June
Important changes to workplace laws commencing on 1 July 2023
Minimum wage increase – The Fair Work Commission will raise the National Minimum Wage to $882.80 per week or $23.23 per hour, along with a 5.75% increase to minimum award wages. The new rates will apply to affected workers starting from the first full pay period on or after 1 July 2023.
Superannuation changes – The superannuation guarantee rate will rise from 10.5% to 11%.
International student and working holiday visas – Student visa holders will see their allowable work hours increase from 40 to 48 hours per fortnight. Working Holiday Maker visa holders can now work for any employer for an additional 6-months, even if they previously worked for that employer before 1 July 2023. From 1January 2024, visa holders will again be restricted to working for one employer.
New shutdown rules for Awards – Employers will no longer be able to require employees, under 78 select awards, to take unpaid leave during a shutdown period if they do not have sufficient accrued annual leave to cover the entire period. If a workplace still shuts down (i.e. for refurbishments or holidays) and permanent employees do not have sufficient leave, this may result in the employer being liable to pay the employees for their ordinary hours during this period.
Paid parental leave – From 1 July 2023, a number of changes to the paid parental leave scheme will take effect. This includes that the current entitlement of 18 weeks’ paid parental leave pay will be combined with the current Dad and Partner Pay entitlements of 2 weeks’ pay. Partnered couples and single parents will be able to claim up to 20 weeks’ pay.
Payroll tax (Victoria) – The Victorian Government plans to increase the legislated Victorian Payroll Tax Rate for large employers from 4.85% to 5.85%. When combined with the Mental Health Levy, the effective Payroll Tax Rate will be 6.85%. This change affects temporary workers in Victoria, including Limited Company and PAYG workers not covered by a payroll tax exemption. Payments made from 1 July 2023, regardless of when the work was carried out, will be subject to the new tax rate.
New sexual assault notification requirements now in force in the ACT
Persons conducting business or undertakings (PCBUs) in the Australian Capital Territory (ACT) are now required to report ‘actual or suspected’ incidents of workplace sexual assault to WorkSafe ACT.
Specifically, ‘a sexual assault incident’ will be added to the list of notifiable incidents under section 35 of the Work Health and Safety Act 2011 (ACT). The new notification obligations follow the passage of the Workplace Legislation Amendment Act 2022 in November last year and have been in effect since 9 June 2023.
WorkSafe ACT has insisted that it is only permitted to collect limited information about sexual assault incidents and will leave any investigations to the police, where required. In light of this, when an incident of workplace sexual assault occurs, PCBUs will be required to provide WorkSafe ACT with the following details:
· the name and contact details of the PCBU;
· a description of the workplace where the incident occurred;
· whether or not the incident was reported to police; and
· must not give information disclosing the identity of any person involved in the incident.
A failure to immediately report a sexual assault incident upon becoming aware of it may result in conviction and fines of up to $50,000.
If you have any questions regarding your new work health and safety reporting obligations, please call NRA Legal for a confidential discussion on 1800 502 055. For more information on how to reduce the risk of sexual assault occurring in your business, download a free copy of our ‘Sexual Harassment Prevention Guide’ here.
Changes to child employment in Victoria, effective 1 July 2023
Child employment legislation in Victoria is designed to regulate the employment of children under the age of 15 and from 1 July 2023, a number of changes will come into effect in accordance with the Child Employment (Amendment) Act 2022 (Vic) (Child Employment Act).
Licensing System
Currently, employers are required to apply for individual permits each time they engage an employee under the age of 15. However, from 1 July 2023, a new licencing system will replace the existing permit model, reducing the administrative burden on businesses. For clarity, business with existing child permits will remain valid until the date of expiry.
Supervision
In addition, the Child Employment Act has made changes to the supervision requirements, specifically:
- Employers must keep supervisor records for a period of 5 years;
- In the entertainment industry, children must always be supervised by someone with a Victorian Working with Children Clearance during casting; and
- Children working in a family business must be directly supervised by parent/s or an adult (a person who is 18 years of age or older) who is in the family business.
Definition of Employment
Other changes to the Child Employment Act include, not-for-profit organisations being no longer exempt and are now required to comply with the Child Employment Act and door-to-door fundraising will no longer be exempt from the meaning of employment.
You can apply for a child employment license, from 1 July 2023 through the link below. For further information on your obligations when engaging child employees in Victoria, and throughout Australia, please call NRA Legal for a confidential discussion on 1800 502 055.
FWC to hear multi-employer bargaining application in childcare sector
The first application testing new supported bargaining laws resulting from the ‘Secure Jobs, Better Pay’ amendments has been lodged and authorised by the Fair Work Commission (Commission). Employee unions have made a joint case for the early childhood education and care sector which covers 12,000 early learning workers and involves 65 employers.
In a directions hearing, President Hatcher asked the Federal Government and peak councils to file their submissions on the Fair Work Act 2009’s new sections 243 and 244. Section 243 outlines when the Commission must make a bargaining authorisation, the consideration of “whether low rates of pay prevail in the industry sector”, whether employers have ‘common interests’, and the number of bargaining representatives involved. Section 244 covers the removal and addition of employers. The hearing is set for 17 and 18 August 2023.
If you need assistance with enterprise bargaining, NRA Legal is equipped with an experienced team of lawyers ready to support your business. For a confidential discussion, please contact us on 1800 502 055.
Risk of relapse insufficient to challenge fitness
The New South Wales Industrial Relations Commission (NSWIRC) has reinstated a worker’s employment after finding her 18-month period of abstinence from alcohol misuse overrode her employer’s assessment that she was at “high risk” of relapse.
The employee, a quality assurance business partner at Health Share, became incapacitated in 2015 after being diagnosed with a work-related major depressive disorder. This later resulted in her termination in 2018 on the basis of medical grounds, and an opinion that she would never sufficiently recover to a standard to perform the inherent requirements of her role. For her depressive disorder resulting from work related stresses, the employee was awarded workers compensation and received damages.
In 2020, the employee applied to Health Share to have her pre-injury role reinstated pursuant to part 8 of the NSW Workers Compensation Act 1987 which states that workers dismissed for being unfit for employment as a result of work injury can apply to their employer for reinstatement. After 12-months of assessment, Health Share ultimately rejected the application on the basis that the worker’s medical certificates did not suggest she was fit for employment. The worker appealed this decision.
Muir C found that while Health Share argued that by the worker’s own admissions, she was still ‘grappling with alcohol dependence’ and at ‘high risk […] of heavy relapse’, the certificate provided by the worker’s psychiatrist clearly showed she was fit to return to work. He explained, “Part 8 does not require a worker to have completely recovered; it requires the worker to have recovered sufficiently to be fit for the employment.” He noted, "the risk of re-injury is at a level where it clearly does not outweigh the beneficial and remedial intention of Part 8 of the WC Act”.
Rejecting her claim for backpay, noting she had not attempted to apply for any other work, Commissioner Muir ordered Health Share to reinstate the worker.
If you have a question about reinstatement or workplace injuries, please contact our Workplace Relations Team on 1800 RETAIL (1800 738 245).
Employer wins indemnity costs against employee
The Federal Circuit and Family Court of Australia (Court) has awarded costs against an accountant who labelled settlement offers made by his former employer as “ludicrous”.
The employer, Condor Energy Services Limited (Condor Energy), dismissed the accountant in 2019, 3-months into his probationary period due to, “ongoing negative and disruptive workplace behaviour,” including an incident where he threatened to headbutt someone.
The accountant filed an adverse action claim in 2020 against Condor Energy, seeking compensation, reinstatement and an apology. Over the course of a lengthy trial, the Court heard the accountant suffered from Asperger’s syndrome, that he “always had a temper,” and that he had a “significant history” of mental health treatment, involving multiple psychologists, doctors, and counsellors. At the end of the trial, Egan J dismissed the case on the grounds that the accountant’s disability was never disclosed to or suspected by his employer, and resulting, no causal link could be established between his disability and his dismissal.
The Court then heard Condor Energy’s requests that costs be awarded against the accountant, on the basis that a $5,000.00 Calderbank offer had been made in 2020. The offer provided notice that costs would be sought if the accountant did not discontinue his claim and that should he agree, parties would bear their own costs. The business gave the accountant one week to respond, however, he replied twenty-minutes later to “utterly reject” the offer with, “thanks, but no thanks”. In 2021, Condor Energy sent a second letter giving the worker four-days to consider the offer. Ten-minutes later, the accountant responded by email retorting, “I AM NOT prepared to settle on such ludicrous terms. Make your case for costs, and I shall continue to pursue a trial remedy […] See you all in Court.”
Egan J found that the worker’s responses had been, “made in an offended tone and in robust terms,” noting the speed with which the offers were rejected. Further, the correspondence by the accountant showed he intended to, “proceed with his claims irrespective of the claimed aspect of adverse findings against him” and indicated he, “had not closely considered what the consequences might be,” should he not be successful. Finally, the offer by Condor Energy had clearly explained that the dismissal could not have been due to the accountant’s disability because no one knew he suffered from one.
The court determined that that the accountant ought to have accepted the first Calderbank offer, and that Condor Energy would be entitled to its costs on an indemnity basis.
Employer too quick to call abandonment of employment
While it may seem straightforward to conclude that an employee has indeed abandoned their employment, businesses must exercise caution to avoid potential legal ramifications (such as unfair dismissal), particularly where the employee has indicated they wish to continue working. The recent case of Hinic v Safety Assembly Moulding Pty Ltd [2023] FWC 1006 serves as a reminder of the importance of thorough consideration before hastily assuming an employee has abandoned their employment.
Ms Hinic, a process worker at Safety Assembly Moulding Pty Ltd (Company), had suffered an injury at work in late 2021. In June 2022, Ms Hinic had been cleared for ‘some type of work’ by her treating doctor but had repeatedly refused to attend a number of return-to-work appointments.
The Company wrote to Ms Hinic asking for the reasons she had been unable to attend work to which Ms Hinic provided a detailed response and outlined her willingness to continue employment with the Company. Despite this, two months later, the Company issued Ms Hinic with a letter declaring they considered she had abandoned her employment.
In the wake of this unexpected dismissal, Ms Hinic lodged an unfair dismissal claim, adamantly asserting that she had not abandoned her employment. Ms Hinic argued that a return-to-work plan had not been provided, a specific return to work date had not been approved and that she had been certified as unwell for each return-to-work appointment.
In finding that the dismissal was unreasonable, Cross DP held that ‘a reasonable person would not have determined that the worker had abandoned her employment, showing the dismissal was initiated by the employer’.
If you want to learn more about when an employee’s absence can be considered abandonment of employment, or for assistance preparing an abandonment of employment letter, please contact our Workplace Relations Team on 1800 RETAIL (1800 738 245).
Past Briefs
The Brief – Feb 2024
The Brief – July 2023
