HR Law

A reminder that today, 26 August 2024, new laws came into effect pursuant to the Fair Work Legislation (Closing Loopholes No. 2) Act 2024 .  This includes various amendments to the Fair Work Act 2009 (Cth) (“FW Act”) including the following (not limited to): - Section 15AA has been inserted, which sets out how to determine whether a relationship is an employment relationship for the purposes of the FW Act. - A new definition of casual employee has been inserted in section 15A of the FW Act. In addition, the Fair Work Commission (FWC) is now able to deal with disputes about the right of casual employees to become permanent (in some circumstances). - Employees now have a new workplace right, the ‘right to disconnect’. The right to disconnect protects employees who refuse to monitor, read or respond to contact or attempted contact outside their working hours, unless their refusal is unreasonable. In addition, the FWC is now able to deal with disputes about the right to disconnect, including making “stop orders”. Note for employers who are small business employers on 26 August 2024, the right will start on 26 August 2025. - The FWC can now deal with disputes about unfair contracts for independent contractors. Specifically, the FWC can cancel (set aside) or change (amend or vary) unfair terms that would relate to workplace relations matters if the independent contractor were an employee. If you require any guidance on any of the new changes or require further information about how these changes will affect your business, contact HR Law at [email protected].

In a recent decision, two recycling industry workers were allowed to keep 30% of their redundancy payments after the FWC accepted that whilst their previous employer had found them acceptable alternative employment, the new proposed office was a “dirty environment” compared to their former office. Section 120 of the Fair Work Act 2009 (Cth) (“FW Act”) allows an employer to apply to the Fair Work Commission to reduce the amount of redundancy pay to an employee (as appropriate) in circumstances where the employer obtains other acceptable employment for the employee. In this case, the former employer found alternative employment for each employee at another recycling waste firm. However, the new firm’s office was attached to a warehouse, where recycling management took place. The new office was therefore a vastly different work environment to the previous employer’s “nicer, cleaner office”. On this basis (among other matters), each employee declined the new employment and requested to be paid out their redundancy payments. The former employer subsequently made an application pursuant to section 120 of the FW Act to the Fair Work Commission to reduce each employee’s redundancy payment. The Decision Commissioner Perica found that the employer had found suitable employment for each employee. Specifically, the Commissioner found that each new proposed role was sufficiently comparable to the work being performed for the previous employer, and not unreasonably removed from each employee’s original duties, and in line with their skills set, qualifications and experience. However, the Commissioner also found the new role would be in a different work environment, accepting evidence that the new office was “dusty, noisy and malodorous with trucks entering and leaving”. Commissioner Perica stated whilst the “dirty environment” may have made the new roles unattractive, it did not make the job objectively unacceptable. Nevertheless, Commissioner Perica found that there was a “marked difference between performing administrative work in an office attached to a warehouse where recycling takes place, compared to working in an office removed from the actual process of recycling.” As a result, Commissioner Perica concluded that the former employer was entitled to reduce each employee’s redundancy payment by 70%, thereby allowing each employee to keep 30% of the payment. To read the case, click on the link below. https://lnkd.in/gsE9y5HX

On 16 August 2024, the Queensland Industrial Relations Commission (QIRC) delivered a General Ruling that for all industrial instruments of the QIRC (awards, certified agreements and arbitration determinations), the loading prescribed for casual employees shall be no less than 25% from the date of effect of the General Ruling. The Ruling will take effect on and from 23 September 2024. This Ruling will affect various employers and employees governed by QIRC industrial instruments, including local government. For example, it will affect casual employees covered by the Queensland Local Government Industry Stream B Award and Stream C Award, who are currently paid a casual loading of 23%. To view the Ruling, click here https://lnkd.in/g8TdQSvC To view the Decision, click here https://lnkd.in/gBCMW7Td

The Fair Work Commission has imposed record penalties of $15.3 million against Sushi Bay outlets across New South Wales, Queensland and Canberra for underpayments and exploitation of migrant workers.   From February 2014 to January 2020, various Sushi Bay outlets across Australia underpaid 163 workers a total of $653,129. Individual underpayments ranged from $48 to $83,968. Many of these workers were those aged under 25 from migrant backgrounds and working as cooks and food and beverage attendants.   Anna Booth of the Fair Work Ombudsman stated: “The record penalties imposed in this matter drive home the fact that deliberately and repeatedly exploiting workers, including vulnerable migrant workers, is reprehensible conduct that will not be tolerated in Australia.”   The owner and sole director of the Sushi Bay outlets, Yi Jeong ‘Rebecca’ Shin and the Canberra outlet had previously been penalised $124,416 for underpayments in 2019.   Due to the deliberate and systematic nature of the conduct, the current breaches were considered ‘serious contraventions’ under the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, attracting up to 10-times the maximum penalties that would ordinarily apply.    To read more, click on the link below.   https://lnkd.in/guz6yBQT

Do you subscribe to our monthly newsletter? This month, we provide updates relating to the further implementation of the the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 (“Closing Loopholes No.2 Act”) including employees’ right to disconnect and the provisions regarding casual employees. We also discuss the Fair Work Commission’s first “same job, same pay” ruling and examine a recent case in which a State-owned public transport provider was ordered to backpay a Hobart bus driver for paid parental leave. Click on the link below.

In a recent decision, the Fair Work Commission has ordered Metro Tasmania, a State-owned public transport provider, to backpay a Hobart bus driver for paid parental leave (PPL) after he stepped in as the primary carer for his newborn son. Paid parental leave was provided for under Metro Tasmania's enterprise agreement, namely the Metro Tasmania Bus Operators Enterprise Agreement 2020 ("the Agreement"). Under the Agreement, employees were entitled to 8 weeks paid parental leave provided they met the eligibility requirements, including being the primary carer of the child. Before their son was born, it was agreed between the driver and his wife that the wife would be the primary carer of the child. However, the driver's wife had a emergency caesarean section, and was subsequently unable to be the primary carer. The driver provided Metro Tasmania with a doctor's certificate confirming her inability to be the primary carer. Despite Metro Tasmania's arguments about insufficient notice and their belief that the driver could not be the primary carer simultaneously with his wife, Deputy President Val Gostencnik ruled that: - the driver's care responsibilities during the period in question were clear - he was the primary carer; - there was no requirement under the relevant clause to provide a specific period of notice to claim the entitlement. As a result, Metro Tasmania was ordered to pay the driver paid parental leave pursuant to clause 34 of the Agreement for the period between 8 February 2024 to 4 April 2024 inclusive. To read the case, click on the link below.

On 26 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No.2) Act 2024 ("Amending Act") received royal assent. Some key changes in the Amending Act in relation to casual employees include changes to the Fair Work Act 2009 (Cth) as follows: - New Definition of Casual Employee: While retaining the concept of no ‘firm advance commitment to continuing indefinite work’, the new definition introduces 'indicia' and a 'general rule'. - Casual to Permanent Conversion: There will be a new casual conversion pathway, allowing casual employees to convert to full-time or part-time employment after 6 months (non-small business) or 12 months (small business). - Dispute Resolution: The current process will be replaced with a new procedure, which includes compulsory arbitration. These changes take effect from 26 August 2024 The Fair Work Commission, on its own initiative, has proposed variations to modern awards to ensure they align with these changes. The proposals address the potential uncertainty in the interaction between existing provisions and the amended Fair Work Act 2009 (Cth). Interested parties can file submissions on the proposed changes by 12:00 pm (AEST) on Monday, 29 July 2024. To read the Commission's Statement, click on the link below.

Part 8 of the Closing Loopholes No. 2 Act inserts a new Division 6—Employee right to disconnect in the Fair Work Act 2009 (FW Act), which: - establishes a new employee right to disconnect, which is a workplace right; - provides for the Commission to deal with a dispute between an employee and their employer about the right to disconnect, including by issuing a stop order and/or otherwise dealing with the dispute (in addition to the Commission’s functions under the general protections provisions), and - requires the Commission to make written guidelines in relation to the operation of Division 6. The right to disconnect provisions will commence on 26 August 2024 (and 26 August 2025 for small businesses). With these changes fast approaching, the Commission has published its Implementation Report regarding the new right and the Commission's functions. The Report is divided into two sections. The first outlines the new right to disconnect and provisions establishing the Commission’s functions in relation to right to disconnect disputes. The second section outlines the actions the Commission proposes to take in implementing these functions. To read the Implementation Report, click on the link below.

A recent decision by the Fair Work Commission (FWC) has highlighted the importance of clarity and communication when negotiating mutually shortened notice periods. In the case of Scott Egginton v Focus (NSW) Pty Limited [2024] FWC 1872 (17 July 2024), a manager submitted his resignation with one month’s notice. Shortly after, he raised complaints with HR, citing bullying and psychosocial hazards at work. The Company’s director suggested that the Manager leave early, which the Manager agreed to. However, there was no discussion around payment for the remainder of the notice period. The Company then failed to pay the employee the notice period in lieu. The Manager argued that he had not agreed to waive his notice pay. The Manager brought a General Protections Claim (Involving Dismissal). In response, the Company argued a jurisdictional objection, citing that the employee had resigned from his employer, and that his employment was not terminated at the initiative of the Company. Deputy President Michael Easton found that there was no clear agreement regarding the payment for the notice period. The evidence showed that no explicit terms were discussed, leading to the conclusion that the Manager did not freely agree to an immediate end to his employment. The FWC ultimately found that the Company had initiated the Manager's termination. The FWC will now address the Manager’s general protections claim. To read the case, click on the link below.

The Fair Work Commission has today released its draft right to disconnect term. The draft provision can be found in Appendix A of Justice Hatcher's Statement of 11 July 2024, as linked below. Interested parties are invited to comment on the draft term by 12 noon (AEST) on Thursday, 1 August 2024. Comments should be emailed to [email protected] and will be published on the Commission's website. The Commission is also required to make written guidelines around the operation of the right to disconnect provision, however, it is unlikely these will be published until after 26 August 2024.