Some of the changes to the Fair Work Act which came into effect on 1 July 2013 include ‘family friendly’ amendments, such as unpaid parental leave, special maternity leave, and the right to request flexible work.
Parental leave
The following changes have been made to the Fair Work Act:
The existing right to request flexible working arrangements has been extended to include employees who are parents of school age children, are carers, have a disability or are over 55 years old. There are also extended provisions in connection with violence from family members.
The inclusion of a non-exhaustive list of what constitutes ‘reasonable business grounds’ for refusing requests for part-time work on return from parental leave or a request for flexible working arrangements.
The amount of concurrent unpaid parental leave that a couple can take has been increased from 3 weeks to 8 weeks and can now be taken at any time within the first 12 months of the birth or adoption of a child.
Transfer to a safe job
The Fair Work Act is also amended to expand the right for pregnant women to transfer to a safe job to all pregnant employees, even if they have been employed for less than 12 months.
Information Statement
The Fair Work Information Statement — which must be provided to all new employees — is also amended with effect from 1 July 2013, so that it must now include details of the range of circumstances in which an employee may request a change in working arrangements.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
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When a new owner takes over a business, at what point is he considered to have ’employed’ the existing staff?
In a recent case before the Fair Work Commission, a café in Melbourne was taken over by a new owner, SK, on 10 September 2012. No information was given about future employment conditions but the manager encouraged staff to be patient and understanding with the new owners. There was no new paperwork in respect to employment, no change to shifts, no change to wages, and no request for taxation declarations.
Annual leave entitlements were paid out at the time of the transfer of business.
At that time, one of the workers, B, had been employed on a permanent part-time basis for more than 12 months. He continued working on the usual basis until 22 September, when he received a text message from SK which read: ‘Hi B, it is S, I just want to tell u that I’m not happy to have u with our staff members anymore, I will contact u very soon for ur wages.’
Unfair dismissal proceedings were commenced by B against SK even though B had only been employed by SK for about two weeks.
During the proceedings, SK submitted that he felt a need to reduce the number of employees and observed their performance over a two-week period to choose who should stay and who should go. He said that after watching the workers he ‘didn’t select B for my staff’.
SK added: ‘I didn’t dismiss him, for he was not my employee, I simply chose not to select him for my business.’
Employed ‘before and after’
The Fair Work Commission found that B was employed in the business before the transfer and after the transfer.
The Commission determined that because B had not been informed in writing that the period of service with the old employer would not be recognised, the period of service with the first employer counts towards the period of continuous service.
Accordingly, the Commission found that B did in fact have more than 12 months of continuous service and was protected from unfair dismissal.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
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Most people will probably be aware of the changes to superannuation guarantee contributions but what do these changes mean for employers?
All employers need to be aware that the changes to the superannuation regime will increase employers’ superannuation obligations. Starting from 1 July 2013 the compulsory contributions rate will increase from 9% to 9.25%.
Superannuation regime
The changes introduced by way of the Superannuation Guarantee (Administration) Amendment Act 2012 means that compulsory superannuation guarantee contributions will increase over a seven year period, from the current rate of 9% to 12%.
The increases will be gradual, as follows:
Income year Charge percentage
Starting 1 July 2013-2014 9.25%
Starting 1 July 2014-2015 9.5%
Starting 1 July 2015-2016 10%
Starting 1 July 2016-2017 10.5%
Starting 1 July 2017-2018 11%
Starting 1 July 2018-2019 11.5%
Starting 1 July 2019-2020 12%
Removal of the Upper Age Limit
The Act also has an impact for employers when it comes to paying superannuation guarantee contributions to employees over the age of 70. Currently, employers are not obliged to make payments in respect of employees who are age 70 and over. However, from 1 July 2013 employers will be obliged to make superannuation contributions for all their employees. The changes will also ensure that employers will be able to claim income tax deductions for superannuation guarantee contributions made to employees aged 70 and over from 1 July 2013.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
Under the National Employment Standards (NES), employees have an entitlement to a paid day off on a public holiday unless it is reasonable to ask an employee to work. Many businesses remain open over public holidays and need employees to work. This can lead to confusion and disputes over whether or not it is reasonable to ask an employee to work on a public holiday.
Requests to work on a public holiday
The factors set out in the NES to determine the reasonableness of a request to work (or the reasonableness of a refusal to work) on a public holiday are:
the nature and operational requirements of the workplace
the type of work required to be performed
the employee’s personal circumstances (eg family responsibilities)
any reasonable expectation that public holiday work is required
entitlements to be compensated for working on the public holiday
the type of employment of the employee (ie full-time, part-time or casual)
the amount of advance notice provided to the employee to work on the public holiday, and
the amount of advance notice given by the employee if refusing to work on a public holiday.
What does this mean for employers?
Employers requiring employees to work on public holidays should:
consider the reasonableness of the request
provide as much notice as possible to avoid an employee claiming that the request was unreasonable, and also
consider any obligations that may arise under industrial instruments such as enterprise agreements or modern awards that regulate employees’ entitlements on public holidays
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
The Christmas/New Year period provides employees with an opportunity to celebrate the year that has passed. Employees can ‘forget’ the appropriate conduct required of them, particularly when alcohol is involved and when functions are held offsite and outside normal working hours. As a result, employers may now been dealing with the ramifications of any incidents which occurred during this period.
Recent Decision
An employee was involved in a physical assault (head-butting another employee) at a Christmas function. An investigation into the incident was not finalised until April in the following year, but by this time another allegation of assault had been made against the same employee.
In response to the second incident, the employer concluded that the second alleged assault (which was denied by the employee), together with the head-butting incident at the previous Christmas party, established a pattern of unacceptable misconduct. The employer dismissed the employee for serious misconduct.
When considering the employee’s subsequent unfair dismissal claim, Fair Work Australia found that:
No proper investigation had been undertaken.
The relevant manager displayed manifest bias.
The manager had pre-determined his views before hearing from the employee.
The manager ambushed the employee with the allegations and he unreasonably refused to allow the employee to have a support person of his choice attend the investigative interview.
All of these actions resulted in the employer failing to provide procedural fairness to the employee. Fair Work Australia decided the employee’s termination was unfair and awarded compensation.
Proper investigation is the key
To minimise the effect of any claims for unfair dismissal, you should take steps to properly investigate the incident and provide procedural fairness to employees during the process.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
It is becoming more common for employers to be asked by employees to connect their personal devices such as smart phones, laptops and tablets to the employers’ IT systems. The convenience, flexibility and potential productivity gains make allowing an employee to ‘bring your own device’ (BYOD) appealing.
However the use of BYOD, including in non-work hours, can present a number of risks for employers, if the arrangements are left unmanaged.
Factors to consider with BYOD arrangements
Employers need to consider whether it is appropriate to allow employees to access work systems from a personal device which may not have the security, and controls that company devices have. In order to protect a business’ interests it may be necessary for IT to have access to the personal device in order that confidential or sensitive information can be wiped in the event that the device is corrupted or lost.
Additionally, unmonitored connection of a business’ IT systems to personal devices could lead to breaches in confidentiality, unauthorised disclosure of confidential information and use of personal information that is contrary to privacy laws.
Employers may be able to avoid this by implementing measures that require employees to use passwords and report lost devices where confidential or sensitive information is available on the device.
There may also be surveillance issues for employers in certain circumstances when BYOD arrangements are entered into.
The value of appropriate policies
If employers wish to protect their legitimate business interests and guard against inappropriate employee conduct, appropriate policies are essential.
Policies should be put in place to cover BYOD arrangements where:
employees are required by the business to use their own device such as a smart phone or tablet in the performance of their job; or
an employee wishes to use their device to receive work related data and information via their own device.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate policies for your workplace because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
There are many different ways for an employer to engage an employee, so it is vitally important that the employment contract correctly reflects the actual employment relationship.
Various employer/employee relationships
Employees are generally engaged on a:
full-time
part-time, or
casual basis.
The terms and conditions of employment may change if the employee is:
employed for a fixed-term
covered by an award or enterprise agreement, or
an executive employee.
Courts have found in many cases that employees are in fact a different type of employee to that stated in their employment contract. For example, workers who the employer considered to be casuals have been found actually to be permanent employees, with the result that they had access to employee entitlements such as the unfair dismissal jurisdiction or parental leave.
In the case of Williams v McMahon Mining Services, Mr Williams’ letter of employment noted that he was employed as a casual, however he worked the same hours on a set roster. The Court found that Mr Williams was not a true casual because he was employed on a regular systematic basis. As a result his employer was required to pay Mr Williams the entitlements of a permanent employee, including accrued annual leave.
What can happen if I use the wrong contract?
Using the wrong type of employment contract could result in:
accrual of leave entitlements
access to unfair dismissal
access to leave the employee may not otherwise be entitled to
a breach of industrial instruments, such as an Award, or
an underpayment claim.
Additionally, using the wrong type of employment contract could expose you and your company to the imposition of fines, including a maximum civil penalty of up to $33,000 in the case of a corporation, and $6600 for an individual.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate employment contracts for your staff because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
Most employers implement policies and procedures to minimise liability which may arise from their employees’ actions. It is also important for employers to make their employees aware of the policies, train and implement them into the workplace, and penalise employees who breach those policies and procedures.
A recent case before the Administration Decisions Tribunal (ADT) shows how these actions can make all the difference.
In this case the Applicant, ‘C’, received a piece of paper at a training session from ‘L’ which contained sexually explicit material. C felt so violated it led her to the police station. C returned to work and made a complaint against L alleging sexual harassment.
C also sued her employer, claiming it was vicariously liable for the conduct of L.
The ADT dismissed C’s complaint against the employer and found the employer never authorised L’s action and took ‘all reasonable steps’ to prevent this behaviour.
This was established because:
The employer had provided employees with relevant policies and procedures
L was provided with the Code of Conduct on five occasions
L had undertaken mandatory training on harassment, bullying, and the Code of Conduct on four occasions
The employer acted upon the complaint immediately by conducting an investigation
The employer apologised to C
As a result of this investigation, L was disciplined and provided with a first and final warning
The ADT substantiated the complaint of sexual harassment against C, and L was ordered to pay $10,000 in damages to C.
Employer tip
To avoid your business being held vicariously liable for an employee’s conduct, ensure it is taking all reasonable steps to educate staff about what is acceptable behaviour in the workplace.
A good practice is to:
Have policies and procedures in place
Implement the policies
Provide regular education and training sessions to all employees
Deal with all complaints promptly, and investigate the situation thoroughly
Penalise breaches of the polices and conduct
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
There are a number of valid reasons to terminate employment. These include:
Capacity
Capacity relates to the employee’s ability to perform the inherent requirements of the job. To rely upon capacity as a reason for termination, the core duties of a position should be compared against the employee’s ability to perform those duties. Evidence should exist to attest to the lack of capacity, and reasonable alternatives considered to termination.
Conduct
Reasons related to conduct can range from serious contraventions of workplace health and safety obligations to serious misconduct. There must be evidence that the conduct occurred. You should then assess whether termination is fair or whether a lesser form of disciplinary action is more appropriate.
Performance
In cases of persistent poor performance of duties, the employee should be notified of the precise issues, given an opportunity to respond and generally provided with a reasonable period of time to improve. There should be prior warning that continued poor performance may result in termination.
Genuine redundancy
Genuine redundancy may constitute a valid reason if it can be demonstrated that a position is no longer required to be performed by anybody, consultation with the employee has occurred, and acceptable redeployment options considered and offered.
Termination Pursuant to Employment Contract
The employer may terminate provided the employment contract contains a mutual notice of termination clause, and provides for the same or more generous notice period than required by the National Employment Standards.
Termination of any employment is always a serious issue, often involving complex legal issues and heightened by emotion and stress on both sides. Expert legal advice is required.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
The Government-funded Paid Parental Leave scheme (PPL scheme) commenced on 1 January 2011. From 1 July 2011, employers have been required to facilitate the payment of paid parental leave (PPL) through their payroll.
Who is eligible?
Employers are not responsible for determining whether a person is eligible; the assessment is completed by the Family Assistance Office (FAO)
In order to be eligible the employee must meet certain criteria, including a carer test and work related tests.
How does it work?
The scheme provides eligible working mothers and initial primary carers of children born or adopted on or after 1 January 2011 with PPL for the duration they are not working, to a maximum of 18 weeks at the national minimum wage.
PPL payments will be paid in ‘instalments’ where possible on the employee’s regular pay day, however an employer is not obliged to make an instalment until they have received the amount due to be paid from the FAO.
Employer obligations
An employer’s obligations include:
pay instalments to the employee when the funds have been transferred from the FAO and, where possible, in accordance with the employee’s usual pay cycle
not withhold unauthorised deductions
comply with all of its other obligations, including those which might arise under an industrial instrument, contract of employment or other law — for example, annual or long service leave.
provide a pay slip to the employee in the same manner as usual and in accordance with normal pay slip requirements
make and keep records for 7 years for each person who receives PPL pay
notify FAO in writing as soon as practicable if any relevant business changes happen — for example bank details, payroll dates, ceasing of business, person ceases to be employed (for example, is made redundant), person returns to work, and if any underpayments or overpayments of PPL instalments occur.
How Everingham Solomons can help
If you think your business could benefit from a Paid Parental Leave policy, contact the employment law team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Jessica Simmonds.
Some of the changes to the Fair Work Act which came into effect on 1 July 2013 include ‘family friendly’ amendments, such as unpaid parental leave, special maternity leave, and the right to request flexible work.
