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Menulog’s bid for their own Industry Award fails

By | Workplace Rights and Entitlements

The Full Bench of the Fair Work Commission has found that the Road Transport and Distribution Award 2020 (the Road Transport Award), which covers short distance truck drivers, also covers and applies to riders and drivers employed by Menulog.

The decision came as a blow to Menulog, who announced in April 2021 that it wanted to adopt an employee based model, rather than engaging its riders and drivers as independent contractors.

On 24 June 2021, Menulog made an application to the Fair Work Commission (FWC) to create a new On Demand Delivery Industry Award, as it argued the 121 modern awards registered with the FWC did not cover or apply to the “on demand delivery services industry”.

The FWC found that Menulog’s business activity of “the collection and delivery of food, beverages, goods or any other item” fell within the definition of ”road transport and distribution industry” in the Road Transport Award.

The Full Bench said that the function of “collection and delivery” by road referred to in Menulog’s proposed industry award, was the same as “transport by road” in the Road Transport Award.  Also, Menulog’s proposed definition of “food, beverages, good or any other item” fell within the expression of “goods, wares, merchandise or anything whatsoever” in the Road Transport Award.

As a result of this decision, the Full Bench said the next step was for consideration to be given as to whether the coverage of employer and employees in the “on demand delivery industries” in the Road Transport Award meets the modern award objectives of the Fair Work Act.

If you have any questions or require advice in relation to the classification of independent contractors and employees, please contact Anderson Gray Lawyers on 1300 851 430 to speak with one of our employment lawyers.

Casuals: Should you be a permanent employee?

By | Workplace Rights and Entitlements

The changes made to the Fair Work Act on 26 March 2021 gave most casual employees the right to have their employment converted from casual to permanent full time or part time employment.

The obligation is now on employers (15 or more employees) to make an offer to convert their casual employees to permanent employment if the casual employee has worked for the employer for at least 12 months and during the last six months has worked a regular pattern of hours.

An employer cannot dismiss or deliberately change, vary, or reduce a casual employee’s hours to avoid their obligation to offer conversion to permanent employment.

The employer must make a written offer to the casual employee within 21 days of the employee reaching the 12 month anniversary of their employment. There is no obligation on a casual employee to accept the conversion offer.  If the casual employee wants to accept the offer of permanent employment they must do so within 21 days of receiving the conversion offer and their acceptance must be provided to the employer in writing.  A verbal acceptance is not sufficient at law.

There are a number of specified reasons provided for in the Act where an employer may decide not to offer conversion to a casual employee, but the employer must write to the employee within the 21 day period of the 12 month anniversary of employment setting out its reasons for not offering the conversion.

Casual employees employed by small businesses (under 15 employees) have the right at their 12 month anniversary to make a request in writing to their small business employer to have their casual employment converted to permanent.  The employer can agree and must then provide a new contract of employment to the employee.  If the employer wants to refuse the request, they must consult with the employee and then provide in writing the reasonable grounds for refusal.

Most employers do the right thing by their employees.  But when they don’t sometimes legal assistance is required.

If you are a casual employee and have experienced or do experience any of the following:

  1. You have been employed for 12 months or longer, work a regular roster or pattern of work, have not been offered conversion to permanent employment or your employer has decided not to offer you permanent employment without providing reasons or by reasons that don’t seem correct or reasonable; or
  2. You have yet to reach your 12 month anniversary and there is a sudden unexplainable change to your hours of work leading up to the 12 month anniversary of employment; or
  3. you are reaching your 12 month anniversary of employment and your employer dismisses you for no good reason, or reduces your hours of work to zero;

…then Anderson Gray Lawyers may be able to help resolve the issues with your employer or assist you in taking any appropriate legal action to enforce your legal rights.

Please contact us for a free case assessment.  Please note, for any dismissal related matter any application to be made to the Fair Work Commission must be made within 21 days from the date of dismissal.

Am I being paid enough? What is my right rate of pay?

By | Workplace Rights and Entitlements

Am I getting the right amount of pay?

You would think this is a simple question, but it’s not.  There is no doubt that today’s workplace laws are complicated.  So it is no wonder that employees have difficulty in trying to work out what their rate of pay should be in return for a days hard work.

To work out the minimum rate of you are entitled first requires you to work out whether or not you are covered by an award.  An essential feature of an award is to prescribe the rate of pay for all employees covered by that particular award.

While trying to work out what particular award applies to you is difficult, we have set out below a simple process that is designed to give you some guidance.  So:

  • Step 1, review the award title to see if it might apply. For example, employees in the construction industry, might start by looking at the Building and Construction Onsite Award 2010, because, as the name suggests, it applies to that industry.
  • Step 2, go to clause 4 of the Award (it’s the same clause for all Modern Awards) and look to see whether the award covers the industry in which your employer operates. If it does, then that award is likely to apply to you.  If the award does not cover the industry in which your employer operates, then you’ll need to look at other awards to see if they might apply.
  • Step 3, turn to the classification definitions (usually found at Appendix B), and read through the classifications to identify the classification that best fits the actual duties you do on a day-to-day basis.
  • Step 4, check the rate of pay that relates to your classification of work in the body of the Award.

You must remember that the award sets out your minimum rate of pay.  So if you are not being paid the amount that relates to your classification of work under the award, then you might be being underpaid.

If you have a contract of employment that also sets out a rate of pay, then the rate of pay stipulated in the contract must be equal to or more than the rate you are required to be paid as set by the award.  If the contract states that your pay is less than the award rate, then again, you might not be being paid the right amount.

If the contract amount is more than the award rate, then for your ordinary hours of work, you’re probably going to be being paid the correct amount.  However, if you work more than 38 hours per week (on a full time basis), or more than the agreed hours (if you are a part-time employee), then the rate of pay needs to adjust to take account of your entitlement to overtime and/or penalty rates.

If you have any questions contact one our experienced employment lawyers.

Photo by James Sutton on Unsplash