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.

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.