The High Court of Australia has handed down its second significant decision on the interpretation of the adverse action provisions in the Fair Work Act 2009 (the Act).

In 2012 the High Court made a decision in the case of Board of Bendigo Regional Institute of Technical and Further Education v Barclay, which provided employers with guidance on what must be established to defend a claim that adverse action had been taken against an employee for a prohibited reason.  This case informed us that if the person who made the decision to sanction the aggrieved employee (such as a HR or operations manager) could provide cogent and credible evidence that no part of their decision involved a prohibited reason (such as participating in a lawful industrial activity), that would be sufficient to resist the employee’s claim.   

A Victorian water authority was found to have contravened the no extra claims clause in its enterprise agreement, in a decision handed down by the Fair Work Commission (FWC) last week. The authority made changes to a vehicle policy which provided some employees with limited private use of work vehicles.  The enterprise agreement itself contained no provisions dealing directly with the provision or private use of motor vehicles.

The decision over whether to engage employees or contractors in business is a complex problem that many struggle over. This article highlights a case that illustrates how getting it wrong can evoke dire consequences.

In 2013 the case of Ace Insurance Ltd v Trifunovski came up before the Federal Court. This case dealt with a claim by five insurance agents, who asserted that they were engaged as employees and not contractors. Their payment terms were on a commission basis from premiums they had collected. Each agent carried out their respective duties using their own car, and engaged their own secretarial support. The agents also issued tax invoices for their services and each agent was contracted to the insurer through a company. The insurer deemed them to be contractors, and didn’t pay them any leave entitlements.

APT Technology Pty Ltd (APT) won a rare injunction in the Federal Court last week, obtaining orders that prevented a former employee from soliciting or dealing with APT clients for five months, even though the employee was not subject to any contractual restraint of trade obligation.

With only 4 solid working weeks remaining, 2014 is already upon us. These coming weeks will be swallowed up by end of year functions and completing those jobs that were due back in July. While we admit we are adding another inconvenient issue to the plate, this alert is essential reading for all employers.

The genesis of annual leave loading can be traced back to the 1970’s when metal workers won a claim for its inclusion in their award. It was sold on the logic that workers would not get their normal pay, which included shift and weekend penalties, while on annual leave.

Nick: “You got us a job at Google?” Billy: “Well, not a job job. It’s an interview for an internship that could lead to a job. Nick, this might be the last chance that we’ve got.”

The recently released Hollywood flick, The Internship, portrays a playful spin on life as an intern at Google, with its characters competing for a permanent role at the dreamy tech-giant.  However, the unpaid – learn on the job – internship (better known as ‘work experience’ in Australia) is facing increasing scrutiny from government and has also provoked popular media commentary on the lack of worker rights in these roles.            

Earlier this week, the NSW Supreme Court ordered costs against a company who funded an employee’s legal fees associated with opposing an injunction commenced by the employee’s former employer. HRX sought to restrain the employee from working with a competitor; Talent2.