Is this the death knell for labour hire?

Is this the death knell for labour hire?

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Is this the death knell for labour hire?

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Does the Fair Work Commission Full bench decision on “same job, same pay” and Regulated Labour Hire Arrangement Orders pose a threat to viability of labour hire providers?  

“We are satisfied that the evidence does not establish that the work of employees of OS Production and OS Maintenance involves the provision of an identifiable and discrete service to BMA as distinct from the supply of the labour of those workers to work in or as part of the business of the BMA.” 

And, with those words, a Full Bench of the Fair Work Commission determined that 2,200 labour hire workers working on 13 Queensland mining sites should get an average wage increase of about $30,000 per annum.

About “Same Job, Same Pay”

The Albanese Government introduced the Same Job Same Pay legislative changes specifically to combat organisations which had enterprise agreements with high wages and outsourced their labour requirements to reduce labour costs. They did so by using a labour hire organisation to employ their workers rather than directly employing them.

The “Same Job, Same Pay” amendments enable applications to be made to the Fair Work Commission to have the terms of the host’s enterprise agreement apply to the labour hire workers.

What that means is that, if such an application is successful, labour hire becomes a much less attractive commercial option as the host would be charged by the labour hire provider for the wages of labour hire workers at the same level that they would have to pay if they employed these people directly plus the labour hire provider’s on costs and service fees and profit margin.

Does this mean the end of labour hire?

Absolutely not.

“Same Job, Same Pay” only.affects circumstances where the labour hire firm’s customer has an enterprise agreement that would cover employees doing the same sort of work as the labour hire workers.

So for the vast majority of businesses, this is nothing to worry about – you can still use labour hire if you want to.

However, there is no question that businesses in the space that the “Same Job, Same Pay” changes are designed to address played a key role in the growth of labour hire as an alternative labour sourcing option.

So labour hire businesses which are heavily invested in that space are likely to feel the full impact of this decision.

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.

 

 

 

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Changing the mindset on flexible working

Changing the mindset on flexible working

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Changing the mindset on flexible working

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Is it possible for the parties to the current proceedings in the Fair Work Commission re a model working from home term in modern awards to do other than treat it as a contest between employers and workers?

Sadly, the answer is “no”. Our workplace relations system is designed to be driven by conflict –  by claims and counter claims by employer associations and unions based on opposing ideologies and traditional and political views on how they should represent their constituents in industrial proceedings.

And the Fair Work Commission itself and its members are firmly positioned as the arbiters in that contest as is intended under the Fair Work Act 2009.

What all of that means is that our systems and the positioning of the key parties involved are not conducive to collaboration or to partnering in long-term strategic change. Every case is a transaction in conflict and that is one of the reasons why we have a productivity problem in this country.

So how is that going to deal effectively with issues like “working from home”?

The irony

The COVID pandemic changed the landscape completely because lots of people were not allowed to go to work – they had to work from home if they were going to work at all.

Those circumstances gave rise to some innovative changes to award provisions which allowed employers and employees some additional flexibilities around arrangements with hours of work and use of leave entitlements.

These included temporary options of:

  • varying ordinary hours to operate up to 10.00 pm enabling people to arrange their working hours around their parenting responsibilities and
  • employees being able to schedule their meal and rest breaks to times that suited them rather than the specific times prescribed in the award and
  • being able to utilise annual leave to cover more time off work but at a proportionately reduced pay rate 

Of course, once the COVID lockdowns were over, these flexibilities were removed from awards without any real consideration of whether there might be a case for retaining them.

That was a pity and an opportunity missed because the pandemic lockdowns gave employees the experience of working from home and many liked it and that fundamentally changed how we think about work as part of life. 

So what now?

The Fair Work Commission was tasked last year with undertaking a “Work and Care” review of modern awards and the consideration of “working from home terms in modern awards” is a step in that process.

It is being reported that, as we move further on in time from the pandemic closedown period, more and more employers are demanding more and more workers to return to the office – in some cases full-time and in others for typically 2 or 3 days per week.

The flip side to that is that study after study shows that a majority of people want some flexibility in their working arrangements and, for those whose jobs can be done from home, that is commonly desirable for them. It has become a sought after attribute in employers’ offerings to the labour market.

If you believe the media, employer groups are now advocating the abolition of penalty rates in return for flexibility in hours of work, something which the Federal Government has already pledged to override by protecting penalty rates through legislative change.

It is a bit of a mystery why we don’t simply revisit how the FWC dealt with working from home arrangements during the pandemic – they did do some practical things that seemed to work like allowing an employee and employer to agree to an arrangement of ordinary working hours outside the span of hours in the Award where an employee wants that and the employer is happy to accommodate it. Sure, you might need to make some adjustments to protocols around the right to disconnect in the individual’s case but it really shouldn’t be that hard. 

Some employees have a statutory right to request a flexible working arrangement

Employers now have additional obligations and exposures in relation to requests for flexible working arrangements for workers who have a statutory right to request a flexible working arrangement. These are people who have 12 months service with an employer and:

The odds are that many of your employees fit under one or more of those categories.

Employers now have to genuinely consider and consult with workers about requests for flexible working arrangements, there are strict procedural requirements and timelines involved and a worker who is not happy with an employer’s refusal of their request can take the matter to the Fair Work Commission for mediation, conciliation or arbitration. 

Awards have already been modified to specifically provide for disputes over requests for flexible working arrangements to be dealt with in accordance with dispute settlement provisions in awards.

One of the concerns that employers could have is whether insertion of a working from home clause in Awards would result in in expansion of the right to have a dispute with an employer dealt with by the Fair Work Commission to all award-covered employees rather than just those in the categories that have a statutory right as noted above. Logically, it would have that effect.

So what does all of this mean?

Flexible working and working from home are here to stay.

Employers who continue to resist that will find themselves not just challenged to find and retain the people that they need in a competitive labour market where flexible working is a valued commodity, but will also likely be challenged in the FWC and possibly other jurisdictions to justify that resistance on “reasonable business grounds”.

There are organisations which are more than happy to offer flexible working arrangements because they see the value in them for employees, they equip their organisations with the tools and leadership skills to manage people in those flexible arrangements, they hold people accountable for their performance and behaviour and they actually see improvements in productivity. That is what the future workplace should look like.

So the question that you need to answer for your business is “Do you really want to engage in a tug of war that you can’t win?” 

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.

 

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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Probation ain’t what it used to be

Probation ain’t what it used to be

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Probation ain’t what it used to be

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One of the most common questions that we get asked is what an employer needs to do if they want to dismiss a new employee during their probation because it isn’t working out …. our answer might surprise you.  

If I sack someone when they are on probation, I’m protected from an unfair dismissal claim, right?

The answer is that you probably are but not specifically because they are on probation.

That used to be the case under the Workplace Relations Act 1996 which preceded the Fair Work Act 2009.

Back then, the legislation actually provided for probation periods of up to 3 months or longer if the technical requirements of the role justified it and there was a legislated exemption from unfair dismissal claims for employees on probation……..but that all went out with the Fair Work regime.

So what are the rules now?

Under the Fair Work Act, employees have to serve a qualifying period of service with an employer before they are eligible to make an unfair dismissal claim and that is:

  • 6 months in the case of an employer with 15 or more employees (simple headcount including full-time, part-time and regular casual employees and those employed by associated entities); or
  • 12 months in the case of an employer with less than 15 employees.

There are a few other exemptions such as where termination occurs as the natural expiration of the period of an apprenticeship or fixed term engagement. 

So we are safe if the employee hasn’t qualified to make an unfair dismissal claim?

Well, you would like to think so, wouldn’t you?

That isn’t the case though because there are multiple jurisdictions in which an employee or ex-employee can prosecute a grievance.

One of those is an adverse action complaint under the General Protections provisions of the Fair Work Act where a claim of discrimination on prohibited grounds or of victimisation for exercising a workplace right  can be made.

Another is a claim of underpayment of wages to the Fair Work Ombudsman or there could be a WorkCover claim for psychological injury from the trauma of the termination process.

So should I even bother about probation periods?

 Absolutely, you should.

A robust probation review process whereby an employee’s progress is monitored constructively and supportively and they get regular feedback and instructions on what they are doing well and any areas requiring improvement is just good people practice. 

The other thing is that, if the new employee doesn’t work out and you have gone through that good probation process with them fairly, that is a protection against claims in other jurisdictions on the basis of what they call “reasonable management action”.

So yes you should have them and you should exercise them and you should document the actions taken through them. 

Anything else

We have had cases where “skeletons jumped out of the closet” when an employee was terminated – perhaps there were bullying complaints that were brewing or there was an underpayment issue that hadn’t been raised but which emerged when the ex-employee investigated their options and got advice from an authority like the Fair Work Ombudsman or WorkSafe or from a friend or family member or their union.

The bottom line with this is that no employer can afford to not have someone who they can rely on to provide them with the right advice on their wage and other employer obligations, whether that be through an internal HR resource, membership of an employer or industry association which provides such a service or through appropriately experienced and knowledgeable employment lawyers or workplace relations consultants like us.

And please, before you terminate someone, get some professional advice on how to go about that (or even if you should).

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.

 

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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TELL US WHAT YOU NEED HELP WITH

Annual Wage Review 2025 decision announced

Annual Wage Review 2025 decision announced

Latest News & Events

Annual Wage Review 2025 decision announced

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The Fair Work Commission has announced the Annual Wage Review 2025 decision which is to increase the minimum wage and award wages by 3.5% from 1 July 2025. 

No surprise here

This is just what we predicted – not a hard one given that the ACTU asked for 4.5% and the employer associations responded with 2.5% – made it easy for the FWC to just split the difference.

What to do

Check your employment contracts and enterprise agreement to see what they say about award wage increases, whether they flow on to employees and whether they can be absorbed against overboard payments.

If you haven’t had your contracts reviewed for a while, it could be an opportune time to get them looked at.

A caution

There have been a huge number of changes to employment laws and modern awards in recent years so make sure that you get this stuff right.

With the advent of the new criminal offence of wage theft from 1 January 2025 and the massive increases in penalties for breaches, getting it wrong can be very costly. Even the lowest tier for record keeping and payslip breaches can be as much as $1,980 per breach for an individual and $9,900 per breach for a company. At the most serious level, they could be over $8,000,000 for a company.

Conclusion

No employer can afford to not have someone who they can rely on to provide them with the right advice on their wage and other employer obligations, whether that be through an internal HR resource, membership of an employer or industry association which provides such a service or through appropriately experienced and knowledgeable employment lawyers or workplace relations consultants like us.

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.

 

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

FWO publishes underpayment remediation guide

FWO publishes underpayment remediation guide

Latest News & Events

FWO publishes underpayment remediation guide

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We have one of the most complicated systems of employment and wages regulation in the world and we now have a criminal offence of wage theft and greatly increased civil penalties that you can be sanctioned with if you get it wrong. So what do you need to do to get it right? Or to fix it if you make a mistake. 

Important heads up

If you make an innocent mistake, you are not going to be prosecuted for wage theft as long as you do the right thing and fix it and you put in place what you need to so as to make sure it doesn’t happen again.

However, there are substantial civil penalties for non-compliance with Fair Work requirements re wages and entitlements and it has been made very clear that “I didn’t know” is not going to be tolerated by the Fair Work Ombudsman as an excuse.

It also becomes a matter of public record and that can be extremely damaging to your brand both as a business and as an employer.

Two important guides

The Fair Work Ombudsman has published two really valuable guides for employers:

  • A Guide to paying employees correctly and the Voluntary Small Business Compliance Code sets out 5 key areas for business with less than 15 employees to attend to and protect themselves from the risk of prosecution for wage theft – part of that is ensuring that you have someone internally or externally who can provide you with competent advice on Fair Work, minimum wages, modern awards, record keeping requirements and more;
  • Their Payroll Remediation Program Guide sets out in great detail what they expect employers who have found themselves to be in an underpayment of wages situation to do – it does run to 42 pages so you might want someone who knows this stuff to give you the short version of it

What are the penalties?

They can be huge – even the lowest tier for record keeping and payslip breaches can be as much as $1,980 per breach for an individual and $9,900 per breach for a company. At the most serious level, they could be over $8,000,000 for a company.

Conclusion

No employer can afford to not have someone who they can rely on to provide them with the right advice on their wage and other employer obligations, whether that be through an internal HR resource, membership of an employer or industry association membership which provides such a service or through appropriately experienced and knowledgeable employment lawyers or workplace relations consultants like us.

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.

 

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH