Employer Funded Paid Parental Leave – Top 5 Things to Consider

Beverley Thomas, Associate

Despite lingering uncertainty about the future of the Government’s Paid Parental Leave Scheme, many organisations continue to develop and implement their own unique Parental Leave Policies to entice to job applicants, encourage diversity and improve the work-life balance of their employees.

Globally, we have seen companies, particularly in the tech space, making waves with their policies. For example, online e-commerce company, Etsy, offers a half year’s paid leave to its employees and Netflix provides its employees with “unlimited” paid leave during the first year after the birth or adoption of a child. Regardless of where your organisation draws its inspiration from, there are a few things to keep in mind when designing your Paid Parental Leave Policy. Here are our top tips:

  1. Remember that paid leave equals service: Some employee entitlements are determined by years of “service”. While periods of unpaid leave do not count towards service, paid periods of leave usually do. This means that employees will accrue annual and personal leave during periods of employer funded paid parental leave, so it is worth factoring in this cost when designing a policy.
  2. Foster a culture of acceptance: There’s no use in implementing generous family friendly policies if the culture of the workplace is such that an employee would be frowned upon if they accessed the policy’s benefits. Acceptance is something that should filter from the top down in order to have the most influential impact. Recently, Facebook founder Mark Zuckerberg, took two months off to spend time with his wife and new daughter after her birth. This sent a powerful message to employees of this social media network that equally grants new mums and dads four months of paid parental leave.
  3. Benefits are best kept discretionary: Business environments, governments and legislation can all change and affect your organisation’s ability to provide benefits in excess of its obligations. For this reason, it is generally recommended that a Paid Parental Leave Policy is contained in its own policy document as opposed being drafted into contract of employment or enterprise agreement. Provided it is made clear that it is not an entitlement and subject to change, this will assist you organisation to alter its policy from time to time with less exposure to a legal claim.
  4. Keep diversity at the forefront: Surrogacy, adoption, fostering and same-sex relationships are just some of the features of today’s diverse society. Avoid directly or indirectly discriminating against particular groups by taking a gender neutral approach to policy drafting and extending benefits to less commonly considered scenarios.
  5. Think outside the square: Providing employees with paid leave is only one way that employers can take a family friendly stance. Consider other options that might be more suitable for your organisation, such as providing employees with a bonus upon their return to work after taking parental leave. Other options include continuing to make superannuation contributions to an employee during periods of unpaid parental leave or facilitating flexible work arrangements upon a parent’s return to the workplace.

Getting independent contracts right: a case law follow up

In our most recent edition of Strateg-Eyes, we considered the use of “triangular contracting arrangements” as a means of mitigating the risk of a worker being deemed an employee when the intention was that they be engaged as an independent contractor. A timely decision of the Fair Work Commission (in Mr Norman Turner v Australian Postal Corporation [2016] FWC 801) has demonstrated the effectiveness of these arrangements when properly deployed in practice.

The decision

Mr Turner performed work for Australia Post and argued that he was unfairly dismissed following the termination of his engagement. Australia Post objected on the basis that Mr Turner was an independent contractor, not an employee.

Mr Turner argued that the relationship was one of employment based on certain of its characteristics, including that Australia Post:

  • controlled his mail delivery area;
  • dictated the appearance of the vehicle he was to use;
  • required him to wear an Australia Post uniform; and
  • required him to comply with certain of its policies and procedures.

Australia Post argued that no employment relationship existed because the Mail Contractor Agreement (the “Agreement”) it had entered into was between it and Coomba Park Couriers, Mr Turner’s company. That is, the Agreement was a triangular contracting arrangement.

The FWC accepted Australia Post’s argument, holding that because:

  • there was no contract between Australia Post and Mr Turner; and
  • the Agreement was not a “sham” (in that there was no evidence to suggest that it was not intended it would have “substantive legal effect”),
  • there was “no basis [on which] to undertake a ‘multi–factorial assessment’ to determine whether the character of any contract between Mr Turner and Australia Post (if it existed) was a contract of employment or alternatively a contract of some other character”.

As such, Mr Turner was precluded from bringing an unfair dismissal claim.

Lessons for employers

  • Independent contracting arrangements should be recorded in tripartite contracting arrangements where possible.
  • Such arrangements should contain express acknowledgments that the relationship they record is not one of employment.
  • Even where a number of features of a relationship are indicative of employment, if these features can be explained as genuine requirements of a commercial contract, the worker may not be deemed to be an employee.

Beyond restraints: other methods of protecting business interests

Michael Starkey, Associate

When it comes to protecting legitimate business interests following a termination of employment, many employers will be familiar with contractual restraints of trade. Such provisions seek to prevent an employee from, for example, soliciting his or her former employer’s clients, or taking up employment with a competing business. Well drafted restraints can be invaluable in these regards – however, restraints are also notoriously difficult to enforce, and whether or not a restraint will be effective is often not known until it is too late.

In light of this, we thought we’d share some lessons from a recent decision of the New South Wales Supreme Court (BGC Partners (Australia) Pty Limited v Hickey [2016] NSWSC 90 (“Hickey”) which demonstrates that when it comes to protecting your business’ interests, restraints aren’t the only option.

Fixed-term contracts

It is a common misapprehension that a “fixed-term contract” is one that has a specified end date, but may be terminated by either party prior to that date. Such contracts are in fact “maximum-term contracts”. Fixed-term contracts are contracts that are unable to be terminated prior to their specified end date.

A business which is able to assess its needs in advance might consider employing executive employees on fixed-term contracts so it can be certain of the period that they will remain with the organisation (and, therefore, be kept out of the market).

Employers should be wary, however, of certain risks inherent in fixed-term contracts, including that a term of “reasonable notice” may be read into the contract in the event of a dispute, and of the organisation being “shackled” to an employee who might not perform as hoped.

Creative termination clauses

One way in which a fixed-term contract might be modified so as to mitigate some of these risks is through the inclusion of creative termination clauses.

In Hickey, the employee’s argument that he should be entitled to resign on the provision of reasonable notice was rejected because the express terms of the contract specified that he could only resign in very limited circumstances – that is, by giving notice within the final two weeks of the term, in which case the employment would end three months after the term expired.

Termination clauses such as this can help protect an employer’s business interests by:

  • preventing unilateral resignation in surprising circumstances; and
  • drawing out the length of any notice period, thereby giving the organisation time to secure its interests prior to the employee leaving it.

The outcome in Hickey was that the employee was prevented from working with his former employer’s competitor for nine months (being the three month “notice period” plus a six month restraint which was successfully enforced).

While restraints will remain the primary method by which most business’ protect their interests post-termination, by making themselves aware of other available options, employers can reinforce the protection of restraints as appropriate in the circumstances.

Deduct-do or Deduct-don’t: The Rules Around Employee Deductions

Elizabeth Kenny, Associate

When an employee owes an employer money, many employers assume that they are able to make deductions from an employee’s wage or salary to recover the money which is owed to them. However, the Fair Work Act 2009 (Cth) (the “FW Act”) is particularly prescriptive about the circumstances in which an employer can make lawful deductions from an employee’s wage and salary and further safeguards employees from unlawful deductions by exposing employers to civil penalties in circumstances where an unlawful deduction is made.

The Law

Under the FW Act, an employer cannot deduct amounts from the employees pay unless:

  • the employer has obtained consent from the employee in writing AND where it is principally for the employee’s benefit (eg. salary sacrifice arrangement); or
  • it is permitted by law, a court order, by the Fair Work Commission (“FWC”), or under the relevant industrial agreement or modern award.

An employer cannot deduct money if the employer gains a benefit, either directly or indirectly, and it is unreasonable in the circumstances.

Deductions by Consent

Employers must be mindful that getting express consent from the employee must be in relation to the specific deduction to be made including specifying the amount of the deduction. Therefore, a generalised consent to deductions without any specifications as to what kind of deduction and the amount of the deduction may not be considered to be valid or lawful.

Deductions Permitted by Law

While it may seem that the law is prescriptive about when a deduction is lawful or unlawful, it is often the most confusing for employers to determine whether a deduction is lawful when the employer has not received express consent from the employee.

For example, if an employee resigns without notice, is an employer able to deduct any amounts that the employee owes including notice of termination?

In circumstances where an employee has resigned on the spot and has not given the correct notice of termination, an employer may be able to deduct the equivalent period of notice from monies due on termination of employment, so long as this is specified in the applicable modern award or industrial agreement. It is common in modern awards to include a provision which states that:

“If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.”

Another example is when an employer has overpaid an employee. Can the employer deduct the amount overpaid from the employee’s next pay?

Generally speaking, the employer cannot take money from the employee’s pay to correct the mistake or overpayment. Similarly to the above, an employer will only be able to deduct an overpayment amount if it is allowed under an industrial agreement, modern award, legislation or court order. Therefore, it would be far more beneficial for employers to discuss and agree to a repayment arrangement with the employee in a scenario where an employee has been overpaid.

Lessons for Employers

Employers must be cautious when determining whether a deduction from an employee’s wage can be made, particularly as civil penalties can be imposed if a deduction is found to be unlawful. As best practice, employers should seek to obtain the employee’s express consent for any deduction, or ensure that they are permitted under an industrial instrument or modern award to make such deduction.

If you are unsure if a deduction is lawful or unlawful, please speak to the PCS Team on (02) 8094 3100.

Key Lookouts for Foreign Investors

Beverley Thomas, Associate

Despite the relatively high cost of labour, it’s easy to see why Australia is an attractive market for foreign investors. Australia boasts an AAA rated economy, low risk business environment and a location that lends itself to fantastic exporting opportunities across Asia. 

Recently, the Fair Work Ombudsman (Ombudsman) investigated a Singaporean investor, Reddot Brewhouse (Reddot) who underpaid its staff in an Australian venture. 

Reddot established an Australian brewery for the purposes of exporting its boutique brews to the broader Asian market. Unfortunately for Reddot a bump in the road to success was met when the Ombudsman discovered that a welder employed by Reddot had been underpaid by $20,260 over the span of three months. What’s more, the underpaid employee emigrated from the Philippines for the role and was oblivious to the fact that he was engaged under a class of visa that was significantly different to what the employer originally promised. Instead of receiving a subclass 457 visa, the employee was granted a subclass 400 visa, which only permits a short stay for work that is not ongoing. 

In a bid to encourage compliance with the Fair Work Act 2009 (FW Act), Reddot has been compelled to comply with enforceable undertakings which include obligations to:

  • back pay unpaid penalties and unlawful deductions from the employee’s wages;
  • implement systems and processes to ensure future compliance with workplace laws; and
  • engage an external accounting professional to audit Reddot’s workplace practices.

So, what should foreign investors take away from the Ombudsman’s investigation into Reddot?

  1. Foreign investors would do well to familiarise themselves with Australian workplace laws prior to entering the market. Even if an investor does not set up an Australian entity, it will be subject to the FW Act as foreign corporations are still classified as “national system employers”. In this instance, Reddot was lucky to have only been subject to enforceable undertakings as typically such breaches would result in steep penalties being imposed against the employer.
  2. Importing labour into Australia will not absolve a foreign entity from its obligations under Australian workplace laws. Reddot’s owners stated in the course of investigation that Australia’s labour market was “too expensive”, leading them to import labour from overseas. However, visa holders are entitled to the protection of the National Employment Standards and visa sponsors such as Reddot are required by the Department of Immigration and Border Protection (Department) to pay an employee sponsored for a subclass 457 visa at least the safety net salary of $53,900p.a. to protect them against exploitation. This is known as the Temporary Skilled Migration Income Threshold (TSMIT). The TSMIT does not apply to other subclasses of temporary skilled visas such as the subclass 400 short stay visa. It is relevant to note, though, that employers are still required to demonstrate that employees will be paid in accordance with Australian market rates whilst working in Australia for periods that are 3 months or longer, in order to meet application criterion. Failure to do so will result in a visa application refusal.

Further, failure adhere to the prescribed salary levels after a visa has been granted will be considered a breach of the sponsorship obligations for Standard Business Sponsors. Additionally, underpayment of subclass 400 visa holders may also constitute a breach of the Migration Act 1958 (Cth) as well as the FW Act if such payments do not meet minimum standards as prescribed by a modern award, or minimum wage requirements at the least. Breaching sponsorship obligations, or investigations by the FWO could compromise an employer’s prospects of sponsorship and/or employment of foreign nationals.

Considering investing in Australian markets? Look no further than PCS to help you understand your obligations as an employer and assist you with your skilled migration needs. 

Making flexibility work

Michael Starkey, Graduate Associate

The drive to more flexible working arrangements is in the spotlight again, with big four professional services firm EY announcing recently that coming into work is optional for its employees. The arrangement is part of EY’s Workplace of the Future program and aims to place focus on outcomes rather than presenteeism. While the EY method might not be right for all organisations, here are our top tips on how to get flexible working arrangements right in yours. 

Know your obligations

Under the Fair Work Act 2009 (Cth) (“FW Act”) certain employees (for example, parents of school aged or younger children, carers and employees with a disability) have the right to request a flexible working arrangement. An employer may only refuse such a request on reasonable business grounds, which might include the arrangement being too costly, or it being impractical to change the working arrangements of other employees to accommodate the arrangement.

Recognise the benefits

There is nothing preventing employers from offering flexible working arrangements to employees who fall outside the scope of employees entitled to request such an arrangement under the FW Act. Rather than being seen as an impost, organisations should consider the potential benefits of implementing flexible working arrangements on a wider level. Those benefits might include:

  • building organisational diversity by, for example, encouraging the workplace participation of carers with children;
  • encouraging employees nearing retirement age to continue working through more flexible practices; and
  • attracting top-talent by differentiating your organisation from others through non-monetary benefits.

Recognise your options

Flexible work comes in many forms, with options growing rapidly as technology advances. Employees might be allowed to work, for example:

  • part-time;
  • compressed hours (full-time over fewer days);
  • from home;
  • in job-sharing arrangements; or
  • reduced hours in certain weeks through the creative use of leave.

Organisations should think innovatively to come up with an option, or combination of options, that works best for them.

Set clear expectations

Employers should make clear (for example, through documented policies) that, in return for the benefit of flexible work arrangements, employees are expected to maximise discretionary effort and deliver on agreed outcomes. The success of flexible work arrangements should be tracked through regular check-ins. By framing flexible work arrangements as part of broader initiatives to build employee engagement, organisations can achieve buy-in and reap the rewards of associated cultural and productivity benefits.

Notice of Employee Representational Rights – Have you complied?

Elizabeth Kenny, Associate

When preparing to bargain for a new enterprise agreement, many employers know that they must provide employees covered by the proposed enterprise agreement with what is known as a ‘Notice of Employee Representational Rights’ (“NERR”).

The NERR is a requirement under the Fair Work Act 2009 (Cth) (the “FW Act”) and its form and content is prescribed by the Fair Work Regulations 2009 (Cth) (the “FW Regulations”). However, many employers do not know that the form and content prescribed by the FW Regulations must be strictly complied with, or this may later jeopardise the approval of the enterprise agreement when it reaches the Fair Work Commission (“FWC”).

Recently, two case examples highlight the importance of strictly complying with the form and content set out in the FW Regulations and the consequences of failing to do so.

In the case of DP World Brisbane Pty Ltd [2016] FWC 385, the FWC noted deficiencies with the NERR being that:

  1. the NERR contained other content in the form a company logo and letterhead information; and
  2. the NERR incorrectly referred to the DP World Brisbane Enterprise Agreement 2014.

The FWC formed the view that the incorrect date in the title of the agreement referred to in the NERR did not invalidate the NERR as it does not represent a material change to the form and content prescribed for a NERR. However, the additional content, being the company logo and letterhead information, was considered to be significant in that its inclusion had the effect of altering the character of the document from a regulatory document to an Employer document and as such, the FWC was unable to approve the agreement and the application was dismissed.

In the case of WorkPac Mining Pty Ltd [2016] FWC 251, communications about the NERR were sent to employees via SMS text and email. The text of the email set out some, but not all, of the terms of the NERR and SMS text messages sent to the employees directed employees to a link on the employer’s intranet site including the NERR.

The dispute arose around whether the primary method of distribution of the NERR – by email – was consistent with the FW Regulations and whether the alternative or secondary method – by SMS text message – was also consistent with the FW Regulations.

The FWC determined that the employer did not comply with the requirements to give the NERR in the required form for the following reasons:

  1. two versions of the NERR were contained in the email, the first being incomplete and the second having content above and below the NERR so it was unclear what is part of the notice and what is additional content. Therefore, the email did not contain a NERR in the required form; and
  2. the Regulations require the employer to “give” the notice which connotes a positive action on the part of the employer. By simply providing a weblink in a SMS text message was not enough on the employer’s behalf to satisfy the requirements as it does not identify the purpose of the communication, being to give the NERR or identify how the notice can be accessed.

Lesson for Employers

Although employers are aware that NERR must be provided to start the bargaining process of a new enterprise agreement, it is important that employers are aware that the NERR must be provided in the exact form as provided by the Regulations and failing to do so will result in the application of the enterprise agreement subject to the NERR being dismissed. The employer must ensure that the NERR is given without any additional content, particularly anything that could characterise the document as being an employer document such as a company letterhead or logo.

Employers must be also be aware in giving the NERR, that it is clear what information is part of the NERR and what information is additional information. This could be done by providing the NERR as an attachment and any additional information is contained in the body of the email. In addition, employers must ensure that they “give” the NERR to their employees and identify how it can be accessed. This can be as simple as including a statement in an email or SMS text message such as “We are required to give you a Notice of Employee Representational Rights. It is attached to this email/SMS message in the form of a weblink/attachment”.

Top 5 Unfair Contract Terms

Beverley Thomas, Associate

From 12 November 2016, the Unfair Contract Term (“UCT”) protections under the ASIC Act 2001 (“ASIC Act”) and the Australian Consumer Law (“ACL”) currently only available to consumers will be extended to cover small businesses. Under these provisions, standard form contracts are void to the extent they contain unfair terms but will continue to bind the parties if they can operate without the unfair term. Here are our top 5 takeaways to help you understand what these changes mean for your organisation.

1. What do the amendments affect?

The law will apply to standard form contracts entered into or renewed on or after 12 November 2016 where the contract is for the supply of goods or services or the sale or grant of an interest in land, the upfront price under the contract is under the threshold amount (either $300,000, or $1 million if the contract is for more than 12 months) and at least one of the contracting parties is a small business (employs less than 20 employees, including casual employees engaged on a regular and systematic basis). 

2. How do these amendments tie into my workplace practices?

If your organisation offers to small businesses standard form contracts that are valued at less than the prescribed threshold, then you should review and amend your suite of template contracts to ensure they are compliant with the new protections. Standard form contracts are generally pre-prepared by one (bigger) party with greater bargaining power and offered to the other (smaller) party on a “take it or leave it” basis with little to no scope for negotiation. From a workplace perspective, examples of standard form contracts that your organisation should review include:

  • independent contractor agreements;
  • tripartite agreements between a principal, an entity and its key personnel;
  • consulting services agreements; and
  • labour hire agreements.

3. What is an unfair term?

A term of a standard form contract will be unfair and therefore void if it would cause a significant imbalance between the parties, is not reasonably necessary to protect one party’s legitimate interests or would cause a financial or other detriment to one party if relied upon. Examples of possible UCTs include terms that would enable or permit one party (but not another) to:

  • terminate the contract;
  • avoid or limit performance of the contract;
  • impose a penalty for a breach or termination of the contract;
  • vary the terms of the contract;
  • renew or not renew the contract;
  • vary the upfront price payable without permitting the other party to terminate the contract; and
  • limit the other party’s right to sue another party.

The transparency of the UCTs within the standard form contract will have a bearing on whether the term is considered to be unfair. 

4. What could happen if we don’t comply with the amended UCT Laws

The ACCC or the small business party to the contract may commence legal proceedings claiming that your organisation has breached the UCT protections. It will be the role of a Court to determine whether a term in a standard form contract is unfair and to make orders that remedy any breach of the UCT protections. Your organisation could be liable under the UCT provisions of the ASIC Act and the ACL if a Court finds that you have included UCTs in your standard form contract.

UCTs in standard form contracts will be declared void and unenforceable. However, to the extent possible, the contract may continue to operate without the UCTs. If contractual terms are no longer binding on parties it could dramatically impact the effectiveness of the standard form contract. It could prevent the completion of a project if personnel no longer provide services due to unenforceability of the agreement and the damage to your ongoing commercial relationships may be compromised. 

5. What should our organisation do?

While the amendments to the UCT laws will only apply from 12 November 2016 onwards, now is the time to:

  • review your relevant standard form contracts for any UCTs and the transparency of any terms that could be construed as unfair;
  • consider whether it is necessary for your organisation to offer standard form contracts and whether a more flexible approach can be taken towards negotiating agreements;
  • assess whether the value of your standard form contracts may be in excess of the monetary thresholds for UCT laws applying; and
  • decide whether to have two sets of documents – one to issue to small businesses for contracts within the threshold amount and the other to issue to other businesses in accordance with your usual protocol.

Do the code and the conduct match?

David Weiler, Associate

Last month two former ANZ financial traders brought separate but related actions against the bank following the termination of their employment. The Australian Financial Review has  reportedthat one of the claims is for approximately $30 million in damages for loss of deferred shares and future income.

The reasons for the terminations were cited as “serious breaches” of ANZ’s code of conduct including inappropriate comments over the bank’s internal messaging system. The employees allege that behaviour such as drug use, excessive alcohol consumption and trips to the strip club during work were known about, and in some cases encouraged, by senior members of the bank.

While the actions have not been heard by a court yet and may not ultimately be established, on a general level, the allegations highlight the importance of leaders of organisations doing exactly that, leading. Employers should be aware of the potential difficulties in enforcing a code of conduct if executives and team leaders are not held to the same standard as those that they supervise.

While codes of conduct may be a good reference point, workplace conduct does not occur in a vacuum and festering “grey areas” can cause serious issues when a party comes to the conclusion that the employment relationship should come to an end.

While employers will inevitably need to draw a line in the sand and cannot continue to allow inappropriate behaviour to go on, they should be cautious of acting on the conduct without consideration of applicable workplace laws.

At the same time, employees who feel as though they are part of a “poor culture” must consider their position within the organisation and the impact of their own behaviour on the organisation as a whole.

The conduct alleged in these types of actions, if established, can negatively impact a business’ brand long after deeds are signed or orders are made. Although it is of course better to address these issues before they become ingrained in a culture, there is no better time than today to reflect on how your organisation’s code of conduct matches up with the conduct of its employees (especially those in leadership positions).

An Important Update on Redundancy Payments

In September, we reported on a decision (National Union of Workers; United Firefighters’ Union of Australia v Compass Group Pty Ltd [2015] FWC 6055) of the Fair Work Commission (“FWC”) which considered when an employer will and will not be exempt from making a redundancy payment because the termination of employment in question is “due to the ordinary and customary turnover of labour”.

A Full Bench of the FWC (“Full Bench”) (in Compass Group (Australia) Pty Ltd v National Union of Workers; United Firefighters’ Union of Australia [2015] FWCFB 8040) has upheld an appeal against that decision, quashing Commissioner Roe’s original order which required the employer, Compass Group Pty Ltd (“Compass”), to make redundancy payments to a number of employees whose employment was terminated following Compass’ election not to renew several of its government contracts.


The Full Bench held that while redundancies arising “because of economic circumstances, technological change or company restructure involve a common element of unexpected termination” (thereby justifying a redundancy payment), “termination of employment where an employee has been engaged for a job or contract is in a different category” (not justifying a redundancy payment). The Full Bench proposed a streamlined test to determine whether a termination of employment is due to the ordinary and customary turnover of labour:

  • “…it is necessary to consider the normal features of the business and then determine whether the relevant terminations are properly described as falling within the ordinary and customary turnover of labour in that business…

The Full Bench accepted that:

  • over a 12 month period, 54 per cent of Compass’ employees had been dismissed at the conclusion of one of Compass’ contracts;
  • since 1999, 67 per cent of Compass’ employees in the defence sector had been dismissed in such circumstances;
  • the employees in question were employed for a particular contract which implied a link between their employment and that contract;
  • dismissing employees at the conclusion of a contract was Compass’ standard practice; and
  • Compass customarily did not make redundancy payments in such circumstances, with employees understanding this (as evidenced by the long-standing inclusion of a standard redundancy clause in Compass’ enterprise agreement).

On the basis of the above, the Full Bench concluded that “the terminations of employment arose from the loss of the Department of Defence contracts and in the context of Compass’ business, this was due to the ordinary and customary turnover of labour”.


The Full Bench’s decision is a win for employers because it indicates the correct approach to determining whether a termination of employment is due to the ordinary and customary turnover of labour is a question that “necessarily focuses on the business circumstances of the employer”.

It also indicates that the “ordinary and customary turnover” exception is less narrow than was indicated in the FWC’s first decision – for example, the exception may apply if a link between an organisation’s business contracts and contracts of employment can be implied, despite those contracts not being “clearly tied”.

For advice on your obligations in relation to redundancy and other termination payments, contact one of the PCS team today.