A brief summary of 2018 Employment Law change and what to watch out for in 2019

  • Casual Conversion
  • Time frames in which to process termination payments
  • Family & Domestic Violence Leave
  • Flexible working arrangements
  • A rise in Accessorial Liability Prosecution
  • Single Touch Payroll for all employers
  • A federal Election possibly in May 2019
Casual Conversion In October 2018 most awards were amended to include a casual conversion clause. An employee is a ‘regular casual employee’ if in the prior 12 months, they have worked a pattern of hours on an ongoing basis which, without significant alteration, the employee could continue to performance as a FT or PT employee.  This clause sets out that a ‘regular casual employee’ may request that their employment be converted to PT or FT. An employer can only refuse a request on ‘reasonable grounds’ and after consultation with the employee.  A written response must be provided to the employee within 21 days. Employers are required to give all casuals (not just regular casuals) a copy of the casual conversion clause from the relevant award within 12 months of their first shift.  Existing casual were required to be given the document by 1 January 2019. Due to a case Workpac v Skene in August 2018 and a case to be heard early 2019 Workpac v Rossato, it is now best practice to clearly set out the hourly rate break down on payslips i.e. casual base rate plus casual loading.  Further, the Employment Agreement should clearly set out what the casual loading includes. Tips:
  • If converting casual to FT or PPT employment, you must issue a new employment agreement and fair work information statement
  • The contract should identify a point in time where the relationship changed from casual to permanent
  • If an employee chooses to remain as a casual, ensure you have appropriate executed documentation from the employee rejecting such an offer
  • Get advice about your individual circumstances from us or an Employment Lawyer
Time frames in which to process termination payments In November 2018 there were changes to 89 Awards regarding the termination of employment.  The clause requires an employer to pay an employee’s wages and all other amounts owing (in accordance with the NES) no later than 7 days after the day which the employment terminates. Further, should the employer choose to pay out the notice period i.e. payment in lieu of notice rather than the employee working the period, then the payment should be paid immediately (on the day of termination). There is provision of a new job search entitlement that provides that where an employer gives notice of termination to an employee, the employee is allowed up to one paid day off to seek other employment. Family & Domestic Violence Leave From 1 August 2018 award covered employees were entitled to 5 days’ unpaid family and domestic violence leave each year. From 12 December 2018 this leave was available to the National Employment Standards and all employees became entitled to the leave. Family & Domestic Violence Leave is defined as: violent, threatening or other abusive behaviour by a close relative of an employee that seeks to coerce or control the employee and causes the employee harm or to be fearful. Family & Domestic Violence Leave:
  • Is not pro-rated for part-time or casual employees
  • Is available in full at the start of each 12-month period of employment
  • Does not accumulate from year to year
An employee may use the leave if they:
  • Are experiencing ‘family and domestic violence; and
  • Need to do something to deal with the impact of the violence;
  • And it is impractical for them to do it outside their ordinary hours of work
Flexible working arrangements In December 2018 the Commission added a new clause to all awards surrounding flexible working arrangements.  The clause provides additional obligations on employers when considering and responding to an employee’s request for flexible work.  It also provides employees with the ability to raise certain disputes under the standard dispute resolution provisions of the award. There are a number of additional obligations employers now need to be aware of, which include:
  • Consultation with the employee being required before making a decision
  • To genuinely try to reach an agreement
  • If refusing the request, the written response must include the reasons for the refusal, including the business grounds and how the grounds apply
  • The written response must state whether or not there are any other changes the employer can offer the employee, and if there are these must be set out
  • The written response must set out any agreed changes that are different to the initial request of the employee
Employers are required to comply with the Award provisions when managing award-based employees as breach of an award term can create disharmony within the workplace. A rise in Accessorial Liability Prosecution 2018 saw an increase of applicants not only bring action against the employing entity but also to individual directors and managers who were ‘involved ‘in alleged contraventions to the Act. Accessorial liability s550 – being ‘involved in’ a contravention includes:
  • Aided, abetted, counselled or precured the contravention
  • Been in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to the contravention.
In 2018 directors were prosecuted by Fair Work in amounts of between $5,000 – $50,000. A Director of a Gold Coast security business was personally fined $115,668 for his involvement in the business taking adverse action against an employee and underpaying several employees. The full court fined an accountancy firm who was involved in underpaying its client’s employees $51,330. Tips for limiting exposure to accessorial liability:
  • Notes, notes, notes, notes – take notes and records
  • Comply with the Act
  • Ensure senior staff are adequately trained and limit the number of individuals involved in the process of and in making decisions
A federal Election possibly in May 2019 Watch this space …. Labour initiative of ‘Fair Go Action Plan’ includes a focus on ‘standing up for workers’.  Some of the proposed changes include:
  • Cracking down on ‘dodgy’ labour hire
  • Stopping sham contracting and ‘fake’ casuals
  • Restoring penalty rates
  • Closing the gender pay gap
  • Cracking down on the ‘abuse’ of s482 visas (previously s. 457)
  • Abolishing the Australian Building & Construction Commission, as well as the Union watchdog, the Registered organisations Commission;
  • Making changes regarding Enterprise Bargaining including a possible return to pattern bargaining.
Thank you to Aitken Legal and Angela Engel.  https://www.aitkenlegal.com.au/