Company Liable for Contract Worker’s Injuries

Precedential Decision by Judiciary or Regulatory Agency

On September 6, 2018, the NSW Supreme Court held that a company (Company A) that used a contracted labor hire worker was responsible for the worker’s injuries and not the worker’s direct employer (Company B), finding that Company A was negligent and that Company B did not have the requisite knowledge or reason to suspect the risk of harm to the worker. Employers using on-demand labor should still ensure the safety of all labor hire workers and contractors in the same manner as their employees, as liability can flow regardless of the employment relationship.

Federal Court Rules Casual Employees May Be Entitled to Annual Leave

Precedential Decision by Judiciary or Regulatory Agency

On August 24, 2018, the Federal Court confirmed on appeal that, in certain circumstances, casual employees may be entitled to annual leave under s86 of the Fair Work Act. Based on the common law multi-factor test, the Court considered the prevailing nature of the employment, the employer’s right to control the work, how the employee is being paid, and hours of work, among other factors. Due to the continuing and indefinite nature of his work, in addition to an agreed pattern and arrangement of work, the employee could not be “casual” and was entitled to annual leave despite his contractual status as a “casual employee.”

FWC Considers Boundary Between Work and Personal Relationships in Bullying Claim

Precedential Decision by Judiciary or Regulatory Agency

On September 11, 2018, the Fair Work Commission denied an application for an order to stop bullying in a case where Employee A had made various comments about Employee B, including questioning the latter’s sick leave, work performance and boyfriend’s fidelity. As the employees had been friends and regularly socialized outside of work, the FWC found their relationship had gone beyond a typical professional working relationship. Whilst a blurred relationship does not excuse inappropriate workplace conduct, here, the behavior was not unreasonable or repeated.

Employers Can Reject Medical Certificates in Certain Circumstances

Precedential Decision by Judiciary or Regulatory Agency

The Fair Work Commission recently held that employers may reject employee medical certificates in situations where the contents are vague. Here, the employee had failed to provide a medical certificate detailing the nature of duties he was not fit to perform; why employee was now fit to resume work when previously he was unfit; the necessary length of time for any modified working arrangements; or a date by which employee could resume his normal duties. The right to reject a medical certificate is likely limited to situations where the employee has been off work for an extended period of time and/or is seeking work restrictions upon their return.

Labor Seeks Changes for Gig Workers

Proposed Bill or Initiative

On September 20, 2018, the Federal Labor party released its proposal for changes to the Fair Work Act. If elected, Labor promises to introduce changes so gig workers are protected in the same manner as employees. Currently companies who rely on gig workers pay a rate per delivery, but under the proposed changes we could see mandatory hourly rates being implemented of up to AUD 23.66 (AUD18.93 per hour + 25% loading) and see the loss of much of the flexibility and freedom that is currently enjoyed by companies and workers in the industries that rely heavily on independent contractors and on-demand workers.