1.75% Increase to Minimum Wages

1.75% Increase to Minimum Wages

1.75% Increase to Minimum Wages

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The National Wage decision was announced on June 19th with a 1.75% increase awarded. This will be phased in over 3 dates.

Essential services awards such as Health, Electricity, Gas, Social & Community Services, Firefighters, Pharmacy will increase from July 1st, 2020.

The 2nd phase will increase from 1st November and includes the Clerical, Construction, Transport, Horticulture, Professional, Education, Veterinary and Waste management awards.

The final phase of increases will occur from 1st February 2021 and primarily cover the most affected COVID-19 industries such as Retail, Fitness, Hair & Beauty, Fast Food, Travel, Restaurant and Hospitality industries.

The absolute minimum wage applicable for an adult under any award will now increase to $19.84 per hour being $753.80 per standard 38 hour week.

Last week, the Victorian Government introduced a new bill to govern the issue of wages theft. The Wage Theft Bill 2020 will make underpayment of wages a criminal offence.

The bill will come into effect from 1st July 2021 and will place more stringent record keeping requirements on all employers.

For more information visit the Fairwork website

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Leave Entitlements For Casuals

Leave Entitlements For Casuals

Leave Entitlements For Casuals:
Further Landmark Decision

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The Full Federal Court of Australia (the “Court”) has determined a casual employee engaged over 3.5 years on six separate casual contracts was, on the facts, a permanent employee and therefore entitled to paid annual leave, paid personal leave, paid compassionate leave and to be paid for public holidays.

This case upholds an earlier decision, which confirmed a casual miner should receive the same leave entitlements and benefits as a permanent employee.

Facts of the Case

The employee commenced employment with the labour hire business (the “Business”) in July 2014 and signed six contracts over his tenure. Importantly, the contracts contained the following express terms:

  • The employee was a casual employee;
  • The casual loading paid to the employee was included in the flat rate of pay; and
  • One contract noted the casual loading was in lieu of leave entitlements including paid leave, notice and redundancy pay.

The Enterprise Bargaining Agreement covering the employee also clearly stated the casual loading paid to the employee was in lieu of leave entitlements.

During his six contracts, the employee worked under a roster arrangement. These rosters were often for a lengthy period of time. One roster, for example ran for the period 1 January 2015 to 31 January 2016.

Findings of the Court

The Court ultimately found the employee was a permanent employee even though his contract described him as casual.

In reaching this decision, the Court had regard to the true nature of the relationship and the work performed by the employee.

Integral to how the Court approached determining the true relationship was consideration of: how regularly the casual was engaged; any firm advance commitment to work between the employer and employee; and the predictability of the work.

The Court unanimously found the employee was entitled to back pay of leave entitlements and public holidays over the Christmas period. This case adds mounting case-law which address how Courts are assessing the relationship of casual employees. Casual employees who are deemed “regular and systematic” with a predicable work schedule are increasingly likely to be determined permanent employees with entitlements to paid leave.

Implications for the Future

This decision confirms businesses cannot rely on paying a casual loading to avoid or set off a liability to pay entitlements.

The Industrial Relations Minister, Christian Porter, did intervene in the proceedings and has stated “There is of course potential for an appeal….Given the potential for this decision to further weaken the economy at a time when so many Australians have lost their jobs, it may also be necessary to consider legislative options”

Whilst a decision is made as to whether to appeal, businesses should act with caution when engaging casual employees. In addition, businesses should review their current casual arrangements and ensure they are complying with all the relevant provision concerning casual employment in any applicable awards, or enterprise agreements.

If a business considers a casual employee is entitled to paid leave, we recommend advice be sought.

In the meantime, for those employers engaging casuals on a regular basis, the Victorian Chamber recommends the following practical considerations:

Casual Conversion

If an employee is covered by an award or enterprise agreement which contains a casual conversion clause, inform them of their right to seek casual conversion and remind them routinely. It may be prudent for employers to actively offer permanent opportunities to some casual employees, if the employer has capacity to do so and if the true nature of the employment could otherwise be ambiguous.

Declining the opportunity to convert to permanent full time or part time employment may serve as the employee’s reaffirmation of the casual arrangement and could provide a reference point for employers, should the employee attempt in future to be retrospectively categorised as a permanent employee. However, this step on its own is unlikely to satisfy the courts a casual employment relationship existed.

Any discussions or agreements must be recorded in writing and regard should be had to the requirements of any applicable award or enterprise agreement.

Rostering

For future rostered work include a statement to casual employees that all working hours and shifts are subject to change and may be declined by the employee.

Ensure a range of working hours and shifts are fairly distributed among employees. Employers can maintain a strong labour pool by ensuring an effective spread of existing skills and genuine opportunities for development among casual employees.

Rostering arrangements can be used to reinforce casual employment. This can be through a rostering system that allows staff to ‘bid’ for available rosters. Employers can confirm to the casual that each shift is accepted in isolation from the previous or next shift.

The above are suggestions that may assist going forward in the absence of immediate legislative reform. Equally, employers will need to be cautious with existing employees and that they are not exposing their business to a claim of adverse action.

Conclusion

Clear terms and conditions in employment contracts and other industrial instruments are always necessary, however what is now critical are the practices that are applied during the employment relationship including rostering patterns and managing the expectation of ongoing work. This decision as it stands also highlights that while employment relationships may start out as casual, or be agreed by all parties as being casual, it is the true nature of the relationship, which can change over time that is determinative.

Source: VECCI

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Coronavirus – Time For Panic Or Opportunity?

Coronavirus – Time For Panic Or Opportunity?

Coronavirus – Time For Panic Or Opportunity?

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The headlines over the last few weeks and in particular, over the last few days have looked something like the following:

  • Global Markets Fall for Fifth Consecutive Day
  • Stocks Fall Again as Coronavirus Spreads
  • Coronavirus has Major Impact on the Stock Market
  • Coronavirus Market Sell Off
  • Another Bad Day in the Markets as the Coronavirus Spreads

As you can imagine, this has had many investors selling their shares in a panic and running for the woods.

Never in human history has information been so freely available to us due to social media and the internet. For the most part, this is fantastic. However, with so many opinions and news headlines around, we can sometimes get caught up and begin to believe everything we read.

Now, I am not saying that the Coronavirus is not something we should be worried about at all. Many people have died from this illness and it has been a tragedy for those affected.

What I am saying is that this is not the first time (and likely not the last time) that we will see a major global epidemic impact investment markets.

The below table shows some past epidemics and the change in the US market following the outbreak.

Epidemic Epidemic End 6-Month % Change of S&P 12-Month % Change of S&P
SARS April 2003 14.59% 20.76%
Avian flu June 2006 11.66% 18.36%
Swine flu April 2009 18.72% 35.96%
Ebola March 2014 5.34% 10.44%
Measles/Rubeola June 2019 9.82% N/A
Source: Dow Jones Market Data

As can be seen from the above, following recent outbreaks, the US market has managed to rebound not only quickly, but also quite substantially.

Therefore, it is important not to forget some key fundamentals when it comes to investing.

Firstly remember, we invest for the long term and therefore short-term fluctuations and market events should not worry us.

Secondly, why did you start investing in the first place? Has the outbreak of Coronavirus changed your investment goals? If not, then why panic and sell because of a new media headline? If your investment goals remain the same, then so should your investment plan.

I am not saying to buy now because the market has dropped, the market may continue dropping over the next few days and weeks. We do not know where the bottom of the market is and neither does anyone else.

What I am saying is that it is important to stick to your plan and continue investing rather than selling in a panic because the markets have dropped and media headlines are in a frenzy. 

To summarise, ultimately the market’s reaction to the Coronavirus will come down to the severity of the virus and just because markets have managed to rebound following outbreaks in the past doesn’t mean that will be the case this time. It is however important to keep a clear head when it comes to selling your shares and to not let media headlines and social media panic cloud your judgement.

One final thought, remember what Warren Buffett, arguably the greatest investor of all time, once said:

“Be greedy when others are fearful, and fearful when others are greedy”

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Award Changes – Annualised Wage Agreements

Award Changes – Annualised Wage Agreements

Award Changes – Annualised Wage Agreements

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Modern Awards have now been updated to include the below changes around Annualised Salaries/Wage Agreements. These changes are effective from 1st March, 2020.

An annualised wage agreement may also be defined as where a flat fixed pay rate is applied for all time worked.

There are some critical thought changes here, reflecting the volume of common law cases and the impacts of those decisions on award interpretation.

What is included in the changes?

  • The employer must advise the employee in writing of the salary and keep a record:
    1. Of the salary payable
    2. The award provisions satisfied by the salary (what is actually included for example specific allowances or loadings, by default anything not listed would be an additional payment)
    3. The method of calculation and
    4. The maximum number of overtime hours it is in satisfaction for (the outer limit).
  • If the employee works in excess of the maximum number of overtime hours, the employer is obligated to make a separate make-up payment.
  • Review the salary arrangement every 12 months and amend any shortfalls in 14 days.
  • Keep appropriate records of employee working times including unpaid meal breaks. Such a record should be acknowledged by the employee, either physically or electronically.

What do I need to do now?

  • Make sure you & your employee keep a record of all time worked and that this record is acknowledged by the employee. This could be as simple as a book showing start & finish times then signed by an employee.
  • Review any existing contracts and make appropriate adjustments as soon as practical.

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New Calculation Of Personal/Sick Leave

New Calculation Of Personal/Sick Leave

New Calculation Of Personal/Sick Leave

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The Mondelez Decision

On 21 August 2019, the Full Federal Court of Australia handed down a decision dealing with how paid sick and carer’s leave accumulates and is taken under the National Employment Standards (NES).
The decision said that:

  • full-time and part-time employees each get 10 days of paid sick and carer’s leave for every year of employment
  • paid sick and carer’s leave accumulates in days, not hours.
    This entitlement applies from the employees start date of employment.

The company & government have appealed this decision. However, until this is heard the above isthe law.

What does this affect?

Whilst an award, agreement, contract can set out different entitlements to leave, they can’t be less
than the minimum entitlement in the National Employment Standards (NES).
The NES minimum entitlement is based on the decision above and allows for 10 paid days leave per
employee per year of service.
How is it calculated?

  1. Find out how many Calendar days in the employees year of service
  2. Find out how many Calendar days (or part days) count as service. Unpaid leave does not count as service.
  3. Calculate the amount of leave accumulated
    Multiply the number of days from step 2 x 10 then divide by the number of days in step 1.

What happens if an employee takes a part day of leave?

A part day of leave is calculated as a fraction of the ‘ordinary hours’ of work the employee would
have worked that day.

What if an employee works different hours on different days?

If any employee works different hours on different days this doesn’t affect how their leave is
accrued. This is because leave is accrued in days, based on service with the employer. A day is an employee’s ordinary hours of work in a 24 hour period.

Working different hours on different days, does affect what the employee gets paid when they take
leave.

i.e. employee works 2 weeks on a 4 on 4 off basis of 12 hrs. Then for the following 2 weeks they
work 5 days at 8hrs per day.
If sick, in weeks 3 (working 8 hrs per day) they get paid 8 hrs.
This is really applicable to shift workers who will now get paid according to the hrs on the shift of the day they would have worked, not the standard base rate hrs of 7.6 per day. Employee’s aren’t paid for any overtime hours they are rostered to work.

Is an employee entitled to back pay if an employer only paid them for 7.6 hours of leave on the days they would’ve worked 12 ordinary hours?

Yes.
If the employee would have normally worked 12 ordinary hours on a day they took paid sick and carer’s leave, they should be paid for those 12 hours at their base pay rate.
If they were previously only paid for 7.6 hours but should have been paid for 12, the employee is entitled to back pay for the difference.
They may also be entitled to extra superannuation contributions and interest.

What happens to accumulated paid sick and carer’s leave if an employee changes from part-time to full-time employment with their employer?

Nothing changes.
Full-time and part-time employees each get 10 days of paid sick and carer’s leave for each year of
service.
A part-time employee would have accumulated 10 days of leave for each year of service while part time.
If they become full-time, they accumulate leave at the same rate.

Does the decision impact our advice on annual leave or other types of leave?

No.
The decision doesn’t impact annual leave or other forms of leave under the NES. It only applies to
paid sick and carer’s leave.

What should employers do now?

Employers should review their leave or payroll systems and records to make sure they’re calculating
leave in days, not hours.
As part of this, employers should consider issues such as:

  • In addition to employees’ NES entitlements to paid sick and carer’s leave, do their employees have a greater entitlement under their registered agreement, award or employment contract?
  • Are they required to make any back payments and/or additional superannuation
    contributions and/or interest payments in relation to the leave?

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Mental Health Essentials

Mental Health Essentials

Mental Health Essentials

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Improve mental health in your workplace

Victorian Chamber of Commerce and Industry workplace Mental Health Essentials program offers free mental health training and consulting to small and medium sized businesses who employ young workers and want to create mentally healthy workplaces.

What you’ll get:

Who is eligible to participate?

You can participate in the Mental Health Essentials program if you employ a significant number of young workers (under 25) and are:

  • a small business (less than 20 employees)
  • a medium-sized business (less than 200 employees)

How do I apply?

Register your interest using Victorian Chamber of Commerce and Industry’s online form. One of their consultants will contact you to confirm your eligibility and discuss the next steps.

What does the Mental Health Essentials program involve?

One of their expert consultants will visit your business twice and provide the following services:

First visit

  1. Briefing session for business owner(s) and senior leaders on how to create and maintain a mentally healthy workplace, including:
    • The business case: why mentally healthy workplaces are productive and profitable
    • Your legal obligations: understanding how safety, workplace realtions, discrimination, workers’ compensation and privacy laws apply to mental health
  2. Assisting business owner(s) and senior leaders to complete Worksafe’s WorkWell toolkit and draft a simple, achievable mental health action plan

Second visit

  1. Mental health training for all workers, including:
    • Facts about mental health in Australia
    • Recognising early warning signs
    • Having a supportive conversation
    • Your role in a mentally healthy workplace
    • Tips to manage your own mental health
  2. Mental health training for managers, including:
    • Discussing mental health issues with workers
    • Communicating with doctors
    • Managing team impact
    • Making reasonable adjustments to people’s roles
    • Managing performance
  3. Discussion with business owner(s) and senior leaders on how your mental health action plan is progressing, including recommendations for ongoing action

Who pays for the Mental Health Essentials program?

The Mental Health Essentials program is supported by WorkSafe Victoria through the WorkWell Mental Health Improvement Fund.

It’s free for small and medium-sized businesses, however, they will expect you to demonstrate a genuine commitment to the program by:

  • encouraging your workers and managers to attend training
  • using WorkSafe’s WorkWell Toolkit to draft a mental health action plan and taking meaningful action on your chosen initiatives

Is information about my business confidential?

Yes. Any information that Victorian Chamber of Commerce and Industry collect about your business to provide the Mental Health Essentials program is confidential and will be handled according to their privacy policy.

WorkSafe Victoria funds the Mental Health Essentials program through the WorkWell program, but will not receive any information that identifies your business.

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