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.

New termination of employment provisions in awards

The Fair Work Commission has varied the majority of modern awards (89 of them) in respect of their termination of employment provisions.

Under these awards, from 1 November 2018:

  • If an employee who is at least 18 years old does not give the period of notice required, then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee. By extension, that means that no deduction can be made for an employee who is less than 18 years of age.
  • The employer must pay an employee their final entitlements no later than 7 days after the day on which the employee’s employment terminates.

Please note that many other awards do not have these provisions.

A number of awards provide that “If an employee fails to give the required notice the employer may withhold from any monies due to the employee on termination under this award or the NES, an amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause less any period of notice actually given by the employee.” That is the amount that can be deducted is not limited to one week’s wages.

Then there are some awards that have their own peculiar provisions such as the Real Estate Industry Award 2010 under which an employee is required to give just one week’s notice of termination of employment and the employer can make a deduction from final pay in relation to any part of that week not provided or worked.

If you are not sure of which award covers your employee(s) or what the termination of employment provisions are for your people, check out the list of modern awards here or give us a call on 0438 533 311.

Oddities in our workplace relations system – #1 redundancy

Did you know that an employee of a business with 15 or more employees and with 10 or more years’ service gets:

  • 4 weeks less redundancy pay than an employee with 9 years’ service
  • 2 weeks less than an employee with 8 years’ service and
  • 1 week less than an employee with 7 years’ service?

How can that be?

When the redundancy standard was increased in the Termination Change and Redundancy Case, the Australian Industrial Relations Commission accepted employer submissions that it should be reduced because employees got long service leave after 10 years.  So the 16 week entitlement after 9 years’ service reduced to 12 weeks’ after 10 years’ service.

Is that still the case?

One thing did change and that was that shortly after that decision was made, the Victorian Government reduced the qualifying period for payment in lieu of long service leave to 7 years.

Was the redundancy standard adjusted for that change?

No – noone has done anything about that.

Should they have?

Absolutely but it requires amendment to the Fair Work Act 2009 so the Commonwealth Government has to do it.

How do we deal with it?

We tell our clients that that is not fair and to just give everyone who has 9 or more years’ service the 16 week entitlement.

Here is the Fair Work Ombudsman’s Fact Sheet on Termination and Redundancy: Notice-of-termination-and-redundancy-pay

 

Long service leave changes from 1 November 2018

The Victorian Long Service Leave Act 2018 (LSL Act 2018) comes into operation on 1 November 2018. The key changes as noted in an earlier post are:

  • Employee access to long service leave after 7 years of eligible service (down from 10 years). Note: 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.
  • Employees will be able to take long service leave for as little as one day’s absence.
  • 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.

More detailed information including a number of fact sheets can be accessed at the Business Victoria Long Service Leave webpages.

This legislation applies to all Victorian employees excepting for construction workers who are covered by the portable Long Service Leave scheme, Coinvest or who have more beneficial long service leave arrangement in place under an award or an enterprise agreement.

Portable long service leave coming for contract cleaning, security and community services sectors 

The Long Service Benefits Portability Act 2018 has been passed by Parliament and will come into operation by 1 July 2019.

For the first time, workers in the contract cleaning, security and community services sectors will be able to access long service entitlements, even if their employer changes.

Businesses who employ workers who perform work covered by the scheme will be required to register and provide a quarterly report to a new Portable Long Service Benefits Authority. The scheme will be funded by a levy to be paid by employers. The rate of the levy will be set by the Authority’s Governing Board once it is appointed.

Workers in the security and contract cleaning industries will be entitled to leave based on 1/60th of their accrued service, after seven years continuous service. Workers in the community services sector will receive a payment instead of leave.

As this is a portable scheme, workers will be able to move from employer-to-employer without losing their accrued entitlement, provided they stay within the industry. As workers in this scheme are still entitled to accrue service for the purposes of the Long Service Leave Act, the Portability Act has arrangements to prevent double-dipping – that is, a worker cannot benefit from entitlements under two schemes for the same period worked.

Source: Business Victoria

The numbers say it all – get workplace relations compliant

The Fair Work Ombudsman has tabled their 2017-2018 Annual Report in Parliament. If anyone had any doubt about the impact that the FWO is having on those who would try to avoid compliance, the numbers say it all – for the 2017-18 year:

  1. The FWO helped workers and businesses resolve more than 28,000 workplace disputes, a five per cent increase on the previous year.
  2. The agency assisted over 376,000 callers
  3. There was a record 16.7 million visits to www.fairwork.gov.au.
  4. Anonymous reports increased by 44 per cent to over 15,000.
  5. Fair Work Inspectors completed more than 4,500 workplace audits.
  6. They recovered close to $30 million for workers.
  7. There was also a 49 per cent increase in penalties handed down by the courts in 2017-18 to $7.2 million.
  8. The highest penalty under the Fair Work Act was $660,020 in a matter involving a migrant worker.

So anyone who is in business (or thinking about going into business) and doesn’t know what their obligations are, find out and comply with them.

Read more from the FWO here. 

Or give us a call on 0438 533 311 for a free introductory consultation on what you need to do.

 

What are you doing for mental health month?

October is Mental Health Month and World Mental Health Day is on October 10, a day for global mental health education, awareness and advocacy.

This a great opportunity for businesses to get proactive in dealing with a major challenge for Australian society and every business – the impact of mental illness.

A recent Pricewaterhouse Coopers report identified that ignoring it costs Australian businesses around $10.9 billion a year in lost productivity. And with poor mental health likely to affect one in five employees, by taking action the benefits can be profound.

PwC discovered that on average, across all businesses, for every one dollar invested in mental health initiatives, there’s a return of $2.30 and reports showed that in many industries the returns were even greater. 

Source: Heads Up

So what that says is that working on improving people’s mental wellbeing at work will generate great returns for business owners. That means that looking after your people is not just the right thing to do but also the smart thing to do.

So what are you going to do to get started on the mental health improvement journey?

There are lots of resources at Heads Up, the website of the Mentally Healthy Workplace Alliance.

Mental Health Australia which is leading the campaign for World Mental Health Day also has useful information and materials to promote mental health in the workplace – see https://1010.org.au/.

This is an area where Ridgeline HR is committed to making a difference through our Better Workplace Projects, a key component of which is creating mentally healthy work environments.

This post is one way that we can help to raise awareness of the issue and encourage employers to be proactive and tackle mental health in your workplaces.

Join us by sharing this and other promotions of mental health to help that happen and make a difference.   Pictured: Croydon Chamber of Commerce  AGM giving a thumbs up for workplace wellbeing.

 

 

 

 

New rules on flexible working arrangements coming

On 25 September 2018, a full bench of the Fair Work Commission issued a decision to insert a “Requests for flexible working arrangements” clause in all modern awards.

These requests have to date been regulated under National Employment Standards which essentially provide the ability for 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.

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 in 3 areas:

  1. The eligibility period will be reduced from 12 months to 6 months continuous service.
  2. Employers will have additional obligations in that there will be a specific duty to consult with the employee about the request and any potential refusal of it and, if they refuse it, they will have to provide more detailed on the grounds for that decision.
  3. If the employee believes that the employer has not complied with the requirements to consult or respond to a request in writing within 21 days, an application can be made to the Fair Work Commission under award dispute resolution provisions. However, the FWC may only deal with the question of whether the employer had reasonable business grounds to refuse a request if the employer and employee have agreed in writing to the Commission dealing with the matter.

To some degree, other than the reduction in the eligibility period, the decision really just provides an avenue within the Fair Work system for employees to seek assistance if they believe they have been unfairly dealt with by their employer as well as providing greater clarity about the detail of information on the employer’s decision-making that must be formally provided where a request is refused.

On the other hand, one complication that this decision creates is that there will be different eligibility periods and rules for award-covered versus award-free employees.

Finally, the decision to reduce the eligibility period may have significance beyond this decision. Is 6 months continuing employment going to be the new benchmark before employees qualify for other entitlements? Will that flow on to parental leave for example? In time, will we see the new casual conversion provisions reduce from 12 months to 6 months service (which is where many pre-existing award casual conversion clauses already sit)?

Watch this space.

 

 

 

What are our “Better Workplace Projects”?

In essence, they are whatever you need them to be. Here are some different elements of better workplaces that we might include in a “Better Workplace Project” depending on client needs, preferences and budget:

  • A Respectful Workplace: implementing a values-based approach to behavioural standards that are to be applied across the business and addressing legal requirements relative to bullying, harassment, discrimination, gender inequality and related unsatisfactory behaviours.
  • An Aligned Workplace: providing clear direction to employees on organizational goals and structures and what they translate into in terms of the roles and performance expectations of teams and individual employees.
  • A Safe and Healthy Workplace: developing and implementing a risk management and employee engagement strategy that helps to improve the wellbeing of people in the areas of physical, emotional and mental health as well as addressing legislative requirements in relation to workplace health and safety.
  • A Connected Workplace: developing and implementing consultation and communication processes that ensure effective employee voice and timely and constructive communications between people across the business as well as better informing management decision making.
  • An Engaging Workplace: developing and implementing performance feedback and development processes that are timely, balanced and friendly whereby each employee has a performance and development plan of their own. Managers meet with them regularly to review progress against the plan, provide positive feedback on achievements and guidance and encouragement with areas for development.
  • A Sustainable Workplace: equipping and coaching leaders to maintain the impetus focused on constantly reviewing workplace policies and practices and identifying and harnessing opportunities for continuous improvement.

If you are interested in making your business a “Better Workplace”, give us a call on 0438 533 311 to see how we can help.

Make every day RUOK Day

Today is the official RUOK day, that day once a year when the spotlight is shone on mental health and what we can all do to support those doing it tough on the mental health front.

Those 4 simple steps can make such a difference:

  1. Ask RUOK?
  2. Listen
  3. Encourage action
  4. Check in

And please here are 4 things that you don’t want to do:

  1. Don’t tell me to cheer up.
  2. Don’t be judgmental, telling me what my problem is.
  3. Don’t be instructional, telling me what I must do.
  4. Don’t give up on me – just being there helps.

20% of people have mental health challenges so the odds are that 1 in 5 people in your workplace do too.

In our Better Workplace Projects, we help employers and employees to develop high performing, caring and supportive workplaces where peoples’ wellbeing is a priority because it is both the morally right and the commercially smart thing to do.

We want you to “Make every day RUOK Day” but also to reduce the incidence of mental health problems by having a great place to work. Don’t let your workplace be a contributing factor to Australia’s mental health challenge.

There are lots of resources available at RUOK and Heads UP.

These are some of the tools that we use in our Better Workplace Projects.

Give me a call on 0438 533 311 if you would like to learn more about how we might help.

 

Procedural fairness so often the stumbling block

I have read a number of stories in the media and on social media about sacked employees successfully prosecuting unfair dismissal claims even though the Fair Work Commission found that there was justification for the sacking.

This happens a lot (even to large employers) and it is because, according to the law, it is not just about whether the sacking is justified (substantive fairness), it is also about how the sacking takes place (procedural fairness).

So, here are some tips on due process (ie what you need to do to demonstrate procedural fairness):

  1. Properly investigate matters ensuring that you have evidence to present as underpinning the allegations of underperformance or misconduct.
  2. Advise the employee that you will be meeting with them at a date/time/place to discuss significant issues regarding their work performance and that they have the opportunity to have a support person present.
  3. Have a management representative present at the meeting (especially if the employee is likely to be contentious) to act as a witness to proceedings and to sign off on meeting notes as a true and accurate record.
  4. Present the employee with the allegations and the specific evidence/examples of occurrences in detail to respond to. Note, in circumstances where the allegations are particularly serious or complex or could have serious consequences (eg termination of employment), it can be appropriate to provide advice of these in advance of the meeting to allow the employee the opportunity to obtain advice.  
  5. Consider what the employee has had to say and determine what you believe the facts to be based on that response (on the balance of probabilities) and other evidence and what course of action needs to be taken eg if new information is presented that would warrant further investigation, adjourn the meeting to undertake the investigation or, if that is not necessary, determine what course of action is appropriate in the circumstances.
  6. If additional investigation was necessary, present the findings and associated evidence back to the employee when you re-adjourn, repeating steps 4 and 5.
  7. Once the investigation is completed and the employee has had the opportunity to respond to all of the evidence, make a final determination as to what the facts of the matter are “on the balance of probabilities” and what the appropriate action to take in the circumstances would be.
  8. Advise the employee of your findings and the action that you propose to take, asking the employee if they can provide any reason as to why you should not take that action. One of the things that needs to be considered is the question of the severity of the impact this action would have on the employee having regard to their personal circumstances (eg terminating a mature age worker with little prospect of alternative employment and a low level of financial sustainability could have serious consequences for that person and the FWC has been taking such matters into consideration in relation to the harshness of the penalty).
  9. Having heard and considered what the employee has had to say, advise them of the action that you have decided to take, having considered everything that has been presented in the process.
  10. Confirm the outcome in writing including, if a warning is involved, what the performance improvement expectations are and what the consequences are if those expectations are not met including advice of a reasonable period for review and implement it.

This should  all be underpinned by a clear and practical written disciplinary procedure which is provided to everyone and is followed religiously without exception. Those responsible for investigating concerns and complaints and initiating disciplinary action all require training and access to professional advice.

There could also be circumstances where it would be appropriate to stand the employee in question down with pay if termination of employment appeared to be a likely outcome and/or if the continued presence of the employee in the workplace would interfere with the proper or efficient conduct of the investigation.

Have a look at our article on substantive fairness as well for as simple approach as you will find for determining what action is justified – “The 3 tents test”

And for small businesses with less than 5 employees, the Small Business Fair Dismissal Code provides a checklist for you to follow: Small-Business-Fair-Dismissal-Code-2011.

Following the type of process that we have set out in this article won’t guarantee that you won’t still get an unfair dismissal claim from a terminated employee. However it will help you to defend that claim and minimise the cost of settlement.

It also sends a really positive message to your employees that you understand your legal obligations and that you will give your people a fair go and honour those obligations.

Sacking someone is not an easy thing to do and, for most managers, it isn’t something that you do often so don’t be afraid to call out for help. A small investment can make a world of difference to the outcome.

Note: We are not qualified lawyers and this article does not constitute legal advice. It is intended to provide inexperienced employers and managers without access to professional workplace relations advice with some tips on the sorts of things that they need to take into account procedurally in dealing with matters of this sort. We are of course able to assist with developing the right procedures for your business, training your managers and supervisors and providing professional advice and support as needed.