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.

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

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.

 

 

 

 

What are our “Better Workplace Projects”?

In essence, they are whatever you need them to be. Here are some different elements of better workplaces that we might include in a “Better Workplace Project” depending on client needs, preferences and budget:

  • A Respectful Workplace: implementing a values-based approach to behavioural standards that are to be applied across the business and addressing legal requirements relative to bullying, harassment, discrimination, gender inequality and related unsatisfactory behaviours.
  • An Aligned Workplace: providing clear direction to employees on organizational goals and structures and what they translate into in terms of the roles and performance expectations of teams and individual employees.
  • A Safe and Healthy Workplace: developing and implementing a risk management and employee engagement strategy that helps to improve the wellbeing of people in the areas of physical, emotional and mental health as well as addressing legislative requirements in relation to workplace health and safety.
  • A Connected Workplace: developing and implementing consultation and communication processes that ensure effective employee voice and timely and constructive communications between people across the business as well as better informing management decision making.
  • An Engaging Workplace: developing and implementing performance feedback and development processes that are timely, balanced and friendly whereby each employee has a performance and development plan of their own. Managers meet with them regularly to review progress against the plan, provide positive feedback on achievements and guidance and encouragement with areas for development.
  • A Sustainable Workplace: equipping and coaching leaders to maintain the impetus focused on constantly reviewing workplace policies and practices and identifying and harnessing opportunities for continuous improvement.

If you are interested in making your business a “Better Workplace”, give us a call on 0438 533 311 to see how we can help.

Make every day RUOK Day

Today is the official RUOK day, that day once a year when the spotlight is shone on mental health and what we can all do to support those doing it tough on the mental health front.

Those 4 simple steps can make such a difference:

  1. Ask RUOK?
  2. Listen
  3. Encourage action
  4. Check in

And please here are 4 things that you don’t want to do:

  1. Don’t tell me to cheer up.
  2. Don’t be judgmental, telling me what my problem is.
  3. Don’t be instructional, telling me what I must do.
  4. Don’t give up on me – just being there helps.

20% of people have mental health challenges so the odds are that 1 in 5 people in your workplace do too.

In our Better Workplace Projects, we help employers and employees to develop high performing, caring and supportive workplaces where peoples’ wellbeing is a priority because it is both the morally right and the commercially smart thing to do.

We want you to “Make every day RUOK Day” but also to reduce the incidence of mental health problems by having a great place to work. Don’t let your workplace be a contributing factor to Australia’s mental health challenge.

There are lots of resources available at RUOK and Heads UP.

These are some of the tools that we use in our Better Workplace Projects.

Give me a call on 0438 533 311 if you would like to learn more about how we might help.

 

Procedural fairness so often the stumbling block

I have read a number of stories in the media and on social media about sacked employees successfully prosecuting unfair dismissal claims even though the Fair Work Commission found that there was justification for the sacking.

This happens a lot (even to large employers) and it is because, according to the law, it is not just about whether the sacking is justified (substantive fairness), it is also about how the sacking takes place (procedural fairness).

So, here are some tips on due process (ie what you need to do to demonstrate procedural fairness):

  1. Properly investigate matters ensuring that you have evidence to present as underpinning the allegations of underperformance or misconduct.
  2. Advise the employee that you will be meeting with them at a date/time/place to discuss significant issues regarding their work performance and that they have the opportunity to have a support person present.
  3. Have a management representative present at the meeting (especially if the employee is likely to be contentious) to act as a witness to proceedings and to sign off on meeting notes as a true and accurate record.
  4. Present the employee with the allegations and the specific evidence/examples of occurrences in detail to respond to. Note, in circumstances where the allegations are particularly serious or complex or could have serious consequences (eg termination of employment), it can be appropriate to provide advice of these in advance of the meeting to allow the employee the opportunity to obtain advice.  
  5. Consider what the employee has had to say and determine what you believe the facts to be based on that response (on the balance of probabilities) and other evidence and what course of action needs to be taken eg if new information is presented that would warrant further investigation, adjourn the meeting to undertake the investigation or, if that is not necessary, determine what course of action is appropriate in the circumstances.
  6. If additional investigation was necessary, present the findings and associated evidence back to the employee when you re-adjourn, repeating steps 4 and 5.
  7. Once the investigation is completed and the employee has had the opportunity to respond to all of the evidence, make a final determination as to what the facts of the matter are “on the balance of probabilities” and what the appropriate action to take in the circumstances would be.
  8. Advise the employee of your findings and the action that you propose to take, asking the employee if they can provide any reason as to why you should not take that action. One of the things that needs to be considered is the question of the severity of the impact this action would have on the employee having regard to their personal circumstances (eg terminating a mature age worker with little prospect of alternative employment and a low level of financial sustainability could have serious consequences for that person and the FWC has been taking such matters into consideration in relation to the harshness of the penalty).
  9. Having heard and considered what the employee has had to say, advise them of the action that you have decided to take, having considered everything that has been presented in the process.
  10. Confirm the outcome in writing including, if a warning is involved, what the performance improvement expectations are and what the consequences are if those expectations are not met including advice of a reasonable period for review and implement it.

This should  all be underpinned by a clear and practical written disciplinary procedure which is provided to everyone and is followed religiously without exception. Those responsible for investigating concerns and complaints and initiating disciplinary action all require training and access to professional advice.

There could also be circumstances where it would be appropriate to stand the employee in question down with pay if termination of employment appeared to be a likely outcome and/or if the continued presence of the employee in the workplace would interfere with the proper or efficient conduct of the investigation.

Have a look at our article on substantive fairness as well for as simple approach as you will find for determining what action is justified – “The 3 tents test”

And for small businesses with less than 15 employees, the Small Business Fair Dismissal Code provides a checklist for you to follow: Small-Business-Fair-Dismissal-Code-2011.

Following the type of process that we have set out in this article won’t guarantee that you won’t still get an unfair dismissal claim from a terminated employee. However it will help you to defend that claim and minimise the cost of settlement.

It also sends a really positive message to your employees that you understand your legal obligations and that you will give your people a fair go and honour those obligations.

Sacking someone is not an easy thing to do and, for most managers, it isn’t something that you do often so don’t be afraid to call out for help. A small investment can make a world of difference to the outcome.

Note: We are not qualified lawyers and this article does not constitute legal advice. It is intended to provide inexperienced employers and managers without access to professional workplace relations advice with some tips on the sorts of things that they need to take into account procedurally in dealing with matters of this sort. We are of course able to assist with developing the right procedures for your business, training your managers and supervisors and providing professional advice and support as needed.

Are you ready for casual conversion?

All modern awards which do not already have a casual conversion clause will have one from 1 October 2018.

This means that employees who are engaged as casuals on a regular and systematic basis for 12 months can apply to convert to full-time and part-time employment.

An employer can refuse such a request on reasonable business grounds but these grounds are quite limited. In essence, if the employee would continue in employment beyond 12 months on much the same basis as a casual without any expectation of that arrangement changing, it would be difficult to reasonably decline a request for conversion.

This is a particular challenge for labour hire firms who typically engage most of their hired out workforce as casuals.

That challenge has been heightened in the minds of many by a recent decision of the Full Bench of the Federal Court  in the case Workpac v Skene. In that case, the Court decided that a labour hire casual who worked regular and predictable hours was a permanent employee at law, and was therefore entitled to paid annual leave, and other permanent employment rights.

This was a fly in fly out worker who was engaged on successive rosters for 6 months, 12 months and 12 months on regular and systematic hours. That really isn’t characteristic of a real casual employment relationship and that is what the court found.

In another case in South Australia (Apostolides v Mantina Earthmovers & Constructions Pty Ltd) earlier this year, the employee who had been engaged as a casual for 15 years but worked full-time over that period was also found to be a permanent employee and was awarded annual leave for the entire period of employment.

Our advice to businesses is that, rather than trying to avoid the issue, be proactive about it and here are some tips:

  1. Be realistic about the nature of the engagement – if it is going to be a regular and systematic arrangement where the employee works the same hours week in and week out ongoing, it isn’t really casual employment.
  2. Don’t be frightened by the myth that you want to keep employees as casuals to avoid unfair dismissal. The truth is it doesn’t matter whether an employee is engaged on a permanent or casual basis as they can both claim unfair dismissal if engaged for 12 months for businesses with less than 15 employees or 6 months for businesses with 15 or more employees.
  3. Have written employment contracts for all employees and ensure that they clearly state the nature of the engagement. Also ensure that you comply with any award provisions that stipulate information to be provided to casual employees on engagement.
  4. Have a system for dealing with the casual conversion election process and lead it to get each casual employee to make the decision, clearly spelling out what the differences would be if the employee converts to full-time/part-time employment or elects to remain casual. Many will decide to stay casual to get the 25 % casual loading.

Casual employees must be given a copy of the new clause within the first 12 months of their employment, or if already engaged, by 1 January 2019.

At Ridgeline HR, we have put quite a bit of thought into ways in which we can help labour hire businesses and any others with significant levels of casual employment to minimise the risks and treat their workforces ethically by ensuring they are informed about their rights and giving them fair choices.

Contact us using the form below if you would like us to discuss ways in which we might be of assistance with this issue.

 

Judge and FWO create confusion in car rental industry

A decision by a Federal Circuit Court Judge has thrown the car rental industry into confusion about the award coverage of its workers.

For over a decade, the Fair Work Ombudsman and its predecessor government agencies have held that customer service staff are covered by clerical awards and car cleaners are covered by vehicle industry awards. Where a staff member might perform both customer service and car cleaning duties, they were paid according to whichever award/classification attracted the higher rate.

Now, because of the decision made in this case, (SURACE v PEOPLESMOVE PTY LTD), the Fair Work Ombudsman has changed its mind and, on their website, is advising:

Retail Award

The Retail Award covers employees of car rental businesses who:

  • perform administrative work at the business retail premises, for example the shop front where you hire the vehicle
  • organise bookings, receive payments and sell extra products or services to customers
  • work as car washers and detailers.

Clerks Award

The Clerks Award covers employees of car rental businesses who perform administrative work away from the business retail premises, for example in the head office.

Why is it a problem?

Sure there are new legal precedents that come along but the problems here are threefold:

  1. The decision appears to be flawed (and I’m not a lawyer but I don’t need to be to reach that conclusion in this case based on the evidence)
  2. The Fair Work Ombudsman’s interpretation of the decision also appears to be flawed
  3. The effect of the decision (if applied as the Fair Work Ombudsman has determined it should be) is to really complicate award designation in the industry unnecessarily.

What was this case about?

Mr Surace brought an underpayment of wages claim against his former employer  Peoplesmove Pty Ltd (trading as Carhood). He performed a mix of customer service, car cleaning and supervisory/team leader duties and claimed that he was covered by the Clerks – Private Sector Award 2010. That was opposed by the former employer who argued that he was award-free or, alternatively, covered by the Miscellaneous Employees Award 2010.

So the Judge had to first determine the question of award coverage for this worker.

What is the basis for the decision?

There appears to have been conflicting evidence about just how much time this worker spent on supervisory duties versus customer service versus car cleaning functions.

The Clerks – Private Sector Award 2010 was ruled out as it technically covers employees “wholly or principally engaged in clerical/administrative duties” and the Judge felt that this was not the case with Mr Surace, notwithstanding the long history of clerical award coverage of customer service functions in the industry.

Then the Judge considered the question of the “Retail Award” :

  1. The Respondent submits that the Retail Award is not applicable to the Respondent’s business, because cl.3.1 of the Retail Award “defines explicitly and with limitation the establishment must be one of the below definitions”.[3] This submission misconceives the ordinary meaning of cl.3.1 of the Retail Award. The list of businesses specified in cl.3.1 of the Retail Award under the definition “general retail industry” are clearly not an exhaustive list of businesses that fall within the scope of the Retail Award. This is made clear by the opening words in the definition of general retail industry: “general retail means the sale or hire of goods or services to final consumers for personal, household or business consumption including…” (emphasis added). Clearly, by the use of the word “including”, the identified retail businesses do not exhaust the type of retail business which may fall within the meaning of “general retail industry”.
  2. The ordinary meaning of the definition of “general retail industry” can be read as meaning “the sale or hire… of services to final consumers for personal… or business consumption”. I am satisfied that the Respondent’s business involves the hire of a service (car-sharing) to final consumers (traveling to and from the airport) for their personal or business consumption. The fact that the business of the Respondent is novel does not preclude its service from falling within the definition of “general retail industry.”
  3. Accordingly, I find that the Respondent operates a business within the meaning of “general retail industry” of cl.3.1 of the Retail Award.

What is wrong with that decision?

The decision correctly notes that  “general retail means the sale or hire of goods or services to final consumers for personal, household or business consumption”.

However, that clause in the General Retail Industry Award 2010 also lists a number of exclusions (not mentioned in the decision) and one of those exclusions is: “motor vehicle retailing and motor vehicle fuel and parts retailing”.

So, if retailing includes “hire of goods or services” and “motor vehicle retailing” is specifically excluded from coverage of this award, how can car rental be covered by the General Retail Industry Award 2010?

The simple answer is that logically it can’t, notwithstanding this judicial decision.

Why the Judge ignored that very explicit exclusion in the Award is a mystery.

What then is wrong with the FWO interpretation of this decision?

  1. The Judge made a decision in an individual case based on a particular mix of duties – it was about that worker, not the entire industry and it should be viewed as such.
  2. If there is a concern about whether that decision affects traditional award coverage of the industry, perhaps that question should be referred to the Fair Work Commission whose role it is to determine award matters. That would provide greater clarity for the industry.
  3. The decision did not consider award coverage of car cleaning functions at all – there is no mention of that and it specifically did not address coverage under the Vehicle Manufacturing, Repair, Services and Retail Award 2010 which has car cleaner classifications and includes in its coverage “the repair and servicing of motor vehicles in the establishment of an employer ……who is engaged in the motor vehicle rental business”.
  4. As the decision did not in any way comment on award coverage of car cleaning activity let alone make any decision on that, how could the FWO reasonably determine that the current award provisions are not applicable and that car cleaning at a retail site now falls under the General Retail Industry Award 2010?

Are there deeper problems?

Unfortunately, yes there are.

Our Award system remains ridiculously complicated and difficult to navigate for the average business owner or employee. That was a significant contributing factor in the decision in question – the Judge had to make a determination of award coverage for an employee whose duties spanned multiple awards (according to traditional award coverage determinations) and seemingly looked for an easy solution to this, even if it was technically the wrong answer.

The irony in this case is that the Judge could have made an alternate decision that would have made much more sense and actually simplified the Award coverage issues for the industry.

The Vehicle Manufacturing, Repair, Services and Retail Award 2010 has Salesperson classifications but the authorities have traditionally held the view that Sales did not include rental sales. If the Judge had applied the retailing definition in the General Retail Industry Award 2010 (ie including hire of goods and services) to the Vehicle Award which otherwise covers car rental and so designated the Vehicle Award as the industrial instrument in this case, the industry would have one award to cover most activities.

An opportunity missed.

By Peter Maguire

 

 

 

 

New Fair Work Information Statement

The Fair Work Ombudsman has published a modified version of the Fair Work Information Statement effective from 1 July 2018.

Under National Employment Standards, employers must provide any new employee with a copy of the current Fair Work Information Statement. The document provides basic information on employee entitlements and rights and the roles of the Fair Work Ombudsman and the Fair Work Commission.

Download the current FWIS here.  Fair-Work-Information-Statement-2