Are Casual Workers Now Entitled to Paid Leave?

Are Casual Workers Now Entitled to Paid Leave?

The distinction between casual, full-time and part-time workers appears to be relatively straightforward. Casual workers are normally not entitled to paid annual or sick leave. Instead, they are paid casual loading of 25%. Recently, the Full Court of the Federal Court made findings in relation to the characteristics of a casual employee. It is common knowledge that certain benefits apply to different types of employment. However, a recent case in the Federal Court has addressed issues regarding casual workers and their entitlement to paid leave in certain circumstances. In this article, we review the meaning of a ‘casual worker’, the outcome of this recent case and what this case means for employees and employers alike.

Who is a casual worker?

A casual worker is an employee who does not have fixed obligations in relation to the length of time they will be employed and the hours they will work. They also do not receive paid leave such as sick or annual leave. A casual employee is usually required to work based on a roster, but this roster can change weekly and shifts are not guaranteed.

To compensate for the lack of commitment and the uncertainty, causal workers are paid ‘casual loading’. Causal loading means the worker is entitled to a higher rate of pay than full-time or part-time employees working in a similar role.

A recent update in the law.

On 20 May 2020, the Full Court of Federal Court handed down a decision which affirmed that the casual workers who work with a predictable shift schedule and the commitment to work for a set period of time, or indefinitely were not casual workers despite how their employment contract classified them. These workers are entitled to paid leave, such as annual, sick and carer’s leave.

In this particular case, Mr Rossato, a coal miner, was employed for three and a half years by a labour hire company called ‘WorkPac’. Mr Rossato worked on a variety of different projects as a permanent employee despite being labelled ‘casual worker’ in his employment contract. Justice Bromberg found that the fact that Mr Rossato’s work pattern was assigned well in advance under a set roster, which necessitated the on-going work during “the standard work week”, revealed that his employment was ‘regular, certain, continuing, constant and predictable’. These features were not that of a casual worker.

WorkPac argued that the total amount of casual loading paid to Mr Rossato ought to be set off against the annual and sick leave to be paid to Mr Rossato. The Full Court rejected this argument.

What does this mean for employees and employers?

It is vital that employers review the working nature of their casual employees to ensure they meet the requirements of this working type. If your casual workers appear to be working in a manner not consistent with a casual nature, you should discuss ways to fix this with your employee, perhaps through altering their employment contract to part-time or full-time employment.

Employees should firstly discuss their concerns with their employer if they feel they do not fall within the definition of a causal worker despite their classification under their employment contract. You should also consider seeking legal advice if you feel you are not receiving the correct entitlements.

Further Information

Navigating employment law issues can often feel daunting and overwhelming. If you would like more information on how we can assist you in regards to your employment law concerns, do not hesitate to contact one of our employment law solicitors on 9963 9800 or at law@etheringtons.com.au. For more information, check out our blog here.

Effects of COVID-19 on Workplace Law – An Employee Perspective

Effects of COVID-19 on Workplace Law – An Employee Perspective

The COVID-19 is a health crisis that has caused extensive disruption to our way of life. Lockdown placing restrictions on travel and cautious spending habits, it is unlikely that the economy will see an immediate recovery to previous activity levels. This has had a notable impact upon workplace law as many employees have been stood down or made redundant. In response, the Fair Work Commission has acted to vary industry awards and will continue to conduct hearings for cases of unfair dismissal.

Redundancy and being ‘stood-down’

Many businesses have been shut down for being a non-essential business, or a result in reduced demand due to restrictions on movement. It is likely that the unemployment rate will take a long time to recover as a result of this environment of fear and uncertainty.

If you have been made redundant or stood down, it is important that you seek legal advice on whether the decision complied with the basic principles of workplace law. Unlawful termination of contracts of employment or enterprise agreements and unfair dismissal is a key issue in most employment law cases.

Unfair Dismissal

Fair Work Commission (‘Commission’) is conducting hearings and conferences for general protections and unfair dismissal but by way of phone or videoconference. If you have believe that you have been unfairly dismissed, you must apply to the Commission within 21 days of your dismissal taking effect. It is recommended that you seek legal advice prior to lodging an application to explore other avenues of action you could take.

Award Implications

The Fair Work Commission is in the process of varying industry awards to allow for more flexibility during the COVID-19 pandemic. On 8 April 2020, the Commission made determinations to vary 99 awards to provide for unpaid pandemic leave and great flexibility for annual leave for employees. The changes to these awards provide for two weeks of unpaid pandemic leave and the ability to take twice as much annual leave at half their normal pay if their employer agrees.

These measures will are temporary and are in effect until 30 June 2020. The leave does not need to have been accrued and is not pro-rated for employees who do not work full-time. If you are an employee looking to take unpaid pandemic leave, you should know your rights under this award as this should not affect other paid or unpaid leave entitlements or require you to use all your paid leave first.

JobKeeker Provisions

Not surprisingly, there has been a surge in applications to the ATO for relief and JobKeeper payments (which are set to be released in May 2020). If an employer is eligible to receive these JobKeeper payments they have an optional right to give an employee a ‘JobKeeper enabling direction’ that entitles them to payments. If an employee agrees to the terms of the JobKeeper payments, this does not diminish their existing rights under workplace laws.

The employee must continue to be paid the same base rate, or the applicable penalty rates, and any other allowances that apply to the hours they work. An employee may be asked to work additional hours, and these hours need to be reasonable. An employee can refuse a request to work, and if the only reason for a request to work additional hours is to ‘match’ the amount of the JobKeeper payment, this is not likely to be a reasonable request. Under general protection provisions of the Fair Work Act, it is unlawful to for an employee to work unreasonable additional hours, or require this to be a condition in order to receive the JobKeeper payment.

Further Information

It is important to be fully aware of your protections as an employee under workplace laws and your employment contract. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au. Read more on our blog here for further more information and analysis on the restrictions and rules in place during COVID-19.

Busting 5 Common Objections to Making a Will

Busting 5 Common Objections to Making a Will

Making a Will can often feel like a daunting and unnecessary task. With much of the angst in the community regarding COVID-19 beginning to subside, you may be thinking that making a Will is not an important task anymore. However, the unfortunate reality is that death is inevitable and proper creation of a Will is always an important task, regardless of the circumstances. In this article, we explore five (5) of the most common objections to making a Will and why these objections may not always hold up in reality.

1. I’ve told my family my wishes and I know they will do the right thing.

Sometimes knowing the wishes of a loved one who has recently passed away can mean a variety of different things to different family members. Moreover, verbal instructions are an inadequate way of dealing with your estate. Verbal instructions aren’t always binding and can result in delays and expenses for the administration of your affairs. The death of a family member is already an emotionally difficult time. Through ensuring you leave behind a clearly laid out and validly executed Will, your family will have one worry taken off their hands.

2. I’m a young person- the need to make a Will is far off for me.

Unfortunately, death inevitably affects both old and young persons. Even with the simplest estates in the case of young persons, the creation of a Will, enduring power of attorney and advance care directives helps ease the added stress of paperwork or applying to the court for clarity.

3. My affairs are just too complex.

The issue with this objection is not that your affairs are too complex, but rather a solution seems too difficult to find. Yet, what is required is an experienced legal professional who can talk through your affairs and find a simple and appropriate process to deal with your affairs.

4. What’s the point? Wills are successfully challenged a lot.

This is a common misconception. Wills and Estates lawyers are highly qualified in assessing the risk of a successful challenge and can suggest ways to reduce the value of the assets that are vulnerable to a challenge. Assets vulnerable to a Will challenge are assets that are owned under your own name. Your lawyer can advise you on mechanisms to reduce this risk, for example through transfer to a trust, jointly owning bank accounts and changing ownership of property to ensure your assets are dealt with in your desired way.

5. I already have a Will from quite a few years ago.

It is important that all Wills are regularly reviewed. Circumstances will inevitably change in life, such as the birth of a child, divorce or assets being bought or sold. It is commonly suggested that Wills should be reviewed at least every three (3) years to ensure they reflect your most current circumstances. Old Wills could be obsolete and result in your estate not being dealt with in accordance with your wishes or being challenged by disgruntled and self-entitled beneficiaries.

Further Information

Making a Will is vital to ensure your estate is dealt with in your desired way. If you would like more information on how we can assist you in making or updating your Will, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au. For more information, check out our blog here.

COVID-19: Witnessing Legal Documents Electronically

COVID-19: Witnessing Legal Documents Electronically

The Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) (The Regulation) is another government initiative in response to COVID-19. The Regulation officially came into force on 22 April 2020 and aims to provide clarity on how some documents can be witnessed by an eligible witness via audio visual link. One of the most critical aspects of the Regulation is that it does away with the requirement for a witness to be physically present to witness the execution of documents. In this blog, we answer some of the most common questions regarding the new method of witnessing legal documents electronically.

What does audio visual link mean?

Audio visual link means any technology that enables audio and visual communication between two persons who are not physically present in the same room. This usually consists of the classic video conferencing platforms such as Zoom, WhatsApp, Skype and FaceTime.
What documents can be witnessed by audio visual link?

The below documents can now be witnessed through an audio visual platform:

  • a Will;
  • a Power of Attorney or Enduring Power of Attorney;
  • an Appointment of Enduring Guardian;
  • a deed or agreement;
  • an affidavit (including any annexure or exhibit to an affidavit) except for the purposes of divorce; and
  • a statutory declaration.

How do I witness a document by audio visual link?

In order to have a validly witnessed document it is imperative that the Regulation is followed correctly and carefully. In accordance with the Regulations, a person witnessing the signing of a document using an audio visual link must:

  1. Observe the person signing the document in real time (i.e. not via a pre-recorded video) to confirm the signature is legitimate.
  2. Next, the person witnessing the document must sign the document (or a copy) as soon as possible after the witnessing via audio visual link to confirm they witnessed the signature. This could be done on a hard copy of the original document that the signatory signed which is either sent in the post or electronically to the witness.a.
    • It is important to note that the person witnessing the document must be reasonably satisfied that the document signed by the witness is the same document signed by the signatory.
  3. The person witnessing must then state on the document the method of witnessing (either countersigned or counterpart) that was used and that it was witnessed in accordance with the Regulation.
    • For example: “I, [insert name here] attest that this document was signed in counterpart and witnessed by me by audio-visual link via Skype in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017”.

Are there changes to who can act as a witness?

The Regulation has altered who can witness a Statutory Declaration. Traditionally, only Justices of the Peace and Solicitors could act as a witness to a statutory declaration.

The Regulations have been amended to allow the below persons to witness a statutory declaration

  • financial advisors;
  • pharmacists;
  • nurses;
  • accountants who are a member of Chartered Accountants Australia, CPA Australia or the Institute of Public Accountants;
  • psychologists;
  • veterinary surgeons;
  • police officers; and
  • teachers (only those employed on a permanent full time or part time basis at a school or tertiary education institution).

Further Information

With so many changes happening in the legal sector due to COVID-19 it is important to be fully aware of how these may practically impact you. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au. Check out our blog for further information and analysis on the restrictions and rules in place during COVID-19.

Residential Leases during COVID-19: What You Need to Know

Residential Leases during COVID-19: What You Need to Know

Coronavirus has undoubtedly had a substantial impact on the Australian economy. This unfortunately means that some residential tenants are struggling to keep up with their rental payments, due to increased unemployment or standing downs. However, the NSW government is introducing measures to support landlords and tenants and encourage them to work together through this difficult time. In this article, we explore some of these measures to help you understand landlord and tenants obligations under these new initiatives.

New Measures:

The new measures include an interim 60 day stop on landlords issuing termination notices or applying for a NSW Civil and Administrative Tribunal eviction order due to rental arrears, where tenants are financially disadvantaged by COVID-19. This will be followed by limitations for 6 months for rental arrears evictions for tenants financially disadvantaged by COVID-19.

For Tenants:

To meet the requirements for the 60 day stop on evictions, residential tenants needs to demonstrate that they are impacted by COVID-19. A household is impacted by COVID-19 if:

  1. one or more rent-paying members of a household have lost employment or income (or had a reduction in employment or income) due to COVID-19 business closures or stand-downs, or
  2. one or more rent-paying members of a household have had to stop working or reduce work hours due to illness with COVID-19 or due to COVID-19 carer responsibilities for household or family members, and
  3. the above factors result in a household income (inclusive of any government assistance) that is reduced by 25% or more.

What are the obligations for a tenant?

  • To be honest and act in ‘good faith’ in negotiations with their landlord
  • Provide the landlord with relevant information and proof regarding their situation if they have been impacted by COVID-19
  • Tenants should have regard to the landlord’s financial situation, including whether they rely on the income to cover expenses such as mortgages
  • Tenants must work towards achieving a mutually satisfactory outcome.

All tenants who are not impacted by COVID-19 are expected to honour their existing tenancy agreements and continue to pay all rent and charges in full.

For Landlords:

It is important for landlords to have regard to the tenant’s situation and be considerate of the financial burdens they are facing due to COVID-19. However, this must be weighed against the landlord’s personal financial situation and how a rental reduction may impact their income.

What are the obligations for a landlord?

  • To negotiate a rent reduction if their tenant has been impacted by COVID-19
  • Landlords can only seek to give a termination notice or apply for an eviction after the interim 60-day stop if it is fair and reasonable in the context of the specific case
    • Only after negotiations have failed can a landlord seek to terminate the agreement. The NSW Civil and Administrative Tribunal (NCAT) will have discretion to assess whether it is fair and reasonable to evict in the circumstances of each case
  • To be honest and act in ‘good faith’ in negotiations with their tenant
  • Landlords should be honest and frank about their financial situation, including whether they rely on the income from the tenant to cover expenses such as mortgages
  • They must work towards achieving a mutually satisfactory outcome with the tenant.

Fair Trading will also be able to assist landlords and tenants trying to reach an agreement if needed.

Further Information

It is important to be fully aware of your obligations under your residential lease agreement. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au. Check out our blog here for further more information and analysis on the restrictions and rules in place during COVID-19.