12 Workplace relations questions you should be asking in 2021

12 Workplace relations questions you should be asking in 2021

by Julian Arndt, Associate Director at Australia Business Lawyers & Advisors

Now is the perfect time to stop and think deeply about where the year is headed, what might have been missed last year and see what opportunities may lay ahead. Our workplace relations partners at Australia Business Lawyers and advisors, answer 12 key questions you need to have a good answer for to make this a successful year.

1. Have you considered where your business is placed in relation to requiring employees to be vaccinated against COVID-19?

There is much more discussion to come about this issue both in terms of what the vaccine will actually mean for Australia but also how it will be integrated into the industrial landscape. Will you be able to issue a lawful and reasonable direction to your employees to take it? While the science should be left up to scientists, if this isn’t on your radar as a business yet – it should be.

2. Where are you placed and what is your plan concerning the expiry of the pandemic-era employment conditions?

Has your business adopted any of the temporary industrial standards that have been introduced during the pandemic? Have you issued JobKeeper directions which are ongoing? Have your employees accessed ‘Schedule X’ entitlements under various modern awards? What about ’Schedule I’ conditions under the Clerks Award? Now is a great time to consider how to manage these arrangements in the future, particularly as they have current expiry dates. If you are unaware of what these arrangements are – perhaps its time to ask an expert as to whether you should be using these arrangements while they last?

3. What happens with working from home?

Several libraries have been written about what 2020 will mean for remote work. For you, right now, questions could be: will your new normal persist? Is it time to bring people back in? Are they ready and if they are not, how do you get them ready? Long term what is the optimum working arrangement for your business.

4. What is your business currently doing with its casual employees?

The Courts in recent years have shown a willingness to disregard the ‘casual label’ on an employee and instead look to the true character of an employee’s engagement. If an employee has relatively consistent hours and a reasonable expectation of ongoing work, regardless of the casual name (and a 25% loading) the employee may, at law, be a permanent employee entitled to paid leave.

Moves in parliament and the High Court this year may clarify this issue, or they may not, we will see. What can be done now is for HR practitioners to look at how their casual workforce is engaged (their contracts and their work patterns) and take necessary steps to ensure their casuals stay casual.

5. How much personal leave are your part-time employees accruing each year?

While other things were happening last year, the High Court of Australia reversed the Full Federal Court’s decision in Mondelez Australia Pty Ltd v AMWU [2019] FCAFC 138. This means that, after some years of uncertainty, the current state of the law is that:

“a ‘day’ for the purposes of the Fair Work Act refers to a ‘notional day’, consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period”.

More simply – this means that Part-time employees are entitled to a pro rata amount of 10 working days of paid personal/carer’s leave for each year of employment.

While the High Court’s decision in Mondelez confirmed the understanding applied by almost all employers for almost all of the Fair Work era (that personal leave was a ‘pro rata’ entitlement), it did overrule a Full Federal Court Decision which had been the law for some months. If your business had changed its practices following the Full Federal Court’s Mondelez decision – it is now time to take the High Court’s lead and change back.

6. Does your business have an up-to-date employment contract?

If not, it is time to review and update your employment contracts before your next employee arrives.  Does your template have the five contractual essentials?

  • general obligations clause
  • set-off clause
  • notice of termination clause
  • policies and procedures clause
  • surveillance clause

Does your contract incorporate what has changed over the past 18-24 months, including protections against accrual of leave by casual employees? Do your contracts contemplate ‘stand downs’ on the basis that the employee cannot be usefully engaged (a COVID-era hot point)? If you are unsure, seek expert guidance to ensure your obligations are met and your business is protected.

7. Do you intend to conduct pay reviews shortly? It could be time for a new contract.

Performance reviews and pay reviews are often scheduled between January to June.  If so, it is useful to think about whether you need to update an employee’s contract of employment alongside this. Consent is required for any contract variation so if you are in a position to offer a salary or wage increase in exchange for agreeing to sign a new contract, the employee is much more likely to consent.

8. Do you have compliant and effective workplace policies and are your employees aware of them?

At an absolute minimum, in addition to a current Code of Conduct, all workplaces should have the following policies in place:

Workplace policies should be clear as to what your expectations are as an employer, while providing enough flexibility for you to run your business.  As a general rule, these workplace policies should not form part of an employment contract.

9. Is your enterprise agreement (EA) expired, or due to expire in 2021 or 2022?

If it is, the time to start planning for the EA bargaining process is now. Chances are, for better or worse, bargaining for your next agreement will be very different to previous years and the economy reacts to the ongoing turmoil of the pandemic. This will of course occur against the backdrop of the Fair Work Commission’s continuously evolving approval processes including the forensic examination of loaded rates, a much stricter Better Off Overall Test (BOOT), thorough analysis of information given to employees during the access period and an assessment of the moral authority of certain votes.

10. Are you aware of the changes to Modern Awards and the Four-yearly Review and their implications?

All businesses should be aware of what Modern Awards apply to them (including those awards which underpin their EAs). Modern Awards will continue to change as the Four-yearly Review continues into its seventh (and final?) year. Are you up-to-date on award entitlements in relation to flexibility requests? What has happened to overtime conditions for your casual employees? Are you aware that Family and Domestic Violence leave is no longer an Award entitlement (but instead is now in the National Employment Standards)? Have you been providing casual employees with conversion notices? It’s time to review your award to ensure your compliance.

11. Do you have injured employees undertaking long-term absences?

Managing your ill and injured employees is a legal obligation. It is very likely that in the fog of 2020 many of these issues would have been put in the ‘tomorrow’ basket. Now is the time to make sure that you are up-to-date with the status and progress of these employees in order to develop a plan and timeline going forward.

This is hugely beneficial for all parties in managing what are always extremely difficult situations.

12. Did 2020 raise any employee disputes, contractual or award interpretation queries, or entitlement calculation questions, which remain unresolved?

Now is a good time to call the experts to discuss outstanding issues that might be tempting to throw back into the too-hard basket.  Take the time to review what employee disputes arose last year, how they were handled and what could be improved to reduce dealing with unfair dismissals, harassment claims or adverse actions filed against the business.

Training your HR team is also critical.  You can have the correct policies and documentation but if the managers don’t behave appropriately or they are unsure how to have a difficult conversation or address poor behaviour in the workplace, the paperwork means nothing.  The two need to work in tandem for a fully functional workplace that presents minimal risk for claims.

Where to from here?

A comprehensive list of workplace policies and procedures is available on our members portal and members can access our workplace relations team on 1300 391 426 for advice.

2021’s Hot Workplace Relations Issues

2021’s Hot Workplace Relations Issues

Article by HR Advance

2020 was a year with many workplace relations issues and it looks like 2021 will be no different. Our workplace advice team delve into some the issues you may run into over the next 12 months.

COVID-19 vaccine: no jab, no job?

On current progress, it looks very likely that vaccines for COVID-19 will become widely available sometime in 2021. Many employers currently have a policy regarding flu vaccinations for employees, but in many cases having it is optional. Arguably the risk of harm to other employees or the community generally is greater with COVID-19 than with the flu, so there is likely to be a greater degree of compulsion in the decisions made.

Employers will have to deal with each of the following issues:

  • To ensure a safe workplace, should it be compulsory for employees to be vaccinated?
  • If so, should employers arrange and pay (the latter if required) for vaccinations, or leave it to employees to arrange?
  • What if some employees refuse to be vaccinated?
  • What COVID-safe precautions at the workplace will employers have to continue to take?
  • Changes to Fair Work Act on the way?

Last month saw the federal government announce various proposed changes to the Fair Work Act 2009. The changes have been predictably controversial and it is uncertain whether they will make it through Parliament, at least in their current form. However, negotiations and debate will continue during 2021 and employers need to keep up to date with developments and evaluate the implications for their own businesses.

Other issues

A summary of the proposed changes affecting the following areas are:

  • Part-time employees in the accommodation, food and retail industries will be guaranteed a minimum 16 hours per week, but if they do extra shifts they will not receive overtime pay.
  • Casual employees who work regular shifts for at least 12 months will gain a right to apply for conversion to permanent employment (some of them already have something similar). However, the Fair Work Commission will not be able to force employers to convert them. Businesses that use casual employees will need to make their plans with these provisions in mind, for example to foresee the possibility that casual employees may eventually become permanent. Also, the government is again attempting to reverse some recent decisions that held that long-term casual employees were entitled to payments for leave as well as their casual loading. To do so, it proposes changing the definition of a “casual employee”.
  • As part of an attempt to revive enterprise bargaining, employers may be able to bypass the Better Off Overall Test (BOOT) for enterprise agreements for up to two years if they can prove there are circumstances adversely affecting their business (including COVID-19-related impacts) and employees agree to the proposal. This appears to be the most controversial of the proposals, so probably the one least likely to happen.

Increased penalties for deliberate underpayment of wages

One change that is definitely going ahead, however, is that the Fair Work Commission will be reviewing pay rates in the awards covering the club, retail, restaurant and hospitality industries. The aim is to examine the feasibility of trading off penalty rates in exchange for higher base pay rates.

Plan for the end of JobKeeper

The government still intends to end the JobKeeper assistance scheme on 28 March 2021, now less than three months away. This means businesses will be expected to return employees to their pre-COVID-19 arrangements of one year earlier. Employers need to assess whether and how they are able to do this, plan accordingly and maintain communication with employees.

Other ongoing challenges

The above issues can be described as “unique to 2021”. However, there are also several other ongoing HR/employment challenges that will continue to require attention this year:

  • Working from home. A lot of people had their questions about working from home arrangements answered one way or the other when such arrangements had to be made last year. There will be pressure from many employees to make working-from-home arrangements permanent, or at least to work out a suitable compromise that combines both working in an office and working from home.
  • The so-called “gig economy”, which will continue to be a battle between attempts to regulate employment in it to ensure workers are fairly remunerated, and attempts by some operators to cut costs by operating outside the law. This battle has implications for those that have to compete with “gig economy” businesses.
  • Diversity, inclusion and equal opportunity will continue to be prominent issues regardless of the prevailing economic climate. Businesses that fail to take them seriously may suffer for it, eg “shaming” on social media and perhaps loss of access to public sector contracts.
  • Legal compliance and regulation will become more, rather than less complex. The proposal above to increase sanctions for underpayment of wages is one example, and a reminder to businesses to ensure that their payroll management systems remain fully compliant.

Feeling Overwhelmed

Our workplace advice team can help you with expert advice and solution for all things HR, workplace, and industrial Relations. Whether you are onboarding new employees, managing performance, or monitoring compliance, we have professional phone advice, wage guides, and employee documents.

Members can call our advice line on 1300 391 426,

Not a member? Join today! 12 months membership is only $440 inc GST.

 

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Wage Underpayment Legislation in QLD

Wage Underpayment Legislation in QLD

Late last year, the Palaszczuk Government passed legislation making it a criminal offence for employers to knowingly underpay their staff. Directors and business owners can face jail time.

2020 highlighted several businesses who underpaid their workers. Most employers almost never deliberately underpay their works. Whenever we have identified payment issues it has always been due to the complexity of the industrial relations system, or at worst, a lack of attention or oversight.

Last year the CCIQ spoke in front of a Parliamentary Committee to ask the government not to proceed. They pointed to the economic crisis, a confusing Modern Awards system, and the many ways that cases of alleged underpayment can already be addressed under the current system. They also stressed that there are already so many pressures dampening employers’ confidence and willingness to hire.

What You Need to Know

  • From 10th September, wage theft is a criminal offence in Queensland punishable by up to 10 years in prison for ‘stealing’ and a maximum of 14 years in jail for an offence of fraud.
  • Workers, or a Union on behalf of a worker, can initiate the process by making a complaint to Queensland Police.
  • The process involves conciliation for cases up to $20,000.
  • Workers, or a Union on behalf of a worker, can initiate a civil claim instead, through a new Industrial Magistrates Court if they choose.

What You Need To Do

Now more than ever, employers need to get pays right. This means:

  • Ensure your staff are being paid correctly under the relevant Modern Award or enterprise agreement, keeping in mind recent changes to Award minimum rates of pay and conditions. The General Retail Industry Award will increase by 1.75% from Monday 1st February 2021, the Clerks Private Sector and Timber Industry Awards increased on 1st November 2020.
  • Be sure to factor in allowances, overtime and other relevant award or enterprise agreement entitlements to ensure you are paying pursuant to an award or enterprise agreement.

Need Peace of Mind?

Our workplace relations team provide advice on wage rates and can ensure you are paying your workers correctly.

Are you looking to change employment conditions?

Are you looking to change employment conditions?

The Federal Court recently confirmed that a reduction in an employee’s terms and conditions of employment without consent can give rise to a redundancy entitlement, even where the employee continues working for their employer.

According to Luis Izzo from Australian Business Lawyers “The decision should act as a warning to employers looking to unilaterally reduce conditions in response to changing business demands”.

 
The case 

In Broadlex  Services Pty Ltd v United Workers’ Union [2020] FCA 867, the employer, Broadlex, decided to reduce the working hours of its full-time employee, Ms Vrtkovski, by 40%. The reduction from 38 hours per week to 20 hours per week was documented in a consent form which Broadlex asked its employee to sign.

The employee refused to sign the form, but continued working for Broadlex after the reduction in hours.

Years later, the United Workers Union filed a claim alleging that the employee’s material reduction in conditions triggered a redundancy payment.

Broadlex denied the claim, arguing that the employee’s continued employment meant that no redundancy could have arisen as her employment was never terminated.

 
The decision

In a surprising decision, Justice Katzman found that a redundancy was triggered because the reduction in hours had the effect of terminating the employee’s employment.

Justice Katzmann found that:

  1. The unilateral reduction of the employee’s working hours constituted a “repudiation” of the contract (that is, a fundamental breach going to the root of the contract).
  2. The employee’s refusal to sign a consent form constituted an acceptance of the repudiation by the employee – thereby bringing the pre-existing employment contract to an end.
  3.  When the contract came to an end, the employment relationship also came to an end – thereby triggering the redundancy entitlement under the Fair Work Act.
  4. The employee’s continued work for the employer on a part-time basis constituted the creation of a new and different employment relationship. It was not a continuation of the existing relationship the employee had with Broadlex.
 
Impacts for employers

Whilst the facts considered in Broadlex were somewhat severe (a 40% reduction in hours), the principles have application to the reduction of other significant contractual conditions. The decision could be applied to the reduction of other material contractual conditions such as:

  • access to a motor vehicle
  • incentive payments
  • duties
  • an employee’s status or seniority
  • remuneration or
  • work location.

Particularly as employers respond to financial distress caused by COVID-19, it is important that consent is obtained for contractual variations. Alternatively, employers need to ensure any variations to the employment are permitted by the relevant employment contract (or possibly industrial instrument).

Care especially needs to be taken where reductions are being made to large numbers of employees, in order to avoid a compounding of exposure and the possibility of class actions.

Where to get help

Hardware Australia membership includes access to our workplace advice line, our expert team can assist you with your contractual arrangements permit and whether any liabilities might arise, members can call 1300 391 426 to seek advice. Not a member, Join Now and start accessing a range of services.

Membership includes access to professional employment contracts, policies and proceedures to implement in their business. A full list of available documents can be found on the Member’s Portal.

 

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