Modern Awards – An Update, June 2020

Modern Awards – An Update, June 2020

Several modern awards have been significantly varied by the Fair Work Commission (‘FWC’) to grant businesses and employees temporary measures to preserve the ongoing viability of businesses and jobs during the COVID-19 pandemic. In addition to the unpaid pandemic leave and annual leave flexibility that has varied over 99 awards since 8 April 2020, the NSW Government has inserted provisions in the Long Service Leave Act 1955 (NSW) relating to pandemic leave. Employers should become familiar with these important industry award changes which we will outline below.

Changes to Modern Awards in 2020

The Tranche 2 awards, including the following listed below, have been finalised and will come into effect from the 29 May 2020. In addition to unpaid pandemic leave, the following changes have been inserted that are temporary and will be reviewed on 30 June 2020:

1. Clerks — Private Sector Award 2010

Operational flexibility: employees can be asked by their employers to do any tasks that they have skill and competency for, even if they are not in their usual classification or normal work, given that the employee has the appropriate licenses and qualifications. If an employee is told to work above their usual classification for more than one day, they must be compensated by being paid at a higher rate.

Work from home agreements: Part-time employees can agree to have minimum engagements reduced from 3 hours per shift to 2 hours. Casual employees can agree to be paid for a minimum 2 hours’ work shift instead of 3 hours.

Ordinary hours change while working at home: Agreements can be made to allow employees to work between 6am to 11pm on Monday to Friday, and 7am to 12.30pm on Saturday.

Reduced hours: Any employee who has had their hours reduced can ask their employer for permission to find more work with another employer and/or access training, professional development and study leave through their employer.

See determination for further information.

2. Hospitality Industry (General) Award 2010 and Restaurant Industry Award 2010

Operational flexibility: An employee can perform any duties within their skill and competency provided that they are licensed and qualified to perform them. Employees engaged to perform higher duties must be compensated at a higher rate than their ordinary classification.

Working hours: An employer may direct a full-time employee to work an average of between 22.8 and 38 ordinary hours per week and be paid on a pro-rata basis. An employer may direct a part-time employee to work an average of between 60% and 100% of their guaranteed hours per week (over the roster cycle).

Annual Leave: An employer may, subject to considering an employees’ personal circumstances, direct the employee to take annual leave with 24 hours notice.

See determination for the Hospitality Industry Award and the determination for the Restaurant Industry Award.

3. Educational Services (Schools) General Staff Award

Temporary reduced hours: An employer may issue a notice of intention in writing to direct an employee to reduce their ordinary hours by up to 25%. The direction will come into effect 5 days after the notice of intention was issued and will remain in force for a period of no more than 12 weeks.

Operational flexibility: An employee can perform any duties within their skill and competency provided that they are licensed and qualified to perform them. Employees engaged to perform higher duties must be compensated at a higher rate than their ordinary classification.

Other awards that have been varied include the Rail Industry Award, Contract Call Centres Awards and Manufacturing and Associated Industries and Occupations Award. See what other awards have changed in 2020 here.

Considerations for Employers

Employers must be aware of their changing obligations surrounding unpaid pandemic leave and any other laws, such as those relating to the JobKeeper subsidy. The greater flexibility in relation to job roles and duties, work hours and leave under some awards is a positive development towards enabling businesses to meet the challenges caused by the pandemic. However, employers must proceed with caution to ensure that their work agreements comply with these award variations.

Further Information

For further assistant on any matter relating to work from home policies or any workplace matter, please contact one of our experience employment and litigation solicitors on 02 9963 9800 or law@etheringtons.com.au.

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 uncertainty, casual workers are paid ‘casual loading’. Casual 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 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 off-set 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 work classification. 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 casual 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.

Issues Facing Company Directors During COVID-19

Issues Facing Company Directors During COVID-19

COVID-19 continues to disrupt the operation of businesses globally, presenting new challenges to company directors on how to continue to carry out their duties and obligations. While many directors are focused on the immediate practical implications of operating in these challenging times, directors must ensure they keep in mind their broader obligations to stakeholders under the Corporations Act 2001 (Cth). In this article, we address the potential issues facing directors in the context of the current pandemic.

Directors’ Duties

There are numerous statutory obligations directors must adhere to. Directors must continue their duty to act in good faith and in the best interests of the corporation. Given the uncertainties surrounding the COVID-19 pandemic it may be challenging for directors to determine how their immediate actions may impact the long-term success of the company and its various stakeholders.

While directors must of course focus on the immediate implications of operating in these uncertain times, they must ensure that they continue to act in good faith and in a reasonable manner and make decisions based on the most reliable and up-to-date information in front of them. Continue to place priority on protecting the health and welfare of staff, and consider enacting contingency plans to avoid exposing the company to outside risks.

Financial Reporting and Annual General Meetings

The coronavirus has temporarily impacted companies’ abilities to hold annual general meetings (AGMs). For listed and unlisted public companies required to hold an AGM by 31st May 2020, ASIC has confirmed that it would take no action if AGMs are postponed up to the end of July or if AGMs are held virtually in compliance with s 249S of the Corporations Act. The holding of virtual AGMs is permitted under the Corporations Act, however entities must check whether their constitution restricts meetings being held in this way and seek legal advice on section 1322 of the Corporations Act.

Insolvency and ‘COVID-19 safe harbour’ provisions

The Coronavirus Economic Response Package Omnibus Act 2020 included, among other measures, a new section 588GAAA into the Corporations Act granting temporary relief for financially distressed businesses. The amendments provide a ‘safe harbour’ to grant relief for directors from potential personal liability for insolvent trading.

In order to be able to rely on these measure, the debt leading to insolvency must have been incurred in the ordinary course of the company’s business, during the six month period commencing from the 25 March 2020 (or longer as prescribed in another regulation), and before any appointment of an administrator or liquidator during that period.

In relation to insolvent trading, directors should seek advice early from a qualified and independent advisor about the company’s financial affairs and the options available to manage the disruption caused by COVID-19.

Check out our blog here for further more information and analysis on the restrictions and rules in place during COVID-19.

Further Information

It is important to be fully aware of your duties and obligations as a director during this rapidly evolving and challenging environment during COVID-19. If you would like more information on how we can assist you, do not hesitate to contact us on 9963 9800 or at law@etheringtons.com.au.

Temporary Amendments to Modern Awards Due to COVID-19

Temporary Amendments to Modern Awards Due to COVID-19

The Fair Work Commission (FWC) announced on 1 April 2020, that it intends to temporarily amend 103 modern awards in response to the COVID-19 pandemic. This amendment is set to operate until 30 June 2020. The FWC has confirmed that this initiative is intended to provide protection from dismissals for employees. This amendment is intended to provide employers and employees with additional flexibility amid COVID-19. In this article, we outline the temporary variations and what they mean for the impacted awards.

What are the temporary variations?

The FWC has proposed to temporarily vary 103 modern awards to:

  1. provide employees that are affected by COVID-19 (including full-time, part-time and casual employees) with an option to take 2 weeks unpaid pandemic leave; and
  2. Offer for employees, through agreement with their employer, to take twice as much annual leave at half the rate of pay.

Some examples of the impacted modern awards are the Aged Care Award 2010, Banking, Finance and Insurance Award 2010 and the Educational Services (Teachers) Award 2010.

A full list of the 103 awards can be found here on the FWC Statement, page 28.

Unpaid Pandemic Leave

The first proposed amendment would allow employees to elect to take up to 2 weeks unpaid leave. This is only available if the employee is “required, by government or medical authorities or acting on medical advice, to self-isolate or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic in circumstances where the employee is required to work at premises operated by an employer.”

Employees do not have to use any paid leave before accessing the unpaid pandemic leave, however they must provide reasonable evidence of the need to take unpaid pandemic leave.

Annual leave at Half the Rate

The proposed amendment also provides that an employer and employee may come to an agreement where the employee can elect to take up to twice as much annual leave at half the rate of usual pay.  Additionally, the deduction from an employee’s leave loading balance must only be what would have been subtracted for half the period at full pay. For example, if an employee takes two weeks leave at half pay, only one week’s leave is to be deducted from their leave loading balance. It isimportant to note that any agreement between an employee and employer in relation to this scheme should be properly recorded in writing and retained on the employee’s record.

Further Information

With so many changes happening in the legal sector at the moment due to COVID-19 it is important to be fully aware of your rights and obligations as an employee or an employer. 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 information and analysis on the restrictions and rules in place during COVID-19.

 

COVID-19 Work Health and Safety: Employers – do you have an obligation to protect workers?

COVID-19 Work Health and Safety: Employers – do you have an obligation to protect workers?

Under work health and safety laws, all employers have a duty to ensure that their employees’ health and safety are protected as far as reasonably practicable. This means employers are required to take reasonable steps to ensure that the workplaces are without health and safety risks. With the current COVID-19 pandemic, it is important that employers provide as much information as possible about health and safety risks associated with COVID-19, ways to reduce those risks and ensure that they have a system in place to monitor and minimise the risks.

You can:

  • restrict employee business travel but you cannot restrict personal travel
  • direct employees to work from home if it is necessary to close your workplace for a period of time
  • stand down employees in circumstances which the Fair Work Act permits
  • direct employees to take annual leave provided that the applicable modern award or enterprise agreement permits.

You should:

  • stay up to date with information released by state and federal health departments: www.health.gov.au
  • keep employees up to date with health information
  • provide hygiene facilities
  • ensure that you change the way you interact with customers, for example, at shops:
    • “no cash” and contactless card payment only policy install signs to remind customers comply with the social distancing rules
    • install barriers so that customers do not stand too close to your workers
    • consider directing employees to work from home if it is not possible to maintain the social distancing rule
    • develop a contingency plan for the worst case scenario – when one of the employees tests positive.

Going forward, there will be disputes about whether COVID-19 is a workplace injury. This will depend on the circumstances of infection. It will be difficult for one to assess whether the infection occurred in the work place.

As an employer, you should also consider what your obligations are under the workers compensation insurance policy. In order to mitigate risks, you should ensure that you have best practices for work health and safety.

Further information

If you require assistance with understanding your obligations and minimise potential exposure to liability, please do not hesitate to contact one of our experienced employment and litigation solicitors on 02 9963 9800 or law@etheringtons.com.au.