Change to Casual Employees

Change to Casual Employees

Change to Casual Employees

Information all Employers need to know

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The Federal Govt last week approved a number of changes to casual employees and a number of other elements to their working relationship with employers

Definition of a casual employee:

If a person is:

  1. offered employment without a “firm advanced commitment to continuing and indefinite work”; and
  2. the person accepts that offer, 

then they are deemed to be a casual employee.

What is firm advanced commitment to continuing and indefinite work?

  • whether the employer can elect to offer work and whether the person can elect to accept or reject work;
  • whether the person will work as required according to the needs of the employer;
  • whether the employment is described as casual employment; and
  • whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.

If your relationship with your employee does not address all of the above, then they are most likely not going to be considered as a casual employee, under the law.

New rights apply to Casual Employees

The 2nd aspect of the bill is a casual conversion clause.

Employers must offer to convert a casual employee to permanent employment if the employee:

  1. has been employed for 12 months; and
  2. during the last 6 months, has worked a regular and systematic pattern of hours without significant adjustment. 

There are some specific exclusions to this that should be discussed with your HR representative.

Other points to note;

  • The Casual conversion requirement will not apply to small business employers with less than 15 employees.
  • Where an employee refuses an offer to convert, they no longer hold a right to request conversion at a later date.
  • ALL casual employees will be required to be given a copy of the new Fairwork Casual Employment Information Statement – which will explain the above entitlements to them
  • the Bill also deals with historical problems that have been created where employers misclassify employees as casuals and fail to accrue leave entitlements for these employees. 
    • Where an employee is found to have been incorrectly engaged as a casual (that is, they are at law a permanent employee), the Bill creates an express right for employers to offset any leave entitlements owed to the employee against the casual loading that is often paid to the casual employees. 
    • In order to have the benefit of this offset arrangement, the loading paid must have had components that can be identified as being paid to the employee instead of one or more leave entitlements.
    • To this point, it is highly suggested that payslips, contracts or agreements clearly identify that a casual loading is paid, how much that loading is (that is preferable as a separate amount or line on a payslip)

What should Employers do now?

Now is the time for Employers to review and if necessary clean up any of their casual arrangements.

They should be looking to:

  • Introduce new contracts that align with the amendments
  • Consider and identify staff to be offered casual conversion and put in place a process to achieve this

The Fairwork Casual Information statement will be available for Employers on their website soon.

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COVID Vaccine

COVID Vaccine

COVID-19 Vaccine

Can I make my staff get the jab?

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Let’s be really clear here. In the current circumstances, the vast majority of Employers should assume they won’t be able to require their employees to be vaccinated against coronavirus.

Potentially, some specific industries or limited situations may apply where a vaccination may be required.

It would be wise to seek appropriate legal advice if you are considering making coronavirus vaccinations mandatory in your workplace.

There will be a raft of information available on the vaccine roll out and we would suggest Employers seek guidance from their Industry bodies or direct from the Fairwork website before taking any actions.

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JobKeeper is Ceasing

JobKeeper is Ceasing

JobKeeper is Ceasing

How this might impact your current staff arrangements

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Is your business is still receiving support & payments for staff under the job keeper scheme?

Have you made arrangements with staff to work from different locations, work reduced hours or stood them down?

The job keeper scheme is scheduled to finish on March 29th, 2021.

What does this mean?

All job keeper enabling directions will also cease to be in effect on 29 March 2021.

There were 3 types of job keeper enabling directions available to Employers:

  • a job keeper enabling stand down direction, including a direction to reduce an employee’s hours
  • a direction in relation to the duties to be performed by the employee, and
  • a direction to perform duties at a place different from the employee’s normal place of work, including their home.

If your business had or made any of the above arrangements during the Covid pandemic, please be aware that these will cease to operate from the date highlighted above.  Employment engagements need to revert to those in place prior to the covid pandemic for all staff.

For example;

Mary is a cleaner at The Oval. Prior to the covid pandemic, she worked a full-time roster of 38 hours per week, Mon to Fri. During the pandemic as there was insufficient work a job keeper enabling direction was given to reduce Mary’s weekly hours to 30 hrs per week.  From March 29th, 2021 her roster needs to revert to 38 hours per week Mon to Fri.

With just 4 weeks until these changes come into effect, now is the time to plan and review how your workplace will handle the return of staff, changed staff hours or staff returning to their previous work locations. It is best practice to communicate early with affected employees so that they too understand the changes and are ready to return.

Consultation when lifting a stand down direction may also be a requirement under an applicable award or agreement, employment contract or workplace policy. All awards and enterprise agreements contain consultation provisions, which could apply in these circumstances.

As an employer, you will also need to consider any specific state restrictions around workplace occupancy levels, your covid safe plan requirements or other current restrictions that might be in place.

Further information can be found at https://coronavirus.fairwork.gov.au/

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1.75% Increase to Minimum Wages

1.75% Increase to Minimum Wages

1.75% Increase to Minimum Wages

Tier 3 now in effect

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

The final and most recent phase of increases occurred from 1st February 2021 and primarily covers the most affected COVID-19 industries which are listed below;

  • Air Pilots Award
  • Aircraft Cabin Crew Award
  • Airline Operations-Ground Staff Award
  • Airport Employees Award
  • Alpine Resorts Award
  • Amusement, Events and Recreation Award
  • Commercial Sales Award
  • Dry Cleaning and Laundry Industry Award
  • Fast Food Industry Award
  • Fitness Industry Award
  • General Retail Industry Award
  • Hair and Beauty Industry Award
  • Horse and Greyhound Training Award
  • Hospitality Industry (General) Award
  • Live Performance Award
  • Mannequins and Models Award
  • Marine Tourism and Charter Vessels Award
  • Nursery Award
  • Professional Diving Industry (Recreational) Award
  • Racing Clubs Events Award
  • Racing Industry Ground Maintenance Award
  • Registered and Licensed Clubs Award
  • Restaurant Industry Award
  • Sporting Organisations Award
  • Travelling Shows Award
  • Vehicle Repair, Services and Retail Award
  • Wine Industry Award

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

The 2nd phase increased from 1st November 2020 and includes the Clerical, Construction, Transport, Horticulture, Professional, Education, Veterinary and Waste management awards.

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.

For more information visit the Fairwork website

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Employee Contracts & Letters of Offer

Employee Contracts & Letters of Offer

Employment Contracts & Letters of Offer

Why do we need them?

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Having documentation is critical for every employer to help establish the basis of how each of their employees is engaged with their business.

Many Employers forget this crucial step when employing staff. This may be as they believe that since they are paying according to an award & paying the correct wages that it is not necessary.

What is a Letter of Offer?

A Letter of Offer is generally regarded as a brief informal document that outlines the intended offer of a position to a candidate. The Letter of Offer is sent to confirm the conversation between the employer and candidate BEFORE they commence work. It contains basic information such as;

  • Type of employment (full time, part-time or fixed-term)
  • Job title & description
  • Minimum hours per week (if not full time)
  • Start & finish times & where they would be working
  • On overview of how much & when you will pay them and what award is applicable

This information is usually presented on a single sheet in a ‘fact like’ manner. An offer will often include some additional documentation for the employee to complete if they accept the offer, such as personal details, tax file declaration & superannuation forms.

Employment Contract

Taking this a step further, a contract of employment is a legal agreement between an Employer and Employee. The contract sets out the terms and conditions that apply during the employment relationship. It is generally a much lengthier document prepared and signed by both parties of acceptance of a letter of offer.

For example, it will typically set out:

  • employee’s duties;
  • any probation period;
  • remuneration in detail including any penalty rates & allowances;
  • leave entitlements;
  • performance measures or standards
  • confidential information obligations;
  • intellectual property obligations; and
  • any restraint of trade or non-compete clause.

Employers should consider if they have any specific requirements and seek appropriate HR advice as to how to include these into their Employment Contract.

Why it is smart to have your Employment arrangements in writing?

An Employment Contract can be in writing, verbal, or inferred from the fact that someone performs work for another party, and that the other party pays the worker. On this basis alone, documenting the intent of the relationship and having the other party sign their agreement with & to the terms of the arrangement help to avoid the risks associated with any misunderstandings or disputes that may arise down the track.

Considering smaller businesses employ friends and/or family it can be tempting for both parties to reduce paperwork by not having anything in writing to confirm the working arrangement.

While the relationship may be established under the best intentions, over time the employment relationship may be tested and it is in these times that supportive documentation may need to be called upon, rather than either party’s ‘memory’ of the arrangement.

For an employer, attending a Fair Work mediation around an unfair dismissal claim without supporting contractual documents is akin to throwing dollars down the toilet and this is one time some pre-emptive planning and tailored documentation has tangible rewards.

Fairwork has a number of templates available for businesses to use here.

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Proposed changes to Casual Employment

Proposed changes to Casual Employment

What are the proposed changes to Casual Employment?

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The Federal Government has introduced an ‘omnibus’ Bill that will make significant changes to the Fair Work Act 2009 (Cth) (FW Act), with effect next year.

The changes include the introduction of:
·         a statutory definition of casual employment;
·         the ability to set-off casual loading against claims for leave entitlements; and
·         universal right for casual employees to convert to permanent employment.

We will keep all clients updated on any changes if/when they are passed into legislation.

The below may assist in some workforce planning for 2021.

Casual employment definition

The Bill will introduce a statutory definition of casual employment based on the tests enunciated by the Full Federal Court in the WorkPac decisions. The legislation will define a person as a casual employee if employment is offered and accepted without any firm advance commitment that the work will continue indefinitely and follow an agreed pattern of work.

The meaning of “firm advance commitment” will be guided by specific factors, including whether:

·         the employee can elect to accept or reject work;
·         the employment is described as casual employment; and
·         the employee will be entitled to a casual loading or a specific rate of casual pay.

The new definition will apply to casuals from the date they commence their casual employment

Set-off casual loading against leave entitlement claims

Employers will be able to offset amounts already paid through casual loading against any claims for the employee to be paid for leave entitlements. If an employer is sued for payment of these entitlements, the Court must allow the employer to deduct from the amount claimed any identifiable casual loading paid to compensate the employee for the absence of those entitlements. This will apply to past and future employees.

An attempt to give this protection to employers through a Fair Work Regulation was shown to be defective in the WorkPac v Rossato (2020) decision.

Casual conversion

The legislation would give a universal right for regular casuals to convert to full-time or part-time employment based on the nature of their regular hours. This right is currently provided in modern awards, as well as many enterprise agreements.

An employer must make an offer to a casual employee to convert if the employee has worked for the employer for a period of 12 months and has worked a regular pattern of hours on an on-going basis for the past 6 months (previously 12 months).

The employer must also weigh whether the employee could continue to work full-time or part-time without significant adjustment to hours of work.

An employer may decide not to make an offer or accept an employee request if they have reasonable grounds not to do so.

If an employee declines an initial offer to convert, a further right to request will be available every 6 months, as long as they remain eligible.

Federal Wage Theft Laws

A new criminal offence of wage theft will apply where an employer dishonestly engages in a deliberate and systematic pattern of underpaying one or more of their employees. It will carry a maximum penalty of $1.11 million and imprisonment for up to 4 years (or both) for individuals, and fines of up to $5.55 million for a body corporate. Individuals convicted of the criminal offence would also be automatically disqualified from managing corporations for a period of 5 years under the Corporations Act 2001.

The maximum penalty for ordinary contraventions by employers will increase to $19,980, or $99,900 for body corporate employers.

In the case of underpayments by bigger businesses, maximum penalties will be based on the higher of either “two times the benefit obtained”, or a $99,900 a fine. In case of serious underpayments by bigger businesses, penalties will be based on the higher of either “three times the benefit obtained”, or a $666,600 fine. This linking of the fine to the benefit obtained will not apply to individual employers or small businesses.

Infringement notice fines and maximum penalties for sham contracting and for failing to comply with a FWO compliance notice will all also increase by 50%.

For more information visit the FairWork Ombudsman website on Casual employees.

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T: (03) 5833 3000
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