Probation ain’t what it used to be

Probation ain’t what it used to be

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Probation ain’t what it used to be

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One of the most common questions that we get asked is what an employer needs to do if they want to dismiss a new employee during their probation because it isn’t working out …. our answer might surprise you.  

If I sack someone when they are on probation, I’m protected from an unfair dismissal claim, right?

The answer is that you probably are but not specifically because they are on probation.

That used to be the case under the Workplace Relations Act 1996 which preceded the Fair Work Act 2009.

Back then, the legislation actually provided for probation periods of up to 3 months or longer if the technical requirements of the role justified it and there was a legislated exemption from unfair dismissal claims for employees on probation……..but that all went out with the Fair Work regime.

So what are the rules now?

Under the Fair Work Act, employees have to serve a qualifying period of service with an employer before they are eligible to make an unfair dismissal claim and that is:

  • 6 months in the case of an employer with 15 or more employees (simple headcount including full-time, part-time and regular casual employees and those employed by associated entities); or
  • 12 months in the case of an employer with less than 15 employees.

There are a few other exemptions such as where termination occurs as the natural expiration of the period of an apprenticeship or fixed term engagement. 

So we are safe if the employee hasn’t qualified to make an unfair dismissal claim?

Well, you would like to think so, wouldn’t you?

That isn’t the case though because there are multiple jurisdictions in which an employee or ex-employee can prosecute a grievance.

One of those is an adverse action complaint under the General Protections provisions of the Fair Work Act where a claim of discrimination on prohibited grounds or of victimisation for exercising a workplace right  can be made.

Another is a claim of underpayment of wages to the Fair Work Ombudsman or there could be a WorkCover claim for psychological injury from the trauma of the termination process.

So should I even bother about probation periods?

 Absolutely, you should.

A robust probation review process whereby an employee’s progress is monitored constructively and supportively and they get regular feedback and instructions on what they are doing well and any areas requiring improvement is just good people practice. 

The other thing is that, if the new employee doesn’t work out and you have gone through that good probation process with them fairly, that is a protection against claims in other jurisdictions on the basis of what they call “reasonable management action”.

So yes you should have them and you should exercise them and you should document the actions taken through them. 

Anything else

We have had cases where “skeletons jumped out of the closet” when an employee was terminated – perhaps there were bullying complaints that were brewing or there was an underpayment issue that hadn’t been raised but which emerged when the ex-employee investigated their options and got advice from an authority like the Fair Work Ombudsman or WorkSafe or from a friend or family member or their union.

The bottom line with this is that no employer can afford to not have someone who they can rely on to provide them with the right advice on their wage and other employer obligations, whether that be through an internal HR resource, membership of an employer or industry association which provides such a service or through appropriately experienced and knowledgeable employment lawyers or workplace relations consultants like us.

And please, before you terminate someone, get some professional advice on how to go about that (or even if you should).

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.

 

 

 

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Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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What are the big HR issues for SMBs in 2025?

What are the big HR issues for SMBs in 2025?

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What are the big HR issues for SMBs in 2025?

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Hey everyone, 2025 is already shaping up as another big year of legal change so we are running a free webinar to give you the heads up on what the big issues are this year. 
Headlining that list is the new criminal offence of wage theft and the Voluntary Small Business Wage Compliance Code that became operative from 1 January. 
But there is lots more with changes already happening with a number of awards, people being able to prosecute unfair contract claims next month, the new positive duties regarding psychosocial hazards and sexual harassment to really kick in plus more to talk about.
Joining me to discuss all of that is the wonderful Jessy Warn from HR Gurus who are specialists in helping SMBs with PEOPLE STUFF with NO FLUFF.
They have just celebrated their 15th birthday so they aren’t new kids on the block – they know their stuff.
See you there.

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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More award changes from Aged Care Work Value Case

More award changes from Aged Care Work Value Case

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More award changes from Aged Care Work Value Case

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The Fair Work Commission has made further variations to awards in the aged care sector as part of the Aged Care Work Value Case which delivered a minimum 15% increase to aged care workers last year, The new variations involve wage increases, new classification structures and transfer of coverage of some aged care workers from one award to another.

Background

One of the key areas of reform for the Albanese Government has been that of wage equality.

It is nearly two years now since the Fair Work Commission was given the powers to conduct work value reviews for industries where the workforce is predominantly female such as aged care, nursing and midwifery, children’s services and early education.

The Aged Care Work Value Case is well advanced now – into Phase 3 of changes – which have seen significant wage increases and revisions of classification structures and award coverage over the past year.

This latest batch of changes continues that process.

Increases to award wages

In the Stage 3 decision of the Work value case – Aged care industry, an Expert Panel for pay equity in the Care and Community Sector determined that minimum wage increases will apply to:

  • All workers covered by the Aged Care Award 2010, except Head chefs/cooks
  • Home care workers providing services to an aged person covered by the Social, Community, Home Care and Disability Services Industry Award 2010

The increases will take effect from the first full pay period starting on or after 1 January 2025. The amount of the increase varies according to an employee’s award and classification.

A further increase will apply for some direct care workers from the first full pay period starting on or after 1 October 2025.

Coverage changes – nursing assistants

From 1 January 2025, nursing assistants who provide care services to aged persons in either the aged care industry or the home care sector under the Nurses Award 2020  will have their award changed to either the Aged Care Award 2010  or the Social, Community, Home Care and Disability Services Industry Award 2010.

They are also eligible for the wage increases referred to above

New classification structures for direct care workers

From 1 January 2025, direct care workers in the Aged Care Award 2010  and Social, Community, Home Care and Disability Services Industry Award 2010, as well as nursing assistants whose coverage has changed to these awards, will have a new, separate 6-level classification structure setting out the qualifications and experience defined at each level.

How can we help?

If you need assistance with interpreting  awards and the effects of these changes in award provisions for your business, we can help.

Just give us on 0438 533 311 to arrange your free first consultation.

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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Changes to entry level award classifications

Changes to entry level award classifications

Latest News & Events

Changes to entry level award classifications

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The Fair Work Commission has undertaken a review of entry level classifications in 45 modern awards and that is resulting in some key changes.

What’s changing?

The Fair Work Commission has decided that, where entry level provisions in modern awards had pay rates below the level of the federal minimum wage, they can only apply for a limited period while a new employee with no industry skills and experience learns their new job. 

The length of the limited period varies between awards but is most commonly 3 months and none allow for more than 6 months. 

Awards which just have changes to introductory level rules

These awards have variations from 1 January 2025:

  • Airline Ground Staff Award
  • Amusement Award
  • Animal and Veterinary Services Award
  • Australian Government Award
  • Dry Cleaning and Laundry Award
  • Fitness Award
  • Food and Beverage Manufacturing Award
  • Funeral Award
  • Graphic Arts and Printing Award
  • Joinery Award
  • Live Performance Award
  • Manufacturing Award
  • Marine Tourism and Charter Vessels Award
  • Meat Award
  • Pest Control Award
  • Port Authorities Award
  • Textile, Clothing, Footwear and Associated Industries Award
  • Timber Award
  • Travelling Shows Award
  • Vehicle Award

Plus the changes in the Horticulture Award take effect from 1 April 2025

Awards which have changes to minimum rates and introductory level rules

These awards have variations from 1 January 2025:

  • Air Pilots Award
  •  Aquaculture Industry Award
  • Architects Award
  • Business Equipment Award
  • Cement, Lime and Quarrying Award
  • Children’s Services Award
  • Concrete Products Award
  • Cottin Ginning Award
  • Electrical, Electronic and Communications Contracting Award
  • Rail Industry Award
  • Seafood Processing Award
  • Sugar Industry Award
  • Wine Industry Award
  • Wool Storage, Sampling and Testing Award

Plus the changes in the Pastoral Award take effect from 1 April 2025.

Enterprise Agreements

If an organisation has an enterprise agreement in place, they still have to pay new employees at least the new introductory rates that apply under modern awards from 1 January 2025 or 1 April 2025 as applicable. 

How can we help?

If you need assistance with interpreting  awards and the effects of these changes in award provisions for your business, we can help.

Just give us on 0438 533 311 to arrange your free first consultation.

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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TELL US WHAT YOU NEED HELP WITH

Free webinar on Voluntary Small Business Wage Compliance Code

Free webinar on Voluntary Small Business Wage Compliance Code

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Free webinar on Voluntary Small Business Wage Compliance Code

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We’re kicking off our free webinars on “Navigating Fair Work, Modern Awards, Positive Duties and all that people stuff” in 2025 with a timely one on the new Voluntary Small Business Wage Compliance Code designed to help you ensure that you don’t get found to be guilty of wage theft.

Who should attend? 

While the code is specifically designed for and only legally applies to most employers with less than 15 employees, the principles that it sets out are relevant to any employer.

If you have 15 or more employees, spending time looking at the “relevant matters” that the Code prescribes and seeing how you stack up against them is worthwhile. After all, these are the things that the Fair Work Ombudsman and the Courts will be considering in cases involving underpayment of wages and entitlements.

About the presenter

Peter Maguire is an acknowledged expert on workplace relations compliance and has been advising employers large and small across all sorts of industries for over 30 years.

He has a practical approach to managing people and compliance issues and is especially known for his creative abilities to come up with innovative solutions to common problems or to find a pathway for dealing with unusual ones.

So Peter is well equipped to help you navigate this new element of Fair Work compliance.

Bookings

 Places are limited so reserve your place at https://www.trybooking.com/CXXQI 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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Offshore worker’s unfair dismissal claim allowed

Offshore worker’s unfair dismissal claim allowed

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Offshore worker’s unfair dismissal claim allowed

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Are you using offshore workers in the belief that they are not covered by Australia’s Fair Work system? Well, you might be right….but then again, you might not.

What has happened?

Deputy President Slevin at the Fair Work Commission has determined that an offshore worker in the Philippines deemed by her contract to be an independent contractor is actually an Australian National System Employee with access to our unfair dismissal jurisdiction.

The case of Ms Joanna Pascua v Doessel Group Pty Ltd involves a worker engaged to do paralegal work for a Queensland law firm which terminated her contract due to alleged breach of contract which was disputed by the worker and resulted in her lodging an unfair dismissal claim.

That led to a jurisdictional hearing as the respondent alleged (among other things) that she wasn’t an employee and so couldn’t be dismissed.

Here is the decision.

Why did the FWC make that determination?

In his decision, the Deputy President goes into quite a bit of detail on the terms set out in the written contract between the parties as well as the duties and working arrangements for the applicant and relevant case law.

One problem for the respondent was that, in parts, the contract referred to the other party as an employee or had provisions which would typically be associated with an employment arrangement.

The Deputy President also made note that the worker was more likely to be an employee because she worked inside the respondent’s business rather than providing services to the business from outside it. That perspective might be a bit of a red flag for the validity of many nominal independent contracting arrangements, whether local or overseas.

Reference was also made to KPIs that were set for the worker and to potential award coverage under the Legal Services Award 2020 with commentary that what the worker was getting paid ($18 per hour) was significantly below the award rate for the classification of work that she was performing as he saw it. Another red flag perhaps given the current federal government’s legislative changes to protect “employee-like workers” and provide the Fair Work Commission with the power to deal with complaints of unfair contractual terms from independent contractors.

The Deputy President concluded: “For the foregoing reasons I find that the relationship was an employment relationship. Accordingly, the Respondent’s objection is dismissed.” I would note that the foregoing reasoning was a lot more extensive than what I have set out above but hopefully my summary gives you the gist of the factors in play. 

What does it mean?

One of the things that has been repeatedly emphasised in the extraordinary range and number of changes that we are experiencing in our workplace relations system is that the focus going forward will be on the true nature of the relationship rather than just what is written in a contract

Another is to provide some level of security and protection and complaints jurisdictions for what have been called “employee-like workers”, those who might not be classified as National System employees because they are nominally not employees.

While we might not have expected that this would extend to offshore workers, this decision brings a whole new rage of considerations to bear in entering into offshore engagement arrangements.

One thing that is very clear from this case is that the poor drafting of the contract between the parties was a significant factor in the Deputy President’s considerations – he literally pulled it to pieces.

So any business entering into independent contractor arrangements whether locally or overseas needs to get professionally drafted contracts that don’t leave any doubt as to the relationship between the parties.

Another issue to consider which has been on our mind. Is one of the potential outcomes of a complaint to the Fair Work Commission re unfair contract terms by an independent contractor, a determination that the worker is a National System employee rather than a contractor? We reckon that might be on the cards. What do you think?

If you need any assistance with this or any other employment or related matter, please contact us on 0438 533 311 or by emailing us at enquiries@ridgelinehr.com.au

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH