New Retail Award rules on part-time employment

New Retail Award rules on part-time employment

Latest News & Events

 

New Retail Award rules on part-time employment

Award part-time fair work

The General Retail Industry Award 2020 was varied by the Fair Work Commission with effect from 1 July 2021 in relation to the rules for varying hours of work for part-time employees.

According to that Award, a part-time employee is one who is engaged to work for fewer than 38 ordinary hours per week and whose hours of work are reasonably predictable.

Obligations on engagement

At the time of engaging a part-time employee, the employer must agree in writing with the employee on a regular pattern of work that must include all of the following:

  • the number of hours to be worked on each particular day of the week (the guaranteed hours); and
  • the times at which the employee will start and finish work each particular day; and
  • when meal breaks may be taken and their duration.

Under the Award, such an agreement can be recorded in writing now including through an exchange of emails, text messages or by other electronic means.

Comment: guaranteed hours is a new terminology seemingly designed to fix a base of hours with the potential for flexing up by agreement if needed. The specific recognition of email and texts as valid means of recording agreements is sensible because nowadays that is generally what happens.

Agreements to work additional hours

An employer and an employee may agree to vary the regular pattern of work agreed (i.e. the guaranteed hours) on a temporary or ongoing basis, with effect from a future date or time.

Any such agreement must be recorded in writing (including through an exchange of emails, text messages or by other electronic means):

  • if the agreement is to vary the employee’s regular pattern of work for a particular rostered shift – before the end of the affected shift; and
  • otherwise – before the variation takes effect.

Such an agreement cannot result in the employee working 38 or more ordinary hours per week.

Comment: this provides flexibility for those occasional situations that small businesses in particular can experience where someone is running late or not able to attend work or there is an unexpected increase in customer demand. To cover that, they can ask someone to do some extra hours over and above their guaranteed hours as long as agreement is made before the extra hours have to be worked. Otherwise, any additional hours would be payable at overtime rates.

Changes to regular hours made by employer

An employee’s regular pattern of work as agreed, other than the employee’s guaranteed hours, may be changed by the employer giving the employee 7 days, or in an emergency 48 hours, written notice of the change.

However, the regular pattern of work of a part-time employee must not be changed from week to week or fortnight to fortnight or to avoid any award entitlements.

Comment: this provides some limited ability for an employer to direct variations in hours of work for a part-time employee but cannot result in a reduction in the guaranteed hours (ie the number of hours to be worked on each day of the week). So the hours could be shifted within a day or added to but not decreased. If an employer tries to use this power to avoid making overtime payments on a regular basis, it could result in a claim of breach of award
and underpayment of wages.

Requests for review of guaranteed hours

If an employees’ guaranteed hours are less than the ordinary hours that the employee has regularly worked in the previous 12 months, the employee may request in writing that the employer increase their guaranteed hours on an ongoing basis to reflect the ordinary hours
regularly being worked.

An employee may only make such a request once every 12 months.

The employer must respond in writing to the employee’s request within 21 days and may refuse the request only on reasonable grounds. 

The Award provides an example of this: Reasonable grounds to refuse the request may include the reason that the employee has regularly worked more ordinary hours than their guaranteed hours is temporary—for example where this is the direct result of another employee being absent on annual leave, long service leave or worker’s compensation.

Before refusing a request, the employer must discuss the request with the employee and genuinely try to reach agreement on an increase to the employee’s guaranteed hours that will give the employee more predictable hours of work and reasonably accommodate the
employee’s circumstances.

If the employer and employee agree on an increase to the employee’s guaranteed hours, the employer’s written response must record the agreed increase.

If the employer and employee do not reach agreement, the employer’s written response must include details of the reasons for the refusal, including the ground or grounds for refusal and how the ground or grounds apply.

If the matter is still not resolved, either party can refer it to the Fair Work Commission for conciliation and/or arbitration.

Comment: the process and rules here are similar to those that apply to requests for flexible working arrangements and applications for casual conversion. The bottom line is that any employer who does not act reasonably and follow the rules can find themselves fronting the Fair Work Commission with the potential for orders regarding guaranteed hours of work and possibly remedies for underpayment of wages.

The takeaways

For retail employers, the key lessons are:

  1. Have a sound staffing plan based on a realistic expectation of customer demand and work requirements, adjusting seasonally
  2. Develop positive relationships with your people and find out who has the flexibility to work additional hours if needed at particular times and at short notice
  3. Consider whether all of the compliance work involved in varying a part-time employees’ hours is actually worth it eg if there is little requirement for
    additional hours, it might be easier and more practical just to pay the overtime rate for the additional hours
  4. Consider paying people above award rates in return for a bit of flexibility through a common law contract but ensuring that people would still be better off overall than in literally applying award conditions
  5. If you have casual employees who have been employed with you for 12 months or more (or are likely to be), consider whether they should convert to full-time or part-time and, if part-time, what their guaranteed hours should be.
  6. Make sure that you are maintaining all of the employment records that you are required to under the Award requirements re part-time employment and otherwise as required under the Fair Work Act and Regulations.
  7. If you need assistance in working through this or you run into a disagreement with an employee, get professional help.

 

You can take advantage of our free first consultation on this or any other HR matter by contacting us on 0421 592 541 or enquiries@ridgelinehr.com.au

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Fair Work Notice Update

Fair Work Notice Update

Latest News & Events

 

Fair Work Notice Update

Under National Employment Standards, employers are required to give:

It is important that you use the current form of Statement. The Fair Work Information Statement is updated annually with adjustments to the federal minimum wage which normally occur on 1 July each year. The Casual Employment Information Statement has just been updated to provide more and clearer information on casual conversion rights and procedures.
 
If you have any queries, please contact us on 0421 592 541 or at enquiries@ridgelinehr.com.au.

 

If you haven’t the benefit of professional advice on your workplace relations compliance situation or you just want to make sure, you might want to take advantage of our Lockdown Special Offer on a Fair Work Compliance Assessment. Pay just $550 plus GST in lieu of the regular price of $750 plus GST. Check it out. Offer expiring 30 November 2021.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

FWC rules that dismissal for refusing mandated vaccination is fair

FWC rules that dismissal for refusing mandated vaccination is fair

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FWC rules that dismissal for refusing mandated vaccination is fair

covid vaccine injection

At a time when businesses are grappling with what they can do with employees who refuse vaccinations that are mandated by public health orders, a majority decision of a full bench of the Fair Work Commission has provided some relief.

That decision upheld the dismissal of an employee by Sapphire Coast Community Aged Care for refusing to have a flu shot that was mandated by a public health order.

The employee claimed that she had a medical exemption but that did not stand up to scrutiny because the medical certificate was issued by a doctor who did not examine her and relied on her advice to him that she had had a previous reaction to a vaccination. On the other hand, the employer relied on the advice of the Chief Health Officer and public documents which indicated that adverse effects of flu vaccinations are rare and the fact that she might have had a reaction to a vaccine in the past did not mean that she should not have the flu vaccination.

In the original decision earlier this year, the FWC ruled that the employee could not perform the inherent requirements of her job without a flu shot.

The Full bench was considering her application to appeal which they rejected as they found that she didn’t have a valid medical exemption.

Clearly, this tells us that, subject to going through due process, if there is a public health order requiring vaccination of employees as a condition of working in the particular industry setting and an employee does not get vaccinated and does not have a valid medical exemption, the employee’s services can be terminated due to their inability to meet the inherent requirements of the job.

This obviously has ramifications for the construction industry in Victoria where workers are not permitted on construction sites without having at least the first COVID vaccination or providing a valid medical exemption.

We are hearing numerous reports from our clients about employees who are hesitant or refusing to get vaccinated and do not have any basis for a medical exemption.

Most employers we speak to tell us that they don’t want to sack anyone for not getting the jab but they might reluctantly be forced to do that with any employee who chooses not to be vaccinated. Many of these employers are small businesses often in regional communities where relationships go beyond just the workplace and so this is quite a stressful situation for employer and all of their employees.

If you need assistance in dealing with a situation such as this, give me a call on 0438 533 311 – your first consultation is free.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Dealing with the construction industry lockdown and vaccinations

Dealing with the construction industry lockdown and vaccinations

Latest News & Events

 

Dealing with the construction industry lockdown and vaccinations

lockdown vaccination

Construction businesses are being called on by the Victorian Government to lift their game in assuring compliance with COVID safety requirements.

The Government has advised that nearly 50% of construction sites inspected were not compliant and that around 150 construction sites had become contact sites.

Initially, the directive was that all construction workers had to get a first jab of COVID vaccination if they were going to be permitted to work on a construction site.

Then, on last Monday following violent demonstrations, the Government decided to lock down the industry for 2 weeks.

What does this mean for construction employers?

If there is no other work available for construction employees, they would then be stood down without pay for the two week lockdown. People will be able to return to work on Tuesday 5 October 2021 provided they have provided their employer with proof that they either:

  • Have had at least one dose of COVID-19 vaccination, or
  • Have medical exemption issued by an authorised medical practitioner.

Employers must verify what each employee’s situation is in relation to vaccination and must maintain records of vaccinations and exemptions.

If an employee does not provide the required evidence or just refuses to get vaccinated, the employer must not allow them to return to work and so that again means that the employee would be stood down without pay until such time as the employee produces the evidence required or the vaccination mandate directive is lifted (which is not likely to happen soon).

You should ensure that stand down directions with reasons are provided in writing to each employee that is being stood down.

We are assisting many construction employers in dealing with this issue by providing advice and drafting communications and notices for them.

If you need assistance, call us on 0438 533 311 or email enquiries@ridgelinehr.com.au.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

New casual rule deadline is here

New casual rule deadline is here

Latest News & Events

 

New casual rule deadline is here

casual conversion running out of time

27 September 2021 is just about here and that is when the new rules on casual engagement and conversion come fully into effect.

The Federal Government made amendments to the Fair Work Act back in March. The purpose of the amendments was to provide greater surety about what casual employment is, what entitlements casual employees have and when a casual employee can be offered or apply for conversion to full-time or part-time employment. See our post on 12 May on the legislative changes: https://ridgelinehr.com.au/new-standards-on-casual-employment/

Since then, the Fair Work Commission has been reviewing award provisions relevant to casual employment and casual conversion to align them with the revised provisions of the Fair Work Act.

The changes to Award provisions that it has decided on will also take effect from 27 September 2021. In most cases, the FWC has simply decided to scrap the existing Award provisions for clauses that really just reflect or refer to the new Fair Work Act provisions.

There are some exceptions so you need to check the particular Awards that cover your operations and employees.

Key points in terms of your obligations and exposures as an employer are:

  • You must provide all current and future casual employees with a Casual Employment Information Statement which you can access at https://www.fairwork.gov.au/employee-entitlements/national-employment- standards/casual-employment-information-statement
  • If you have 15 or more employees and you have a casual employee who has been on with you for 12 months and on a consistent work pattern for the last 6 months, you are required to assess them for conversion to ongoing employment by 27 September 2021 or, in future, within 21 days of the employee’s 12 month anniversary of commencing employment.
  • Regardless of how many employees you have, eligible casual employees can request conversion to ongoing employment, you have to respond to that request in writing within 21 days and, if the employee is dissatisfied with your response (eg you refuse the request), the employee can take the matter to the Fair Work Commission for determination.
  • What is really critical is that there is no firm commitment to an ongoing pattern of work in your contract of employment and other terms of the contract are consistent with the requirements and definition of casual employment now prescribed in the Fair Work Act.

What should you be doing:

  1. Assess the status of your casual employees re potential for conversion.
  2. Get your employment contracts professionally reviewed plus things like any position descriptions or job ads you use to ensure that they don’t have compromising content.

If you need a hand with that, give us a call on 0421 592 541 or email us at enquiries@ridgelinehr.com.au.

If you haven’t the benefit of professional advice on your workplace relations compliance situation or you just want to make sure, you might want to take advantage of our Lockdown Special Offer on a Fair Work Compliance Assessment. Pay just $600 plus GST in lieu of the regular price of $750 plus GST. Check it out.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH