– WORKPLACE RELATIONS NEWS – By Tania Harris
A REFERENCE POINT to Learn Changes in Law & Issues that Affect your Business, keeping Employers up to date.
Important Landmark Decision Affecting Casual Employees
A recent Full Federal Court decision, has led to fears of back payment of Wages, arising from the engagement of Casual Employees.
The Court upheld that the Employee – who was described as a Casual, but worked a regular roster, set a year in advance – was a Permanent Employee. As a consequence, the Employee was entitled to Annual Leave Entitlements.
This decision as it stands states, that regardless of Award or Agreement Conditions, if an Employee has a regular and predictable pattern of work, with an expectation of ongoing Employment, they may be considered Permanent, as opposed to Casual.
Implications for Employers
It is important to note, that this decision does not require Employers to begin back paying current Casual Employees, nor does it mean that all Casuals are now entitled to Annual or Personal Leave.
For Casual Employees who work a consistent number of hours each week – with little or no variation in the days worked, or start and finish times – the risk is significant.
At the other end of the scale, Casuals who work irregular hours – with changes in the number of hours and times when those hours are worked – the risk of being deemed Permanent is very low.
A large proportion of Casual Employees are, however, somewhere in between the two extremes.
Given the serious ramifications arising from this decision, many leading Businesses and Employer Groups have called upon the Government to legislate removal, of any ambiguity which may exist with the engagement of Casual Employees and avoid Employees effectively “double dipping”.
It is widely predicted that this matter will be the subject of a High Court Appeal, however as yet an Appeal process has not been initiated. Unless a High Court Appeal is lodged and determined, the decision stands as Law. The Employer has 28 days in which to commence an Appeal.
Modern Awards Roll-out
The Fair Work Commission is aiming to complete its four yearly review of Modern Awards over the next six months, with the “substantial majority” of the new instruments coming into force in the first quarter of 2019.
Court Jails Underpaying Employer
An underpaying Employer spent a night in jail, for defying a court order that froze his assets.
The Federal Circuit Judge ordered the immediate imprisonment of the Employer for 12 months. However, the Judge said the sentence would be suspended after 10 days if the Employer paid the almost $85,000 owed to the Fair Work Ombudsman.
On the following day the Employer won a stay order that released him from jail, pending an expedited appeal against his conviction for contempt and sentence, which is yet to be programmed.
He must surrender his passport, resident at his home, remain in Queensland and report to Police twice a week.
The Fair Work Ombudsman (FWO) brought the case against Trek North Tours (a Cairns-based owner-operator). The FWO confirmed, that this was the first time it initiated a contempt of court action and also the first time, a jail sentence has been imposed as a result of its legal action.
In 2015 the FWO penalized Trek North Tours $55,000 for failing to comply with FWO notices to correct underpayments to five backpackers. When the FWO was pursuing the owner-operator over the $30,000 of underpayments in 2014, he told an inspector ‘The compliance notices are rubbish. I have no intention of paying the money. I will have thousands of complaints against me before I do. The Fair Work Act reeks of fascism and I will never pay any of the money.’
The All Capitals CPI increase for the year ending 30th June 2018 was 2.1%.
The Hobart CPI increase for the year ending 30th June 2018 was 2.4%.
Pay slips are mandatory. Employers must give all Employees a pay slip within one working day of pay day. Employers can give Employees paper or electronic pay slips.