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It’s as certain as death and taxes when the federal government changes we get new workplace laws.

And so, it was perhaps no surprise that shortly after coming to power the labour government introduced a number of proposed changes to the Fair Work Act 2009 (Cth).  With a flurry of political activity in the weeks leading up to the final sitting day for parliament, changes were drafted, redrafted and redrafted again, such that on 2 December 2022 the proposed amendments were passed in the House of Representatives.

Now while the timing of the commencement of some of the changes will vary, what we do know is that the amendment to the Act includes over 20 changes, which is the most significant singular change to the Act since its inception.  Whilst some of these changes are relatively minor and are perhaps uncontentious, there are those, such as multiple employer bargaining, that stand to alter the workplace landscape for many years to come.

As we move into the Christmas and New Year period and as employers and employees attempt to grapple with and unpack these changes we have put together very brief snapshot of some of the changes that employers and employees should be aware of.

Multiple-Employer Bargaining

The Act will introduce requirements for employers to enter into negotiated bargaining where a common interest exists.

There are specific requirements around this, including the number of employees the employer has and the industry they operate in. For example, employers with less than 20 employees will not be required to participate nor if they operate in the building and construction industry.

Pay Secrecy

The Act will now prohibit pay secrecy clauses in employment contracts.  Furthermore, the Act also now affords an employee the workplace right to choose whether or not to disclose their remuneration and conditions of their employment.

Flexible Work Arrangements 

An employee will still be able to make a request for flexible working arrangements, however the Act will now grant an employee the ability to make an application to the Fair Work Commission to arbitrate the matter where an employer refuses the request on reasonable business grounds, and the employee is unhappy with the employer’s decision.

Fixed Term Contracts

Fixed Term Contracts will still be lawful under the Act, however the Act will now limit the number of consecutive contracts to two (2) or a maximum duration of two (2) years, for the same role.

Some exceptions to this will apply, including (but not limited to) where the employee earns over the high-income cap for the first year, or the employee has a specialised skill set that the employer does not have, but needs in order to do a specific task.

Want to know more?

The above list is by no means exhaustive and so to assist with understanding these widespread changes, we will be conducting a series of webinars in the New Year.  These will be designed to help you understand the changes, how they will impact business (both employer and employee) and steps that you can take to be ready.  We will confirm in January but anticipate these to be held on two consecutive Wednesdays – 25 January and 1 February.  Two sessions will be required to cover the volume of material.  We hope you can join us.

To secure your place at our webinars or for answers to any questions you may have now, please do not hesitate to reach out to us at, admin@andersongray.com.au.

Please contact a member of our team for advice on any aspect of the above via 1300 851 430.

Selling or purchasing a business may be an exciting milestone for a business owner, however it can be an overwhelming period of time not just for the business owner but employees as well. As the question is often asked what happens to employees? What are the obligations of new and exiting employers? What happens with employee entitlements?

What happens if a purchaser of a business doesn’t want the employees to transfer across?

If the purchaser of a business does not want employees to transfer across, or has elected to employ only a certain number of employees, the previous employer will need to terminate the employee’s employment, provide the relevant notice period under the applicable industrial instrument and (more than likely) attend to payments for redundancy as their role is no longer required to be completed.

In this instance, the purchasing employer needs to ensure that they do not have any obligations imposed on them to offer employment to the exiting employers workers.

What is a transfer of business?

Under the Fair Work Act 2009 (Cth) (the Act), a transfer of business is deemed to occur if:

1. the employment of an employee (the transferring employee) has been terminated;
2. within three months of being dismissed, the employee becomes employed by the new employer who has acquired the business;
3. the work the transferring employee performs for the new employer is substantially the same; and
4. at least one of the following applies between the two employers:
5. 1. there is an arrangement that the new employer owns, or has use of some or all of, the old employer’s assets that relate to the work the employee is completing;
   2. the work the transferring employee is completing is outsourced by the old employer to be completed on behalf of the new employer; or
   3. the old and new employers are associated entities within the meaning of the Corporations Act 2001(Cth).

Period of service

Under the Act, the new employer after a transfer of business must recognise an employee’s period of service with their previous employer for certain entitlements such as:

1. sick and carer’s leave (also referred to as personal leave);
2. requests for flexible working arrangements; and
3. parental leave entitlements.

However, if the new employer elects not to recognise an employee’s period of service for certain entitlements and informs the transferring employees of this decision prior to their employment commencing (and prior to the transfer of business occurring), an employer may not be required to recognise prior service for the calculation of entitlements such as:

1. redundancy entitlements;
2. annual leave accruals;
3. the minimum employment period required to be able to have standing to file an unfair dismissal application; and
4. notice periods.

If the new employer wishes to restart the transferring employee’s minimum employment period, they will need to issue correspondence in writing confirming this decision prior to the transfer of employment occurring.

What about annual leave?

If an employee is transferring across as a result of a business acquisition, two main situations arise. Either the annual leave accruals will be transferred across to the new employer and everything will continue as per usual or alternatively, if the two employers are not associated entities, the new employer can decide not to recognise an employee’s service with the old employer and the old employer will be obliged to pay out the employee’s untaken accumulated annual leave, accrued up to the date of the transfer of business.

What happens to the terms and conditions of employment?

When there has been a transfer of business as outlined in the Act, certain types of industrial instruments may “follow” the employee to their role with the new employer. The types of industrial instruments which can transfer across and will continue to apply are:

1. an Enterprise Bargaining Agreement or Collective Agreement which is a specific type of Agreement approved by the Fair Work Commission;
2. a workplace determination;
3. an Award which specifically names the Employer.

Depending on the circumstances, sometimes an individual flexibility arrangement or a guarantee of annual earnings may also continue to apply.

Will the new business owner get copies of the employee records?

The Regulations which accompany the Act require the previous employer to transfer the employment records for each transferring employee at the time the settlement or agreement is finalised. These records must then be kept by the new employer for a period of 7 years.

The Act also requires an employer to keep records of employment for a period of 7 years. Consequently, if employees are not transferring then the previous business owner must still retain employee records, and an employee is entitled to request of a copy of those records.

Does an exiting employer need to pay for any entitlements at settlement?

The answer to this question will depend upon the circumstances of each sale, however the general position under the REIQ Business Sale Contract is that at settlement, the Seller (or old employer) must provide an adjustment to the Buyer for 70% of the transferring employees sick leave, annual leave and long service leave entitlements (if they have been employed for five years or more).  Of course, the percentage of that adjustment is negotiable between the Seller and Buyer, and this is often done where there are unusually high levels of sick leave (given there is no certainty that employees will take that sick leave).

Ensuring employees are properly considered in the purchase or sale of a business is critical to the success of the transaction, the ongoing operation of the business and employer and employee relationship.  Unfortunately, it is an area that is often overlooked.

Please contact a member of our team for advice on any aspect of the above via 1300 851 430.

In a recent report, the Fair Work Commission has recommended the inclusion of 10 days of paid family and domestic violence (FDV) leave in 123 different awards.

This has the potential to make these 10 days of FDV available for over 2.5 million Australian workers.

The FWC stated that the introduction of the extra family and domestic violence leave will “help individuals to maintain their economic security, to access relevant services and to safely exit a life free from FDV”.

This comes amidst a reported rise in domestic violence incidents during the period since the start of the COVID pandemic.

It is proposed that modern awards be varied to provide all employees with 10 days’ paid FDV leave in a 12-month period and up to 5 days’ unpaid FDV leave on a per occasion basis. While the leave would accrue from year to year, it would not exceed 10 days. The leave would accrue annually.

The proposed FDV paid leave would apply only at this stage to permanent employees and would be paid at the base rate of pay.

Currently employees under the Fair Work Act, who are dealing with the impact of family and domestic violence can:

• take 5 days of unpaid family and domestic violence leave each 12 month period;
• take paid or unpaid personal/carer’s leave, in certain circumstances;
• request flexible working arrangements.

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.

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.

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.