1.  Latest Decisions  

Breach of Social Media Policy May be Cause for Dismissal

The FWC confirms that social media activity may be grounds for termination, if the employer has conducted a full investigation to understand the context of any perceived inappropriate comments.

In a recent case, the employee made “ridiculous” posts on Facebook including one announcing that “We all support ISIS” which led to his dismissal.

The FWC found that the employer had failed to properly investigate the employee’s Facebook account and held his termination to be unnecessary and constituting unfair dismissal. To read the full decision, click here.

Restrictions on Leave Entitlements only Applicable to NES Leave

A majority of the Full Federal Court held that the restriction on deducting employee’s annual leave balance on a public holiday only applies to leave entitlements under the National Employment Standards (NES) and not to more generous leave entitlements otherwise provided.

The employee had leave entitlements above the minimum NES entitlement of 4 weeks paid annual leave, as he was on a 6 day roster and would often be rostered on public holidays. The CFMEU argued that the employer was wrong to deduct annual or personal leave on rostered public holidays in accordance with ss 89 and 98 of the FW Act. The employer’s practices were upheld, with the Court holding the NES operates as a minimum set of standards and any additional or supplemented paid leave is not subject to those restrictions. To read the full judgment, click here.

Refusing Medical Examination May Justify Dismissal

The Full Federal Court held that an employee can be required to undergo a medical exam if it is “reasonable and necessary to ensure that anyone is not exposed to an unacceptable level of risk”.

The employee was required to undergo a medical examination after being away from work for eight months for a shoulder injury. The employee refused to undergo the examination and was subsequently dismissed.

Whilst employees have a right to refuse to undergo a medical examination, such a right may be limited, for example, where the employer's statutory obligations under occupational health and safety legislation gives it the right to require the employee to attend a medical assessment or whether there is an express contractual right to do so.

Unfortunately, the Full Court declined to consider in this decision whether there is a broader right to direct an employee to attend a medical appointment under an implied term of an employment contract. To read the full judgment, click here.

2.  Latest News

Minimum Wage Increase

The FWC has increased the minimum wage by 3.3% (59 cents) to $18.29 per hour. The increase works out to an extra $22.20 per week, on the basis of a 38-hour week for a full time employee.

We note that award and agreement free employees are not entitled to be paid a higher rate of pay for overtime hours unless it is agreed to and included in their contract of employment.  To read the FWC's statement and full decision on the annual wage review for 2016-2017, click the links below:

https://www.fwc.gov.au/documents/sites/wagereview2017/decisions/2017fwcfb3501.pdf

https://www.fwc.gov.au/documents/sites/wagereview2017/decisions/2017fwcfb3500.pdf

Update on Penalty Rate Cuts

Changes to public holiday penalty rates in the Hospitality, Restaurant, Fast Food, Retail and Pharmacy Awards will be introduced starting from 1 July 2017. However, the FWC has decided that changes to Sunday penalty rates will be phased in over four years to the retail and pharmacy industry and over three years in the hospitality and fast food industry. To read further about these transitional arrangements, click here.

New Workplace Watchdog

The Registered Organisations Commission (ROC) commenced on 1 May 2017. The ROC provides regulatory oversight and education for registered organisations, and will deal items including annual and financial reporting, elections, loans and officer disclosures. To read further about the ROC, click here.