Allens Arthur Robinson

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In this issue we consider whether employees can claim redundancy payments when their roles transfer to a new employer as part of a business sale; the circumstances in which comments posted to a Facebook page might justify termination of employment; what considerations apply when an employee pursues more than one set of proceedings arising from a single workplace scenario; and we provide an update on the national work health and safety legislative framework

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Yesterday, the Federal Government's Fair Work Act review panel released its background paper. Partner Simon Dewberry looks at the paper and the process of making a submission

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We look at the operation of a post-termination restraint of trade clause; an adverse action claim arising in the context of performance management by an employer; a decision allowing prepayment of annual leave entitlements under the National Employment Standards; and changes to work health and safety legislation affecting principal contractor appointments in Queensland

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We look at work health and safety laws harmonisation; redeployment obligations in a redundancy; employer rights to determine where on-site union meetings are held; and whether asserting a right under an employment contract can ground an adverse action claim

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We look at whether an employer has the right to dismiss an employee for not working on a public holiday; Fair Work Australia's position on intervening in the bargaining process; social media usage in the workplace; proving bullying in an unfair dismissal case; andgoing to courtto restrain a company's board from passing a termination resolution

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In a trend known as BYO Computing, employees are increasingly wanting to use their own mobile computer technology for work purposes. Mobile computing can benefit employers, but there are legal risks as well. Michael Pattison and Simon Dewberry speak to Boardroom Radio about the legal issues surrounding mobile computing and how to manage them

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We look at a case in which an executive's termination was held to have been lawful; a development in the test for distinguishing between employees and independent contractors; new Victorian anti-bullying legislation; enforcement of a post-employment restraint; company director liability for underpayment of wages; protected action ballot orders and when they can be granted; employer negligence for failing to protect employees from psychiatric injury; possession of psychological disorder not sufficient to make performance management and dismissal unfair; and increases to the national minimum wage

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Employers need to familiarise themselves with important legislative amendments to anti-discrimination laws that are likely to come into effect in July 2011. In particular, the standard for what constitutes sexual harassment has been lowered, and employers now have an obligation to protect employees from sexual harassment in a broader range of workplace contexts. Partner Peter Arthur, Lawyer Tristan Garcia and Law Graduate Edwina Watson report on the changes and what they mean for employers

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We look at freedom of association provisions; restraints of trade involving intermediaries; the burden of proof in adverse action claims; fiduciary duties to subsidiaries; and whether an employment contract is repudiated by an employer asking an employee to assume a diminished role

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The NSW Government yesterday introduced in Parliament the Occupational Health and Safety Amendment Bill 2011 which, if passed, will remove the reverse-onus duty provisions in the Occupational Health and Safety Act 2000 (NSW) and substantially modify the personal liability of directors. These changes are proposed to commence ahead of the Model Work Health and Safety Bill on 1 January 2012. Partner Peter Arthur and Lawyer Jonathan Adamopoulos report

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Federal Parliament has passed legislation that shields journalists - and potentially bloggers and others - from having to disclose the identities of their sources. Partner Tim Frost speaks to Boardroom Radio about how the new law will work and what it means for the disclosure of sensitive information

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In this issue: we look at the need for an employer to act upon its contractual obligations regarding performance bonuses; protected action ballot orders; drug and alcohol testing; proving an employee's dismissal is not for an unlawful reason; and damages resulting from an employer giving misleading information.

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The Federal Court has clarified receivers' obligations to pay employees' leave entitlements and superannuation contributions out of the assets of a company subject to a floating charge. The court held that receivers are only required to pay Entitlements that fall due before their appointment. Special Counsel Philip Blaxill and Lawyers Bryn Dodson and Melanie Rifici report

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we look at implied terms in employment contracts; senior employee liability for workplace breaches; criminal conviction as a reason for terminating employment; damages calculations arising from breach of an independent contract; dealing with complaints of underpayment; and the Equal Opportunity Act 2010 (Vic)

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Any company or individual conducting business, regardless of whether it has any employees, will be liable under new draft regulations which are the next step towards the national harmonisation of occupational health and safety laws. Partner Peter Arthur and Lawyer Jonathan Adamopoulos report on new draft Regulations and draft Codes of Practice released by Safe Work Australia

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A recent unfair dismissal case raises issues once again for employers and employees over the use of social media. Partner Adam Lunn speaks to Boardroom Radio about the lessons that need to be heeded when using social media outlets such as Facebook

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The Australian Taxation Office's Employee Share Scheme working party had its winding up meeting this week. Partner Sarah Bernhardt (who was a member of the working party) and Lawyer Teresa Campbell report on the main discussion points

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We look at whether a dismissal is a redundancy when the work is still being performed by others; where Fair Work Australia may still approve an agreement without good faith bargaining; Fair Work Australia having clarified the scope of flexibility terms; enterprise agreements should not cover positions an employer has yet to fill; notification of enterprise agreements in the digital age; and Fair Work Australia upholds the termination of an employee for refusing to work as directed

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The Fair Work Ombudsman has recently issued a guideline outlining how transition provisions, which will come into force on 1 July 2010, will work for modern awards. Partner Tim Frost speaks to Boardroom Radio about which workplaces will be affected by these provisions and what they will need to do to be ready for them

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We look at an unfair dismissal case that dealt with the issue of an employee failing to provide their employer with relevant medical information to assist in their return to work; the scope of enterprise agreements and common law obligations; the issue of a pay rise as an example of negotiating in bad faith; and the failure to comply with mandatory notice requirements in an enterprise bargaining agreement

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In response to the report on the Federal Government's National Consultation on Human Rights, the Government has released its proposed agenda on the issue, Australia's Human Rights Framework. Partner Alex Cuthbertson, Senior Associate Rachel Nicolson and Lawyer Swee Leng Harris summarise the framework's key initiatives, and their likely impact on federal legislation, policies and programs.

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Under the Fair Work Principles, companies vying for Federal Government contracts will be required to have compulsory arbitration clauses in their enterprise agreements or otherwise risk being passed over for consideration. Partner Adam Lunn speaks to Boardroom Radio about potential impact of the Principles on companies tendering for Federal Government work

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We look at dispute resolution clauses in enterprise agreements; when enterprise agreements will transfer with employees; the potential consequences of workplace harassment; and whether the scope of a proposed enterprise agreement is a proper subject for bargaining

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Company directors are facing stiffer penalties and personal liability for workplace injuries whether or not an accident has taken place, under new OHS laws set to come into effect within two years. Partner Peter Arthur speaks to Boardroom Radio about what effect this will have on directors and what steps they should take in the meantime

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We look at the dangers of potential demotion during restructures andthe cost to employers; the protection of employers' confidential information; the obligationfor employers to provide a'reasonable opportunity' for their employees toconsider an enterprise agreement; and the states referring workplace regulation to the federal jurisdiction

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Yesterday the High Court unanimously quashed the conviction of an employer-company and its director for breaches of its OHS obligations following the fatality of an employee. The court's decision will have a significant impact on the interpretation of NSW employers' OHS duties and the way in which prosecutions are brought for breaches of all OHS legislation in Australia. Partner Peter Arthur and Lawyer Jonathan Adamopoulos report

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In the midst of the traditional new year holiday period, the Federal Government released the Productivity Commission's final report on executive remuneration in Australia. Allens Executive Partner Paul Quinn and Lawyer Ben Ferguson summarise the findings of the Productivity Commission and analyse its recommendations on the reporting of executive remuneration

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We look at whether employers can communicate directly with their employees even though they are engaged in good faith bargaining with a trade union; a case that shows that deeds of release are not absolute; and the circumstances where Fair Work Australia may suspend protected industrial action on the grounds of significant economic harm

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We look at an employee's resignation in breach of contract; a company policy regulating activities performed outside work; restraining employees from using confidential customer lists after their employment ends; the introduction of random drug and alcohol testing to meet occupational health and safety obligations; and the NES, which commence on 1 January 2010

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Amendments to the Corporations Act aimed at curbing 'golden handshakes' commence today after receiving Royal Assent yesterday. Shareholder approval is now required for any termination benefits to company executives that exceed one year's base salary. Partner Peter Arthur and Law Graduate Jonathan Adamopoulos report

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We look at the draft Model OHS Act; principal contractors' OHS obligations to independent specialist subcontractors; the meaning of 'workplace' under sections 5 and 17 of the Occupational Health and Safety Act 1991 (Cth); the costliness of breaches of federal OHS laws; lack of training and supervision leading to prosecution; heavy penalties for companies that do not address well-known OHS risks; reduction in penalties for the improvement of safety measures; and upcoming WA reforms to mine safety regulation.

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On 16 November 2009, the Australian Industrial Relations Commission varied the Clerks - Private Sector Award 2010 and the Banking, Finance and Insurance Award 2010 by removing the exemption provision from each Award, and replacing it with an annualised salary clause. Senior Associate Veronica Siow and Law Graduate Sarah Hampton report.

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Provisions in the Fair Work Act have made interaction between employers and employees via social media potentially dangerous. Partner Adam Lunn speaks to Boardroom Radio about the possible implications of employers interacting with employees on Facebook and other social media, and what businesses can do to avoid such outcomes

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We look at the meaning of 'reasonable additional hours'; the Productivity Commission's draft report on executive remuneration; what amounts to a sham arrangement; the incorporation of company policies into employment contracts; and lessons so far on bargaining under the Fair Work reforms

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We look at the issue of the enforceability of a post-employment restraint; the phasing-in period for the new Modern Awards; and the validity of an employment contract where an employee has been wrongfully terminated

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The High Court has handed down its decisions regarding the prosecutions against John Holland Pty Limited by the Victorian and New South Wales Workcover Authorities.1 The court ruled that a non-Commonwealth licensee can be prosecuted under State occupational health and safety legislation. Partner Peter Arthur and Law Graduate Jonathan Adamopoulos report

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Long-awaited draft harmonised OHS laws were released this week. Allens Senior Associate Ric Morgan speaks to Boardroom Radio about the implications of the laws, in particular new positive duties imposed on directors and officers

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We look at whether a term of mutual trust and confidence will be implied in an employment contract; the issue of an employer's intention in relation to a forced resignation; new legislation to reform company executive retirement and termination benefits; and the term 'in the course of employment' in a NSW workers' compensation case

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We look at the process of harmonising OH&S law; the restrictive nature of NSW's OH&S legislation; drug testing in the workplace; the consequences of an employer failing to seriously consider an employee's safety concerns; where does a worker's journey end for the purposes of worker' compensation claims in NSW; appropriate sentencing of a defendant's failure to enforce safe work practices; and the importance of identifying the real causes of workplace injuries

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In this edition we look at what defines a casual employee; we review bargaining under the new Fair Work Act; a case dealing with the recognition of casual work for the calculation of employment service; and changes to anti-discrimination/disability legislation

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We look at enforcing a post-employment restraint of trade; the consequences of failing to adhere to dispute resolution provisions in an employment contract; the potential cost of revoking an employment inducement; and an employer's responsibilitytodeal withallegations of sexual harassmenteven in the absence of a formal complaint

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The Federal Government has reintroduced the Corporations Amendment (Improving Accountability on Termination Payments) Bill 2009 following a process of public consultation in response to widespread opposition to the Bill in its original form. Partner Peter Arthur looks at the key points of the legislation.

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We look at the ATO's new superannuation guarantee ruling; the new Fair Work Ombudsman; a case that gives some clarification as to when a payment in lieu of notice may be illegal; what constitutes a 'genuine' attempt to reach an agreement; and under what circumstances an alleged breach can warrant dismissal before a full investigation has been completed

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The proposed changes to employee share and option plans has caused an uproar from both business and unions. Partner Sarah Bernhardt speaks to Boardroom Radio about the impact of these changes

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Last week, the Australian Prudential Regulation Authority released proposed extensions of its prudential standards to cover remuneration, and a draft prudential practice guide on remuneration policies for financial institutions. Allens Executive Partner Paul Quinn looks at the new guidelines

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Recent off-field incidents involving sportspeople has led sporting teams and sponsors to enact moral hazard clauses in contracts. Partner David Yates speaks to Boardroom Radio about how these clauses function

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The Federal Government has released a draft of new laws regulating executive termination payments for public consultation. The Corporations Amendment (Improving Accountability on Termination Payments) Bill 2009 places strict caps on termination or 'golden handshake' payments to directors and executives, and clarifies the types of payments that will form part of a termination benefit. Executive Partner Paul Quinn and Senior Associate Lisa Keohane report

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In this issue we look at a recent decision providing guidance on matters that can be included in an enterprise agreement; changes to transmission of business rules; a case that illustrates what may happen where a working relationship is incorrectly characterised; competition with an employer; and a case that deals with the protection of an employer's copyright

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Amid the global recession and significant negative public sentiment against excessive executive remuneration practices, the Federal Government has mandated the Productivity Commission to examine Australia's framework for executive remuneration, including the tax treatment of equity based remuneration. In addition, the Government has proposed reforms to significantly broaden the circumstances in which shareholder approval of executive termination payments is required. Partner Sarah Bernhardt and Senior Associate Gaibrielle Germanos examine the taxation aspects of the reform proposals