Australia: Uber driver not an employee – Fair Work Commission finds

The ceaseless trend towards casualisation and new rules of engagement in the gig economy is a modern fact of life. From bicycle couriers to ride sharers and food deliverers, relationships around work continue to fascinate. In the political realm, parliaments around the world are only slowly starting to grapple with how work is being redefined.

In December last year Deputy President Gostencnik of the Fair Work Commission delivered the first decision in Australia assessing whether an Uber driver is an employee. DP Gostencnik found that for unfair dismissal purposes, an Uber driver was not an employee.

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Australia: Banking and Finance Bargaining Update

Issue #1 2017

In this edition we will discuss the Senate Committee Inquiry into corporate avoidance of the Fair Work Act 2009 (Cth), the progress of the Fair Work Amendment (Corrupting Benefits) Bill 2017 (Cth) as well as trends in enterprise agreements in the banking and finance industry.

Please find a copy here: Banking and Finance Bargaining Update – June 2017

For more information on this topic please contact:

Kirsty Faichen
Kirsty Faichen
Partner, Brisbane
+61 7 3258 6492

Nicole Brennan
Nicole Brennan
Senior Associate, Brisbane
+61 7 3258 6522

Australia: Important interim order in a bullying application

A recent decision in the anti-bullying jurisdiction of the Fair Work Commission has highlighted the (potentially complicated) interaction between bullying complaints and an employer's internal investigation process.

In Lynette Bayly [2017] FWC 1886, the Commission made an interim order staying an employer’s internal investigation of a complaint (that is, preventing the employer from finalising a draft investigation report), preventing any disciplinary action in connection with the investigation and preventing termination of the complainant’s employment – until such time as the matter is determined.

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Australia: The new NERR – another bargaining stumbling block?

From 3 April 2017, there is a new look to the most controversial form in enterprise bargaining – the notice of employee representational rights (NERR). The NERR is the form an employer must use to notify employees, when enterprise bargaining commences, of their right to be represented. And in recent times, this legislative form has received a lot more attention than you might expect.

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Australia: Full Bench upholds termination of enterprise agreement decision

The Full Bench of the Fair Work Commission's decision in CFMEU v AGL Loy Yang Pty Ltd t/a AGL Loy Yang [2017] FWCFB 1019 has preserved the decision of Deputy President Clancy to terminate AGL’s Loy Yang Power Enterprise Agreement 2012 (the EA). A summary of the decision is below.

The key takeaway from the decision is that, in determining whether it is appropriate to terminate an enterprise agreement, the Commission will consider an enterprise agreement clause in which an employer commits to maintain certain conditions until a replacement enterprise agreement is made, if the employer appears to intend on departing from its commitment.

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Australia: Judicial vs. Arbitral Power – The Limits of the Fair Work Commission’s Jurisdiction

In brief

  • A Full Bench of the Fair Work Commission (FWC) has delivered a significant decision which confirms that the FWC does not have jurisdiction to declare rights that already exist under the Fair Work Act.1
  • This decision is the first decision of the Full Bench concerning the distinction between arbitral and judicial power in the context of the FWC.
  • The decision is likely to reduce the FWC’s role in future applications seeking to utilise section 505 for disputes about right of entry.

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Australia: One size plaster cast does not fit all – Navigating the pitfalls of dismissing an injured or incapacitated worker

In brief

  • Many employers will, at some point, be faced with the difficult task of terminating the employment of an employee who has been absent from work for some time and is no longer able to perform their job due to illness or injury. This can be a tricky issue to manage and negotiate.
  • The Full Bench of the Fair Work Commission (FWC) in Lion Dairy and Drinks Milk Limited v Norman [2016] FWCFB 42181 (Lion Dairy) has provided some important guidance on the principles which will be applied when an employee who has been dismissed for their incapacity brings a claim for unfair dismissal.
  • This decision emphasises that there is no one-size-fits-all approach – it is important that employers consider each case individually and, in particular, seek and rely upon clear and considered medical advice before determining that an employee can no longer perform the inherent requirements of their role.

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Australia: The right to vote – casual academics and enterprise bargaining

Two recent decisions have provided some important guidance on the obligation for employers to include, or not include, casual employees in enterprise bargaining processes under the Fair Work Act 2009 (Act).1 These cases are of particular relevance to universities, given the widespread use of casual academic employment contracts (including sessional employees) in the tertiary education sector.

This is an important compliance issue: not getting it right means not getting your Enterprise Agreement approved.

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Australia: When must an employer’s premises be available for union meetings?

  • The Fair Work Commission (FWC) has held that union officials have no right to enter employers premises to hold discussions with employees before their shift commences nor after their shift is completed.1 This changes the pre-existing understanding of the relevant section and will impact industries where continuous shifts are worked. It will particularly impact workplaces where lunch breaks are staggered, as it will be more difficult for the officials to hold meetings with large groups of members. 
  • The decision is likely to reduce the Commission’s role in disputes about right of entry. It makes findings about jurisdiction which significantly limited the Commission’s powers.
  • A more conventional approach has been taken to the use which may be made of the Explanatory Memorandum, which will likely significantly limit its use by the FWC.

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