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.