Category

Workplace Rights and Entitlements

Farm workers minimum wage

Farm Workers – Welcome to Minimum Wage

By | Workplace Rights and Entitlements

A Modern Award is a document that sets out the minimum terms and conditions of employment in a particular industry, including minimum wages.

On 3 November 2021, the Full Bench of the Fair Work Commission handed down a decision to amend the Horticulture Award 2020 (the Award), which covers, amongst others, employees who undertake harvesting and fruit and vegetable picking work on farms in Australia.

It is well known that employees undertaking fruit and vegetable picking work are predominantly migrant workers, often on working holiday visas, and often undertake this work as a requirement to be granted an extension of that visa.

Prior to the decision, the Award provided for employers and employees to be able to enter into agreements based on a ‘piecework rate’. A piecework rate meant that the income of the employee was entirely based on their productivity in harvesting, meaning that they were only paid for what produce they picked. The decision acknowledged that a significant portion of pieceworkers earnt less per hour than the National Minimum Wage.

The amendment introduced a new provision providing a ‘floor’ for earnings for pieceworkers so that employees working under piecework agreements must be paid for each hour of work; and must be paid at least the minimum rate payable for their classification and type of employment under the Award.

This decision and amendment provides a safety net for employees undertaking work under a piecework agreement and is a significant positive step for employees undertaking harvesting work on farms across Australia.

Note: the current minimum rate under the Award for harvesting work is $25.41 per hour.

If you have questions as to whether your employer is complying with the terms of a Modern Award or have queries about your classification and rate of pay, please contact our office on 1300 851 430.

Workplace Vaccination Laws

Update on Legal Developments on Workplace Vaccination

By | Workplace Rights and Entitlements

Both employers and employees have work health and safety obligations when it comes to a safe working environment and the health and safety of employees. It is unlikely that a ‘one size fits all’ approach within a business would be considered reasonable from a legal standpoint when considering mandating vaccination – against covid-19 or otherwise.

Recent decisions out of the Fair Work Commission in Barber v Goodstart Learning [2021] FWC 2156, Kimber v Sapphire Coast Community Aged Care [2021] FWC 1818 and Glover v Ozcare [2021] FWC 2989 related to the issue of employees refusing to comply with directions for mandatory influenza vaccinations (without valid medical exemption).

The findings that have resulted from these cases indicate that requiring an employee to receive an influenza vaccination in higher risk industries – i.e. childcare and aged care – is likely to be considered a lawful and reasonable direction that can form a valid basis for terminating an employee’s employment.

What we are yet to see is a decision regarding an employee who has refused to be vaccinated and does not work in a ‘high risk’ industry such as aged care or childcare or provide an essential service.

Attending work around unvaccinated colleagues

Employees do have the right not to attend work or to cease work if they have a genuine, reasonable concern that they would otherwise be exposed to a serious risk to their health or safety. However, what would need to be considered in the circumstances around non vaccinated employees would likely be factors such as:

  1. if the work is to be conducted in a well-ventilated space;
  2. whether social distancing can be observed in the space;
  3. whether masks are being worn in the workplace;
  4. whether the work is to be done in an area of low case transmission etc.

It would most likely be considered a lawful and reasonable direction for an employer to direct an employee who is hesitant or refusing to attend work with unvaccinated colleagues, to attend or face possible disciplinary action.

Some people may be concerned about whether or not to get a vaccination which is being mandated by an employer for fear of suffering side effects. It should be noted that there may be the ability for an employee who has suffered side effects to a vaccination which they got as part of a mandate by their employer, to make a workers compensation or personal injury claim.

In a recent decision out of the New South Wales Personal Injury Commission in Sara v G & S Sara Pty Ltd, an employer was held liable for the death of an employee who had contracted Coronavirus while he was travelling in the course of his employment. The employee suffered from various significant symptoms and subsequently passed away as a result of contracting the virus. The Commission found that the employee’s wife, who brought the claim, was entitled to compensation as a result of the injury he had sustained during his employment.

At present, there have not been any decisions in relation to an employers expectation that employees get a particular vaccination not being a lawful and reasonable direction. However, at present, it does not appear that alternatives to vaccination have been considered either, for those who do not wish to be vaccinated for reasons other than medical grounds.

It may well be that, in the future, alternate possibilities such as a negative result from a rapid antigen test, mask wearing and social distancing, individually or in combination, would be considered reasonable measures to be taken in workplaces for unvaccinated employees to remain working.

If you are unsure about your rights at work in relation to vaccination or lawful and reasonable directions (vaccination related or otherwise), please contact us on 1300 851 430.

Covid Vaccinations in the workplace

FAQs about COVID-19 Vaccination in the Workplace

By | Workplace Rights and Entitlements

The COVID-19 pandemic has had a significant impact on employment and workplace conditions.  Now with the COVID-19 vaccination becoming more available, there is an increase in employers seeking to require their employees to be vaccinated.

Below we have answered some of the frequently asked questions about vaccine requirements in the workplace.

Can my employer force me to get the COVID-19 vaccination?

 Whether your employer is able to require you to get the COVID-19 vaccine depends on the particular circumstances of the employment and needs to be assessed on a case by case basis.

It should be noted that your employer has a duty to ensure, so far as reasonably practicable, the health and safety of its workers and any other persons on their premises (such as clients and customers).  Therefore, your employer may direct you to be vaccinated against COVID-19 to reduce the risk of COVID being contracted or transmitted in the workplace.

Your employer may direct you to be vaccinated where:

  • a specific law requires you to be vaccinated. For instance, a State or Territory public health order has been issued to that effect.
  • an enterprise agreement, award or employment contract provides that it is permitted.
  • the direction from your employer to be vaccinated is lawful and reasonable.

You may be able to refuse your employer’s direction to be vaccinated against COVID-19.  However, depending on the circumstances, your refusal could result in your employer taking disciplinary action against you, which may include termination of your employment or redeployment.

What does “reasonably practicable” mean?

‘Reasonably practicable’, in relation to a duty to ensure health and safety, means that which is reasonably able to be done in relation to ensuring health and safety.

Whether it is ‘reasonably practicable’ for your employer to direct you to get vaccinated against COVID-19, your employer is required to take into account and weigh up all the relevant matters, including:

  • the likelihood of you and other people in the workplace contracting and transmitting COVID-19.
  • the degree of harm that might result from you and other people in the workplace contracting and transmitting COVID-19.
  • the persons knowledge of contracting and transmitting COVID-19 and the ways of eliminating or minimising the risk.
  • the availability of eliminating or minimising the risk of contracting or transmitting COVID-19 in the workplace.
  • the costs associated with the ways of eliminating or minimising the risk of contracting and transmitting COVID-19 in the workplace, including whether the risk is disproportionate to the risk.

What is a lawful and reasonable direction?

 As an employee, you are obligated to follow all directions from your employer that are lawful and reasonable.  A failure to follow a reasonable and lawful direction may amount to serious misconduct and result in you being dismissed from your employment.

A direction to be vaccinated will be ‘lawful’ provided the direction complies with any employment contract, industrial instrument (such as an award or enterprise agreement), and any Commonwealth, state or territory law (for example the Fair Work Act 2009 (Cth) and anti-discrimination laws).

Your employer has an obligation under the relevant workplace safety laws to provide and maintain a working environment that is safe and without health risks.

Whether the direction from an employer to be vaccinated against COVID is reasonable, will depend on the circumstances, including the terms of the public health orders in place, the nature of the work being performed, the extent to which employees are working in close contact with other people, the risk of COVID-19 being transmitted in the location the direction is given.

A direction to be vaccinated may be reasonable where:

  • employees are required as part of their duties to interact with people with an increased risk of being infected with COVID-19 (such as, employees working in hotel quarantine or border control).
  • employees are required to have close contact with people who are particularly vulnerable to health impacts of COVID-19 (such as, employees working in health care or aged care).
  • employees interact with other persons (such as customers, other employees or the public in the normal course of employment) and there is community transmission of COVID-19 occurring in an area that your workplace is open to provide essential goods and services.
  • a state or territory has made a public health order requiring workers to be vaccinated against COVID-19 in their state or territory (such as, employees working in residential aged care facilities who were required to receive their first dose of the vaccine by 17 September 2021).

A direction to be vaccinated may be less likely to be reasonable where:

  • employees have minimal face-to-face interaction as part of their normal employment duties (such as, employees working from home).
  • no community transmission of COVID-19 has occurred for some time in the area where your workplace is located.

When can I refuse to follow a direction by my employer to be vaccinated?

You may be able refuse to follow a direction from your employer to get the COVID-19 vaccine if you have a valid medical reason for not receiving the vaccine due to a risk that it could pose to their health and safety, and you have obtained a medical exemption. Services Australia provides a list of valid medical reasons that count as a medical exemptions.

You may also be able to refuse to follow a direction to get vaccinated if your employer’s direction is inconsistent with anti-discrimination laws, which protect employees from being discriminated against because of their race, religion, sex or disability.

If your reason for not getting vaccinated is because of an attribute that is protected under the anti-discrimination laws, such as disability, then a direction from your employer to get vaccinated against COVID-19 could constitute as indirect discrimination.  In such circumstances, your employer should make reasonable adjustments to accommodate you, so you are able to perform your job.

It is, however, lawful for an employer to discriminate against you on the grounds of your disability if:

  • the condition or requirement to be vaccinated is shown to be ‘reasonable’ in the circumstances.
  • you are unable to carry out the ‘inherent requirements’ of your job.
  • the making of adjustments to accommodate you in the workplace would impose an ‘unjustifiable hardship’ on your employer.
  • your disability is an infectious disease, which could arguably also include an infectious disease that may exist in the future, and such discrimination is ‘reasonably necessary’ to protect public health.

In determining whether it is reasonable for your employer to mandate COVID-19 vaccinations in the workplace, the court may consider the public health orders in place at the time, the nature of your disability or medical condition, the nature of the work you perform and whether you have close contact with vulnerable people.

Can my employer require me to provide evidence if I have refused to have the COVID-19 vaccine?

Your employer may reasonably request that you provide evidence supporting their refusal to follow a direction to be vaccinated against COVID-19.  However, the collection of any reasons for the refusing to be vaccinated or medical evidence must be reasonably necessary, as it is considered to be sensitive information under the Privacy Act 1988 (Cth).  Therefore, your employer can generally only collect this information with your consent.

Depending on the circumstances, it may be reasonably necessary for your employer to collect the reasons and any evidence for your refusal to consider all the evidence before them in order to consider what action is to be taken, if any.

If you do not provide any evidence to your employer to support your refusal to be vaccinated, then your employer may take disciplinary action against you for failing to follow the direction.

Can I refuse to follow a directive from my employer to get vaccinated if I don’t have a medical exemption or an attribute protected under anti-discrimination laws?

If you refuse to follow a reasonable and lawful direction to be vaccinated from your employer and you do not have a good reason to refuse the direction, your employer may take disciplinary action against you, which may include the termination of your employment.  The failure to follow a reasonable and lawful direction is considered to be serious misconduct and is a valid reason for dismissal.

What if I want to be vaccinated, but I want to wait to get my vaccination?

 If your employer has made a lawful and reasonable direction for you to be vaccinated and you do not comply with that direction, your employer may take disciplinary action against you, which may include termination of their employment.  The failure to follow a reasonable and lawful direction is considered to be serious misconduct and is a valid reason for dismissal.

Next Steps

 If you have concerns about the reasonableness or lawfulness of a direction given by your employer, then please contact us at Anderson Gray Lawyers for a confidential, no obligation discussion about your situation.

We take the time to hear your story and help determine if you have a genuine or legitimate claim.  We can then offer a variety of fee options to suit your situation.

Relocating Employees

Relocating Employees

By | Workplace Rights and Entitlements

Does an employer have the right to relocate its employees, and what does a reasonable relocation look like?

This question would need to be answered on a case-by-case basis, however, there are some key factors that courts have looked at when determining whether the relocation of an employee is considered reasonable or not, including, but not limited to:

  • whether there is a clause in the contract of employment in relation to relocation;
  • whether the location of the employees’ role is an implied element of the contract of employment;
  • the distance between the two locations;
  • the employees’ family or career responsibilities;
  • the cost or financial imposition created by the proposed relocation;
  • the employer’s efforts to accommodate the employee in transitioning; and
  • disruption to the personal life of the employee and any inconvenience suffered as a result.

Case example: In the 2004 case of Han Jian Liu v NHP Electrical Engineering Products Pty Ltd , NHP proposed to close down their facility in Richmond and relocate all employees employed at this location to a Laverton factory. NHP offered to cover relocation costs and offered flexible working hours for transitioning employees. Han’s employment contract expressly stated that his place of work was in Richmond.

  • The Australian Industrial Relations Commission found that the requirement for Han to relocate resulted in a repudiation of his employment contract as NHP no longer required his role to be performed in Richmond by anyone.
  • Due to Han’s family responsibilities, the role offered to him at Laverton was found not to be comparable nor acceptable for him.
  • The role at Laverton was considered to be a new contract of employment between Han and NHP, which Han was unable to perform because of the additional distance and travel time required and the adverse impact on his family responsibilities, and consequently, was not considered reasonable alternative employment.
  • It was found that Han’s position, which was at the Richmond facility, was redundant and he was eligible to receive redundancy pay.

Takeaways:

  • if a contract of employment is silent on the location of work, the Courts will look to see if there was an implied location in the employment contract and/or if the proposed relocation is reasonable. Factors such as those outlined above may be taken into consideration when making this determination;
  • a proposed relocation of employment location could potentially trigger redundancies.

If you believe that you have been unfairly relocated, or if you would like legal advice on a possible breach of your employment contract, please contact Anderson Gray Lawyers on 1300 851 430.

COVID-19

Mandatory COVID Vaccinations – Employers Can Try But No Supply

By | Workplace Rights and Entitlements

At the start of the vaccination rollout, resentment and hostility abounded in the public comment pages of news sources at the mention of the possibility of employers making a covid vaccination mandatory for employees.  There was some highly publicised debate about the legality of such a move particularly as it remains untested in a court of law. No consensus was reached.

At present, all Covid vaccinations are voluntary, though the Federal Government does have the power to make them mandatory for all persons, employed or not.

Now and into the near future, it would be a foolhardy employer who tried to impose a mandatory vaccination policy on employees as the current limited supply of vaccinations, in conjunction with the Federal Government’s phased rollout plan, quite simply prevents employees from complying with such a requirement.

But, the situation is likely to change, if and when vaccination availability stabilises. At this time, it is probable some employers may take the step of determining employment and employability on the basis of a covid vaccination.  The legal basis for taking such action could be made under workplace health and safety laws where both an employer and employee have a duty to ensure they take all reasonable steps to ensure a safe work environment.

It is more than likely that the prevention of transmission of a highly communicable disease to work colleagues or other persons that employees interact with, by way of vaccination, could be considered a reasonable step in providing a safe working environment. It is also more than likely that preventing the contraction of the disease would be considered a reasonable step by an employee to take care of their own health and safety.  It may also give employers and employees some basis of protection from any potential negligence claims.

For existing employees, employers could incorporate this requirement by amending their policies or for new employees by inserting it as a requirement in a contract of employment.   Of course, there would be no issue for any person who has had the vaccination.

An issue would only arise if an employee or potential employee decided that they did not want to have the vaccination or could not for legitimate reasons have the vaccination.  There are already certain industries or sectors that have mandatory vaccinations requirements for employment with exemptions in certain circumstances.  It is thought that if a Covid vaccination is mandated for a particular industry or sector, then the existing types of exemptions would be applied, the most common being on certified medical grounds, but only time will tell if this occurs.

Employees who refuse vaccination and are penalised by an employer may have recourse against the employer if the directive to get vaccinated does not fall within a lawful or reasonable directive as well as provision within  the various state anti-discrimination acts and the federal human rights act which in summary provide that a person shall not be subjected to medical treatment without their free consent.  There may also be some recourse on the grounds of freedom of thought, conscience, religion and belief.

There is no one size fits all legal perspective as to the question of mandatory covid vaccination in employment.  It will always come down to the unique facts and circumstances of a particular situation in conjunction with a thorough assessment of the rights and obligations of both the employer and employee.

Hopefully this situation doesn’t arise for you, but we are always here to assist if the need arises.
If you believe you have been unfairly treated at work, discriminated against, harassed or unfairly dismissed you can contact us for a free assessment of your legal situation.  We take the time to hear your story and help you work out if you have a legitimate claim.  We can then offer a variety of fee options to suit your situation which may include No Win, No Fee or Fixed Fee arrangements.

Domestic Abuse

Domestic and Family Violence Prevention Month

By | Workplace Rights and Entitlements

Domestic and Family Violence Prevention Month is held each year during the month of May to raise awareness about domestic and family violence.

Domestic violence is a significant issue in Australia that can negatively affect many individuals, families, children and the broader community.

The Australian Bureau of Statics (ABS) 2016 Personal Safety Survey (PSS) indicates that 1 in 6 women (1.6 million) and 1 in 16 men (548,000) have experienced physical or sexual violence by a current or previous partner since the age of 15.

In 2019, one in three homicide offences and sexual assaults recorded by the police were family and domestic related.

These figures are alarmingly high.  However, these are just cases that have been reported.  Unfortunately, many cases of domestic violence remain unreported due to fear and trauma.  This is why it is important for people to be aware of the effects that domestic violence has and to encourage survivors, not victims, of domestic violence to report it.

If you are experiencing family and domestic violence or you know someone that is, then you should contact a domestic violence support service for advice.

Family and Domestic Violence Leave

Domestic violence is not only a community issue but also a workplace issue, which has a real impact on employees and employers.

Under the Fair Work Act 2009 (Cth), all employees (full-time, part-time and casuals) are entitled to 5 days unpaid family and domestic violence leave in a 12 month period.

An employee may take unpaid family and domestic violence leave if:

  • they  are experiencing family and domestic violence;
  • they need to do something to deal with the impact of the family and domestic violence; and
  • it is impractical for them to do that thing outside their ordinary hours of work.

Family and domestic violence leave does not accumulate from year to year.  Therefore, any unused leave will not roll over to the following year.

An employer and employee may agree for an employee to take more than 5 days of unpaid leave to deal wit the impact of family and domestic violence.

What is family and domestic violence?

Family and domestic violence can occur in many different ways.  It can include physical, sexual, emotional, psychological or financial (withholding money) abuse.

However, for the purposes of the Fair Work Act, family and domestic violence means violent, threatening or other abusive behaviour by an employee’s close relative that:

  • seeks to coerce or control the employee; or
  • causes the employee harm or to be fearful.

Close Relative

A close relative of the employee is a person who:

  • is a member of the employee’s immediate family, being:
    • a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
    • a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
  • is related to the employee according to Aboriginal or Torres Strait Islander kinship rule.

If you are seeking advice regarding domestic violence leave, contact Anderson Gray Lawyers to assist you with your enquiry.

JobKeeper 2

Changes to JobKeeper: What do Employees Need to Know?

By | Workplace Rights and Entitlements

On 28 September 2020, a number of changes to the JobKeeper scheme came into effect. JobKeeper is a wage supplement that is paid by the Federal Government directly to employers who then have an obligation to pass that supplement onto the employee. Employers need to demonstrate that they have had or anticipate to have a drop in revenue (usually 30%, but that can vary depending on the type of body) to qualify for JobKeeper.

Original JobKeeper

The original JobKeeper scheme was set up hastily in response to forced closures of businesses to deal with the coronavirus pandemic. Employers who qualified for the scheme had a wage supplement of $1,500 per fortnight paid to them per eligible employee. Eligible employees were full-time, part-time and regular and systemic casual employees who had been employed for one (1) year or more, and who were employed at 1 March 2020.

The effect of the JobKeeper scheme, was that businesses that qualified would have eligible employees wage subsidised no matter whether the employee was stood down, on reduced hours or working their normal hours. Importantly, the original JobKeeper had a ‘one-sized fits all’ approach, where every eligible employee’s wage was subsidised to the value of $1,500 per fortnight. This occasionally resulted in employees who had never actually earned $1,500 being paid $1,500 per fortnight as a result of the JobKeeper scheme. Importantly, if employees worked hours that entitled them to be paid more than $1,500 under a contract of employment, modern award, or enterprise agreement, the employer had to pay them the correct rate of pay pursuant to the relevant agreement.

The JobKeeper scheme also enables employers to change the terms and conditions of an employee’s employment in ways that they were not able to before the JobKeeper scheme. For example, employers were able to stand-down employees with more certainty and clarity than they would have but for the JobKeeper scheme. Employers could also direct employers to take leave in certain circumstances and direct employees to perform work that was different from their employment prior to the JobKeeper scheme. These are known as ‘JobKeeper enabling directions’ and most of these will stay in place with the new JobKeeper. It’s important to note that a JobKeeper enabling direction must be ‘reasonable’ and can be challenged in the Fair Work Commission.

JobKeeper 2 

The changes to JobKeeper predominately amend the amount of the wage subsidy that will be provided to the employer for eligible employees. There is no longer a “one-sized fits all” approach. Instead, the following rates will apply:

From 29 September 2020 to 3 January 2021:

  • $1,200 payment per fortnight for all eligible employees whose normal working hours are 20 hours or more per week; and
  • $750 payment per fortnight for employees whose normal working hours are less than 20 hours per week.

From 4 January 2021 until 28 March 2021, the payment rates will be further decreased to:

  • $1,000 payment per fortnight for employees whose normal working hours are 20 hours or more per week; and
  • $650 payment per fortnight for employees whose normal working hours are less than 20 hours per week.

In determining an employee’s ‘normal working hours’ an employer must look at the average hours the employee worked in the four (4) weeks prior to 1 March 2020.

It is important for employees to be aware that this may result in a change in their rates of pay. For example, a full-time employee who is stood down and receiving the only the JobKeeper supplement of $1,500 per fortnight from their employer can now expect to receive $1,200 per fortnight (less any tax). For employees who worked less than 20 hours per week prior to 1 March 2020, they can expect a significant change per fornight; from $1,500 to $750.

Employees should understand that their employer may not continue to receive JobKeeper after 28 September 2020. There are more stringent tests in place for employer’s eligibility. If your employer is no longer receiving JobKeeper, then JobKeeper enabled directions and stand-downs may no longer be lawful and you employer will no longer be receiving a wage subsidy in relation to your employment.  Further, employers will no longer be able to direct employees to take annual leave under the new JobKeeper scheme.

Finally, employees should be keep in mind that certain employers, known as ‘legacy employers’ will be able to make JobKeeper enabled directions in relation to stand down and conditions of work, if they meet certain criteria. What this means, is that your employer may not receive the wage subsidy, but may still be able to change your employment in ways it could not lawfully do prior to the JobKeeper scheme.

Need advice on workplace rights and entitlements? Contact Anderson Gray fo rmore infomation.

 

 

Working from home during a pandemic

Personal Wellbeing at Work & Working from Home During a Pandemic

By | Workplace Rights and Entitlements

There is no denying that the COVID-19 pandemic has demanded a more flexible side from all of us. For most employees, this has meant not only a physical change in their working environment, but also a mental and social one. Employees who have remained attending workplaces, although potentially accompanied by a few colleagues, may find themselves in more isolating positions. In addition, and perhaps even more obviously isolated, are employees who are working from home and live alone. Employees working from home face alternate challenges and distractions compared to those in their usual working environment. Some homes may be places where employees are surrounded by extended family, including children or elderly members, or people who may not be the best company to be around.

It is not unusual that as a result of the pandemic, not only work lives but many aspects of employee’s lives have been impacted. This is a time for employees to communicate with their employers about how their circumstances are changing and how they are coping, what they need from their employer and how they can be supported remotely.

Employees should be open and honest about concerns, struggles or positive points that they find have influenced them or their work. This communication will influence employees’ work lives moving forward, including coming out of this pandemic time. Employees should not be disheartened if they are feeling a somewhat off-balance or uncertain as they and their colleagues likely adapt and respond to situations in different ways.

Employee mental health and wellbeing is just as important as physical health. Employees should not hesitate to reach out and ask for help, or just check in and have a chat with each other. Some employees may already be in a situation where they are living with mental illness or may experience an exacerbation of their illness due to changes in their environment or circumstances as a result of the pandemic, and it is important to reflect on these aspects.

Some pointers to keeping conscious of your health and wellbeing as an employee:

  • Create a new routine for yourself that adjusts to your new working environment;
  • Get out of the house for fresh air and move your body as often as you can around work, as this is likely greatly lacking, particularly for those working from home;
  • Separate your work and home spaces, where possible, and ensure you completely switch off from work at the end of your work day

Take away: Just because the workplace may be an employee’s home or look a bit different to how it used to, this does not take away from the employer’s obligation to ensure a safe and healthy working environment and employees should not be discouraged from raising these topics as part of a consultation process if they have questions or concerns.

If you have concerns about workplace practices and procedures that could be affecting your wellbeing, contact the Anderson Gray team today.

work from home safety

Physical Safety at Work & Working From Home During a Pandemic

By | Workplace Rights and Entitlements

Work is a huge part of every person’s life. Since early 2020, thousands of employees have been affected by the COVID-19 pandemic. There has been a lot of adaptation, and quickly, across the employment landscape.

Work health and safety obligations and standards existed prior to the pandemic and will remain once it has passed. However, what those obligations and standards look like has had to change. This is due to the fact that, for most of us, the pandemic has changed the way we live and work. Each employee’s experience differs for many reasons, including where they live, their type of work and their personal circumstances. For some, it has meant working remotely, entering into an altered and unfamiliar working environment or managing work and care responsibilities.

At Work
Employees should be aware of what policies and procedures are in place at their workplace and any adaptations made in response to the pandemic, or as a result of government regulations. Employees should be notified by their employers, and if not, they should enquire, as to what measures have been implemented into the workplace in response to the pandemic, in order to be able to remain compliant with the government and their employer’s expectations.

Safe work practices for employees in the workplace include:

  • Ensuring they are provided with what is necessary to wash their hands;
  • Ensuring they are provided with hand sanitizer;
  • Ensuring their work environment allows for social distancing;
  • Ensuring the physical layout of the workplace or work routine is amended to ensure minimal physical contact;
  • Ensuring, if necessary, that masks and gloves are available
  • Ensuring that they have a discussion with their employer regarding travelling to and from work, including whether this means taking public transport, or if alternative options need to be considered i.e. working from home.

Working From Home
For most employees, where the industry permits, working from home has been a reality for the majority of the time since early 2020. Working from home can have both negative and positive consequences on employees and their work. Employees should ensure that, as they are physically and socially distanced from their usual workplace environment and colleagues, that they remain in regular contact with their employer and colleagues. Communication becomes even more paramount in these circumstances.

Some safe work practices for employees working from home include:

  • Ensuring they set boundaries around routine to have a break between work and home life
  • Ensuring they have access to resources that may not be readily available at their home, including stationary, headsets, office furniture etc;
  • Ensuring, if relevant, that they have flexibility around care responsibilities and work tasks and hours

Take away: Employees have a level of responsibility for their physical health and wellbeing as well and should practice good hygiene, social distancing and staying away from others if unwell. However, in the workplace, employers have an obligation to ensure a safe and healthy working environment and employees should not be discouraged from raising these topics as part of a consultation process if they have questions or concerns.

If you have a concern about your physical safety at work and would like advice, contact the team at Anderson Gray today.

Paid Pandemic Leave - Aged Care Workers

Paid Pandemic Leave – Aged Care Workers

By | Workplace Rights and Entitlements

The Fair Work Commission made a decision on Monday, 27 July 2020 allowing paid ‘pandemic leave’ to staff working in residential aged care. The decision came into effect on Wednesday, 29 July 2020.

WHO

This leave would be available to employees who work in the aged care industry and are covered by:

  • the Aged Care Award 2010;
  • the Nurses Award 2010; and
  • the Health Professionals and Support Services Award 2010.

This includes full-time, part-time and eligible casual employees. To be an eligible casual employee, a casual needs to have been employed on a regular and systematic basis.

WHAT and WHEN

Employees are entitled to up to 2 weeks paid pandemic leave if they cannot work (including from home) because:

  • they are required to self-isolate or quarantine (including while waiting for a coronavirus test result);
  • they are showing symptoms of coronavirus and have been advised to self-isolate or quarantine;
  • they have come into contact with a person suspected of having contracted coronavirus; or
  • measures are taken in response to coronavirus (e.g. closing a facility).

HOW

Conditions on paid pandemic leave:

  • employees must be aged 17 or older and be likely to have worked during the self-isolation period;
  • employees need to have already been tested for coronavirus for each occasion of leave, or agree to be tested asap (if they don’t agree, they aren’t entitled to take the leave);
  • employees do not have to accrue the leave, it is available in full immediately;
  • employee’s can’t take paid pandemic leave if their situation means they’re entitled to take paid sick or carer’s leave instead;
  • employee’s can’t take the leave if they’re on workers compensation benefits because of contracting coronavirus; and
  • the leave needs to start prior to 29 October 2020 (but can finish after this date).

HOW MUCH

  • Full-time employees will be paid their base rate for their ordinary hours of work (the same as taking normal sick leave);
  • Part-time employees will be paid the higher of:
  • their agreed ordinary hours or work; or
  • an average of their weekly ordinary hours of work for the previous 6 weeks; and
  • Casual employees will be paid an amount based on an average of their weekly pay over the previous 6 weeks.

There are other conditions surrounding the taking of paid pandemic leave, including notice and evidence requirements.

If you believe you are eligible or are unsure and would like to find out, please contact Anderson Gray Lawyers on 1300 851 430.

casual or full-time employment

Is Casual Employment Really Casual Employment?

By | Workplace Rights and Entitlements

A recent decision of the Federal Court has blurred the lines between permanent and casual employment with a casual worker being found to be eligible for entitlements usually reserved for permanent employees.

Around 20 per cent of Australian workers are engaged as casuals. As a result of this casualisation of the workforce many workers are now in a situation where they are working full time hours on singular or multiple contracts of employment without the security or benefits of full time on-going employment.

Casual employees are not generally entitled to paid personal leave, annual leave, or for public holidays when not worked. In consideration for not being eligible for these entitlements casuals are supposed to be paid a higher hourly pay rate than a permanent employee.

However, there have now been two cases Workpac v Skene and Workpac v Rossato which have examined and determined that just because an employer says an employee is a casual in a contract of employment does not mean that the employee is actually a casual. In each of these cases the courts found that the two employees were not casuals.

These cases were in relation to a labour hire company however, the rulings are not limited to labour hire company employees and the principles can be applied to the facts of any casual employment.

In order to consider whether a casual employee is really a casual employee some of the facts which are now necessary to look at are:

  • how the rate of pay is set out in a contract of employment and whether it specifies a separate casual loading rate;
  • whether the pay rate is in accordance with relevant casual rates provided by the applicable modern award or enterprise agreement;
  • the commitment given by the employer to the providing work and whether this work was stable, regular and predicable;
  • the length of time the employee has been working with the employer;
  • whether there was regular rostering; and
  • where there is an ongoing contract or a number of contracts.

If there is no written contract of employment the same principles can still be applied.

The current legislation and the current rulings in the Workpac cases may give some employees, the right to be correctly classified as permanent employees and be paid or back paid statutory leave entitlements, though it is noted that Commonwealth has signalled that it may look at amending the legislation on which the Workpac rulings are based.

Should you think that your casual employment might be permanent employment please contact us for a free case evaluation.

Jeremy Lee was a casual employee who was unfairly dismissed

Casual Conversion Clause

By | Workplace Rights and Entitlements

Are you a long-term casual employee? Do you know you probably have the right to request that your employment be converted to a part-time or full-time basis?

In July 2017, the Full Bench of the Fair Work Commission (‘the Commission’) ruled that regular casual employees who were employed for more than 12 months and met certain criteria had the right to request that their employment be converted to full-time or part-time employment.

The Commission ordered that the new casual conversion clause be inserted into 85 modern awards from 1 October 2018. If you are covered by a modern award, it is likely that the casual conversion clause applies to your employment.

Criteria

In a nutshell, the casual conversion clause gives ‘regular’ casual employees the right to request to their employer that their employment be converted to part-time or full-time. A regular casual employee is defined as:

…a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.

 

The Request

A casual employee’s request for conversion must be in writing and the employer must respond to the request in writing within 21 days. The employer can only refuse the request on ‘reasonable grounds’ and after consulting with the employee.

Reasonable Grounds

As stated, an employer can only refuse a casual employee request for conversion on ‘reasonable grounds.’ The casual conversion clause sets out a number of factors that include reasonable grounds for refusal. These include:

  • it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part-time employee in accordance with the provisions of this award – that is, the casual employee is not truly a regular casual employee;

 

  • it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;

 

  • it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months;

 

  • it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.”

 

Are you a regular casual employee?

If you think you are a regular casual employee, it may be worth considering whether you should exercise your right to request conversion to full-time or part-time employment if you are covered by a modern award. If you do make a request and your employer refuses your request, you should consider whether your employer has made its refusal to you in writing, within 21 days, and whether your employer has applied the factors that can be considered as reasonable grounds for refusal. If you feel your employer has not complied with its obligations under the casual conversion clause, you should consider speaking to an employment lawyer.

what is unfair dismissal?

Heavy fines for franchisee’s record keeping breaches

By | Workplace Rights and Entitlements

A former Franchisee operator and the company’s owner have been handed down large penalties for a number of record keeping breaches after a Fair Work Ombudsman investigation.

Background

In Fair Work Ombudsman v Aulion Pty Ltd (‘Aulion’) and Peter Dagher were ordered to pay pecuniary penalties of $80,190.00 and $16,038.00, respectively, after Judge Street of the Federal Circuit Court found that they had falsified employee records related to pay and failed to provide payslips on time.

The Fair Work Ombudsman brought the Application in the Federal Circuit Court alleging that Aulion and Mr Dagher had engaged in various breaches of the Fair Work Regulations 2009 that related to the accuracy and keeping of employee records.

The Ombudsman had previously used its powers under the Fair Work Act 2009 to audit Aulion when it issued notices to produce various documents relating to employees pay in 2016. Aulion provided the documents, however, the Ombudsman suspected that the documents it received were not accurate and continued to investigate. After reviewing bank, superannuation and accounting records, the Ombudsman brought action in the Federal Circuit Court against the Aulion and Mr Dagher.

In Court, Aulion admitted that it had misled the Ombudsman and provided false documents and records. Mr Dagher was involved in the contraventions. The Ombudsman Natalie James, said, “False records at this Caltex outlet were so bad we couldn’t properly audit the biz to determine underpayments. Pleased even higher penalties will apply in the future.

Penalties

Previously, the largest penalty that a court could impose for breaches related to employees wages and entitlements was $10,800. After the recently implemented Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, the maximum is now $108,000. The Ombudsman, Natalie James, said that the penalties were “the highest penalty yet in court action solely for record keeping & payslip breaches.

The large penalties reflect the impact the amendments will have on Courts ability to penalise employers breaching civil remedy provisions of the Fair Work Act 2009 that relate to record keeping. The amendments mean that multiple and continuous breaches of record keeping provisions give Courts discretion to invoke larger penalties.

Lessons for employers (and employees)

The most important take-away from the case is that employers ensure that they maintain and manage their employee pay records with the utmost care. The Fair Work Ombudsman’s combination of powers in relation to production of documents and the higher penalties that Courts can now order against employers and individuals involved in contraventions means that the risk for employers who aren’t willing to comply with their obligations is significantly higher.

Employees should be encouraged that the Ombudsman and the Commonwealth Parliament seem more and more willing to ensure that their interests are being protected under the Act.

Judge Street is yet to publish reasons for the decision.

Need help with an unfair dismissal claim?

sexual harrassment

Family and Domestic Violence Leave to be Recognised in Modern Awards

By | Workplace Rights and Entitlements

Family and Domestic Violence Leave to be Recognition in Modern Awards

Domestic violence is a significant issue in Australia that effects many individuals and has a real impact on employees and employers.

The Fair Work Commission has recognised the detrimental effect of family and domestic violence.  In light of this, the Commission is in the process of including unpaid family and domestic violence leave in modern awards as it understands that this is not only a community issue but also a workplace issue.  As this affects your workplace rights, Anderson Gray wishes to take this opportunity to update you on the process of this important inclusion to your workplace rights.

The Commission has found that existing leave entitlements may not meet the needs of an employee experiencing family and domestic violence.  Further, that a specific response needs to be devised to deal with this issue in the workplace and that there is no existing workplace right for an employee experiencing these issues to be absent from the workplace to find alternative accommodation or attend urgent court proceedings.

At this time, whilst the Commission did not agree with providing paid family and domestic violence leave, the Commission has held that employees should be able to access paid personal/carer’s leave for family and domestic violence reasons.

The Commission along with interested parties are currently developing a model term that covers these issues to be included in modern awards.

Anderson Gray will keep you updated as the Commission moves forward with this important issue. We are lawyers for employees and are here to help you.

If you are experiencing family or domestic violence contact Anderson Gray Lawyers, they are the national sexual assault, domestic family violence counselling service.

working overtime questions

Working Overtime? What are your Rights?

By | Workplace Rights and Entitlements

Know Your Rights with Overtime Work

Your employer has asked you to stay back to work a few more additional hours this week – can they do this?

Your employer can request that you work overtime, but only if it is reasonable in the circumstances.

The maximum weekly hours of a full-time employee are 38 hours per week. The maximum number of hours of an employee who is not a full-time employee is the employee’s ordinary number of hours per week, which also must be less than 38 hours.

Overtime is the work that you perform for your employer that is:

  • over your ordinary hours of work (such as over 38 hours);
  • beyond your agreed upon number of hours; and/or
  • outside the spread of ordinary hours. This is the hours in the day that your ordinary hours can be worked.  These are set out in your applicable award (such as between 8:00am and 6:00pm).

To determine whether overtime is reasonable includes the following considerations:

  • if there is a risk to your health and safety;
  • your personal circumstances and family responsibility;
  • the operational needs of your workplace;
  • whether you are entitled to receive compensation such as overtime rates and penalty rates for working overtime;
  • the nature of your role and level of responsibility;
  • how much notice is given to you by your employer; and
  • how much notice you give your employer that you cannot work the overtime (if you refuse).

If an award applies to your employment or an enterprise agreement, this instrument will set out the applicable overtime rates or penalty rates that are to be paid to you and when these payments apply.  Make sure you review the instrument that applies to you to ensure you know the applicable rates of pay.  Even if you have an individual contract of employment and it does not say anything about an award, this does not mean that an award does not apply to you.  So it is a good idea, to check what award may apply to your employment to make sure that you know your minimum entitlements.

You may have an employer that pays you above the minimum rate of pay set out in the applicable award.  However, this does not mean that you are not entitled to receive additional payments for overtime.  There are certain rules for ‘all-inclusive’ rates of pay that your employer must implement.  If your employer has not set out in writing what exactly is included in your rate of pay, then you may be entitled to a separate payment for any overtime worked despite the above award rate of pay paid to you.

If you are not sure about your entitlements, do not hesitate to contact Anderson Gray, we are lawyers for employees and are here to help you.

know how much you should be paid

Are you a Trainee or Apprentice? Do you Know What you Should be Paid?

By | Workplace Rights and Entitlements

Knowing How Much You Should Be Paid

If you are a trainee or apprentice you ought to check that your employer is paying you the correct rate of pay.  If a modern award applies to you, then this workplace instrument covers your employment and sets out the minimum wages that apply to you (unless an enterprise agreement applies to you).

In some states, employers have been paying wages according to a state instrument.  For example, in Queensland, many employers would pay their apprentices with respect to the Order of Apprentices’ and Trainees’ Wages and Conditions (Excluding Certain Queensland Government Entities) 2003.  Queensland Awards and Orders that were Notional Agreement Preserving State Awards (NAPSA), such as the above Order, allowed for State Awards created prior to 27 March 2006, to continue to operate post the introduction of the modern awards system by the Federal Government in 2009.

In 2017, this view changed when the Fair Work Commission found that these instruments are no longer in force and have not continued to operate post 1 January 2014.

In light of this, your employer may not be paying you correctly.  If you think this may apply to you, check your applicable modern award at www.fwc.gov.au to confirm the correct rate of pay.

If you are not being paid correctly and are receiving a lesser amount then you are entitled to you may have an unpaid wages claim.  Did you know that you have six years in which to make an unpaid wage claim?  This means that you can make a claim for unpaid wages that goes back up to six years.

If you need any assistance, do not hesitate to contact Anderson Gray lawyers here in Melbourne, Sydney, and Brisbane – we are here to help.

taking annual leave

Do you Know your Annual Leave Rights?

By | Workplace Rights and Entitlements

Understanding your Rights to Annual Leave

Most modern awards now contain additional annual leave provisions that include the ability to:

  • cash out annual leave;
  • take annual leave in advance;
  • manage excessive annual leave balances; and
  • make payment for annual leave during the period of leave.

You are most likely aware that the Fair Work Commission varied a number of modern awards, but do you know all the changes and how they may apply to you?

Cashing out annual leave

You and your employer can make an agreement in writing to cash out your annual leave.  Each time an employee wishes to cash out their leave, a new agreement must be made between you and your employer.  The agreement must state the amount of leave to be cashed out and the amount of the payment to be made to you, including the date the payment is made.

It is important to note that the payment made to you must not be less than the payment you would have received if you had actually taken the period of leave.

However, there are some rules in relation to how much leave you are able to cash out.  The agreement to cash out annual leave must not leave you with an accrued annual leave entitlement of less than four weeks, and you are not permitted to cash out more than two weeks of leave in a 12 month period.

Taking annual leave in advance

You can take a period of paid annual leave before you have accrued an entitlement to take the leave if:

  • your award says you are able to; and
  • your employer agrees in writing to the advance payment.

The agreement between you and your employer must state the amount of the leave to be taken in advance and the date on which the leave is to start.

So you are aware, if your employment ends prior to you accruing the amount of the entitlement that you have taken in advance, your employer has the right to deduct any money owing from your final pay.

Managing excessive annual leave balances

If you have accrued an ‘excessive’ leave balance of at least eight weeks, you and your employer can reach an agreement to reduce your excessive leave balance.

If you and your employer cannot reach an agreement, then you can make a request in writing that you take a period of paid annual leave. However, you must have had your excessive leave balance for at least six months and your employer must not have issued a direction that would result in your excessive leave accrual being eliminated.  Any request must not result in your accrued annual leave balance being less than six weeks.

Your employer can also direct you to take annual leave in writing.

Anderson Gray lawyers are lawyers for employees in Sydney, Australia.  We are here to help you. Contact us today if you have any questions about your workplace entitlements.

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

Don’t Suffer in Silence! You CAN Ask Questions about your Entitlements

By | Unfair Dismissal, Workplace Rights and Entitlements

Enquiring of your Entitlements

The Fair Work Act provides that an employee is entitled to make a complaint or enquiry about their employment. It also provides that an employee should not be treated adversely because they made a complaint or enquiry about their employment.

A recent decision handed down by the Federal Circuit Court has identified that the court is willing to impose hefty penalties on employers (and individual directors) for treating an employee adversely after the employee made a complaint about his wages. In the case of Fair Work Ombudsman -v- Windaroo Medical Surgery Pty Ltd & Ors [2016] FCCA2505 (28 September 2016), Judge Jarrett penalised the Surgery and two of its directors because:

1. they threatened to stop paying a Doctor who had complained to the FWO about not being paid;

2. they did stop paying him until the Doctor resigned a few months later.

The Surgery and its Directors were collectively penalised over $50,000 for their involvement in the poor treatment of their employed Doctor.

The message here is that, as an employee, you have the right to complain to your employer about your workplace entitlements. If you suffer a loss because of that complaint, then the employer will be taken to have breached certain provisions of the Fair Work Act and you are likely to be entitled to compensation.

If you think that this has happened to you, then please give us a call.

AGL Team

Lawyers for Employees – specialising in unfair dismissal claims


 

Bullying young people in the workplace all too common

By | Workplace Rights and Entitlements

October is safe work month.

I thought it was an opportune time to blog about young people at work. Young adults – aged between 15 and 25 years old – make up a significant proportion of today’s, modern work force. Quite alarmingly, a recent report (referenced in today’s Sydney Morning Herald) has suggested that 50 per cent of young adult workers had experienced bullying and harassment at work.

A number of young adults surveyed indicated that bullying and harassment (including sexual harassment) was so common place, that many instances were treated by employers as a ‘non-issue’.

Whilst the legislators have progressed the law to the point of making bullying and harassment unlawful, it seems that not enough is being done to re-enforce the message to employers that ‘bullying and harassment is unlawful’. It is also un-safe and has the potential to seriously affect a young adults’ capacity to remain engaged in meaningful employment.

Importantly for young adults at work, you have the right to complain to your manager or your local workplace health and safety officer about legitimate unsafe work practices, including instances of bullying and harassment. The aim of any such complaint should be to try to resolve your concerns in a meaningful and respectful way.

And if that doesn’t work, we’re always here to help you in any way we can.

The AGL Team

Lawyers for employees – specialising in unfair dismissal


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