A Christmas message from our Chair

A Christmas message from our Chair

What a year 2020 has been!

Who would have thought last Christmas, when much of Australia was under threat from bushfires, that in just a few short months the world would be crippled by COVID-19.   In March, as we first started feeling the effects of COVID 19, I don’t think any of us would have predicted the full impact it would have.  There is no doubt that our industry has been one of the lucky ones, with most members seeing a significant uplift in sales.  In my own store, I was thinking it was only going to last a few months. I could not have been more wrong.  For those of you who were unable to attend the HA hosted webinar last week, you will be interested to learn the HIA are predicting the next 12 months will continue to show strong sales growth.

A challenging year

Whilst we are happy to be experiencing an uplift in sales it has certainly come with its challenges, not the least of which is having enough stock on the shelves.   As a retailer, I would like to express my thanks to all our suppliers in dealing with the current challenges. The warehouses in Victoria are to be commended for managing to get stock out across Australia despite reduced staffing levels and increased demand.  Well done to you all.

A further challenge for wholesalers and retailers alike has been trying to navigate individual State Government restrictions, lockdowns, QR codes, social distancing, sneeze screens and so on, with many of these changes happening at short notice, and often changing daily.  And I know that the issue of keeping both staff and customers ‘safe’ while in store and in workplaces has been a huge worry for business owners and managers.

Difficult times

Our thoughts were with our members in Victoria who had a particularly difficult time as a result of their extended lockdown (over 100 days), and especially for those members who were also impacted by the devasting bushfires of last summer.

It would be no surprise to you that our focus at Hardware Australia this year has been about communication to our members.  We have worked hard to ensure we have been able to provide you with the information to help you keep abreast with State Government changes. Our goal has been to communicate with members on a weekly basis, and we hope that you have found the information we have disseminated worthwhile. I would particularly like to thank Natalie Scott for putting these emails together – she certainly had her hands full as each state has had their own COVID regulations and restrictions.

A year for advocacy 

Apart from keeping you up to date on state matters we have also worked hard advocating for our industry at State and federal levels.  In the early months of COVID we lobbied all state governments to ensure the hardware industry was considered an essential service.  Later, amongst other things,  we communicated with the Victorian Government when Daniel Andrews referred to “Bunnings” as the Hardware industry, and we spoke with the SA Government when they deemed hardware stores able to trade, but to ‘essential service trades’ only during the recent South Australian lockdown.

I hope you have found your HA membership of value during 2020, and we look forward to 2021 when I am hoping we can move more freely around Australia and we will start seeing each other face to face once again.

My wishes to you, your staff and families for a safe and happy Christmas, and good trading in the new year.

Sincerely,

Paul Stewart
Chair – Hardware Australia

Relief over high court move on double dipping

Relief over high court move on double dipping

Australian businesses have been thrown a lifeline in the fight against double-dipping claims, following the High Court’s decision to grant special leave to Workpac and the Australian Government to appeal the decision of the Federal Court in the Workpac v Rossato case.

The Federal Court’s decision exposed many businesses to the possibility of having to pay casuals twice for leave, placing both the jobs of more than a million casual employees into doubt and exposing employers to more than $14 billion in backpay claims.

“The decision of the Federal Court in Workpac v Rossato upended more than two decades of widespread industry practice and called into question the viability of casual work if it is allowed to stand. Consequently, today’s decision by the High Court to hear an appeal is a relief, but not yet a remedy”, said James Pearson, CEO of Australian Chamber of Commerce & Industry (ACCI).

“Thousands of businesses who believed they have fully complied with their lawful obligations under industrial awards, have instead been exposed to legal double jeopardy which could send many over the edge, as they face claims for double-dipping, paying for leave once through a 25 per cent or so casual loading, and then again through possible back-pay claims after a worker leaves their job – even if the casual employee had already pocketed and spent the casual loading.”

“No Australian expects to get paid twice for the same thing, and no business should be required to pay twice for the same entitlement.”

“Casual employment will be vital to restoring jobs, and helping businesses facing headwinds to get back on their feet, as Australia rebuilds from the economic damage caused by the COVID-19 pandemic.”

“So, while ACCI welcomes the High Court’s decision to hear an appeal, employers and employees need to see common sense and confidence restored much sooner than the High Court appeal process will likely take.”

“We call on Parliament to restore clarity to casual employment and decades of established law and practice, reversing the unexpected Federal Court decision.

“Businesses around the country currently face enormous hurdles just to keep their doors open, and with more than 950,000 Australians out of work, we need urgent legislative reform to give certainty to business and casual employees, to preserve fairness by ending double-dipping claims and to encourage employers to retain casual workers and take on new employees.”

Need Help?

Members have access to our workplace advice line, contact our team on 1300 391 426.

Article by: hradvanceprofessionals.com.au

Are public holidays paid whilst on Christmas LWOP?

Are public holidays paid whilst on Christmas LWOP?

Article by: hradvanceprofessional.com.au

 

Do we have to pay employees for public holidays if they took leave without pay over Christmas?

Some of our employees took leave without pay over the Christmas/New Year period. They’ve queried why they weren’t paid for the public holidays. We don’t think they are entitled to payment as they requested the time off without pay.

Should employees be paid for public holidays during a period of leave without pay?

A An employee’s entitlement to a paid public holiday that falls during a period of leave without pay has been a source of conjecture for years and has not been the subject of judicial review.

The Fair Work Act does not appear to clarify this point, although s116 states that if an employee does not have ordinary hours of work on the day the public holiday falls, the employee is not entitled to payment for the holiday.

To avoid this potential problem, an employer could, as a condition of consenting to an employee’s request for leave without pay, alter the employee’s ordinary hours to zero for the period of leave without pay. This would mean the employee has no ordinary hours that would fall on the day any public holiday occurs during leave without pay.

Unauthorised absence

What happens if an absence before or after a public holiday is unauthorised?

There is nothing in the Fair Work Act to suggest that an employee forfeits their entitlement to payment for a public holiday if he/she takes an unauthorised absence on the working day before or after a public holiday.

While such a term was common in awards and agreements some years ago, the right of an employer to deduct payment for a public holiday in this circumstance was removed with the start of the Fair Work Act on 1 January 2010.

While an unauthorised absence before or after a public holiday may be grounds for instigating disciplinary action, an employee would still be entitled to payment for a public holiday that falls on a day the employee is normally rostered to work.

Accrual of paid leave

Under the Fair Work Act, an employee does not accrue paid annual leave or personal/carer’s leave during a period of leave without pay.

It should be noted that an unpaid authorised absence does not break an employee’s continuity of service with an employer (ie service prior to leave without pay still counts towards total service).

The bottom line

It is assumed there is no payment to an employee for a public holiday that falls during a period of leave without pay as the employee’s ordinary hours have, by agreement, been reduced to zero for the duration of the absence.

Members have access to our library of policies and procedures, including a leave policy which covers annual leave. Visit the members portal to request your copy today.

Need advice?

Our workplace relations team is available over the Christmas period (excluding public holidays) to answer your questions. Members can contact them on 1300 391 426.

Not a member? Join today!

Festive Season Penalty Rates

Festive Season Penalty Rates

Article by: hradvanceprofessionals.com.au

 

The Fair Work Act (s115) is applied in conjunction with state and territory public holiday laws in determining which days are declared a public holiday, or part-day holiday, for the relevant state or territory.

These laws also determine the relevant public holiday penalty rate under the applicable modern award or enterprise agreement when work is performed on a designated public holiday.

The following are the declared public holidays, and part-day holidays, over the Christmas and New Year period.

All states and territories

Friday 25 December 2020 – Christmas Day
Saturday 26 December 2020 – Boxing Day (except TAS, NT and SA)
Monday 28 December 2020 – Additional Boxing Day public holiday (for all states except TAS, NT and SA where it is a substitute Boxing Day)
Friday 1 January 2021 – New Year’s Day
Monday 27 January 2021 – Australia Day public holiday
South Australia – Christmas Eve and New Year’s Eve

The following dates will be a part-day public holiday for South Australia:

Christmas Eve – Thursday 24 December 2020 – 7pm to midnight
New Year’s Eve – Thursday 31 December 2020 – 7pm to midnight
Payment for work on a holiday – award/agreement-covered employees

The public holiday provisions of the applicable modern award or enterprise agreement determine the penalty rate for work performed on a public holiday.

A modern award may provide a different penalty rate for work performed by an employee on Christmas Day. For example, the Road Transport and Distribution Award 2010 (cl 28.2) provides that work performed on Christmas Day or Good Friday is paid at an additional double time (total of triple time).

Reference should therefore be made to the applicable modern award or enterprise agreement to determine the appropriate penalty rate for work performed on Christmas Day.

Award/agreement free employees

There is no statutory penalty rate for an award/agreement-free employee who works on a declared public holiday – any additional payment is determined by an individual’s contact of employment.

State trading laws

The Fair Work Act (s27) does not exclude certain state and territory laws, including those with respect to “business trading hours”.

While such state and territory laws mainly regulate opening and closing times for retail shops and retail trading on public holidays, there may be provisions which relate to the employment of retail workers.

For example, the Retail Trading Act 2008 [NSW] (s8A) states that “a shop is not required to be closed on Boxing Day if the shop is staffed only by persons who have freely elected to work on that day.”

This means it is an essential condition that staff must freely elect to work. That is, an employee must volunteer to work without any coercion, harassment, threat or intimidation, by a retailer.

A formal complaint from an employee being compelled to work will be referred to inspectors for investigation and possible prosecution action.

Reference should be made to the relevant state or territory retail trading law to determine whether employees are permitted to work on certain public holidays.

Where to from here?

If you are unsure about your obligations contact our Workplace Relations Team on 1300 391 426.

If you are not yet a member, follow the link below to sign up today.

2021 Public Holidays

A full list of the 2021 public holiday’s is now available on the members portal. 

Image by: freepik.com