Size does Matter! What all Small Business Employers must learn
April 19, 2023
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A Small Business Employer is defined under the Fair Work Act 2009 (FWA) as being an employer with fewer than 15 employees.
Being a Small Business Employer provides a number of concessions under the FWA such as an exemption from redundancy pay; a 12 months’ protection window from unfair dismissal claims; and an additional defence to an unfair dismissal claim by demonstrating compliance with the Small Business Fair Dismissal Code.
For the Small Business Fair Dismissal Code & Checklist see: Small-Business-Fair-Dismissal-Code
But do your casuals count as part of your 15 employees? One of the key factors is whether your casuals have been employed on a “regular and systematic” basis.
EMPLOYMENT CRITERIA
In the case of Harry Grives v Aura Sports Pty Ltd
(2012) FWA 5552a number of criteria were established to identify whether a casual was to be included as an employee.
- The employee need only have been employed on a “regular and systematic” basis at some stage during their employment with the employer;
- The employee does not need to have a reasonable expectation of ongoing employment with the employer;
- Employment on a “regular and systematic” basis does not require the employee to be able to foresee or predict when their services may be required by the employer; and
- The pattern of employment must demonstrate the employer’s ongoing reliance on the employee’s services in the conduct of the employer’s business.
Significant gaps in periods of employment and lack of any consistent pattern in the hours worked shows that a company does not rely on the casuals’ services in the conduct of its business. In such a circumstance, for the purposes of the FWA, the casual would not be counted as an employee.
LESSONS FOR EMPLOYERS
When determining whether an employer employs fewer than 15 employees at the date of a dismissal to attain “Small Business Employer” protection, the following classes of employee are counted:
- All permanent part-time and full-time employees of the business;
- All permanent part-time and full-time employees of the business of an associated entity (e.g. companies with common directors or ownership,
- Casual employees of the business, or the business of an associated entity offered regular employment over a protracted period of service, regardless of:
- any variation in the hours they may work; or
- whether they have a reasonable expectation of ongoing employment with the business.
For the Small Business Fair Dismissal Code & Checklist see: Small-Business-Fair-Dismissal-Code
This article is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer.
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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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