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Flagpost is a blog on current issues of interest to members of the Australian Parliament

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Full Bench of the Fair Work Commission refuses access to union membership records

On 11 May 2016, the Full Bench of the Fair Work Commission (FWC) overturned the FWC General Manager's (GM) decision to authorise two FWC employees to inspect the membership records of the Construction, Forestry, Mining and Energy Union (CFMEU) for the purposes of aiding an investigation by the Office of the Fair Work Building Industry Inspectorate (FWBII). The Full Bench held that the GM’s decision was an invalid exercise of the power conferred by the Fair Work (Registered Organisations) Act 2009 (FWRO Act). Background Section 348 of the FWRO Act allows the GM to issue a certificate that states whether a person is a member of a specified organisation, and sets out the legal effect of ... Read more...

Fair Work Commission clarifies when an employer can direct an employee to attend a medical examination

The Full Bench of the Fair Work Commission (FWC) recently handed down a judgment which examined the lawfulness of dismissing an employee who refused to attend a medical appointment, as directed by their employer. Read more...

Changes to payment of leave loading on termination of employment

Changes to payment of leave loading on termination of employment This FlagPost examines the changes proposed by the Fair Work Amendment Bill 2014, in relation to payment of leave loading on unused annual leave when an employee ceases employment, and what those changes would mean for employers and employees. Background Annual leave loading is designed to compensate employees for notional loss of overtime earnings whilst on leave. Despite this, it is relatively common in sectors where overtime payments are infrequent. The Fair Work Act 2009 (FWA) changed the previous long-standing position that leave loading was not payable on termination, unless provided for by an industrial instrument (e... Read more...

Fair Work Commission clarifies differences between a support person and advocate

In February 2014, the Full Bench of the Fair Work Commission (FWC) handed down a judgement in which the nature and role of a ‘support person’ in discussions relating to a dismissal were discussed.  Read more...

Fair Work Commission hands down landmark ruling on anti-bullying regime

Fair Work Commission hands down landmark ruling on anti-bullying regime On 6 March 2014, the Fair Work Commission (FWC) ruled that its jurisdiction to hear complaints from workers who allege they are victims of workplace bullying extends to complaints that relate to bullying that occurred prior to the anti-bullying regime coming into force.   Background As detailed in a previous flag post, the reforms related to bullying were introduced by the Fair Work Amendment Act 2013, which provided the FWC with jurisdiction to hear complaints from workers covered by the Fair Work Act 2009 (FWA) who allege they are victims of workplace bullying. On 9 January 2014, Ms Kathleen McInnes... Read more...

Is an employee who resigns entitled to leave-loading on their unpaid annual leave?

Since the Fair Work Act 2009 (FWA) was introduced, there have been differing views regarding how to calculate the amount payable to an employee who has untaken annual leave when they cease employment. Is it calculated using the employee’s base rate of pay, or must it (if the employee is entitled to it) include leave-loading?Stephen Edward Ryan v Whitehaven Coal Mining Pty Ltd (Ryan v Whitehaven)* may be the first case to have considered the issue. The court ruled that where an employee is entitled to leave-loading, the amount payable for any untaken annual leave must include leave‑loading.The NES and leave loadingUnder the National Employment Standards (NES), there is no entitlement to leav... Read more...

Industrial relations reforms: boosting labour productivity?

Business leaders are citing impediments caused by the Fair Work legislation as a significant limit on labour productivity:Mr Argus (former BHP Billiton chairman) ... warn(ed) of a return to "the dark days of the 1970s" if labour market flexibility was not boosted. He said under the Fair Work laws, unions were resisting "management attempts to achieve efficiency"... Bureau of Statistics data shows little change in labour productivity growth under the Fair Work Act when compared to the period under Work Choices, while other measures of productivity have also weakened since 2000.( ‘Labor woeful on economic reform, says Argus’) The aim of such criticism, at a minimum, would be to widen ‘prohibit... Read more...

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