The Fair Work Commission is proposing to vary the Professional Employees Award 2020 in two main areas.

The first is to clarify award coverage and the second is to introduce new provisions on hours of work and overtime.

This Award covers professional engineers and scientists generally as well as other professionals working specifically in the IT, quality auditing, telecommunications services and medical research industries.

Award coverage

One of the questions that often arises with modern awards is where does coverage end when it comes to roles which might have supervisory or managerial responsibilities. 

With this Award variation, the FWC has decided to specifically exclude employees who are “employed in a wholly or principally managerial position”.

Of relevance here is the fact that Award coverage does include supervisory functions exercised while engaged in professional engineering duties as distinct from being “employed in a wholly or principally managerial position”. 

So this differentiation is something that could be subject to different interpretations especially in smaller organisations where someone might be both the lead practising professional and a member of the senior management group.

Given that Award coverage is one of the determinants of eligibility to make a claim of unfair dismissal, we can expect that this might be the subject of occasional arguments on jurisdiction.

Hours of employment and overtime

The Award does not currently have specific overtime provisions although it does provide some guidance on when additional remuneration might apply and what form that might take if an employee works more than the 38 ordinary hours per week that applies under National Employment Standards. 

This variation changes that with a requirement to make payment for all hours worked in excess of 38 hours per week plus a set of penalty rates:

• 25% on hours worked before 6.00 am or after 10.00 pm on Monday to Saturday
• 50% on hours worked on Sundays or Public Holidays

 Employers will also have to maintain records of hours worked in excess of 38 hours per week and during the above “penalty rate hours”.

Plus there are special provisions relating to the application of Time Off in Lieu (TOIL) where an employee wishes to use that option in relation to extra hours worked.

An exemption

An employee is exempt from these requirements if they are paid an annual salary at least 25% above the Award rate for their role.

What should employers do?

Firstly note that, at this point in time, the proposed variations are not operational and orders have not been finalised – but we anticipate that it won’t be too long before that happens and these changes take effect.

One thing that we know is that many employers think that their salaried professional employees do not attract award coverage. Think again – many do under this Award or a number of others. We suggest that you:

1. Look at the classification structures in the Professional Employees Award 2020 – see Schedules A and B towards the back of the Award document. 
2. Determine whether employees fit in that structure and, if so, at what levels
3. Assess how their actual remuneration compares to the Award rates for their classification
4. Review the hours that your professional employees work and when they work them
5. Compare their current remuneration against what they would receive under the Award once the new provisions and penalty payments come into effect
6. Examine what their contracts of employment and your relevant HR policies say on the subject 

 They are the things that we would do if you need advice on how to deal with this issue and any changes that you need to make in any of those areas.

If you need a hand give us a call on 1300 108 488 or email enquiries@ridgelinehr.com.au.

The Fair Work Act has been amended to provide 10 days of paid family and domestic violence leave to all Fair Work system employees whether full-time, part-time or casual.

This is now a National Employment Standard so it is not negotiable and cannot be removed through a contract of employment or enterprise agreement or any other arrangement.

Based on the total number of employees (including full-time, part-time and casuals) that your business has on 1 February 2023, this entitlement takes effect from:

• 1 February 2023 if your business has 15 or more employees; or
• 1 August 2023 if your business has less than 15 employees.

The leave counts as service for all purposes.

This new paid leave entitlement replaces the 5 days of unpaid family and domestic violence leave which has applied for some time under National Employment Standards and modern awards.

How it accrues

On the dates noted above, employees receive their initial accrual of 10 days up front. It does not accrue pro rata with service like most other forms of leave.

After the initial accrual, the entitlement resets every year on the anniversary of the date that an employee started employment in the business. So the leave does not accumulate from year to year.

For example, an employee who commenced employment on 1 June in a business with 15 or more employees would receive:

• An initial accrual of 10 days on 1 February 2023
• Resetting to 10 days on 1 June 2023 and
• Resetting to 10 days on 1 June each year thereafter.

An employee who commences work with a new employer after the employer becomes liable for the leave (ie after 1 February 2023 or 1 August 2023 as applicable) is entitled to the full allocation on commencement of employment and every year on their anniversary date. 

What is family and domestic violence? 

Family and domestic violence is violent, threatening or other abusive behaviour by an employee’s close relative, a current or former intimate partner, or a member of their household that both:

• Seeks to coerce or control the employee and
• Causes then fear or harm.

Who is a close relative? 

A close relative is:

• An employee’s spouse or former spouse, de facto partner or former de facto partner, child or grandchild, parent or grandparent or sibling; or
• A child or grandchild, parent or grandparent or sibling of an employee’s current or former spouse or de facto partner; or
• A person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.

When can paid family and domestic violence leave be used? 

Employees can take paid family and domestic violence leave if they need to do something to deal with the impact of family and domestic violence.

For example, this could include:

• making arrangements for their safety, or safety of a close relative (including relocation)
• attending court hearings
• accessing police services.

The leave doesn’t need to be taken all at once. It can be taken as single or multiple days.

An employer and employee can also agree for an employee to take less than one day at a time. 

What notice and evidence is required?

The need to take family and domestic violence leave is obviously something that can arise suddenly.

Employees should advise their employer as soon as practicable of their need to take the leave and the likely duration of the leave.

An employer can ask for evidence which could include:

• a statutory declaration
• documents issued by the police
• documents issued by a court or
• family violence support service documents

Confidentiality requirements 

Employers have to take reasonably practical steps to keep information about an employee’s family and domestic violence circumstances confidential.

Additionally, employers are specifically prohibited from including information on payslips that shows:

• That an amount paid to an employee is a payment for family and domestic violence leave; or
• That a period of leave taken by an employee has been taken as family and domestic violence leave; or
• An employee’s paid family and domestic violence leave balance.

Current advice from the Fair Work Ombudsman as at 1 March 2023 is that employers must maintain an accurate record of employees’ accrual and usage of family and domestic violence leave but must not state on an employee’s payslip that the employee actually took leave, rather recording it as ordinary time worked or an allowance.

Requests for flexible working arrangements

Under National Employment Standards, an eligible employee may request flexible working arrangements if:

• they are experiencing family or domestic violence or
• if they provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.

Eligible employees are:

• full-time and part-time employees with at least 12 months service and
• casual employees with at least 12 months regular and systematic employment and a reasonable expectation of continuing regular and systematic employment.

There are strict requirements for employers to respond in writing to requests for flexible working arrangements within 21 days of the request being made including reasons why a request has been refused in full or in part if that is the case.Additionally, from 6 June 2023, employees will be able to refer disputed request for flexible working arrangements to the Fair Work Commission for conciliation, mediation or consent arbitration.

Resources for employers and workers experiencing family and domestic violence 

Information on support and educational services can be accessed at:

• Safe Steps Family Violence Response Centre
• GOV.AU
• Domestic Violence Resource Centre Victoria

Need assistance?

We can assist you in developing and implementing policies and procedures and providing other consulting and support services on family and domestic violence issues or other HRM matters. Email enquiries@ridgelinehr.com.au or call 1300 108 488 to access your free first consultation.