Workplace Solutions

As part of the Federal Government’s initial response to the Covid-19 pandemic the JobKeeper scheme assisted to keep businesses afloat (and employees employed) through the payment of employee wage subsidies.

As the original JobKeeper scheme ended on 28 September 2020 and the effects of the Covid-19 pandemic are continuing, the Federal Government introduced the replacement ‘JobKeeper 2.0’ scheme to apply from 28 September 2020 to 28 March 2021.

As with the original JobKeeper scheme, JobKeeper 2.0 operates by providing eligible employers with fixed fortnightly wage subsidies (JobKeeper payments) that the employer is required to pass on to all eligible employees. [...]  READ MORE →

In mid 2020 the Fair Work Commission made a variation to the coverage provisions of the Miscellaneous Award 2020 (Award) which dramatically increased the potential application and scope of the Award to cover employees who would otherwise be ‘award-free’.

The Award has historically acted as a ‘catch-all’ to cover employees who were traditionally award-covered but who were not covered by any of the other modern awards.

Prior to 1 July 2020, the coverage provisions in the Award (including the previous 2010 version of the Award) included the following exclusions: [...]  READ MORE →

In December 2020 the Federal Government proposed the most significant set of changes to the national workplace system since the passage of the Fair Work Act in 2009.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 represents the outcome of deliberations by five working groups convened by the Minister for Industrial Relations and featuring representatives from employer groups and trade unions.

The Federal Government has stated that the purposes of the Bill include assisting businesses to recover from the effects of the Covid-19 pandemic, providing more clarity and certainty to both employers and employees about their rights and responsibilities, increasing employee/employer flexibility, and streamlining and simplifying the current industrial relations system. [...]  READ MORE →

In late 2020, WorkPac was granted special leave by the High Court to appeal the Federal Court’s decision in Workpac Pty Ltd v Rossato [2020], meaning that the High Court may finally provide authoritative guidance on what properly constitutes ‘casual’ employment.

By way of background, Mr Rossato was engaged by Workpac on a casual basis, his employment agreement specified that he was a casual employee, and he was paid a casual loading throughout his employment, however, after that employment ended he alleged he was in reality a permanent employee and therefore entitled to various NES benefits such as notice of termination and paid annual leave. [...]  READ MORE →

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
• for Group 2 Modern Awards, the increase takes effect from the start of the first full pay period on or after 1 November 2020
• for Group 3 Modern Awards, the increase takes effect from the start of the first full pay period on or after 1 February 2021
• absorption of wage increases into over-award payments remain permissible (subject to the terms of the relevant employment agreement and what other amounts are being absorbed into any annualised wage)
• increases to the minimum wages of junior workers, apprentices, trainees, piece workers and employees on the supported wage system will occur
• expense-related allowances in Modern Awards will increase as set out in the Modern Award (eg, by the applicable CPI index figure)
• annualised wage arrangements will need to be reviewed to ensure they can still properly absorb/include all relevant minimum Modern Award amounts and that they continue to meet technical notification and reconciliation requirements introduced into several updated Modern Awards

NEW! National Minimum Wage (NMW)

With the NMW:

• this is applicable to employees to whom neither a Modern Award or enterprise agreement applies
• the NMW increases to become $753.80 per week or $19.84 per hour
• the increase takes effect from the start of the first full pay period on or after 1 July 2020 (unlike the staggered increase applying to the Modern Awards)
• in addition:
• special NMW rates apply to employees with disabilities, junior employees, apprentices, and those on training arrangements
• the minimum casual loading remains unchanged at 25%

NEW! Impact on Enterprise Agreements

With enterprise agreements:

• they must always meet or exceed the minimum wage of:
• the relevant Modern Award (ie, the Modern Award that would have applied had the enterprise agreement not been in existence)
• the NMW (ie, where a Modern Award would not apply even if the enterprise agreement was not in existence)
• thus, pay rates in enterprise agreements may need to be increased (even if the enterprise agreement has its own wage increase regime)

NEW! The Sting

Be mindful that wage increases may have flow-on effects such as increasing:

• the value of leave loading, penalty rates, overtime and superannuation contributions
• the value of accrued leave entitlements
• the cost of wage related expenses such as payroll tax and workers compensation premiums

NEW! Redundancy

The tax-free component of a genuine redundancy payment increases to be: [...]  READ MORE →

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

The Outcome

In essence:

• BAR was convicted and fined $3million
• the two directors of BAR were sentenced to 10 months imprisonment (but suspended on the proviso that the defendant not commit another offence punishable by imprisonment within a 20 month period)
• amongst other things, the court stated “the defendants had no safety systems in place, in particular there was no traffic management plan” and “steps to prevent the incident involved only minor inconvenience and little, if any, cost”

Take Action

The decision reiterates the critical importance of ensuring workplace health and safety and the risks for both the business and directors in respect of any non-compliance

It also serves as a timely reminder that businesses must ensure they address and meet (and ideally exceed) all of their workplace health and safety obligations including ensuring: [...]  READ MORE →

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

• Mr Rossato was informed that a standard work week was 38 hours, but he was regularly required to work 42 hours per week by way of lengthy 12 hour shifts

• Mr Rossato’s contracts stated that he was required to perform all shifts and hours allocated to him, and several contracts specified that Workpac could recover accommodation costs, transport costs and other damages if he failed to attend a shift

• Mr Rossato’s contracts did not contain an express set-off clause or any provisions allowing Workpac to recover any amounts paid above the rates set out in the enterprise agreement (including casual loading)

The Claim

The Court proceedings were commenced by Workpac, who sought declarations from the Court that Mr Rossato was a casual employee (rather than appealing the previous Skene decision). [...]  READ MORE →

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. [...]  READ MORE →