AUGUST
Amendments to the Fast Food Industry Award took effect from 28 July 2022
Upon commencement of the Fair Work Act 2009 (Cth) (Act), the Fair Work Commission (Commission) was directed to undertake a four-yearly review of all modern awards to ensure that they were meeting the objectives of the awards, respectively. In particular, the Fast Food Industry Award 2010 (Fast Food Award) has been under the microscope in recent months, having been reviewed and rewritten by the Commission to make it more concise and user-friendly.
Prior to finalisation, the Commission invited interested parties to make submissions regarding the proposed amendments to the Award. Having considered feedback from several industry bodies, the Commission has now concluded its four-yearly review and the revised Award will begin to operate on 28 July 2022. While most of the amendments consisted of adjustments to phrasing and terminology, and applying plain language principles, the substantial variations are summarised below.
Amendments to ‘Fast Food Industry’ Definition
Under the new Award, the fast food industry will be defined as follows:
4.2. In this award, the fast food industry means the industry of taking orders for preparing and selling (by direct provision to the customer and/or by delivery to the customer’s address):
- meals, snacks and/or beverages, which are sold to the public primarily to be consumed away from the point of sale;
- take away foods and beverages packages, sold or served in such a manner as to allow their being taken from the point of sale to be consumed elsewhere should the customer decide; and/or
- food and/or beverages in food courts and/or in shopping centres and/or in retail complexes, excluding coffee shops, cafes, bars, and restaurants providing primarily a sit-down service inside the catering establishment.
The new definition has been introduced by the Commission to clarify that businesses such as Menulog and UberEats (that is market fast food, as well as restaurant meals, prepared by others, and/or engage in the delivery of such items to customers’ addresses) are not covered by the Award. The revised definition emphasises that to be covered by the Award, a business must be engaged in taking orders for, preparing, and selling fast food.
Removal of Reference to Shift Workers
While it was considered that many fast food establishments operate on a ‘24/7’ model and can facilitate shift work, the Commission ultimately held that the Award does not currently contain any substantive shift work provisions. As such, all references to ‘shift workers’ will be removed to avoid confusion and ambiguity.
Amendments to Annual Leave Loading
The Commission’s primary reason for amending this provision is the expression “additional payment” rather than the term “loading” in the current Award, which could give rise to ambiguity or uncertainty. Accordingly, the Commission held that there should be a reversion to the term “loading” to retain consistency with the Act.
Removal of Schedule X
In 2020, the Commission added Schedule X – Additional Measures During the COVID-19 Pandemic (Schedule X) to all modern awards in response to the COVID-19 pandemic, providing greater flexibility to employers and employees. These temporary measures included directing employees to take annual leave, unpaid pandemic leave, and annual leave at half pay. Schedule X was only in effect under the Award until 30 June 2022 and as such, now ceases to operate and will be removed.
Should you have any questions or concerns about the changes, please do not hesitate to contact us.
Conspiracy theorist dismissal upheld by the Fair Work Commission
Australia Post’s decision to terminate a long-term employee, engaged as a truck driver, for spreading COVID-19 conspiracies was deemed appropriate by the Fair Work Commission (Commission) earlier this month.
Complaints about the employee were first made to Australia Post by JB Hi-Fi, claiming that the employee refused to wear a mask, failed to sign in using the QR code, and “went off on a tangent”, discussing COVID-19 conspiracy theories during routine parcel collections at their store.
The employee was subsequently directed not to drive his work van and was placed on other duties until an investigation could be conducted. Defying those instructions, the employee proceeded to take the keys and drive his work van to a nearby distribution centre where he was advised that his employment had been suspended. The employee then took “matters into his own hands, to sort things out” and drove his personal vehicle to the JB Hi-Fi store to discuss the complaint made against him.
Commissioner Matheson held that the employee had a “complete disregard for the lawful and reasonable directions provided by Australia Post” and that the seriousness of the employee’s misconduct was “exacerbated” by returning to the JB Hi-Fi store after his suspension.
It was held that the conduct had sufficient connection to the employment, and “was likely to cause serious damage to the relationship between the driver and employer” if it was viewed independently. Despite the employee’s history of satisfactory performance and long tenure of thirty-two years, Commissioner Matheson said that “this does not outweigh his misconduct in failing to comply with reasonable and lawful directions”.
Reinstatement for roadside service mechanic who missed sales target
The Fair Work Commission (Commission) held that a contractor mechanic’s failure to meet key performance indicators did not provide a fair basis for sacking. Deputy President Gerard Boyce reinstated the sixty-one-year-old mechanic who worked for Club Assist Pty Ltd (Club Assist), a roadside patrol service owned by NRMA and other motoring organisations across Australia.
NRMA dismissed the technician for:
- failing to ensure that he sold batteries to customers in at least 24% of the jobs he attended;
- taking too long at each call out (against an average working time target of seventeen minutes once a technician arrives at a job) and failing to improve; and
- replacing too many batteries under warranty, against a ceiling of 3.9%.
Club Assist informed the Commission that some variation to KPIs is “inevitable and expected” but if they consistently fail, it will result in steps taken to manage and improve the performance of such an employee.
Deputy President Boyce found Club Assist’s approach to dismissing the employee was not only unsatisfactory, but unacceptable – especially in circumstances where the underlying facts to support the inferences and conclusions drawn as to the employee’s performance were unproven. The Commission found that Club Assist “manifestly denied” procedural fairness, particularly noting that the show cause letter omitted allegations about the employee’s “assertedly poor attitude” and the business’ failure to notify the employee that his employment was in jeopardy.
The Deputy President found that a sufficient level of trust and confidence could be restored between the parties and ordered the employee’s reinstatement, despite NRMA’s initial refusal.
Labor government introduces changes to paid family and domestic violence leave
The Labor government has introduced a Bill to create a ‘universal’ entitlement to ten days of paid family and domestic violence leave (FDVL) into the National Employment Standards (NES). The Bill proposes to replace the current NES entitlement of five days of unpaid FDVL. Furthermore, it will be available where an employee needs time off work to deal with the impact of family and domestic violence in circumstances where they cannot attend to such matters outside of work hours.
The Bill is seeking a form of paid leave that is broader in scope. The Bill gives rise to a new form of paid leave under the NES which:
- is accessible by all employees, including casuals, who have been ‘rostered’ (that is, have accepted an offer to work);
- is available ‘up front’ (meaning that the leave does not accrue and is available in full. That is, ten days of pay) at the commencement of every year; and
- is payable at the rate that the employee would have earned had they worked instead of taking the leave (instead of being payable at base rates).
If the Bill becomes law, the proposed new paid FDLV entitlement will commence on 1 February 2023 for all employees of large businesses. To recognise the unique needs of small businesses, an additional period of six months will be provided to ‘small business employers’ under the Fair Work Act 2009 (Cth) (a business that has fewer than fifteen employees) meaning the entitlement will become available to employee of small businesses from 1 August 2023.
If employers suspect that an employee may be experiencing family and domestic violence, it is appropriate for them to raise their concerns with the employee. While managers are not counselors or confidantes, it is important that they feel equipped to express their concerns and support their employees. As such, if you require specialist advice on family and domestic violence in the workplace, please contact us.
Safe Work Australia releases ‘managing psychosocial hazards’ code of practice
In a development in employer obligations around mental health risks within the workplace, Safe Work Australia has issued a model Code of Practice for managing psychosocial hazards (Code). It is likely that the Code will be adopted by states with model workplace health and safety legislation.
Psychosocial risks and hazards include a variety of matters which may negatively impact an employee’s mental or psychological wellbeing. Poor support, high demands, inadequate rewards, lack of recognition, bullying/harassment, and isolation are all examples of factors that could lead to the decline of an employee’s wellbeing. It is important to note that the Code not only sets out duties for employers, but also states that employers must take reasonable steps to:
- identify reasonably foreseeable psychosocial risks and understand the psychosocial hazards which are associated with the business;
- acquire and keep up-to-date knowledge of psychosocial work health and safety matters;
- implement processes to deal with psychosocial incidents and hazards; and
- eliminate psychosocial risks.
The Code reinforces that employers cannot be silent or passive toward risks in their workplace which may impact on the mental health of their employees. Employers should familiarise themselves with the Code, take steps to consult with their employees, and implement appropriate policies, procedures, and processes to reasonably identify and address psychosocial risks.
No obligation to engage with employee investigators
In a recent decision, the Fair Work Commission (Commission) held that it was not unfair for an employer to ‘fail’ to engage with or assist an investigator hired by an employee. In Mueller v The Real McCoy Snackfood Co Pty Limited t/as Snack Brands Australia [2022] FWC 1871, Mr Mueller, who had a myriad of health concerns, was subjected to a show cause process by Snack Brands Australia (Snack Brands) on the basis that he was unable to meet the inherent requirements of his role. During the process, Mr Mueller engaged a third-party investigator to question and inquire into his employment with Snack Brands and the show cause process. Snack Brands refused to engage with the investigator.
In holding that Snack Brands was not obliged to engage with the investigator, Boyce DP provided:
In my view, there can be no suggestion that the commencement of a show cause process against an employee gives rise to a requirement upon an employer to engage with an external workplace investigation of the kind initiated by the Applicant.
…
...[the investigator] is not a fact finder for the purposes of these proceedings. In my view, his evidence and reports are of no assistance or value in the resolution of the real issues for determination by the Commission in these proceedings.
This case provides a reminder to employers that there is no requirement to engage with third parties who approach them with the demand for information on the proviso that they have been enlisted by an employee. A dismissal will not be rendered unfair when the absence of engagement has no influence on the outcome of a process.
Sweeping reforms to prevent non-disclosure agreements from silencing sexual harassment victims
Employers in Victoria may soon be prevented from using non-disclosure agreements (NDAs) to silence sexual harassment victim-survivors as the Victorian Government proposes new reforms in a bid to curb workplace misconduct.
The Ministerial Taskforce on Workplace Sexual Harassment has released twenty-six recommendations, across four reform pillars, that aim to prevent sexual harassment, support victim-survivors, enforce compliance and promote accountability. Workplace Safety Minister, Ingrid Stitt, said that NDAs are often used to “silence victims, protect employer reputations avoid full liability, and hide serial offending”.
However, it has been argued that there are benefits to confidentiality agreements. The Law Institute president, Tania Wolff, outlined that any proposed changes “need to look at how to preserve the confidentiality of the victims because not every victim has the same desire as another in terms of the outcome they’re trying to achieve”.
The Victorian Government has yet to confirm a date for the reform, but announced that it would consult with victim-survivors, unions, business groups, and legal experts on a model before the legislation is introduced.
Request for casual conversion results in termination
Cleanaway Waste Management (Cleanaway) has been ordered by the Fair Work Commission (Commission) to compensate a casual employee who was dismissed after requesting casual conversion.
Cleanaway argued that the reason for dismissal was due to the fact that an audit of the employee’s timesheets uncovered multiple discrepancies and that the employee didn’t comply with the break requirements. On the surface, there appeared to be two valid reasons for dismissal. However, Commissioner McKinnon held that the dismissal process was “tainted” due to the employee’s request for casual conversion just four months prior and as such, was unreasonable.
The Commission expressed that although Cleanaway notified the employee of their right to request casual conversion, it was evident that they did not support the employee’s choice to convert. Upon issuing the casual conversion documentation to sign, the employee’s supervisor actively discouraged the employee to sign, stating words to the effect of “every action has a consequence, and you’ll have to bear it”.
The Commission found that the fatigue management policy had not been consistently enforced by Cleanaway, resulting in most employees not taking breaks. Commissioner McKinnon stated that the employee was the “only one subject to investigation and disciplinary action for the breaches even though his supervisors were also involved in those breaches”.
As a result, the Fair Work Commission ordered Cleanaway to pay more than $21,400.00 in compensation to the employee.
Past Briefs
The Brief – Feb 2024
The Brief – July 2023
