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What every employer MUST know for 1 July 2020

With the commencement of a new financial year, it brings with it important changes and new rates which will apply from 1 July 2020.

NEW! High Income Threshold (HIT)

With the HIT:

  • it increases to $153,600
  • it impacts:
  • who can make a claim for unfair dismissal (for those not covered by a Modern Award or to whom an enterprise agreement does not apply)
  • the maximum amount of compensation payable in an unfair dismissal claim
  • those on a ‘guarantee of annual earnings’ (a Modern Award does not apply to an employee whenever this guarantee is in place provided it continues to meet the relevant legislative requirements)

NEW! Modern Award Increases

With Modern Awards (including enterprise awards):

  • minimum wages increase by 1.75%
  • the date when this increase takes effect differs between the Modern Awards depending upon which group each falls into:
  • for Group 1 Modern Awards, the increase takes effect from the start of the first full pay period on or after 1 July 2020
  • Continue reading…

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Warning to all Directors – The First Industrial Manslaughter Conviction

In a first for Australia, Brisbane Auto Recycling Pty Ltd (BAR) was convicted of industrial manslaughter and fined $3million dollars after the employer and its two directors were found to have lied about how a worker died.

The Facts

In essence:

  • the worker was struck by a forklift in BAR’s Rocklea wrecking yard and died from his injuries
  • BAR had a system of issuing verbal safety instructions to workers
  • the operator of the forklift was unlicensed and unskilled, and this was unknown to the directors
  • the directors told paramedics and the worker’s daughter that the worker had sustained injuries in a fall, but the daughter obtained CCTV footage of the incident and contacted Police

What is Industrial Manslaughter?

In essence:

  • the offence of industrial manslaughter occurs when a business or person negligently causes the death of a worker
  • the offence exists in the ACT, Queensland and Victoria, whilst in New South Wales, South Australia and Tasmania employers can be prosecuted for workplace fatalities under general workplace safety laws
  • Continue reading…

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Casual Problems – Workpac v Rossato: Implications for Businesses

On 20 May 2020, the Federal Court handed down its long-awaited decision in the matter of WorkPac Pty Ltd v Rossato. In doing so, the Court re-affirmed the conclusions reached in its 2018 decision of WorkPac Pty Ltd v Skene, and further undermined long-standing business assumptions relating to the engagement of casual employees using flat rates of pay.

The Facts

In essence:

  • Mr Rossato was employed by the labour hire company Workpac in the period between July 2014 and April 2018, pursuant to a series of consecutive employment contracts which characterised his employment as casual
  • throughout his employment, Mr Rossato was paid a flat rate of pay that was higher than the applicable casual rate contained within Workpac’s enterprise agreement, and his employment contracts did not expressly state that his flat rate of pay was inclusive of any casual loading
  • Mr Rossato was required to work regular and predicable shifts that were similar to those shifts worked by Workpac’s full-time employees, and several of his contracts involved rosters and shifts set several months in advance
  • Continue reading…

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New Laws to Stand Down Employees

New Stand Down Laws

From 9 April 2020 employers are able to utilise new stand down provisions arising from changes to the Fair Work Actin light of COVID-19. These changes are temporary and are currently stated to end on 28 September 2020.

 

Core Requirements

The new provisions enable employers to issue a “jobkeeper enabling stand down direction” to relevant employees where all of the following apply:

  • the direction was given after the commencement of the new stand down laws to not work on a day(s) on which the employee would usually work, or to work for a lesser period than the period which the employee would ordinarily work on a particular day(s), or to work a reduced number of hours (compared with the employee’s ordinary hours of work)
  • when the direction was given, the employer qualified for the jobkeeper scheme
  • the employee cannot be usefully employed for the employee’s normal days or hours during the stand down period because of changes to business attributable to the COVID‑19 pandemic or government initiatives to slow the transmission of COVID‑19
  • Continue reading…

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New Laws – Religious Discrimination Legislation on Track to be Introduced in 2020

The Federal Government is on track to introduce religious discrimination legislation in 2020, with a second exposure draft of its Religious Discrimination Bill introduced in parliament in late December 2019.

The Bill adopts the general objects, protections and prohibitions contained in similar Federal anti-discrimination laws such as the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act, with some alterations to reflect the distinct nature of ‘religious belief or activity’ as a protected attribute.

Amongst other things, the Bill will (if passed):

  • protect and promote the right of religious freedom in Australian public and private sectors
  • make it generally unlawful to discriminate against a person on the basis of their religious belief or activity, or because they have or do not have a religious belief, or because they do or do not participate in a religious activity
  • introduce a Freedom of Religion Commissioner at the Australian Human Rights Commission
  • contain specific provisions relating to discrimination in the context of employment including ‘carve-outs’ such as the right to discriminate against a person on the grounds of religious belief or activity in employment if they are unable to carry out the inherent requirements of that employment or in order to preserve the ‘religious ethos’ of the employer
  • Continue reading…

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Court Cases – Personal Leave Calculation Decision Off to The High Court

2020 may see a fundamental shift in how personal leave is accrued and paid following a controversial Federal Court decision relating to the calculation of leave for employees with non-standard rostered hours.

In the case of Mondelez v AWMU:

  • relevant employees were covered by an enterprise agreement
  • the enterprise agreement permitted employees to work ordinary hours of 36 per week (by way of 3 x 12 hour shifts per week) and entitled those employees to 96 hours of paid personal leave per year of service
  • when they took paid personal leave though, the employer deducted 12 hours from their accrued balance, meaning they only accrued enough leave over a year of service to cover 8 days absence
  • a claim was made that this contravened the National Employment Standards (found within the Fair Work Act) as it failed to provide such employees with 10 days of paid personal leave per year of service
  • the majority of the full Federal Court agreed, however, Mondelez has since appealed to the High Court
  • Continue reading…

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Whistleblower Policies – Must be in Place by 1 January 2020

From 1 January 2020, all public and large proprietary companies must have in place a whistleblower policy which meets all mandatory statutory requirements.

Amongst other things, these laws:

  • modify existing legislation relating to corporations, the banking industry and insurance companies
  • provide significantly stronger protections to whistleblowers who make disclosures about protected matters and expand the scope of persons who may make protected disclosures
  • impose substantial civil and criminal penalties for breaches of whistleblower protections
  • mandate all public and large proprietary companies have a compliant whistleblower policy in place by 1 January 2020

A large proprietary company is one that has 2 or more of the following characteristics:

  • $50+ million in consolidated revenue
  • $25+ million or more in consolidated gross assets
  • 100 or more employees

Currently fines of up to $12,600 can apply for failing to have a compliant whistleblower policy in place by 1 January 2020, and repeat fines can also apply to every subsequent year this requirement is not met.
Continue reading…

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Annualised Salaries – Changes to Burden Employers

The Fair Work Commission has turned its focus to the disparate ‘annualised salary’ provisions found within various modern awards and with the inherent lack of employee wage safeguards being a key driver for change, the Commission has created new rules that govern same.

Presently 21 modern awards will be varied to incorporate a model annualised salary term including:

  • Clerks–Private Sector Award
  • Manufacturing and Associated Industries and Occupations Award
  • Hospitality Industry (General) Award
  • Restaurant Industry Award
  • Mining Industry Award
  • Legal Services Award
  • Banking, Finance and Insurance Award

Amongst other things, the new annualised salary provisions introduce several new and onerous notification, record-keeping and wage reconciliation obligations on employers who pay their award-covered employees annualised salaries including:

  • notifying employees of the annualised salary, which specific award provisions are satisfied by it, and how the annualised salary has been calculated
  • limiting how many hours of overtime or weekend hours are included within it and requiring additional payments to be made if those hours are exceeded
  • Continue reading…