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On 27 March 2021 a number of amendments to the Fair Work Act 2009 (Cth) commenced operation that relate to employment of casual employees and rights and obligations of casual employment.

A number of the changes were introduced in an attempt to remove uncertainty around engagement of casual employees that has arisen in recent cases that deal with the definition of casual employees and their entitlements if a court rules they should properly be classified as a permanent employee.

The legislation includes the introduction of a statutory definition of casual employment, along with provisions that address the double-dipping and set-off implications of the Rossato decision. The amendments also include new casual conversion provisions.

Statutory definition of “Casual Employment”

The proposed statutory definition of casual employment draws on current terminology relied upon by the Federal Court, referring to the absence of any “firm advance commitment” between employers and casual employees that the work will continue indefinitely or follow an agreed pattern of work. The definition is based on the circumstances understood

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COVID-19 Vaccinations and the Workplace

There is currently much discussion and debate about whether and, if so when, COVID-19 vaccinations might be mandated or required in certain situations. Some employers will be impacted by this discussion more than others however all employers likely to be faced with the issue to some extent once the vaccination becomes widely available.

It is likely that a direction from an employer for its employees to receive the vaccine will result in controversy and quite possibly legal action on the basis of objections that may include medical, religious or political grounds. Whether or not such a direction from an employer is valid will depend on a number of factors, primarily whether the direction is “lawful and reasonable”.

On Friday 19 February 2021, IR Minister Christian Porter confirmed the latest guidance from the Fair Work Ombudsman and Safe Work Australia that, in most cases, voluntary vaccination will be encouraged with mandatory vaccination unlikely to be implemented. Safe Work Australia has confirmed that an employer’s duty is “...to eliminate, or if that

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Performance Management Done Properly is Not Bullying

In a decision that provides reassurance for compliant employers, the Fair Work Commission has dismissed a former employee’s unfair dismissal claim, stating “It is unfortunately easy to respond to performance or disciplinary allegations, with counter allegations of bullying, but such counter allegations have to be substantiated otherwise they may not be accepted.”

 

The case involved an employee who claimed she had been forced to resign due to “mental harassment” and bullying by the employer. The employer responded by stating that:

“the applicant has simply taken extreme exception to being brought into a procedurally fair and reasonable performance meeting, being issued a first written warning and being placed on a performance management plan. Any unsubstantiated claims of harassment and bullying made after the fact are a direct result of her objection to being taken through a fair and reasonable performance management process.”

Deputy President Hamilton effectively agreed with the employer, taking into account the timing of the allegations by the employee and the fair and reasonable performance management process that

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JobKeeper 2.0 ending on 28 March 2021: what next?

The Treasurer, the Hon Josh Frydenberg, has indicated that it is likely that JobKeeper payments (and by inference flexibilities) will cease as planned on 28 March 2021. Many employers continue to rely on JobKeeper payments and flexibilities to keep their business going and to keep employees employed.

 

Employers who have enjoyed the benefits of JobKeeper-enabled directions under the legislation, both those receiving JobKeeper payments and those who are not, are questioning whether they can require employees to continue working reduced hours and what options are available if their business is still not back to pre-COVID capacity.

In the absence of JobKeeper payments, and the associated temporary flexibilities in the Fair Work Act 2009 (FWA) that permit the employer to give JobKeeper-enabled stand down and other directions, employers must abide by the usual requirements under the legislation and case law.

Options for employers include:

  • Stand Down under s.524 FWA:
  • an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of
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Dismissal of Casual Employee Must Be Fair

A recent decision of the Fair Work Commission is a reminder to employers to ensure the dismissal of a regular and systematic casual employee is based on valid reasons and is not unfair, unjust or unreasonable.

It is not uncommon for employers to approach dismissal of a casual employee with the mistaken belief that, as they are not permanent employees, the employer can terminate the employment without cause by providing the minimum notice period (often one hour or one day).

However, provided they have served the minimum employment period, a casual employee employed on a “regular and systematic basis” is eligible to make a claim for unfair dismissal on the basis that there was no valid reason for the dismissal and/or the dismissal was harsh, unjust or unreasonable. “Regular and systematic” has been interpreted widely by the courts to include situations where there is no clear pattern or roster of work, for example if the employee was generally available when requested to work and the engagement was regular enough

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Procedural Flaws Enough for Unfair Dismissal

In two separate recent decisions of the Fair Work Commission, a lack of procedural fairness in the process leading up to dismissal has been found to render the dismissal unfair, despite there being valid reasons for the dismissal in both cases.

 

In the first decision[1], a golf club had terminated the employment of its head greenkeeper following his failure to prioritise work in accordance with the general manager’s direction and failing to take proper care of one of the greens (leading to shortening of a major tournament). While Deputy President Abbey Beaumont agreed that these were valid reasons for dismissal, she found that the procedural flaws were “unacceptable” leading to a dismissal that was ultimately unfair.

 

The procedural flaws included:

  • The employee was informed that the board had lost trust and confidence in him and that he should consider resigning
  • The employee enquired about taking his case to the board but was told there was little point
  • The employee was dismissed with immediate effect

 

While

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JobKeeper Directions in Fair Work Act to continue – not only for those receiving JobKeeper payments

While some employers may no longer be eligible to receive JobKeeper payments for their employees after 28 September 2020, they may still be able to give directions under additional amendments to the Fair Work Act 2009 (FWA) aimed at assisting employers to keep their business afloat during the slow recovery back to full capacity.

The government has now passed legislation, referred to as “JobKeeper 2.0”, extending the operation of the flexibilities introduced in April 2020 allowing employers to stand down employees, reduce their hours and change their duties/location of work  (see our earlier article).

In addition to a reduction in the amount of JobKeeper wage rates recently announced, introduced on a sliding scale from 28 September 2020 to 28 March 2021 with lower payments for employees working less than 20 hours a week, the extension to the JobKeeper wage subsidy includes new eligibility requirements for employers. While the 30% decline in turnover test still applies, this will need to be demonstrated by an actual decline in

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High Court overturns Mondelez leave decision

In what will be seen as a win for employers seeking certainty around personal leave obligations, the High Court has today overturned the full Federal Court Mondelez decision from August 2019 [1] dealing with calculation of personal leave entitlements.

 

The full Federal Court decision turned on the interpretation of a “day” under the Fair Work Act 2009 in determining an employee’s entitlement to “10 days” of paid personal leave each year. The Court had ruled that shift workers who were working 12-hour shifts were entitled to 10 calendar days of personal leave per year, amounting to 120 hours, instead of the 76 hours the employer (Mondelez International) believed applied under the NES (based on 38 ordinary hours per week).

The High Court rejected the interpretation adopted by the full Federal Court, finding that the entitlement to “10 days” personal leave “must be calculated by reference to an employee’s ordinary hours of work”. This can be calculated as one-tenth of the employee’s ordinary hours of work over a two-week

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Labour hire workers: contractors or employees?

A Full Federal Court recently considered the current case authority to determine whether a worker is a contractor or employee in the context of labour hire arrangements. Chief Justice Allsop, in an apparent reluctant decision finding that the worker was an independent contractor, commented that it was not appropriate for an intermediate court of appeal to depart from the current approach, despite its limitations.

 

Facts

The case of CFMEU v Personnel Contracting  was an appeal by the CFMEU against a Federal Court decision that found the workers were independent contractors as set out in the service agreement signed by the parties. The case involved a 22-year-old backpacker who approached the company looking for work as a builder’s labourer. The worker had no tools and no busines of his own, the facts establishing that he was simply seeking to be paid in return for his labour. At the request of the company, the worker signed a standard contract provided to him and he thereafter was told where and when

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FWC announces a 1.75% wage increase - with different start dates for different industries

The Fair Work Commission has released its 2020 Annual Minimum Wage Decision, awarding a 1.75% increase to the national minimum wage and award-reliant employees.

 

The FWC decision increases the national minimum wage to $753.80 - or $19.84 an hour. This constitutes an increase of $13.00 a week or 34 cents an hour.

 

 

 

All award rates of pay will increase by 1.75% with three operative dates which have been selected based on the impacts of the COVID-19 pandemic.

 

The increase is less than the 4% sought by the ACTU, while both the ACCI and AiG called for a wage freeze.

 

The increase will be rolled out across three dates and employers should ensure they are aware of the date the increase applies depending on their award coverage as follows:

 

From 1 July 2020: "Group One" Awards which includes modern awards applying to frontline health workers, teachers and childcare workers and employees engaged in other essential services.

 

From 1 November 2020:

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Casual Employment - compounding uncertainty for Employers

There have been a number of decisions in recent years which have caused concern for employers around the use of casuals. The shock from the decision in WorkPac Pty Ltd v Skene in 2018 (“Skene”), is still reverberating today. The Full Federal Court decided in Skene that a casual employee may be able to claim entitlements of permanent employees (annual leave, personal leave) even when they have been engaged as a casual and paid a casual loading.  

In a ruling delivered this week (WorkPac Pty Ltd v Rossato [2020] FCAFC 84) (“Rossato”), the full bench of the Federal Court has reaffirmed the decision in Skene that casual employees may be able to “double-dip” – meaning they can receive payment of a casual loading and still claim entitlements such as paid leave.

The problem for employers is that this latest case has now gone further than the decision in Skene by dismantling “set-off” clauses used by employers to stop casuals from double-dipping.

The same labour hire

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Fair Work Ombudsman audit finds 48% of employers non-compliant with workplace obligations

The Fair Work Ombudsman has released a report[1] detailing its findings to date in its running campaign testing employers’ compliance with basic obligations including minimum pay, record-keeping and pay slips[2].

Alarmingly, the FWO has found that 48% of the 1,217 businesses audited are non-compliant with their obligations. In the vast majority of cases, the reason provided by employers for non-compliance was a lack of awareness of their workplace obligations to their employees.

 

Other reasons included misinterpretation of award requirements, incorrect calculation of flat hourly rates and failing to apply the annual July wage increase. The least compliant industry was hospitality in which 61% of businesses audited were found to be non-compliant.

The majority of employers found to be in breach of their obligations were issued with contravention letters, with others receiving formal cautions, infringement notices and compliance notices. One employer entered into an Enforceable Undertaking and eight employers remain under investigation for serious non-compliance. So far, the FWO has recovered $1,326,125 for underpaid employees from almost

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JobKeeper Fact Sheet

GUIDE TO NEW JOBKEEPER PROVISIONS IN THE FAIR WORK ACT

This table outlines what employers can and cannot do under the new JobKeeper provisions which have been inserted into the Fair Work Act 2009 (Cth) as a result of the Coronavirus Economic Response Package Omnibus (Measures No.2) Bill 2020.

Note that these provisions apply to employers and employees eligible to participate in the JobKeeper scheme.  For details on eligibility requirements, see our article here: [JobKeeper - What you need to know]

JobKeeper Provision

Yes

No

JobKeeper payment

The employer receives a JobKeeper payment of $1,500 (gross) per fortnight for each eligible employee

The employer cannot pay less than $1,500 (gross) per fortnight

The employer cannot pay employees monthly

Pay guarantee

The JobKeeper payment must be passed on to the employee and may be sufficient to cover an employee’s wages or salary where the JobKeeper payment exceeds the employee’s wage or salary (for example, if there are no hours of work);

Or, the JobKeeper payment may be used to

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JobKeeper – What You Need To Know

Temporary amendments have been made to the Fair Work Act to provide employers who are eligible for the JobKeeper payment with flexibility to deal with specified working arrangements for eligible employees. The objective of the JobKeeper scheme is to assist employers to “keep Australians employed”[1] by providing employers with a JobKeeper payment of $1,500 per fortnight per eligible employee.

Who is eligible?

In general terms, employers will be eligible for the JobKeeper Payment if turnover has fallen or is likely to fall by more than 30% (or 50% if turnover is $1 billion or more). Eligibility criteria for employees include that the employee is currently employed by an eligible employer (including if stood down or re-hired) and that the employee is full-time, part-time, or a long-term casual (a casual employed on a regular basis for longer than 12 months as at 1 March 2020). Employers must pay eligible employees a minimum of $1,500 per fortnight (before tax) in order to receive the JobKeeper payment.

What options are available?

The

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How to Manage Self-Isolating Employees

Do self-isolating employees still get paid?

While the official response from the Federal government is regularly updated as the coronavirus outbreak continues, employers remain unsure of their obligations in managing employees who are absent but not diagnosed with the illness.

 

 

The government has now imposed a mandatory self-isolation period of 14 days for all international arrivals into Australia – covering citizens, residents and visitors regardless of which country they have been to.

If you develop symptoms associated with coronavirus, you will only be tested if:

  1. You have returned from overseas within the last 14 days and develop respiratory illness, or
  2. You have been in close contact with a confirmed COVID-19 case in the past 14 days

Understandably employers are confused about whether absent employees should be paid sick leave, be required to take annual leave or take leave without pay.

  • What if an employee has no symptoms but has just returned from overseas?
  • What if the employee has symptoms but does not qualify for testing?
  • What if an
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Don’t be the next employer in the headlines for employee underpayments

The Federal government, the Fair Work Commission and the Fair Work Ombudsman have recently all taken decisive action to prevent employers from underpaying their workers and implementing tough penalties for contraventions.

Following the government’s announcement last year (in response to the Migrant Workers’ Taskforce Report) that it would introduce tough new laws to protect all workers, including criminal sanctions and increased penalties for employers, Industrial Relations Minister, Christian Porter, this week announced that the proposed new laws will also introduce disqualification orders on directors who are in breach of their obligations.

Both Coles and Wesfarmers have hit the headlines this week in relation to underpayment of their employees.  The Fair Work Ombudsman has previously stated it would investigate Coles in relation to underpayment of its salaried employees, and has this week announced that Wesfarmers is under investigation regarding underpayments by its subsidiary, Target.

In light of the new annualised salary provision that take effect on 1 March 2020

(How do the new annualised salary provisions affect your business?)

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FWC endorses inherent requirements dismissal

The Fair Work Commission has found the dismissal of an injured storeperson to be fair and reasonable after the employer concluded the employee was unable to perform the inherent requirements of the role.

The employee had been absent from work for a period of approximately 15 months due to non-work-related injuries sustained in a car accident. During this time the employer kept her position open and participated in a number of return-to-work and capacity assessments. The employer considered modifying the employee’s duties however Commissioner Cirkovic found that “…no adjustment could be made…to accommodate her mental incapacity”.

The medical evidence indicated that, while the employee’s physical capacity was improving, her mental state had declined, and she was declared unfit to return to work. In response, the employer wrote to the employee putting her on notice that it was considering terminating her employment as she was unable to perform the inherent requirements of her role.  The employee was invited to attend a meeting and to provide any further medical information regarding her

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Flawed Investigation: Employer liable for sexual harassment

We wrote earlier this year about a VCAT decision in which an employer was found to be vicariously liable for sexual harassment by an employee.[1] In another case, with similar factual circumstances, the South Australian Employment Tribunal has found an employee and employer jointly liable for the sexual harassment by the employee of a co-worker.

 

 

Facts

The accused employee in this case had recently started working as a chef at the Adelaide supermarket, Pasadena Foodland. Shortly after he commenced employment another employee working in the juice bar made a complaint that the chef was touching her inappropriately, including an allegation amounting to sexual assault. The employer states that it viewed CCTV footage and concluded that the complaint was not made out. The employer did not speak to the chef, did not take any further action to investigate the complaint and did not inform the juice bar worker that no action would be taken.

It was not until 30 June 2017 that the chef was even made aware

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Derogatory Facebook post not automatic ground for dismissal

 

Summary

The Fair Work Commission has found that, while an employer had a valid reason to dismiss an employee who posted derogatory comments on Facebook about her employer, the dismissal was harsh and disproportionate when the surrounding circumstances were taken into account.

 

 

For employers

  • Inappropriate use of social media does not automatically justify termination of employment.
  • Ensure you have a social media policy in place that sets out expectations for employee conduct online and consequences for breach
  • As in all dismissals, ensure there is a valid reason for dismissal and that you follow a fair and reasonable process

In a recent case heard by the Fair Work Commission, an employer was found to have unfairly dismissed a long-term employee who criticised the company and its practices in a Facebook post.[1]

The employee, Ms Murkitt, had been working for Alarmnet for almost 15 years. At the end of November 2018 a close work colleague of Ms Murkitt was killed on his way home from work.  Ms Murkitt’s

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FWC reminder: there are two “Os” in “BOOT”

Summary

In approving an enterprise agreement that did not include conditions that were available under the relevant award, the Fair Work Commission has emphasised that the test is whether employees are better off overall and not on a “line by line or itemised basis”.

 

For employers

  • Ensure you have conducted a Better Off Overall Test in support of any new enterprise agreement
  • Enterprise agreements can trade off award conditions provided that overall the employees are better off

In approving an enterprise agreement that did not include RDO and TOIL provisions (although these were contained in the applicable award), Deputy President Alan Colman has emphasised that the test is whether employees are better off overall, not whether each employee is individually better off based on their personal circumstances and preferences.[1]

The case concerned an application by BOC Limited for approval of an enterprise agreement. In its objections to the Fair Work Commission, the National Union of Workers submitted that the agreement failed the BOOT as it did not allow

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