In the News

In the News

April 2021


Sexual Harassment grounds for dismissal

Following recent rape and sexual harassment allegations rocking federal politics, the Government has announced it will amend the definition of serious misconduct in the Fair Work Regulations to include sexual harassment and will make it clear that sexual harassment is now grounds for dismissal in the Fair Work Act.

MPs, judges and public servants will also be subject to the Sex Discrimination Act, having previously been exempt. This will make them subject to complaints for sexual discrimination to the Australian Human Rights Commission (AHRC). Victims of sexual harassment will also now have two years (increased from 6 months) to come forward before complaints can be terminated by the AHRC President.

The changes are in response to the national Respect@Work report which was handed to the Government in January 2020. In introducing the changes the Prime Minister said that the Government agreed wholly, in part or in principle with all 55 recommendations in the report.

A package of legislative reforms are expected to be completed by the end of June. Consultation for drafting the laws will follow. We will continue to keep you updated as these changes progress.


Modern Award Update – Pandemic Leave 

The Fair Work Commission (FWC) has determined it necessary to extend to 31 December Schedule X’s unpaid pandemic leave provision currently operating in 74 awards.

Originally inserted in April last year and extended in both July and September, Schedule X also provides the flexibility to take twice as much annual leave at half pay.

After considering recent submissions the FWC concluded that “Continuing access to unpaid pandemic leave will enable more people to remain in employment and will support the important public policy objective of encouraging those who should self-isolate to do so,”

However, paid pandemic leave for aged care workers has ended (as of 29 March) with the FWC concluding that the “emergency circumstances” that impelled it to make award changes in the first place no longer exist.

The FWC initially granted paid pandemic leave for workers covered by the aged care, nurses and health professionals awards last July in the face of employer opposition before extending it in October until 29 March observing that circumstances had “significantly improved”.

The importance of getting the set-off clause right!

A recent Federal Circuit Court decision which awarded compensation and penalties to wealth advisors earning millions of dollars, but who claimed Modern Award entitlements arising from their employment with Macquarie Bank, highlights the importance of ensuring that employment contract terms sufficiently detail the extent to which particular payments made to an employee are intended to satisfy statutory obligations.

The advisors were paid approximately $60,000 a year, which was paid in equally monthly instalments. In addition, they received large commission payments on work they brought into the practice. It was established that despite some of the advisors earning close to $1 million annually overall, they were

  1. still covered by the Banking, Finance and Insurance Award 2010(Award); and
  2. owed specific NES and Modern Award entitlements. The entitlements which were found to be owing included pay for annual leave, personal leave, compassionate leave, and public holidays, as well as annual leave loading and annual leave loading on termination.

Macquarie Bank argued that the remuneration paid to the advisors, set off any modern award or other legislative entitlements and as such the employees were not entitled to the amounts claimed. The court in its decision in Arundell & Ors v Macquarie Bank [2020] FCCA 2720 and Arundell & Ord v Macquarie Bank (No.2) [2020] FCCA 3313, agreed that the terms of the employees’ contracts of employment made it clear that the $60,000 fixed salary was intended to set off the Award salary. However, the court drew a clear distinction between payment of salary for an ordinary day, and the payment of leave or public holidays, for that particular date, noting there was nothing in the contracts that identified the salary paid to the advisors as intending to set-off these other entitlements.

It is illustrative to note that despite the fact that the advisors actually received payment when they were on annual leave, because the leave was not specifically identified as being paid by the remuneration received, it was held that the payment did not relate to that leave and as such payment for leave was still owing. This finding illustrates not only the need for clear set-off wording in the contract of employment but also the importance of ensuring that payslip information records correctly when particular entitlements are being paid, particularly in relation to leave and Public Holidays.

Working from Home almost doubles

The number of Australians working from home remains almost double the pre-COVID 19 figure and women are more likely want to expand the arrangement, according to the latest ABS data on how households are faring during the pandemic.

Some 41% of surveyed workers say they worked from home at least once a week in February, compared with 24% before COVID-19 restrictions began in March last year.

Almost half of participants say they expect the amount of work from home to remain the same (47%), with 11% expecting a decrease and 8% expecting it to rise.

And though 42% overall would like it to remain the same, 17% of women say they want to increase their working from home, compared with 11% of men.

Household Impacts of COVID-19 Survey, February 2021


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