SEPTEMBER
Takeaways from the Jobs and Skills Summit
The Jobs and Skills Summit (Summit) was held earlier this month in Canberra, with leaders across government, industry, and unions attending. Significantly, the Summit saw the Government provide commitments relating to upskilling workers, addressing shortages in labour, and bargaining of agreements.
In terms of upskilling and addressing shortages, the Government has committed to immediately providing $1bn in funding for ‘fee-free TAFE’ in 2023, increasing migration numbers, and relaxing visa work restrictions until June 2023. In terms of non-immediate action, the Government has committed to discussing a 5-year National Skills Agreement, revamping and reassessing the VET qualification framework, and assessing implementing a skilled migration program.
In terms of enterprise enterprise bargaining, the Government has phrased this as ‘boosting job security and wages’. The Government has expressed desires to see small and medium businesses engage in bargaining, where of keen interest to industry, the Government has raised implementing or streamlining multi-employer bargaining, which would see entire sectors or several employers covered by one agreement. In addition to these, the Government has committed to putting a sunset on ‘zombie' agreements and amending the Fair Work Act 2009 to provide ‘stronger’ access to flexible working arrangements and ‘stronger protections’ against adverse action, discrimination, and harassment.
While the specifics of these changes will not be known until legislated, employers should be minded of impending changes and take preventative steps if required. NRA Legal is here to assist should any matters raised in the Summit affect your business.
Changes to annualised wage arrangements in the hospitality and restaurant sectors
From 1 September 2022, the annualised wage arrangement provisions under the Restaurant Award 2020 and the Hospitality Industry (General) Award 2020 are being tightened, imposing greater obligations on employers. The changes come after the Fair Work Ombudsman has determined there to be high levels of non-compliance in these sectors, with vulnerable workers being particularly at risk of exploitation.
The changes include:
- New regulations as to what modern award entitlements (such as penalties and allowances) can be incorporated in an annualised salary wage arrangement;
New restrictions on the maximum number of hours that attract overtime, that an employee can be required to work in a roster cycle, and be included in their annualised wage arrangement;
- Additional requirements for what must be contained in a written agreement for an annualised wage arrangement;
- Additional record-keeping requirements; and
- Updated requirements about how parties can terminate an annualised wage arrangement.
If you are considering placing your employee on an annualised wage arrangement and require assistance navigating the changes, please do not hesitate to contact us.
Sacking childcare worker for a critical app post found unfair
The Fair Work Commission (Commission) has compensated a worker after she was sacked for publicly criticising the director of Aussie Kids Pty Ltd (Aussie Kids), a childcare centre.
The director of Aussie Kids had sent an email to all employees expressing her disappointment at the high number of absences from staff on a particular day. The worker posted a reply which could be viewed by all employees in the company’s time and attendance system, pointing out that some workers had valid reasons behind their absences and should be commended rather than criticised. She also sent an email to the director with similar sentiment and attached a copy to her post.
After seeing the email, the director called the worker into her office and told that she was unhappy with the email and the post in the time and attendance system. She told the worker that criticisms should be raised with her privately and sent the worker home for the day. She then went onto cancel the worker’s remaining rostered shifts for that week and suspended the worker’s access to the time and attendance system without notifying her.
The worker then filed an unfair dismissal application.
Before the Commission, the director denied dismissing the worker claiming that the shifts had only been cancelled because she had an excess of employees rostered for that week. However, under cross-examination, it was found that the worker was 1 of 17 casual employees whose shifts had been cancelled and that the director couldn’t recall ever cancelling a week of shifts for any other employee.
After finding the director’s attempts to explain the treatment of the worker “wholly unconvincing”, Deputy President Ian Masson found the worker had been dismissed and rejected Aussie Kids’ claims that the worker did not meet the minimum employment period due to taking a period of unpaid parental leave.
Finally, Aussie Kids contended that the worker had “misused” the time and attendance system by posting her criticisms toward the director, but Deputy President Masson could not determine whether that conduct constituted “misconduct of any kind, let alone a kind that would justify dismissal” because the post was not in evidence. Instead, the dismissal was found unfair because Aussie Kids did not have a valid reason for dismissal and lacked procedural fairness. The Fair Work Commissioned ordered $8,400.00 in compensation payments, later reduced to $2,500.00 after the worker could not show she had taken steps to mitigate her loss by applying for other jobs since her dismissal.
While the contents of the message criticising the director were not material in deciding the dismissal unfair, this decision serves as an important reminder for employers to ensure they follow a proper and fair process when carrying through disciplinary meetings or effecting a termination of someone’s employment.
Major employer prosecuted for Victorian long service leave underpayments
Recently, the Wage Inspectorate Victoria (WIV) has flexed its muscle by commencing criminal proceedings against the Commonwealth Bank of Australia (CBA). This follows the successful investigation of Coles by WIV in 2020, which revealed long service leave underpayments.
In addition to investigating and prosecuting breaches of the Long Service Leave Act 2018 (Victoria), the main functions of WIV include:
- informing, educating and assisting people in relation to their rights and obligations under the Wage Theft Act 2020 (Vic) (Wage Theft Act);
- promoting, monitoring and enforcing compliance with the Wage Theft Act
- investigating the commission or possible commission of offences under the Wage Theft Act; and
- bringing criminal proceedings in relation to alleged employee entitlement offences.
The criminal proceedings brought against two subsidiaries of CBA are for allegedly failing to pay more than $70,000 in long service leave entitlements to 20 former employees and failing to comply with a notice to produce documents. These allegations directly relate to failing to pay out LSL entitlements on termination. CBA has said that the employees affected by the error have been paid their entitlements. The matter is listed for mention in the Melbourne Magistrate’s Court on 10 October 2022.
This is a timely reminder for all employers to ensure that they are complying with the relevant LSL Act obligations and to frequently audit their payroll processes and procedures. If you need assistance understanding your LSL obligations, please contact us.
FWC rules in favour of employee sacked for breaching fatigue management policy
FWC rules in favour of employee sacked for breaching fatigue management policy
The Fair Work Commission (Commission) has ruled that an employee was unfairly dismissed by Prestia Holdings Pty Ltd (Prestia) after frequently breaching fatigue management policies.
At the time of the dismissal, Prestia was under new management and had implemented a raft of changes regarding their expectations on fatigue management. However, they failed to notify staff of these changes. Upon discovering the employee had been repeatedly breaching their strict fatigue management policies, Prestia proceeded to issue the employee with a show cause notice and terminated his employment.
The employee argued that under previous ownership, his manager had actively encouraged and directed all employees to breach the fatigue management rules. Further, the employee claimed that previous Prestia management would threaten to terminate his employment if he rejected to work extended shifts.
Deputy President Eaton held that, “disciplining or even terminating the employee because he drove for more than 12 hours…was inconsistent with Prestia's previous tolerance of and encouragement of fatigue management breaches”.
In ruling the dismissal to be “quite unfair”, Deputy President Eaton gave consideration to the fact that the employees were not informed of the new expectations about fatigue management and that the employee was not aware he could refuse to work more than 12 hours. Consequently, the employee was awarded approximately $16,000 in lost earnings in lieu of reinstatement.
This is a timely reminder to ensure that any changes to business policies are clearly communicated amongst the workforce before they are enforced.
Termination due to home schooling commitments found to be discriminatory
The Victorian Civil and Administrative Tribunal (VCAT) has found Pearly Whites Pty Ltd (Pearly Whites), a dental practice, to have directly and indirectly discriminated against a casual dental assistant when they sacked and replaced her with a permanent worker while she home schooled her children during COVID-19 restrictions.
The dental assistant told VCAT that the director had emailed her, telling her that he had hired a new permanent worker and could no longer offer her shifts, “due to the current challenging circumstances and the need for more stability at the workplace”. She asserted that Pearly Whites selected her from a pool of five casuals for dismissal due to her family responsibilities in breach of Victoria’s Equal Opportunity Act 2010 (EO Act).
Pearly Whites maintained that it chose the assistant after receiving complaints from other employees that the assistant had spoken to them in a bossy manner two years prior. Another complained the assistant had been ignoring her. The director explained that he had not issued a formal written warning as he hoped a discussion about the isolated incidents would be enough. He further contended his decision to retain a university student over the assistant was due to their ability to work on weekends and school holidays.
Although VCAT Member, Ian Scott, recognised that the conduct issues formed part of the director’s decision for selecting the assistant, he held that her family responsibilities and subsequent limited work availability “were still substantial reasons”. He found that Pearly Whites had breached sections 8(1) and 18(b) of the EO Act by treating her “unfavorably by terminating [her] employment because she possessed the attribute of parental status…which include the characteristics of family responsibilities and limited work availability.
He also found that as the assistant was a casual employee on JobKeeper payments at the time of her absence, the cost of keeping her employed was nil.
The casual dental assistant was awarded $10,000 in economic loss based on her JobKeeper payments and $2,000 in general damages for “initial distress and humiliation”.
Employers should carefully consider the caring responsibilities of employees when choosing to terminate their employment.
Landmark decision Deliveroo driver was an employee quashed
With significant impact to the employment status of gig workers, the Fair Work Commission full bench (Commission) has quashed an earlier ruling that Deliveroo delivery rider, Diego Franco, was an employee entitled to protection from unfair dismissal.
Last May, Commissioner Ian Cambridge ordered Franco’s employment be reinstated after rejecting Deliveroo’s assertion that he was an independent contractor. However, this August on appeal, vice presidents Adam Hatcher and Joe Catanzariti and Deputy President Bryce Cross found that ruling affirming the primacy of contractual terms “rendered the finding erroneous”.
They clarified that the Commissioner had only erred in the formal sense since his understanding of the common law at the time his decision was made was correct. Between the time the Commissioner’s decision was made and the time the appeal was determined, the High Court handed down their decision in CFMMEU v Personal Contracting where it was determined that two truck drivers were independent contractors despite years of exclusive service to the business.
As a consequence, Mr Franco was also considered to be an independent contractor, a person not protected from unfair dismissal as defined by section 382 of the Fair Work Act 2009 and subsequently, the Commission had no jurisdiction to hear entertain his unfair dismissal application or grant him any remedies.
In referring to Commissioner Cambridge’s finding, it was said while, “these matters, taken together, would tip the balance in favour of a conclusion that Mr Franco was an employee of Deliveroo. As a result of Personnel Contracting, we must close our eyes to these matters.”
For now, employment protections for those engaged in the gig economy remain up in the air. However, it is expected that the new Labor Government’s first tranche of industrial relations reforms will legislate new protections for gig economy workers.
Domestic violence constituted an ‘exceptional circumstance’ for FWC extension of time
The Fair Work Commission (Commission) has granted an extension of time to an employee who brought a general protections claim against her former employer lodged 7-minutes late due to domestic violence.
Deputy President Lake heard that the employee’s de-facto partner was “emotionally abusive” and made her feel like a “prisoner” in her home, making it “difficult” to submit her application on time. Further, the employee submitted that her partner restricted her from using the computer until late at night which meant that she had to travel to her parent’s house to scan and file the applicable forms with the Commission.
The employee accepted that, upon reflection, she should have simply photographed the application and submitted the image. However, the Commission acknowledged that due to the abusive messages she had received from her partner, the stress she was experiencing, and her state of mind at the time, the employee was “unable to think logically”.
In granting the extension of time and taking all circumstances into account, Deputy President Lake concluded that the employee’s abusive home life was an ‘exceptional circumstance’. The effect of this decision meant the matter could proceed to conciliation in the Fair Work Commission.
Small business agreement termination bid required workers’ attendance at FWC teleconference
In unusual circumstances, the Fair Work Commission (Commission) has approved the termination of a small business’s agreement after Commissioner Platt invited workers to attend a teleconference where he spelled out the implications of reverting to the award.
In arguing for the termination, Community Care and Transport’s chief executive declared that since the deal’s approval in 2016, employees had been paid rates contained in the Social, Community, Home Care and Disability Services Industry Award 2010. The chief executive shared with the Commission that, “in a practical sense, there is simply no need for the agreement to continue to be in force” and “the views of all employees have been sought in person and via email, and they have strongly supported termination of the agreement.”
Commissioner Platt noted that despite the evidence submitted by the chief executive, he could not be satisfied that the information provided to the employees when seeking their views, accurately reflected the effect that terminating the agreement would have.
The Commissioner’s ‘remedy’ was to alert the employees that he would be holding a conference call to enable employees to “provide their views on the potential termination of the agreement”. It was additionally noted that the conference was used to explain, in detail, the effect that a termination would have on the employee’s entitlements and conditions of employment.
The Commissioner subsequently explained the effect of the termination to the six employees who attended the conference and they confirmed “that they were in favour of terminating the agreement”.
Commissioner Platt subsequently terminated the agreement.
We expect to see greater numbers of enterprise agreement termination applications in advance of the new federal Government’s proposal to put a sunset on pre-Fair Work agreements (otherwise known as ‘zombie agreements’). If you need advice about the status of your enterprise agreement, please contact us.
Past Briefs
The Brief – Feb 2024
The Brief – July 2023
