Heads UP – workplace relations under a Labour Government

We recently posted an article on the likely effects of the proposed move from a “minimum wage” to a “living wage” – see that here

So what else is Labour planning to do if it wins power at the next federal election. Get ready because there is a lot on their agenda and here is just a sample of what’s coming if they win.

These are extracts from the ALP National Platform document titled “A Fair Go For Australia” along with a little commentary from us.

10 days paid domestic violence leave

“Labor supports the right of every worker to a safe home, community and workplace. Labor stands against family violence. Labor will introduce 10 days paid Domestic Violence leave as a universal workplace right in the National Employment Standards.”

Last year, the Fair Work Commission and the Australian Government respectively varied modern awards and National Employment Standards to provide for 5 days of unpaid leave to deal with family and domestic violence. At around the same time, New Zealand legislated for 10 days paid domestic violence leave.

26 weeks parental leave on full pay

“Labor’s goal is for parents to have access to 26 weeks of paid parental leave, as the internationally recognised best-practice benchmark, and the goal of 26 weeks at full pay plus superannuation through a combination of government and employer contributions.”

Currently, under National Employment Standards, parental leave is for 52 weeks without pay and people can access up to 18 weeks of parental leave pay at the rate of the national minimum wage.

Flexible working arrangements for caring responsibilities

“Labor will ensure the right to request changes to working arrangements to meet caring responsibilities, including an effective right of review for unreasonable refusals of their requests, is equitable for all workers and maximises access of workers to arrangements that suit their needs.”

Modern awards have recently been varied to provide a right of review for “unreasonable refusals of their requests”. That right currently does not apply for workers not covered by modern awards.

A national long service leave scheme

“Labor will work with State and Territory governments to achieve a national minimum standard for long service leave to form part of the National Employment Standards. “

Currently States have different schemes with different entitlement levels. The construction industry has long had contributory long service leave schemes (Coinvest in Victoria) and the Victorian Government has recently legislated to have similar schemes apply across some other industries (contract cleaning, security and community services). under Coinvest, leave accrues at the rate of 13 weeks for 10 years service. Elsewhere in Victoria it accrues at the rate of 13 weeks for 15 years service. If there is to be a common scheme, it would have to be a contributory scheme whereby employers pay into a fund from day 1 of employment rather than only incurring a real long service liability when an employee completes 7 years service as is currently the case for most industries and occupations. Long service leave would effectively become a reward for workforce participation rather than “long service”. Coinvest contributions are currently 2.7% of wages paid.

Gender Pay Equity

“Labor will take measurable action to address the gender pay gap and will ensure that the equal remuneration provisions in the Fair Work Act deliver for low paid women. Labor will make gender pay equity an object of the Fair Work Act. Labor will establish a statutory Equal Remuneration Principle, to guide the Fair Work Commissions consideration of whether feminised industries are paid fairly. Labor will establish a new Pay Equity Panel within the Commission led by a new Presidential Member with specific expertise in gender pay equity, and fund the Commission to establish a Pay Equity Unit that will provide expert research support during equal remuneration matters, and more generally. Labor will shine a light on pay inequity, including by updating Parliament each year on Australia’s progress in closing the gender pay gap, by requiring companies with more than 1000 employees to report their gender pay gap, and by prohibiting the use of pay secrecy clauses.”

What we can expect here in the Fair Work Commission is probably a series of work value cases to deliver wage increases for industries with high levels of female employment such as aged care and child care among others. The additional reporting requirement will be another stimulus for businesses to progress gender pay equity in real terms. The prohibition on pay secrecy clauses will probably not have great significance.

Portability of entitlements

“Labor will work with State and Territory Governments, employers and unions to facilitate and establish the portability of entitlements including through industry-wide schemes.”

There is no further detail in the ALP document on this item. There is currently a portable entitlements fund in the construction industry for businesses which have an enterprise agreement, most commonly (albeit not exclusively) with one of the construction unions. Perhaps something like that is what they have in mind. To give you an idea of what that might mean. current rates of contribution to Incolink are:

Weekly Contribution Rates Per Worker

Redundancy Contribution – $80.00
Portable Sick Leave (PSL) Insurance Contribution – $1.54*
Income Protection & Trauma (IPT) – $23.05*

Penalty rate cuts to be reversed

“Labor understands penalty rates compensate workers for working excessive or unsociable hours. Labor will reverse the cuts to Sunday and public holiday penalty rates, and will amend the Fair Work Act so awards cannot be varied to cut workers’ take home pay.”

The penalty rate cuts made by the Fair Work Commission in various retail and hospitality awards will be reversed. There is currently an ability for the Fair Work Commission to make take home pay orders. The way that it phased in cuts to penalty rates so that they were offset against annual wage review increases was designed to minimise the impact of the cuts. It sounds like Labour is proposing to legislate against any reduction in award monetary entitlements.

Greater controls on sham contracting and casualisation

“Labor will strengthen the laws that prohibit sham contracting. Labor will set an objective test in legislation for determining when a worker is a casual.”

We suspect that the sham contracting issue might be addressed by making government, principals in supply chains, head contractors, holding companies and franchisors legally responsible for downstream compliance. It is also likely that there will be greater limitation on the use of casuals where employment is regular and systematic. Perhaps this might take the form that is currently in some modern awards where, on completion of 6 months service, a casual employee must be specifically offered the opportunity to convert to full-time or part-time and the employer must comply with the employee’s election.

A national labour hire regulation scheme

“Labor will protect labour hire workers by establishing a national labour hire licensing scheme to regulate the labour hire industry and ensure that minimum legal standards are met. Labor will also legislate to guarantee that labour hire workers receive the same pay and conditions as directly employed workers doing the same work. Labor will not accept the abuse of fixed term contracts of employment.”

Queensland, South Australia and Victoria already have legislated labour hire regulation schemes so the transition to a federal scheme won’t make a lot of difference assuming it provides much the same in the way of obligations and regulatory powers. The requirement for labour hire workers to be paid the same as directly employed workers will be a disincentive cost wise for businesses to use labour hire. The abuse of fixed term contracts is probably related to cases like Workpac v Skene where a nominally casual employee was engaged on back to back contracts for 6, 12 and 12 months.

Fair Work coverage of gig workers

“Labor is committed to ensuring that the Fair Work Act provides appropriate coverage and protection for all forms of work and that gig economy platforms and other working arrangements are not used to circumvent industrial standards, or to undermine workers’ rights to collectively organise and access their union.”

There have been concerns in the last few years about potential exploitation of workers through gig economy arrangements where people are paid significantly less than what they would earn if paid under modern awards.

Note: this is just a sample of the items noted in the ALP policy document. There is much more in relation to union representation and participation, enterprise bargaining, the abolition of the Australian Building and Construction Commission and the Registered Organisations Commission and many other matters. The full document can be accessed here.

From “minimum wage” to “living wage” means what?

The Australian Labor Party has announced that, if and when elected, it intends to change the Fair Work Commission’s annual wage review process to deliver a “living wage” – what people need to earn to have a reasonable prospect of not living in poverty.

So what does that all mean?

It will mean that the quantum of annual wage increases will go up in the transition period, something that Labor says they will ask the Fair Work Commission to consider. Essentially this question amounts to how long that transition should be, taking into account a number of factors including affordability for businesses.

How long might that be?

We have had a bit of a hint from the ACTU in their claim to this year’s Annual Wage Review – they have asked for 10.7% over two years. This is significant because the history has been that claims have been made on a year by year basis with no forward projection.

There have been a variety of issues such as the transition to modern awards and variations to penalty rates in which the Fair Work Commission has decided to transition changes in stages, generally over three to four years.

No doubt, a Labor Government would want the transition completed during its term of office so that it can say that it delivered on that promise at the next election.

Given all of the above, our guess is that it will be two to three years.

How much will it be?

Last year, the increase was 3.5% and it was 3.3% in the previous year.

In making those decisions, the Fair Work Commission also noted that those on the lowest rungs of award wages remained at risk of poverty.

Logically, if those people are to be given a living wage, the increases will need to be larger than they have been.

The ACTU’s claim of 10.7% over two years is quite modest compared to their claims in recent years.

So what should you expect – probably in the range of 4% to 5% in each of the next two to three years.

Will they flow on to award rates?

Some of the reporting on this issue has claimed that Labor has said that increases resultant from the transition from a minimum wage to a living wage will not automatically flow on to award wages.

We don’t see how that flow on can be avoided for the simple reason that the minimum rate for the lowest classification in many awards is in fact the national minimum wage. You couldn’t have an award safety net that provided less than the national minimum or living wage.

Then to maintain the relativities in classification structures in modern awards, you would have to flow on the increases just as has happened year on year in annual wage reviews.

So we should be expecting that to happen.

Now let’s just wait and see what happens at the election and beyond.

Note: this article does not constitute professional advice and it is simply the personal opinion of the author based on the available evidence and is designed to provide some balanced and reasoned information for people to think about.

Time to review that contract?

Over the past couple of years, there have been lots of changes in employment conditions and related legislation, regulations and modern awards.

Do you have a regular review of your employment documentation to ensure that your employment contracts and HRM policies and procedures are consistent with current workplace relations requirements?

Can you demonstrate as an employer that you are responsibly exercising your duty to provide your people with compliant wages and conditions of employment?

Here are just some of the things that have come in over the past year and you need to cover off:

  • New leave to deal with family and domestic violence provisions in modern awards and National Employment Standards
  • New casual conversion provisions in modern awards
  • Variations to flexible working arrangement obligations in modern awards
  • Variations to penalty rates for evening and weekend work in modern awards in some industries
  • Variations to termination of employment provisions in many modern awards
  • A new Victorian Long Service Leave Act 2018 in November 2018 (and a new Long service Leave Benefits Portability Act 2018 taking effect for some industries in 2019)
  • Federal regulation on employment contract content required in casual employment to avoid double dipping on casual loadings and leave entitlements
  • Every year, there is an adjustment to the national minimum wage, award rates and various other benchmarks and a new Fair Work Information Statement is published.

In this area, we are “Helping PEOPLE in BUSINESS” by keeping abreast of these changes and reviewing employment contracts and HRM policies and procedures to address them.

If you need a hand, please feel free to give us a call on 0438 533 311 or email enquiries@ridgelinehr.com.au

Fresh thinking for old challenges

We recently launched our new Better Workplace Projects and we are getting terrific feedback on the impact like:

“The session was excellent – great buy in from everyone and really positive feedback afterwards.”

“The team and I loved the session and felt very positive and inspired”.

Why are they having this impact?

It’s fresh thinking for old challenges!

We look at what drives people engagement and high performance through a positive psychology lens where the focus is on how we use our strengths to improve rather than just how we fix the problems.

We also reinvent the performance management process to provide a positive and continuous development experience that gets people engaged, aligned and accountable.

In our interactive Better Workplace Project Introductory Workshops, we introduce you to the best practice models that underpin the methodology and have an open conversation with you about how these might be used to address the people and culture challenges and opportunities and deliver high performance in your organisation.

For a small investment of $800 plus GST and a couple of hours of your time, we can help you to get started or step up on that journey to a Better Workplace.

Our Better Workplace Project Introductory Workshops are delivered by our Practice Leader, Peter Maguire, who has consulted to hundreds of organisations on people and culture strategy and practice. Peter has an extraordinary breadth of experience with clients in public, private and NFP sectors and in a wide range of industry and people culture settings. He is also a former Investors in People Assessor and has presented internationally on HRM best practices.

Getting the balance right with casual employment

There has been a lot of activity around casual employment over the past year or so – in the courts, in the Fair Work Commission and in regulation by the Federal Government.

What we aim to do in this article is to dispel some of the myths that create confusion and concern and to offer advice on practical tips for “getting the balance right with casual employment”. In doing that, we do have regard to the recent developments in:

  • The Workpac v Skene case wherein the Court awarded annual leave payments to a nominally casual employee
  • Casual conversion provisions introduced to modern awards
  • Regulation by the federal government to limit the ability for a nominally casual employee to be awarded annual leave payments

Is this really a casual employee?

The classic casual is someone who is required to work on an irregular or limited tenure basis.

It might be as a shop assistant in the lead up to Christmas or in hospitality or security at events like the Australian Open or the Melbourne Grand Prix ie the job only exists for a limited time.

It might be someone who is on a relief roster and is called in as needed or someone whose work hours vary in line with their availability while they are still at school or university.

Or it could be someone who is called upon as projects come online and they come in and perform certain tasks on the project and then stop being employed when they finish the tasks.

All of those are true casuals.

If the role is really a continuing one with reasonably consistent and predictable hours of work and it continues that way month after month, that creates an expectation for the employee that they will have continuing employment. So it isn’t really casual, is it?

That is essentially what the judgement in Workpac v Skene said.  The employee concerned was on back to back contracts and fly in fly out rosters with pre booked accommodation for two and a half years and had no indication that that pattern would not continue indefinitely.

The pros and cons of hiring continuing workers as casuals

The first point here is that, in a competitive labour market, limiting engagement options to casual distinctly limits your ability to find the best staff for your business. People are generally unlikely to leave secure employment to take on a casual job.

There are those who believe that engaging workers as casuals is safer and cheaper when, in reality:

  • the 25% casual loading applying under modern awards is a lot more expensive than the paid leave entitlements a full-time or part-time employee gets
  • you still have to pay the superannuation guarantee
  • casuals accrue long service leave and, where they work in an industry with a portable long service leave fund, are entitled to employer contributions into that fund just as full-time and part-time employees are
  • casuals have the same access to the unfair dismissal, adverse action, industrial dispute, bullying and discrimination and WorkSafe and WorkCover jurisdictions as continuing employees do

Where it is really (or potentially) a continuing employment arrangement, one advantage of engaging someone as casual is that you don’t technically have to provide notice of termination because that is notionally compensated for by the casual loading.

Another might be that, if there is some fluctuation in hours of work, that can be more easily managed if the employee is engaged as a casual.

The question is, when you look at all of the elements set out above, what’s the best option having regard to your overall business needs?

How you hire a casual

One of the main reasons that the judgement in the Workpac v Skene case was to award annual leave entitlements was because the employment contract did not specify the amount of the casual loading ie it didn’t specify how the entitlement to annual leave that a continuing employee would have was set off by the casual loading.

In response, the Federal Government’s regulatory change provides some relief from so called “double dipping” of casual loading and annual leave payments but stipulates that there must be an employment contract that includes that specification.

There is  an obligation to provide a Fair Work Information Statement on first engagement as a casual…..and there is the obligation to provide a casual with a copy of the Casual Conversion clause in any award that was varied last year to provide that right.

So ensure that you do all of this in writing before the employee starts and get professional advice if you aren’t sure on what to include or writing isn’t your strength.

Dealing with casual conversion

Last year, a casual conversion clause was included in most modern awards which did not already have one.

This provides the right for an employee who is engaged regularly and systematically as a casual for 12 months to request conversion to full-time or part-time employment.

The employer has to provide casuals with a copy of the casual conversion clause and, if a request is made, has to respond within 21 days in writing.

If the employer refuses the request which can only be done in quite limited circumstances, the employee has the option of taking the matter to the Fair Work Commission. for conciliation and arbitration. 

Our advice is to be proactive in satisfying the obligation to offer casual conversion by:

  1. Providing any new casual employee with a copy of the casual conversion clause from the relevant award on engagement or in the onboarding process.
  2. When it becomes clear that the employee is going to continue in employment on a regular and systematic basis for a period of at least 12 months, remind them in writing of the opportunity to convert to full-time or part-time, spelling out the options and what they each mean for the employee (eg if I stay casual, this is what I get, and, if I convert to full-time, this is what I get).
  3. Require the employee to nominate in writing which of the options they want to take up.
  4. Confirm in writing the agreed arrangement going forward and implement it in practice.

One other option you could consider is to tell casuals when you engage them that, if they get through their probation period or at some point up to reaching twelve months’ employment, they will be offered full-time or part-time employment as applicable. You would do this if you wanted to secure employees who had proven themselves to be productive and a good fit during their initial period of engagement. 

Note: there are a number of awards which already had casual conversion clauses requiring the employer to offer conversion after six months regular and systematic employment. These include building and construction, manufacturing, quarrying and trades industries among others. Check the clauses in the modern awards applying in your business to be sure.

Dealing with family and domestic violence

Over the past few months, there has been a succession of changes in provisions of modern awards and the Fair Work Act relative to family and domestic violence. In this article, our aim is to provide you with a sense of how they come together and what that means in terms of your legal obligations and how to manage those.

Early this year, the Australian Institute of Health and Welfare (AIHW) released a report “Family, domestic and sexual violence in Australia 2018” which told us that:

 

Family and domestic violence is the most significant social and welfare issue that we have in Australia and we can all do something about that.

Introduction of “Leave to deal with family and domestic violence” in modern awards 

The significance of this issue is such that the Fair Work Commission deemed it necessary to insert “Leave to deal with family and domestic violence” provisions in all modern awards. In essence, this provides an entitlement of up to 5 days of unpaid leave per annum for employees regardless of their employment status ie whether they are full-time, part-time or casual, they are entitled to the full 5 days each year.

An employee may take unpaid leave to deal with family and domestic violence if the employee:

(a) is experiencing family and domestic violence; and

(b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.

That leave entitlement for award-covered employees came into effect on 1 August 2018.

Extension of entitlement to non-award employees

On 12 December 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 took effect and essentially extended the modern award entitlement effective from that date.

So effectively that means that all employees now have access to this entitlement as follows:

 Entitlement to unpaid leave

An employee is entitled to 5 days’ unpaid leave to deal with family and domestic violence, as follows:

(a) the leave is available in full at the start of each 12 month period of the employee’s employment; and

(b) the leave does not accumulate from year to year; and

(c) is available in full to part-time and casual employees.

So our take on that in implementation is:
  1. For existing award-covered employees and those who are subject to an agreement that incorporates the award, the entitlement takes effect from 1 August 2018
  2. For award-covered employees and those who are subject to an agreement that incorporates the award and who commenced employment after 1 August 2018, the entitlement takes effect from their date of commencement.
  3. For existing non-award employees and those who are subject to an enterprise agreement that doesn’t incorporate an award, the entitlement takes effect from 1 December 2018.
  4. For  non-award employees and those who are subject to an enterprise agreement that doesn’t incorporate an award and who commenced employment after 1 December 2018, the entitlement takes effect from  their date of commencement.
  5. All employee have the entitlement to 5 days per annum regardless of their employment status ie whether full-time, part-time or casual.

Interaction with new rules on Flexible Working Arrangements

We recently reported on these new rules.

Two of the categories of workers who have entitlements under these rules are:

  • employees experiencing family or domestic violence; and
  • employees caring for family members experiencing family or domestic violence.

Accordingly, we can expect that eligible employees like these might well seek both leave to deal with family and domestic violence and flexible working arrangements. Alternatively, because the leave is unpaid, people might be more likely to seek flexibility in working arrangements that allow them to maintain their income while varying their hours of work to meet their personal or family needs.

If these matters cannot be resolved at workplace level, they may well end up in the Fair Work Commission via the disputes resolution clause in a modern award or enterprise agreement.

Additionally, while these rules on flexible working arrangements technically apply only to award covered employees, it should be expected that they would be regarded as a procedural and fairness benchmark for dealing with requests from non-award employees.

Care should be taken to ensure that any workplace policies on any of the above are reviewed to reflect current minimum standards and benchmarks.

We will publish an article soon on what employers can do to genuinely and positively influence the incidence and impact of family and domestic violence and why you should be doing that. Stay tuned!

Oddities in our workplace relations system – #2 classification structures

Do you find that the classification structures in the modern awards  that apply to your business don’t make sense or don’t fit your business operations very well or, in some cases, are just not easy to understand?

In many cases, you would be absolutely right to think so because they are, in the main, flawed in design.

Back in the late 1980’s and early 1990’s, unions and employer organisations went through prolonged negotiations on what was then called development of skills-based classification structures.

In reality, in most industries, it was nothing of the sort – it was an industrial relations exercise which really amounted to little more than a negotiation of wage rates for different jobs and each industry did it differently.

Some awards just have AQF qualification levels as the basis for classifying people with little or no detail on job functions to be performed at each level. That is not very helpful especially when most of the workers in a business don’t have any of those qualifications but perform distinctly different jobs with greater or lesser skill requirements.

Others have classifications increasing on the basis of the size of the plant being operated without any reference to the complexity of or skills involved in performance of particular tasks.

Few modern awards consider the benefits and value of multi-skilling.

None take account of some fairly significant developments that have occurred since the structures were first established – like the world wide web, social media and GPS technologies. Some still refer to “typing” as distinct from “word processing” as a competency.

In 2010, we saw the introduction of so called “modern awards” which consolidated thousands of awards down to 122 modern awards but did little to improve the classification structures and clearly failed to recognise the technological changes that have affected the way we work.

Currently, we are nearing the end of the fifth year of our first four yearly review of modern awards and classification structures appear not to be even on the agenda.

What is clear is that we don’t have “modern awards” – and we are unlikely to in the foreseeable future.

If you want a classification structure that works for your business, you can have one provided you are paying sufficiently above award and your people are better off overall than they would be if you strictly applied award conditions.

If you would like to explore how to do that, give us a call on 0438 533 311 or email enquiries@ridgelinehr.com.au.

 

New rules on flexible working arrangements are here

A full bench of the Fair Work Commission has ordered the variation of all modern awards to include a “Requests for flexible working arrangements” clause with effect from 1 December 2018.

These requests have to date been regulated under National Employment Standards which essentially provide the ability for eligible employees with 12 months’ continuous service to apply to vary their working arrangements to meet various carer responsibilities. This includes casual employees who have been engaged regularly and systematically for 12 months or more and have a reasonable expectation of continuing employment.

Eligible employees are defined in s 65(1A) of the Fair Work Act 2009 as:

  • employees who are parents and carers of children;
  • employees who are carers;
  • employees with disabilities;
  • employees aged 55 or older;
  • employees experiencing family or domestic violence; and
  • employees caring for family members experiencing family or domestic violence.

Employers may only refuse such requests on reasonable business grounds which include the likes of:

  • the new working arrangements requested by the employee would be too costly for the employer
  • there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee
  • it would be impractical to change the working arrangements of other employees, or recruit new
    employees, to accommodate the new working arrangements requested by the employee
  • the new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity
  • the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

Full details of the existing NES provisions can be accessed in this fact sheet from the Fair Work Onbudsman: Requests-for-flexible-working-arrangements

The changes being implemented under the new decision by the FWC are essentially aimed at fleshing out the obligations of employers in dealing with requests for flexible working arrangement and providing an avenue for resolving disputes under the dispute resolution provisions in all modern awards.

Here is the model clause as it now appears in the Clerks – Private Sector Award 2010:

28A. Requests for flexible working arrangements

[28A inserted by PR701393 ppc 01Dec18]

28A.1 Employee may request change in working arrangements

Clause 28A applies where an employee has made a request for a change in working arrangements under s.65 of the Act.

Note 1: Section 65 of the Act provides for certain employees to request a change in their working arrangements because of their circumstances, as set out in s.65(1A).

Note 2: An employer may only refuse a s.65 request for a change in working arrangements on ‘reasonable business grounds’ (see s.65(5) and (5A)).

Note 3: Clause 28A is an addition to s.65.

28A.2 Responding to the request

Before responding to a request made under s.65, the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:

(a) the needs of the employee arising from their circumstances;

(b) the consequences for the employee if changes in working arrangements are not made; and

(c) any reasonable business grounds for refusing the request.

Note 1: The employer must give the employee a written response to an employee’s s.65 request within 21 days, stating whether the employer grants or refuses the request (s.65(4)).

Note 2: If the employer refuses the request, the written response must include details of the reasons for the refusal (s.65(6)).

28A.3 What the written response must include if the employer refuses the request

Clause 28A.3 applies if the employer refuses the request and has not reached an agreement with the employee under clause 28A.2.

(a) The written response under s.65(4) must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply.

(b) If the employer and employee could not agree on a change in working arrangements under clause 28A.2, the written response under s.65(4) must:

(i) state whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and

(ii) if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.

28A.4 What the written response must include if a different change in working arrangements is agreed

If the employer and the employee reached an agreement under clause 28A.2 on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

28A.5 Dispute resolution

Disputes about whether the employer has discussed the request with the employee and responded to the request in the way required by clause 28A, can be dealt with under clause 9Dispute resolution.

If you need assistance in dealing with a request for flexible working arrangements or in setting up processes for dealing with them, contact us at enquiries@ridgelinehr.com.au or on 0438 533 311.

 

$1 million in wage underpayments in horticulture

The Fair Work Ombudsman has just released a report into investigations that it has been conducting into workplace relations compliance in the “Harvest Trail” or horticulture industry. The particulars are:

  • 836 investigations, involving 444 growers and 194 labour hire contractors across all states in Australia and the Northern Territory.
  • $1,022,698 in underpaid wages and entitlements was recovered for 2,503 employees
  • More than 50% of the businesses investigated were found to have breached workplace laws
  • 150 formal cautions to employers were issued along with 132 infringement notices and 13 compliance notices and 7 Enforceable Undertakings were entered into.
  • 8 employers have been prosecuted for serious alleged breaches with four actions involving labour hire contractors. Of these, 6 matters have now been finalised resulting in over $500,000 in penalties.
  • 70% of employers employed people working in  Australia on visas.

One of the questions that the Fair Work Ombudsman is now considering is that of the effect of consumer buying behaviour on compliance levels in the industry. Further research and consultation with stakeholders is planned on this subject.

This is another area where the procurement behaviour and practices of major retailers of fresh produce must come under review if such initiatives are to have any meaningful impact on producer compliance and fair payment of horticultural workers.

FWC increases casual penalty rates in retail award

The Fair Work Commission has varied the penalty rates payable to casual employees in the retail industry for work performed on Saturdays and after 6.00 pm on weekdays.

The variations are being introduced in phases with the first increases taking effect from 1 November 2018.

The increases for weekdays after 6.00 pm are:

(i) From 1 November 2018 to 30 September 2019

A penalty payment of an additional 30% loading will apply for ordinary hours worked by a casual employee after 6.00 pm (inclusive of the casual loading).

(ii) From 1 October 2019 to 29 February 2020

A penalty payment of an additional 35% loading will apply for ordinary hours worked by a casual employee after 6.00 pm (inclusive of the casual loading).

(iii) From 1 March 2020 to 30 September 2020

A penalty payment of an additional 40% loading will apply for ordinary hours worked by a casual employee after 6.00 pm (inclusive of the casual loading).

(iv) From 1 October 2020 to 28 February 2021

A penalty payment of an additional 45% loading will apply for ordinary hours worked by a casual employee after 6.00 pm (inclusive of the casual loading).

(v) From 1 March 2021

A penalty payment of an additional 50% loading will apply for ordinary hours worked by a casual employee after 6.00 pm (inclusive of the casual loading).

The increases for Saturdays are:

(i) From 1 November 2018 to 30 September 2019

A penalty payment of an additional 40% loading will apply for ordinary hours worked by a casual employee on a Saturday (inclusive of the casual loading).

(ii) From 1 October 2019 to 29 February 2020

A penalty payment of an additional 45% loading will apply for ordinary hours worked by a casual employee on a Saturday (inclusive of the casual loading).

(iii) From 1 March 2020

A penalty payment of an additional 50% loading will apply for ordinary hours worked by a casual employee on a Saturday (inclusive of the casual loading).

For further information, go to the General Retail Industry Award 2010 and see Clause 29.4 Penalty Payments.

Or, if you need a hand, give us a call on 0438 533 311.