Recent news

  • In a recent controversial decision by the Full Bench of the Fair Work Commission, employers using “back to back” term contracts may now run the risk of facing an unfair dismissal claim where a contract is not renewed. Click here to read our full blog on this key decision. 
  • The results of the Fair Work Ombudsman’s healthcare sector campaign have found that 74 per cent of businesses were fully compliant with their workplace obligations, however there were still areas of concern. In particular, “the campaign identified errors relating to pay rates, pay slip requirements and record keeping among non-compliant businesses”. As part of this campaign, the FWO conducted 696 audits across the industry (including medical services, allied health services and residential care services sectors) leading to the issuing of 16 infringement notices, 12 formal cautions and one compliance notice to a non-compliant business. For further information of these results, click here.
  • According to recent statistics released by the Department of Mines, Industry, Regulation and Safety, muscular stress injuries related to handing objects continues to be the leading cause of lost-time injuries in WA. The largest industry to be impacted by muscular stress injuries is those in the health care and social assistance industry, in which 23 per cent of all lost-time injuries are related to muscular stress injuries with a cost of $54,660 per lost-time injury. Other injury disease hotspots include falls from heights and also on the same level, and being hit by moving objects. For further information, click here.

Latest decisions

  • The Fair Work Commission finds that Uber is not an employer. An Uber driver seeking protection from unfair dismissal has been unsuccessful in his application to the Commission on the basis that an employment relationship did not exist. The Uber driver’s service agreement was terminated by Uber for poor passenger ratings in August 2017. He subsequently applied to the Commission, arguing that he should not be defined as true independent contractor, as he was limited by Uber in his right to charge a higher fare (he was able to charge a lower fare). He also requested the Commission take into consideration the UK Tribunal decision in 2016, which upheld that an Uber driver “worked” within the definition of the Employment Rights Act (UK).The Commission considered the UK decision did not apply, as it was materially different in that the UK legislation encompasses a far broader definition of “worker”. The Commission also commented that the law of employment was evolving at a rate far slower than that of the digital economy and until legislation is refined to broaden protection to those who participate in the digital economy, then the traditional tests will continue to apply.To read the full decision click here.
  • Rio Tinto to appeal the recent Fair Work Commission decision to reinstate an employee following a substandard internal HR investigation.

A Rio Tinto mechanic was dismissed following the outcome of a HR investigation which stated that on three occasions he had encroached on a restricted isolation area of a mobile grader during the task of jacking up the vehicle for tyre removal. The alleged safety breach was considered particularly serious as there had been a fatality several months prior in similar circumstances.During the process of investigating the alleged incidents, two separate investigations were undertaken – a HR investigation and a safety investigation.

The safety investigation recommended retraining rather than dismissal, as the action of the mechanic encroaching on the isolation area did not appear to be repeated or deliberate.However, in dismissing the mechanic from his employment, the maintenance manager relied entirely on the HR investigation, overlooking the safety investigation recommendations. The HR investigation was based on photographs from a re-enactment which demonstrated the mechanic encroaching well within the isolation area. The re-enactment did not involve the mechanic as he was not invited to participate. Subsequent evidence from witnesses confirmed that the photographs were inaccurate and the mechanic did not encroach as far inside the isolation area as would appear.

The mechanic was also dismissed without an opportunity to obtain legal advice and without the proper opportunity to respond, as required by section 387(c) of the Fair Work Act. Furthermore, other employees had also committed similar isolation breaches, some comparatively more serious and had not been disciplined to the extent of dismissal. The mechanic’s dismissal was found to be procedurally unfair and without a valid reason pursuant to section 387(a) of the Fair Work Act. On 28 November 2017, the Commission reinstated the mechanic to his former position, on the condition that he undertook the training recommended in the original safety investigation.

On 7 December 2017, Rio Tino lodged an appeal and argued that the Deputy President erred in finding that there was not a valid reason for dismissal and had treated section 387(a) to (c) of the Fair Work Act as a requirement or obligation, as opposed to something which should be taken into consideration. Approval for the appeal was granted on 11 December 2017. The decision to stay the operation of the original order until the appeal hearing was subject to the condition that Rio Tinto pay the mechanic the remuneration that he would otherwise have earned in his employment under the terms of the original reinstatement order. We will provide an update once the appeal has been heard. To read the full decision to grant the appeal, click here.