11 Feb HR LAW NEWSLETTER – JANUARY 2025

Welcome to the first HR Law Newsletter for 2025.  We trust you enjoyed a well-deserved break over the Christmas and New Year period.  

As we settle into the New Year, we encourage employers to take the opportunity to review their employment practices to ensure they align with current legislative requirements.  Details of our Workplace HR Audit offer can be found below. 

We also discuss a recent case in which the Fair Work Commission upheld the reinstatement of a Flight Attendant dismissed for drinking alcohol less than eight hours before a shift and allegedly breaching Virgin’s Fatigue Management Policy.

WORKPLACE HR AUDIT

With continually developing workplace laws, it is important to consider whether your employment practices are up to scratch.  Employers who fail to comply with these laws risk significant fines and penalties of up to $18,780 per contravention for an individual and $93,900 per contravention for a body corporate.

Importantly, under the Fair Work Act 2009 (Cth), third parties such as human resources officers, accountants, advisers and bookkeeping services can also be held responsible if they were ‘involved in’ the employer’s contravention.  When this occurs, the individual is treated the same way as the employer responsible for the contravention and can be ordered by a court to pay, for example, an employee’s unpaid wages and entitlements, as well as penalties, for their involvement in the contravention.

To assist with navigating these complexities, HR Law is currently offering a Workplace HR Audit to ensure your employment practices comply with the current legal framework.  

What’s Included?

While the Workplace HR Audit can be tailored to suit your business’ needs, our Workplace HR Audit generally includes reviewing:

• the business’ pre-employment and engagement documentation;
• payroll/payslips generated including superannuation requirements;
• Modern Award coverage applicable to your business;
• the applicable legislation relevant to your business;
• employment conditions; and
• record keeping practices.

Your business will be provided with our report covering compliance, with action items.  If relevant, we will provide our fee estimate to assist your business with these action items to ensure your business is complying with legislation.

If you would like more information regarding our Workplace HR Audit offer, including our fee estimate tailored to your business, please contact us at info@hrlaw.com.au.

VOLUNTARY SMALL BUSINESS WAGE COMPLIANCE CODE

From 1 January 2025, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (“Closing Loopholes”) came into effect,  making the intentional underpayment of wages and entitlements to employees a criminal offence.  The Fair Work Ombudsman (“FWO”) has published a guide for employers of all sizes to protect themselves from criminal liability under the Voluntary Small Business Wage Compliance Code and Closing Loopholes wage theft provisions. 

This guide provides employers with practical advice and tools (such as checklists and strategies for fixing errors) to ensure they are not underpaying their employees.  Additionally, this guide provides assistance on navigating Modern Award entitlements and classifications, and following pay-slip and record keeping obligations.

The FWO has stated that businesses “do not have to check off every factor in the code to get the benefit of the Code”; rather the “overall picture of the business” will be assessed in the particular circumstances to determine whether the Code has been complied with.  FWO representative, Anna Booth, has stated that this guide “will be the blueprint for every employer in Australia, and there will be no excuse for failing to comply with the law”. 

To access the Code, click https://www.legislation.gov.au/F2024L01635/asmade/text

To access the guide, click https://www.fairwork.gov.au/sites/default/files/2024-12/fg-guide-to-paying-employees-correctly-and-vsbwcc.pdf

12 DAY EXTENSION PROVIDED IN GENERAL PROTECTIONS CLAIM

In late January 2025, a Fair Work Commission (“FWC”) Full Bench redetermined a rejection of a late General Protections application.  As you may be aware, employees must file their General Protections application within 21 days of their dismissal, subject to exceptional circumstances. 

In this case, the employee, Mr Kurtev, lodged his application 33 days after his dismissal, being 12 days after the statutory deadline.

Mr Kurtev made his application on the basis that his dismissal was in contravention of the general protections in the Fair Work Act 2009 (Cth) (“FW Act”) as the reasons for his dismissal included physical or mental disability.  Under section 351 of the FW Act, employers are prohibited from taking adverse action against employees or prospective employees on the basis of specific characteristics (including physical disability).  Mr Kurtev claimed he was suffering from Parkinson’s disease, a diagnosis he received after the termination of his employment.

Mr Kurtev sought an extension to lodge his General Protections claim on the grounds that he was “unable to confirm his medical condition in order to formulate his claim” prior to his application.

Under section 366(2) of the FW Act, the FWC may allow a further period for a dismissal application to be made if the FWC is satisfied that there are “exceptional circumstances”.  In the initial decision, Commissioner Leigh Johns refused Mr Kurtev’s extension application and held that no “exceptional circumstances” applied, finding that Mr Kurtev “did not need to wait for the diagnoses before filing his application”. 

Mr Kurtev subsequently appealed Commissioner Leigh Johns’ decision.  The Full Bench overturned Commissioner Leigh Johns’ initial decision, forming the view that this case provided a set of “unprecedented circumstances”.  The Full Bench granted Mr Kurtev’s extension application on the basis that “he needed to know whether he was suffering from a recognised medical condition and the nature of that condition before he could consider or make a claim that he was dismissed because of the symptoms or manifestations of a physical or mental disability for the purposes of s351(1) of the Act”.

In the Full Bench decision, the Full Bench also commented on the merits of Mr Kurtev’s claim stating that the claim “potentially raises complex issues of both fact and law, including as to whether a distinction can be drawn between a disability and its manifestations and may require consideration of the nature of Parkinson’s disease as a condition, the features or symptoms of Parkinson’s disease as well as the mental processes of the decision-maker”. 

The Full Bench remitted the substantive claim back to Commissioner Leigh Johns for consideration, pending listing.

To access the full case, click here.

CASE BRIEF: FWC UPHOLDS REINSTATEMENT OF FLIGHT ATTENDANT

In Virgin Airlines Australia Pty Ltd v Dylan Macnish [2025] FWCFB 6, the Full Bench of the Fair Work Commission (“FWC”) upheld the reinstatement of a Flight Attendant dismissed for drinking a glass of prosecco less than eight hours before a shift and allegedly breaching Virgin’s Fatigue Management Policy.

The Flight Attendant was dismissed for consuming alcohol at a Christmas party around seven-and-a-half hours before a red-eye shift, despite Virgin’s policy requiring an eight-hour alcohol-free period.  However, in the original decision of the FWC, Commissioner Lim found the relevant policy was not clearly communicated, as the eight-hour prohibition was not included in the Drug and Alcohol Management Program Manual consulted by the employee.  Commissioner Lim also found that the employee took several reasonable steps to ascertain whether he could sign up for the red-eye shift including consulting with the relevant Cabin Crew Manager, checking Virgin’s Drug and Alcohol Management Program Manual and breathalysing himself.

Virgin also dismissed the Flight Attendant for allegedly breaching its Fatigue Policy a month earlier, by claiming he was too tired to catch a scheduled flight but then inviting a guest to his hotel room for casual s*x during his ‘fatigue period’.  Specifically, Virgin alleged that the Flight Attendant had contacted Crew Tracking (its rostering and network support team) to advise that he would be too fatigued for his rostered flight.  He was then moved to an afternoon flight.  After calling Crew Tracking, the Flight Attendant met with someone for casual s*x.  Virgin held the view that this was inconsistent with its Fatigue Policy as the Flight Attendant did not use his fatigue leave to “appropriately obtain rest”.

At the original hearing before Commissioner Lim, the Flight Attendant gave evidence that:

• on his rostered flight prior, a passenger had experienced a medical episode which resulted in the passenger accidentally urinating on the Flight Attendant’s shirt sleeves;

• due to the incident, he was unable to sleep; and

• he made the decision to have a physical interaction with someone to help him fall asleep.

Commissioner Lim accepted the Flight Attendant’s evidence that he was unable to sleep after a stressful shift and acted in a manner consistent with seeking rest and accordingly, this was not a breach of the Fatigue Policy.

The Appeal

In its appeal, Virgin raised concerns about a breakdown of trust and confidence, safety and precedent-setting.

However, the Full Bench dismissed these grounds, finding no error in the original decision.

What can employers learn?

This decision highlights the importance of having clear and precise workplace policies that detail specific expectations for employees to ensure there is no ambiguity in compliance requirements.  

Employers should also ensure policies are consolidated, with expectations on particular topics located in a single accessible source to avoid confusion.  

Furthermore, in determining appropriate disciplinary action, employers should fairly evaluate an employee’s actions, including their proactive measures to adhere to policies and any remedial steps taken.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.