Webinar – Having Difficult Conversations Highlights

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We held a webinar last week on ‘having difficult conversations’ with your staff. We’ve shared the top three snippets here!

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Susanna Ritchie

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compliance

Delayed Bonus Payments

A recent decision of the Federal Court of Australia has shone light on the risks employers face when structuring bonus payments in contracts. Deferred bonuses are commonly used by employers as a retention tool and to maintain high employee performance over longer periods of time. However, the recent decision of Wollermann v Fortrend Securities Pty Ltd [2025] FCA 103 highlights the legal risks associated with these incentive arrangements, particularly in circumstances where the contractual bonus payment clauses are not drafted correctly. What does the law say? S323(1) of the Fair Work Act 2009 (Cth) (FW Act) states that incentive-based payments and bonuses which become payable must be paid in full, in money and at least monthly. What happened? In the case of Wollermann, it was found that the employer’s attempt to spread contractual bonus payments over a period of time was in breach of s323(1) of the FW Act. In this case, the employment contracts included a bonus scheme where, upon generating monthly commissions exceeding USD 50,000, the employees were entitled to a bonus equating to 10% of the excess commissions. The bonus payment clause stipulated that 50% of the bonus would be paid on the 15th day of the following month, while the remaining 50% was deferred for seven months. Payment of the bonus was also subject to forfeiture if employment ceased during the deferral period. Justice OCallaghan found that: the obligation to pay the bonus arose immediately upon the employees meeting the performance criteria outlined in the contracts; the deferral and forfeiture clauses were inconsistent with s 323(1) of the FW Act; and the clauses effectively withheld earned entitlements beyond the permissible timeframe and conditions set by the FW Act. What does this mean for you? In light of this decision, employers should be reviewing their contracts and the wording of the bonus payment clauses, particularly in relation to deferred bonuses and forfeiture conditions. It needs to be made clear in contracts that bonuses do not become payable until the deferred period reaches completion. Workplace Wizards has a team of legally trained employment consultants who have worked with a variety of businesses to help resolve workplace issues. We’ve supported businesses of all sizes with solutions that address the unique challenges of high-stakes workplace environments—from conflict resolution training and refining policies to reviewing employee contracts. By tailoring our services to your specific needs, we’ll help you maintain a productive, harmonious culture where everyone can thrive. Reach out to learn more about our specialized workplace solutions and gain peace of mind for your organization. You can call us on 03 9087 6949 or email support@workplacewizards.com.au.

Caroline Blunt April 1, 2025

compliance

Employee Choice Pathway: Everything You Need To Know

Casual employees now hold the power to request permanent employment From 26 February of this year, new changes came into effect for casual workers, carving the way for them to become more actively involved in the right to transition to permanent employment. Eligible casual employees are now able to provide written notice to their employer to change to full-time or part-employment under the new Employee Choice Pathway. While the right to casual conversion is nothing new, the power has now shifted to the employee to initiate this process. Once an employer receives a request from an employee to convert to permanent employment, the employer needs to respond to the request within 21 days. Employers should take note that the bar for an employer to refuse the casual conversion is high and any rejection reasoning will need to be more than just a mere inconvenience and will need to be reasonable and legitimate. Importantly, not all casuals will be eligible to request this transition to part or full time employment. The following requirements must be satisfied: · the casual employee must have worked for an employer for more than six months or 12 months if the employer is a small business; · any work performed by the employee before 26 August 2024 will not count towards service for the purpose of eligibility to access the employment pathway; · the casual employee must believe they no longer meet the definition of a casual employee; · the casual employee must not have a current dispute with their employer about changing to permanent employment; and · the casual employee must not have had any previous notification refused about changing to permanent employment in the past six months. For small businesses, this change does not come into effect until 26 August 2025. Employers need to be proactive and start preparing for if and when these requests for casual conversion start filtering through. Businesses should be considering their operational requirements and be ready to respond to these requests promptly to avoid penalties. What can you be doing now in your workplace? Identify Eligible Casual EmployeesReview your casual workforce to track who may become eligible/are already eligible. Pay attention to service dates, hours worked, and role consistency. Train Managers and Update HR ProcessesEnsure HR staff and team leaders understand the new rules, including the 21-day response requirement and what constitutes a valid refusal. Communicate the Changes to Casual StaffProactively inform casual employees about their new rights and how they can request a transition to permanent employment under the Employee Choice Pathway. Assess Operational ImpactStart forecasting how casual conversion might affect workforce planning, resourcing, and budgets — especially if multiple employees seek conversion at once. Workplace Wizards has a team of legally trained employment consultants who have worked with a variety of businesses to help resolve workplace issues. Our legally trained employment consultants can help. We’ve supported businesses of all sizes with solutions that address the unique challenges of varying workplace environments—from conflict resolution training and refining policies to reviewing employee contracts. By tailoring our services to your specific needs, we’ll help you maintain a productive, harmonious culture where everyone can thrive. Reach out to learn more about our specialized workplace solutions and gain peace of mind for your organization. You can call us on 03 9087 6949 or email support@workplacewizards.com.au.

Caroline Blunt March 25, 2025

complaint

When Internal Power Struggles Go Public: Lessons from Purvinas v Wyse

Workplace disputes are nothing new, but when they spill into the courts, they can have far-reaching consequences. The recent Federal Court decision in Purvinas v Wyse [2024] FCA 1122 serves as a cautionary tale about union governance, legal strategy, and the financial risks of unmeritorious litigation. Stephen Purvinas, the Federal Secretary of the Australian Licensed Aircraft Engineers Association (ALAEA), clashed with the union’s Federal Executive over who really called the shots at work. The Executive accused him of making big decisions without their approval. In response, they passed a no-confidence motion in February 2024, stripping him of his ability to represent the union without their say-so. Unhappy with the decision, Purvinas took the fight to court, arguing that the motion was invalid and against the union’s rules. But instead of a legal victory, he walked away with a hefty indemnity costs order, meaning he now has to pay a significant chunk of the other side’s legal fees. Why Did the Court Rule Against Purvinas? To put it simply, his case didn’t hold up. The court found that his lawsuit was more about putting pressure on the Executive than about fixing a genuine legal issue. When reviewing Purvinas’s actions before, during, and after the court case, it was found that: Before the lawsuit, he made exaggerated claims that the Executive’s motion would stop union staff from doing their jobs. During the lawsuit, he incorrectly argued that the Executive’s decision was unlawful and prevented him from delegating tasks—even though the rules didn’t support this claim. After withdrawing the case, it was clear he had used legal action as a power move against the Executive, rather than as a way to resolve an actual dispute. Another key issue? His credibility as a witness. When questioned in court, Purvinas relied heavily on documents instead of simply explaining things in his own words. The judge wasn’t convinced and only accepted his evidence when backed up by independent documents. On the other hand, the Executive’s witnesses, including their President Rodney Wyse, came across as far more reliable. Ultimately, Justice Raper decided that Purvinas brought the case for the wrong reasons—and that meant he had to pay up. The Costly Fallout Most of the time in workplace disputes, both sides cover their own legal costs, no matter who wins. But there’s an exception: if the court finds that a lawsuit was brought without a solid reason or for an ulterior motive, it can order the losing party to cover the other side’s costs. That’s exactly what happened here. Justice Raper ruled that Purvinas’s legal action was vexatious (basically, a waste of the court’s time) and ordered indemnity costs against him. This means he won’t just pay standard legal costs, he’ll likely be covering a much bigger portion of the Executive’s legal fees. Interesting Bits to Note Be careful with legal threats! Purvinas spent months threatening legal action before finally going through with it. The judge saw this as a tactic to pressure the Executive rather than a genuine case. Courts don’t like power plays disguised as lawsuits. This case was less about legal rights and more about internal politics within the union. Workplace law doesn’t usually work this way. It’s rare for workplace disputes to end with a costs order, and even rarer for someone to get hit with indemnity costs. This case is a reminder that if you take a weak case to court, it can seriously backfire. A Union Drama with a Price Tag At its core, this case wasn’t just about legal technicalities, it was about power, control, and the dangers of taking the wrong fight to court. Purvinas thought he was standing his ground, but instead, he found himself stuck with a big legal bill and a reputation for bringing an unconvincing case. For union officials, employees, and workplace lawyers, the message is clear: Stick to the rules when running an organisation. Think twice before rushing to court over internal disputes. If your case isn’t strong, it might cost you more than you expect. At WWLegal, we are a new breed of workplace lawyers who streamline the complexities of Australian employment law to significantly benefit both individuals and businesses. Our team provides expert legal representation tailored to your unique situation, ensuring knowledgeable support that aligns with your needs. If you’re facing employment law challenges or need expert advice, WWLegal is ready to help. Contact us today to schedule a consultation and discover how we can assist you in navigating employment law with confidence and expertise.

Mark Ritchie March 21, 2025