October Workplace Law Update

Employment Law: 28 October 2024

Author: Stephen Curtain - Our People

Unfair contracts

From 26 August 2024, independent contractors who earn less than the contractor high income threshold, currently $175,000, can apply to the Fair Work Commission for relief on the basis that the terms of their contract are unfair in certain circumstances. However, the unfair term must relate to a workplace relations matter such as remuneration, leave, hours, the making enforcement or termination of agreements, disputes, industrial action and other matters dealt with in the Fair Work Act for employees.

In determining whether a term is unfair, the Commission will consider a number of issues including the power balance between the parties and whether the remuneration paid to the employee is less than the remuneration paid to or required to be paid to workers doing similar work.

If a term is found to be unfair, the Commission can set aside, amend or vary all or a part of the contract and impose a penalty of up to $11,855.

Independent contractors who are not within the high income threshold can still apply for relief to the Federal Court in respect of an unfair contract under section 12 of the Independent Contractors Act.

Permanent employees not to receive less than labour hire employees

This applies under the Fair Work Closing the Loopholes legislation and provides that where the labour hire worker is doing the same job as the permanent employee, the permanent employee is not to be paid less.

Small businesses not completely exempt from paying redundancy pay

Whilst small businesses are not usually liable to pay redundancy pay to redundant employees, new exceptions exist when:\

a. the employer was bankrupt or in liquidation (other than by way of a members' voluntary winding up) at the time of the employee termination; and
b. the employer is a small business employer due to the termination of one or more employees, where those terminations occurred, either:
   (i) 6 months before the employer became bankrupt or went into liquidation; or
   (ii) 6 months before an insolvency practitioner was appointed; or
   (iii) due to insolvency.

Recent cases – obligations on redeployment of redundant workers

Employers obligation to consider redeployment of employees being made redundant extends to redeploying them in positions currently occupied by contractors and their workers

• Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45 - Full Federal Court of Australia

Note this is intended as a guide to these matters addressed above. For advice on specific instances please contact Bianca Mazzarella or Stephen Curtain at Aitken Partners