– A Reference Point to learn changes in Australian Employment Law
– Issues Affecting Your Business
– Guiding Employers towards Compliance
– Providing Best Practice Solutions for Business
KEEPING EMPLOYERS UP TO DATE
FAIR WORK OMBUDSMAN UPDATES COVID-19 VACCINATIONS GUIDANCE
The Fair Work Ombudsman has issued fresh advice for Employers considering making the Covid Vaccine mandatory for Workers, setting out a 4-tier system to determine when such an order would be reasonable.
The updated guidance, released late last week, replaced its previous advice that most Employers would not be able to compel staff to get the Covid vaccine.
We recommend you read the information and any updates on the Fair Work Ombudsman website, refer link.
We also recommend you keep up to date with ‘Coronavirus and Australian Workplace Laws’ by accessing the following link.
The High Court of Australia (HCA) unanimously upheld WorkPac’s Appeal against the Full Court of the Federal Court of Australia’s (FCA) 2020 decision, finding its former Employee, Rossato, was in fact a Casual Employee by Law.
Employers once said to be facing up to $38 billion in Casuals’ Backpay Claims, have welcomed the recent High Court decision.
The legal implications of the decision are much less significant than they otherwise would have been, given the intervening passage of the Fair Work Amendment in March 2021, and the new definition of “Casual Employee”, but there are still some useful takeaways from the decision.
– A key feature of Casual Employment, is the absence of a firm advance commitment of ongoing Employment.
– Employers who have not had their Casual Contracts reviewed, in line with the new definition of ‘Casual Employee’, should seek Advice from us as soon as possible.
CASUAL EMPLOYMENT TERMS TO BE INCLUDED IN MODERN AWARDS
Following Amendments to the Fair Work Act on 27th March 2021, with the introduction of a definition of ‘Casual Employee’ and Casual Conversion Requirements, the FWO is undertaking a 2-part process to alter Modern Awards, to eliminate any inconsistency or uncertainty caused by the Amendments.
The FWC completed the 1st Stage of its Review on 16th July 2021, by reviewing relevant Terms of an initial group of 6 Modern Awards. The 2nd Stage of the review will look at the remaining Modern Awards. The review of the Awards must be finalised by the statutory deadline of 27th September 2021.
Casual Terms Award Review 2021 link.
MODERN AWARDS AMENDMENTS
A reminder to Employers to ensure you check that you are using the latest version of the relevant Modern Award. Awards are regularly amended, and it is important to keep up to date.
2 recent Amendments:
General Retail Industry Award 2020 – Part Time Employees (refer clause 10)
Retail Employers and their Part-Time Employees will be able to agree to Work Extra Hours, over and above their agreed Weekly Hours, and be paid Ordinary Rates of Pay (rather than being paid at Overtime Rates). The agreement must be in writing, before the end of their shift, and can be by text message or email. The usual rules regarding Overtime still apply if an Employee works outside Ordinary Hours of Work.
Restaurant Industry Award 2020 – refer Schedules AA Classification Structure and Definition & Schedule R Award Flexibility for COVID-19 Pandemic Recovery
The Restaurant Industry Award has been varied due to the ongoing effects of the COVID-19 pandemic, to provide greater flexibility for Employers, including a simplified classification structure and provision for a substitute ‘all-purpose’ Allowance and Exemption Rate Agreements. This variation determination came into operation on 11th August 2021, for an initial period of 12 months. There will be a committee to monitor operation of the variation.
RESPECT AT WORK BILL
An inquiry has recommended the Respect at Work Bill pass through Parliament with minor Amendments.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill is a ‘significant’ first step towards preventing and addressing Workplace Sexual Harassment and should be passed unamended, a Senate committee report says.
The Bill proposes to amend Federal Laws, to clarify and simplify the current Sex Discrimination and Sexual Harassment Laws in Australia, to combat the prevalence of sexual harassment in Australian Workplaces. In addition, the Bill is intended to support meaningful cultural change in Australian Workplaces in light of concerns about Employer responses to Sexual Harassment and other forms of Sex Discrimination.
The Amendments in the Bill will “strengthen the national Anti-Discrimination framework and enhance protections and reduce procedural barriers for complainants, with respect to sex-based Discrimination and Sexual Harassment in the Workplace”, the Coalition-dominated committee found.
The Bill will make it easier for Employers to understand their Obligations in the Workplace and “catalyse the cultural change required to address Sexual Harassment in Workplaces”, it says.
The committee says broad support for the Bill has been expressed by stakeholders including Industry, Employer and Employee representative groups, about measures such as more closely aligning protections in the Sexual Discrimination Act with WHS Laws.
As requested by the Fair Work Commission, it supports a 2-month deferment of Amendments, that would allow workers to apply for stop-harassment orders, so the Commission can prepare for these claims.
The Senate Committee acknowledges concerns, that the Bill fails to implement all recommendations from the Respect@Work Report, and specifically to introduce a positive duty on Employers to prevent Sexual Harassment.
“However, the committee is comforted by the Department’s Advice, that the current Bill does not represent the entirety of the Government’s response. The committee also appreciates that some of the recommendations require further consideration and analysis before they can be implemented through Legislation.”
In their dissenting report, Labor Senators recommend the Bill be amended to include a clear prohibition on sexual harassment in the Fair Work Act 2009, as recommended by the Respect@Work report, and that a new complaints process be made available in the Fair Work Commission to Workers who experience current or historical sexual harassment.
You can track the progress of the Bill on this link.
FAIR WORK OMBUDSMAN ANNOUNCES 2021-22 PRIORITIES
The Fair Work Ombudsman (FWO) is delivering more Assistance and Support for small business, as they weather the uncertainty and change of the ongoing COVID-19 pandemic. But the core focus on identifying and prosecuting businesses of all sizes that are breaching Compliance requirements, will continue.
Key amongst this focus, is proactive Auditing and Compliance Activities in industries with vulnerable Workers and a history of Compliance concerns.
FWO Sandra Parker announced the strategic priorities for the year ahead, with the key focus supporting Workplaces as they manage the ongoing impacts of COVID-19. She said the Contract Cleaning Sector was a new Compliance and Enforcement priority this year.
In addition to continuing ongoing Monitoring and Compliance Activities in areas of Fuel, Retail, Fast Food, Restaurants & Cafes and Horticulture remain a key focus of activities in 2021-22. Ms Parker said that investigating large corporate underpayments remained a priority for the regulator.
Compliance and Enforcement Activities in Franchising and sham contracting continue.
“We are here to help with free advice on Lawful Obligations, while also enforcing the Laws to ensure vulnerable Workers – and compliant Employers – are not disadvantaged by those doing the wrong thing. We will continue to consider a business’ sophistication, financial position and viability as relevant public interest factors, when deciding on appropriate Enforcement Action in the year ahead,” Ms Parker said.
Is your Business compliant with current Australian Employment Laws? Call us if you have any enquiries or require any Assistance. Our aim is to help Employers understand the rules and keep up with the changes. Navigating the system often requires specialist Guidance and Advice.
IF YOU NEED ANY ADVICE REGARDING THE CONTENTS OF THIS NEWSLETTER, OR ANY OTHER WORKPLACE RELATIONS MATTER, PLEASE DO NOT HESITATE TO CONTACT US.
We wish you & your family all the very best through this uncertain time.
– Ensure your Business is Compliant with current Australian Employment Law. Has your business had a yearly Compliance Check? Ensure your internal operations are effective and compliant. A solid Employment Framework should Protect your Business in the event of a claim.
– Please contact us if you have any Enquiries.
– Phone or E-mail Tania, for Clarity & Peace of Mind – so you can focus on growing your Business.