Employment Law for the Time Poor
A podcast from Piper Alderman's Employment Relations team where they discuss the important topics in employment law in Australia.
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#37 – Closing Loopholes No. 2: Considering Complexities
02/11/2024
#37 – Closing Loopholes No. 2: Considering Complexities
February 2024 has been a big month for legislative change, particularly in the contentious arena of industrial relations. Seemingly out of nowhere, the Government announced it had done a deal on the remaining areas of proposed reform that did not make it into the Closing Loopholes Act 2023. Adding to the surprise, the Closing Loopholes No. 2 Bill contained significant and substantial amendments to what had previously been proposed, including the much discussed “right to disconnect” provisions. In this episode of Employment Law for the Time Poor, join Professor Andrew Stewart, Consultant, and Emily Haar, Partner, as they discuss five key areas of reform: Casual employment, including definitions and “conversion” provisions; The “right to disconnect”; The definition of employment for the purposes of the Fair Work Act 2009 (Cth); Increases to civil penalties, particularly for civil underpayments; and The impact the new intractable bargaining determination provisions may have on bargaining strategy. Further written insights relating to the full complement of Closing Loopholes No. 2 reforms will be published in coming days, available at . Likewise, we will be hosting a webinar on 5 March 2024 to discuss the reforms. Register via our website at: . For more analysis on the earlier iterations of “Closing Loopholes” see: For even more practical insights, on 20 February 2024, our Adelaide team will present on “wage theft” and civil underpayments. Register for the webinar here:
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#36 – What does a psychosocially safe workplace look like?
12/19/2023
#36 – What does a psychosocially safe workplace look like?
Following the 2018 Boland Review into the model Work Health and Safety provisions, workplace psychosocial safety has squarely been on the policy agenda. Combined with recent changes as a result of the Respect@Work Report, the clear policy position, and expectation of society, is one of employers taking responsibility and being accountable for having workplaces that are both physically and psychologically safe. In South Australia, its version of amendments to the Work Health and Safety regulations to deal with psychosocial safety commence on 25 December 2023, following similar legislative reform around Australia in each of the jurisdictions with the model Work Health and Safety laws. Victoria is currently considering similar, though potentially more far-reaching, provisions. In this episode of the Podcast, Emily Haar and Emily Slaytor discuss what it means to have a workplace that is psychosocially safe, including what psychosocial hazards are, how to spot them and manage them, and what organisations need to do to both be compliant, but to also prove compliance in the event that a regulator takes interest. Directors and senior executives in particular need to think about how they will ensure appropriate “due diligence” to comply with their duties as officers under work health and safety law. Some resources you may be interested in to explore this further include: 2018 Boland Review: Respect@Work: The Safe Work Australia Model Code of Practice: The US Surgeon-General’s Framework for Workplace Mental Health and Wellbeing: Curtin University and the University of Sydney, ‘How work design shapes mental health in the Healthcare and Social Assistance industry,’ July 2023,
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#35 – The Governance of Decision Making in the Post-Qantas Environment
10/25/2023
#35 – The Governance of Decision Making in the Post-Qantas Environment
The recent High Court decision in Qantas v TWU focussed on the question of how the general protections in the Fair Work Act 2009 (Cth) work in circumstances where employees did not presently have particular workplace rights (in that case the right to take industrial action), but would have those rights in the future if not for the adverse action being taken. While that analysis has rightly been the subject of a lot of interest, the outcome in that case turned on the other key concept in general protections claims – the “reverse onus” where employers need to prove that an unlawful reason did not form a substantive part of their reason for taking the action. In Qantas, it was apparent that there were clear and appropriate commercial reasons for taking the action that occurred. The question for the Court at first instance was whether Qantas was able to discharge its burden. In this episode of the Podcast, Emily Haar and Erin McCarthy discuss how legally-defensible decisions are best made, whether by a Board, the Executive, or others down the “decision-making chain”, drawing on a number of recent (and not so recent) cases in the general protections space, including , , , , , , and . Being intentional about the process, as well as what is considered, and what is documented, in making a decision will best protect employers in the case of a legal claim.
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#34 – Do You See What I See? The Closing Loopholes Bill
09/12/2023
#34 – Do You See What I See? The Closing Loopholes Bill
In comments to the National Press Club on 31 August 2023, Industrial Relations Minister Tony Burke said that the Closing Loopholes Bill will address four key “pillars”: wage theft, casual conversion, labour hire, and “employee-like workers”, and that the Bill would not “reach into every workplace”. While the Bill certainly deals with those four matters, there is so much more to unpack. In this special long-form episode of Employment Law for the Time Poor, join Professor Andrew Stewart and Emily Haar as they discuss the considerable proposed reforms presented by this Bill. If you think your organisation will not be directly impacted, think again. The Bill includes quite complex reforms to the definition of employment, creates new jurisdictions for the Fair Work Commission to deal with non-employee disputes, creates new rights for workplace delegates, and significantly increases the civil penalties for underpayments (while also creating a criminal offence of “wage theft”). For additional detail on the Bill, view our Insight here:
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#33 - National WHS Update: Industrial Manslaughter Laws and the Prohibition of Insurance
05/19/2023
#33 - National WHS Update: Industrial Manslaughter Laws and the Prohibition of Insurance
Industrial manslaughter may soon be an offence in almost all Australian jurisdictions. Recent amendments in certain jurisdictions have also introduced the recommendation of the 2019 Boland Review to prohibit insurance and indemnities for WHS penalties. In this episode of Employment Law for the Time Poor, join Emily Haar, Partner, and Joseph Hyde, Associate, for a review of the current status of these provisions, with a particular focus on the South Australian proposed industrial manslaughter legislation. With Labor governments having been recently elected in South Australia, New South Wales, as well as federally, the issue of industrial manslaughter is back on the agenda. South Australia, New South Wales, and Tasmania are the only remaining States that have not yet expressly legislated for this offence. However, public consultation on South Australia’s draft Work Health and Safety (Industrial Manslaughter) Amendment Bill has finished, with the Government now considering the feedback that was provided. The recently elected NSW Labor Government had attempted to introduce industrial manslaughter legislation in 2021. While there is no current Bill before parliament, it is likely to be on the Parliamentary agenda. At the Commonwealth level, the national model WHS laws are planned to be amended to include the offence of industrial manslaughter, following Australia's WHS ministers agreeing to the move in late February 2023. The offence generally captures negligent or reckless conduct of a person conducting a business or undertaking (PCBU) or its officers that breaches health and safety duties and causes the death of a person to whom a duty was owed. However, the details of the offence vary slightly in each jurisdiction. Jurisdiction Law in force Law being considered Maximum penalties Elements of offence Prohibition against insurance SA ✓ Body corporate: $15 million. Individuals: 20 years Would apply to officers or individuals acting as PCBUs who engage in reckless or grossly negligent conduct causing the death of an individual to whom a health and safety duty is owed. Not presently included in Bill Vic ✓ Body corporate: nearly $18.5 million. Individuals: 25 years imprisonment. Negligent conduct by persons, including an employer and its officers, which breaches a duty and which causes the death of an employee or member of the public ✓ Qld ✓ Body corporate: $14.375 million. Individuals: 20 years imprisonment. A PCBU or a senior officer’s conduct negligently causes the death of a worker. Includes where a worker is injured carrying out work and later dies. X WA ✓ Body corporate: $10 million. Individuals: 20 years imprisonment and/or $5 million fine. A PCBU engages in conduct that constitutes a failure to comply with their health and safety duty, knowing it is likely to cause the death or serious harm to another person, and causes the death of an individual. Officers may also be charged but additional elements of the offences must be proven. ✓ NT ✓ Body corporate: just over $10.5 million. Individuals: life imprisonment. A PCBU or officer intentionally engages in conduct that breaches their health and safety duty and causes the death of an individual to whom that duty was owed, and is reckless or negligent about the conduct and causing the death of that individual. X ACT ✓ Body corporate: $16.5 million. Individuals: 20 years imprisonment. A PCBU or officer engages in conduct that breaches their health and safety duty and causes the death of an individual to whom that duty was owed, and is reckless or negligent about the conduct. X NSW ✓ (No current Bill before Parliament) Note to Division 5 states: “In certain circumstances, the death of a person at work may also constitute manslaughter under the Crimes Act 1900 and may be prosecuted under that Act. See section 18 of the Crimes Act 1900, which provides for the offence of manslaughter, and section 24 of that Act, which provides that the offence of manslaughter is punishable by imprisonment for 25 years.” ✓ Tas No current provision X Cth ✓ Body corporate: $18 million. Individuals: 20 years imprisonment. ✓ (Commences on a date to be fixed by proclamation or otherwise 22 September 2023) Victoria, Queensland, and the Northern Territory adopt a penalty unit system, meaning the maximum penalties will increase each year. Tasmania is currently the only jurisdiction whose government has not expressed their intention to introduce the offence. There have been recent calls for Tasmania to introduce industrial manslaughter laws, on International Worker’s Memorial Day (28 April 2023), Unions called on the Parliament to commit to introducing the offence. Unions Tasmania secretary Jessica Munday says that "Tasmania is now out of step with the rest of Australia." The prohibition of insurance and indemnities for work health and safety penalties was recommended in the Marie Boland Review of the Model WHS Laws published in February 2019, and also the Senate Inquiry into industrial deaths published in October 2018. This prohibition has been implemented in the recent Work Health and Safety Amendment Act 2023 (Cth), as well as in NSW, Victoria and WA.
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#32 – Addressing the Gender Pay Gap and Yet More Amendments to the Fair Work Act: What Employers Need to Know
04/02/2023
#32 – Addressing the Gender Pay Gap and Yet More Amendments to the Fair Work Act: What Employers Need to Know
International Women’s Day is observed internationally in March. In this episode of Employment Law for the Time Poor, join Professor Andrew Stewart, Consultant, and Emily Haar, Partner as they discuss recent amendments to federal legislation designed to address pay equity for women, including the Secure Jobs, Better Pay Act and the recently passed Closing the Gender Pay Gap Act. They also talk about the next batch of changes to the Fair Work Act in the new Protecting Worker Entitlements Bill. Organisations will need to be across these many changes (with more still to come) to ensure not just legal compliance, but workplaces where all staff feel best supported to succeed
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#31 - Consultation: Who, What, Where, and How?
03/13/2023
#31 - Consultation: Who, What, Where, and How?
Organisations have legal obligations to consult with their staff in particular situations. But what does that actually mean? In this episode of Employment Law for the Time Poor, join Emily Haar, Partner and Emily Slaytor, Special Counsel in a discussion around the requirements to consult flowing from work health and safety legislation, Awards and Enterprise Agreements. They discuss how various consultation obligations differ, what the Courts and the Fair Work Commission say is required to comply, and what is not consultation.
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#30 - Industrial Relations in 2022 and Beyond: Year in Review
01/09/2023
#30 - Industrial Relations in 2022 and Beyond: Year in Review
It’s summertime in Australia and things are winding down, right? Perhaps not! In this episode of Employment Law for the Time Poor join the National Employment Relations team for a review of what was in 2022, and what may be to come in 2023, including: the Secure Jobs, Better Pay Act; the Respect@Work reforms; the prohibition of pay secrecy; Fair Work Ombudsman compliance measures; wage theft; the impacts of Jamsek and Personnel Contracting on workforce management; increases to Commonwealth penalty unit amounts; and the proposed South Australian industrial manslaughter provisions.
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#29 - Secure Jobs Better Pay: What is in the final version?
12/08/2022
#29 - Secure Jobs Better Pay: What is in the final version?
Following our last discussion, in this edition Employment Law for the Time Poor, join Professor Andrew Stewart, Consultant, and Emily Haar (Partner), as they discuss some of the additional changes arising from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, and how the changes will impact organisations. In particular, they discuss: the delayed commencement of the fixed term contract limitations; required reviews of the amendments and Modern Awards; and multi-employer bargaining and the various hurdles to be overcome where single interest declarations are sought by employee bargaining representatives without employer agreement
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#28 - The Secure Jobs Better Pay Bill: How will it impact your organisation?
11/07/2022
#28 - The Secure Jobs Better Pay Bill: How will it impact your organisation?
In this special bumper-edition of Employment Law for the Time Poor, join Professor Andrew Stewart, Consultant, and Emily Haar (Partner), as they discuss some of the key proposals arising from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, and how the changes, if passed, will impact organisations in every industry. The Bill proposes to significantly change how employers interact with their employees. Such changes are significant enough that organisations may need to reconsider their broader workforce strategy in the short to medium term.
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#27 - Respect@Work Part 2: What can organisations do now to be ready to comply with the positive duty to prevent sexual harassment in the workplace?
10/18/2022
#27 - Respect@Work Part 2: What can organisations do now to be ready to comply with the positive duty to prevent sexual harassment in the workplace?
In part two of our two-part special series of Piper Alderman’s Employment Law for the Time Poor Podcast, join Emily Haar and Joe Murphy, Partners, and Emily Slaytor, Special Counsel, for a discussion about the Respect@Work legislative amendments to the legislation introduced to Parliament quite recently.
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#26 - Respect@Work Part 1: Does your organisation understand its existing obligations to prevent sexual harassment in the workplace?
10/04/2022
#26 - Respect@Work Part 1: Does your organisation understand its existing obligations to prevent sexual harassment in the workplace?
In this first part of a two-part special series of Piper Alderman’s Employment Law for the Time Poor Podcast, join Emily Haar, Partner, and Mark Caile, for a discussion about the Respect@Work Report from 2020, which ultimately led to a number of amendments to the Sex Discrimination Act which commenced in late 2021, and further proposed amendments to the legislation introduced to Parliament quite recently.
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#25 - An overview of the general protections: When is a complaint an exercise of a workplace right, and who is the decision maker?
08/01/2022
#25 - An overview of the general protections: When is a complaint an exercise of a workplace right, and who is the decision maker?
In Episode 25 of our Employment Law for the Time Poor Podcast, Emily Haar, Partner, and Zoe McQuillan, Special Counsel, discuss the general protections under the Fair Work Act 2009 (Cth) – what are they, what does it mean to make a “complaint or inquiry in relation to your employment”, and what are the reasons for a decision when there are multiple decision makers? Join them as they discuss the recent authorities on the issue, including Alam v National Australia Bank [2021] FCAFC 178 and Linvelt v QGC Pty Ltd [2022] FedCFamC2G 275.
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#24 - Special Edition: Contract is King – the High Court decisions in Jamsek and Personnel Contracting
03/01/2022
#24 - Special Edition: Contract is King – the High Court decisions in Jamsek and Personnel Contracting
In Episode 24 of our Employment Law for the Time Poor Podcast, join Emily Haar and Professor Andrew Stewart for a discussion on the implications of the High Court’s decisions in Jamsek and Personnel Contracting, which have adjusted the way in which the “multi-factor test” for considering whether a worker is an employee or independent contractor is conducted. Rather than the broader factual circumstances being relevant, the focus now is solely on the contractual terms, unless the arrangement is a sham, or has been varied by conduct. While defending an independent contracting arrangement is now somewhat easier, each situation will need to be assessed on a case by case basis, and contractual drafting is vitally important.
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#23 - Recent Round-Up of Covid-19 Vaccination Decisions
02/14/2022
#23 - Recent Round-Up of Covid-19 Vaccination Decisions
In Episode 23 of our Employment Law for the Time Poor Podcast, join Partner Emily Haar and Special Counsel Emily Slaytor for a catch up on the recent decisions of the Fair Work Commission relating to COVID-19 vaccination, which provide assistance for employers looking to implement their own policies (consultation is the top priority), or where having to navigate the requirements of vaccination health orders and directions.
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#22 - Moving to a Vaccinated Economy: What is an Employer to do?
11/09/2021
#22 - Moving to a Vaccinated Economy: What is an Employer to do?
In Episode 22 of our Employment Law for the Time Poor Podcast, Partners Tim Lange and Joe Murphy discuss with Emily Haar what steps an employer can take in both implementing government mandates and internal policies, and also how to manage the scenario when an employee does not comply.
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#21 - Workplace Investigations: Tips and Tricks
09/22/2021
#21 - Workplace Investigations: Tips and Tricks
In episode 21 of our Employment Law for the Time Poor Podcast, Partner Ben Motro and Senior Associate Emily Haar as part of this financial year’s launch of the Employment Relations , discuss some of the tips they have picked up along the way in both conducting and advising on workplace investigations.
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#20 - The High Court’s Decision in Rossato: A Game-Changer for Contractual Interpretation of Employment and Independent Contractor Arrangements?
08/30/2021
#20 - The High Court’s Decision in Rossato: A Game-Changer for Contractual Interpretation of Employment and Independent Contractor Arrangements?
In episode 20 of our Employment Law for the Time Poor Podcast, Professor Andrew Stewart and Senior Associate Emily Haar discuss the High Court’s recent decision in WorkPac v Rossato. The ruling sheds important light not just on who can be classed as a casual employee, but on how other disputes about work status should be resolved. That may have implications for two further cases (Jamsek and Personnel Contracting) about to be argued in the Court concerning the distinction between employment and independent contracting, not to mention the classification of workers in the gig economy.
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#19 - Privacy and Consent: Is your organisation collecting “sensitive” personal information about your staff?
08/12/2021
#19 - Privacy and Consent: Is your organisation collecting “sensitive” personal information about your staff?
In episode 19 of our Employment Law for the Time Poor Podcast, Partner Erin McCarthy, and Senior Associate Emily Haar, as they discuss how the Fair Work Commission decision in Lee v Superior Wood turned employers’ understanding of the “employee records exemption” to the Privacy Act 1988 (Cth) on its head, and what the legal requirements are for collecting sensitive personal information, including health information, about employees.
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#18 - COVID-19 Vaccinations and your workplace: Is it a lawful and reasonable direction to mandate a vaccination?
07/21/2021
#18 - COVID-19 Vaccinations and your workplace: Is it a lawful and reasonable direction to mandate a vaccination?
In Episode 18 of our Employment Law for the Time Poor Podcast, Partner Erin McCarthy, and Senior Associate Emily Haar, as they discuss three recent Fair Work Commission cases that deal with mandatory influenza vaccination policies. Recent decisions give some insight into what the Courts and Tribunals may take into account when the first COVID-19 vaccination policy case occurs.
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#17 - Civil Underpayments vs Criminal Wage Theft: Compare the Pair
03/14/2021
#17 - Civil Underpayments vs Criminal Wage Theft: Compare the Pair
In Episode 17 of our Employment Law for the Time Poor Podcast, Partner Tim Lange, and Senior Associate Emily Haar, work through current employer exposure to civil and criminal liability for underpayments, including through the civil remedy provisions of the Fair Work Act 2009 (Cth), as well as new and proposed criminal provisions relating to “wage theft”.
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#17 - Civil Underpayments vs Criminal Wage Theft: Compare the Pair
03/14/2021
#17 - Civil Underpayments vs Criminal Wage Theft: Compare the Pair
In Episode 17 of our Employment Law for the Time Poor Podcast, Partner Tim Lange, and Senior Associate Emily Haar, work through current employer exposure to civil and criminal liability for underpayments, including through the civil remedy provisions of the Fair Work Act 2009 (Cth), as well as new and proposed criminal provisions relating to “wage theft”.
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#16 - The new Fair Work Amendment Bill – a taste of things to come in 2021
12/21/2020
#16 - The new Fair Work Amendment Bill – a taste of things to come in 2021
In episode 16 of our Employment Law for the Time Poor Podcast, join Professor Andrew Stewart, Partner Tim Lange, and Senior Associate Emily Haar, unpack some of the proposals in the Bill, including a legislated definition of casual employment, Award changes on the horizon, as well as adjustments to Enterprise Agreement making and approvals.
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#15 - What do organisations need to consider as remote working becomes optional again?
12/07/2020
#15 - What do organisations need to consider as remote working becomes optional again?
In Episode 15 of our Employment Law for the Time Poor podcast, Emily Haar and Hannah Linossier discuss what organisations need to think about if they are considering making working from home a more permanent feature of their “COVID-normal” workplace, including work health and safety considerations, contractual requirements, and how a remote workforce may impact on your organisational culture.
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#14 - The impact of the gig economy on the concept of “work”: it’s broader than you might think
10/21/2020
#14 - The impact of the gig economy on the concept of “work”: it’s broader than you might think
In Episode 14 of our Employment Law for the Time Poor podcast, Professor Andrew Stewart and Emily Haar build on their last discussion about what it means to be an employee by considering the so-called “gig economy”, or the use of digital platforms to find and perform work.
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#13 - What makes a contractor a contractor?
08/13/2020
#13 - What makes a contractor a contractor?
In Episode 13 of our Employment Law for the Time Poor podcast, Professor Andrew Stewart and Emily Haar consider the four recent cases on the vexed issue of independent contractor vs employee.
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#12 - Are your casual employees really casual? A discussion of the Rossato decision
06/19/2020
#12 - Are your casual employees really casual? A discussion of the Rossato decision
In Episode 12 of our Employment Law for the Time Poor podcast, Professor Andrew Stewart and Emily Haar consider the fallout from the Full Federal Court’s decision in Workpac v Rossato, where a long-term “casual” employee was found to in fact be a permanent full-time employee. In particular, they consider the arguments Workpac ran to say that the casual loading should be used to “offset” any non-payment of leave entitlements owed to a permanent employee, or that the loading was paid by “mistake”. Andrew and Emily comment on a range of recent cases where the distinction between leave and pay was emphasised, and consider what might happen next, as employers and business groups grapple with the outcome. Considering your organisations’ options is particularly pertinent, even where Workpac have launched an appeal in the High Court of Australia, because that process will not resolve the issue in the immediate future.
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#11 - Current and Post COVID Employment Restructuring: What Options Does Your Organisation Have?
06/04/2020
#11 - Current and Post COVID Employment Restructuring: What Options Does Your Organisation Have?
In Episode 11 of our Employment Law for the Time Poor podcast, Chris Hartigan and Emily Haar discuss the particular requirements for implementing workforce change using the Job Keeper amendments to the Fair Work Act 2009 (Cth), in particular what “reasonable” might mean, and what consultation actually requires. Employers should both be considering how they keep going right now, but also what change they might need to implement on a more permanent basis, particularly when the current government initiatives are due to cease later this year.
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#10 - What tools does your business have in its kit to deal with COVID-19 and beyond?
04/29/2020
#10 - What tools does your business have in its kit to deal with COVID-19 and beyond?
In Episode 10 of our Employment Law for the Time Poor podcast, Tim Capelin and Emily Haar discuss how businesses can use the current goodwill and cooperative spirit in workplaces to help implement innovation and other workplace change, both now and after we emerge on the other side of the COVID-19 crisis. Things are moving rapidly, and employers need to be prepared for how they will exit “hibernation”, bringing their employees with them into the new-normal. Tim and Emily consider what enterprise bargaining might look like, whether working from home might become the norm, and the issues that may arise during the transition from stand-down to back-up-and-running. The best tool an employer may have, may not be a legal tool, but instead a cultural tool. How that is wielded may prove vital to emerging from the crisis as unscathed as possible.
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#9 - April 2020 update regarding the employment law considerations arising from COVID-19
04/02/2020
#9 - April 2020 update regarding the employment law considerations arising from COVID-19
In Episode 9 of our Employment Law for the Time Poor podcast, Erin McCarthy and Emily Haar provide an update on particular employment law issues that arise out of the present COVID-19 pandemic. Things are moving rapidly, and what was normal practice just two weeks ago, seems very different. Erin and Emily discuss the confusion around whether personal/carer’s leave is payable during a stand down, what the Fair Work Commission has been doing to vary Modern Awards to deal with particular industries in trouble because of the situation, how enterprise bargaining can work during this time, what difficulties can arise when employees on work-visas are out of work, as well as consider the Government’s announcement around JobKeeper payments, and provide a reminder around some of the privacy law implications of managing your workforce.
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