Latest News in Workplace Law
Jobs and Skills Summit Outcomes
Significant changes to Australia’s workplace relations system have been announced by the Employment Minister Tony Burke as part of the Jobs and Skills Summit held at the start of this month between government, unions and business. The proposed changes include changes to enterprise bargaining (including opening up the opportunity for multi-employer or ‘industry based’ bargaining), increasing protections around flexible work arrangements, adverse action, discrimination and harassment, and extending unpaid parental leave entitlements. Business groups’ response has unsurprisingly been mixed, with strong concerns expressed around multi-employer bargaining in particular.
The Government agreed to 36 immediate initiatives, with many ideas and suggestions raised to be explored further over the next 12 months as part of the ‘Employment White Paper’, which is intended to further help shape the future of Australia’s labour market. Terms of reference for the Employment White Paper will soon be released, and submissions will begin to be accepted later in September. A full list of the outcomes of the Jobs and Skills Summit can be found at the link below. For all businesses, this space will be one to closely watch over the coming months as the industrial landscape is set to change significantly and present new risks for business.
Jobs + Skills Summit Outcomes
Media Release: Outcomes of the Jobs and Skills Summit
Lecturer found to be employee for superannuation guarantee purposes
The Federal Court has considered the extended meaning of ‘employee’ for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth), finding a sole trader contractor lecturer to be entitled to superannuation. In this case, JMC ran a business providing higher education courses. JMC engaged the contractor to provide teaching services under a number of written agreements and paid the contractor by the hour, upon submitting invoices. JMC could supervised the contractor, and had control over how, when and where the contractor was required to work. The contractor had the right, subject to JMC’s approval, to subcontract his services.
The Federal Court found that three elements must be established before a contractor is an employee for superannuation purposes – there must be a contract, the contract must be wholly or principally for the labour of the person, and the person must work under the contract. Ultimately, the Court found that the contracts were principally for the labour of the contractor in that the substantial or predominant purposes of the contracts was that the contractor would personally provide his labour in order to provide the teaching services. The benefit that JMC obtained was principally, if not wholly, the contractor’s labour. So, the Court found that he was a contractor, but entitled to superannuation. The decision highlights the common misconceptions many businesses work under when engaging independent contractors. Accordingly, all clients engaging sole trader contractors should have the terms of these arrangements reviewed.
JMC Pty Limited v Commissioner of Taxation [2022] FCA 750
Deliveroo driver held not an employee
In a significant decision on the employment status of ‘gig workers’, the Fair Work Commission (FWC) Full Bench has quashed a ruling that a Deliveroo delivery rider was an employee entitled to protection from unfair dismissal. The Full Bench overturned the earlier finding that the delivery rider was an employee.
The delivery rider’s engagement with Deliveroo was regulated by a written agreement that comprehensively set out the contractual rights and obligations of the parties in 2017. In April 2020, Deliveroo terminated the driver on the grounds that he failed to deliver orders in a reasonable time, and he lodged an unfair dismissal application (which is only available to employees).
Applying the High Court decisions regarding the test for who is an employee or contractor from earlier this year, the FWC determined the question of whether the delivery rider was an employee by reference to the terms of the written agreement. They found the delivery rider was an independent contractor (rather than an employee) and was not able to bring the unfair dismissal claim.
Deliveroo Australia Pty Ltd v Diego Franco [2022] FWCFB 156 (17 August 2022)
