ByLawyers News and Updates

COVID-19 employment measures – FED

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The Commonwealth Government has introduced two new COVID-19 employment measures.

JobMaker Hiring Credit

This scheme enables payments to assist workplace participation by people aged 16 to 35 years.

The first year of this program runs from 7 October 2020 until 6 October 2021. It is intended that the program will be extended.

Eligible employers can claim $200 per week for each additional employee hired during this period aged 16 to 29 years. For employees aged 30 to 35 years employers can only claim $100.

Employees can be hired on a permanent, casual or fixed-term basis.

The payments are made as credits claimed quarterly in arrears from the Australian Taxation Office.

Paid parental leave work test period amendment

The work test period in the Paid Parental Leave Act has been temporarily amended. This applies to births and adoptions that occur between 22 March 2020 and 31 March 2021.

It allows access to parental leave pay and ‘dad and partner’ pay by those who do not otherwise meet the criteria of the work test due to the pandemic.

The work test requirements have not changed. An individual must have worked:

  • at least 10 months in their work test period; and
  • at least 330 hours in that 10-month period with no more than a 12-week gap between any two consecutive working days.

The work test period is usually 13 months prior to the birth or adoption of the child. The temporary change means that it is 20 months for parents who have had their employment impacted by COVID-19.

Information on these and previous COVID-19 employment measures see the commentary available at the top of every By Lawyers matter plan: Dealing with COVID-19 legal issues – Some practical information.

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 – 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.

Annualised salaries – Employment- FED

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From 1 March 2020, new clauses for annualised salaries commence in 21 modern awards. These have broad coverage, including for white-collar industries, such as the Clerks – Private Sector Award 2010, Legal Services Award 2010 and the Banking, Finance and Insurance Industry Award 2010. The commentary in the By Lawyers Employment law guide has been updated accordingly.

An annualised salaries clauses enables an ‘annualised wage arrangement’ to be made in a modern award. Employers can choose to annualise an employee’s wages over a 12 month period. This means they pay a fixed amount in satisfaction of the modern award requirements. The fixed amount includes all entitlements such as weekly pay, allowances, overtime rates, other penalty rates and annual leave loading.

Not all modern awards contain arrangements for annualised salaries. For those that do, an annualised payment clause applies with some variation depending on the industry.

Annualised salary clauses apply only to full-time employees. However they have no effect where a full‑time employee is being paid standard wages and benefits in accordance with the applicable award. They only apply to an ‘annualised wage arrangement’.

The annualised wage must be no less than the amount the employee would have received under the award for the work performed over the year for which the wage is paid.

When making arrangements for annualised salaries under the applicable modern awards, employers are required to comply with requirements for notification, record keeping and wage reconciliation.

See the By Lawyers Employment law guide for more information on the new clauses, the modern awards to which they apply and the employer requirements.

By Lawyers are committed to always keeping our subscribers up-to-date.

Employment law updates – FED

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The By Lawyers Employment Law publication has been reviewed by our author, experienced solicitor Brad Petley, an accredited specialist in workplace relations, so you can be confident our content is up to date.

Important employment law updates and enhancements have been made to the commentary, including:

Offsetting rules for casual loading payments

The WorkPac Pty Ltd v Skene [2018] FCAFC 131 decision concerning casual loading led to the Commonwealth government amending the Fair Work Regulations. Regulation 2.03A of the Fair Work Regulations 2009 (Cth) provides that, in certain circumstances, employers may offset an employee’s casual loading payments against the employee’s entitlements under the National Employment Standards (NES).

Casual conversion

Casual conversion generally refers to the right of an employee who has been employed on a regular and systematic basis for a period of 6 months or 12 months, depending on the modern award that applies, to convert their employment from a casual basis to permanent full time or part time. This right is not currently in all modern awards and therefore does not apply to all casual workers. That position may change after the federal election, so By Lawyers will continue to monitor the position and update the commentary again if required.

Flexible working arrangements

All modern awards include a model term that facilitates flexible working arrangements. The model term imposes additional obligations on employers, in addition to those in the NES, in relation to managing and responding to flexible working requests.

Annual leave

Under the NES, annual leave is calculated at the employee’s base rate of pay for their ordinary hours of work. Unless an applicable award, enterprise agreement or contract of employment provides otherwise, annual leave does not include any overtime rates, penalties or other allowances that an employee would have been paid if they had worked during that period.

Unpaid family and domestic violence leave

All full-time, part-time and casual employees are entitled to five days unpaid family and domestic violence leave. This applies for each 12-month period of service. The leave does not accumulate.  The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply. The commentary discusses these requirements.

Workplace bullying

Reasonable management action carried out in a reasonable manner is not considered workplace bullying. The commentary provides a relevant link to s 789FD(2) of the Fair Work Act.

Modern slavery laws

Modern slavery describes human trafficking, slavery and slavery-like practices, like forced labour and forced marriage.

The Modern Slavery Act 2018 (Cth) requires Australian entities and foreign entities carrying on business within Australia with consolidated revenue of $100M, to submit Modern Slavery Statements every 12 months. This needs to include an entity’s structure, operations and supply chains as well as the potential modern slavery risks, plus actions taken to address those risks including due diligence and remediation processes.

By Lawyers keeps you up to date

Because we are committed to keeping our content up to date, employment law updates are provided at least annually and whenever there are significant developments in the area. Our authors and editorial team constantly monitor all of our publications.

By Lawyers keeps you up to date!

101 Employment Answers – commentary added

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By Lawyers Reference Manual – 101 Employment Answers has been enhanced with the addition of commentary regarding Unfair dismissal – period of continuous employment and Casual Employment.

An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee: see s 384(1).

Under s 384(2), a ‘period of service’ as a casual employee does not count towards the employee’s period of employment unless:

  • the casual employee was employed on a regular and systematic basis; and
  • the casual employee had a reasonable expectation of continuing employment on a regular and systematic basis.

The Full Bench decision of the Fair Work Commission in Shortland v Smiths Snackfood Co Ltd (2010) 198 IR 237 (particularly paragraphs 10 to 13) provides guidance as to the approach to take for calculating a ‘period of service’ as a casual employee.

EMPLOYMENT – Tuition reimbursement on termination

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Employers typically deduct from termination monies when an employee terminates after receiving recent employer-funded tuition. Deductions from monies owed is regulated by the Fair Work Act and employers should tread carefully.

Under the Act, employers are required to pay their employees all amounts owing to them in relation to the performance of their work in full. This includes wages, bonuses, loadings, allowances, overtime and leave payments. …

The Act allows for some deductions to be made by employers, but only in four limited circumstances, one being where the deduction is authorised by the employee in writing, and it is principally for the employee’s benefit …

In some cases, deductions for employer paid training courses can be lawful authorised deductions. It will depend on the circumstances of the case but as a general statement, deductions for training course fees are more likely to be considered lawful if the severance of the employee concerned occurs within a short time following the payment of the fee, for example, 6 months or 12 months. Each situation will turn on its facts.

The Standard Individual Employment Agreement and the Executive Employment Agreement precedents have been updated with a clause relating to Refund of tuition expenses by the employee.

 

 

EMPLOYMENT – Reference manual – 101 Employment Answers – Additions

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The By Lawyers Reference Manual – 101 Employment Answers has been updated.

New entries:

Notice and employment ended by abandonment

The question of when an employee can be said to have “abandoned” their employment can be a complex one. The recent Full Bench decision of the Fair Work Commission in Abandonment of Employment [2018] FWCFB 139 [21]–[22], provides excellent guidance.

Unfair dismissal – high income threshold

The high income threshold limits an employee’s eligibility for protection from unfair dismissal … currently $142,000. If an employee is not covered by a modern award, or an enterprise agreement does not apply to them, in order to be able to access the unfair dismissal jurisdiction, the employee must have an annual rate of earnings of less than the high income threshold.

Termination of an employee on a 186 visa

There is no condition on a 186 visa requiring either the employee or employer to maintain employment for the 2 year post visa approval employment period.

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