PAY RATE INCREASE – RETAIL AWARD (from 01/09/2021)
Employers are reminded that the General Retail Industry Award 2020 rates increased by 2.5% from the first full pay period on or after 1st September 2021. This means that if you have a weekly pay period that starts on Mondays, the new rates apply from Monday 6thSeptember 2021.
SAFE WORK AUSTRALIA
Preventing Workplace Sexual Harassment Guide
Safe Work Australia has released 4 infographics to complement the sexual harassment guidance materials released earlier this year. The information in this guide is based on the model WHS laws. These laws have not been implemented in all jurisdictions, although other Australian WHS laws have similar duties. Go to information about the WHS laws in your jurisdiction.
The infographics provide information to support small businesses to meet their Work Health and Safety duties. The infographics also outline practical steps on how to prevent sexual harassment in the workplace. They cover:
Under Australia’s model Work Health and Safety (WHS) laws, persons conducting a business or undertaking must do everything they reasonably can to prevent sexual harassment from occurring at work. This includes both physical and mental health. The new information provides guidance to anyone who has a duty to protect the Health and Safety of Workers.
RECENT PENALTIES – FAIR WORK OMBUDSMAN (FWO)s
Former Restaurant Operator Penalised
The FWO has secured a total of $23,000 in Penalties in court against the former operator of a Sydney Restaurant.
A Fair Work Inspector issued a Compliance Notice after forming a belief the Company had failed to pay the Worker his accrued but untaken Annual Leave, at the end of his Employment.
The Judge found that the breach was deliberate and that there was a need to impose a Penalty to deter others from similar conduct. The Penalty was set at a level that should signal to Employers that a wilful disregard of a Notice lawfully issued, will be met with a significant Penalty.
Former Operator of a Civil Construction Business Penalised
The FWO has secured a court-ordered penalty against the former operator of a Civil Construction Business.
The Court imposed a $33,300 Penalty against the Business. This Penalty was the maximum available and was imposed because the company failed to comply with a Compliance Notice, requiring it to calculate and back pay Entitlements owing to a former Employee.
In addition to the Penalty, the Court ordered the former operator to comply with the Notice, which includes rectifying Underpayments in full, plus Superannuation and to pay Interest.
The Fair Work Ombudsman said the regulator would continue to enforce laws in a proportionate manner during the COVID-19 pandemic and Business Operators that fail to act on Compliance Notices need to be aware they can face court-imposed Penalties, on top of having to back-pay Workers.
POLICY WAS VALID; PROCEDURE MAKES DISMISSAL UNFAIR
A Distribution Centre Employee was Dismissed after he was seen talking on his mobile phone whilst operating a forklift. This was in breach of a newly updated Policy preventing mobile phone use whilst operating forklifts in high traffic areas.
The employee stated he simply forgot and that he regretted his actions and lack of judgement and was sorry for potentially endangering himself and others. His Employer, however, took a zero-tolerance approach and Terminated his Employment.
The Employee lodged a Claim for Unfair Dismissal. He sought reinstatement on the basis of the argument that Termination was disproportionate to his 22 years’ service with no safety breaches and the Policies newness and lack of detailed Consultation on the zero toleration (termination) approach to breaches.
The Commissioner noted that the zero tolerance, instant Termination approach, was not what was communicated and that the Policy states that ‘breaches may result in disciplinary action, up to and including Termination of Employment’.
The Employee did not expect he would be dismissed for a first incident, especially one that did not cause an accident or injury, and especially during a period of when the country was being affected by the COVID-19 pandemic, the Commission said.
The Commissioner found that Management incorrectly applied a zero-tolerance approach when considering whether to Terminate the Employee’s Employment. They failed to give appropriate weight to his ‘impeccable safety record, length of service and the conditions the incident occurred under’.
Best Practice Tip:
A Policy is a valuable tool in business, but it must be implemented as part of a Consultative Process, and any Breach managed in the context of the Employee’s service and record.
Employers should always ensure that the process is valid, otherwise the termination could result in an Unfair Dismissal.