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28-03-2017  

INDEPENDENT SHAM CONTRACT COSTS BUSINESS $124,000

 

 

As we fast approach the last quarter of the final year, it is important to avoid employment shortcuts by masking employment relationships that don’t exist.  This issue was explored in the matter below.

Fair Work Ombudsman v Australian Sales and Promotions Pty Ltd & Amor (2016)

FCCA 2804 (10 November 2016)

Federal Circuit Court Judge Robert Cameron found Australian Sales and Promotions (ASAP), contravened s.357 of the Fair Work Act 2009 (Cth) (FWA) as the business made representations to the backpacker involved that he was an independent contractor.

As such, ASAP made him purchase his own public liability insurance, obtain and ABN and then invoice an ASAP related company – PMA Unit Pty Ltd (who shared the same director as ASAP).

ASAP failed to pay the minimum wages and apply casual loading and was therefore found to have contravened ss 293, 325 and 535(1) of the FWA.

Judge Cameron found that ASAP and the director was aware of its obligations and attempted to enjoy the financial benefits derived with an independent contractor relationship whilst exercising the control and authority that exists within the employer/employee relationship.

It was further held that “Persons should understand that attempting to evade the minimum employment conditions provided by the Fair Work Act by contriving to make employees independent contractors can have serious financial consequences of an adverse kind”


ASAP was penalized $100,00 and its sole director was fined a further $24,000

Whilst small business operates in cost pressure environments, misrepresenting employment arrangements is not a manner in which to reduce costs. It is imperative that carefully drafted employment contracts are in place to ensure compliance with the FWA.

15-12-2016  

CHRISTMAS AND NEW YEAR CELEBRATIONS

 

 

At this time of year, it’s worth remembering what obligations you have as an employer having celebratory functions.

This issue was explored in the matter of Keenan v Leighton Boral Amey Joint Venture (2015) FWC 3156 (26 June 2015)

In this case the employer held a Christmas Party where Mr. Keenan was heavily intoxicated. During the course of the night he engaged in behavior, which involved telling a director and a senior manager to “….. off” when attempting to join a conversation in separate incidents. He also attempted to obtain a telephone number from a female colleague.
After the work function ended he went to a bar with other colleagues where he kissed a female on the mouth without permission or consent.

After numerous complaints, Mr Keenan returned from leave in January and was subsequently dismissed. He then lodged an unfair dismissal claim. It was held the work function was a mitigating factor with regards to Mr. Keenan’s behavior. It was held the employer did not serve alcohol responsibly as it was unlimited and freely accessible and this was an exacerbating factor and it was contradictory in the circumstances for the employer to require compliance with its usual standards of behavior at a function.

As such, the dismissal was deemed harsh, unjust and unreasonable.

As an employer, there are a number of critical steps that clearly, it would be wise to follow:

  1. Ensure all employees know that the function is work related and therefore workplace policies are required to be followed.

  2. Ensure there is a start and finish time.

  3. Ensure there is a responsible means of serving alcohol.

  4. Ensure any issues are dealt with immediately at the function.

  5. Ensure travel arrangements are in place for employees.

While a work Christmas function may share similarities with other social and family celebrations, ultimately it is a work function. Employers and managers should endeavor to set an example of responsible behaviour. It is important to have fun and celebrate success, but it is also important to not check your commonsense at the front door as you enter a Christmas party.

Season’s greetings.

 

 

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Neil Salvador (LLB, Dip Bus, Dip Teaching) has extensive legal experience gained in large public organisations whilst holding senior management roles.

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