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

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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

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Increase in weekend wages in hair and beauty industry

Increase in weekend wages in hair and beauty industry

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Increase in weekend wages in hair and beauty industry

award rate Fair work casual loading

The Fair Work Commission recently decided to increase penalty rates for weekend work performed by casual employees under the Hair and Beauty Award.

Casual weekend penalty rates will increase in 5 instalments starting from 31 January 2022 and finishing on 31 December 2023. From 3 November 2021 to 30 January 2022, casuals will continue to be paid their usual weekend penalty rate.

The penalty rate applying to ordinary hours worked on Saturdays inclusive of the casual loading is:

  • From 3 November 2021: 133%
  • From 31 January 2022: 138%
  • From 30 April 2022: 143%
  • From 31 December 2022: 148%
  • From 30 April 2023: 153%
  • From 31 December 2023: 158%

The penalty rate applying to ordinary hours and overtime hours worked on a Sunday inclusive of the casual loading is:

  • From 3 November 2021: 200%
  • From 31 January 2022: 205%
  • From 30 April 2022: 210%
  • From 31 December 2022: 215%
  • From 30 April 2023: 220%
  • From 31 December 2023: 225%

It should also be noted that award rates in the Hair and Beauty Award 2020 have been increased by 2.5% effective from 1 November 2021 in line with this year’s Annual Wage Review decision by the Fair Work Commission. This was delayed from 1 July 2021 due to the impact of COVID.

Further increases in award rates as a result of Annual Wage Reviews can be expected to apply from 1 July each year in line with the provisions of the Fair Work Act.

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

New superannuation stapling rules take effect from 1/11/21

New superannuation stapling rules take effect from 1/11/21

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New superannuation stapling rules take effect from 1/11/21

superannuation ATO

From 1 November 2021 the new superannuation stapling rules came into effect. These rules have been designed to reduce the chance of employees accumulating multiple superannuation accounts when they move between jobs and hence paying multiple sets of fees and insurance premiums.

What are the new super stapling rules?

From 1 November 2021, every employee’s active superannuation accounts will be “stapled” to them. This means that, in the event that they move jobs, the employee’s superannuation accounts that were active on 1 November 2021 will become their default fund at their new job as opposed to the employer nominated fund.

If the employee starts a new job and does not choose their own superannuation fund, the employer must now check with the ATO to see whether that employee has any superannuation funds “stapled” to them. In the event that they do, then employers must use that existing fund rather than their own default fund. If there is more than one fund “stapled” to an employee, then the ATO will use its own set of rules to determine which is the fund that the employer will need to make contributions into.

If an employee hasn’t made a choice of superannuation fund and has no fund “stapled” to them, then employers may enrol them in their own nominated fund.

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

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The third tranche of Awards get pay rise

The third tranche of Awards get pay rise

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The third tranche of Awards get pay rise

In this year’s annual wage review, the Fair Work Commission decided to implement the increases to award wages in three stages.

In the third and final of those stages, the following awards will see minimum rates increased by 2.5% with effect from 1 November 2021:

  • Pilots Award
  • Cabin Crew Award
  • Airline Ground Staff Award
  • Airport Award
  • Alpine Resorts Award
  • Amusement Award
  • Dry Cleaning and Laundry Award
  • Fitness Award
  • Hair and Beauty Award
  • Hospitality Award
  • Live Performance Award
  • Models Award
  • Marine Tourism and Charter Vessels Award
  • Nursery Award
  • Racing Clubs Events Award
  • Racing Ground Maintenance Award
  • Registered Clubs Award
  • Restaurant Award
  • Sporting Organisations Award
  • Travelling Shows Award
  • Wine Award

From this date, employees covered by any of these awards must, at a minimum, be paid the new award rate for ordinary hours.

If employees are paid above the award rates, the increases can be absorbed against over award payments subject to any qualifications that may be included in enterprise agreements or contracts of employment.\

The normal penalties and loadings apply (on top of those minimum rates) for overtime, shiftwork and work on weekends, early mornings, evenings and public holidays.

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

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