BLB4135 Employment Law in Australia - Foodora Fires

Foodora courier Josh Klooger was sacked after refusing to hand ownership of a worker chat group to the company. Eddie Jim

Employment Law in Australia

1. In Australia, the main law on the regulation of workers' rights is the Fair Work Act 2009 (FWA). The FWA provides the minimum standard of workers' rights, as described in the National Employment Standards (NES).

The action taken against Mr. Klooger whereby he is fired for refusing to hand over control of an encrypted chat group contravene the FWA. According to the FWA, before terminating an employee's contract, it is essential that there is a valid reason for dismissal (eg poor performance) and the dismissal procedure must be fair. Employees must be given the reasons for their dismissal as well as the reasonable opportunity to respond to the decision. An employee who feels that his dismissal was unfair may file an application with the Fair Work Commission and claim compensation up to a salary of 6 months or $ 64,650 (whichever is less).

Paragraph two focuses on contracts. Under Fair Work Act, contractors are employees and are entitled to minimum pay and condition. Employees are usually engaged with an employer when they sign a written employment contract. These contracts can take a variety of forms, from short, simple documents to more elaborate contracts for executives. As in any contract, the parties to the contract are generally willing to freely determine the terms and conditions of the employment contract. An important point to remember here is that contracts of employment must never provide for less favorable general conditions than those provided for by the SES. A clause of these employment contracts that contravene the minimum standards of the NES would simply be inapplicable (Stewart, 2011 p.31). However, for the case of Foodora, his terms of employment are not clear. It is important to note that most employees are also protected from "unfair dismissal" under the FWA. These laws apply to an employee who: works at least 6 months (or 12 months if he works in a company with less than 15 employees); and earns less than $ 129,300 (gross) per year or is part of an award or corporate agreement. From the article, it is not clear whether Foodora meets all these conditions and that is why it is important to determine whether Foodora's contract arrangement resembles makes Klooger qualify as a full time employee. It is clear that the salaries of these employees did not reach the minimum legal wage level, and did not receive sufficient temporary shifts and overtime pay for night, weekend and public holidays. The three workers were allegedly paid less than $1,620.74 in four weeks. In addition, Foodora allegedly did not pay the three contributions for the three workers. To understand better, it is important to define type of employees. Full time employee is one who work 5 days a week, work 7.6 hours a day, and the boss does not indicate that you are a temporary worker or contractor, then you are a full-time. Full-time employees enjoy all legally prescribed benefits, including annual leave and sick leave (Wright 2012 p. 6). Temporary workers is one whose working hours are irregular, usually based on the hours and days do. Temporary workers do not have annual leave and sick leave, but the minimum wage is higher than the full-time and part-time (usually at least 20%). Contractor is one who sign a contract with the company (six months or one year) (Catanzariti,  Byrnes & Latham, 2017 p. 73). Remember, this contract is valid on the basis of labor laws. If the company wants you to work for them for $8 an hour, you sign it. In fact, the $8 hour clause in that contract is invalid because it does not meet the minimum wage in Australia (Pagura,  2011 p.11). Contract workers do not have annual leave and sick leave, but contract workers usually have a skill, so the salary will be higher than full-time.

Paragraph 3 reveals that Mr. Klooger and the chat members used the chat to exchange tips about the job and swap shifts. Getting comparators is the right of employees in Australia. DDA uses a “comparison test” to determine whether an unfavorable employment behavior is “because” employees exercise their right to protection (Jessup 2017 p. 6070. This test compares how the complainant handles, and if he or she is a hypothetical employee without a disability, how the complainant will be treated. (Shi,  2012 p. 107). In a sense, Australia's use of comparators is more beneficial to employees than Americans (Blake,  2011 p. 23).

Paragraph four reveals that the action against Mr Klooger was taken after cyclists started using the group to discuss about pay conditions and to find out what other similar jobs were paying. Section 341 of the FW Act applies to anyone who includes a complaint or inquiry under the Workplace Act. The term “workplace rights” of the drafters of the “FW Act” has a very broad meaning. Article 351 explains that an employer must not take adverse action because of a person's "race, color, sex, sexual preference, age, physical or mental disability, marital status, family or caregiver's responsibilities, pregnancy, religion, political opinion, State extraction or social responsibility", employer or employee's employer origin "includes "physical or mental disability" may provide significant protection to injured employees (Bongiorno, 2015 p.97).

Paragraph 5 focuses on confidentiality and intellectual property rights of Foodora. The amendments to the Intellectual Property Law (improving the level of intellectual property rights) were passed on April 15, 2012 and became effective on April 15, 2013.  This Act contains Copyright Act 1968, Patent Act 1990, Trademark Act 1995, Plant Breeders' Rights Act 1994, Industrial Designs Act 2003. The Design Act of 2003 (Federal) (DesignAct2003) (Cth) raises the level of uniqueness in design registration requirements. The new threshold is a two-step test. Design can only be registered if it meets both new and unique requirements. Typically, if the design has been made public before submitting a design registration application, for example, it has been published on the Internet, the design is not registrable. Australia's Copyright Act 1968 (Copyright Act 1968) (Cth) protects copyright. Australia does not have a copyright registration system. The scope of copyright protection includes original literature, art, music and drama. The length of copyright protection is the author's life plus 70 years. The “work” defined in the Copyright Act is not required to be artistic and literary, as long as it is original. In addition to protecting the work, the Copyright Act also recognizes the copyrights of other types of subject matter, such as photography, recording, film, and performer rights (Easteal, 2013 p.79). Australian copyright law also recognizes moral rights and digital rights, such as electronic rights management information (Electronic Rights Management) and technical protection measures. Computer programs, like literary works, are usually protected by copyright. Australian copyright law considers that the copyright of a work created by an employee during employment is owned by his employer, whereas the copyright of a work created by an independent contractor is owned by the independent contractor. Clearly, there is no new invention made by creating telegram group. In other words, creating a telegram group does not fit to be part of intellectual property (Chapman,  2010 p.11). Mr Klooger did not breach any intellectual property rights of Foodora because Foodora is not the owner of telegram groups. In addition, ownership of social network is not classified as intellectual property (Pittard & Naughton 2014 p.91).

Concerning confidentiality, Australian common law states that where the information is transmitted to the other party in a confidential form, or if the information is passed between parties with a confidential relationship, the Australian common law requires the recipient of the information to be obligated not to use or disclose the information without the permission of the confidential disclosure (Blackett & Trebilcock, 2015 p 93). Usually, in order to achieve prudence, the parties to the contract will also sign a separate confidentiality agreement or contract, or keep any information related to the contract confidential as a clause in the original contract (Costello, Freedland & Oxford University Press 2014 p.89). Confidentiality obligations do not apply when information is available from public sources or when information must be disclosed as required by law. Australian privacy laws also provide for the use, disclosure and storage of personal privacy information.

The Foodara has no right to request Mr Klooger to leave the group because FWA can consider this unfavourable act (Marin-Guzman, 2018). Article 340 stipulates that if the lawsuit is “because of” the employee’s workplace rights, the unfavorable act is illegal. Section 3-1 of the FW Act reverses the usual burden of proof in a way that benefits employees. The duty of employees is to prove that they have been subjected to unfavorable behavior and that they have the right to work (Loudon, Mcphail & Wilkinson, 2015 p. 89). Section 361 of the FW Act reverses the burden of proof and requires employers to prove that they have not taken adverse action because the employee has exercised his authority (In Monotti, 2018 p. 67).  It is also apparent that there is no violation of confidentiality because the owners of the group are cyclists.  Social networks are just means of violating intellectual property but they are not intellectual property because their owners include the founders of WhatsApp, Facebook and Twitter. This means that Foodora cannot claim to own a group.

Paragraph 7 to 9 focuses on the nature of discrimination. It shows that Foodora first lowered the rates. It also shows that riders were underpaid, injured, racially abused and threatened. This is against the FWA expectations. In Australia, the FWA law protect employees and does not allow employers even to impose any form of discrimination (Marshall & Fenwick 2016 p.38) 

Paragraph 10, which focus on breach of intellectual property rights is covered by intellectual property laws of Australia and from all angles, it is apparent that Mr Klooger did not breach any intellectual property rights. For example, when Mr Klooger appeared in TV, he just focuses on the working conditions. He did not reveal any trade secret related to Foodora. According to Trade Practices Act 1974 (Cth), claims can be made against companies that are misleading or deceptive, or that may be misleading or deceptive. Australian common law also provides legal protection for confidential information and trade secrets in certain circumstances. Exposing the company’s working conditions is not a breach of trade secret (Floyd, Steenson, Coulthard, Williams & Pickering, 2018  p.17. 

Foodora spokeswoman in paragraph 13 revealed that no rider has ever been punished for expressing an alternative view. However, according to Section 3-1 of the FW Act the employee does not have to prove that he or she has suffered any compensable harm (Kramer,  2012). Therefore, you should read the unfavorable behavior under the “FW Act”, including any negative treatments, even if this treatment cannot be quantified. Recent court rulings have confirmed a broad interpretation of adverse actions. This means that TWU can still held Foodora accountable and defend the rights of Mr Klooger legally.

The move taken by the TWU to file suit on behalf of Mr Klooger as well as another Foodora cyclist, Avi Winner, is are rightful and legal because as per the Fair Work Ombudsman the employees are legally entitled to the minimum wage and the entitlements applicable to their positions under the fast food industry salary rules, and Foodora pays insufficient amounts to meet these salary standards and benefits. In fact, Foodora should pay the three employees full salary and make pension contributions for them.

Paragraph 14 to 19 focuses on the compensation rates. As per the Fair Work Ombudsman the employees are legally entitled to the minimum wage and the entitlements applicable to their positions under the fast food industry salary rules, and Foodora pays insufficient amounts to meet these salary standards and benefits.

Concerning the hourly rate, as presented in paragraph 20 to 24, Foodora is not paying the workers as per the FWA. The minimum wage in Australia is currently set at $18.29 per hour before taxes and $695 per week . Employees' salaries cannot be lower than this standard, even if they agree. As a temporary worker, you can get 25% of the casual loading, which means that your hourly salary should be 25% higher than the usual hourly wage rate (real-time salary). This is a compromise, because you can't enjoy annual benefits such as annual leave or long-service leave as a temporary worker. The Fair Work Committee website contains a variety of information including salary, benefits, and vacations, and is available in 40 languages. NES, as part of the Fair Work Act, replaced the previous Australian Fair Pay and Conditions Standard (The Standard) and contains a number of minimum guarantees for employees, such as notification of staff reduction and payment of severance pay (the employee must be notified of the forthcoming reduction for four weeks, respectively, for five weeks if he has reached the age of more than 45 years and has not less than two years of uninterrupted length of service), in addition , he is entitled to a 16-week severance pay.

The Fair Work Committee not only assesses the fairness of employees being fired, but also examines how they are fired. This means that even if the employer may have a reasonable reason to dismiss the employee, if the dismissal itself is procedurally unfair, it may be considered “harsh, unfair or unreasonable” (Forrester & Griffiths, 2010 p.57). When considering the procedural fairness, the Fair Work Committee will make decisions based on three key factors. Firstly, they would want to determine whether employer explained to employees the details of employment (Williams 2012 p. 15). Second, they would determine whether employer allowed employees to respond appropriately. Third, they will determine whether employer considered the employee's response before making the final dismissal decision. In a word, the employer can prove that he has taken all reasonable steps to solve the problem before making the dismissal decision (Forsyth, Howe, Gahan & Landau, 2017 p. 337). Before making this decision, it is best for the employer to conduct necessary conversations and communication with the employee, inform the employee of their reasons in advance, give the employee an opportunity to respond in writing or verbal, and combine the employee's personal situation with the situation of the job. Malicious dismissal or negative confrontation.

In conclusion, Foodora is participating in fraudulent contracts and paying employees below the legal minimum. Foodora paid less than the wages of the three workers and violated the contract law to make them mistakenly believe that they were independent contractors, and they were actually employees. As per the Fair Work Ombudsman the employees are legally entitled to the minimum wage and the entitlements applicable to their positions under the fast food industry salary rules, and Foodora pays insufficient amounts to meet these salary standards and benefits. In fact, Foodora should pay the three employees full salary and make pension contributions for them.

2. The article entitled ‘Degani Bakery and Cafe outlets underpaid staff, Fair Work Ombudsman finds’ has a number of employment laws. The first thing to know is Fair Work Ombudsman. Fair Work Ombudsman is a body that deals precisely with ensuring justice in the workplace. Fair Work offers free assistance to workers and employers , and is the best reference point for any doubt or issue in this area. Fair Work has the power to conduct inspections and enforce labor standards, and for this it is able to compel an employer to summarize a worker or reward him for the missed pay, etc. So if you suspect or you are sure that you are not treated rightly in the workplace (for example, you are not paid the right one, you are not granted benefits that you are entitled to, if you are a victim of discrimination or abuse) and you want Fair Work to investigate your situation, you can ask for their help. The office of the reference ombudsman is located in Adelaide, and they only accept requests for action by post. Obviously in the application you will also have to attach all the documents to support your position. As an alternative to Fair Work, you can also contact your trade union if your business requires it.

Paragraph 5, for example, revealed that underpayment and non-payment of penalty rates was the most common issue at Ombudsman Sandra Parker. Underpayment is not allowed in Australia. Apart from the single hourly pay that will depend on your contract, there are some basic rules that apply to everyone. First of all, we need to know that in Australia there are minimum working conditions, established by law or registered agreements (= agreement between the employer and the employee who must be approved and registered with the Fair Work Commission). Australian law, through awards, establishes minimum wages and minimum employment conditions for each profession and level of profession. Any pay below the one established by the reference award is illegal. For example, a Level 1 waiter in a restaurant cannot take less than 17.79 $ + 25% per casual hour. Also, if you work on weekends and public holidays, you will generally be paid more, as well as, in some cases, by night shifts or over a certain number of hours per day. All these details, however, are closely related to the sector of reference, and, in part, also to the state in which you will reside. According to the 2017-2018 annual report, Australia's New South Wales minimum wage is $18.29 per hour, or $694.90 per week, and 38 hours per week. Due to the different conditions of different industries, there are more detailed salary ratio guidance for each industry. Therefore, employers need to pay attention to the different salary ratios according to the employee's weekly working hours, the nature of the work, the content of the work, and the specific working time period. In general: employers not only have to comply with the terms of the work contract, but many invisible terms that are not written are equally binding on the employer. For example, an employer must regularly provide a pay slip to an employee. By following these steps, understanding these salary ratios can help employers avoid unnecessary troubles, help you plan your employment in the new year ahead of time, and negotiate with employees who are not up to the standard to settle the solution at the peak of the business. The task of part-time workers and temporary workers should try to avoid getting into unnecessary troubles. In fact, the purpose of the Fair Work Committee is to safeguard labor rights, balance workplace relationships, stabilize markets and the social environment. Investigation and punishment are tools, not purposes

Concerning issues related to record-keeping, Fair Work Act states that the employees are supposed to keep records of their salaries and wages. To make sure your employer is paying you correctly, you have the right to request payroll (payslips). This must clearly state your data (name, surname, and TFN), the company you work for, the payroll reference period, the hours worked in that period, the gross hourly pay, any withholding taxes and the total net pay. At the end of the financial year (June 30th), you have the right to request from your employer (and for each employer for whom you worked during the previous 12 months) the Group certificate, which is a document that summarizes your work position for the previous year. In particular, it will summarize how much you have been paid in gross and how much tax you have been withheld. This document will be useful for making a declaration of income. Alternatively, you will need to calculate the two digits through all payrolls.

References

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