ByLawyers News and Updates

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.

JobKeeper extension – FED

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The Federal Government has announced another Jobkeeper extension. The payment scheme will continue until 28 March 2021.

Options for flexibility for managing workforce costs, such as reducing working hours continue. Employers are no longer allowed to require employees to take annual leave.

The amendments change the eligibility requirements for employers. Two broad categories of employers have been created: those who qualify for the new scheme after 28 September 2020, referred to as ‘qualifying employers’ and those who previously received at least one payment but no longer qualify, referred to as ‘legacy’ employers.

Qualifying employers

The minimum requirements under this JobKeeper extension remain the same regarding notification and consultation. The By Lawyers example content letters remain available from within the commentary and have been updated where necessary.

Any JobKeeper enabling directions or agreements existing on 27 September 2020 remain valid if the employer continues to qualify for the scheme.

Legacy employers

Legacy employers must have received one or more JobKeeper payments in the period prior to 28 September 2020, but have ceased to qualify. They now need to show a 10% decline in current GST turnover for the previous quarter. They must obtain a ‘10% decline in turnover certificate’ from a financial service provider.

Small business employers may choose to make a statutory declaration instead.

Legacy employers have been given access to modified directions and agreements and have extra notice and consultation requirements. Any existing on 27 September 2020 will need to be reissued or new arrangements made. They may not request an employee to work less than 2 hours per day or less than 60% of their ordinary hours as at 1 March 2020.

The By Lawyers example content letters provide for legacy employers.

The Fair Work Commission has the power to deal with disputes relating to legacy employers and satisfaction of the 10% decline in turnover test.

More information on Jobkeeper extension

The JobKeeper section of the By Lawyers Dealing with COVID-19 Legal Issues – Some practical information commentary has been updated. A link to this helpful resource is available at the top of the matter plan in every By Lawyers guide.

Criminal records – Employment – FED

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Commentary on the disclosure of criminal records by job seekers has been added to the By Lawyers Employment guide. This useful enhancement covers ‘spent’ convictions in all Australian jurisdictions.

Employees and job candidates have rights under state legislation except in Victoria, and also under federal legislation, relating to their employer or prospective employer accessing their criminal records.

Employers normally have the right to conduct criminal record checks on current and prospective employees. This generally does not include ‘lapsed’ or ‘spent’ convictions.

All states, except Victoria, have different legislative schemes for convictions that lapse, commonly known as ‘spent’ convictions. Commonwealth crimes fall under federal legislation which also covers the ACT and the Northern Territory.

These legislative schemes prescribe when certain criminal convictions lapse, after which time they may not be used as a basis for making decisions about a person’s employment. This allows offenders to put their past behind them, provided they have had the required law-abiding period.

For example, under s 85ZV of the Crimes Act 1914 (Cth), an organisation is prohibited from taking into account or disclosing to others an individual’s past criminal conviction under federal law if it is defined as having lapsed. An individual is not required to disclose such a conviction when applying for employment. A lapsed conviction is defined as an adult conviction more than ten years old, or a juvenile conviction more than five years old. The maximum penalty for the original offence cannot exceed 30 months imprisonment.

There are exceptions, such as where people are applying for jobs that involve working with children.

For further information on ‘spent’ convictions and employment applications see the By Lawyers Employment guide.

JobKeeper – updates – FED

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The Federal Government has further amended the JobKeeper extension. These further changes to our previous post are shown in italics.

The employment stimulus package will continue for a further six months until 28 March 2021.

Amendments

There are changes to employer eligibility for JobKeeper and to the payment rates. The additional six-months is divided into two periods:

  • 28 September 2020 to 3 January 2021; and
  • 4 January 2021 to 28 March 2021.

Eligible employers will continue to claim a fortnightly payment of $1,500 per eligible employee until 27 September 2020.

Eligible employees will continue to receive a minimum of $1,500 per fortnight before tax from their employer until 27 September 2020.

From 28 September 2020 the payment rates will be reduced.

Eligibility for employers

From 28 September 2020 to 3 January 2021 businesses with turnover of less than $1 billion must experience a decline in turnover of 30% for the September 2020 quarter only compared to the equivalent 2019 quarter. The employer must have been in an employment relationship with each eligible employee on 1 March 2020 or 1 July 2020 and needs to confirm that they are currently employed. From 4 January 2021 to 28 March 2021, the December 2020 quarter only must fall by the relevant percentage compared to the December 2019 quarter.

JobKeeper payment rates

From 28 September to 3 January 2021 for employees who worked 20 hours or more per week on average in February 2020 or June 2020, employers will receive $1,200 per employee fortnightly. These employees must therefore be paid a minimum of $1,200 fortnightly before tax. For employees who worked less than 20 hours per week on average in February 2020 or June 2020, the employers will receive $750 per employee fortnightly. These employees must therefore be paid a minimum of $750 fortnightly before tax.

From 4 January 2021 to 28 March 2021 the relevant amounts fall from $1,200 to $1,000 and from $750 to $650.

If employees were employed for both February 2020 and June 2020 then the period with the higher number of hours worked is to be used.

More information

The JobKeeper section of the By Lawyers Dealing with COVID-19 Legal Issues – Some practical information commentary has been updated. A link to this helpful resource is available at the top of the matter plan in every By Lawyers guide.

 

JobKeeper – FED

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The Federal Government has confirmed the JobKeeper extension. The employment stimulus package will continue for a further six months until 28 March 2021.

Amendments

There are some changes to employer eligibility for JobKeeper and to the payment rates. The additional six-months is divided into two periods:

  • 28 September 2020 to 3 January 2021; and
  • 4 January 2021 to 28 March 2021.

Eligible employers will continue to claim a fortnightly payment of $1,500 per eligible employee until 27 September 2020.

Eligible employees will continue to receive a minimum of $1,500 per fortnight before tax from their employer until 27 September 2020.

From 28 September 2020 the payment rates will be reduced.

Eligibility for employers

From 28 September 2020 to 3 January 2021 businesses with turnover of less than $1 billion must experience a decline in turnover of 30% for each of the June and September quarters compared to their equivalent 2019 quarters. The employer must have been in an employment relationship with each eligible employee on 1 March 2020 and needs to confirm that they are currently employed. From 4 January 2021 to 28 March 2021, the December 2020 quarter must also have fallen by the relevant percentage compared to the December 2019 quarter.

JobKeeper payment rates

From 28 September to 3 January 2021 for employees who worked 20 hours or more per week on average in February 2020, employers will receive $1,200 per employee fortnightly. These employees must therefore be paid a minimum of $1,200 fortnightly before tax. For employees who worked less than 20 hours per week on average in February 2020, the employers will receive $750 per employee fortnightly. These employees must therefore be paid a minimum of $750 fortnightly before tax.

From 4 January 2021 to 28 March 2021 the relevant amounts fall from $1,200 to $1,000 and $750 to $650.

More information

The JobKeeper section of the By Lawyers Dealing with COVID-19 Legal Issues – Some practical information commentary has been updated. A link to this helpful resource is available at the top of the matter plan in every By Lawyers guide.

JobKeeper scheme – FED

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Details of the Federal government’s JobKeeper scheme have been added to By Lawyers Dealing with COVID-19 legal issues – Some practical information publication.

JobKeeper payment stimulus package

The purpose of the JobKeeper package is to assist employers to retain their employees and improve the viability of businesses during the COVID-19 pandemic.

Under the scheme, employers will receive $1,500 per employee fortnightly. Employees must be paid a minimum of $1,500 fortnightly before tax. The JobKeeper payment will be available from 30 March 2020 until 27 September 2020.

Employers pay their employees as usual and then get reimbursed by the ATO, monthly in arrears.

The new commentary covers the important aspects of the scheme. These include the eligibility criteria for both employers and employees. There are also answers to frequently asked questions.

A link is provided to the ATO website which sets out how to Enrol for the JobKeeper payment.

New powers for employers under the JobKeeper scheme

The Federal parliament has complemented the JobKeeper scheme by giving new powers to employers covered by the scheme. The Fair Work Act has been amended by the insertion of Part 6-4C that allows an employer to temporarily modify employment terms and conditions, if they are eligible for the JobKeeper scheme. This is referred to as an employer giving a ‘JobKeeper enabling direction’ to a particular employee.

The new powers include options for workforce flexibility and reducing workforce costs. This gives eligible employers the ability to stand down employees or reduce their hours, change the duties they perform, or change their location of work. The amendments also allow an eligible employer to make an agreement with an employee about work days or times, as well as the employee taking annual leave, including at half pay.

Before a JobKeeper direction can be given, employers must meet minimum requirements. For example, employers need to satisfy consultation requirements which includes notifying the employee at least three days before making a JobKeeper enabling direction, or a lesser time by agreement. No forms have been prescribed for this purpose. By Lawyers has provided example content letters, which are available from within the commentary.

These amendments enable the Fair Work Commission to conciliate and arbitrate disputes about a JobKeeper direction or request.

For more information about the JobKeeper scheme refer to Dealing with COVID-19 legal issues – Some practical information, which is available in all By Lawyers guides.

Employment and the Coronavirus – FED

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Many questions arise at the moment about Employment and the Coronavirus. The By Lawyers Employment Law Guide and the 101 Employment Law Answers reference manual located within that publication can assist subscribers to advise their clients, whether employers or employees.

In addition, our author Brad Petley, an accredited specialist in Workplace Relations, has prepared a timely article on the issues that practitioners and their clients need to consider. This article has been added to the By Lawyers Employment Law Guide, under the Reference Materials folder. The text of Mr Petley’s article is reproduced here for general assistance:

Employer obligations

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 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: see 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 OHS based instructions intended to minimise the risk of the person spreading disease in the workplace.  For example, an employee diagnosed with COVID-19 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: see. 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: see 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.

 

– Brad Petley solicitor is the main author of the By Lawyers Employment Law guides. He will continue to update our subscribers regarding Employment and the Coronavirus as circumstances demand.

 

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