain one of the needs for the takeover. Employees adversely affected by the takeover should be ready to take legal advice, not merely rely on their union, which may have to accept redundancies as a fact of life. Regrettably the reduction in the number of banks reduces the options for alternative employment for persons dismissed. It also opens up the possibility of culling employees in breach of the Fair Work Act which prohibits terminations where a substantial reason is age, gender, martial status, physical attributes and the making of a workplace complaint. Big four bank news: ANZ buys QLD Suncorp Bank for $4. 9b | news. com. au — Australia’s leading news site --- McDonald Murholme principal, Alan McDonald, provided some legal perspective to 7 News in this story, in response to the bizarre and intrusive questions a potential employee was asked to answer when applying for a job at Costco. Costco Australia under fire after ‘wild and intrusive’ cashier job applicant questions are exposed | 7NEWS --- The news in the Financial Review below raises the issue of social origin, which is rarely raised. The big question which the court will no doubt grapple with, is whether a person who has been involved in civil litigation, including in an earlier unfair dismissal claim, can be dismissed as Bunnings have done in the case cited below. View Article Here --- The unsuccessful employee claim of unfair dismissal referred to in the Financial Review below might have had a very different outcome had the employee relied upon the General Protections laws. The employee was taking part in a political activity and stating his political views. The Fair Work Act protects political opinion from being a reason for dismissal. See Sayed v Construction, Forestry, Mining and Energy Union FCA 338. View Article Here --- McDonald Murholme is proud to have been named by Australasian Lawyer as a 2021 Excellence Awardee for Employment Law Specialist Firm of the Year. Following the firm's success, Managing Director Alan McDonald spoke to Australasian Lawyer about the common employment issues faced by companies since the pandemic began. To view the video on Australasian Lawyer head to https://www. thelawyermag. com/au/videos/upholding-standards-and-legal-rights-in-the-workplace/309443 --- As Australia's vaccination rollout continues to gain momentum, employers and employees are encouraged to work together to find solutions that suit their individual needs and workplace. Employers who wish to enact a significant workplace change must consult with their employees and representatives in accordance with any relevant award or enterprise agreement. Additionally, under work health and safety laws, employers are required to consult with health and safety representatives (HSRs) about workplace risk management. Employers must provide employees and representatives with reasonable time to respond to any proposed changes and consider any objections before passing a final decision. If, after following these processes, an employer mandates employee vaccination against COVID-19, the employer should cover travel costs and provide employees with time off work without loss of pay if an appointment is during the workday. In circumstances where vaccination is not required but encouraged, employers can still discuss work adjustments, leave arrangements or incentives to support employee vaccination. Some employment contracts may already contain vaccine-related clauses, including concerning the COVID-19 vaccination. If your employment contract contains a clause specifically regarding flu vaccinations, these are not inherently applicable to the COVID-19 vaccination. Employees who are unsure about what applies to them should check their employment contracts. Employers can add a vaccine requirement clause into employment contracts, provided it is not contrary to any anti-discrimination laws. It is lawful for an employer to require employees to receive a vaccination where: A specific law (such as a state or territory public health order) requires an... --- Are you an authorised worker? Our team have broken down the Authorised Worker Permit requirement in Metropolitan Melbourne, effective 17 August 2021. In response to the current COVID-19 situation in Metropolitan Melbourne, Victoria’s Chief Health Officer Brett Sutton has recently provided Workplace Directions (No 44) in accordance with his emergency powers under the Public Health and Wellbeing Act 2008 (Vic). Under these directions, authorised workers are now required to carry an Authorised Worker Permit in hardcopy or electronic form and photographic personal identification. Employers must note that the responsibility of issuing worker permits to employees will fall on the employer. However, failure to comply will result in significant penalties for both employers and employees. ELIGIBILITYAs an employer, you will be required to issue a worker permit to your employee if: Your workplace is on the list of Authorised providers and authorised workers list, found here; the employee is working in an approved category for on-site work; and the employee cannot work from home. Employers must keep a record of all Authorised Worker Permits issued. A person does not require a worker permit if one of the following circumstances apply to them: If the primary purpose of the worker’s travel and attendance at the Work Premise is to obtain their first Authorised Worker Permit from the employer; If the worker is required to work from the work premise on short notice, rendering it impracticable for the worker to receive a current Authorised Worker Permit before attending. Here, the worker can carry an Authorised Worker Permit which is expired, incomplete... --- Swimming is always an important part of Australia’s gold medal chances at the Olympics, so a decision made by the Federal Court of Australia about swim coaches pay is interesting at this time. The Appeal Court overturned a prior finding that coaches with more advanced qualifications do not have access to the Fitness Industry Award 2010, a decision which may have wide-reaching implications for swim coaches throughout Australia. Mr King was employed by Melbourne Vicentre Swimming Club Inc and coached swimmers at the Melbourne Sports and Aquatic Centre. He initially held a Bronze Licence swim coaching qualification issued by the Australian Swimming Coaches and Teachers Association (ASCTA) before obtaining a Silver Licence later in his employment. The Award outlines general requirements for eligibility under each level of the Award. Levels 2, 3 and 4 of the Award reference specific qualifications and commitment requirements for swim coaches, including holding a current ASTCA Licence for Coaching or equivalent, up to Bronze. The Court found that while a coach must meet these specific requirements to be covered under the Award, they were merely a minimum requirement, and there was no express indication of maximum qualifications. In its ruling, the Court stated it would be odd for further qualifications to bar a swim coach from accessing entitlements under the Award. Accordingly, coaches like Mr King, who holds a Silver or Gold Licence, or coach intermediate or advanced swimmers may be covered by the Award.  They will be guaranteed higher minimum payments. As a result... --- Crafting a robust social media policy could protect your company from unfair dismissal claims. At a time when 20 million Australians have an active social media account, no organisation can afford to ignore the impacts that social media can have on branding and reputation. When comparing different stances taken by the Fair Work Commission (FWC) and Federal Courts, it’s apparent that for a company to be well and truly protected should their employees engage in harmful social media use (against the company or an important client, for example), it needs to take precautionary steps. It’s essential companies maintain an updated and well-distributed social media policy to eliminate any ambiguity around acceptable use. Flouting the rules The 2019 judgement of Banerji v Bowles highlighted just how critical such policies are in communicating a company’s stance on social media. Banerji, a former employee of the Department of Immigration and Citizenship, was tweeting from an anonymous account, often being critical of her employer. She amassed over 9000 tweets, but she never publicly declared she was a public servant When Banerji’s identity was revealed as part of an internal investigation, her employment was terminated. This decision hinged upon the fact that the Australian Public Service had a clear code of conduct which included social media guidelines outlining that it is inappropriate for employees to make unofficial public comments that criticise the government, politicians or anyof their policies. Social media policies not only reinforce expectations, but also strengthen an employer’s grounds for dismissal where an employee has grossly misused social... --- Most of us know the behaviours we should avoid at work. But it’s not always clear which kinds of behaviour could actually result in us being fired. We asked managing director Alan McDonald from employment law firm McDonald Murholme to explain the behaviours that can end up in dismissal. Here’s what you should know. Risk to the business Causing damage to a business might seem like an obvious reason for dismissal. But creating risk of damage can also be a reason for dismissal – though a rare one. It’s all to do with the definition of ‘serious misconduct’ in the Fair Work Act. “Most people are aware they can be dismissed for serious misconduct, but few people know that serious misconduct can include creating a risk of damage to the employer’s business, rather than any actual damage caused,” McDonald says. “Creating a risk to an employer’s business viability can arise from damage to reputation, profitability and even risk to the health of the business owner – and that’s especially relevant now with COVID-19. ” Failing to comply with your organisation’s policies Breaking company rules such as social media policies can lead to termination of employment. “You should be cautious when posting on social media,” McDonald says. “In a highly digital society, employees should think twice before posting about their employer or co-workers on social media, as there are better ways to highlight problems. ” Using insulting language Bad or insulting language doesn’t automatically justify dismissal, but McDonald says now more than ever, there... --- McDonald Murholme Managing Director Alan McDonald recently appeared on A Current Affair as a legal expert, answering questions around the coronavirus vaccine. To watch the full clip view it below or watch it on YouTube. --- The laws of various states can result in severe penalties for workplace deaths. What does HR need to know? Australia’s various industrial manslaughter laws make it simpler to prosecute organisations when it comes to workplace fatalities and impose harsher penalties on those found guilty, but they do not change the compliance standard of existing workplace health and safety (WHS) laws. So while it’s true, as the Herald Sun reported, that bosses in Victoria could potentially be jailed for 20 years under the state’s new industrial manslaughter law over a fatality related to a someone who contracted COVID-19 in the workplace, this is not going to happen in any organisation that is compliant with WHS regulations as they existed before 1 July (when the law went into effect). “In a practical sense, the new laws do not create any new obligations on employers, but merely impose a greater offence that is subject to a different legal test,” says Alan McDonald, managing director of employment firm McDonald Murholme. To date there has only been one conviction of a business under an industrial manslaughter law, and no convictions of any individuals. So we don’t know how real-world cases will shape the law over time. That being said, it’s worth reviewing the law around workplace deaths in light of the continuing pandemic. Industrial manslaughter vs WHS offences While there are differences across the states, in general it is an offence under WHS laws to fail to provide a safe workplace, insofar as that is “reasonably practicable”. Industrial manslaughter... --- Whilst it is crucial that law firms monitor the volume of hours worked by younger professionals, such audits might fail to identify broader workplace problems, argues one lawyer. Late last year, new industrial regulations were handed down requiring law firms to log the quantum of hours worked by graduate lawyers and paralegals to ensure that junior staff are being properly compensated. Earlier this week, reports about underpayments at international firm Ashurst came to light, to which the firm told Lawyers Weekly that additional payments have been made to staff where necessary on the back of findings from its independent audit. But while there was hope in October 2019 that requirements to record such overtime might help ensure that emerging lawyers have better cultural expectations, it is possible that the audits currently being undertaken by the big end of town are only scratching the surface of issues facing juniors. In conversation with Lawyers Weekly, McDonald Murholme said that audits of overtime worked can suffer from two problems. “The first is that they do not necessarily record or measure the pressure that is felt by graduate lawyers to work unreasonable hours. This is a workplace culture issue that can’t necessarily be gleaned from records alone,” he said. “The second problem stems from the first problem and that is that graduate lawyers may not accurately record their hours out of fear that they may be seen as inefficient. That is, there is a pressure to complete the work in fewer recorded hours to ensure that an entitlement to overtime... --- The Fair Work Ombudsman (FWO) has marked the New Year with a sham contracting warning for small businesses, unveiling fresh court proceedings against a Queensland-based transport company. Boske Road Transport will face the Federal Circuit Court over allegations it misclassified four delivery drivers as independent contractors, leading to underpayments totalling $63,803 between 2016 and 2018. The case is just the latest move by the regulator to crack down on sham contracting — where firms disguise employment arrangements as independent contracts to avoid payment of various entitlements. Ombudsman Sandra Parker said the regulator will be on the lookout for businesses mischaracterising their workers in 2020. “If employers misclassify employees as independent contractors and pay flat rates that undercut entitlements, they face serious consequences such as court action, hefty back-payment bills and penalties,” Parker said in a statement circulated Monday. The FWO was directed to establish a dedicated sham contracting taskforce last year, receiving more than $9. 2 million in taxpayer funds to crack down on dodgy arrangements. Last September, inspectors were seen combing through the stands of sports stadiums in Melbourne and Sydney on the lookout for contracted cleaners. In its most recent case, the FWO will allege the workers in question drove vans owned by the company, wore its uniforms and were required to work at days and times set by the company. All of these factors suggest an employment relationship, Employment specialist law firm McDonald Murholme tells SmartCompany. “There’s a couple of questions you can ask that tell you... --- News that retailer Harris Scarfe has entered receivership caps off a “nightmare year” for private sector employees, with companies plagued by underpayments scandals and job losses, says one employment lawyer. McDonald Murholme managing director Alan McDonald said there is concern for Harris Scarfe’s 1,800 employees who are being left anxious in the lead up to Christmas. This is “just the tip of the iceberg”, he said, for what has been a “horror year for Australian workers”. “The 1,800 Harris Scarfe employees whose jobs are at risk cap off a bad year for employees in the private sector. Employees in the private sector have suffered widespread underpayments in 2019 while government employees have been demanding and receiving significant pay increases over recent years and are looking for more,” he said. “For example, the police are demanding a 4 per cent pay rise – the other front-page story. It appears that unless private sector companies have lucrative government contracts business has been difficult in 2019. “No wonder, the federal government revenue of $513 billion, projected to rise to $580 billion, demonstrates the pressure on business and obviously makes it difficult for business to pay workers when taxes are so high. “Contrast America where tax rates have been slashed and unemployment has fallen to 3. 5 per cent compared to Australia’s 5. 5 per cent. The ATO reports that a third of large companies are not paying tax, the reason for that is carried forward losses, hardly the best way to minimise tax. ” Legally,... --- A NSW father is seeking a $301,000 payout from car giant Toyota after he was fired and denied a massive redundancy package after giving his son a slice of his own pizza. Greg Sherry worked as a Toyota manager for decades before losing his job last March – the day before he was due to score $379,268 in redundancy pay. According to an exclusive investigation by The Australian, he was sacked for “serious misconduct” relating to the use of a company credit card during his last work trip for the company in January 2018. The publication reports Mr Sherry travelled to Melbourne for business purposes, which he claimed had been pre-approved, with his wife and two children. He personally paid for his family members’ flights and meals and used company funds for his own flights, accommodation and food. On the last night of the trip, Mr Sherry offered his young son a slice of pizza that was left over from his own $32. 50 order that was paid for by the company card. The Australian reports Mr Sherry was later questioned about his spending by Toyota bosses, and he told them his son had eaten part of his meal. Citing documents lodged in the District Court of NSW, the publication revealed Toyota claimed Mr Sherry had broken company rules by purchasing the “meal for his son”. It also accused him of booking a bigger hotel room than necessary and staying an extra night for “personal” reasons, although Mr Sherry argues prices were... --- From closure and staff leave to public holiday pay, here's what you need to know as an employer. The holiday season is a time for many of us to unwind, but if you’re a small business owner, the festive season can bring a level of stress. Many businesses in Australia go into hibernation over Christmas and New Year, with SEEK research finding that 34% of employees plan to take leave because their workplace will shut. Whether you’ll be open for business or not, how can you confidently navigate what you can and can’t legally do over the holiday season? We spoke to Sam Nottle, a lawyer with employment law firm McDonald Murholme, to find out. Can I insist employees use their annual leave over the holidays? Generally speaking, for award or enterprise agreement employees, these agreements will allow you to direct an employee to take annual leave during a shutdown period. “Best practice would be to check the award or enterprise agreement, as it might include a requisite notice period (e. g. four weeks) to be given to the employee,” Nottle says. For award or enterprise agreement-free employees, employers may require an employee to take a period of paid annual leave in circumstances that are reasonable. “A requirement to take annual leave would be reasonable if the employer’s enterprise is being shut down for a period, say between Christmas and New Year,” Nottle says. “It would be best practice for an employer to provide notice to the employee of at least... --- Being made redundant can be overwhelming if you don’t know where you stand legally. We asked a lawyer to explain the rights and entitlements employees have when it comes to redundancy, and to clear up some of the key questions around this situation. What are reasons for redundancy? There are a few reasons your position may become redundant. Your employer may decide your role is no longer required in the organisation or the business may become insolvent or bankrupt, says Alexandra Targett, Lawyer at McDonald Murholme. “Businesses may also need to make a position redundant if they are suffering from low sales or are undergoing a restructure, forcing them to cut down on jobs,” she says. Redundancies aren’t considered genuine from a legal perspective if an employer could have, in reasonable circumstances, provided the employee with alternative suitable employment within their business or an associated entity. In this situation you may be able to bring an unfair dismissal claim against the organisation. Do I get a say in my position being made redundant? While there’s no legislative requirement for employers to consult with an employee about a redundancy before the decision is made, Targett says your employment contract may contain an obligation on your employer to consult about a major change in the workplace, such as a redundancy. “That’s why it’s important to review these documents – you may be able to argue the redundancy was not genuine, particularly if your employer has failed to comply with their obligations” she... --- “The fact that there has never been a successful whistleblower case in Australia speaks volumes. ” The whistleblower protections in Australia are seriously lacking. Despite Parliament passing new legislation to expand the whistleblower protections in the Corporations Act to provide greater protections, there is still very little recourse for employees who are punished for shedding light on employer misconduct. The private sector The primary provisions for those working in the private sector are contained in the Federal Corporations Act 2001. The changes to these laws were put in place to provide for an expanded corporate whistleblowing scheme that will apply to the vast majority of businesses. Both the new laws and existing laws contain protections for whistleblowers. The current corporate sector whistleblower regime, as of 1 July 2019, looks like this: It includes in the definition of whistleblower both current and former employees, officers and contractors, as well as their spouses, dependents and other relatives, and anonymous disclosures. It extends the protections to whistleblower reports that allege misconduct, an improper state of affairs or circumstances, or breach of financial sector law and all Commonwealth offences punishable by imprisonment of 12 months or more. Though a report solely about a personal work-related grievance is not covered by the protections. It creates civil penalty provisions in addition to the existing criminal offences, for causing or threatening detriment to (or victimising) a whistleblower, and for breaching a whistleblower’s confidentiality. It gives protections for whistleblowers in limited circumstances, if they disclose to a journalist or... --- Every week, a new major Aussie company seems to be caught out underpaying workers. Earlier this week, Woolworths made international headlines after it emerged the supermarket giant had underpaid nearly 6000 employees over the past nine years, with repayments expecting to cost up to $300 million. Today, The Australian revealed several huge firms, including Super Retail Group, Qantas, ABC, Thales, Wesfarmers and Bunnings, had self-reported to Fair Work Australia after discovering ­under­payments of wages, super and other entitlements to employees over almost a decade. And earlier this year the wage theft scandal also engulfed celebrity chefs, including George Calombaris and Neil Perry. So why does it keep happening? And more importantly, how can you find out if you’ve been ripped off at work, and how can you get your hands on your cash if you have been a victim? Principal lawyer at leading employment law firm McDonald Murholme, told news. com. au information regarding minimum wages and penalties could be found on the Fair Work Commission website. However, because the documents are often technical and confusing, the Fair Work Ombudsman is also available to help everyday workers determine appropriate rates. But Mr Jewell said the first step for employees was to ask their boss four critical questions. “Employees should ask their employer about what modern award covers their employment, whether there is an enterprise agreement, at what level they are employed and whether they receive penalty rates or a rolled-up salary,” he said. “If the employee has any reason to... --- For some time, whistleblower protection in Australia in the private sector has fallen far short of achieving protection for employees, with legislation not striking the right balance, argues one lawyer. When asked by Lawyers Weekly if Australia’s whistleblower protections for private sector employees are working, McDonald Murholme's lawyer Talitha Maugueret said that the simple answer is “no”. “Public sector employees are covered by Public Interest Disclosure Act 2013, which is far more comprehensive than the coverage afforded to those in the private sector. For some time, whistleblower protection in Australia in the private sector has fallen far short of achieving protection for employees (or other individuals such as contractors) who report misconduct or fraud by companies,” she said. “This has prompted legislative reform which has resulted in the recent introduction of the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (TLA Act) which commenced on 1 July 2019. the recent introduction of the TLA Act, which makes key changes to the Corporations Act 2001 and Taxation Administration Act 1953, it is unclear whether the blatant shortcomings of previous whistleblower protections under the Corporations Act will in practise be addressed. ” Notwithstanding that concern, Ms Maugueret said, the TLA Act is “promising, as it addresses several key concerns” in relation to previous legislated protections, including the removal of the “good faith” test to a requirement that the whistleblower has objectively reasonable grounds to suspect wrongdoing, anonymous disclosures; and an increase of penalties for individuals and corporations for revealing a whistleblower’s identity without consent... --- The relationship between Victorian magistrate Rodney Higgins and his 23-year fiancée Ashleigh Petrie is a reminder to employers to enact policies to protect themselves and their employees in the case of interoffice romances, as well as ensuring that juniors are not unduly disadvantaged. In recent days, mainstream media reported that Mr Higgins had proposed to Ms Petrie, a court clerk 40 years his junior. The engagement offers lessons, McDonald Murholme principal mused, when it comes to workplace policies surrounding interoffice romances. Speaking to Lawyers Weekly, Mr Jewell said: “Employers should take the lesson that intraoffice romances are common and therefore they should turn their mind to it and develop policies to protect themselves and their employees. ” “One such policy might be to require employees to notify the employer of a relationship in circumstances where there is concern about a conflict of interest or power imbalance,” he posited. “From an employment law perspective, the actual relationship is not a significant issue, but conflict of interest, favoritism, undue influence and power imbalance leading to sexual harassment are all very real concerns when a senior employee is in a sexual relationship with a more junior employee. ” It seems, Mr Jewell continued, that Mr Higgins has been relocated from Sale court circuit to Bendigo as a result of their relationship. “Policies against interoffice romances are generally in place to protect the subordinate in the relationship. However, in this case, the practical effect of transferring Mr Higgins is that Ms Petrie would likely... --- So, you’ve landed a job, signed on the dotted line and you’re all set to start your new role. Then you get a call that the dream job you’d given up on is now on offer. You’re keen to take up this dream opportunity, but you don’t want to burn any bridges—or break any contract laws. Here’s how three employment experts suggest you handle it. The employment lawyer A sensible place to start is to check the agreement you have already signed off on. “You need to look at the terms of the agreement to determine whether you owe your employer any legal obligations on departure,” says Arthur Hambas, lawyer at McDonald Murholme. He says typically contracts will specify a minimum period of notice which must be given by the departing employee. Your contract will outline if you’ve signed up on a fixed or maximum term contract. A maximum term allows you the right to terminate your contract by giving notice, while a fixed term does not. “It’s rare for employers to litigate if you do decide to break the terms of your contract before starting, but it does happen. This is typically in situations where an employer can show significant loss occasioned by the breach,” he says. The human resources professional Arguably the bigger risk in bailing out on a job you’ve already accepted is the potential hit to your reputation. With that in mind, Andy Pope, Principle at Contingent says you should be very sure your dream job... --- Comments made earlier this week from the Australian Chamber of Commerce and Industry’s director of workplace relations are “entirely misplaced” and seek to weaken a dismissed employee’s ability to hold an employer to account. McDonald Murholme lawyers have taken ACCI director of workplace relations Scott Barklamb to task over his “ill-informed” comments in The Australian newspaper on Wednesday, saying Mr Barklamb’s position represents “yet another attempt to push for the weakening of a worker’s ability to hold an unscrupulous employer accountable for its conduct”. Requirements to commence litigation In the article in question, Mr Barklamb complained of the “extremely low requirements to commence litigation” against a former employer and proposed restricting a dismissed employee’s access to justice by increasing the fees payable to file an application for an unfair dismissal remedy. “This is notwithstanding the fact that most dismissed employees have just lost their sole source of income meaning that access to justice is already more difficult than many other litigants. Notably, no fee is imposed by the Fair Work Commission for an employer to respond to an unfair dismissal application, nor is a fee imposed by the Fair Work Commission to provide the employer with access to a conciliation conference to try and resolve the dispute with their former employee,” McDonald Murholme lawyers responded. “The proposal also ignores the fact that employers are almost always better experienced and better resourced to deal with workplace disputes when compared to employees. Employers who do not wish to incur the expense of... --- Underpaid pieceworkers could be compensated according to minimum hourly award rates, following an appeal by the Fair Work Ombudsman (FWO) in a case against Queensland farm Marland Mushrooms. Currently, piece rates are paid by the amount employees can pick, pack, make or prune, similar to commission rate structures. Although the system is in place of hourly pay rates or project-based salaries, employees can mix shifts paid by piece rates and shifts paid by the hour under current law. In a statement released yesterday, the FWO said it will be asking the High Court to “consider legal questions” about compensating pieceworkers who receive “inadequate” rates. It also seeks to ensure employers understand whether those employees are permanent or casual. This comes in response to a Federal Court ruling in July 2018, which found liquidating horticultural business HRS Country Pty Ltd underpaid 386 mushroom pickers at a Queensland farm operated by Marland Mushrooms. However, the court disagreed with some of the submissions by the FWO, including its calculations of how much pieceworkers were underpaid and its move to consider HRS director Tau Hu and Marland Mushrooms director Troy Marland accessories in the offence. FWO appealed in the same month, which caused a split decision in the Full Federal Court in August. The High Court’s decision could change the obligations employers owe pieceworkers under the Horticultural Award. Alan McDonald, managing director of employment law firm McDonald Murholme, tells SmartCompany the court’s decision will “very clearly” have “profound” effects on the cost of fresh food and... --- An argument of how the word ‘day’ should be interpreted means organisations across Australia have to rethink entitlements. If you’re in HR and you deal with shift workers, last week’s Federal Court ruling might have you re-configuring the payroll. The case was between two workers at Cadbury’s Chocolate Factory in Claremont, Tasmania, and Cadbury’s parent company, Mondelez Australia. The two employees work 12-hour shifts. But, when it came to personal paid leave, Mondelez Australia said it should not have to pay beyond 6 days for the 12 hour shift workers (roughly the same amount of hours a typical full-time employee works). The workers, represented by the Australian Manufacturing Workers Union (AMWU) disagreed. Justice Mordy Bromberg and Justice Darryl Rangiah sided with the workers, while Justice David O’Callaghan didn’t, resulting in a win for the workers, in a 2-1 split decision. What even is a ‘day’? The crux of the case came down to the meaning of the word “day”. The Fair Work Act 2009 section 96(1) states that, “for each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave”. However, the Act doesn’t define a “day”, leaving it open to interpretation. Would it be 10 days as in 10 versions of the typical 7. 6 hours, or would it just be 10 days total, regardless of the hours worked in those days? In other words is a “day” a standard working day, or is it a standard day? In their judgement, Justices... --- With pregnant women and new parents continuing to be discriminated against at work, we wanted to share a reminder on our legal rights, thanks to employment lawyer Alexandra Targett, from McDonald Murholme Solicitors. Juggling work and parental responsibilities as a first time parent can be both challenging and rewarding, but it’s also a time when women should be especially aware of their legal rights. That includes understanding an employer’s obligations around responding to a request for a flexible working arrangement, as well as your legal rights around advising an organisation of a pregnancy, and rights and obligations again when taking and then returning from parental leave. Unfortunately, working mothers also need to ensure that they are not being discriminated against because of their gender, pregnancy, parental responsibilities, maternity leave, or request for a flexible working arrangement. RIGHT TO REQUEST FLEXIBLE WORKING ARRANGEMENTS Parents of children (who are school age or younger) have the right to request flexible working arrangements to assist with their parental responsibilities – provided they have completed at least 12 months of continuous service with their employer immediately before making the request. This protected right under the Fair Work Act 2009 (Cth) provides working mothers with the necessary flexibility to remain in the workforce despite their family responsibilities. Examples of flexible working arrangements include changes in hours of work, changes in patterns of work, or changes in location of work. For instance, a parent might request a later start time or earlier finish time in order to drop off or... --- One of the nation's most respected swimming clubs is embroiled in a bitter legal stoush with a former coach, amid allegations of underpayment, bullying and inappropriate comments towards young athletes. Melbourne Vicentre Swimming Club has produced a string of Olympic champions, including Mack Horton, Giaan Rooney and Michael Klim, but is now accused of underpaying its former coach Matthew King more than $200,000, according to court documents. Mr King, who was responsible for the national youth squad until 2018, claims his employment was covered by the Fitness Industry Award, which entitled him to penalty rates when he did not receive a 10-hour break between shifts. Lawyers for Mr King argue the condition was not complied with when he regularly finished coaching shifts at 7. 30pm and then began the following day at 5am. They also claim underpayment of penalty rates for weekends, public holidays and broken shift allowances. Mr King claimed that he first informed the club’s then chief executive, Nicole Livingstone, and former head coach Ian Pope that he was being underpaid during a performance review at the Melbourne Sports and Aquatic Centre in 2014. He claims that Ms Livingstone, a three-time Olympian who now works with the AFL, told him in 2015 that he was covered by a different award. “Ms Livingstone said words to the effect that ‘if you go to the Fair Work Commission it would be the end of the club’,” according to a statement of claim lodged in the Federal Court. However, lawyers for Melbourne... --- The federal government will move ahead with plans to criminalise serious worker exploitation within the “next month or so”, as argument rages on about how to deal with Australia’s wage theft crisis. Prime Minister Scott Morrison yesterday confirmed Industrial Relations Minister Christian Porter is drafting legislation which would criminalise worker exploitation, amid a push for broader reforms to Australia’s workplace laws. The new laws could introduce the penalty of jail time for business owners who engage in wage theft and will give effect to recommendations made by Allan Fells’ Migrant Worker Taskforce earlier this year. Porter, who has been fielding pitches from business lobbyists about how to shape Australia’s workplace laws, told the ABC yesterday legislation is expected to be tabled in the “next month or so”. “Criminalising serious exploitation can be extended to serious, repeat, and substantial instances of underpayment, which would constitute, on anyone’s reasonable judgement, wage theft,” he said. The Attorney-General earlier this week described the $200,000 fine handed to celebrity chef George Calombaris over the underpayment of his own workers as “light”. Calombaris has been making headlines all week after losing his high-paying MasterChef gig in the wake of revelations his company, Made Establishment, shortchanged workers to the tune of $7. 8 million. The case was just the latest in a long line of wage theft cases that have come to light in recent years, including companies large and small. The likes of Michael Hill, Super Retail Group, Lush Cosmetics, Domino’s and 7-Eleven have all stolen wages from workers... --- he Fair Work Act has proved “functional and effective”, and should be celebrated by both sides of politics, argues one firm leader. Speaking to Lawyers Weekly, McDonald Murholme managing director Alan McDonald (pictured) said the legislation, introduced in 2009, has “survived many prime ministers, parliaments and pressure groups”. “There has perhaps not been a post-war period when employment and industrial relations have been so peaceful,” he posited. “Employee relations have always required skillful negotiation. Indeed, those attributed with the highest status in post-war industrial law, Sir Richard Kirby and Bob Hawke won acclaim and esteem as mediators in this field. Regrettably, Bob Hawke then went possibly too far in disarming the labor movement during the 1980s and finally the pilots in 1990 so that he could enjoy smooth sailing as prime minister. ” It took two decades, and a very brave woman in Julia Gillard, “to empower all employees again through the Fair Work Act 2009 (Cth)”, Mr McDonald proclaimed. “She sacrificed much for her reforming zeal to leave her fellow lawyers with workable laws and a sound legal framework. Typically, the reverse onus of proof, which is still not widely understood, gave employees a sporting chance in pursuing unlawful termination of employment cases. ” As a lawyer, Mr McDonald mused that he often finds it is “conservative Liberal voters who are the first to want to call upon the legal rights conferred” in Ms Gillard’s signature legislation for the benefit of their children. The only criticism, he noted, was... --- The $7. 8 million underpayment scandal engulfing celebrity chef George Calombaris is symptomatic of the sheer complexity of Australia’s workplace laws, it has been claimed. But a workplace lawyer has called for even tougher financial penalties to stamp out wage underpayments. Ben Thompson, the co-founder and CEO of people management platform Employment Hero, applauded the Fair Work Ombudsman’s move to tap into Mr Calombaris’ high profile as a judge on Masterchef to educate employers on workplace laws. However, he criticised the complexity of Australia’s industrial relations system as causing the very problems the regulator is trying to avoid. “The fact remains that paying correctly under the Australian Modern Award system is incredibly difficult,” Mr Thompson said. “We’ve seen many other large employers like Super Retail Group, Lush, Qantas and ABC get payroll wrong. These businesses have whole departments dedicated to paying their people correctly. “When you consider that large employers (>200 employees) only make up 4 per cent of businesses in Australia, how can we reasonably expect the other 96 per cent, who don’t have in-house expertise, to get it right 100 per cent of the time? ” According to Mr Thompson, the Modern Award system is so complex that mistakes by employers are “inevitable”. “To appreciate why, just consider that in order to pay one employee correctly for one shift, an employer needs to understand each of the following 33 factors (and more),” he said. “They then need to know how to apply them within their particular business context after reading and interpreting... --- If you’re starting a new job, there’s a good chance your employer will put you on a probationary period to make sure you’re the right fit for the role. Probation can also be a great way for you to test out a new role while establishing yourself as a valuable employee—but it’s important that you know about your rights for the period. What is probation? Probation is a period of time where employers assess how suitable you are for a particular role. This isn’t a separate period of employment, but one that is written into your contract. While you’re on probation you will receive the same entitlements as employees not on a probation period, and if you ‘pass’ your probation period, your employment will continue. “A probationary period is a period at the start of an employment relationship where you and your employer can end the employment without reason for a shorter period of notice, usually one week,” says principal lawyer at McDonald Murholme. “After the probationary period is completed there is usually a longer notice period required. ” How long are probationary periods? Many employers opt for probationary periods of three or six months. “This allows you and your employer to determine whether your relationship is viable,” Jewell says. Are probationary periods essential? Although they’re not crucial, probationary periods are a great way to test out a new employment situation with reduced risk for you and for your employer. “Probationary periods provide both employers and employees with flexibility at the start... --- McDonald Murholme has been nominated for Workplace Relations and Employment Team of the Year and Business Development Professional of the Year! See article below: Lawyers Weekly, in partnership with UNSW Law, is pleased to announce that finalists have been selected for this year’s Australian Law Awards. The 19th annual Australian Law Awards (ALAs) will be held on 9 August at The Star Sydney, recognising the outstanding work taking place across major legal practice areas, brilliance at the bar, legal in-house powerhouses, innovators and various firm-led pro bono programs. The black-tie event provides a platform for legal professionals of all ages and expertise to receive nationwide recognition for the valuable contribution they make to their place of employment, their clients and the community at large. Lawyers Weekly congratulates all of the finalists. Workplace Relations and Employment Team of the Year Australian Business Lawyers & Advisors Bartier Perry Corrs Chambers Westgarth DWF (Australia) Harmers Workplace Lawyers Law Squared Maddocks Maurice Blackburn Lawyers McDonald Murholme PricewaterhouseCoopers Business Development Professional of the Year Daniel Hawcroft, Chamberlains Law Firm James Hill, Clayton Utz Heather McFarland, Clayton Utz Amber O'Meara, MinterEllison Katherine Webster, Mullins Kathy Zmijewski, McDonald Murholme Solicitors Finalists for the 2019 Australian Law Awards are listed here: https://www. lawyersweekly. com. au/biglaw/25900-finalists-revealed-for-2019-australian-law-awards Reference: ‘Finalists revealed for 2019 Australian Law Awards", Lawyers Weekly, Monday 24th June 2019. --- If you’re considering a new job, you might be more interested in what the role itself involves than what kind of employee you’ll be hired as. But the benefits, entitlements and conditions of a job can differ depending on whether you’re a casual worker or a part-time or full-time employee. We’ve asked an expert employment lawyer to spell out the different rights each role has, and what you need to consider when deciding on a job. Principal Lawyer at McDonald Murholme says full-time and part-time employees essentially have the same rights. “The only difference between them is that part-time employees are engaged to work fewer hours than full-time employees,” he says. For casuals, however, it’s different. “Traditionally, casuals are viewed by the law as only being employed on a one-off basis for the duration of their shifts,” Jewell says. “Each shift is seen as a new and separate period of employment that ends at the end of the shift. ” This means conventionally speaking, when casual employees are in between shifts they’re not technically employees. But this view is starting to change and there are certain statutory exceptions for long-term casual employees. Hours Full-time Full-time employees are required to work 38 hours per week, plus any other reasonable additional (overtime) hours. Jewell says that there is no strict rule regarding reasonable additional hours. “The hours that are required are generally determined by the nature of the work that is required to be done,” he says. Part-time Part-time employees work fewer... --- As appetite for simplifying Australia’s workplace law grows following the election at the weekend, small business ombudsman Kate Carnell is preparing to hand the relevant incoming minister a case for overhauling unfair dismissal protections for small businesses. Speaking to SmartCompany on Monday, Carnell said provisions to protect small employers from unfair dismissal in the Fair Work Act aren’t working very well and are due some attention. “We’re looking at ensuring the initial intent ... there was supposed to be a clear way that, fundamentally, unfair dismissal under most circumstances wouldn’t affect small business,” Carnell tells SmartCompany. “The intent hasn’t been the delivery. ” Under current rules, employers with fewer than 15 workers are subject to the Small Business Unfair Dismissal Code, which is considered by the Fair Work Commission (FWC) before it decides whether a particular employee has been dismissed harshly, unjustly or unreasonably. The code itself stipulates full-time, part-time or regular casual workers can’t make unfair dismissal claims against small businesses if they’ve been employed for less than 12 months. It also enables small-business owners to dismiss a worker after just one warning, rather than the three-step feedback process required for larger firms. Further, it outlines protections for cases of genuine redundancy, for reasons such as business downturn, and what rights employees have. The Rudd government introduced the code under then workplace minister Julia Gillard back in 2008, arguing small firms needed to be protected from the full brunt of unfair dismissal laws. But Carnell says the protections aren’t doing their job, resulting in lots of firms getting pulled... --- An employment law firm has called for greater clarification regarding a promise made by opposition leader Bill Shorten to implement a “living wage” through legislated changes to the Fair Work Commission. McDonald Murholme said that Mr Shorten’s plans to implement a “living wage” through the Fair Work Commission (FWC) needed greater clarity, with debate surrounding the future of Australia’s minimum wage a key issue in the lead up to this year’s federal election. “It is claimed employees in Australia benefit from one of the highest minimum wage standards in the world, however living costs and taxes are so high that it negates this benefit,” McDonald Murholme managing director Alan McDonald said. “In the lead up to the federal election, both major political parties need to make their stance on upholding this standard clear and unambiguous “Wage stagnation and rising cost of living have driven arguments to increase the Australian minimum wage, which as of 2018 sits at $18. 93/h. “Industry bodies such as the Australian Chamber of Commerce and Industry have argued that a substantial raise to this standard would cost employers billions and lead to job losses. ” Further, Mr McDonald added: “It is notable that a former ACCI leader, Ms Leyla Yilmaz, is now a Fair Work Commissioner”. “Ms Yilmaz’s appointment was heralded by Minister Kelly O’Dwyer as advancing the commission’s ‘ability to approve pay increases more quickly for Australian workers’,” he said. Mr McDonald argued that despite the ACCI’s view, “modest, incremental increases to the minimum wage have been shown to... --- The celebration of Australia Day has become an increasingly contentious issue among Australians, writes McDonald Murholme’s Trent Hancock. Each year the debate around whether our national day should be held on 26 January seems to intensify. What happens though when this debate finds its way into the workplace? While employers might be keen to “keep politics out of the workplace”, there are important statutory protections afforded to employees that must be kept in mind. The first is the right to freedom of speech. Section 15 of the Charter of Human Rights and Responsibilities Act 2006(Vic) provides that every person has the right to hold an opinion without interference. It also provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. This freedom of expression does not however extend to certain conduct that is prohibited by the Racial and Religious Tolerance Act 2001 (Vic), such as inciting or encouraging hatred, serious contempt, revulsion or severe ridicule against another person or group of people because of their race and/or religion. Beyond this, section 351 of the Fair Work Act 2009 (Cth) provides that an employer must not take adverse action against an employee because of their political opinion. A similar prohibition appears in the Equal Opportunity Act 2010 (Vic) with respect to a political belief or activity. In essence, these provisions prevent an employer from disciplining an employee because they hold a different political opinion to their employer. An example of... --- A niggling tickle in your throat has developed into something more sinister: you’ve caught that cold, flu or undiagnosed viral thing that has been making its way around your open-plan office. You’ve got to call in sick. Or do you? There’s so much to do and there is nothing stopping you from responding to all of those emails and calling into the daily conference in the comfort of your favourite, oversized T-shirt. “I’m too sick to come in, but I can work from home,” you tell your boss and, with a quick confirmation, you bask in the glow of your ‘don’t-stop-won’t-stop’ productivity. It is confirmation of the death of the sick day and of the Australian tradition of “taking a sickie”, often a euphemism for a paid day at the beach. Modern technology has afforded flexibility in how and where you carry out your duties. We know it has transformed the notion of down-time, but it may have also killed the institution of the sick day. Australian Bureau of Statistics data show more than 30 per cent of Australians work from home in some capacity – an increase from less than 20 per cent 15 years ago. The freedom to work from home or a local café with espresso coffee and free WiFi is undoubtedly appealing and has allowed more parents to continue working while raising children. But contrary to expectations, those with greater flexibility in their work schedule actually work more than those with less flexibility. A University of... --- Like in many professional services industries, office romances are “quite common” in law. Lawyers Weekly spoke with a principal lawyer about some of the issues surrounding office romances, and how law firms can navigate such sensitive territory. Romance within law firms can be commonplace, McDonald Murholme principal surmised, because lawyers spend a lot of time at work, thereby spending that time with fellow lawyers. Most of us have heard stories about people meeting their partners in the course of their legal work, he said. “Often, these are positive stories. But then you’ll also hear of some of the more controversial stories, partners with people further down the food chain at work, and also stories about relationships not ending well,” he said. Where law firms have to be more interested, he posited, is situations where you have a more senior lawyer in a relationship with someone more junior, as there are more numerous issues that can arise from such a union. Being a lawyer can attract a “certain sort of person”, he mused, someone who understands the competitive nature inherent within many practitioners as well as appreciating the hours that may need to be worked. But, largely, it will come back to the need to spend time with colleagues if you are working late, he said. There are three specific dangers attached to offices romances in a law firm, Mr Jewell posited: a general deterioration or breakup of a relationship, people entering into relationships who are at different levels within the... --- The recent Westpac v Deng decision acts as a warning to the big banks: follow the rules or risk being called out. In a hearing late last year, the Fair Work Commission ruled that Westpac banking employee Kefeng Deng should be reinstated to his original position after he was not afforded procedural fairness into allegations against him. Under section 387(c) of the Fair Work Act 2009 (Cth), the criteria for considering whether a dismissal is harsh, unjust or unreasonable includes whether the employee was given an opportunity to respond to allegations. In Westpac v Deng, Mr Deng was given only 24 hours to respond to detailed and complex correspondence, a timeframe which Commissioner Riordan ruled “grossly inadequate and procedurally unfair”. Commissioner Riordan also noted the five-hour investigation without refreshments, in which Deng was shown some 30-40 documents with only two short breaks, resembled a “star chamber”. Deng had eight “substantiated” allegations brought against him, including mishandling customer information by using his personal email account to send confidential files. The FWC acknowledged this breach of policy was a valid reason to terminate Deng’s employment and yet allowed him to successfully bring an unfair dismissal claim; ruling that Westpac did not follow process as per the Fair Work Act 2009 (cth). Right to response An employee has a right to procedural fairness during an investigation process into allegations raised against them and they have a right to respond. The employee must be given the substance of the complaint and be provided with all credible, relevant and significant material that needs to be... --- Shane Bywater guesses he’s been a referee on over 150 resumes. Most of the time, he considers the task a privilege and an opportunity to help someone out. But every now and again, that privilege becomes “awkward”. “I’ve had people I’ve sacked, or have had to make redundant, ask me to be their reference,” says Bywater, who works as a sales manager and leadership consultant. “I’ll have to say 'look this is where I could talk to but if I was asked these questions, I would have to answer honestly'. ” This month, more people are looking for jobs than at any other time of year. Google trends reveal the term “job” peaks in January and Australian Bureau of Statistic figures show a fifth of unemployed people applying during the early parts of the year struggle to get a job due to a high number of applicants. In the context of fierce competition, CV references can "make or break" an application. Unreliable or fake references can end up in court, as seen in the high profile case of Andrew Flanagan, who was fired as a group manager at Myer after one day when it was revealed he listed fake referees. So what obligations do referees have in helping their former colleagues secure a new gig? And what is the etiquette around reviewing poor performers? Best practice for job seekers Senior recruitment consultant at Randstad's HR Partners Carla Wilkinson says that employer references are "really important" when it comes to landing... --- It has been a tumultuous weekend for Qantas ahead of the busiest period of the year for airports after the airline came under fire for a program which allows head office workers to volunteer assistance to frontline staff over Christmas. The airline described the program as about “spreading a bit of Christmas cheer”, but the Australian Services Union (ASU) has slammed the scheme as an example of corporate greed. Workers who sign up are “required” to assist with check-in, bussing gates, concourse arrivals and other customer service functions. There appears to be no charitable element, meaning Qantas themselves are the beneficiaries of the work, although the airline doubled down over the weekend, saying it wasn’t about cutting costs. “We always scale up with additional paid staff over the peak holiday period. And we also asked head office employees if they’d like to lend a hand,” Qantas said in a statement. “It’s unfortunate that the ASU is trying to turn this into a negative. It’s all hands on deck at this time of year and we’re really grateful that some head office staff are willing to lend a hand. ” Qantas said its executives, some of whom are paid over $1 million a year, also participate in the volunteer program, although that has done little to allay criticism. Is it even legal? A principal lawyer at McDonald Murholme, says certain volunteer schemes may constitute a breach of the Fair Work Act. “I’ve seen thousands and thousands of employer relationships and this... --- The Fair Work Commission has ruled that a gig economy worker is an employee and not a contractor. HRM talks to an expert and looks at the potential fallout. The Fair Work Commission (FWC) has found that a Foodora rider was an employee and not, as the company claimed, a contractor. The worker, Joshua Klooger, made an application for an unfair dismissal remedy in March of this year and was represented by the Transport Workers Union of Australia (TWU). The company maintained a jurisdictional objection to the application, on the grounds that Klooger was an independent contractor. The company’s stated reason for his dismissal has to do with intellectual property rights over a Telegram chat group. Having decided Klooger was an employee, the FWC also found the dismissal to be unfair (the company has been ordered to pay nearly $16,000 in compensation). When Foodora went into voluntary administration in Australia there was some questionas to whether the case would go ahead. But since it has, the biggest impact will be on the gig economy companies still here – will their business models survive? Sub-contracting There is no set of hard and fast rules that determine whether someone is an employee or a contractor – there is instead a range of factors that are taken into account. For instance, employees can’t subcontract, which is why a large part of Foodora’s case rested on Klooger allowing other people to use his company profile to make deliveries. The scheme began after Klooger’s friend,... --- As of 1st of November, Victorian employee entitlements have changed. Legal experts explain what HR needs to know. The Long Service Leave Act 2018 (Vic) came into effect Thursday 1st November and will introduce significant changes to long service leave (LSL) arrangements in Victoria.  The new legislation will impact the entitlements of all Victorian employees who were previously covered by the Long Service Leave Act 1992. States and territories outside of Victoria should also take notice, because it could affect them too.  HRM spoke to legal experts about the new legislation, highlighting the appropriate steps for employers and HR to take. What’s new? The biggest change to come from the new Act is that Victorian employees can now request to take LSL after seven years of service on a pro rata basis – whereas they were previously only able to access this leave at the ten year mark. It should be noted that employers and employees are also able to negotiate taking LSL in advance (prior to the seven year point). The ten year threshold remains for all other states and territories. Employment Law Specialist Firm McDonald Murholme says that employers should ensure they are across the reformed Act as it applies to a large proportion of the workforce. “The changes apply to all full time, part time and any casual employees who accrue LSL,” he says. Employers cannot refuse a worker’s LSL request unless they have reasonable business grounds to do so. An example of “reasonable grounds” to refuse a request would be if it significantly impacted customer service.... --- A QUEENSLAND sawmill worker sacked for refusing to sign in using a fingerprint scanner has lost an unfair dismissal claim despite his employer’s “disturbing” privacy failures. Factory hand Jeremy Lee took his case to the Fair Work Commission in March after being let go from the Superior Wood mill in Imbil, near Gympie, where he had “not missed a single day at work” in three years. The company introduced the new policy in October 2017, announcing that “all employees must use the biometric scanners to record attendance on site”. Mr Lee objected, saying he regarded his biometric data as “personal and private”. “Information technology companies gather as much information/data on people as they can, whether they admit to it or not — see Edward Snowden,” he said in a letter to his employer. “Such information is used as currency between corporations. ” His employers explained that the scanner determined only “unique points” of the finger, which were then translated into an electronic signature. They said the template “cannot be used to recreate a fingerprint for identification purposes”. Mr Lee refused to back down and was sacked. He told the Commission he did not believe the explanation about the scanner. “It’s a palatable explanation of what they do with it,” he said. “I think they most probably do take a fingerprint scan and can recreate a fingerprint, but most people won’t see that. ” Asked why “anybody on the face of planet earth would do a thing like that”, Mr Lee... --- What happens when a culture of transparency is taken to extremes? HRM examines the performance practices at Netflix and whether the company could legally operate in Australia. Organisational transparency is generally considered a good thing for workplace culture. It helps to ensure the right people are recruited and fosters a culture of inclusion and trust. But is it possible for transparency to go too far, and lead to ritualistic and cult like practices? This is what Netflix has been accused of. The organisation has experienced rapid growth over the last decade and has added 2000 employees to its ranks this year alone. “As you scale a company to become bigger and bigger how do you scale that kind of culture? ” asked Colin Estep, a former senior engineer at Netflix in a Wall Street Journal (WJS) expose (paywall) – featuring insights from 70 former and current staff members. In other words, can the high performance tactics used to get an organisation off the ground be viable when the company balloons in size? The answer: perhaps, with some difficulty. Another intriguing question is whether, given Australia’s workplace laws, the streaming giant could export its culture to this country. Questionable practices The specific aspects of Netflix that might not work down under are a few of their stranger policies. The first is the practice of ‘sunshining’. In June this year, Netflix’s chief communications officer Jonathan Friedland made the news for using the ‘N-word’ in a meeting, while trying to make a programming... --- A top executive at Lego Australia is suing the toy company for more than $400,000 because it allegedly fired him when he returned from an overseas transfer to care for his family. Lego Australia director of operations Robert Csano, who had been seconded to Japan since 2016, accused the family-owned company of discriminating against him over his "family responsibilities in that he had to return to care for his 16-year-old son". Mr Csano worked for Lego Group for 18 years and according to his LinkedIn profile helped turn around its Australian business, resulting in a 500 per cent increase in sales revenue. But in July this year he was sacked with no redundancy pay or compensation, his unlawful dismissal application filed in the Federal Circuit Court last month said. Mr Csano alleges Lego's initial proposal to terminate him was in line with a redundancy as the company had more senior staff than it needed. But after April 18, when he inquired about how much redundancy pay he would get, Lego allegedly stopped characterising his termination that way. Mr Csano claims Lego took adverse action against him in part because he made inquiries about his workplace rights and due to his family responsibilities. Leave 'abandoned' Despite working as head of operations at Lego Japan for the past two years, Mr Csano was still employed in Australia under an "international assignment agreement". Assignment agreements, common for multinational companies, can suspend the employee's accrual of leave and other entitlements while they are overseas.... --- An Australian law firm has opened up on the firing of ABC managing director Michelle Guthrie, saying the dismissal should have lasting consequences for employment law cases going forward. McDonald Murholme has responded to news of Ms Guthrie being terminated from her top job at the ABC earlier this week. The highly publicised dismissal has made headlines this week, with the ABC forced to reveal private information about the lead up to the termination. A result of this, according to McDonald Murholme managing director Alan McDonald, is that the ABC have “exposed themselves to potential legal recourse for terminating her employment unlawfully”. Mr McDonald added the dismissal “should have a lasting impact for employment law cases”. “Guthrie was dismissed midway through a valuable five-year contract because it is alleged that Malcolm Turnbull’s close friend who he had appointed head of the ABC appears to have tried to force his CEO (Guthrie) to sack journalists because of their political opinion, referring to one journalist Emma Alberici ‘the government hates her’," Mr McDonald said. “The matter is extremely serious because if proven that would be a breach of the ABC’s Charter by Turnbull and the head of the ABC. “This runs to the heart of our democracy. It could demonstrate that people who are rich and very powerful are prepared to use their wealth and power wrongfully. “However, none of this would have been apparent had there not been a discussion on email which was later released. So serious is the matter... --- The firing of the ABC’s managing director Michelle Guthrie, and the subsequent fallout, has been the story of the week. But beyond the headlines are lessons for HR. The termination of the ABC’s managing director Michelle Guthrie this Monday has grown from what the organisation no doubt hoped would be a relatively quiet decision into a spiralling catastrophe. It’s already caused the chairman of the board – the very board that sacked Guthrie this Monday – to voluntarily resign. From an HR perspective, the case has important lessons. It could also have lasting consequences for employment law cases, according to McDonald Murholme managing director Alan McDonald. By being forced to reveal private information about the lead up to the termination, the ABC have exposed themselves to potential legal recourse for terminating her employment unlawfully, he says. Keeping good records The termination of a staff member, especially a high ranking one, is rarely a snap decision and it’s legally fraught to make it one. So there’s usually a trail of digital communication that reveals some of the deliberation that happens before a termination and the initial reasons why it became desirable. This is a basic reality and the way to manage it is as straightforward as it is ethical. Organisations must ensure that every termination is being carried out for appropriate reasons and the decision to terminate is arrived at in a deliberate and measured fashion. In the ABC’s case, Guthrie was ostensibly being fired for her performance. She has made... --- How and when should you withhold an employee’s bonus? HRM examines the legalities and neuroscience of this approach. Qantas has made headlines for a provision in a performance bonus they announced in August. The bonus, paid when an employee signs a new wage agreement, will be withheld if the employee “harms” Qantas. The kicker is that individuals can also have their bonus withheld if a colleague is at fault. “If one or more employees engage in any such conduct during the period, all employees in the relevant work group will lose eligibility for the bonus” says communication from Qantas to staff that Sydney Morning Herald sourced. So what are the legal issues with such a provision? And beyond that, is withholding bonuses even effective? Adverse action and coercion The thing about a “bonus” is that it sounds like a one-time gift, which suggests that employers can give or withhold it on a whim. But it’s not that simple. “The scope of an employer’s discretion really depends on the wording of the employment agreement or bonus plan in question,” says Aaron Goonrey, partner at Lander and Rogers’ Workplace Relations and Safety practice. But the wording isn’t everything, says Goonrey. “Case law shows us that regardless of the language included in writing, an employer cannot exercise its discretion capriciously, unreasonably or arbitrarily. ” In the case of Qantas, their “harm” clause that would result in a withheld bonus requires further scrutiny. If it is withheld in an attempt to punish an employee... --- Former and current employees have accused Flight Centre of having a corrupt, booze-filled culture and troubling pay practices. HRM talks to legal expert Athena Koelmeyer about the matter. Travel company Flight Centre has been accused of encouraging staff to charge questionable mark-ups, and engaging in troubling pay practices. The workplace culture has also been labelled “alcohol-fuelled” and “cult-like”. This information comes from ABC news who spoke to “dozens” of Flight Centre employees, both former and current. In their report, the company confirmed that it is currently under investigation by the Fair Work Ombudsman (FWO). Low base pay and commissions The report states that the current base wage for travel consultants is $33,500, around $4,000 below the minimum wage. This base is then supplemented by commissions made on the sale of flights, accommodation, and travel insurance and packages. Such a system seems designed to encourage employees to engage in whatever sales practices are available to them to make a living wage. Former staff allege that in order to meet targets, they were told to apply mark-ups in a process the article calls “remarkably uncomplicated and ad-hoc”. Of the practice, former employee Renee Oloffson, says: “It definitely wasn’t hinted at. It was, ‘this is how we operate. This is how you make money. This is part of your job’. ” “You aim for a 10 per cent margin . I know consultants who aim for a 20 per cent margin,” said another, who chose not to be named. On the practice of... --- A Sydney-based beauty and hair salon has avoided paying penalties by entering into an enforceable undertaking (EU) with Australia’s workplace watchdog after admitting to underpaying seven workers more than $25,000 and failing to issue them payslips. OKS Hair and Beauty Salon in Lidcombe drew the attention of the Fair Work Ombudsman (FWO) after one of its workers, a Korean national, became aware that her rate of pay was not in line with minimum pay rates in Australia. After investigating, the FWO found that seven workers at the salon, of which at least two were Korean nationals, were being underpaid minimum rates, penalty rates, and some were being paid cash-in-hand. In total, the seven workers were underpaid a combined amount of $25,045 between March 2016 and May 2017. However, due to the full cooperation between the company’s director and the FWO, the watchdog did not pursue legal action. Instead, the business has entered into an enforceable undertaking with the Ombudsman, which compels the employer to backpay the workers along with a set of other stringent requirements. The company is required to employ an auditor to audit its employee’s pay three times over the next two years, and has agreed to complete comprehensive training for all staff involved in human resources or payroll parts of the business. Furthermore, the director and his mother, who helped run the business, must complete additional training via the FWO, and provide a $5000 donation to the Marrickville Legal Centre. “ allow the Fair Work Ombudsman to... --- Australians with a criminal record often face barriers when it comes to finding a job. HRM investigates the issue in light of the recent Australian Human Rights Commission (AHRC) finding of discrimination against Suncorp. In 2015, a man – referred to as Mr BE – applied for a job with financial services giant Suncorp as a part-time, home-based claims assistant. During the initial interview stages he failed to disclose his prior criminal record, which included a conviction for possessing child pornography. When this information finally came to light, Suncorp declined to hire him as he’d been dishonest in the application process and considered him not of sufficient character to work for the company. The AHRC recommended Suncorp pay $2,500 in compensation to Mr BE for causing “hurt, humiliation and distress’’ by refusing to hire him. The decision has caused a stir, and it’s caught the attention of the Attorney-General, Christian Porter, who has suggested that this process needs to be reformed. Suncorp has declined to pay the fine, sticking by its initial decision, which has opened up debate within the HR community and beyond; is a criminal record reason enough to refuse to hire someone? Employment law specialists McDonald Murholme, offers a legal perspective on the matter. What are an employer’s legal obligations in this scenario? Federal legislation does not prohibit an employer from refusing to hire a candidate because they have a criminal record. McDonald Murholme says that, while the AHRC has the right to conduct an inquiry into... --- Employers use a job interview as a way to work out how suitable you are for a role and an interview is an ideal opportunity for you to discuss your skills and expertise. But what kind of questions are recruiters and hirers allowed to ask? The purpose of a job interview is to determine whether you are the most appropriate person for a particular role. “The questions you are asked should relate to your ability to perform the inherent requirements of the role,” says employment law firm McDonald Murholme. “Given that a person’s character traits are relevant to their ability to perform many jobs, questions that demonstrate these character traits (e. g. “Provide an example of a time you overcame a problem”) are perfectly permissible. However, questions that seek information beyond what is relevant to the role are not. ” Questions that employers can’t legally ask Questions that dig for information beyond what is relevant to the role are not acceptable. Examples of questions that legally cannot be asked are: Are you in a same-sex relationship? How old are you? What’s your ethnic background? What religion are you? Are you pregnant or planning to start a family? Who do you vote for? Do you have a physical or mental disability? “Section 107 of the Equal Opportunity Act 2010 provides that a person must not request or require another person to supply information that could be used by the first person to form the basis of discrimination against the other person,”... --- Top-tier law firm Allens expects its partners to retire at 65, which experts have suggested would be unlawful age discrimination. The revelation expands the types of partnerships that continue to hold onto the historic notion that it is legal to mandate or expect senior partners to retire at a specific age. Another law firm, King & Wood Mallesons, confirmed it also provides a financial incentive for partners retiring early between 55 and 58, although it no longer applies to equity partners admitted in the past six years. Employment law experts said there is a perception among firms that partnership agreements are a superior form of commercial contract not subject to workplace laws.  Louie Douvis The practice continues despite the Age Discrimination Act, introduced in 2004, explicitly covering partnerships of more than six partners and prohibiting subjecting a partner “to detriment” based on their age. A spokeswoman for Allens, which had 131 partners as of January, confirmed “it is generally expected that partners retire from the partnership at 65”. However, the expectation is not written into any partnership agreements. King & Wood Mallesons, which has 165 partners, said that there is a financial incentive for partners who retire early that begins at the age of 55. Almost a quarter, or about 41, are older than 55. The Early Retirement Scheme originally offered senior equity partners one-and-a-half years’ income paid out over a five-year period if they left the firm between the ages of 55 and 58. The payment is being reduced as... --- KPMG and Ernst & Young have engaged in the long-standing and widespread practice of retiring partners as young as 58 years old in what legal experts have warned is a clear case of unlawful age discrimination. The firms' partnership agreements, seen by The Australian Financial Review, include clauses that either mandate or "expect" partners to retire at 58 or 60 unless the CEO makes an exception. Lawyers said the clauses, which are understood to be commonplace among the more than 1000 partners at the two firms, appear to breach discrimination law and could leave the firms vulnerable to court orders for unlimited compensation. Specific retirement ages have traditionally been used in partnerships as a way of making room for newer partners.  At rival Deloitte, partners are expected to retire at 62 while PwC denied it had any specified retirement age. The Financial Review has been told that PwC partners understand they will have to step down from as young as 55 years old. 'Shall retire' EY's agreement says "a partner shall retire on his normal retirement date", which it defines as 60 years old. The firm did not respond to questions about its partnership contracts. In KPMG's agreement, a clause headlined "Voluntary Age Retirement" outlines that "the firm expects a partner to retire on the earlier of the June 30 or December 31 next following the partner attaining 58 years of age". In the two years before the partner reaches 58, the CEO assesses the partner's performance and will "discuss with the partner his or her ongoing contribution to the partnership".  A... --- Legal experts have warned businesses to take care when offering staff free incentives like coffee or lunch, especially if these are connected to staff salaries, after a Melbourne cafe was hit with serious underpayment claims from staff this week. Staff at Barry cafe in the Melbourne suburb of Northcote have claimed they had shifts cancelled after querying their pay rates last week, reports the ABC.  The workers said they were paid $18 an hour for all shifts, whereas the casual rate for their roles should have been $24. 41 on weekdays and $29. 30 on weekends. The staff say they requested a meeting with the cafe’s owners to discuss this, but were refused, and two workers later had shifts cancelled. The workers provided the ABC an email response from the employer, which said the workers had agreed on the pay rates and “on top of that you had free meals and free unlimited coffees”. The Fair Work Ombudsman has confirmed to the ABC it is investigating the claims, while the business owner has said he was “under the impression” $18 was the minimum rate, and he would correct this if there had been a mistake. SmartCompany contacted the business this morning but did not receive a response prior to publication. However, the case has prompted legal experts to warn that they expect even more scrutiny on hospitality payment rates in the coming year. In this environment it’s critical that businesses avoid linking base wages to other incentives like food or drink. “Those... --- More unions are calling for wage theft laws, after NSW Labor already made it an election promise. HRM takes a look at the issue. In July last year NSW Labor flagged its intention to “criminalise the deliberate failure to pay wages and other entitlements”. And it appears the movement is growing. The Victorian Trades Hall Council and its Young Workers Centre are campaigning ahead of Victoria’s state election for deliberate wage underpayment to become criminal, with a maximum penalty of ten years in prison. “It’s so rampant, it’s so out of control, it’s time for police to step in,’’ Trades Hall secretary Luke Hilakari told The Age. ‘’We think this will be a game changer. We will send people to prison over this. ’’ The movement isn’t springing out of nowhere. The last year has seen an unusually large number of headlining reports of underpayment and non-payment of employees (HRM has written about it as recently as last week). Fair Voice, another union, surveyed 624 workers in the hospitality industry and estimate that 76 per cent of employers are underpaying staff. The stories of wage underpayment are too varied to list but they include not paying backpackers, not passing on penalty rates for public holiday work even though the business is surcharging customers, and not paying any overtime. And people are getting punished, just recently a Melbourne health services company was penalised$250,000 and its owner $50,000 for “flagrant” underpayment. So the question becomes whether criminalisation is actually smart from a... --- What is an intern? The words internship and work experience are often used interchangeably. According to the Fair Work Ombudsman an internship is a vocational placement – that is, a placement that is required by an educational institution or training course. Employment law firm McDonald Murholme says the law is primarily concerned with whether an employment relationship has been created between the intern and the employer. “If the nature of the agreement creates an employment relationship, then the ‘intern’ will be an employee for the purposes of the law, albeit on a short-term contract,” he says. “However if the nature of the agreement created no employment relationship, then the intern is not an employee for the purposes of employment law. ” What is an employment relationship? According to McDonald Murholme, key considerations that point to an employment relationship are: an intention to enter into an arrangement whereby the intern does work for the employer (as opposed to merely observing work done by other people); the intern is doing work for the benefit of the business, especially if the business is charging for or making profit from, the work or otherwise saving costs due to the intern’s work; the more productive the work completed by the intern, the more likely it is that an employment relationship has been created. Another indicator that an employment relationship has been created is that of the length of the relationship – typically, the longer the arrangement, the more likely that the individual should be considered as an... --- Small businesses and startups face as much risk in employment as larger enterprises but they are often less well-equipped to address these issues. When working in a small business, people tend to form strong personal relationships and employers plan to retain staff. Sometimes, however, businesses need to dismiss staff for a number of reasons. While larger employers have human resource departments and sophisticated policies to assist with the dismissal procedure smaller business often have less experience and expertise which increases the risk of legal claims. Whenever a small business determines that it must move on from an employee it needs to ensure that it fulfils its legal obligations in order to protect itself from any legal action. The first issue that businesses face when conducting dismissals is clearly communicating the reason for dismissal. If an employer has a genuine reason for a dismissal this should be communicated because often an employee’s biggest concern is that they were unsure of the reason they were moved on. If an employer can calmly explain the reason this goes a long way to avoiding a legal claim whereas stating something like the employee was “not the right fit” will most likely inflame the situation. The next issue for small business is being aware of the claims that can be made. Generally, these claims are to the Fair Work Commission as an unfair dismissal or general protections application. First, for an employee of a business under 15 employees to be able to make an unfair dismissal claim... --- Corporate lawyers routinely face the problem of getting conflicting instructions from board directors and owners because their client is a company, lawyers say. The inherent difficulty of taking instructions from a company – a non-speaking, artificial legal entity – was exposed this week after The Australian Financial Review detailed the multi-million dollar fallout between top tier law firm Herbert Smith Freehills and its former client United Petroleum. United claims Freehills partner Michael Ziegelaar breached duties by writing a draft script for only two of its five board members and stopping its legal work on the IPO when there was a division within the board over whether the float should go ahead in December 2016. At the heart of the dispute between Freehills and United Petroleum is a huge amount of confusion about whom lawyers work for. United says Freehills owed duty of care not only to United Petroleum Holdings, the company the subject of the float, but also to its subsidiaries and co-founders Avi Silver and Eddie Hirsch. Even though there were five directors at the holding company, Mr Silver said Mr Ziegelaar should have taken instructions from him because he was the one picking up the bill. “Michael would still come to me for instructions basically on everything material. When I had to call him up and say, ‘Michael, remember who is paying your bills and who is instructing you’, Michael apologised on two different occasions and say, “Look, it ran away from me,” and he done it in front of a bunch of... --- Making employees redundant can be one of HR’s most complicated tasks – due to the potential legal risks, and the need to negotiate with multiple stakeholders. Last Monday National Australia Bank confirmed it will drop 1,000 staff as part of a longer-term plan to retrench 6,000 workers (about one-in-five members of its workforce). At the same time, it also plans to hire 2,000 technology specialists. A big company making mass layoffs is always tricky. Staff want to know they’ll be supported, the wider public could have ethical concerns, and investors want to hear about how the move is not panicking but is rather a well planned strategy that will increase profits through efficiency gains. In that sense, such layoffs require careful marketing. The narrative NAB has conveyed is of the inevitable rise of automation, and how the cuts are a necessary requirement of rising to the challenges the future presents. “I think this is one of the big issues in Australia for the next five to 10 years: the new nature of work more casual,” NAB chief executive officer Andrew Thorburn told media earlier this month. “But with the internet, with digital business, huge transformation. ” HR is obviously smack bang in the middle of any planned redundancies, and so has a difficult role to play in looking after the departing employees, reassuring the ones who are remaining, while also holding the organisation’s line. “NAB wants to be a bank of the future,” chief people officer at NAB Lorraine Murphytold the ABC, “So... --- A managing director has responded to Prime Minister Malcolm Turnbull’s now infamous comments about there being “too many kids doing law”, saying that the onus must fall on the universities. According to McDonald Murholme managing director Alan McDonald, the law grad oversupply problem is largely due to the number of places universities offer students wanting to study law. Mr McDonald called the universities irresponsible for the vacancies they’re offering students and said that they must be held accountable. In his argument he referenced data by the Australian Financial Review which revealed there are almost 15,000 law graduates each year in Australia, while the legal profession is comprised of just 66,000 solicitors. “The universities have been very irresponsible as a group in allowing the oversupply for their short-term financial gain,” Mr McDonald said. “Cashing in on people thinking erroneously that having a law degree will benefit them needs to be addressed by regulation and not merely by the Prime Minister’s rhetoric. “There are a raft of problems that will be created if issues are not quickly addressed. ” Mr McDonald added that “in the usual supply and demand economics, reducing income of young lawyers directly in an already flat wage growth environment is a concern”. “It is also stripping the economy of young people that should have been trained in different skill base areas so that they would perform valuable work for worthwhile incomes,” he explained. “These issues include that we are incorrectly training young minds to look at work through the... --- When Esha Oberoi's marriage was cancelled 12 years ago, she found herself sinking into depression. "After my wedding was called off, I sunk into feelings of depression and isolation, and was finding employment a challenge," says Oberoi. Today, the 34-year-old runs Afea Care Services, which provides care for others and has an annual revenue of $10 million. "I had struggled with depression in my early 20s and was in a cycle of destructive relationships. In those unhealthy relationships, I struggled to make decisions, I didn't feel I had a voice and I felt isolated, lacking self-confidence," says Oberoi. Finding a sense of purpose "It wasn't until I began working as a carer that I found a sense of purpose through helping others. The residents in the nursing homes had similar struggles – isolation and in many cases due to their conditions, not having a voice. I healed myself over time through my work. "Having gone through mental health challenges myself, I can empathise with our clients and their health needs. " Oberoi founded Afea Care Services in 2008. She says her company "empowers people to live their best life and continue living in the comfort of their own homes. We serve as an alternative form of care from a nursing home or hospital. "We provide support in the form of personal care, social support, meal preparation and transport assistance to name a few, under the National Disability Insurance Scheme and My Aged Care subsidised programs. We offer private care, with... --- The Fair Work Commission is backing a strict zero-tolerance approach to alcohol after the sacking of an employee who attempted to attend work intoxicated. McDonald Murholme Principal Lawyer discusses that intoxication in the workplace is an accepted category of serious and wilful misconduct. Fair Work Commission backs zero tolerance out-of-hours intoxication - Australian Financial Review The Fair Work Commission is backing a strict, zero-tolerance approach to alcohol in the oil and gas industry after upholding the sacking of a worker who returned to his workplace to sleep off a drunken night out. Inco Ships, which provides re-fueling services for Viva Energy's oil refinery in Geelong, dismissed crew member Sean Lewer after he arrived intoxicated at its wharf at 10pm and tried to press through security to return to his ship. Mr Lewer had finished work earlier that day and left to go to a nearby hotel with a colleague, where he consumed "four to five" beers and pizza. He then returned to the Port of Geelong, intending to sleep on board the ship and awake for his shift the next day. But when security guards refused to let him in on grounds he was drunk he responded aggressively, attempting to remove a security officer's safety glasses and threatening to jump the security gate. Security eventually escorted Mr Lewer to a taxi to go home and he called in sick the next day, leaving the ship to sail short of one crew member. Inco Ships later fired him for breaching its... --- Sleeping with your boss may or may not cross your mind, but if does, it seems you are not alone. Dating for marrieds’ website AshleyMadison. com had a staggering 6. 6 per cent of members admit they would sleep with their supervisor. McDonald Murholme Principal Lawyer comments that while such cases are unfortunate, there is no law preventing two consenting adults and therefore businesses should have policies in place outlining behavioural expectations of employees. 'There can be no winners': The consequences of sleeping with my boss - Sydney Morning Herald If you've ever fantasised about sleeping with your boss, you're not alone. While national statistics on office affairs are hard to come by, 6. 6 per cent of members of the "dating for marrieds" website AshleyMadison. com admitted that they would bed their supervisor. Yet once the thrill of the secret liaison wears off, the fallout of a relationship between superior and subordinate can be gargantuan. QBE's chief executive John Neal's pay was docked $550,000 when he failed to disclose his relationship with his secretary, while former Channel Seven employee Amber Harrison was instructed to pay the network's legal costs after she made the details of her affair with Seven CEO Tim Worner public. Principal lawyer at McDonald Murholme, says that while such cases are unfortunate, there is no law preventing two consenting adults – regardless of their positions – entering into a relationship at work. "Although many businesses may – and should – have policies in place outlining the... --- With one in six Australian businesses set to spend more than $10,000 on Christmas events this year, how much of the associated costs can employees be expected to cover? McDonald Murholme highlights the rights and obligations of employees when it comes to Christmas parties as well as the need for employers to be clear on communication and costs. Small businesses warned not to let their workers foot the bill for work Christmas parties - SmartCompany t’s the time of year to celebrate big wins and bond as a team, but can you force an employee to attend your Christmas function? Many business owners will be keen to get their whole staff on board for end-of-year bonding, but legal experts warn employers to be careful when it comes to the communications — and the costs — that go with a Christmas party invitation. While employers are able to reasonably direct their workers to perform tasks, Christmas functions are a real grey area, says employment law firm McDonald Murholme. “I don’t think any employer could say that a Christmas party is compulsory. An employee can refuse to attend if they wish, if the function is outside of work hours. I don’t think employers should be directing employees that they have to attend — it’s not a good look,” he says. However, even those employers who do understand they can’t compel their staff to attend Christmas lunch still often fail to think about how much they can ask their staff to fork out... --- In recent times, a submission to a parliamentary enquiry into whistle-blower protections makes for distressing reading. A former Commonwealth Bank employee blew the whistle on dodgy practices within the bank, along with the aftermath of his disclosures. McDonald Murholme Principal Lawyer states if an employee exposes wrongdoing by raising concerns and receives disciplinary action, then it is up to the individual to run a Federal Court action to enforce protections available to them under existing legislation. After the whistle is blown: protecting employees who speak out - The Law Society of NSW A submission to a recent parliamentary inquiry into whistleblower protections by former Commonwealth Bank employee Jeff Morris makes for harrowing reading. Eleven heavily redacted pages recount the day, in 2008, when Morris first blew the whistle on dodgy practices in the bank's financial planning arm, along with the devastating aftermath of his disclosures, including smear campaigns, cover-ups and psychological turmoil. But the most chilling moment? Talk of 'shooting' made me wonder if I had put my family at risk of being collateral damage he explains. I came home to an empty house one night. My wife had left with my children ... was opposed to me blowing the whistle on CBA from the beginning. Her refrain was that they would destroy me ... Many times over the years she asked me why I was doing all this for people we didn't know. " For Morris, like so many other whistleblowers, the answer was straightforward: because it's the right... --- A Sydney IGA store has been ordered to pay a former employee $13,400 for serious mismanagement as it took the business more than two months to reject an employee's annual leave. McDonald Murholme Senior Associate Trent Hancock, says even if a company has communicated expectations around leave policies, it is not up to the employee to chase the application for a confirmation or refusal. IGA store slammed for mismanagement, ordered to pay worker $13,400 after taking too long to reject leave application - SmartCompany A Fair Work Commissioner has ordered a Sydney IGA store to pay $13,400 to a former employee, drawing attention to its “serious mismanagement’ after the business took more than two months to reject the employee’s annual leave request and then terminating her employment when she went on leave without approval. A former employee of the Carlo’s IGA Horsely Park store filed an unfair dismissal claim earlier this year after she was terminated from her position as a duty manager after more than five years of employment at the store. The lead-up to her termination in April 2017 involved the employee submitting an annual leave application for a holiday in Thailand over the 2017 Easter break. She made the application to her supervisor on January 12, 2017, but this was not immediately approved or rejected by her supervisor, as her supervisor was soon to leave the Horsely Park store and the dates that were requested were within the store’s Easter “block-out” period for leave. The request was... --- Employees working in the corporate sector would be familiar with the growing rise of tattoos as they themselves or colleagues would be sporting them on many occasions. McDonald Murholme Senior Associate Bianca Mazzarella, comments on the need for employers to tread carefully when implementing workplace policies and to ensure they are not discriminative. The new normal, tattoos in the workplace - Sydney Morning Herald Tattoos are an important self-expression tool for Polly McGee. Her hands, chest, both arms, fingers and neck have been inked in bold colours. "I like bright old-school American-style pin-up girl tattoos. "I wanted tattoos from a very young age. I'm not sure why, because no one in my family had tatts. They just appealed to me. " And while landing a corporate role might have been a little challenging for someone with so much ink a couple of decades ago, that certainly not the case any more. McGee works for a Sydney-based tech company. She's always worked in senior and strategic roles for bureaucratic and conservative organisations including government, which have required her to be out in the public eye representing her employer. Turning up to a work meeting with visible tattoos tends to disarm people, she says. "I've never had an employer comment in a negative way about my tats. They're part of who I am, and I think it's great that we see so many beautiful, visible tattoos in the workplace these days. McGee's a strong believer in the benefits of celebrating diversity in... --- Working from home is on the rise as mumpreneurs wish to maintain the balance of working life and family life. Most popularly, mumpreneurs are turning to hiring a virtual assistant for an extra pair of hands. McDonald Murholme Senior Associate Bianca Mazzarella explains the difference between a virtual worker to that of an employee. Virtual assistants: Mumpreneurs’ Secret Weapon There is an increasing number of professional mothers who have recently given birth and are needing to earn more money due to the increased cost of living. They often either go back to work sooner than planned or decide to start their own business at home so they can spend more time with their children. These mothers are called ‘mumpreneurs’ and are also known as women entrepreneurs. If all goes to plan and the business flourishes, a mumpreneur may find herself looking for some extra help but can’t afford a permanent employee. This is where a virtual assistant can come to the rescue. What is a virtual assistant? Virtual assistants are rising in popularity for start-ups and are also known as a remote personal or administrative assistant. Instead of working on site, a virtual assistant works remotely, usually from the comfort of their own home. Due to technological improvements and advances over recent years such as document sharing and online organisational databases, the dream of working remotely has become a reality for many. Virtual assistants are usually highly skilled, independent professionals who can provide a business with administrative, technical and creative business support in an... --- CEO’s are paid to make the tough decisions for the business but what if your employees were the ones with all the good ideas but too afraid to speak up? McDonald Murholme Principal, says policies are important as they empower staff to have the confidence to speak up when concerned about workplace issues. See below article for more information. Why you need to get out of the CEO ivory tower As a CEO, you are paid to make the tough corporate calls, but it appears that a key to effective company leadership could be to talk less and ask staff more questions. It’s no secret – a skilled CEO is essential to driving business success. Indeed, your corporate acumen, strong experience, high standards, and long-term thinking are all part of what elevates you to the rank of high-achieving CEO. However, irrespective of personal attributes, there is a range of risks that can impact your ability to make the correct calls at the right times. One risk, often overlooked, is the potentially dangerous isolation you may encounter alongside the power and privilege of being a CEO. The power of empathetic leadership Sydney-based leadership specialist Muffy Churches says the so-called ‘ivory tower’ or ‘CEO bubble’ is one of the major challenges for any corporate leader to overcome because it can distance those in the top job from critical company decisions. Churches, who has worked with corporate giants like Apple, Optus, Qantas and Telstra, says CEOs can end up isolating themselves, or become isolated by... --- Growing awareness for mental health research and support services is a leading priority in the Australian Legal Industry. McDonald Murholme Principal, has witnessed first-hand the prevalence of stress and anxiety among his clients and is leading change to further research. See below article for more information. Lawyers show mental health matters as much as business Raising awareness and funds for mental health research and support services is a growing priority for a number of Australian law firms. Law firms are adopting a range of different initiatives to show their support for important research into mental health and the support services available to people in need. One employment law boutique has taken the step of putting its money where its mouth is, with a commitment to donate one dollar to beyondblue for every new client that walks through its doors. McDonald Murholme principal said that over nearly 10 years in practice, he has witnessed first-hand the prevalence of stress and anxiety among clients. The practice has an office in Adelaide and Melbourne, with Mr Jewell saying that employment issues are the cause of many mental health concerns. “Unfair dismissal, bullying, discrimination, redundancy and the like can put pressure on a person and their family both emotionally and financially,” Mr Jewell said. “We want our clients to know that we understand the difficulties they are facing, and to know there is legal support available to them. ” According to beyondblue, each year there are about one million Australian adults struggling with depression and... --- An employee at a Sydney RSL will receive more than $13000 in compensation after she was found to have been constructively dismissed from her role. Senior Associate Trent Hancock says constructive dismissals can occur when an employee has resigned but "has been forced to do so because of conduct, or a course of conduct engaged by the employer". Worker receives $13,000 in compensation for unjust dismissal after her shifts were cut by 75% - SmartCompany An employee at a Sydney RSL club will be paid more than $13,000 in compensation after the Fair Work Commission found she was constructively dismissed from her role when her employer cut her rostered shifts by 75%. The Commision heard the female worker, who undertook cash-handling duties for approximately 30 hours each week at City of Sydney RSL, was warned twice in late 2016 and early 2017 in relation to discrepancies in the till amounts. In the first warning, the till was found to be out by $188. 75, which the worker put down to a failure to properly record a patron’s gaming pay-out. The second time, the till was out $100, but the worker was unable to explain the missing funds. The Commission heard that after the matter was referred to the RSL’s HR department, the business decided the worker should undergo further training in how to adequately handle cash. In the meantime, the worker’s roster was reduced to just one shift a week, because she was unable to work “change box” shifts in... --- Creating a positive working experience for new mothers returning to work starts with knowing your rights. McDonald Murholme Senior Associate, Bianca Mazzarella, highlights the importance of knowing your right to flexible working arrangements such as a change of hours, change in patterns of work such as ‘split-shifts’ or a change of location of work See below article for more information. Making Work A Positive Experience For Mums Choosing between staying at home with your kids and getting back into the workforce is something all mother’s need to deal with at some point along their journey. Read on for some positive stories and advice about working as a mum. A positive experience Kathleen Aikin from Pumpables shared this uplifting example of a great working environment: “This is an extremely positive experience for me as a mother and for my family as it has afforded me the opportunity to stay home with my children and work from home. They are very accommodating to my needs as a mother because I can work part-time and set my own hours throughout the day, meaning I don’t have to stress over meal times and nap times. They also offer the benefit of paying for a cleaning service to come to my house so I don’t have to worry about the mess! Pumpables is a fantastic company to work for who are run by moms and understand moms, which is what I think makes their products so great too. I can’t stress enough how great it is... --- MEDIA RELEASE McDonald Murholme is proud to announce its support for beyondblue in the pursuit of raising valuable awareness for anxiety, depression, and suicide. McDonald Murholme will donate $1 from every new client appointment over the next 12 months to beyondblue. McDonald Murholme is Melbourne’s leading employment law firm with a continually expanding client base across most industries. beyondblue reports that in any one year, 1 million Australian adults are struggling with depression and over 2 million suffer from anxiety. McDonald Murholme Principal has been working in the employment law industry for almost a decade and has seen that stress and anxiety is quite prevalent amongst his clients. “At McDonald Murholme, we understand that stress, anxiety and depression is often caused by employment related issues,” Mr Jewell says. “Unfair dismissal, bullying, discrimination, redundancy and the like can put pressure on a person and their family both emotionally and financially. “Our clients are facing a taxing road ahead as they get their lives back on track. We try to alleviate as much stress from the process as possible by providing relevant and effective legal advice. ” “We want our clients to know that we understand the difficulties they are facing, and to know there is legal support available to them. “By donating to the beyondblue cause, it is a great opportunity for McDonald Murholme to give back to the community and help who are suffering from depression or anxiety. ” For further information please contact: McDonald Murholme Communications03 9650 4555 Community Engagement --- Woolworths supermarkets has been ordered to pay a former worker $231,000 in compensation after he appealed a court decision relating to a shoulder injury he sustained while working. McDonald Murholme Managing Director Alan McDonald comments on the need for businesses to be regularly audited by external safety advisors so process issues are caught early. See below article for more information. Woolworths ordered to pay injured worker $230,000 in compensation after four-year long legal battle - SmartCompany Supermarket giant Woolworths has been ordered to pay a former worker $231,000 in compensation after he successfully appealed a court decision related to a shoulder injury he says was sustained while working at the retailer’s Queensland distribution centre. The worker, who started working for Woolworths in 2010, brought legal action against the supermarket for the first time in 2013, seeking damages for personal injuries. He claimed Woolworths breached a duty of care to protect him from injury through its use of performance targets, which drove him to work faster for fear of being sent home from shifts. The employee had a pre-existing shoulder condition known as rotator cuff tendinopathy, and his legal team claimed the strain of the job aggravated that condition. In 2016, the initial trial decision in the Queensland District Court found the worker had not done enough to prove the causal link between the injury and Woolworths’ processes. However, the Queensland Court of Appeal court found evidence submitted in the initial case, which said the employee would have sustained the injuries... --- Employee's beginning a new role will usually be set a probationary period of three or six months. This allows both parties to decide whether the employee is suited to the position. Principal Lawyer comments on the legality surrounding probation periods and the barriers employers will face if choosing to extend an employee's probationary period. See below article for more information. Can you extend an employee’s probationary period? - SEEK insight and resources Setting a probationary period for a new employee gives both you and them a chance to size each other up. Are they right for the role, do they have the necessary skills and experience and will they fit in? Usually, employment contracts set a three or six-month probationary period and indicate that, during probation, employees can be fired or resign on shorter notice. It may be as little as a one-week notice period during probation compared with say, a one-month notice required after probation, says principal Lawyer at McDonald Murholme. But, no matter what the contract says, Australia’s unfair dismissal laws have a role to play. No unfair dismissal during probation Employees cannot bring an unfair dismissal claim unless they’ve been employed in a small business (fewer than 15 employees) for at least 12 months, or in a larger business for at least six months. That means an employee is not able to argue to the Fair Work Commission that their dismissal has been “harsh, unjust or unreasonable” during the first six months (or 12 months for small businesses)... --- Former first aid manager at Crown Casino, Audrey Gatt is alleging that staff were told to ignore a domestic violence incident and another where a chef was left with serious burns. Ms Gatt had also made more than 20 occupational health and safety complaints in her five months of service before her dismissal. McDonald Murholme argues that Ms Gatt was unlawfully dismissed for making such complaints. See below article for further details. Former first aid manager reveals 'widespread' OHS problems at James Packer's Crown Resorts - Australian Financial Review   James Packer's Crown Resorts is facing allegations from a former first aid manager that the casino told staff to ignore a domestic violence incident because it involved a visiting south east Asian politician, and did not let a chef attend the first aid office until the end of his shift even though he had serious burns. In a document filed in the Federal Circuit Court, Crown's former first aid manager, Audrey Gatt, claims she witnessed and complained about more than 20 occupational health and safety incidents at Crown Resorts in the five months she was employed at the casino. Ms Gatt says in March 2017, security told first aid officers to "ignore" a domestic violence incident involving a notable politician from south east Asia, and to leave the badly beaten woman alone to attend to her injuries. She says the visiting politician threatened not to attend Crown in the future if he was exposed. She says she complained about the incident the following day. Ms Gatt also claims that in... --- Spanish Health Minister, Dolors Montserrat has criticised Iberia Airlines for inappropriate pre-employment tests for women. McDonald Murholme Senior Associate, Bianca Mazzarella discusses women’s workplace rights when faced with gender discrimination. See below article for more information. Spanish Airline Asked Flight Attendant Applicants To Take Pregnancy Test A Spanish airline has been hit with a hefty fine for demanding flight attendants take pregnancy tests as part of the hiring process. Iberia Airlines asked female candidates applying for cabin crew jobs to take the test before they were hired, The New York Times reports. The airline was slammed for the sexist practice and was fined more than $36,000 AUD by the by the Ministry of Labour of the Balearic Islands. A spokesperson for the airline defended the pregnancy test as a safety measure saying it "was only done to guarantee that they (women) did not face any risks”. But Spanish health minister Dolors Montserrat slammed the workplace requirement as discriminatory. "Maternity can in no way be an obstacle for access to a job," she said, the BBC reports. The airline has since confirmed it will drop the pregnancy test requirement. On Australian soil, discrimination against pregnant women and mothers in the workforce continues to be a concern. According to an Australian Human Rights Commission report titled ‘Supporting Working Parents: Pregnancy and Return to Work National Review’, one in five mothers had their employment significantly altered during or after parental leave. Some mothers faced redundancies, restructuring, job dismissal or contract changes during their pregnancy or during parental leave. Bianca Mazzarella, Senior... --- A Gold Coast security firm has allegedly taken unlawful adverse action against 3 employees and underpaid staff almost $16,000. Principal lawyer comments on the need for employers to watch penalty rates more closely if employees are working late, or have irregular working hours. Please see below article for more information. Security firm accused of saying staff would be sent “straight to the dole queue” if they spoke to Fair Work inspectors - SmartCompany A Gold Coast security firm will face the Federal Circuit Court over claims the business took adverse action against three employees and underpaid staff $16,000, in a series of alleged actions ombudsman Natalie James has called “completely unacceptable”. The allegations relate to security services firm VIP Security, which is owned by Adam Marcinkowski. The ombudsman alleges that in 2016, inspectors visited some of the sites where VIP provided services, as part of a compliance campaign for security firms engaged in contracts with local government. After this occurred, it is alleged the company owner directed a supervisor to warn staff that if they spoke to Fair Work inspectors they would be fired, allegedly saying via phone, “I hear that anyone of our guards has spoken to them (Fair Work), they can just f... ... go straight to the dole queue. ” It is claimed this threat was followed through, with one staff member having their employment terminated after seeking advice from the Fair Work Ombudsman over a change in hours, one allegedly fired after refusing to sign a back-dated employment agreement, and another being terminated... --- In certain industries, a job offer to a prospective employee can be refused if their criminal record relates to the nature of the work. Principal lawyer comments on employee rights when seeking employment with a criminal background. See the below article for more information. Criminal background checks and obtaining employment – what you need to know - InterCheck Australia Recently, Victorian anti-paedophile senator Derryn Hinch is leading a campaign for Australian paedophiles to have their passports cancelled following high-profile cases of child exploitation in South-East Asia. As there are more than 20,000 Australians on the National Child Offender Register, the proposed laws would prohibit offenders travelling overseas in a bid to protect children in developing countries. This comes after Mr Hinch publicly named a convicted child molester who was employed by fast-food chain McDonald’s during a Senate adjournment speech late last year. At the time, the revelation had prompted an investigation into the fast-food chain’s hiring process.  The situation highlighted a complex area of law and where it is considered okay to deny employment based on previous criminal convictions. When can an employer refuse to employ someone with a criminal record? Specific industries where a prior conviction relates to the nature of work can allow for the refusal of a job offer to a potential employee. A large amount of these industries has measures in place to investigate the criminal history of any prospective employees. For example, the Working with Children’s Check will be required for those who are looking... --- For a working mother, bringing a bundle of joy into the world is nothing short of exciting. It is important to let your workplace know you're expecting and organise relevant leave. McDonald Murholme Senior Associate Bianca Mazzarella highlights an employee's eligibility and entitlements when taking parental leave. See the below article for more information. Taking parental leave? Know your rights - This Woman Can When a working mother finds out she is pregnant, she will be filled with many emotions such as happiness, amazement, shock and gratitude.   During such an exciting time also comes the planning of letting your workplace know you’re expecting a child and organising maternity or parental leave. Parental leave is available to both parents in a relationship, including de facto and same sex couples. Both parents are eligible to take leave but usually not at the same time – except for a maximum of three weeks after the birth or placement of an adopted child. Maternity and parental leave can be taken when an employee, employee’s spouse or a de facto partner gives birth or adopts a child under the age of 16. Who is eligible for parental leave? Unpaid: In Australia, all employees are entitled to parental leave. Parental leave is available to those who have been an employee with a company for at least 12 months before the date or expected date of the birth, or before the date of adoption.   For casual employees to be eligible for unpaid parental leave, they... --- The 2016-2017 financial year is coming to an end, and employees are working unpaid overtime, hastily tying up loose ends. Employment law firm McDonald Murholme highlights that employers must tread carefully when asking staff to work unpaid overtime, to ensure they abide by the provisions of the Fair Work Act 2009 (Cth. ) See the below article for more information. Are your employees working overtime during the EOFY rush? If so, you must tread carefully As the 2016-2017 financial year comes to an end, businesses are hastily tying up loose ends in preparation for the new financial year. Often employers can put themselves at risk when pressuring their employees to work extensive overtime to finalise projects, meet deadlines and finish annual reports before the end of the financial year. Employers who direct their employees to work additional hours must tread carefully and ensure their direction complies with the provisions of the Fair Work Act 2009 (Cth). A 2016 survey conducted by the Australia Institute, Centre for Future Work titled ‘Excessive Hours and Unpaid Overtime: An Update’, found that on average, full-time workers complete 5. 1 hours of unpaid overtime per week, and part-time workers averaging 3. 74 hours unpaid overtime. For the full-time employee this excess time worked equates to approximately $10,000 or 13% of actual earnings, and for part-time employees this equates to $7,500 or 25% of actual earnings. The calculated loss when applied to the national economy is approximately $116 billion in unpaid overtime. When it comes to work-life balance,... --- A Melbourne architectural and construction business has lost its bid to overturn an unfair dismissal ruling after sacking a domestic violence victim. McDonald Murholme Lawyers weighed in emphasising that employers need to make better attempts to understand the position of employees who are victims of domestic violence See below article for further details. Domestic violence victim told 'keeping you both in the office is a no' A Melbourne architectural and construction business that sacked a domestic violence victim has lost its bid to overturn an unfair dismissal ruling. The Fair Work Commission refused Eliana Construction and Developing Group permission to appeal against the unfair dismissal ruling earlier this month. The alleged domestic violence victim had been employed as a draftsperson at Eliana since June 2014 and her husband was also employed by the business. “They were pretty quick to further victimise her when she had already been a victim of domestic violence. ”  In fear of her life In January there was an alleged incident of domestic violence. The woman's phone was taken by her husband and she was left "in fear for her life". She obtained a Family Violence Safety Notice, which excluded her husband from the family home. The intervention order was amended by a magistrate to allow both the woman and her husband to continue working from the same office but it specified the husband was not to "approach or remain within three metres" of her. She gave evidence that she was comfortable with those arrangements. Magdy Sowiha, a director of Eliana held a meeting with the woman to discuss her... --- ---