ByLawyers News and Updates

Employment Law – FED

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The By Lawyers Employment Law guide has been extensively reviewed, with enhanced content including:

  • A new section on employment disputes, covering employee conduct and performance, unfair dismissal claims, general protections claims, unlawful termination, underpayment of wages, and disputes about contracts and employment status.
  • Expanded coverage of employment relationships, especially casual work and the complicated interplay between the common law position and the casual conversion provisions under the Federal employment legislation.
  • A new section on Paid Parental Leave, following legislative amendments that make payments more accessible, flexible, and gender-neutral for Federal system employees – see our previous News & Updates post for further details.

This review has been conducted in the context of significant and ongoing legislative changes. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 passed Federal parliament in December 2022, making many changes to the Fair Work Act 2009.

These amendments commence in phases over the course of several years and include:

  • Expansion of the objects of the Fair Work Act;
  • Equal pay provisions to address gender inequality;
  • Prohibition of pay secrecy – designed to augment the equal pay provisions;
  • Prohibition of sexual harassment in the workplace, including Stop Sexual Harassment Orders via the Fair Work Commission. These provisions commenced on 6 March 2023 – see our previous News & Updates post;
  • Additional grounds for anti-discrimination in the workplace;
  • Fixed-term contracts are generally no longer permitted;
  • Expanded availability of flexible work arrangements;
  • A new small claims process for unpaid entitlement recovery.

The By Lawyers Employment Law guide and 101 Employment Law Answers will be updated as these relevant provisions commence.

Paid parental leave – FED

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Recent amendments to the Paid Parental Leave Act 2010 (Cth) make payments more accessible, flexible, and gender-neutral for Federal system employees.

Under the current scheme, either parent and other eligible carers can claim up to a total of 18 weeks of paid parental leave. This increases to 20 weeks from 1 July 2023. Payments can only be claimed in the first two years after the child’s birth or adoption. The scheme is funded by the Commonwealth, so a claim for payments is made to Centrelink, not the employer. The entitlement extends to employees who are full-time, part-time, casual, seasonal, contractors, or self-employed.

The amendments:

  • Enable families to decide which parent will claim first and how they will share the entitlement and are not limited to a small class of claimants. Allowing households to decide how best to care for a child.
  • Provide greater flexibility, with claimants allowed to take the available leave in multiple blocks of as little as a day at a time with no requirement to return to work to be eligible.
  • Impose a new $350,000 family income limit for eligibility, under which families can be assessed if an individual applicant does not meet the individual income test.
  • Expand the eligibility requirements to allow a father or partner to receive paid parental leave, regardless of whether the birth parent meets the income test or residency requirements, or is serving a newly arrived resident’s waiting period.

Payments are at the rate of the national minimum wage. Employers are not obliged to make superannuation contributions during the leave period. Paid parental leave does not count as paid leave for the purposes of the National Employment Standards (NES) and, therefore, does not count as service for the purposes of other entitlements.

The By Lawyers Employment Law publication has been updated accordingly.

Letter of offer – FED

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Two new Letter of offer precedents have been added to the By Lawyers Employment Law guide.

Letters of offer can be used to create an employment relationship between employer and employee when a full employment agreement is not required. These precedent letters set out the terms and conditions upon which the employment position is offered. The use of an optional schedule allows greater detail of the position description and the employee’s duties and responsibilities to be added if it is considered necessary.

The employee signs and returns a copy of the letter to confirm their acceptance of the position and the terms of employment.

One of the new precedents is for general use, the other is specific to employing apprentices.

The apprentice version extends the employee’s responsibilities to attending and undertaking the necessary training for completion of their apprenticeship. It also includes reference to the relevant requirements such as:

  • training contracts with an Australian Apprenticeship Support Network Provider;
  • specific state-based apprentice training legislation;
  • registered training organisations, such as TAFE;
  • training plans;
  • training records.

The apprentice version of the precedent also provides for the employee’s employment to terminate upon completion, cessation or transfer of the apprenticeship.

These new precedents Letter of offer and Letter of offer for an apprentice have been added to the matter plan in the Acting for Employer sub-folder under Folder B. Employment agreements.

By Lawyers comprehensive employment agreement precedents are also available in Folder B. for use when clients require a more detailed and flexible document. These precedents include:

  • Standard individual employment agreement;
  • Casual employment agreement; and
  • Executive employment agreement.

The new precedents have been added by our employment law author following a subscriber request. By Lawyers loves to receive feedback from our users – don’t hesitate to contact us if there are precedents you need.

Employee or independent contractor – FED

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A new section Employee or independent contractor has been added to 101 Employment Law Answers summarising and providing links to these important recent cases:

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; and

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

These appeals from the full Court of the Federal Court both turned on the question of determining the workers’ status as employee or independent contractor and were heard together. The High Court held that where parties have comprehensively committed the terms of their relationship to a written contract, which is not challenged as a sham or otherwise ineffective under general law, the characterisation of the relationship as one of employment, or otherwise must proceed by reference to the rights and obligations of the parties under that contract.

Only where there is no written agreement, or the agreement is ineffective, will the traditional multi-factorial test be required to determine the nature and conditions of the parties relationship.

Whether a worker is an employee or independent contractor is important for a number reasons including:

  • vicarious liability – which generally extends to employees but not independent contractors;
  • workers compensation insurance – who is covered and who is responsible for obtaining it;
  • superannuation guarantee payments – whether they apply;
  • unfair dismissal claims – whether a worker has recourse;
  • taxation responsibilities – including whether PAYG tax is required to be deducted from worker payments;
  • long service leave and other leave entitlements – whether they apply;
  • availability of remedies for workers; and
  • the jurisdiction of tribunals.

See 101 Employment Law Answers in the Reference materials folder on the Employment Law matter plan, and the Employment Law commentary for more information.

Spent convictions – VIC

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The Spent Convictions Act 2021 (Vic), along with the Spent Convictions Regulations 2021 (Vic), establishes a legislative scheme for criminal convictions to lapse after a set period automatically.

The commencement of this legislation on 1 December 2021, brought Victoria into line with the other states which already have such a scheme.

Employees and job candidates have rights under the Act, relating to an employer’s access to their criminal records. When particular criminal convictions lapse they may not be used as a basis for making decisions about a person’s employment. This generally applies to less serious offences.

Convictions which have lapsed under the legislation will not appear on a police record check unless the check is for certain types of employment, such as working with children. Specific provisions under some legislation, for example an application for a firearms licence, will still require full criminal histories to be disclosed.

Convictions for offences which are not deemed serious are eligible to be spent automatically after a 10-year crime-free period, for offences committed as an adult. The period is 5 years for offences committed as a minor.

The Spent convictions commentary has been updated in the By Lawyers Employment Law and Magistrates’ Court – Criminal (Vic) guides.

Sexual harassment – FED

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New provisions for the prevention of sexual harassment and bullying in the workplace have commenced.

Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop sexual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.

There is no time limit for making an application for an order to stop bullying or sexual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or sexually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.

‘Sexually harass’, for these purposes, has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth).

Examples of sexual harassment include:

  • inappropriate behaviour including staring, leering, loitering or unwelcome touching;
  • suggestive comments, jokes or gestures based on sex or a person’s private life or body;
  • communicating sexually explicit material in person or electronically.

The objectionable conduct must occur at work, which is not defined but is tied to work activities wherever they occur and is not limited to the confines of a physical workplace. It includes entering, moving about and leaving a workplace.

The application needs to be lodged with the Fair Work Commission using the prescribed form: Application for an order to stop bullying or sexual harassment (or both).

The employer needs to respond within 7 days of being served using the prescribed form: Response from an employer or principal to an application for an order to stop bullying or sexual harassment (or both).

The alleged perpetrator will receive a copy of the application and be invited to respond within 7 days using the prescribed form: Response from a person named as having engaged in bullying or sexual harassment (or both).

All the prescribed forms are available in the Workplace bullying and sexual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.

Employment law publication – FED

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The Employment Law publication has been extensively reviewed and enhanced. This work is part of By Lawyers continual commitment to updating and enhancing our publications.

Key components of the Employment Law publication – the matter plan, commentary and 101 Employment Law Answers reference materials – have been re-organised and augmented.

Matter plan

The matter plan has been reordered to:

  • better reflect the distinction between matters relating to employment agreements and employment disputes;
  • separate the content – both commentary and precedents – on employment agreements and non-employment agreements, such as independent contractor agreements;
  • add a new dedicated folder for the important content on workplace bullying.

Commentary

Updates include the following:

  • Getting the matter underway – initial consideration of employment status;
  • Awards –  expanded discussion of applicability and effect of awards;
  • Coverage of The National Employment Standards (NES) and a link to the Fair Work Ombudsman’s new Small Business Employer Advisory Service;
  • The new provisions for casual conversion;
  • Other rights and entitlements – additional commentary on children in the workplace, overtime, vehicles, deductions, access to records and employers in liquidation;
  • Employment agreements – considerations for negotiating and documenting terms, with a link to the Commonwealth Government’s helpful Employment contract tool;
  • Termination of employment, including when it happens during workers compensation claims;
  • Redundancy – entitlement under the NES and the connection to unfair dismissal;
  • Unfair dismissal claims – coverage of all relevant considerations, including who is protected, the small business exception, high-income threshold, what the Fair Work Commission considers, the application and response, the claims procedure, conciliation, hearings and conferences, remedies and costs orders;
  • General protections claims – coverage of adverse action, discrimination, other protections and sham contracts; and
  • Dedicated commentary on unlawful termination claims.

The comprehensive History of legislative changes has been relocated to 101 Employment Law Answers. This will assist when the rights of a client need to be determined as at a certain prior date.

101 Employment Law Answers

This handy reference material has received a comprehensive revamp that is a precursor to a more detailed review. As with all By Lawyers reference materials 101 Employment Law Answers provides relevant and up-to-date case law summaries and links to legislation. It covers such topics as leave entitlements, the multi-indicia test, abandonment, non-solicitation, redundancy entitlement, and unfair dismissal.

Casual employment – FED

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Recent amendments to the Fair Work Act

There is a new statutory definition of ‘casual employee’ from 27 March 2021. There is also an expanded statutory pathway for regular casual employees to convert their employment status to full time. Employers now have an obligation to offer permanent employment in certain circumstances.

Some relief has been granted to employers for underpayment claims from employees incorrectly classified as casual. This addresses instances of ‘double dipping’.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has introduced significant amendments to the Fair Work Act 2009 including:

Statutory definition

Section 15A provides that a person is a casual employee if they have been offered and have accepted employment on the basis that the employer gave ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern…’.

Conversion to permanent employment

Additionally, for casual employees who fall outside the modern award framework there is a statutory obligation for employers to offer conversion to full or part-time employment, unless there are reasonable business grounds not to do so. This does not apply to small business employers.

Casual Employment Information Statement

Employers must provide casual employees with a Casual Employment Information Statement, before, or as soon as practicable after, they start their employment. This is additional to the Fair Work Information Statement.

Off-setting casual loading to prevent ‘double-dipping’

Employers are provided with relief for underpayment claims from employees incorrectly classified as casual.

Regular casual employee

The previous definition of ‘long term casual’ is replaced with ‘regular casual employee’. The definition relates to the element of employment on a regular and systematic basis, but without any specific time requirement.

By Lawyers keeps you up to date

For further details see the By Lawyers Employment Law publication which has been updated accordingly.

Employment and the coronavirus

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Employers have legal obligations to ensure the health and safety of their employees and contractors and also to ensure that the health and safety of members of the public is not put at risk from the conduct of their business or undertaking. This includes managing the risk of exposure to and spread of coronavirus, COVID-19, in the workplace.

Health risks such as coronavirus need to be carefully and sensitively managed as they can give rise to a risk of claims of discrimination, unfair treatment and even unfair dismissal.

Therefore, employers should ensure they act fairly and on the basis of reliable and current medical information. Similarly, employers should not permit or encourage their employees to target or treat adversely any particular demographic in the workplace.

There are legal protections against discrimination or adverse action based on race, ethnicity, national origin or impairment, which can include disease or illness. In an atmosphere of heightened anxiety due to the impact of coronavirus it is important that employees’ emotions and conduct are managed by clear and open communication from senior management.

The rapidly changing situation with the coronavirus pandemic means that many employers will be focused on reducing their labour costs in the current business climate. To reduce labour costs employers may consider options such as:

  • Asking employees to take their accrued paid leave such as annual leave and long service leave;
  • Implementing stand downs pursuant to s 524 of the Fair Work Act 2009 (Cth); or
  • Implementing redundancies.

Leave

Under the Fair Work Act full-time and part-time national system employees are entitled to 10 days personal/carer’s leave each year of service. The entitlement accumulates progressively.

Employees who access their accrued personal/carer’s leave due to injury or illness such as coronavirus are considered to be temporarily absent from work and, as such, are protected from dismissal because of their illness or injury: s 352.

That does not mean that an employee on personal/carer’s leave who is suffering from coronavirus cannot be required to obey reasonable and lawful occupational health and safety based instructions intended to minimise the risk of the person spreading disease in the workplace. For example, an employee diagnosed with coronavirus who disobeyed an instruction not to attend the workplace unless cleared medically would risk disciplinary action.

Stand down

An employer may stand down an employee during a period in which the employee cannot usefully be employed due to circumstances for which the employer cannot reasonably be held responsible.

The employer does not pay wages for the period of a stand down. This is not a deferment but a pause during the stand down in the obligation to pay wages.

An employee stood down continues to accrue entitlements to annual leave and personal/carer’s leave under the National Employment Standards, as well as an entitlement to a public holiday that falls on a day the employee would ordinarily work during the stand down period: s 524.

Redundancy

For a redundancy based dismissal employees who are dismissed on the grounds of a ‘genuine redundancy’ are not eligible to bring an unfair dismissal application: s 385(d).

A genuine redundancy occurs where:

  • The person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
  • The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

A genuine redundancy does not occur if it would have been reasonable in all the circumstances for the person to be redeployed within:

  • The employer’s enterprise; or
  • The enterprise of an associated entity of the employer.

Dismissal

When interviewing a client who claims to have been dismissed due to the coronavirus it is important to ascertain the basis of the client’s belief. If there is evidence supporting the claim that the virus was the reason for the dismissal then a claim for unfair dismissal or breach of general protections provisions may be available.

Unpaid parental leave – FED

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Unpaid parental leave entitlements have been enhanced by the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020.

These amendments provide greater support to parents who experience stillbirth, infant death, premature birth and the hospitalisation of their baby immediately following birth.

The amendments ensure the following:

  • Employees who are parents of stillborn babies or parents of babies or infants that die have the same entitlement to leave as parents of babies that survive;
  • Following a stillbirth or the death of an infant or child, the employee parent’s unpaid leave can only be cancelled by the employee;
  • Employees who are parents of premature babies and newborns that require hospitalisation after birth can put their unpaid parental leave on hold during the hospitalisation; and
  • Employees cannot also take compassionate leave unless it is following the stillbirth or the death of the child.

Employees may choose to access flexible unpaid leave options in the first 24 months after the child’s actual or expected date of birth or placement, for example, to enable a gradual return to work or shared caring responsibilities between parents.

The commentary in the By Lawyers Employment Law publication has been updated accordingly.

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