JUNE
Annual Wage Review decision
On 15 June 2022, the Fair Work Commission (FWC) handed down its decision in the 2021/2022 Annual Wage Review, departing significantly from its usual approach. The National Minimum Wage will increase by 5.2% with Modern Awards receiving a 4.6% increase unless the minimum weekly wage prescribed by the relevant Modern Award is less than $869.60.
If the relevant Modern Award wage is less than $869.60 per week, the minimum weekly rate of pay will increase by a flat $40.00 per week.
The National Minimum Wage and minimum wages in most Modern Awards will increase from the first full pay period on or after 1 July 2022.
However, the FWC has granted the hospitality, tourism, and aviation sector a deferral until 1 October 2022 to accommodate unpredictable market factors. The rates of pay in the following Awards will not increase until the first full pay period on or after 1 October 2022:
- Aircraft Cabin Crew Award 2020;
- Airline Operations – Ground Staff Award 2020;
- Air Pilots Award 2020;
- Airport Employees Award 2020;
- Airservices Australia Enterprise Award 2016;
- Alpine Resorts Award 2020;
- Hospitality Industry (General) Award 2020;
- Marine Tourism and Charter Vessels Award 2020;
- Registered and Licensed Clubs Award 2020; and
- Restaurant Industry Award 2020.
Employers are also reminded that the superannuation guarantee will increase to 10.5% from 1 July 2022. Employers will need to ensure they use the new rate to calculate superannuation on payments made after this date. It is also recommended that businesses seek clarity as to how the annual wage decision might affect their business.
Full Federal Court holds casual employees cannot be merely dismissed at will
The recent Full Court decision of Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75, provides a reminder to employers that they should undertake an assessment of risk prior to dismissing employees, including casuals.
This matter concerned an employee who was a delivery driver for a milk company, with a tenure of approximately 5 years, where there was relevantly contention as to whether the employee was a casual or full-time employee. Ultimately, the employee was dismissed within a number of weeks of making complaints and enquiries concerning additional hours. Within the original trial judgement, Judge Vasta had held that a casual employee’s dismissal was incapable of being adverse action, stating, “under casual employment arrangements, there is an ability for an employer or an employee to simply end the employment arrangement whenever either wishes to do so. In this respect, cessation of casual employment is not adverse action.”
On appeal, it was held that this position was incorrect and that casuals are protected from being dismissed because of a protected reason. It was relevantly provided, “the text of section 342 of the FWA is plain – it applies to the dismissal of employees without limitation as to the character of the employment as permanent, fixed term or casual.”
This decision serves as a reminder that all types of employees, including casuals, are protected from being dismissed for a protected reason. Employers need to be wary when dismissing employees, no matter their employment status, and consider whether the employee holds a protected attribute or has taken protected action.
Employee's need for speed results in a fair dismissal
The Fair Work Commission (FWC) has upheld the termination of a sales representative after the employer, Coca-Cola Euro Pacific Partners (Coca-Cola), dismissed her for repeatedly speeding in a company vehicle.
Less than a year prior to the termination, Coca-Cola had distributed a memorandum to all employees via email regarding the company’s zero-tolerance toward speeding and unsafe driving. After exceeding speed limits on more than 34 occasions, the employee was issued her first written warning. Second and third written warnings followed before the sales representative was finally terminated for ‘persistent and inappropriate conduct’ after further instances of speeding were captured by her company vehicle’s tracking system.
In seeking an unfair dismissal remedy, the former sales representative argued that the tracking system was inaccurate. However, Commissioner Masson said, “notwithstanding improvement, performance remained at an unacceptable level, having regard to the criticality of safe driving in her role with the warnings that she had received”.
Further, the employee claimed that the speeding events only represented a small portion of her total driving. This argument was quickly rejected by the Commissioner who rebutted, “to suggest the speeding events were only a small percentage of her driving, thus excusing the conduct is equivalent to saying it’s okay to ignore a critical safety policy so long as you don’t do it often”.
Commissioner Mason dismissed the unfair dismissal claim and held that Coca-Cola had a valid reason for dismissal and exercised a procedurally fair process in issuing multiple warnings to the employee and ultimately dismissing her.
ACT to introduce raft of new changes to WHS legislation
Proposed legislative changes could impose further obligations on business owners in Canberra. If passed, the key changes to the Workplace Legislation Amendment Bill 2022 (ACT) (the Bill) will include:
- adding gross negligence as a fault element to the category one, reckless conduct offence;
- banning businesses from entering into insurance contracts to cover WHS penalties;
- allowing health and safety representatives to attend training of their choice;
- facilitating cross-border information sharing between regulators; and
- improving WHS prosecution processes and accountability.
One of the most significant amendments to the Bill will be defining ‘sexual assault’ as a notifiable incident under section 35 of the Work Health and Safety Act 2011. This proposed change comes after an increased prevalence of sexual assault and harassment in workplaces. The amendment would require businesses to report actual or suspected incidents of sexual assault to the work health and safety regulator.
After such disclosure is made, the regulator would be able to investigate and assess the business’s reporting processes and policies. Further, the regulator can analyse trends in sexual assault incidents to deliver targeted education and compliance activities for businesses.
Another proposed alternation would permit injured workers to accrue and/or access annual leave and long service leave. Currently, injured workers that are absent from work while receiving compensation can only accrue leave entitlements if it is permitted by the applicable workers’ compensation law.
Recent developments in vaccine dismissals
With vaccine requirements relaxing in some States and remaining in others, the Fair Work Commission (the Commission) has continued to hold that, depending on circumstance, employer policies requiring staff to become vaccinated are lawful and reasonable. Just this year, we have seen an overwhelming number of cases which have held COVID-19 vaccination policies and resulting dismissals lawful and reasonable.
Further, the Commission has confirmed that not only COVID-19 vaccination policies will be lawful and reasonable, but vaccination policies generally, such as the influenza vaccine are enforceable. Within Paul v Ozcare [2022] FWC 1139, a case where a clinical nurse was dismissed after refusing to be vaccinated against influenza, it was provided that the employer, “had to balance their duty to their clients and other employees (with the risk of influenza), with the employee’s employment continuing with limitations”.
While these cases have given a strong position for employers to introduce and require employees to be vaccinated, it is not the case that employers can freely dismiss employees who have not complied with vaccine requirements. While there are only limited examples, the two recent cases of Marriott v Baptcare Limited [2022] FWC 300 (Baptcare) and Inwood v Baxter & Co Pty Ltd [2022] FWC 792 (Baxter) have provided insight into when dismissing unvaccinated employees will be unfair.
Within Baptcare, an employee, who at the time was working from home, was dismissed following a failure to become vaccinated in line with the policy of their employer. The Commission held, where the employee was, and could remain, working from home, the dismissal was unfair. The Commission did note, had the employee been required to attend the workplace, then the dismissal would not have been unfair. Within Baxter, an employee was abruptly dismissed by a frustrated employer during an exchange of messages where the employee asserted various anti-vax template material. In holding the dismissal unfair, the Commission did not award the employee any compensation, however, found that the employee should have been provided notice that their employment was at risk of being terminated if they did not become vaccinated.
The current position of the Commission should provide confidence to employers who wish to introduce or maintain vaccine requirements; however, employers should remain mindful of their employees’ circumstances and provide procedural fairness if a dismissal is pursued.
Child employment changes coming in Victoria
A Bill to amend the Child Employment Act 2003 (Vic) is currently before the Legislative Council (upper house) of the Victorian Parliament. The proposed changes aim to streamline the license system while introducing further safeguards and new regulatory powers for the Victorian Wage Inspectorate.
Following the amendments, employers will only need a single license to engage children under 15 years old. Currently a separate license is required for each individual child employed, creating significant administrative burdens for employers and the regulator.
The scheme will also move to a ‘risk-based’ system imposing different information requirements and license conditions depending on the level of risk involved in the employment. The categories of ‘general industries’ and ‘entertainment’ licenses will remain.
To maintain current levels of child protection, applicants for licenses will now have to pass a ‘fit and proper person test’ in addition to complying with the Child Safe Standards and license conditions. New oversight roles will also be introduced for entertainment licenses.
Licenses still will not be required for children working in their family’s businesses who are ‘directly supervised’ by parents or responsible adults. The minimum age for a person supervising a child in the workplace will increase to 18 years.
The Wage Inspectorate will gain powers to issue compliance and infringement notices. Currently the only available enforcement mechanism is prosecution, which is ‘not always an appropriate or viable option’. Maximum penalties will change to reflect the ‘risk-based’ system.
The definition of ‘employment’ will be amended to be broader than the common law test for an employment relationship, including recognising work for which the remuneration is in forms other than cash. The new definition will also capture work with not-for-profits.
The Bill is expected to pass into legislation soon, with the second reading having been moved on 9 June 2022.
Additional hours considered unreasonable
A meat wholesaler is on the grill and facing penalties for breaches of the Fair Work Act 2009 (Cth) (the Act) after the Federal Court handed down its decision earlier in the month finding an employee had been engaged to work unreasonable additional hours.
In 2016, a newly arrived migrant from Ghana began employment as a knife-hand/laborer with Dick Stone Pty Ltd (the Employer).
The employment documentation issued to the employee upon commencement stipulated that his “ordinary hours” as 50 per week but failed to reference the applicable modern award and clarify remuneration or entitlements to overtime. The employee claimed that the requirement to work excessive hours, across six days of the week was “very draining and tiring”.
Justice Anna Katzmann found that the Employer had contravened the National Employment Standards (NES) provisions set out in section 62 of the Act, prohibiting employers from requiring workers to perform more than 38 hours per week unless the additional hours are “reasonable”. In considering whether the requirement to work a 50-hour week was reasonable, Justice Katzmann found “obvious risk” connected to prolonged shifts in a role “requiring the use of knives and the lifting of heavy material”. The Employer argued that the 50-hour week met business operational requirements, but Justice Katzmann stipulated that this did not make the additional hours reasonable.
Justice Katzmann concluded that while the worker had freely entered into the agreement, likely because he was unfamiliar with Australian employment laws, she found that the minimum standard of a 38-hour week maximum cannot be disregarded.
It’s a timely reminder for employers that employment agreements cannot contract out of the NES, provisions of the Act, or of an industrial instrument, despite any prior agreement between the parties.
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The Brief – Feb 2024
The Brief – July 2023
