Over the past couple of years, there have been lots of changes in employment conditions and related legislation, regulations and modern awards.
Do you have a regular review of your employment documentation to ensure that your employment contracts and HRM policies and procedures are consistent with current workplace relations requirements?
Can you demonstrate as an employer that you are responsibly exercising your duty to provide your people with compliant wages and conditions of employment?
Here are just some of the things that have come in over the past year and you need to cover off:
- New leave to deal with family and domestic violence provisions in modern awards and National Employment Standards
- New casual conversion provisions in modern awards
- Variations to flexible working arrangement obligations in modern awards
- Variations to penalty rates for evening and weekend work in modern awards in some industries
- Variations to termination of employment provisions in many modern awards
- A new Victorian Long Service Leave Act 2018 in November 2018 (and a new Long service Leave Benefits Portability Act 2018 taking effect for some industries in 2019)
- Federal regulation on employment contract content required in casual employment to avoid double dipping on casual loadings and leave entitlements
- Every year, there is an adjustment to the national minimum wage, award rates and various other benchmarks and a new Fair Work Information Statement is published.
In this area, we are “Helping PEOPLE in BUSINESS” by keeping abreast of these changes and reviewing employment contracts and HRM policies and procedures to address them.
If you need a hand, please feel free to give us a call on 0438 533 311 or email email@example.com
We recently launched our new Better Workplace Projects and we are getting terrific feedback on the impact like:
“The session was excellent – great buy in from everyone and really positive feedback afterwards.”
“The team and I loved the session and felt very positive and inspired”.
Why are they having this impact?
It’s fresh thinking for old challenges!
We look at what drives people engagement and high performance through a positive psychology lens where the focus is on how we use our strengths to improve rather than just how we fix the problems.
We also reinvent the performance management process to provide a positive and continuous development experience that gets people engaged, aligned and accountable.
In our interactive Better Workplace Project Introductory Workshops, we introduce you to the best practice models that underpin the methodology and have an open conversation with you about how these might be used to address the people and culture challenges and opportunities and deliver high performance in your organisation.
For a small investment of $800 plus GST and a couple of hours of your time, we can help you to get started or step up on that journey to a Better Workplace.
Our Better Workplace Project Introductory Workshops are delivered by our Practice Leader, Peter Maguire, who has consulted to hundreds of organisations on people and culture strategy and practice. Peter has an extraordinary breadth of experience with clients in public, private and NFP sectors and in a wide range of industry and people culture settings. He is also a former Investors in People Assessor and has presented internationally on HRM best practices.
There has been a lot of activity around casual employment over the past year or so – in the courts, in the Fair Work Commission and in regulation by the Federal Government.
What we aim to do in this article is to dispel some of the myths that create confusion and concern and to offer advice on practical tips for “getting the balance right with casual employment”. In doing that, we do have regard to the recent developments in:
- The Workpac v Skene case wherein the Court awarded annual leave payments to a nominally casual employee
- Casual conversion provisions introduced to modern awards
- Regulation by the federal government to limit the ability for a nominally casual employee to be awarded annual leave payments
Is this really a casual employee?
The classic casual is someone who is required to work on an irregular or limited tenure basis.
It might be as a shop assistant in the lead up to Christmas or in hospitality or security at events like the Australian Open or the Melbourne Grand Prix ie the job only exists for a limited time.
It might be someone who is on a relief roster and is called in as needed or someone whose work hours vary in line with their availability while they are still at school or university.
Or it could be someone who is called upon as projects come online and they come in and perform certain tasks on the project and then stop being employed when they finish the tasks.
All of those are true casuals.
If the role is really a continuing one with reasonably consistent and predictable hours of work and it continues that way month after month, that creates an expectation for the employee that they will have continuing employment. So it isn’t really casual, is it?
That is essentially what the judgement in Workpac v Skene said. The employee concerned was on back to back contracts and fly in fly out rosters with pre booked accommodation for two and a half years and had no indication that that pattern would not continue indefinitely.
The pros and cons of hiring continuing workers as casuals
The first point here is that, in a competitive labour market, limiting engagement options to casual distinctly limits your ability to find the best staff for your business. People are generally unlikely to leave secure employment to take on a casual job.
There are those who believe that engaging workers as casuals is safer and cheaper when, in reality:
- the 25% casual loading applying under modern awards is a lot more expensive than the paid leave entitlements a full-time or part-time employee gets
- you still have to pay the superannuation guarantee
- casuals accrue long service leave and, where they work in an industry with a portable long service leave fund, are entitled to employer contributions into that fund just as full-time and part-time employees are
- casuals have the same access to the unfair dismissal, adverse action, industrial dispute, bullying and discrimination and WorkSafe and WorkCover jurisdictions as continuing employees do
Where it is really (or potentially) a continuing employment arrangement, one advantage of engaging someone as casual is that you don’t technically have to provide notice of termination because that is notionally compensated for by the casual loading.
Another might be that, if there is some fluctuation in hours of work, that can be more easily managed if the employee is engaged as a casual.
The question is, when you look at all of the elements set out above, what’s the best option having regard to your overall business needs?
How you hire a casual
One of the main reasons that the judgement in the Workpac v Skene case was to award annual leave entitlements was because the employment contract did not specify the amount of the casual loading ie it didn’t specify how the entitlement to annual leave that a continuing employee would have was set off by the casual loading.
In response, the Federal Government’s regulatory change provides some relief from so called “double dipping” of casual loading and annual leave payments but stipulates that there must be an employment contract that includes that specification.
There is an obligation to provide a Fair Work Information Statement on first engagement as a casual…..and there is the obligation to provide a casual with a copy of the Casual Conversion clause in any award that was varied last year to provide that right.
So ensure that you do all of this in writing before the employee starts and get professional advice if you aren’t sure on what to include or writing isn’t your strength.
Dealing with casual conversion
Last year, a casual conversion clause was included in most modern awards which did not already have one.
This provides the right for an employee who is engaged regularly and systematically as a casual for 12 months to request conversion to full-time or part-time employment.
The employer has to provide casuals with a copy of the casual conversion clause and, if a request is made, has to respond within 21 days in writing.
If the employer refuses the request which can only be done in quite limited circumstances, the employee has the option of taking the matter to the Fair Work Commission. for conciliation and arbitration.
Our advice is to be proactive in satisfying the obligation to offer casual conversion by:
- Providing any new casual employee with a copy of the casual conversion clause from the relevant award on engagement or in the onboarding process.
- When it becomes clear that the employee is going to continue in employment on a regular and systematic basis for a period of at least 12 months, remind them in writing of the opportunity to convert to full-time or part-time, spelling out the options and what they each mean for the employee (eg if I stay casual, this is what I get, and, if I convert to full-time, this is what I get).
- Require the employee to nominate in writing which of the options they want to take up.
- Confirm in writing the agreed arrangement going forward and implement it in practice.
One other option you could consider is to tell casuals when you engage them that, if they get through their probation period or at some point up to reaching twelve months’ employment, they will be offered full-time or part-time employment as applicable. You would do this if you wanted to secure employees who had proven themselves to be productive and a good fit during their initial period of engagement.
Note: there are a number of awards which already had casual conversion clauses requiring the employer to offer conversion after six months regular and systematic employment. These include building and construction, manufacturing, quarrying and trades industries among others. Check the clauses in the modern awards applying in your business to be sure.
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.
- 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
- 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.
- 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.
- 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.
- 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!