This week in Australian workplace law

This decision clarifies that a union or employee association is not automatically blocked from registering as an organisation simply because most of its members happen to work in one enterprise. Whether a group qualifies as an 'enterprise association' does not necessarily prevent it from also being treated as an employee association for registration purposes. Employees seeking to form or join a new union should be aware that registration eligibility depends on a careful reading of the legislation, and that challenging a dismissal of a registration application through the courts is possible.

Employees at community language schools are entitled to the protections of the SCHADS Award, including penalty rates for Saturday and public holiday work. If an employer fails to comply with a Fair Work Inspector's compliance notice, the Fair Work Ombudsman can take the employer to court and seek both penalties and an order requiring back-payment of owed entitlements. This case confirms that the compliance notice system can be an effective tool for recovering unpaid entitlements.

Employers covered by the SCHADS Award, including community language schools, must pay correct penalty rates for Saturday and public holiday work. When a Fair Work Inspector issues a compliance notice, the obligation to comply does not expire just because the deadline has passed. Employers who receive a compliance notice should seek prompt legal advice and act on it. Attempting to raise new defences at the start of a trial, rather than early in proceedings, risks those defences being refused. Involvement of key officeholders in a failure to comply can expose them personally to penalties.

Employees who believe they have been constructively dismissed have only 21 days to apply to the Fair Work Commission and then a further 14 days after receiving a certificate to file in court. Missing these deadlines means needing the court's permission to proceed, which is not guaranteed. This case shows courts will examine the merits of each individual claim separately when deciding whether to grant an extension, so some claims may be allowed while others are not.

Employers in the beauty and personal services industry should be aware that disputes over commission reductions, role changes, and access to workplace systems can give rise to general protections claims even where no formal termination letter is issued. A constructive dismissal argument can succeed if an employee's resignation is linked to alleged adverse action. Courts may allow out-of-time applications where there is a reasonable explanation for the delay and some merit in the claim.

Current and former McDonald's managers who worked between 6 December 2017 and 3 February 2020 and were not paid for pre-shift or post-shift work may be group members in this class action. The court has broadened the initial trial to include the claims of additional group members who have given evidence, which could help resolve more claims sooner through either a court decision or a negotiated settlement.

Employers, including franchisors and franchisees in the fast food sector, should ensure managers are paid for all time actually worked, including time before a shift's rostered start or after its rostered end. This case also signals that courts may assess whether underpayment conduct forms part of a 'systemic pattern' across multiple employees, which can attract significantly higher penalties as a 'serious contravention' under the Fair Work Act 2009.