All modern awards which do not already have a casual conversion clause will have one from 1 October 2018.
This means that employees who are engaged as casuals on a regular and systematic basis for 12 months can apply to convert to full-time and part-time employment.
An employer can refuse such a request on reasonable business grounds but these grounds are quite limited. In essence, if the employee would continue in employment beyond 12 months on much the same basis as a casual without any expectation of that arrangement changing, it would be difficult to reasonably decline a request for conversion.
This is a particular challenge for labour hire firms who typically engage most of their hired out workforce as casuals.
That challenge has been heightened in the minds of many by a recent decision of the Full Bench of the Federal Court in the case Workpac v Skene. In that case, the Court decided that a labour hire casual who worked regular and predictable hours was a permanent employee at law, and was therefore entitled to paid annual leave, and other permanent employment rights.
This was a fly in fly out worker who was rostered for 12 months and had been provided with forward booked accommodation so he had a reasonable expectation of continuing employment.
In another case in South Australia (Apostolides v Mantina Earthmovers & Constructions Pty Ltd) earlier this year, the employee who had been engaged as a casual for 15 years but worked full-time over that period was also found to be a permanent employee and was awarded annual leave for the entire period of employment.
Our advice to businesses is that, rather than trying to avoid the issue, be proactive about it and here are some tips:
- Be realistic about the nature of the engagement – if it is going to be a regular and systematic arrangement where the employee works the same hours week in and week out ongoing, it isn’t really casual employment.
- Don’t be frightened by the myth that you want to keep employees as casuals to avoid unfair dismissal. The truth is it doesn’t matter whether an employee is engaged on a permanent or casual basis as they can both claim unfair dismissal if engaged for 12 months for businesses with less than 15 employees or 6 months for businesses with 15 or more employees.
- Have written employment contracts for all employees and ensure that they clearly state the nature of the engagement. Also ensure that you comply with any award provisions that stipulate information to be provided to casual employees on engagement.
- Have a system for dealing with the casual conversion election process and lead it to get each casual employee to make the decision, clearly spelling out what the differences would be if the employee converts to full-time/part-time employment or elects to remain casual. Many will decide to stay casual to get the 25 % casual loading.
At Ridgeline HR, we have put quite a bit of thought into ways in which we can help labour hire businesses and any others with significant levels of casual employment to minimise the risks and treat their workforces ethically by ensuring they are informed about their rights and giving them fair choices.
Contact us using the form below if you would like us to discuss ways in which we might be of assistance with this issue.
The changes keep coming in the field of workplace relations:
Annual Wage Review
There are a number of changes taking effect from 1 July 2018 as a result of the decision in the 2017-2018 Annual Wage Review as follows:
- The national minimum wage and award rates have been increased by 3.5%.
- The filing fee for dismissals, general protections and anti-bullying applications made to the Fair Work Commission increased to $71.90.
- The high income threshold in unfair dismissal cases increased to $145,400 and the compensation cap to $72,700.
The next wave of Sunday penalty rate reductions flowing from last year’s penalty rates decision also take effect from 1 July 2018 as follows:
Fast Food Industry Award 2010
- Level 1, full-time and part-time employees: 145% > 135%
- Level 1, casual employees (including casual loading): 170% > 160%
- Other levels: no change
Hospitality Industry (General) Award 2010
- Full-time and part-time employees: 170% > 160%
- Casual employees stay at 175% including casual loading
General Retail Industry Award 2010
- Full-time and part-time employees: 195% > 180%
- Casual employees (inclusive of casual loading): 195% > 185%
Pharmacy Industry Award 2010
- Full-time and part-time employees: 195% > 180%
- Casual employees (inclusive of casual loading): 220% > 205%
Extension of ATO’s contractor reportable payments scheme
On 9 May 2017 the Government announced that from 1 July 2018 businesses that supply courier or cleaning services will need to report payments made to contractors if the payments are for courier or cleaning services.
These payments must be reported to the ATO each year using the Taxable payments annual report.
Businesses in the building and construction industry have been subject to this requirement for a number of years.
Labour hire licensing
The Victorian Labour Hire Licensing Act has been passed by Parliament and is expected to come into effect by no later than 1 November 2018.
This means that labour hire firms will not be able to legally operate in Victoria unless they have a licence having passed a fit and proper person test and satisfied a number of other requirements.
Similar legislation is already operating in Queensland and in the process of implementation in South Australia.
Long service leave
The Long Service Leave Act 2018 makes a number of changes to long service leave entitlements in Victoria. These include:
- Employee access to long service leave after 7 years of eligible service (down from 10 years).
- The existing entitlement to payment in lieu on termination of employment after 7 years’ eligible service remains.
- Unpaid parental leave will count as service (whereas currently it does not count but doesn’t break service).
- If an employee resigns and is reemployed within 12 weeks, service will be deemed to be continuous (currently that only happens if the employee is dismissed and reengaged within 12 weeks).
- Long service leave service will transfer from one employer to another where there is a transfer of tangible and/or intangible assets and the employee performs duties in connection with those assets (currently only tangible assets matter).
- The method of calculating entitlements where there have been changes in an employee’s working hours is changing.
- The ability of an employer to apply for an exemption will be abolished.
- Penalties for non-compliance will go from being civil penalties to being criminal penalties.
This legislation is expected to come into operation on or about 1 November 2018.
Portable long service leave in some industries
There is already a statutory portable long service leave scheme in the construction industry – see Coinvest.
The Victorian Long Service Benefits Portability Bill 2018 (Bill) will, if passed, extend portable long service leave benefits to employees in the the community services, contract cleaning and security industries.
In essence, this means that a worker in those industries will be eligible for long service leave once they have 7 years’ industry service regardless of how many employers that might be with.
Employers will have to contribute to a fund run by a statutory authority which will manage workers’ entitlements.
Domestic Violence Leave
The Fair Work Commission has approved an award entitlement to unpaid domestic violence leave of up to 5 days per annum as part of the 4 year review of modern awards. More to come on this regarding when it will take effect but it should be some time soon.
The Fair Work Commission also made a decision on a model clause for conversion of casuals to full-time or part-time employees in 2017 but it is yet to be flowed on to awards. Again that is something that should happen soon.
There is a lot that has changed and a lot more coming employers’ way. We will be issuing regular updates on new developments so please subscribe if you want to be kept informed. Scroll down to the right bottom of the page to do that.
When: 6.30 pm for 7.00 pm, Tuesday 17 July 2018
Where: Karralyka Centre, Mines Road, Ringwood East
Cost: $85 per head or $800 for a table of 10
Two course dinner plus drinks at bar prices
Bookings at: www.footmen.org.au
This is a family event full of fun and inspiration delivered by a trio of wonderful women.
Libbi Gorr is one of Australia’s finest live hosts and broadcasters. Warm, witty and smart, she has an exceptional ability to entertain, inspire, challenge and motivate, bringing a unique blend of journalism and humorous observation to all her work.
Sandi Givens is MC for the event, as we know her warm and genuine nature is evident in all her work as an MC, Conference Speaker and Workshop Facilitator.
You will also hear about the inspiring journey that Mel Spencer has undertaken with “Different Journeys”. This is a charitable endeavour to socially support young people on the autism spectrum and it is making a real difference.
Note: The Footmen Foundation is Ridgeline HR’s designated charity.
Smart employers understand that anything that they are able to do affordably to help their employees handle all of the pressures which go with living in a modern world has spin off benefits in employee wellbeing and productivity. One of those significant pressures is financial insecurity.
This article provided courtesy of our friends at FMD Financial tells us why and what you can do about it.
Research shows 46% of employees worry about their finances and that worry can stop them achieving at work and feeling positive about their job. It’s a statistic that is motivating employers to take action. Improving financial wellbeing among staff was the top employer initiative for just 30% of companies in 2014. That figure has now jumped to 56% according to AON Hewitt’s 2016 Hot Topics in Retirement and Financial Wellbeing research.
Companies like RAA in South Australia are leading the charge. Senior Manager, Pay and Benefits, Tatjana Bergen, says providing employees with access to qualified financial advisers who build an ongoing relationship with the organisation and its employees is an important part of their commitment to supporting the financial wellbeing of staff. “FMD adviser, Dan Arcadiou, is regularly on site to meet with employees and FMD have developed a dedicated online survey our staff can access via the Intranet to get a better understanding of their financial situation at any time.”
It seems there is both a bottom line benefit and a moral imperative to boost financial wellbeing among employees. Eighty-five per cent of Australian employers say they’re focused on financial wellbeing because it’s the right thing to do, but almost as many (80%) are motivated by the desire to improve employee engagement. Yet barriers to seeking financial advice remain. Employers may not know a good financial adviser or how to evaluate one. And recent scandals among big bank advisers have understandably put many business and HR leaders off taking that first step. Experts agree people need to be empowered to take control of their financial wellbeing just as they do with maintaining a healthy lifestyle through a good diet and exercise. Fitness programs, fruit boxes and gym passes have long been a part of Australian workplaces, so why not high quality financial advice tools and qualified financial advisers?
As professional work continues to become more flexible but also more uncertain, good financial planning is becoming crucial to the growing contract workforce. Contingent workforce specialists Entity Solutionshave partnered with FMD to offer their workforce access to quality advice to help them plan for the future. CEO Neil Merola says “It’s key to ensure every independent professional has the opportunity to protect their lifestyle and where possible, maximise their income.” With evidence suggesting many professionals are unprepared for maintaining their lifestyle in an uncertain job market, now is the time to help employees take greater control of thier financial futures.
Talk to us about running an advice clinic at your workplace to give employees access to a reputable financial health check. Or if you have questions about your financial wellbeing, complete our quick and easy online financial health checkor book a free 1 hour consultationwith a qualified adviser.
Check them out at https://www.fmd.com.au
Ridgeline HR Practice Leader, Peter Maguire, will be visiting Warrnambool on 19 April 2018 to provide local members and guests of the Civil Contractors Federation with an update on important workplace relations changes and the Code for Tendering and Performance of Building Work 2016 and some tips on how to get better people engagement and performance.
Further details and booking arrangements are in the flyer below.
I was recently asked whether I considered myself a coach, a mentor or a consultant or a contractor.
That made me think about exactly what I do when I work with a client and I reached the conclusion that, in point of fact, depending on the client’s needs and capabilities, at a given point in time, I can be any one of those. For example:
- I am a coach when I am introducing the client to good people management practice and teaching them how to do that.
- I am a mentor when I am listening to the client talk about their aspirations and challenges and I am providing feedback and guidance on how to deal with them effectively.
- I am a consultant when I am using my diagnostic and analytical capabilities to understand the issues and my creative talents to design bespoke solutions.
- I am a contractor when the client just needs me to do something for them like servicing a function for a period of time or implementing pre-designed policies and processes
Added to that:
- I am an educator when I run training sessions.
- I am a reporter when I let people know about developments in the world of compliance and HR generally.
- I am an influencer when I am writing blogs or presenting on good people practice.
- I am a networker when I connect people to develop relationships that can add value (because I am not an expert in everything).
So that’s 8 hats that I might wear in different situations and I must always be ready to swap hats when it is apparent that the client needs a different me to the one they have been using. That adaptability has been a cornerstone of our successful business which is celebrating its 18th birthday.
Happy birthday, Ridgeline HR!
Queensland and South Australia now have new labour hire licensing laws and Victoria has a like bill currently before the Parliament.
Features of the Queensland legislation include:
- labour hire providers to be licensed to operate in Queensland
- persons who engage labour hire providers to only engage licensed providers
- labour hire licensees to satisfy fit and proper person test to establish that they are capable of providing labour hire services in compliance with all relevant laws
- the labour hire business is financially viable.
- licensees must provide six monthly reports on labour hire and associated activities including accommodation, and in relation to compliance with relevant laws
- strong penalties for breach of obligations
- establishing a labour hire licensing compliance unit with a field services inspectorate with responsibility for awareness, monitoring and enforcement functions.
There is also a push for complementary federal legislation.
Any business operating in the labour hire sector needs to ensure that they are compliant with all of their legal obligations as an employer and that they satisfy the fit and proper person test to be eligible for licensing.
Any business that uses labour hire services needs to verify the compliance of their labour hire provider(s) and that they are appropriately licensed in accordance with the legislation.
Ridgeline HR can assist both labour hire businesses and users of labour hire services with workplace relations compliance assessments.
For the first time, 4 business groups and a charity in the Eastern Suburbs of Melbourne collaborated to run a free joint event for their members and other local business people.
People from Croydon Chamber of Commerce and Industry, Ringwood Chamber of Commerce and Industry, Whitehorse Business Group, Manningham Business Network and the Footmen Foundation got together to learn more about:
- Employer obligations, National Employment Standards and modern awards
- Fair Work information and other resources and tools that are freely available and how to access them
- How to avoid and manage unfair dismissal claims and
- What the new Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 means for employers, franchisors and holding companies.
Chris Zidak from Maroondah City Council also gave an entertaining and informative presentation on Council’s Business and Development activities,achievements and plans.
Daryl Stephens from the Footmen Foundation finished off the night with an engaging dissertation on the history of the Footmen Foundation and the work that it does in helping community groups and individuals with unfunded special needs in Maroondah and surrounding areas.
Ridgeline’s HR’s Peter Maguire and Chris White and close associate, Emma Watt, presented the briefing closing off with a few questions for the audience and prizes for correct answers. This was presented as part of Ridgeline HR’s commitment to partner in improving wellbeing in the Maroondah community by helping small business owners with access to important information and useful tools.
The Fair Work and All That Stuff presentation slides can be downloaded below and include a number of links through which you can access a variety of information and tools featured in the presentation.
Special thanks go to:
- Maroondah City Council for providing the venue at Realm free
- Big Mates Pizza who provided pizzas free for all to share
- The leaders of each of the organisations involved for their collaborative contribution.
In recent posts, we reported on the rise in Fair Work Ombudsman activity in the area of accessorial liability and the impending enactment of the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017.
That legislation has been passed by the Federal parliament and is taking effect in two stages.
Most of the provisions are operative from 15 September 2017 and the provisions relating to franchisors and holding companies come into operation 6 weeks later on 27 October 2017.
This legislation has significant effects in that it:
- Introduces a higher scale of penalties for ‘serious contraventions’ of prescribed workplace laws up from $63,000 to $630,000 per offence for a corporation and from $12,600 to $126,000 per offence for an individual
- Increases penalties for record-keeping failures.
- Makes franchisors and holding companies responsible for underpayments by their franchisees or subsidiaries where they knew or ought reasonably to have known of the contraventions and failed to take reasonable steps to prevent them.
- Expressly prohibits employers from unreasonably requiring their employees to make payments (e.g. demanding a proportion of their wages be paid back in cash).
- Strengthens the evidence-gathering powers of the Fair Work Ombudsman to ensure that the exploitation of vulnerable workers can be effectively investigated.
- Introduces a reverse onus of proof where an employer has not met their record keeping obligations and an underpayment of wages claim is made.
While a focus in the legislation is to get franchisors and parent companies to responsibly supervise and ensure compliance by their franchisees and subsidiaries, any business which sub-contracts work should ensure that they have appropriate compliance systems in place not just on paper but in practice too.
Ridgeline HR can assist by undertaking independent workplace relations compliance audits of franchisees, agencies, subsidiaries, sub-contractors and supply chain partners. These audits cover compliance with:
- National Employment Standards
- Modern Awards
- Record Keeping and Payslip Requirements
- Superannuation Guarantee
- Avoidance of Sham Contracting
For construction businesses needing to be compliant with the Code for the Tendering and Performance of Building Work 2016 so as to be able to tender on and perform Commonwealth-funded work, that can also be included in the audit process.
Enquiries can be directed to Peter Maguire on 0438 533 311 or at email@example.com