FEBRUARY
$45 million dollar underpayment a stark reminder that failing to afford employees paid rest breaks isn’t a ‘free pass’
In a stark reminder that failing to pay employee’s their rest breaks may not always be a ‘free pass’, the Financial Services Union (FSU) has announced that it is suing the Commonwealth Bank. The FSU launched proceedings in the Federal Court, alleging the banking giant had denied retail banking employees their 10-minute rest breaks. It further claimed that the denial of rest breaks meant the bank owed in excess of $45 million in backpay to approximately 3000 employees since 2014.
The union accuses the bank of ‘wage theft’, alleging that in addition to unpaid lunch breaks, staff were owed 10-minute paid rest breaks which were not provided due to understaffing. It says that the Commonwealth Bank had argues that ‘compensation is not owed in relation to these breaks because they’re paid time breaks, and even where they’re not taken, no pay is lost.’ The FSU clearly disagrees, stating, ‘If you are not able to take a paid rest break, then you’re having ten minutes of your time stolen’ in a statement aimed at encouraging more employees to join the underpayment suit against the bank.
Whether or not an employee is entitled to extra pay for working through a paid rest break will depend on the interpretation of the industrial instrument underlining the employment agreement. Here, we’re reminded that skipping a rest break here and there isn’t always free, and employers should be mindful of their obligations.
Long-awaited Western Australian WHS legislation finally set to commence in March 2022
The McGowan Government has released exposure drafts of Regulations under the Work Health and Safety Act 2020 (the WHS Act) ahead of the commencement of major work health and safety (WHS) reforms in March 2022. Western Australia’s WHS Act, which replaces the Occupational Safety and Health Act 1984, will adopt the model WHS laws and harmonise the nation’s approach to workplace health and safety, was given royal assent in November 2020, but would not be in force until all industry-specific regulations were finalised.
The WHS Act has introduced some significant changes for the state, including:
- a penalty provision for industrial manslaughter;
- a greater variety of workplace relationships covered by WHS duties, including labour hire relationships and ‘gig economy’ relationships; and
- the introduction of the ‘person conducting a business or undertaking’ concept as the person with the primary duty of care under the legislation.
Publication in the Government Gazette of the Work Health and Safety Regulations for the three outstanding sectors and transition to the new laws, which was originally scheduled for January 2022, is now expected in March 2022. Some transitional periods will be in place to allow businesses to adopt to the new laws. However, because the WHS Act received assent in November 2020, businesses are expected to be familiar with some of the key concepts already. If not, they should seek advice.
Unions double down pressure on employers, threaten walk-offs if Omicron risk assessments are not conducted
The Australian Council of Trade Unions (ACTU) met to discuss the National Cabinet meeting which failed to present a plan for providing free RAT tests to all workers on 17 January 2022. They resolved to write to employers, reminding them of their obligations to comply with work health and safety legislation, and take all reasonably practicable steps to keep workers safe. Letters are now being sent to employers across the country demanding free RATs for workers, better quality masks, and better ventilation.
In a statement released late January, the ACTU demanded all employers undertake ‘a new risk assessment for [the Omicron variant of Covid-19] in consultation with unions, workers and their health and safety representatives.’ Sally McManus went a step further, arguing that rapid tests for all employees was a necessary step to ensuring a safe workplace. ‘What we’re pointing out,’ she said, ‘is people’s right to cease work if they are put in danger.’
However, Treasurer Frydenberg has criticised the statement, saying any industrial action taken now, would be ‘the wrong action at the wrong time.’ Similarly, employer groups maintain that the demand for free rapid antigen tests is ‘unworkable’. With unions and employer organisations at an impasse regarding the appropriate work health and safety measures required in response to the Omicron variant, all employers should be seeking advice regarding their obligations.
Religious discrimination bill continues to cause controversy
The Morrison Government’s package of legislation on religious discrimination continues to cause nationwide controversy. The controversial package includes the Religious Discrimination Bill 2021, Religious Discrimination (Consequential Amendments) Bill 2021 and the Human Rights Legislation Amendment (Freedom of Religious) Bill 2021 (Bills). The Bills seek to make discrimination on the ground of ‘religious belief’ unlawful in specified areas of public life, particularly employment. However, they also provide that certain conduct undertaken by faith-based organisations and institutions is not discrimination.
Tasmania’s government and a number of NGO’s (including unions) have staunchly opposed the draft legislation, stating that the state’s state based anti-discrimination legislation protects LGBTIQ+ workers in faith-based workplaces. In fact, Attorney-Gneral Archer raised concerns that the Bills would affect the Tasmanian Anti-Discrimination Tribunal’s capacity to hear cases, in circumstances where the State’s Act already prohibits discrimination for religious belief. Similarly, the ACTU has expressed concerns in a parliamentary inquiry that the Bills may allow statements which are potentially ‘hostile, offensive, and harmful’ in the workplace, should those statements be ‘religious statements of belief’ under the Bills’ definition.
The Parliamentary Joint Committee on Human Rights and the Legal and Constitutional Affairs Legislation Committee as part of its inquiry is currently accepting submissions and is set to report back on 4 February 2022. If the Bills are passed, employers will need to review their policies on discrimination and ensure they incorporate the new requirements on religious discrimination.
YOU GALAH! Squashing Boss’s Pet Bird not a Valid Reason for Dismissal
In the tragic circumstances of a recent unfair dismissal case, the Fair Work Commission decided that accidentally running over the boss’s pet Galah was not a valid reason for dismissing an employee. The decision is a reminder that having pets in a workplace will always come with some risks.
While working for the small family fencing business, the employee reversed a truck over Crackers, who had wandered behind the truck’s wheels. Before reversing the truck, the employee had shooed him under another vehicle parked nearby, but Crackers didn’t stay put.
Deputy President Lake found that it was ‘unfortunate but unsurprising’ that the employee didn’t see Crackers in the truck’s mirrors or reverse camera. Employees knew to “watch out” for Crackers, but the Deputy President found there was no ‘formal directive’ requiring direct visual confirmation of his safety when operating vehicles.
The employer failed to comply with the Small Business Fair Dismissal Code in summarily dismissing the employee without a reasonable belief that the conduct was serious misconduct.
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