Employers ! – Does the recent changes to employee entitlements affect you?
April 19, 2023
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In the second half of 2018 we have seen a number of changes to the national industrial relations system, including to modern awards. It is important that employers keep up to date with these changes to remain compliant with their obligations.
Family & Domestic Violence Leave
As of 1 August 2018, employees covered by an industry or occupation modern award now are entitled to five (5) days unpaid leave in order to address family and domestic violence issues.
If an employee’s family member is threatening, violent or abusive, in a manner that seeks to coerce or control the employee, or causes them harm or fear, the employee may take leave if they need to deal with the impact of the behaviour and it is impractical to do so outside of ordinary work hours.
The full leave entitlement (of 5 days) is automatically available at the beginning of each 12-month period of employment, but does not roll over into the next year.
We recommend that as an employer you:
- review your relevant award provisions;
- update your policies to reflect this new entitlement; and
- remember that sensitivity and confidentiality should be maintained when dealing with requests for family and domestic violence leave.
Regular Casual Workers May Not Be Casual
In a recent landmark case in the Federal Court, the issue of ‘what is a casual employee?’ was discussed. The court said that where a worker has set hours or shifts, or they have been promised ongoing future work, they may not be classified as a ‘casual employee’, regardless of their terms of engagement.
Entitlements not usually afforded to casual employees, such as paid annual leave, notice of termination, redundancy pay, and the right to not work on public holidays, may be payable by an employer if the employee is found by the court to not meet the criteria of a ‘casual employee’. This may be the case even though a written contract defined the employee as a casual, and a casual loading has been paid.
Employers should ensure that they know the capacity under which their employees are engaged, based on the reality of employment relationship, not just the classification given by the employer.
Where employers guarantee or promise their casual workers certainty as to future work, they should consider reviewing and or revising the casual workers’ terms of employment, including converting the employee to a permanent position.
Casual Conversion Requests
As of 1 October 2018, 84 modern awards were varied to contain a casual conversion clause.
If your casual employee has worked in their position for 12 months, on an ongoing and regular basis, they may be entitled to request conversion to permanent employment.
ACTION REQUIRED! Employers must advise all casual employees of their rights to request conversion, whether they are eligible or not, by providing them with a copy of the relevant casual conversion clause within their award contract.
Family Friendly Flexible Working Arrangements
The Fair Work Commission recently published its provisional view that a model term be incorporated into modern awards relating to flexible working arrangements.
This move appears to be in response to a growing concern that there is an unmet need for more flexibility in the workplace, in accordance with the needs of a modern workforce, including for working families.
The model clause is currently open for comment in relation to the requirements of specific industries.
The clause would apply to employees within the following categories:
- parents, or those with responsibility for the care of a child who is school age or younger;
- carers (within the meaning of the Carer Recognition Act 2010);
- those with a disability;
- those aged 55 or older; and
- those experiencing family violence or providing care or support to an immediate family or household member, who requires care or support due to family violence.
Common arrangements requiring such flexibility include: adjustments to start and finishing times, job-sharing arrangements, part-time work, working more hours over fewer days, time off in lieu of overtime pay and working from home.
The model term would require that requests from employees:
- be in writing: and
- include an outline of reasons for the request.
Employers would then be required to respond in writing within 21 days, to either grant or refuse the request. Any refusal by an employer must include reasons based on ‘reasonable grounds’, which may include that:
- the changes would be too costly, or likely to result in significant loss of efficiency or productivity;
- other employees would be impacted, and there is no capacity to accommodate such an impact;
- it would be impractical to change other employee’s arrangements, or recruit new employees, to accommodate the request; and
- the changes would likely have a significant negative impact on customer service.
Employers are encouraged to keep up to date with industrial relations changes and discuss any concerns they may have with their solicitor.
If you would like further information in relation to how the above matters may affect your business, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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The International Sustainability and Carbon Certification (ISCC) System has come to the attention of many Western Australian farmers recently, as the scheme has changed one of its policies regarding aerial spraying. What is the ISCC? The ISCC is one of the world’s largest voluntary sustainability certification schemes enabling participants to demonstrate they are producing materials in a sustainable way that meets or exceeds community expectations. In Australia it is widely used in the canola industry, enabling Australian canola growers to access the European biofuel market. CBH Marketing and Trading holds certification for the ISCC EU and ISCC PLUS programs, that cover canola, barley, oats, wheat and lupin, allowing WA growers to participate in both programs. Participating in the ISCC program can result in a premium on grain, however participants are subject to more stringent measures to satisfy sustainability accreditation requirements. Recent decision on aerial spraying ISCC Principle 2.6.2 prevents aerial spraying from taking place within 500 metres of a body of water. CBH has successfully lobbied for an exemption to this Principle, for farm dams and salt lakes of low ecological value. As part of its lobbying, CBH provided expert reports to the ISCC on the hydrology and ecology of WA farm systems. For farmers who are signed up to the ISCC program, this removes an obstacle during the season for weed management. The Principle does still require a 500 metre buffer for other bodies of water, including freshwater lakes, rivers, ponds or creeks. However, for those who farm yabbies and marron, this change may not be welcome. Marron and yabby farmers have noticed impacts on their populations where aerial spraying has taken place close to their properties, and aerial spraying can unintentionally damage natural vegetation, including young and old growth trees. For growers, it’s always prudent to follow best practice guidelines for aerial spraying to avoid spray drift – including monitoring weather conditions and the effect of water added to the chemical. For some farmers, this decision may prompt an examination of whether signing up to the ISCC program might be best for their business. In this circumstance, it is important to weigh up the potential benefits of the program compared to the sustainability accreditation requirements. For others, this decision is a timely reminder to stay up to date with best practice guidelines when it comes to spraying, particularly during the seeding season. For assistance with all of your agribusiness needs, contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
How does the Annual Wage Review affect workers and small business owners? Each year, the Fair Work Commission reviews the National Minimum Wage and the minimum wages set out in awards. Cost of living and inflation are front of mind for both employers and employees, and this year’s Annual Wage Review is likely to see an increase in the minimum wage and award rates. The Annual Wage Review is conducted by an Expert Panel, which takes submissions from interested groups, including the Federal Government, unions, and business lobby groups. The Federal Government’s submission to the Wage Review this year called for an increase to the minimum wage, though not specifying an amount. The Australian Chamber of Commerce and Industry has advocated for an increase of 2 per cent, at most. The announcement will likely take place in early June and any increase to the national minimum wage will take effect in the first full pay period on or after 1 July 2024. Failure to pay employees at least the minimum rate that is set out in an applicable award can result in penalties, including requirements for back pay and fines. The Fair Work Ombudsman uses its enforcement powers to issue compliance notices to employers, and recovered $14.8 million in unpaid wages in 2022-23. Small and medium businesses are subject to the same scrutiny as large businesses. For business owners, this is a timely reminder to review employment agreements and payments to staff. You should be conscious of which awards cover your staff members, as award rates for each level increase commensurate with the national minimum wage increase. It is also important to be aware of employee entitlements and set-offs, to ensure you are paying employees what they’re entitled to and avoiding future claims. If you are not sure what award your employee is covered by, have a question about employment conditions or require any other assistance with employment and workplace matters contact Bailiwick Legal on 08 9321 5451 or email office@bailiwicklegal.com.au . By Ciara Nalty (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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