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

Fair Work Notice Update

Fair Work Notice Update

Latest News & Events

 

Fair Work Notice Update

Under National Employment Standards, employers are required to give:

It is important that you use the current form of Statement. The Fair Work Information Statement is updated annually with adjustments to the federal minimum wage which normally occur on 1 July each year. The Casual Employment Information Statement has just been updated to provide more and clearer information on casual conversion rights and procedures.
 
If you have any queries, please contact us on 0421 592 541 or at enquiries@ridgelinehr.com.au.

 

If you haven’t the benefit of professional advice on your workplace relations compliance situation or you just want to make sure, you might want to take advantage of our Lockdown Special Offer on a Fair Work Compliance Assessment. Pay just $550 plus GST in lieu of the regular price of $750 plus GST. Check it out. Offer expiring 30 November 2021.

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

Choosing the right HRM software

Choosing the right HRM software

Latest News & Events

 

Choosing the right HRM software

Smart businesses are investing in cloud-based HRM software solutions to optimise efficiency, enhance employee connectivity and engagement and to assure legal compliance with Fair Work and other employment laws.
 
We went on a journey to find the best system and ended up choosing Employment Hero as ticking pretty well all of the boxes we were looking for.
 
Here is a guide that they have produced on how to choose the right HRM software. We encourage you to take a look and, if you want to explore it further, contact us.
 
Download the checklist here.

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

Our 4R Recovery Roadmap

Our 4R Recovery Roadmap

Latest News & Events

 

Our 4R Recovery Roadmap

Relating, reflecting, recalibrating and reconditioning

In Melbourne, as we have been emerging gradually from lockdown and business activity
picks up again, there is a need to have a think about what the COVID-19 situation has meant
for our own business and people and what that means for our people strategies going
forward.

In doing that, it is important not to take a “one size fits all approach” because there are so
many differences in the needs of our people, their respective experiences during the
pandemic and their preferred way of working.

Some had to work from home, some had to go to work and some had no work at all.

Some had to home school, some suffered from social disconnection and loneliness and
many had challenges with maintaining physical fitness and/or mental health.

For some, having tasted it, working from home will have its attractions and for others, the
opposite will be true and the social environment of the office will be the clear preference.

Many will want a bit of both and this hybrid model of working is one that will become very
common in the years ahead.

Some will decide that they want to do something different altogether from what they have
done professionally for many years while some will be happy just to be back doing what
they know and are comfortable with.

So how do you work all of that out and come up with a reasonable approach for your
business and your people? We suggest the following 4 steps.

Relating

Talk to your people and ask them where they are at.

What do they each (individually) want their personal future work situation to look like – the
job that they will do and when, where and how they will do it.

By all means, talk about what might be possible in the context of business needs but don’t
make promises that you can’t keep and don’t discard ideas without really giving them
proper consideration.

That is just really about having a genuine and respectful and open conversation.

Reflecting

Take some time to have a think about what each of your people has said about their
experiences and their preferences going forward.

There could be genuine opportunities that could present in honestly thinking about
different ways of doing things and providing flexible or remote working opportunities.

Are there things that have worked OK or perhaps even better during lockdown?

How can you structure things in ways that are going to work better for the business and
your people?

Recalibrating

The recalibration is about resetting the work experience for people based on what has been
learned from the pandemic situation in the context of the needs of your business and your
people.

The first part of that recalibration is getting your COVID-19 safe workplace plan in place and
ensuring that everyone understands it, is equipped to play their part and does so.

How do you embed the use of technology ongoing where that has reaped benefits during
lockdown and offers opportunities for the future?

Many businesses are reporting higher levels of employee satisfaction with the support they
received from their managers – probably because the need for timely communication
became a priority and more communication activity occurred as a result. Put simply, more
conversations occurred.

How can you maintain a culture of continuous conversations and coaching that will
engender greater employee wellbeing, engagement and higher performance.

Reconditioning

As with any process of change, people take time to adapt.

Many people who have been without work or working from home for months on end will
take time to adjust back to the routine of coming to work.

People need reconditioning – physically, socially, with their use of time and with personal
and family commitments. As noted above, some will want to make adjustments to their
working arrangements to get better balance in their lives.

There are also those who are still concerned about the COVID-19 threat and who therefore
may be reluctant to return to the normal workplace. Education on how you will keep people
safe at work (ie your COVID-19 safe workplace plan) will help this situation.

Then of course there is yourself. What are you doing to ensure your own wellbeing and the
optimal performance of your business for yourself, your family and your people?

If you need any help in answering that question, please feel free to give us a call for a free
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

High Court delivers sanity in ruling on personal/carer’s leave

High Court delivers sanity in ruling on personal/carer’s leave

Latest News & Events

 

High Court delivers sanity in ruling on personal/carer’s leave

In fantastic news for all businesses, the High Court of Australia has sensibly overturned a Federal Court decision which quite unfairly awarded part-time employees the same number of days of paid personal/carer’s leave as full-time employees, regardless of the number of hours that the part-timer actually worked.

For example, a part-time employee working 2 days per week would also have 10 days personal/carer’s leave per annum – effectively 5 weeks paid leave based on their ordinary hours of work.

That was clearly a ridiculous decision which clearly disregarded the obvious intention of the relevant provisions of the Fair Work Act and decades of custom and practice.

What is also great is that, in its decision, the High Court has set some clear and sensible principles as to how to determine how much personal/carer’s leave employees get:

  • The 10 day entitlement in the National Employment Standards means two standard five day working weeks
  • 1 day is a notional day that represents 1/10th of an employee’s ordinary hours in a fortnight or 1/26th of an employee’s ordinary hours per year

What do you need to do?

You just need to ensure that your administration of personal/carer’s leave and the entitlements that your people receive align with the principles set out above. 

The Fair Work Ombudsman has updated their advice accordingly and this can be accessed here.

If you have any queries, please feel free to contact us 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

1.75% Wage Increase for Modern Awards

1.75% Wage Increase for Modern Awards

On Friday 19 June 2020, the Fair Work Commission announced its decision in the 2019-2020 Annual Wage Review.

That decision was to increase the National Minimum Wage and modern award minimum rates of pay by 1.75% but, unusually this year, with three different operative dates for different industries based on their view on the impact of COVID-19 on different industry sectors.

The National Minimum Wage increases from

The effective dates are:

  • 1 July 2020: National Minimum Wage & Award Group 1 (mainly health and community services, children’s services and aged care, emergency services, cleaning services, non-tertiary education and public service sectors)
  • 1 November 2020: Award Group 2 (most awards including common ones like clerical, building and trades, manufacturing, graphic arts, gardening, farming, transport and distribution, professional services, mining and quarrying, tertiary education)
  • 1 February 2021: Award Group 3: (mainly retail, hospitality, food services, events, recreation and entertainment, personal services such as fitness, hair dressing and dry cleaning)

Here is a detailed listing of each Award group: Modern Award Groups

The new rates are payable from the commencement of the first full pay period occurring on or after the relevant operative date.

For employers, the different scenarios that can apply are:

  1. If you have employees who are covered by a modern award and you otherwise apply all of the terms and conditions of the award, you must ensure that employees are paid at least the award rate for their classification as adjusted for this decision.
  2. If you have employees who are award free and not covered by an enterprise agreement, you must ensure that they are paid at least the National Minimum Wage as adjusted for this decision.
  3. If you have employees who are covered by an award and you pay them on an annualized wage basis or on a salary or all purpose rate which sets off certain monetary employment conditions such as annual leave loading, overtime and shift loadings, penalty payments and allowances, you need to recalculate the rate of pay to ensure that the employee remains better off overall against award entitlements and comply with any award provisions that might apply to annualized wage arrangement.
  4. If you have employees who are covered by an enterprise agreement which provides for annual adjustment of wages in line with Annual wage Review decisions of the Fair Work Commission, you need to adjust wages by 1.75% from the operative date for the relevant award.
  5. If you have employees who are covered by an enterprise agreement but the agreement does not provide for annual adjustment as per 4., you need to ensure that wages paid are at least equal to those applying to the underpinning modern awards or the National Minimum Wage as applicable from the relevant operative date.
  6. You need also to have regard to any provisions in employment contracts which might provide an obligation to pass on any increases separate from or additional to any of the above scenarios.

Please also note that, the ongoing modern award review process has resulted in a number of changes to modern awards (including, in some cases, changes to the calculation of minimum wages and also changes to the calculation of annualized wages) since the last Annual Wage Review.

This likely also means that you will need to review your employment contracts, something that we recommend that you do at least once a year in any case.

The Fair Work Ombudsman has a Pay Calculator Tool on its website and also publishes Pay Guides for each award – these provide detailed advice on ordinary time and overtime and penalty rates for each classification in the relevant award. You can access these resources at https://www.fairwork.gov.au/pay/minimum-wages/pay-guides.

If you need assistance in understanding and applying the effects of this decision in your business, we are happy to assist. We offer a free initial phone consultation if this is of interest to you.