Employment contracts of foreign domestic workers – do they have to comply with Australian law?

If the employment contract of a foreign worker is made the subject of an application for unfair dismissal, can the Fair Work Commission hear and decide the application?  The case of Juliet Buenaobra v Anwar Alesi [2018] FWC 4311 (06 August 2018) illustrates the law on the matter.

An Iraqi couple who worked for the Iraqi diplomatic mission had in their employ a Filipino woman working as nanny to their two children. She had signed an employment contract and was brought into Australia under the diplomatic visa stream of her employer.

Under her contract, she was promised monthly pay of $2975 with deductions of $800 for board and lodging, $125 for medical insurance and $50 for clothing. She should have received about $1750 a month but received only $800 monthly. She also shared a room and slept with the two children of her employers instead of her having her own room. She worked six days every week for long hours (beyond the usual 8 hours a day). Her total number of hours of work each week far exceeded the 40-hour workweek legislated as minimum work hours. She did not receive overtime pay for her work beyond the 40-hours.

She lodged a complaint for underpaid wages under her contract. She was then dismissed for having committed an unspecified misconduct against the family of the Iraqi diplomat. She lodged a complaint for harsh, unjust and unreasonable dismissal.

The Iraqi couple then pleaded diplomatic immunity and sought a dismissal of the domestic worker’s complaint for unjust dismissal. The employment contract lawyer for the Filipino worker said that she did not work for the Iraqi government but for the Iraqi couple. The diplomat and the Filipino worker signed a contract of employment.

The diplomat is subject to the Vienna Convention on Consular Relations which was incorporated in the Consular Privileges and Immunities Act 1972. Under this Australian law, diplomats have no diplomatic immunity with respect to a civil action arising out of a contract concluded by a consular officer or for damage arising from an accident caused by the vehicle, vessel or aircraft of the diplomat.

The Filipino worker lived and worked in the home of the diplomat and not at the consular office, her work was not rendered for the Republic of Iraq. Also, she had signed a contract of employment with the diplomat. Any dispute arising from the contract of employment is not covered by diplomatic immunity. Also, since the work was rendered in Australia, the laws on employment contracts in Australia applies to the Filipino domestic worker – she is a worker protected by Australian law and as such, she had a right to bring an application in the Fair Work Commission.

The FWC found her dismissal to be harsh and unreasonable as the only reason for her dismissal was the complaint she lodged for underpayment. The Filipino domestic worker had the opportunity to record her employers shouting at her for having filed the complaint. The FWC took this evidence finding the conduct of the Iraqi diplomats “morally repugnant” for being exploitative and akin to servitude and slavery.

In determining how much to be awarded to the Filipino domestic worker, the FWC considered that the Filipino worker did not mitigate her losses by seeking alternative employment. However, the FWC considered that the minimum wage in Manila was $89 per month and it made more sense for the Filipino worker to stay in Australia to claim for what she was owed.

The Iraqi diplomatic couple were ordered to pay the amount of $20,000 to the Filipino domestic worker.

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Blacklisting Labour-hire Employees may be a Form of Discrimination in the Workplace

Three employees who were members of a union brought a case alleging that they were working as maintenance workers at a steel rolling plant, but they filed grievance complaints over conditions at work and so the labour hire company that employed them “blacklisted” them.

One casual rigger was hired and began employment on 5 September 2016. He was the leader of an informal cell which was an “industrial association”. On 5 June 2017, the casual rigger informed the labour hire company that if the grievances he had raised were not acted upon, he would resign.

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On 8 June 2017, the casual rigger resigned from employment and after his resignation, the labour hire company manager emailed the host employer to say that the labour hire company will no longer use the services of the casual rigger. The company then forwarded the email chain to another contractor urging the contractor not to employ the maintenance worker.

The casual rigger obtained copies of the email chain and his union helped him file a claim at the Victorian Civil and Administrative Tribunal. The union claimed that the email and the action by the labour hire company discriminated against the casual rigger because it excluded him from future employment because of the grievance complaints he had filed. When the host employer forwarded the email and urged another contractor not to hire the casual rigger, this was also discriminatory.

Both the labour hire company and the host employer sought the striking out of the application, but this was declined. VCAT declined to strike out the application and set the application for reception of evidence.

The issue in this controversy is whether the labour hire company and the host employer committed acts of discrimination in the workplace when it forwarded “do not hire” emails after the employee had already resigned. Thus, the legal issue is whether the protection against discrimination in s 21(1)(b) of the Equal Opportunity Act 2010 applies to a contract worker who had already resigned.

The intent of the law was to protect the status as a union member and activities as union members by penalizing employers for discriminating against workers who engage in union-related activities. Since he had resigned before the alleged acts of discrimination were committed, then the law no longer protects the casual rigger because he himself severed the employment relationship.

However, the Equal Opportunity Act 2010 protects against “refusal to employ” workers. By sending the email and urging other potential employers not to employ the casual rigger, they have in fact refused to employ him even when a vacancy exists in their workplace. This is an example of direct discrimination in the workplace which occurs if the employer treats or proposes to treat a person unfavourably because that person possesses a legally protected attribute.

Consult an Employment Lawyer For Issues Regarding Flexible Work Hours

Two brothers worked as painters for a hospital. For eight years, they enjoyed a flexible work arrangement where they reported for work from 6:30 am until 2:30 pm. This work arrangement left them time to pick up their young children from school and bring them home.

The hospital is one of the busiest hospitals in its district and to boost their operational efficiency and to correct a $8.2 million deficit, the hospital administration gave the painters one year’s notice before ordering them to revert to the regular working hours of 7:00 am to 3:30 pm. The hospital administration urged the painters to make alternate arrangements for their children as after the twelve-month period as no further extensions would be granted.The scheme to revert to ordinary work hours was part of the “whole of hospital approach” to improving hospital services. The hospital had a long-standing policy of allowing flexible work arrangements that were mutually beneficial for both the hospital and the employees. Also, the brothers were classified as employed under the Public Health Service Employees Skilled Trades Award that provided that their ordinary hours of work be for eight hours daily, Monday to Friday between 6:00 am and 6:00 pm. Thus, the order to work from 7:00 am- 3:30 pm was allowed under the award.

Near the end of the twelve-month notice period, the brothers asked for a review of their flexible work arrangement. The brothers argued that the request for flexible work hours were a small accommodation which would not impose undue hardship on the hospital, but if their request for flexible working hours was not accommodated, it would impose hardship on their family as they could not afford after-school child care.

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The Union to which the painters belonged then wrote to the hospital on behalf of the painters, notifying them that they had lodged a dispute concerning the issue of the painters’ working hours with the Industrial Relations Commission of New South Wales. The Union asked the Commission for orders to allow the painters to continue working under the flexible work arrangement until their children finished primary school sometime at the end of the school year 2018-2019. The Union argued that forcing the painters to work until 3:30 pm instead of 2:30 pm amounted to discrimination against them as family carers and prevented them achieving and maintaining a work/life balance. Further, the painters had low income and the cost of childcare would put financial pressure on their families. Also, the painters had enjoyed flexible work hours for years without any negative impact on their productivity, efficiency, or work safety.

On the other hand, the hospital argued that it had the right to exercise prerogatives to manage its operations. The return to ordinary hours would improve supervision, communication, and coordination within the entire Engineering Department. Also, the hospital did not act unjustly or unfairly by giving the painters twelve months to make alternate arrangements before imposing the order for them to return to their ordinary work hours.

The Commission found that by requiring the painters to report during ordinary work hours, it was implementing a more efficient and accountable management of maintenance tasks. The hospital extensively consulted with the Union prior to implementing the return to ordinary working hours and there was no award impediment to the change in work hours. The Union was unable to show that the hospital’s requirement to return to ordinary working hours would be unfair, unjust, or unreasonable. The Union’s application was dismissed and the painters were ordered to report for work at 7 am until 3:30 pm beginning January 2017

Unlawful termination lawyers answer the question

A certified public accountant worked as an employed professional under an employment agreement. The CPA received around$115,000 in annual income. As a professional, he did not perform work within a specified number of hours a day but worked to achieve the billable hours under his contract.

The CPA produced the employment agreement where it stated that office hours at the company were from 9:00 am until 5:30 pm. However, the same employment agreement provided that the hours of work were flexible and that the CPA may be called to perform work outside the normal office hours.

It was clear that there was no agreement between the CPA and the employer that he would be paid overtime for all the effort performed beyond the normal work hours or that he was to be allowed “time off in lieu” of the hours worked outside the normal work hours.

The CPA first asked for “time off in lieu” at least one year prior to resigning from his employment. Two years after he resigned, he brought this claim for payment of a sum of money equivalent to the “time off in lieu”. The court found that there was no basis for the claim and dismissed it.

From the facts of this case, it can be gleaned that for employed professionals whose employment agreements provide for flexible work hours, there is a need for a separate agreement providing for payment of overtime pay or payment of “time off in lieu” of effort performed beyond the normal hours. Without an agreement for overtime pay or “time off in lieu” then a claim for payment for effort performed beyond normal working hours does not have any basis.

The ruling would have been different had the employee not been a professional and had his employment agreement not provided for flexible working hours. Generally, employer may request employees to work overtime when the overtime effort is reasonable. Overtime work must not pose a risk to the health and safety of the employee and must not encroach on their family responsibilities. The employee must receive payment for overtime at a higher rate than work performed during normal working hours. Also, the employee must be given enough notice before requiring them to work overtime. An employee can refuse to work overtime if the request is unreasonable.

When an employer terminates the employment of a worker for his or her refusal to work overtime, the employee may make an application for unlawful termination or for an adverse action. The employee can claim that consequent to exercising his or her workplace right to refuse to effort overtime, he or she was dismissed from employment. The burden of proving that the request for overtime work was not “unreasonable” rests on the employer. Thus, employers should exercise care and caution in requiring their employees to render overtime work.

To overcome the burden of proving that the request for overtime work is reasonable, the employer must provide evidence that there is a relevant business need for the requirement to effort overtime and the employer must make enquiries on the personal circumstance of their employees to ensure that they will not be prejudiced by a request for overtime work.

Employment Legal Advice: FWC Rules No Redundancy Exists if Due Only to Salary Cut

A pay cut rejected by workers does not equate to a valid redundancy, the Fair Work Commission recently ruled.

In Mr Leon Mallard; Mr Steven Bolton; Mr Bernard Stonehouse; Mr Jason Wood v Parabellum International Pty Ltd T/A Parabellum International [2017] FWC 2531 (15 May 2017), the Fair Work Commission ruled that jobs of four workers, all of whom worked in emergency services, were not genuinely rendered rendundant on the basis of a pay cut

The four emergency service workers were employed by Parabellum, which supplies the services to Chevron. Due to a reduction in contract prices by Chevron, Parabellum faced significant financial challenges and attempted to reduce costs specifically the salaries of the workforce.

In the termination letters, Parabellum informed the workers that their jobs were made redundant, yet previously offered the same job for a reduced salary. Seeing as the workers rejected the job offer with lower pay, their employment was terminated.

The Fair Work Commission reviewed Section 389 of the Fair Work Act, which defined what a genuine redundancy is. Deputy President Bull stated that a genuine redundancy is “not restricted to whether an employee’s job is no longer required”.

Parabellum urged the Commission to take a wide interpretation of the provision, alleging that the “person’s job” includes all contractual arrangements the employer and employee entered into by contract, which includes employee remuneration. Parabellum contended that when the pay in an employee’s job is varied, and the role is no longer required to be performed at the original salary, then the job is no longer required to be performed by anyone, regardless if the duties and responsibilities are the same as those in the original job.

The Fair Work Commission examined relevant case law, specifically the definition of Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6, where redundancy was defined as the situation when “the employer no longer desires to have it performed by anyone.” Reference was also made to the definition of the word “job”, and it was noted that many of the definitions focused on the tasks, work, results, of a job, and none of them referenced the importance of the salary as an essential part of the definition of a job.

The “person’s job to be performed” under the Fair Work Act are, per Deputy President Bull, “the functions, duties and responsibilities associated with the job”. Remuneration then would be “the value placed on performing the job by the employer”, and variations in salaries “does not equate to the employer no longer requiring ‘the job’ to be performed”.

Therefore, a redundant job is one where the functions, duties and responsibilities of the job are determined by the employer as superfluous to the current needs. However, as the Commission noted, when Parabellum hired others to do the job at the lower pay, and even offered the same job at the lower salary to the four workers, then the jobs were not genuinely redundant.

Lessons for Employees – Seek Proper Employment Legal Advice

Knowing your rights is key to understanding how employment law works for you. Employees should, as in this case, ascertain the nature of the proposed redundancy, and logically, if the same work is required by the employer, then it is not a real redundancy.

Contact us for employment legal advice in Perth, Western Australia.

Clinic Needed Better Unfair Dismissal Lawyers, Lost Two Cases in the FWC

An abortion clinic was found to have unfairly dismissed two of its employees, a mother and daughter duo, after failing to properly investigate allegations of fraudulent recording of time worked and bullying.

In Mrs Nicole Webb v The Trustee for SWC Unit Trust T/A Salisbury Day Surgery [2017] FWC 2573 (26 May 2017) and Ms Lauren Webb v The Trustee for SWC Unit Trust T/A Salisbury Day Surgery [2017] FWC 2572 (26 May 2017), the Fair Work Commission noted that the clinic could not justify accusations of bullying and fraud by the practice manager and receptionist.

The clinic’s director accused the practice manager of having threatened the dismissal of two nurses for having let patients unattended, some of which were unconscious. He also accused the duo of having taken excessive cigarette breaks and long lunch breaks which were not accurately reflected in their time sheets.

Commissioner Spencer stated in the decision that the clinic director failed to properly investigate the allegations as well as endeavour to resolve the situation before the dismissals were effected.

With regard to the allegations of fraud, the clinic director alleged that fraud was committed where the employees stated they did not take lunch breaks but were actually seen eating lunch and chatting for periods “well in excess of 30 minutes”. Allegations by other employees accused the applicant of leaving the clinic to go shopping, while the time sheets reflected that she was in the office at the time.

Finally, the clinic director alleged that the duo took excessive cigarette breaks, justifying it by stating that he had counted 18 cigarette butts in the bin a day after he had emptied it, and with an average of 10 minutes per cigarette, the two employees spent 180 minutes or three hours smoking in one day

Commissioner Spencer stated that it is the responsibility of the employer to ensure time sheets and records were accurate, citing Sections 535 and 536 of the Act that “employers have certain obligations with respect to time and wages record keeping”. Hence, by the clinic failing to audit the timesheets over a long period of time, Commissioner Spencer noted that the failure “seems to be an admission of culpability by the [clinic].”

With regard to the bullying charges, the Commission noted that the employees were not given ample time and opportunity to face the allegations. They were informed of the charge one day, and three days later were told to hand in their keys to the clinic. The clinic director, faced with the investigation with Fair Work Australia lodged by the nurses, was quoted to have said that “he cannot afford to have himself or his business go down this track”.

Ruling on the allegations, Commissioner Spencer noted that the inaccuracies of the timesheets were in fact a valid reason for dismissal of the employees. However, the “significant procedural

deficiencies” on the part of the clinic undermined the ground for dismissal and resulted in unfair dismissal.

Also, the fact that the clinic director failed to present full records in support of the reasons for dismissal to the employees took away the employees’ opportunity to have support persons present and affording them a “reasonable period to respond to the full documentation and to consider the allegations in a proximate way to the dates of alleged conduct”.

The Commission ordered compensation of $4,500 to one employee equivalent to four weeks’ worth of wages, but didn’t order the same for the other employee as she was able to secure alternative employment immediately.

Lessons for Employees

It is important to note here that the Commission noted there were valid grounds for dismissal. The inaccuracies in the timesheets were indeed enough for the clinic to terminate the employment. Always be accurate when you log in and log out of work with your records and timesheets. On that basis alone, the employment could have been terminated, if not for the procedural technicalities that the clinic director failed to abide with, again clearly needing better unfair dismissal lawyers, in Perth, Western AustraliaAnchor.

The Advantages of Lodging a General Protections Claim – A Guide by Adverse Action Lawyers, Perth

If an employee has had their employment terminated, an employee can commence various claims arising from the dismissal, including a general protections claim (also known as an adverse action claim), an unfair dismissal claim, or a discrimination claim.

Question

This article explores the advantages of commencing a general protections claim over an unfair dismissal claim.

Section 725 of the Fair Work Act 2009 specifies that a person must not commence, among other things, a general protections claim and an unfair dismissal claim at the same time. This forces a dismissed employee to choose one or the other.

We often advise dismissed employees who have the option of making both claims. If you are faced with the choice of commencing both an unfair dismissal claim and general protections claim, which one do you choose?Generally speaking, it is more advantageous to commence a general protections claim for the reasons mentioned below.

No Compensation Cap

A general protections claim does not have a limit on the amount of money that a person can receive if successful in their claim.

While an unfair dismissal claim does have a maximum compensation cap of six months’ salary or wages, provided the amount is no more than 50% of the high-income threshold (which from1 July 2016 is $138,900); therefore the maximum compensation in unfair dismissal claims is $69,450.

Generally, the losses that an employee suffers arising from dismissal include lost income during periods of unemployment, lost income arising from missing out on future promotion opportunities, and losses arising from accepting an alternative lower-paying position found after dismissal. Under the unfair dismissal system, a dismissed employee often misses out on recovering all these losses.

Under the general protections system, a dismissed employee can recover their entire lost income losses without it generally being reduced. Statistically, damages for general protections claims are higher than for unfair dismissal claims.

No Onerous Prerequisites

Unfair dismissal laws have certain qualifying provisions which must occur before the dismissed employee has a right to lodge an unfair dismissal claim.

The first such prerequisite includes a minimum period of service, which is either six months or 12 months, depending on how many employees a business has.

The second prerequisite is that the employee cannot earn more than the high-income threshold(which from 1 July 2016 is $138,900) unless the employeeis covered by modern award or enterprise bargaining agreement.

Thirdly, independent contractors do not have the right to lodge an unfair dismissal claim, whereas independent contractors do have the right to lodge a general protections complaint.

Fourthly, casual employees do not have the right to lodge an unfair dismissal claim unless they worked on a regular and systematic basis,whereas casual employees do have the right to lodgea general protections claim, irrespective of whether they worked on a regular and systematic basis or not.

The above restrictions do not apply to general protections complaints and, therefore, the general protections system is open to more people than the unfair dismissal system.

You Can Recover Penalties

Under the unfair dismissal system, a successful employee is only entitled to compensation at the above capped amount, and also to reinstatement in limited circumstances.

Under the general protections provisions, a successful litigant is entitled to compensation as well as the ability to have civil penalties imposed against the business. A civil penalty is a further payment that the business is required to pay as a penalty for their breach of the general protections laws.

The current maximum penalties are $54,000 for corporationsand$10,800 for individuals. This penaltiesapply for each breach.

This penalty is usually paid to the person who succeeds in the claim. There are no such penalties available in the unfair dismissal system.

You Can Claim Damages for Distress, Anxiety and Depression

Under the unfair dismissal system, a successful litigant cannot recover compensation for their hurt feelings, anxiety, humiliation, or depression which arose from the dismissal. Under the general protections system, a successful litigant can recover these types of damages.

We often see employees experiencing anxiety, depression, and stress because of the manner in which they were dismissed.

The Reversal of the Onus of Proof

Under the unfair dismissal laws, an employee has the responsibility of proving their case. The employee has the ‘burden of the proof’.

Under the general protections laws, provided the person commencing the claim raises some preliminaryfacts to support their claim, the business has the burden of proving that they did not breach the general protections laws. Therefore, the responsibility of proving the case rests on the business and not on the person commencing the claim. This is an advantage in litigation because if the business is not able to discharge their burden of proof, the person commencing the claim will be successful.

Please contact our general protections claims lawyers if you have any questions about this article.