Employment & Labour

Lifting the veil: When can the Commission look beyond an external authority’s decision as to psychological suitability?

Many industries require staff to hold certain “authorities” before they can undertake work. If that authority, given by an external agency, is withdrawn, the outcome is often termination of employment. If an employee challenges that termination, saying there was no valid reason for termination, is the Fair Work Commission able to go behind that withdrawal of authority and assess whether that decision was reasonable? In the case of DA v Baptist Care SA [2019] FWC 7358, the Fair Work Commission was required to consider the extent to which the reasoning behind a psychological assessment could be put to the test.

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Off the record – Failure to keep accurate records sinks employer’s underpayment defence

Following the passage of the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, the impact of a failure to keep records is much more significant in light of the new reverse onus provisions placed on employers. The recent decision of Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 has tested the new provisions, in dealing with an allegation by two former employees that their employer had failed to pay them for all hours worked under the relevant award.

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When can an employer manage employee conduct which is related to a disability without doing so “because of” the disability (and without breaching anti-discrimination laws)?

Employees affected by a psychological disability are as capable as any other employee of engaging in poor workplace conduct that needs to be managed by the employer. The issue of whether the poor conduct is a feature of the disability can often lead to reluctance to deal with it, out of a concern that doing so amounts to unlawful discrimination, especially when the employee makes exactly that assertion when faced with the prospect of performance management or discipline.

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How to ensure loaded rates of pay pass the BOOT

In June 2018, the Fair Work Commission handed down its decision in Loaded Rates Agreements [2018] FWCFB 3610 (“the Loaded Rates in Agreements Case”). Following the decision, on 16 October 2019, the Fair Work Commission approved the ALDI Foods enterprise agreements for ALDI’s Prestons and Stapylton sites, which both contain loaded rates.

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