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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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Small Business Deserves Better Protection from Unfair Dismissal Claims

Summary

The Australian Small Business and Family Enterprise Ombudsman (ASBFEO) has released a report[1] calling for sweeping changes to the Small Business Fair Dismissal Code (Code), following a review of the Code and its accompanying Checklist.

 

 

In Depth

The Code applies to small businesses employing fewer than 15 employees. If the employer follows the Code when dismissing an employee, the dismissal may be deemed to be fair.

The ASBFEO’s review is comprehensive and takes into account the policy objectives of various stakeholders along with the Explanatory Statement to the Code.

The overarching finding of the report was that the Code and Checklist are not working as intended and should be amended to better meet their intended functions and policy objectives.

In addition to improved education and awareness, and changes to some of the Fair Work Commission processes to deal with claims made against small business employers, the ASBFEO recommended the following changes to the Code and Checklist:

  1. Establish separate processes that would ensure
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High Court challenge to personal leave entitlements

Summary

The Government has announced it is seeking leave to appeal the recent full Federal Court decision to the High Court regarding the entitlement of all employees to 10 calendar days of personal leave per year. The case has far-reaching implications for all employers and employees and will be carefully monitored as it progresses.

For employers

  • Under the current full Federal Court precedent, all employees are entitled to 10 calendar days personal leave per year
  • Consider amending employment contracts to include a reference to NES entitlements for personal leave
  • If in doubt about your obligations, seek legal advice

In a landmark case last month, the full Federal Court 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)[1].

The Mondelez employees were all working 36 hours a week- some by working 3 x

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Redundancy and redeployment; minimising unfair dismissal

 

 

 

 

 

In Short: 

  • Redundancy provisions bestow a positive obligation on employers to fully explore opportunities within an employer’s wider corporate structure to redeploy.
  • For employers, proactively pursuing and proposing alternate employment opportunities before redundancy termination, will minimise the risk of unfair dismissal or adverse action litigation being brought by employees.

In Depth:

An unfair dismissal claim is not available in circumstances of genuine redundancy. Employers must however be mindful of the requirement to redeploy where it is considered reasonable in all circumstances.

Genuine redundancy arises if:

  • an employer no longer requires an employee’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and an employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy. The circumstances of genuine redundancy are qualified by the requirement to redeploy if it would have been reasonable in all the circumstances to redeploy within the employer’s enterprise or the enterprise
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Labour Hire Back on the Agenda

Labour Hire Back on the Agenda

Earlier this year, the Labour Hire Licensing Act 2018 (Victoria) came into effect making Victoria the third state (after South Australia and Queensland) to enact legislation requiring labour hire providers to hold a licence.

Licences are granted by the Victorian Labour Hire Licensing Authority for a 3-year period, provided the labour hire provider passes the “fit and proper person” test (demonstrating compliance with industrial and taxation laws).

In a recently-publicised briefing document provided to the IR Minister after the federal election in May 2019, the Government has agreed to provide funding to the Fair Work Ombudsman to enable it to set up a National Labour Hire Registration Scheme early in 2020.

The Scheme was recommended by Professor Allan Fels, head of the migrant worker taskforce, with a view to reducing worker exploitation in four high risk sectors- namely horticulture, meat processing, cleaning and security.

Consultation on the proposed national scheme will need to occur before any changes are introduced.

Once the new scheme is

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FWC send clear message: termination by text is unacceptable

In two separate cases decided this week, the Fair Work Commission has made it clear that termination of employment via text message is unlikely to amount to a fair dismissal. The method has been variously described by the Commission as “unconscionably undignified”, “hopeless”, “repugnant”, “unnecessarily callous” and “disgraceful and grossly unfair”.

In the first case[1], an employee received a text message stating that his employment was terminated with immediate effect and that he was required to work out his notice period. The text message followed a discussion with the employer in which the employee was told that his rate of pay would be cut from $31.78 per hour to $25 per hour. The employee did not agree to the paycut and received the text message after leaving the workplace.

Deputy President Sams was scathing of the employer both in terms of the reasons provided for the dismissal and in particular the method of dismissal. He described the dismissal by text message as “deliberate and calculated” and “breathtaking in

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Corporate whistleblowers to get better protection

From 1 July 2019 new whistleblower legislation comes into effect creating better protection for whistleblowers under the Corporations Act 2001(Cth), Taxation Administration Act 1953 (Cth), Banking Act 1959 (Cth) and Insurance Act 1973 (Cth).

The changes apply to current and former employees and suppliers of public companies or large proprietary companies[1] making disclosures about wrongdoing by the entity. The protections extend to disclosures by family members of employees or suppliers and the range of misconduct about which a disclosure may be made will also broadened.

However this does not mean that all persons or disclosures will be protected. Litigation in this area to date often involves attempts to invoke whistle-blower protection for matters that are better described as workplace disputes or “personal work-related grievances” that should properly be addressed within the workplace. The new laws preserve this distinction while increasing the protections for eligible persons who make a protected disclosure about a regulated entity. 

One such case is currently before the Federal Court[2] involving an ex-employee of the Commonwealth Bank of Australia who

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