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Changes to Annual Leave – Do they affect your business?

IRHR 16/03

The Fair Work Commission (FWC) has varied some awards with new or changed terms about taking annual leave.  A majority of these changes take effect from 29 July 2016 and affect the following awards used by businesses in the Brisbane Markets and our Retail Program members, including but not limited to:

  • Storage Services and Wholesale Industry Award
  • Clerks Private Sector Award
  • Road Transport Industry Award
  • General Retail Industry Award

NOTE:  Market businesses who currently have an employee collective or enterprise agreements already have these provisions in their agreements.  Therefore, there is no change in the application of annual leave under these agreements.

Below is a summary of the changes in annual leave:

Cashing Out Annual Leave

Previously not allowed, this has now been included in the above awards.  Employees can now ‘cash out’ annual leave, if they:

  • Have at least 4 weeks annual leave left after the cash out
  • Have a signed written agreement with their employer
  • Don’t cash out more than 2 weeks each 12 months

Employers need to keep this agreement for the employee’s records. An employer can’t force or pressure an employee to ‘cash out’ annual leave.  The payment for cashed out leave has to be the same as what the employee would have been paid if they took the leave.

Taking Annual Leave in Advance

Employees can now take annual leave in advance if their employer agrees in writing.  The agreement needs to:

  • Be signed by both employer and employee
  • Say how much annual leave is being taken in advance
  • Say the day the leave will start

Employers need to keep this agreement with the employee’s records.  If an employee takes leave in advance and their employment ends before they have accrued the leave, the employer can deduct the amount still owing from their final pay.

Excessive Annual Leave

Excessive Annual Leave is when an employee has accumulated at least 8 weeks of leave (10 weeks for a shiftworker).  In this circumstance, if an employee can’t agree with their employer on when to take leave, the employer can currently:

  • Tell the employee in writing that they must take annual leave
  • Give the employee at least 8 weeks notice (not more than 12 months) of when the leave will start

There are further rules about how long the period of leave has to be and how much the employee has to have left afterwards.

Notice by employee

These awards will now include a new clause, to take effect from 29 July 2017, allowing employees with excessive annual leave balances to tell their employer that they will take a period of leave.

 

If you would like more information on the impact of these changes, further annual leave information or any other IR/HR Advice, please contact Lisa Dwyer on 3915 4213 or [email protected].

 

Source:  www.fairwork.gov.au, News and media releases, Changes to Annual Leave in Some Awards

 




Annual Wage Review Decision Announced

IRHR 16/02

The Fair Work Commission’s Minimum Wage Panel has delivered a 2.4% increase to Modern Award minimum wages on Tuesday 31 May 2016.

The federal minimum weekly wage will increase by $15.80 per week ($0.41 per hour) to $672.70 per week ($17.70 per hour) from the first full pay period on or after 1 July 2016.

All modern award and agreement base rates will also increase by 2.4% from the first full pay period on or after 1 July 2016.  Weekly wages are required to be rounded to the nearest 10 cents.

You can access and print the updated wage tables by clicking on the button link below.

 

 

If you would like more information on the impact that the increase might have on your business or any other IR/HR Advice, please contact Lisa Dwyer on 3915 4213 or [email protected].

 




Complying with Immigration Law

IRHR 16_01 C

Complying with Immigration Law

On 1 July 2015, the Australian Border Force (ABF) came into being.  Since then, there has been a rise in the number of investigations and enforcement action being taken against businesses that have failed to provide pay and work conditions in accordance with immigration and workplace laws.

Under Australian immigration law, businesses are obliged to only employ staff who are authorised to work in Australia, and to employ those workers in conditions as permitted by their visas ie total hours of work restrictions.

The Migration Amendment Act – a reform of the Employer Sanctions Act – creates a strict liability offence for any business that employs a person, allows a person to be employed, or refers a person for work without work rights in Australia.  Employers need to take ‘reasonable steps’ to verify that a person is authorised to work in Australia.  Failing to do so is a breach of these laws.

How can your business ensure compliance?

  1. Maintain personal records for all new and existing employees, including:
    1. Australian citizenship (Australian Birth Certificate or Australian Passport), Permanent Residency or New Zealand Citizenship (NZ Passport)

Note:  You are still required to complete a verification check of any NZ Citizens, which is explained below

  1. A copy of any temporary visa holder’s work rights and conditions ie student visa with total hours of work restrictions
  1. Conduct regular checks of work rights for each employee who is a temporary visa holder

Note:  A good rule of thumb is to review these records every three months for the duration of their employment.

  1. Monitor the tasks & duties performed by ‘sponsored’ temporary visa holders to ensure they are consistent with the occupation for which the visa holder was granted their visa.
  2. Ensure that procedures and training provided to relevant persons to maintain compliance with immigration laws are documents
  3. Keep documentation related to the verification of individual workers.

Completing Visa Verification Checks

Part of the process of accessing the information required in step 1 & 2 above, may require you to complete a check on the visa status and eligibility to work in Australia.  This can be done via the Department of Immigration and Border Patrol’s Visa Entitlement Verification Online System (VEVO).  Brismark currently has a business VEVO account and checks all applicants and candidates prior to referring them to businesses.

Consequences of non-compliance

Fair Work Inspectors have the power to check that employers are complying with the relevant legislation.  The onus is on the employer to be able to either produce records or demonstrate that steps to verify a person’s work rights were taken.

Employers that fail to comply with immigration laws can incur significant penalties, ranging from $15,300 and up to $76,500, for each employee found to be working illegally in Australia.  In addition, where an employer is ‘knowingly or recklessly’ in breach of the law, the executive officers of the business can be fined or sentenced to a period of up to two years imprisonment.

If you need the assistance of Brismark to complete a VEVO check or any questions regarding compliance with immigration laws, contact Brismark Business Services on 3915 4213 or [email protected], we are here to assist you in complying with the legislation.

Note:  The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: HC Online, by Chloe Taylor, 8 December 2015



What was the biggest legal issue in terms of HR for businesses in 2015?

IRHR 16_01 B

Human Resources – Legal Lessons from 2015

What was the biggest legal issue in terms of HR for businesses in 2015?

The most common legal issue, in regard to HR, was around bullying and harassment in 2015.

Why?  Time and resources are increasingly being spent by businesses on both developing strategies to prevent these behaviours occurring, as well as working out how to manage claims sensitively and appropriately when they arise.

What has led to the increased focus?

  1. There is greater awareness in workplaces of the effects of bullying and harassment on individuals, teams and company culture
  2. Psychological and stress-based illnesses at work no longer carry the stigma they once did
  3. The introduction of the Fair Work Commission’s specialist anti-bullying jurisdiction in 2014 has provided a dedicated forum for raising and resolving complaints

What lesson can employers learn from some of the cases heard in 2015?

Employers need to be aware that there have been an increasing number of cases where management, including operational managers and company directors, have been found to be personally liable for breaches of section 550 of the Fair Work Act 2009, which deals with ‘accessorial liability’.  This is where a business or individual is found liable as an accessory to a breach of federal workplace laws.

While company directors and business owners should have been aware for some time that they potentially bear personal liability for compliance breached under workplace relations legislation, a number of decisions in 2015, particularly those arising from Fair Work Ombudsman prosecutions, have seen lower-level managers personally prosecuted and fined for breaches of these provisions.

All managers need to ensure that their management decisions do not contravene legislation, and also take care not to inadvertently involve themselves in a potential contravention.  For example, entering into a contractor arrangement with a labour hire company at an hourly rate that does not meet the minimum modern award rate of pay.

The simple solution is to ensure all of your Supervisors and Managers are aware of workplace relations legislation, how this interacts with the day to day running of the business and impacts on their roles and the success of all in the business.

If you are interested in ‘upskilling’ your supervisors and managers in current workplace relation legislation, contact Brismark Business Services on 3915 4213 or [email protected], we can assist by conducting some training sessions for your business.

Note:  The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: HC Online, by Chloe Taylor (based on information from Rod Marshall – FCB Group), 15 December 2015



Can you dismiss an employee while they are on leave?

IRHR 16_01 A

Can you dismiss an employee while they are on leave?

Any disciplinary procedures need to be fair and reasonable – but is this ever possible when an employee is on leave?  Aside from moral issues, is it ever legally acceptable to terminate someone who is on leave?

While there is no absolute prohibition around dismissing an employee on personal/carer’s or annual leave, doing so would put the employer at risk.  The question asked would be – why a termination was necessary while the employee was on annual or personal/carer’s leave, as it is generally short term?

Termination while on personal/carer’s leave

If an employee is on personal/carer’s leave, unless their absence on unpaid personal/carer’s leave extends for more than three months or total absences of 3 months in a twelve month period, it is unlawful to terminate them for the reason that they’ve be absent due to illness.

  • Case One: If an employee is suffering with an illness that means they are away for two weeks, any termination for that absence is unlawful.
  • Case Two: If an employee is suffering from an ongoing illness that means they need months off, once they have been absent for three months the employer could put in a process leading to termination on the basis that they are unable to fulfil the inherent requirements of the role.

In this scenario:

  • the employer must engage with the employee and their doctor – asking for a prognosis ie timeline for possibility of returning to work and normal duties
  • the employer must assess whether it is possible to keep their job open with a temporary worker – if not possible they could move towards termination
Note:  If you are looking to terminate an employee, who is on long term sick leave, please contact Brismark for advice before proceeding – as it needs to be handled carefully, both from a legal and moral perspective.

Is the termination urgent?

Another question that might be raised, if you terminate an employee while on annual/sick leave, is:

‘…why couldn’t you postpone the process until the employee returned to work?’

The only circumstance this would be acceptable is if the company is ‘closing its doors’ ie shutting down completely and no longer continuing to operate.  In this situation, all employees would be notified, including those on leave.

What if misconduct is involved?

If a situation arises, while an employee is on leave, that they have been found to have engaged in ongoing misconduct and this conduct could continue to occur while they are away – for example, stealing from business via IT system – the employer could have grounds to start the dismissal process before they return.  However, you need to ensure ‘procedural fairness’, that is providing the employee with an opportunity to respond to allegations and there may be a need for further investigation.  Simply terminating without a meeting makes it more likely that the employer is going to miss those procedural steps and the employer could find themselves on the wrong end of an unfair dismissal claim.

As far as is possible, the employer should not interrupt the employee’s leave – particularly if it is personal/carer’s leave.  If you deem there may be a risk to the business, due to ongoing misconduct, look at other avenues to prevent or reduce this risk in the interim and address with the employee on their return.

Termination while on parental leave

Approaching an employee on parental leave is slightly different – primarily due to the length of their leave being more substantial.  For example, if there was going to be a redundancy, the employer would have to fulfill two requirements:

  1. As per the Fair Work Act – provision that is someone goes on parental leave and there are subsequent changes to their workplace, the employer is obligated to let them know ie downsizing, relocation, merging entities etc

 

  1. If the employee is covered by an award or enterprise agreement they contain a clause requiring the employer to consult with the employee about significant workplace changes

Simply dismissing an employee on parental leave could lead to the suggestion that the dismissal was based on leave discrimination.  Where downsizing and redundancies are occurring, there is nothing stopping the employee on parental leave being chosen for redundancy – provided that they are not being chosen purely because they are on leave and the proper processes are followed.

Workplace Injuries

When it comes to workplace injuries, businesses operate under state and territory compensation laws, so this legislation can vary.  Some provisions under these laws protect those who are absent due to workplace injury and a specified period after the injury, where the sole or primary reason for the dismissal is because of the employee’s absence on workers compensation.  The current ‘specified period’ under Queensland law is 12 months.

If you are in doubt on how to progress in terminating an employee, you can seek expert advice by contacting Brismark Business Services on 3915 4213 or [email protected], before making a decision.

Note:  The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: HC Online, by Chloe Taylor, 9 December 2015



Amendments to the Public Holiday Act

IRHR 15_15 B

Amendments to the Public Holiday Act

On 13 October 2015 amendments to the Holidays Act 1983 were passed by the Queensland Legislative Assembly prescribing that from 2016:

  • The Queen’s Birthday has moved from the first Monday in June 2016 to the first Monday in October 2016
  • Labour Day will go from the first Monday in October 2016 to its former May date being the first Monday in May 2016
  • There will be no longer be a public holiday in June

Just a reminder of the Public Holiday in December for 2015 – they are;

  • 25 December – Christmas Day
  • 26 December – Boxing Day
  • 28 December – Boxing Day holiday (additional holiday as Boxing Day falls on a weekend)

This means, if penalty rates are applicable to your employees, public holiday rates apply for each of these days.

If you need any further information regarding public holiday provisions – Contact Brismark Business Services on 3915 4213 or [email protected] – we’re here to help.

Source:  CCIQ – IR Alert, 20 October 2015