Employment law

We provide a range of employment law services for migrants, as well as employers who sponsor migrants for temporary and permanent visas.

Employment Law Services

  • Employment contracts
  • Unfair dismissal
  • Unlawful dismissal
  • National Employment Standards compliance
  • Employment restraints of trade and intellectual property
  • Independent contractors
  • ‘Sham contracting’ issues
  • Workplace bullying
  • Worker’s rights and obligations
  • Employing visa holders
  • Representation at the Fair Work Commission and the courts
  • Payment disputes and entitlements under modern awards
  • Settlement negotiation
Are Australian Uber drivers employees or independent contractors?

Presently, Australian Uber drivers are engaged under a contract for services, where the driver (the contractor) agrees to provide a specified service to Uber. Under a contract for services, no employment relationship is created between the parties.

The advantage to this arrangement is that it provides drivers with the flexibility to work as and when they like. The advantage to the person or business receiving the services is that they can hire the contractor as and when needed and are not required to pay Award rates, leave entitlements, or other entitlements under the Fair Work Act.

In a landmark decision, a recent UK employment tribunal held that in the UK, Uber drivers are not self-employed contractors, they are, in fact, employees. As a result, Uber will be required to pay the national minimum wage as well as any holiday entitlements to Uber drivers. We are informed that Uber UK will be appealing this decision.

There has been no similar ruling in Australia and, at present, Uber drivers are still considered to be independent contractors. However, in the event that a test case is brought to the Federal Court of Australia, the status of Uber drivers in Australia may change.

Uploaded 7 December 2016

 

Demotion at Work May Constitute Unfair Dismissal

In the decision of Philip Moyle v MSS Security Pty Ltd [2016] FWCFB 372 (3 February 2016), the applicant claimed that he had been unfairly dismissed by his employer as his demotion reduced his wage and removed many of his responsibilities. Nevertheless, he continued to work for his employer at the reduced wage. The applicant made an application to the Fair Work Commission (“FWC”), claiming that he had been unfairly dismissed under section 386 of the Fair Work Act (“FWA”).

The FWC initially decided that a reduction in duties or remuneration is not sufficient to constitute a dismissal, and that a mandatory requirement is that the applicant must have ceased employment with the employer. This decision was rejected by the Full Bench of the FWC who held that a demotion DOES constitute a dismissal, UNLESS:

1.       The demotion does not involve a significant reduction in the employee’s remuneration or duties; and

2.       The employee remains employed with the employer.

The onus is on the employer to prove the above 2 requirements.

Section 386(2) of the FWA provides other exceptions to when a person has been “dismissed”.

Unfortunately the applicant in this case was ultimately unsuccessful as the Full Bench of the FWC also held that his variation in wage and duties was permissible under the terms of his contract of employment (“Contract”).

The Contract provided that the employee could be required to carry out a wide range of duties at different sites at a remuneration subject to conditions applying to the duties actually performed from time to time.

Article Uploaded 25 May 2016

 

Remedy Granted to Employee Dismissed Due to Exercising “Workplace Right”

The Federal Circuit Court of Australia (“the Court”) has found that an employee who was dismissed from his employment during his probation period was eligible to make an application for “dismissal in contravention of a general protection”.

The Fair Work Act 2009 (“the Act”) provides protection of certain rights (“workplace rights”) and protection from certain unlawful action. Under section 341(1) of the Act, a “workplace right” includes the right for an employee to make a complaint or inquiry in relation to their employment.

The employee claimed that the general protections provision of the Act (section 340) had been contravened by his employer. He alleged he had been dismissed because he made a complaint in relation to his employer.

The employee was dismissed 10 days prior to his 3 month probationary period. He was not eligible to make a claim for unfair dismissal, as he had not worked for the employer for at least 6 months.

The Court found that one of the reasons for his dismissal was the complaint he made about his supervisor. Therefore, his claim was successful. It was sufficient that the employee’s complaint was one of the reasons for his dismissal. It did not need to be the only reason.

The employee may be granted compensation. An amount is yet to be determined.

A general protections claim may be available to an employee who is not eligible to make a claim for unfair dismissal.

Please contact us for further information.

Uploaded on 2 February 2016

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