New Safety Legislation Extends Beyond Employees

By Paul Moss

Principal Workplace Relations Advocate Policy

WA’s new work health and safety legislation will extend a businesses’ responsibilities to provide a safe workplace beyond its own employees, requiring all businesses to consider the wellbeing of others affected by their operation.

The Workplace Health and Safety Act 2020 (WHS Act) will bring our workplace safety laws broadly in line with the national framework that has been adopted in all other states and territories (with the exception of Victoria) since 2012.

At its simplest level, the WHS Act requires businesses to, so far as reasonably practicable, provide a safe workplace.  This is consistent with the core obligation under the existing Occupational Safety and Health Act 1984 (OSH Act).

However, the WHS Act extends this obligation beyond the employer and employee relationship and will require businesses to take reasonable steps to ensure the health and safety of contractors and their employees.

For the real estate industry, this raises a key question of how to manage contractors involved in the maintenance of rental properties.  For specialised contractors, such as electricians and plumbers, this obligation might be met by:

  • confirming the contractor has the necessary expertise and appropriate licences for the work;
  • verifying they have their own systems in place for carrying out work safely;
  • checking that they are carrying out work safely in accordance with their procedures;
  • raising any concerns, or taking action, where work is being carried out safely.

The biggest concern rests with smaller contractors that do not have their own safety policies and practices in places.  This will require real estate agents to have a greater level of oversight and control in the manner in which the contractor performs their work.

The WHS Act also requires greater consideration of the safety of clients and visitors, to ensure that the health and safety of others is not put at risk from work carried out as part of your business.

These changes will require most real estate businesses to consider a wider range of safety implications and adapt your policies to suit.

The new legislation will not take effect until the second half of 2021, with the supporting regulations still being developed.  REEFWA will provide members with further information on the impact of the new legislation over the coming months.

Managing Workplace Festive Events – What Employers Need to Know

The festive season is well and truly upon us, and for many employers, this means hosting events to celebrate the year that was, and what a year it has been. Whilst it is natural for employers to want to reward employees with an end of year event, there are often associated risks in doing so.

This article explores how employers can best prepare for, and manage employee behaviour during end of year functions to not only ensure a safe, enjoyable event for those attending, but could also to help protect the business against certain claims such as, but not limited to; workers compensation, sexual harassment, and discrimination. Employers should expect the best but prepare for the worst.

Anti-discrimination and workplace health and safety laws in Australia impose a duty of care on employers to ensure the health and safety of employees, not only whilst they are performing work, but also at events outside of work where there is a clear connection to the workplace. If an incident occurs at a workplace event, the scope of accountability can extend to not only the business but any individual who could be held reasonably responsible for the event, including directors and human resources. As a result, all reasonable steps must be taken toward ensuring the health and safety of employees, both physically and mentally, before a workplace event.

Case Examples

Sexual Harassment

In the case of Vegara v Ewin [2014] FCAFC 100 (12 August 2014), the respondent was found to have sexually harassed the applicant over several locations, the first of which was the office. The applicant had repeatedly sought to discourage the advances of the respondent and attempted to resolve the issues outside of the workplace at a nearby pub. In the preceding days, the pair attended a workplace event where the applicant became intoxicated, and following the event the pair engaged in what the applicant deemed as ‘unwanted sexual assault’. One of the main issues of the case was whether the ‘unwanted sexual assault’ occurred whilst ‘at work’. The Federal Court of Australia – Full Court found a reasonable connection to the workplace given the sexual advances initially begun within the workplace. The respondent appealed the decision however his appeal was later dismissed.

Workers Compensation 

For a claim to be compensable under workers compensation laws the incident would need to occur in the ‘course of employment’.  In the case of Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015] ICQ 016 (29 May 2015), the employee attended a Christmas work party held near the Noosa river where food and drinks were supplied by the employer. Employees were not obligated to attend the event. A few hours into the event the employee dove into the Noosa River and sustained critical injuries. The employee, unfortunately, died as a result of the injuries. The injuries and resultant death were found to be non-compensable due to the lack of inducement by the employer regarding the action taken by the employee. The court outlined the action did not occur during the course of employment. The decision of non-compensable injury was upheld on appeal.

Reducing Risk of Reputational and Legal Liability

Reducing liability as an employer should be a key consideration when organising events. Implementing comprehensive company policies and procedures to establish appropriate behavioural expectations, both in the immediate setting of the workplace and at offsite work events, will help to prevent and reduce incidents from occurring. Consistent, thorough, and documented communication to employees about company policies and procedures is required to help protect employers from workplace related claims. A Workplace Events Checklist is provided below to assist with the finer details of risk prevention.

In cases where the preventative measures did not provide a catch-all, employers need to promptly and thoroughly investigate the resulting incident/s. For more information on how to prepare for the upcoming festive function or for advice on managing poor behaviour at such events, contact the CCI HR experts at the Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com

A Workplace Functions Checklist has been uploaded into Templates and Forms section of the website. https://reefwa.com.au/templates-forms/

Abandonment of Employment

Andrew Emerson

Employee Relations Officer

When an employee has failed to present for work without adequate explanation or prior authorisation, an employer may assume that they have abandoned their employment. However, it would be unwise to believe this without consideration of the circumstances surrounding their absence and steps made to contact the employee.

Abandonment occurs when the employee has been absent from work without any communication as to the reason for their absences, and by way of conduct, has repudiated their employment. When considering whether an employee has abandoned their employment, the employer should take all reasonable steps to contact the employee and determine the employee’s reason for their absences and intentions regarding their return to employment. This is intended to rule out cases where, for example, an employee is in a situation where they are unable to contact the employer but has a valid excuse as to why they are absent. For example, if they are in hospital and unable to return or answer attempts to contact them, and have no one to contact their employer on their behalf.

Illustrative Example

The case of Bienias v Iplex Pipelines Australia Pty Ltd (the Iplex decision) illustrates the risks of jumping the gun in assuming the employee had abandoned their employment. Bienias, following a workplace investigation, took a period of unauthorised absence from their employment due to mental health. At the time, the Manufacturing and Associated Industries and Occupations Award 2010 (the Award) contained a provision which determined abandonment of employment as an absence that lasts at least 14 days where the employee is unable to “established to the satisfaction of their employer that they were absent for reasonable cause”.

While the employer tried contacting Bienias by phone, letter, and even organised a police welfare check, they could not establish contact and determined after the 14 day time frame that Bienias had abandoned their employment, in accordance with the Award), and Iplex Pipelines terminated their employment. The Full Bench of the Fair Work Commission took the view that Iplex was the party that moved to terminate the employment, not Bienias, and as such Bienias was unfairly dismissed from his employment.

Considerations

While the provisions for abandonment of employment were removed from modern awards, following the Iplex decision, the warning of rushing the abandonment process and action of terminating the employee, rather than accepting their repudiation is still relevant.

When an employer notices an employee has not shown for work (i.e on an unauthorised absence), the first objective of the employer should be to establish contact with the employee and determine the reason for their absence. This may be done through many forms available to the employer and may depend on what is the normal methods of contact including phone, email, contact to the next of kin, SMS, registered post to the employees’ last known address, and possibly police welfare checks.

An employer should also consider circumstances surrounding the absence such as if the employee was in an area with poor ability to contact the employer immediately before the absence. Each attempt by the employer to contact the employee should be documented and the employer should give the employee enough time to receive and respond to the attempt before any additional attempts.

If during the course of trying to contact the employee, the employee has established contact with the employer, the issue may change into a disciplinary matter when no valid reason is given for the absence.

Furthermore, employers should check for additional conditions that may need to be met in relevant awards, enterprise agreements, or other industrial instruments.

Managing employees on an unauthorized absence may be hard. It can be even harder determining when abandonment occurs. In either case contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com.

High Court Decision on Accrual of Personal Leave

By Jenny Thomas 

Employee Relations Adviser, Employee Relations Advice Centre

In a ground-breaking decision on accrual of personal/carer’s leave under the Fair Work Act 2009 (Cth) (FW Act), the High Court of Australia (HCA) has overruled last year’s contentious decision by the Full Court of the Federal Court of Australia (FCAFC). Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 reconfirms that employees are entitled to 10 “notional days” of personal/carer’s leave a year based on a standard working week of 38 ordinary hours.

In the 41-page decision, the HCA, with a 4-1 outcome in favour of the “notional day” construct, set aside the order made in Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138 (Mondelez FCAFC decision) and in its place declared that:

“The expression ’10 days’ in s 96(1) of the Fair Work Act 2009 (Cth) means an amount of paid personal/carer’s leave accruing for every year of service equivalent to an employee’s ordinary hours of work in a week over a two-week (fortnightly) period, or 1/26 of the employee’s ordinary hours of work in a year. A ‘day’ for the purposes of s 96(1) refers to a ‘notional day’, consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week (fortnightly) period.”

In coming to this decision, the HCA expressed that it was necessary to construe “10 days”, in section 96(1) of the FW Act in the context of the FW Act, as a whole and take into account relevant extrinsic materials, Parliament’s intended approach and the legislative history. Coming to this conclusion the HCA relied on:

  •  The “notional day” construction in the Workplace Relations Amendment (Work Choices) Act 2005 (WPR Act);
  • References to employee’s ordinary hours being central to the paid personal leave entitlement made in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth); and
  • Continuity between the WPR Act and the FW Act, when comparing the two sets of provisions.

The HCA ruling rejected the “working day” construction adopted by the majority in the Mondelez FCAFC decision in which 10 days of personal leave was taken to entitle all employees (irrespective of hours worked) to 10 x 24-hour periods off work each year.  In reaching this finding the HCA stated:

  • This construction is inconsistent with the purpose of section 96 of the FW Act and the objectives of the FW Act of fairness, flexibility, certainty, and stability;
  • It would lead to inequalities between employees with different work patterns which would be unfair; and
  • Part-time employees would be entitled to the same amount of leave as, or more than, full-time employees.

The HCA’s judgment preserves widespread industry practice and restores a common-sense approach to employees and their paid personal/carer’s leave entitlements.

The Fair Work Ombudsman has since updated the Fair Work Ombudsman Information Statement to reflect this decision.

If you would like more information on this subject or any other matters, please contact the CCIWA Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com 

Transfer from full-time to part-time triggers redundancy pay

Erin Verzandvoort

Senior Employee Relations Adviser

As the COVID-19 pandemic continues and changes are made to the JobKeeper scheme, employers needing to make difficult decisions to manage the adverse economic conditions, should be careful when making changes to their workforce, particularly where those changes are significant.

The Federal Court of Australia (FCA) has confirmed, in Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867 (the decision), that a lack of consent to reduce an employee’s hours of work can give rise to an entitlement to redundancy pay, even where the employee continues to work for the employer.

The case

The employer, Broadlex Services Pty Ltd (Broadlex), employed Ms Vrtovski in May 2014 as a full-time cleaner on 38 hours per week. On 15 August 2017, Broadlex informed Ms Vrtovski that her hours of work would be reduced due to operational requirements. The reduction, initiated by Broadlex, effectively changed Ms Vrtovski’s working hours from 38 hours per week to 20 hours a week, and reduced her salary by 40%. Broadlex invited Ms Vrtovski to sign a form to consent to this change, described as a “transfer from full-time to part-time” employment, inclusive of a change in hourly rates. Ms Vrtovski refused to sign the form, however, went on to work the reduced hours from the 12 September 2017 based on the perception she had no other choice.

Several years later the United Workers Union (UWU) filed a claim that alleged Ms Vrtovski’s reduction in hours and salary triggered her entitlement to redundancy pay. Broadlex denied the claim on the grounds the employee continued to be employed and was not terminated.

The decision

In the FCA decision, Justice Katzman determined that a redundancy was triggered because the reduction in the fundamental terms and conditions of employment had the effect of terminating the employee’s employment.

Justice Katzman found that the unilateral reduction of Ms Vrtovski’s hours and rate of pay constituted a ‘repudiation’ of the contract of employment.

‘Repudiation’ can include conduct that shows an unwillingness or inability to perform substantial terms of the contract.

Ms Vrtovski accepted the repudiation when she refused to sign the consent form and commenced working in the part-time role, thereby bringing the employment contract to an end. Subsequentially, the conduct by Ms Vrtovski to work the reduce hours was found to have created a new contract of employment and was not a continuation of the existing relationship Ms Vrtovski originally had with Broadlex.

As a result of these findings, Justice Katzman determined that Ms Vrtovski full-time role had in fact been made redundant and her employment terminated in 2017, triggering an entitlement to redundancy pay under section 119 of the Fair Work Act 2009, despite remaining employed with Broadlex.

Key takeaway

This decision stands as a reminder for employers to consult with employees where fundamental changes to their employment are required and ensure genuine consent is obtained before variations are made to the terms and conditions of employment. In cases where termination of employment is triggered, employers may be able to reduce the amount of redundancy pay on application to the Fair Work Commission where other acceptable employment is obtained.

Alternatively, employers who have carefully drafted contracts of employment may be able to make variations without consent where they are permitted under the contract of employment (or industrial instrument) and are reasonable in the circumstances.

Like to know more? Contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com

IMMEDIATE CHANGES TO THE REAL ESTATE INDUSTRY AWARD 2020 FOR COMMISSION-ONLY EMPLOYEES

As of Thursday 6 August 2020 the following changes have been made to the Real Estate Industry Award 2020 in relation to Commission-Only Employees:

Calculation of MITA

The months of May 2020 to October 2020 (COVID-19 months), may be disregarded in the calculation of the Minimum Income Threshold Amount (MITA) for the preceding 12 month period under review if those months have been impacted by COVID-19.

The MITA will be adjusted accordingly in proportion to the number of months disregarded, provided that, where the commission-only employee’s review date falls part way through any COVID-19 month, that month may only be disregarded where the review is due after the 14th of the month.

Suspension of Employing Commission-Only Salespersons

Between 6 August 2020 and 31 October 2020, no new employees can be employed as a commission-only salesperson.

If you have any queries in relation to these changes please contact REEFWA on (08) 9365 7510 or by email: reefwa@cciwa.com

JobKeeper in the Real Estate industry

Andrew Emerson

Employee Relations Officer

On 30 March 2020 the federal government announced the JobKeeper wage subsidy scheme to support Australian businesses impacted by the COVID-19 pandemic by subsidising the wages of their eligible employees. The legislation enacting this scheme came into effect on 9 April 2020 and will continue until 28 September 2020.

These changes have not only supported employers by providing valuable emergency funding to stay afloat in this turbulent environment, but have also introduced changes to the Fair Work Act 2009 (Cth) (the Act) by providing temporary flexibilities in how they manage their workforce. With the changes that have occurred to the Act, employers who qualify for the scheme can, under certain circumstances, give JobKeeper enabling directions and requests. These temporary changes include:

  • Directing an employee to either a full or partial stand down by reducing their hours or days of work
  • Directing an employee to perform duties that they do not usually perform but are capable of performing within their skill set and competencies
  • Directing an employee to perform work at a different location provided it remains suitable for their duties and is not unreasonably far for the employee to travel
  • Request the employee takes a period of leave, provided the request does not result in the employee having a balance of less than two weeks leave remaining. An employee cannot unreasonably refuse such a request

Whilst a qualified employer may issue these directions in particular circumstances, we strongly recommend seeking professional advice before doing so to ensure the correct procedure is used in administering the JobKeeper enabled direction, as a very specific process is required.

How does JobKeeper effect my commission-only employees?

JobKeeper has a one in all in approach, meaning if the employer plans on accessing the scheme, they cannot pick and choose from eligible employees. All eligible employees must be given the opportunity to nominate into the scheme. This includes employees on a retainer plus commission arrangement (Debit-Credit) and employees on commission-only arrangements so long as they meet the eligibility criteria.

How do the payments for commission-only employees work?

For a commission-only employee the payments work similarly to any other employee in that the employer must show that the employee is receiving at least $1,500 per fortnight before tax. The payments of commissions may make up part or all of the $1,500 per fortnight dependent on the reporting style for the organisation. For example; an employee that earns less than $1,500 per fortnight will need to have their wages topped up to $1,500 for that fortnight however, for an employee who has earned more than $1,500 in a fortnight, no additional payment is required. Employers are not advised to deduct JobKeeper payments from the commission of their employees unless there is explicit written agreement between the employer and the employee to do so. In such an event CCIWA recommends seeking advice before making such deductions from the commission of the employee as there are complexities to consider.

Want to know more? Contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com 

WorkPac v Rossato decision and casuals

  • This week the full bench of the Federal Court handed down its decision in WorkPac v Rossato [2020] FCAFC 84 reconfirming that casual employees working regular and systematic hours with “predictable periods of working time” are likely to be considered permanent employees, regardless of their contract says and any casual loading paid.
  • The Federal Court ordered that WorkPac pay Mr Rossato unpaid annual leave, persona leave, compassionate leave and public holiday payment which are owing on the basis that he was in fact a permanent employee of Workpac and not as casual (as he was engaged).
  • Concerningly for employers although WorkPac claimed that it should be able to set-off the casual loading it had paid to Mr Rossato against any unpaid entitlement or in the alternative recover the mistaken casual loading paid all three justices rejected these claims finding the loading could not be utilised to reduce the amounts owning with respect to leave entitlements or public holidays and there was no obligation on the part of Mr Rossato to repay any loading incorrectly paid.
  • Given the ramification of this decision it is likely that it will be appealed to the High Court.
  • Following the decision ACCI issued a media release calling for urgent legislative action to address the uncertainty caused by WorkPac v Skene and now WorkPac v Rossato.
  • The Attorney-General has indicated he will consult with employer groups and unions to try to drive certainty into the system, and has said the government will consider intervening in any High Court appeal

It was always our intention that as soon as the decision was made that we would be consulting on what may or may not need to occur as a result of the decision.”

“…finding that path forward has to be about genuine consultation and I think negotiation between employer and employee groups….. part of that consultation negotiation has to be around what’s known as casual conversion. Now, for many casuals. There is a right, if they have been in the same position for a considerable period of time to request a conversion from casual to permanency – but that right is not universal. And it seems clear to the Government without anticipating any particular result inside 24 hours of the decision – that part of the negotiations and consultations that have to now occur on an urgent basis with employers and employees is around the issue of casual conversion and a greater clarity and certainty and universality to that right of request.”

We have to talk very quickly to business and to employee groups and understand whether or not the financial impact of this decision over the next six, nine, eighteen months actually puts businesses in jeopardy and if it does then we need to consider ways that we could strengthen businesses, so that we preserve jobs. Because if this decision were handed down six months ago it would have been a very, very different scenario. At the moment the greatest premium in the economy is employment, generating employment and saving jobs.”

  • ACCI and members have been closely engaged with the Government on the passage of these decisions since the original Federal Court finding in August 2018.  The Government is well aware of the concerns of business regarding:
  • Potential inaccessibility or unreliability of casual work.
  • The unfairness and impacts of employers being asked to pay twice for leave entitlements (the double dipping concern). 
  • The potential for extensive back pay claims.  
  • Potential for highly damaging class actions. 
  • ACCI will participate in any discussions with unions convened by the Attorney-General seeking clear and reliable solutions to these substantial concerns. 
  • Members may also be interested in the comments of the Shadow Minister for Industrial Relations in the wake of the decision (21 May 2020):

“…instead of dealing with wage theft, it deals with security theft. It deals with where people have had the job security they were legally entitled to taken from them.”

“if employers much more broadly than WorkPac have been acting in breach of the law, if they have been refusing to give employees the security that they were legally entitled to, then the last thing the Parliament should be doing is acting as a protection racket to cover for people who have broken the law.”

“Every Australian right now should be on the side of job security. And this decision says that when a business has not delivered on job security, then the law should step in. We shouldn’t be changing the law to let businesses that have broken it off the hook.”

“we have in front of us now is a clear message to every employer. You can’t just buy off job security. If you want the security of a permanent workforce then you have to treat them as permanent employees. You can’t just pay your way out of that and get off the hook. People have a right to job security just as employers have a right to a loyal workforce. And you can’t double dip and think that you’ll get the loyal workforce and not be able to have to provide the job security on the other side. You know there are some benefits that come with a fully flexible workforce. I get that. And you have to pay for them. But if you want the benefits of a loyal permanent workforce on long-term rosters then you owe your workforce some security too.”

“If Christian Porter wants to use the Parliament to provide a protection racket for employers who have broken the law then he can expect an argument. He can expect an absolute argument and very strong opposition from us. And if the government thinks after all the insecurity that people are living in Australia at the moment, that he wants to change the law to give people less job security – we’re there for that fight.

TAMSIN LAWRENCE
Deputy Director | Workplace Relations
 
Level 2, 
150 Collins Street Melbourne VIC 3000 
 
ABN 85 008 391 795 
D: +61 3 9668 9983 T: +61 408 586 151 
E: tamsin.lawrence@australianchamber.com.au 
W: www.australianchamber.com.au 

Unfair Dismissal – Why is Procedural Fairness Important?

By Erin Verzandvoort

Employee Relations Adviser

In the period between October to December 2018, the Fair Work Commission (FWC) received 3521 unfair dismissal applications[1]. Claims from disgruntled employees can be costly, time-consuming and bad for corporate reputation. Employers need to take proactive steps to develop robust policies and procedures to assist in mitigating successful unfair dismissal claims.

When determining whether a dismissal is unfair, unreasonable or harsh, the FWC is requiredto consider certain criteria. This criteria, as outlined under section 387 of the Fair Work Act 2009 (Cth) (the FW Act), constitutes procedural fairness. Employers should consider this criteria when developing and/or reviewing policies, practices and procedures. The details of each criteria are as follows.

Valid Reason

One of the most critical criteria of procedural fairness is the requirement for the employer to have a valid reason for dismissing an employee. The reason for dismissal must be justifiable and based upon an objective review of the employee’s conduct or capacity. An employer is additionally obligated to notify the employee of the reason/s for dismissal relating to their conduct or capacity. The notification must be in clear, explicit and plain terms and must occur prior to making the decision to dismiss.

Right of Response

An employee must be afforded a right of response, by the employer, to provide any mitigating reason/s related to their capacity or conduct in question. To provide an employee a right of response, an employer is required to genuinely consider any response from the employee before taking any action.

Practical Tips:

  • Notify the employee that you wish to meet with them to discuss their conduct or capacity – e.g. 24 hours’ notice of the meeting
  • Provide the employee with reasonable time to respond
  • Holding two separate meetings with the employee can be useful – e.g. one for the employee’s response and one to provide the outcome. Use the time between meetings to genuinely consider the employees response

Support Person

The FW Act states an employer cannot unreasonably refuse a support person requested by an employee, where discussions relate to dismissal. For example, the employee has requested the meeting be postponed a month as their support person isn’t available. It may be reasonable to refuse the employees support person in this instance on the grounds that the employees request is unreasonable in the circumstances. The role of a support person is to provide emotional support to the employee during discussion related to dismissal. A support person is not permitted to act on behalf of the employee, unless a policy, contract or agreement contains a provision that permits this.

Practical Tips:

  • Inform the employee of the support person’s role in discussions relating to dismissal
  • Attempt to accommodate the employees request for a support person if they wish to postpone the meeting due to their availability
  • Remind the support person of their role in discussions relating to dismissal and that any behaviour that contradicts this will not be tolerated  

Warnings

If the reason an employer is looking to dismiss an employee relates to unsatisfactory performance, the FWC will consider whether the employee was warned about the unsatisfactory performance prior to the dismissal. A common myth is that employers must provide three written warnings prior to a dismissal. While there is no legislative requirement for an employer to provide any written warnings, an employer is encouraged to consider the facts of each case and issue warnings as appropriate.

Practical Tips:

  • Consider the following points when deciding how many warnings should be given before dismissal:
    • History of past performance/conduct
    • Seriousness of the performance/conduct
    • Employee’s response
    • Policies and procedures
    • Custom and practice
    • Any other mitigating factors
  • Have a robust procedure on disciplinary action to ensure both employers and employees understand the process and likely outcomes of poor performance/conduct

Size of the Business & HR Team

The FWC will consider the size of the employer’s enterprise and the presence or absence of a dedicated human resources expert. When reviewing these two elements of procedural fairness, the FWC will take into account the company’s policies and procedures and whether the employer has consistently applied them.

Practical Tips:

  • Develop and implement a comprehensive list of policies and procedures
  • Ensure consistent application
  • Consult with a human resources expert, whether internal or external before making a decision to dismiss

Other Considerations

The FWC hold the legislative power to consider any other matters they find relevant to the unfair dismissal case. Other considerations may include (but not limited too):

  • Differential treatment compared to that given to other employees
  • Impact the dismissal has on an employees personal or economic situation
  • History of work performance

A successful unfair dismissal claim, where procedural fairness was not followed, could result in an employer being liable for up to six months of lost wages (currently capped at $72,700) in compensation, as well as the possibility of having to reinstate the dismissed employee. As such, compliance with the criteria for procedural fairness places the employer in a more favourable position to successfully defend a unfair dismissal claim.

Small business employers are subject to the ‘Small Business Fair Dismissal Code’ that contain different rules for procedural fairness when dismissing an employee. For further information regarding the ‘Small Business Fair Dismissal Code’ or any other queries, please contact the CCIWA Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com


[1] The Fair Work Commission Quarterly Report Oct-Dec 2018. https://www.fwc.gov.au/documents/documents/quarterlyreports/quarterly-report-unfair-dismissals-2nd-qtr-fyr-2018-19.pdf

Employment Records – What are our obligations?

By Erin Verzandvoort

Senior Employee Relations Adviser

The Fair Work Act 2009 (Cth) (FW Act) governs a national system employers’ record keeping obligations when it comes to employees. The FW Act states that an employer must make, and keep, employee records (as prescribed by the Fair Work Regulations 2009 (FW Regs) in relation to each of its employees for 7 years. Employers must make and keep records relating to the following (this list is not exhaustive): 

  • Basis of employment (i.e. full time, part time or casual)
  • Wages
  • Overtime hours worked
  • Averaging of hours arrangements
  • Leave entitlements
  • Superannuation contributions 
  • Individual flexibility arrangements
  • Guarantee of annual earnings
  • Termination of employment
  • Transfer of business  

It is the responsibility of the employer to ensure all records are in a legible form, in the English language and readily accessible. An employee record must be made available for inspection and copying on request by an employee or former employee to whom the record relates. Fair Work inspectors also have the right to inspect and copy employee records.

Payslips

National system employers must ensure pay slips are up-to-date and readily accessible to employees and Fair Work Inspectors. Industrial Awards, Contracts of Employment and Enterprise Agreements should be consulted in conjunction with the FW Act & the FW Regs.

What information is required on a payslip?

  • Employer’s name;
  • Employee’s name;
  • The period to which the pay slip relates;
  • The date on which the payment to which the pay slip relates was made;
  • The gross amount of the payment;
  • The net amount of the payment;
  • The amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlements; and
  • The ABN of the employer.

Long Service Leave

Employers, in Western Australia, need to be aware there are additional obligations regarding employment records for the purpose of long service leave governed by the Long Service Leave Act 1958 (LSL Act).

An employer must keep records that specify:

  • The employee’s name and if the employee is under 21 years of age, the employee’s date of birth;
  • The date the employee commended employment with the employer;
  • The gross and net amounts paid to the employee including any deductions and the reason for those deductions;
  • All paid and unpaid leave taken by the employee;
  • Details of any agreement between the employee and employer to contract out of long service leave made under section 5 of the LSL Act;
  • Each record must be retained during the employment of the employee and for not less than 7 years thereafter.

The Privacy Act

The Privacy Act 1988 (Cth) (Privacy Act) regulates the collection, use and storage of personal information in Australia. From an employment perspective, the Privacy Act only has application to information collected before the employment relationship has begun or to information collected during the employment relationship that does not relate to the employment relationship itself.

Once an employee has commenced employment and after they have ceased employment, any personal information collected relating to their employment will not be regulated by the Privacy Act. It is therefore primarily the recruitment process that is governed by privacy laws, in particular where an applicant is unsuccessful. In such instances, applicants may wish to access this information as evidence in lodging a general protections or discrimination claim against the business for failure to progress through the recruitment process or failure to employ. 

Presumption Where Records Not Provided

Section 557C of theFW Actwasintroduced in 2017, imposing reverse onus of proof on employers where they have not made and/or kept relevant employment records. The new provisions provide that, where an employer has not made or kept employment records and/or made these available for inspection, they hold the burden of disproving contravention allegations.

Case Example

A former casual cook and guest services worker of Karriview Management Pty Ltd submitted a claim to the Industrial Magistrates Court for underpayment of working long hours without compensation. In the decision the Court determined the underpayment claim lacked credibility and therefore the employees only worked 18 and 15 hours respectively. The Industrial Magistrates Court ordered the employer to back pay the couple $10,165.

The employees lodged an appeal to the decision, which was heard by Justice Craig Colvin in the Federal Court. Justice Colvin overturned the decision on the finding that the Industrial Magistrates Court misapplied section 557C of the FW Act. Justice Colvin found that, had section 557C been applied correctly, the employees claims should have been accepted due to the fact that Karriview Management Pty Ltd failed to procedure or keep relevant required employment records nor did they appropriately disprove the employees claims. The appealed was upheld on these grounds and Justice Colvin ordered the employer back pay the couple $21,314.

Like to know more? Contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com

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