New Victorian Sick Pay Guarantee Trial

New Victorian Sick Pay Guarantee Trial

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New Victorian Sick Pay Guarantee Trial

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The Victorian Government has launched a two year trial of a new scheme to provide casual and self-employed workers with access to up to 38 hours of personal and carer’s pay.

The motivation for introducing the system was the risks that COVID created with people who don’t have access to paid leave entitlements opting to work rather than isolating when they had COVID exposure.

Eligibility Criteria

To be eligible for the Sick Pay Guarantee, a worker must meet all of these criteria:

  • Age – be 15 years or over
  • Type of employee – be a casual employee or self-employed with no other employees (such as a sole trader or an independent contractor)
  • Leave entitlements – not be entitled to paid personal, sick or carer’s leave in any of their jobs
  • Workplace – work physically in Victoria, no matter where they live
  • Right to work – have the right to work in Australia
  • Occupation – work in an eligible occupation
  • Average hours worked – on average you work at least 7.6 hours per week in an eligible occupation(s).

Eligible occupations

Under the trial, the following occupations are eligible for the sick pay guarantee:

  • hospitality workers
  • food trades workers and food preparation assistants
  • supermarket workers
  • retail and sales assistants
  • aged and disability care workers
  • cleaners and laundry workers
  • security guards

The payment
The amount of the payment is based on the average hours of work over the period of engagement and the rate payable is the national minimum wage applying at the time.

Accessing the payment

Workers have to register online at https://service.vic.gov.au/services/sick-pay-guarantee/apply and submit evidence which is acceptable in a variety of forms so as to establish their identity, employment status, eligibility for the payment and bank details for payment.

More information on the sick pay guarantee can be accessed at https://www.vic.gov.au/sick-pay-guarantee-program-guidelines.

 

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enquiries@ridgelinehr.com.au

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New hourly rate guarantee for horticulture workers

New hourly rate guarantee for horticulture workers

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New hourly rate guarantee for horticulture workers

superannuation ATO

Piecework is where employees are paid on the basis of the quantity of work that they do as reflected in for example the number of garments sewn in clothing trades or the quantity of fruit or vegetables picked in the horticultural industry.

Under the Horticulture Award 2020, workers can be paid on a piece rate basis which “must enable the average competent employee to earn at least 15% more per hour than the minimum hourly rate prescribed in this award for the type of employment and the classification level of the employee”.

The Award (as it stands today) states: “Nothing in this award guarantees an employee on a piecework rate will earn at least the minimum ordinary time weekly rate or hourly rate in this award for the type of employment and the classification level of the employee, as the employee’s earnings are contingent on their productivity.” So, the Award clearly recognises the potential for workers with lower productivity levels to be paid below Award hourly rates.

However, on 28 April 2022, that is all going to change because the Fair Work Commission has decided that all horticulture workers have to be paid at least the equivalent of the ordinary hourly rate for all hours that they work.

Employers who are paying workers on a piece rate, have to maintain records of hours of work and ensure that what they each earns equates to at least the ordinary hourly rate for the classification in which they are employed for all hours worked on any day.

They also have to provide pieceworkers with a written pieceworker agreement before they commence employment. That agreement has to include: 

  • when (date and time) the piecework is to start 
  • a description of the task or tasks for which piece rates will be paid 
  • the piece rate amount 
  • the minimum hourly rate for the pieceworker’s classification level (plus, for casual pieceworkers, the 25% loading)
  • the following statement: “Under the Horticulture Award 2020, a pieceworker must be paid for each day on which they work, no less than their hourly rate under the award (including the 25% casual loading for a casual pieceworker) multiplied by the number of hours worked on that day.”

More detailed information can be accessed from the Fair Work Ombudsman @ https://www.fairwork.gov.au/newsroom/news/new-minimum-hourly-wage-guarantee-pieceworkers#main-changes.

If you need a hand in working out how to comply with the new rules, give us a call on 0438 533 311. Take advantage of our first free consultation offer.

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

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TELL US WHAT YOU NEED HELP WITH

New minimum payments for part-time employees under Social and Community Services Award

New minimum payments for part-time employees under Social and Community Services Award

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New minimum payments for part-time employees under Social and Community Services Award

Social services

The Social, Community, Home Care and Disability Services Industry Award 2010 covers employers in the:

    • crisis assistance and supported housing sector;
    • social and community services sector;
    • home care sector; and
    • family day care scheme sector.

Currently, there is no minimum period of engagement for part-time workers under that Award which is quite unusual. Employers and employees could agree to work less than the new minimum payment period.

The Fair Work Commission has decided that, from 1 July 2022, there will be a “minimum payment” provision which requires that the minimum engagement/payment for a shift or period of work in a broken shift of a part-time employee will be:

    • 3 hours for social and community services employees (except when doing disability services work) and
    • 2 hours for all other employees.
There is a transitional period that runs from 1 February 2022 to 1 October 2022 to enable consultation between employers and employees who have an Agreement for less than the new minimum payment periods made prior to 1 February 2022.
 
 
If you need assistance, please feel free to give us a call on 0438 533 311. Take advantage of our offer of a free first consultation.

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

Contracts are critical

Contracts are critical

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Contracts are critical

great resignation

There have been a number of developments in the past year that make it imperative that businesses:

  • Have written contracts for all employees and contractors and
  • Ensure that the content of the contract does not contradict the intended relationship with the other party as an employee or a contractor and
  • Also make sure that the contracts reflect current standards as per the Fair Work Act and any relevant modern award

Recently, there have been two significant High Court decisions on the question of whether a worker is an employee or a contractor.

While these cases had quite different outcomes, what they had in common was that the Court found that it is primarily the contract entered into and the terms contained in it that determines the nature of the relationship.

ZG Operations v James

This case was about two truck drivers who had worked as independent contractors for over twenty years for ZG Operations. They were originally employed by the company but switched to become independent contractors when the company told them that their jobs would not be secure if they didn’t make the switch.

After the company discontinued their engagements in 2017, the workers then made claims for pay, leave and superannuation entitlements on the basis that they should have been characterised as employees.

The court found that the contracts clearly defined the relationships as independent contracting plus the workers formed partnerships with their wives and they bought trucks which were significant investments. The court concluded that these workers were genuine independent contractors as characterised in the contracts.

Key takeaways: for genuine independent contracting relationships, make sure that: 

  • you have a proper written contract for service which clearly identifies the relationship as an independent contractor and
  • the terms in the contract are consistent with an independent contractor relationship. 

CFMMEU v Personnel Contracting

This case was about a labourer (Mr McCourt) engaged by a labour hire company, Personnel Contracting, to work for Hanssen Pty Ltd. Mr McCourt was an unskilled British backpacker on a working holiday and he didn’t have his own business. The CFMMEU and Mr McCourt made a claim that he was actually an employee and should have been paid under the Building and Construction General On-site Award 2020.

The court found that the “Administrative Services Agreement” under which Mr McCourt was engaged provided Personnel Contracting with rights of control and direction over Mr McCourt eg in relation to who he worked for and Mr McCourt was contractually obliged to cooperate. As a result, the court deemed this relationship to be more characteristic of an employee than an independent contractor and ruled accordingly.

Key takeaway: you should ensure that: 

  • If you are wanting the relationship to be that of an independent contractor, the terms in the contract are consistent with that or
  • if the relationship is, in reality, characteristically that of an employee, you contract the worker accordingly and don’t try to disguise it as that of an independent contractor.

Changes to casual employment

On 27 March 2021, The Fair Work Act was varied to provide a new definition of casual employment. Here is the relevant excerpt from the Fair Work Ombudsman’s website:

“A person is a casual employee if they accept an offer for a job from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

For example, if an employee is employed as casual, their roster changes each week to suit their employer’s needs, and they can refuse or swap shifts, that could mean they are casual. 

Specifically, under the Fair Work Act, a person is a casual employee if:

  • they are offered a job
  • the offer does not include a firm advance commitment that the work will continue indefinitely with an agreed pattern of work
  • they accept the offer knowing that there is no firm advance commitment and become an employee.” 

If there is in fact, a commitment to an ongoing pattern of work in the contract, that could well mean that the employee would not be deemed to be a casual and could create exposures as a result.

Modern Award Reviews

There have been substantial changes made to modern awards over the past two years though the Modern Award Review process that has been going on since 2013.

It is important that employers pick up on any variations that have been made to minimum terms of employment in modern awards and ensure that contracts are not inconsistent with current award provisions.

There have also been changes to National Employment Standards with respect to the requirement for issue of Casual Employee Information Statements and variations to Parental Leave provisions in relation to stillborn babies and those who die within the first 24 months of life.

The Bottom Line

If you do not have written contracts for employees and contractors, get them.

If you do have them but you haven’t reviewed them for a while, get them professionally reviewed.

Finally, make sure that they are truly reflective of the nature of the relationship – for example, if there is an ongoing commitment to an agreed pattern of work, it isn’t casual so you should contract the person as a full-time or part-time employee.

At Ridgeline HR, we can assist with preparation and review of employment contracts. Give us a call on 0438 533 311.

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 introduces loaded rates into the Hospitality Award

FWC introduces loaded rates into the Hospitality Award

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FWC introduces loaded rates into the Hospitality Award

bar fair work loaded rate

On 3 September 2021 the Fair Work Commission introduced loaded pay arrangements into the Hospitality Industry (General) Award 2020. These arrangements allow employers to pay certain employees a higher base rate of pay in lieu of employees receiving payment for overtime, penalty rates and the split shift allowance. The change was brought about after a submission to the Fair Work Commission from the Australian Hotels Association, who claimed that it would simplify Award compliance for employers.

What are the rates and who can be covered?

There are 6 tiers of loaded rates that range between 110.20% and 131.05% of an employee’s ordinary hourly rate. The rates vary depending on how many days of the week the rates apply to, which can be Mon-Fri, Mon-Sat or Mon-Sun, and the maximum amount of weekly hours an employee can work under the arrangement which can be either 40 or 45 hours per week.

It is important to note that the loaded rates can only be applied to employees who are full-time, over the age of 21, are level 3 or above in the Award, not receiving supported wage rates, and do not work on a roster with an RDO.

At this stage employers do not need an employee’s agreement to institute a loaded pay arrangement, however they must give employees at least 7 days notice of their intention to introduce the change. Arrangements must be made in writing and in accordance with Schedule L of the Award which you can view here.

Limitations

The loaded rate does not mean that employees have no entitlement to overtime, penalty rates or allowances. It just limits the circumstances where they will be payable.

The following list contains the parameters for a loaded rate and all time worked outside ranges specified or scope of the arrangement will still attract overtime/penalty rates:

  • Monday to Friday: a maximum of 11.5 hours (excluding meal breaks) per day / shift rostered between 7:00am and 12:00am (midnight);
  • Saturday: a maximum of 10 hours (excluding meal breaks);
  • Sunday: a maximum of 10 hours (excluding meal breaks); and
  • if the period between shifts is 3 hours or less, a split shift allowance must be paid

Additionally public holidays payments are excluded from these arrangements and must be paid per the Award.

If you have any queries, please contact us on 0421 592 541 or at 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

Time to address sexual harassment

Time to address sexual harassment

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Time to address sexual harassment

Over recent years, gender equality and sexual harassment have very much been in the news. That gave rise to our own National Inquiry into Sexual Harassment in Australian Workplaces undertaken by the Australian Human Rights Commission.

Last year, they released the Respect@Work Report on the findings from that inquiry which included:. 

  • that sexual harassment is rife in Australian workplaces and
  • that fundamental systemic change is necessary to protect women’s safety at work and participation in the workforce.

On 10 September 2021, our federal parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 which, among other measures, provided the Fair Work Commission with new powers to receive complaints of sexual harassment and to issue orders for the sexual harassment to stop.

These powers (which are similar to those that the FWC already has for issuing orders to stop bullying) came into operation on 11 November 2021.

What is sexual harassment?

A person sexually harasses another person if they:

  • make an unwelcome sexual advance
  • make an unwelcome request for sexual favours
  • engage in other unwelcome conduct of a sexual nature in relation to the person harassed.

The first two of those are things that any reasonable person would see as clearly falling into the category of sexual harassment. It is the third one “unwelcome conduct of a sexual nature” that gets a bit murkier. Some examples of such conduct might include:

  • sexually suggestive comments or jokes;
  • intrusive questions about private life or physical appearance;
  • unwanted invitations to go on dates;
  • unwanted written declarations of love;
  • sending sexually explicit or suggestive pictures or gifts to a worker, or displaying sexually explicit or suggestive pictures, posters, screensavers or objects in the work environment;
  • intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, or following, watching or loitering;
  • inappropriate physical contact, such as deliberately brushing up against a person, or unwelcome touching, hugging, cornering or kissing;
  • sexually explicit or suggestive emails, SMS or social media (including the use of emojis with sexual connotations), indecent phone calls, circulating pornography or other sexually graphic imagery, or sharing or threatening to share intimate images or film without consent.

So it isn’t just a question of someone trying to pressure someone into having sex, it is anything of a sexual nature which would potentially make someone uncomfortable whether in the physical or virtual workplace or online and on social media.

Who is covered by the legislation?

The legislation uses the definition of a worker under the federal “Work Health and Safety Act 2011” to describe who can make an application to stop sexual harassment. This includes:

  • an employee including an outworker, apprentice or trainee
  • a contractor or subcontractor (and their employees)
  • an employee of a labour hire company working in your business
  • a student gaining work experience
  • some volunteers

Importantly, when it comes to the identity of the alleged perpetrator of sexual harassment, the same broad context applies – anyone who the applicant comes into contact with as part of their work can be the alleged instigator of sexual harassment. This includes workplace visitors, customers and suppliers and their employees or sub-contractors.

What criteria must be satisfied for the FWC to issue orders to stop sexual harassment?

For the FWC to be able to make an order to stop sexual harassment, it must be satisfied not only that a worker has been sexually harassed at work by an individual or individuals (the persons named in the application), but also that there is a risk that the worker will continue to be sexually harassed at work by that individual or those individuals. 

What can the FWC order?

There is the ability for the parties to an application to agree on consent orders to resolve the matter and they are then bound to comply with those consent orders.

For example, the parties could agree to:

  • changes in work arrangements, including in lines of reporting
  • an apology
  • a reference or statement of service (if the employment relationship has ended)
  • commitments by the employer or principal to investigate a complaint or to train staff or to review and update its policies or conduct a workplace risk assessment.

This list is not exclusive and what is agreed will depend on the specific circumstances of the case and the workplace in question.

The focus for the FWC is to try to assure the future safety of the applicant from the sexual harassment complained of.

So, in these cases, the FWC does not have powers to award compensation or, for an employee who has resigned or been terminated, to direct reinstatement.

What should employers do?

The first thing that all employers need to do is to accept the reality that sexual harassment is probably happening in your workplace in one form or another and that you have a legal responsibility to stop it.

Secondly, educate yourself and your management team about sexual harassment, your responsibilities and what you need to do to assure a workplace free of sexual harassment.

Next, review and update your policies and procedures around respectful workplace conduct (or, conversely, discrimination, harassment and bullying) ensuring that they are clear in explanation, practical in application and effective in supporting people to comply with them and to deal with non-compliances in a supportive way.

Then, ensure that all of your people understand the rules, what sexual harassment is and the processes for dealing with it and what they need to do conduct themselves respectfully.

Finally, do a sexual harassment risk assessment and create and implement a risk control plan. Starting with yourself and your management team, identify behaviours that any of your people might practise or experience at work that need to be corrected because they potentially constitute sexual harassment or bullying. Then deal with them – kindly but firmly and regardless of who is involved because that is the right thing to do.

Need help in getting the right things in place, getting your people on board or dealing with complaints?  Then contact us

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