Employment Law Update: Casual Conversion and CEIS

Mar 20, 2022 | Employment Law

In March of this year, the government passed the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill which made significant changes to the Fair Work Act 2009 (Cth) regarding casual workers. Under the new laws, employers were given a 6-month grace period to make any adjustments to implement new rights for casual employees, and provide them with a Casual Employment Information Statement (CEIS). The deadline for this conversion is 27 September 2021, and this article will provide you with a brief guide on the legislative changes and what they mean for both employees and employers.

Changes to the Definition of Casual Employee

An employee will now be considered casual if:

1. The employer makes no firm advance commitment to a continuing and indefinite pattern of work when offering employment; and
2. The employee accepts the offer of employment on the basis that there is no firm advance commitment to a continuing and indefinite pattern of work.

Things to consider when determining if you have made a firm advance commitment to a continuing and indefinite pattern of work include the following:

• Whether the employee can accept or reject work;
• Whether the employee is entitled to casual loadings or specific rates of pay;
• Whether the employee will work according to the needs of the employer; and
• Whether the employment was described as casual employment.

Regular patterns of work will not in and of itself be indicative of a firm advance commitment to a continuing and indefinite pattern of work, however this may be the case in some circumstances. For example, if an employee is engaged on the basis that they will work a fixed amount of shifts on the same days each week for an indefinite period, this is unlikely to constitute casual employment under the new changes to the Fair Work Act.

Casual Conversion

Another key change relates to regular casual employees’ right to casual conversion. Essentially, a casual employee who has been employed for at least 12 months, or who has worked a regular pattern of hours in the past 6 months, has the right to be offered permanent part-time or full-time employment. Offers from employers for conversion must be in writing and given within 21 days from when the employee reaches 12 months of employment.

There are limited circumstances in which an employer is not required to make an offer for casual conversion. This will occur when there are reasonable grounds to not accept the offer based on facts that are known or foreseeable at the time of the decision. These include:

• That the employee’s position will cease to exist within 12 months from when an offer should be made (i.e., once an employee is employed for 1 year) ;
• The hours of work that the employee performs will significantly reduce within the next 12 months;
• There will be a significant change to the days and times that the employee works; and
• Making the offer would not comply with a recruitment or selection process required by law.

If an employer has reasonable grounds to not make an offer, they must provide written notice with detailed reasoning of why the offer is not being made within 21 days from which the employee reaches the 1 year mark.

In the instance an employer does not make an offer or provide notice detailing that they will not offer casual conversion, a casual employee has the right to request an offer for conversion if they meet the above eligibility requirements and:

• The employee has not refused a previous offer of casual conversion in the past 6 months; and
• The employer has not refused a previous request for casual conversion.

This request must be in writing and should appropriately coincide with the regular pattern of hours the employee has been working. Under the new legislative provisions, employers must provide a written response to a request for conversion within 21 days. If an employer chooses to grant a request, their response must detail in writing:

• The type of employment (full-time or part-time) that the employee will be converting to;
• The employee’s work hours after the conversion takes place; and
• The date when the conversion will take place.

An employer can only refuse a request upon consultation with the employee and if there are reasonable grounds to refuse the request based on the circumstances known or foreseeable at the time of refusal.

Given the complexity of these new provisions, it is crucial that small business owners and employers begin assessing the eligibility of existing casual employees for conversion before 27 September 2021 to better manage their obligations to make offers or receive requests for conversion.

Casual Employees Information Statement

The Fair Work Ombudsman has introduced the Casual Employees Information Statement (CEIS) which must be given to all casual employees. The CEIS covers information about the rights of casual employees including:

• the definition of a casual employee
• when an employer has to offer casual conversion
• when an employer doesn’t have to offer casual conversion
• when a casual employee can request casual conversion
• casual conversion entitlements of casual employees employed by small business employers
• how the Fair Work Commission can act in dealing with disputes about casual conversion

These statements should be provided to all existing casual employees as soon as possible before 27 September and to all new casual employees moving forward. An employer can provide a copy of the CEIS to staff via:

• mail;
• email;
• in person;
• by fax; or
• by emailing a link to a copy of the CEIS available on the employer’s intranet.

How Etheringtons Solicitors can help

Given the various legislative changes in recent times concerning casual employment, it is important to seek legal advice if you are unsure about your employment contract or concerned about your potential liability as an employer. You can contact the highly skilled employment law team at Etheringtons solicitors via our contact form or call 02 9963 9800 for a no-obligation discussion.

Should You Be Keeping Your Pay a Secret?

Mar 7, 2022 | Employment Law

Discussing salaries and remuneration is often a controversial and clandestine topic in the office. However, there has been a recent push towards greater pay transparency to allow for a more equal workplace in light of social and political changes concerning issues, such as the gender pay gap. This article will discuss whether an employer can enforce pay secrecy onto their employees, and what the potential advantages and disadvantages that having pay transparency can have.

The Legality of Pay Secrecy

The simple answer is: it is not illegal to discuss your pay. However, employers can restrict your ability to discuss your pay or remuneration within your employment contract. These clauses can be particularly common in industries where discretionary incentives are offered or where pay differentiates between employees based on performance.

Pay secrecy clauses have been banned in other jurisdictions, such as the United States and the UK, in order to reduce workplace discrimination. In 2015, Australia’s Gender Pay Gap Bill attempted to ban pay secrecy clauses, but it was unsuccessful. So whilst pay secrecy is still legal in Australia, it is important for businesses to make considerations based on their industry and business specifically, and consequently businesses may want to seek personalised and experienced advice when making these decisions.

Advantages of Pay Transparency

As mentioned above, pay secrecy has been linked with actual or perceived workplace inequality. Actual inequality arises when businesses use pay secrecy clauses to unfairly differentiate the remuneration of employees based on discriminatory or unfair factors such as gender, ethnicity or age. Perceived inequality occurs when employees assume that, due to the mere presence of a pay secrecy clause, remuneration is unequal. Therefore, facilitating greater transparency can operate to quash any negative perceptions and demonstrate your business is treating all employees fairly.

Other advantages of pay transparency include:

• Increasing employee motivation and job satisfaction;
• Improving workplace culture;
• Promoting flatter management structures; and
• Improving the business’ reputation.

Disadvantages of Pay Transparency

Whilst there are clearly some advantages to abandoning pay secrecy clauses, these must be balanced with benefits that can come from enforcing pay secrecy in certain workplaces. These include:

• Greater organisational control;
• Less workplace conflict;
• Protection of employee privacy; and
• Maintaining greater employer bargaining power.

It is worth noting that pay secrecy will become more disadvantageous if competitors or the industry as a whole begin moving towards pay transparency, despite the advantages mentioned above.

How Etheringtons Solicitors can help

With over 30 years’ experience, Etheringtons Solicitors have a proven track record in providing tactical advice and representation in various contentious and non-contentious employment matters. Whether you are a business owner or an employee, our team are well placed to provide advice across a wide range of matters. If you or your business require further information in relation to pay secrecy, please contact us on (02) 9963 9800 or via our contact form here.

False and Misleading Representations 

Feb 7, 2022 | Employment Law

In December 2021, the Australian Securities and Investments Commission (ASIC) launched civil proceedings against a former ANZ subsidiary, superannuation trustee OnePath. The allegations levelled at OnePath include charging fees for no services rendered and making false and misleading representations to members.

More than $4 million in incorrect fees were collected by OnePath, now known as Insignia Financial Limited (IFL). This included instances where OnePath charged fund members for “financial adviser service fees”, despite the fact that they did not have financial planning advisers. OnePath sent correspondence to these fund members that instructed that they were obligated to pay these fees.

ASIC is claiming that these representations were false and misleading and that OnePath has breached its obligations to provide fair, efficient and honest financial services.

The case will proceed to the Federal Court in 2022.

False and misleading representations

Businesses are not permitted to make statements that are false or are likely to create a false impression. This applies to any statements from the business including advertising, product packaging, and information on social media platforms.

In ASIC’s action against OnePath, they allege false and misleading statements were made when OnePath told members they had to pay adviser service fees and did not advise members of their options to cancel those fees.

To protect yourself against false and misleading representations, keep alert and ask questions if you feel as though you may have been charged excessively or treated unfairly.

What to do if you think you are a victim of false and misleading representations

If you believe you may be a victim of a false and misleading representation, you have a number of options available to you.

1. Contact the business or service provider – explain the problem or confusion and see whether it can be rectified.
2. The ACCC – if you are unable to resolve the issue by speaking to the business, you can lodge a consumer complaint with the Australian Competition and Consumer Commission.
3. Legal Action – independent legal advice is often important to evaluate your options and situation. In some circumstances, you may be entitled to take your complaint to the small claims court or tribunal in your state or territory.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with insurance or consumer law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Dishonesty: a valid reason for termination or unfair dismissal?

Aug 21, 2021 | Employment Law

The Fair Work Commission recently handed down an interesting finding on the issue of dishonesty in the workplace as grounds for dismissal. Whilst the Commission had previously held that dishonest conduct was grounds for dismissal, the recent case discussed in this article exemplifies the need for a nexus between dishonest conduct and dismissal.

Valid reasons and unfair dismissal

Unfair dismissal claims lodged with the Fair Work Commission (FWC), including those involving genuine redundancies, can often be complex. To avoid a claim for unfair dismissal under the Fair Work Act 2009 (Cth), the termination must be made for a valid purpose and it must not be “harsh, unjust or unreasonable” or made for an unlawful reason.

Therefore, an important consideration for determining whether an employee’s termination constitutes unfair dismissal because it was harsh, unjust or unreasonable is whether there was a valid reason for that termination. We have provided examples of unlawful reasons and valid reasons for dismissal in another article concerning terminating an ex-partner’s employment.

Where the employee’s conduct is being used as a reason to justify the dismissal, it must be sufficiently connected to the employee’s employment and of sufficient gravity or seriousness to justify the dismissal as a “sound, defensible or well-founded” response. Applications to the FWC claiming unfair dismissal must be lodged within 21 days from the date the dismissal takes effect.

Previously, the Fair Work Commission has upheld that dishonest conduct in the recruitment process was grounds for dismissing an employee: see Garth Duggan v Metropolitan Fire and Emergency Services Board T/A Metropolitan Fire and Emergency Services Board (MFB) [2018] FWC 4945 (23 August 2018). In this case, the employee failed to disclose that he was subject to legal proceedings which would impact his ability to conduct work and was generally misleading during the formal interview process. The Fair Work Commission held that this dishonesty was a valid reason for dismissal, and is a timely reminder for all prospective employees to ensure they are accurately representing themselves to recruiters and employers.

Dishonesty and unfair dismissal claims

In the most recent case of Steve Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, Mr Newton was dismissed by Toll Transport Pty Ltd from his employment as a truck driver after he was involved in a physical altercation outside of work. Mr Newton sought remedies for unfair dismissal with the FWC. In the initial proceedings, Deputy President Boyce found that Mr Newton had been dishonest to both Toll and the FWC, and that this, not the physical altercation outside of work, constituted a valid reason for dismissal. The Full Bench granted permission for Mr Newton to appeal this decision which was subsequently upheld.

The Full Bench held that Mr Newton’s dishonesty to the FWC could not constitute a valid reason for dismissal as this dishonesty did not occur at the time of the dismissal. Furthermore, it held that Mr Newton was not required to be honest in Toll’s investigation of his private conduct (the physical altercation), nor answer their questions, merely because these questions were asked at work. The fight had occurred outside of work and lacked a sufficient connection to his employment. However, the full bench held that an employee does have an obligation to answer their employee’s questions about private conduct honestly in some circumstances, such as if that conduct damaged the employer’s interests. In those circumstances, dishonesty would constitute a valid reason for dismissal. As the appeal was upheld, Mr Newton’s specific unfair dismissal matter is to be reheard.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with unfair dismissal claims or employment terminations. If you need further advice or assistance with employment matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.