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Breaches of Fair Work

As an internal payroll/Account Manger or third-party provider you can be held liable by Fair Work Australia for the underpayment of workers within the business.  Under the “Accessorial liability” provisions of Fair Work Act, whereby non-business owners can be held liable for contravening the Fair Work Laws.

What Does this mean for you:

  • You Can’t Just turn a blind eye to the breaches
  • You must bring it to the attention of Management or the business owner (in writing)
  • Take Steps to ensure you are not held liable.

 

What Does this mean for Admin Advantage:

  • We Can’t Just turn a blind eye to the breaches
  • We will bring it to the attention of Management and the Business Owner the breaches (in writing)
  • If the Business refuses to comply with our recommendations Admin Advantage will cease all payroll processing.

 

Don’t leave yourself open to being liable Contact Admin Advantage today and get a Payroll audit.

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Probation Periods

I have recently read an interesting article on Probation periods. I was long thought that they were a set period, but this is not true.

There are no set rules for the period that a probation period may apply, however, many employers set the probation period at six months as this generally allows both parties sufficient time to assess each other and decide on whether the relationship should continue.

During this time either party may terminate the employment relationship with minimal or no notice depending on the conditions of the employment contact, agreement or Modern Award.

Six months continuous service is also the minimum trigger point for access to unfair dismissal provisions of the Fair Work Act 2009 (12 months service for businesses with less than 15 employees).

The article went on the further discuss induction process and the relevance in ensuring that the staff member know what is expected during their probationary period along with a relevant job description and copies of relevant workplace policies, procedures and manuals.

With Critical Steps in the process:

Inform the new employee that they are on probation and that their performance will be closely monitored and assessed.

It should be made clear to the new employee that:

  • If they have any queries/problems associated with performing their role what process to follow to gain assistance and/or training.

 

  • Regular performance feedback sessions will be held to assess the new employee and allow them to raise any concerns that they may have regarding their duties.

 

  • Specific time periods should be set for these feedback sessions and agreed and confirmed by both parties e.g. weekly, monthly or three monthly.

 

  • The employee should be informed that if their performance falls below the required level during the probation period they will be given every opportunity to improve to the required level but if they are unable to meet the expectations of the employer that they may be terminated.

 

  • Before the end of the probation period a formal interview should be held between the new employee and the employer where their performance over the probation period is discussed and if the performance is below the required standard they may have their employment terminated.

 

Although there is no access to the unfair dismissal protections of the Fair Work Act 2009 if the termination takes place within the minimum service period, other provisions of the FWA may apply such as Section 342 General Protections or Adverse Action, breach of contract or discrimination.

These provisions or actions generally are applied where the termination is not handled properly and the employee is not provided with feedback on their performance during the probation period where any deficiencies are clearly defined, and opportunity given for the employee to rectify the areas of concern or where the termination was based on a discriminatory basis such as absence from work due to a temporary illness or injury.

Extending a probation period

The Fair Work Act does not prescribe a probation period in relation to unfair dismissal laws, it refers to a minimum employment period of six months for employers with 15 employees or more and 12 months for 15 employees or less.

If the probation period extends beyond the minimum employment period and the employer terminates the employee, the employee would have access to the unfair dismissal laws.

Therefore, fixing the probation period to a time within the minimum service requirements is the most common option chosen by employers.

(BO2, 2018)

 

References

BO2, C. (2018). Probations Period Article No.43. Essentials, Leigh’s Corner.

 

 

 

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Industrial Relations Update April 2018

Industrial Relations Update April 2018

POSTED ON: WEDNESDAY, APRIL 18, 2018
INDUSTRIAL RELATIONS UPDATE APRIL 2018
FAMILY AND DOMESTIC VIOLENCE LEAVE

The following abbreviated summary follows the recent decision of the Fair Work Commission as part of the 4-year review of Modern Awards to insert a model domestic violence clause into the awards to allow employees to access 5 unpaid days where they can provide reasonable proof that they are experiencing family or domestic violence issues.

Summary of Decision 26 March 2018 – 4 yearly review of modern awards — Family and Domestic Violence AM2015/1 [2018] FWCFB 1691

This decision takes a cautious regulatory response to this issue with the following decision of the Full Bench of the Fair Work Commission.

“We have decided to provide five days’ unpaid leave to employees experiencing family and domestic violence, if the employee needs to do something to deal with the impact of that violence and it is impractical for them to do it outside their ordinary hours of work.

We have decided to defer our consideration of whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave.

The extent to which the new entitlement to unpaid leave will be utilised is unknown, as is the impact of the new entitlement on business.
We propose to revisit this issue in June 2021, after the model term has been in operation for three years.
At that time, we will consider whether any changes are needed to the unpaid leave model term, and whether to allow access to personal/carer’s leave.
At that time, we will also revisit the question of whether provisions should be made for paid family and domestic violence leave.”

The Full Bench exempted from this general finding the Australian Government Industry Award 2016, the Road Transport and Distribution Award 2010 and the Road Transport (Long Distance Operations) Award 2010, which are to be the subject of separate consideration.

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FLEXIBLE WORKING ARRANGEMENTS

Also as part of the 4 yearly review, the FWC considered the ACTU claims in relation to flexible working arrangements and, although some of the claims were rejected, the FWC has determined that there needs to be additional provisions inserted into the awards to meet the expectations of employees with family and carer responsibilities, and the abbreviated summary below sets out the basis of their decision and what to expect once the clause is finalised.

The Full Bench reached the provisional view that the modern award minimum safety net should be varied to incorporate a model term to facilitate flexible working arrangements for parents and carers.
The provisional model term proposed by the Full Bench is summarised below.
The provisional model term would supplement the NES in the following ways:
?The group of employees eligible to request a change in working arrangements relating to parental or caring responsibilities, will be expanded to include ongoing and casual employees with at least six months’ service but less than 12 months’ service.
?Before refusing an employee’s request, the employer will be required to seek to confer with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances.
?If the employer refuses the request, the employer’s written response to the request will be required to include a more comprehensive explanation of the reasons for the refusal.
?The written response will also be required to include the details of any change in working arrangements that was agreed when the employer and employee conferred, or, if no change was agreed, the details of any changes in working arrangements that the employer can offer to the employee.
A note will draw attention to the Commission’s (limited) capacity to deal with disputes.
We will circulate these model clauses when they are finalised and update the policy manuals where required.
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FINES INCREASE FOR UNDERPAYMENT OF WAGES
The Fair Work Ombudsman is targeting organisations that are deliberately underpaying their employees and are becoming increasingly effective at prosecuting these employers with large fines being imposed in the Federal Circuit Court.
The recently introduced Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 has increased penalties for these offences to up to $630,000 for companies and up to $126,000 for individuals where serious breaches are found to have occurred and the employer has deliberately attempted to pay wages and conditions below the mandated amounts.
These changes also include increases in the penalties for failing to keep proper records (which are to be retained for seven years) to $63,000 for employers and $12,600 for individuals.
It is becoming increasingly important to ensure that employees are paid correctly and that the provisions of the Fair Work Act and the National Employment Standards are being met. This includes ensuring that any contracts and/or contractors are being paid correctly, including superannuation entitlements where applicable.
Referenced by BO2 Corporate Essentials
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Changes to Casual & Part-Time Entitlements in some Awards

On 12 December 2017, the Fair Work Commission (FWC) external-icon.png varied certain overtime rates and minimum shift entitlements for casual and part-time employees in several awards.

These changes start from the first full pay period on or after 1 January 2018.

Who do the changes affect?

The changes are different for each award, so they affect employers and employees differently depending on the award they’re covered by.

Find out what the changes are to the:

The decision introduces overtime rates for casual employees in many of these awards and changes how part-time hours can be worked in others.

If you think you might be covered by one of these awards but aren’t sure, you can use Find my award to find out which covers you.

When will our tools be updated?

Our Pay Calculator and Pay Guides are being updated to include these changes. Some awards have already been updated in our tools and you can calculate entitlements by selecting a date after 1 January 2018.

In the meantime, subscribe to email updates to get pay and entitlements information for your award and we’ll email you when our pay tools are updated.

What are the changes?

Fast Food Award

Casual employees now have an entitlement to overtime pay.

They get overtime when working:

  • more than 38 hours per week, or an average of 38 hours per week over a roster cycle
  • more than 11 hours on any day.

Hair and Beauty Award

Casual employees now have an entitlement to overtime pay.

They get overtime when working:

  • more than 38 hours per week, or an average of 38 hours per week over a roster cycle
  • more than 10.5 hours per day.

Hospitality Award

Part-time employees

Part-time employees are engaged for a minimum of 8 hours and less/fewer than 38 ordinary hours per week over a roster cycle.

Employers and employees must agree on the minimum number of hours to be worked each week and the times the employee is available to work.

Part-time employees can be rostered for additional hours during their availability period without getting payment for overtime.

A part-time employee who regularly works additional hours for 12 months may ask to increase their guaranteed hours. Employers may only refuse on reasonable business grounds.

Casual employees

Casual employees now have an entitlement to overtime pay.

They get overtime when working:

  • more than 38 hours per week, or an average of 38 hours per week over a roster cycle (which may not exceed 4 weeks)
  • more than 12 hours per day.

Passenger Vehicle Award

School bus drivers transporting students to and from school can be rostered for 1 or 2 shifts per day. Each shift needs to be a minimum of 2 hours.

Pastoral Award

A new 2-hour minimum engagement for dairy operators 18 years or younger who are full-time secondary school students.

Rail Award

Changes to the calculation of overtime, shift penalties and weekend penalties.

Registered Clubs Award

Part-time employees

Part-time employees are engaged for a minimum of 8 hours and less/fewer than 38 ordinary hours per week over a roster cycle.

Employers and employees must agree on the minimum number of hours to be worked each week, and the times the employee is available to work.

Part-time employees can be rostered for additional hours during their availability period without getting payment for overtime.

A part-time employee who regularly works additional hours for 12 months may ask to increase their guaranteed hours. Employers may only refuse on reasonable business grounds.

Casual employees

Casual employees now have an entitlement to overtime pay.

They get overtime when working:

  • more than 38 hours per week, or an average of 38 hours per week over a roster cycle (which may not exceed 4 weeks)
  • more than 12 hours per day or shift.

Casuals may also be entitled to a meal allowance when working overtime.

Restaurant Award

Part-time employees

Part-time employees are engaged for a minimum of 8 hours and less/fewer than 38 ordinary hours per week over a roster cycle.

Employers and employees must agree on the minimum number of hours to be worked each week, and the times the employee is available to work.

Part-time employees can be rostered for additional hours during their availability period without getting payment for overtime.

A part-time employee who regularly works additional hours for 12 months may ask to increase their guaranteed hours. Employers may only refuse on reasonable business grounds.

Casual employees

Casual employees now have an entitlement to overtime pay.

They get overtime when working:

  • more than 38 hours per week, or an average of 38 hours per week over a roster cycle (which may not exceed 4 weeks)
  • more than 12 hours per day or shift.

Casuals may also be entitled to a meal allowance when working overtime.

Retail Award

Casual employees now have an entitlement to overtime pay.

They get overtime when working:

  • more than 38 hours per week, or an average of 38 hours per week over a roster cycle
  • outside of the span of ordinary hours
  • more than 11 hours on one day of the week, and more than 9 hours on any other day of the week.

Social and Community Services Award

Part-time rosters no longer need to have the same amount of hours in each week. Employees and employers may agree to have a different amount of hours in each week over a roster cycle.

Roster variations can be for short term or permanent changes to the roster.

Wine Award

The minimum payment for casual employees doing pruning or harvesting work during unexpected wet weather has been reduced from 4 hours to 2 hours.

More information

You can read the Fair Work Commission’s full decision external-icon.png, and more about the review into part-time external-icon.png and casual employment external-icon.png on the Commission’s website.

 

As published on the Fairwork website: http://www.fairwork.gov.au/about-us/news-and-media-releases/website-news/changes-to-casual-part-time-entitlements-in-some-awards

 

 

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Increase to Award Minimum Rates From 1 July

The Fair Work Commission have announced that from 1 July 2017 modern award rates will increase by 3.3%

This equates to an increase of nearly 50c per hour (or roughly an additional $18 to $19 per week) depending on the award and trade involved.

The wage increases will also flow onto rates of pay  for apprentices and trainees.

If your staff are being paid at Current award rates now is the time to take a look to ensure that your staff are not underpaid as at 1 July 2017.

If you have any questions or concerns please contact: Call Kirstie on 0420 515 693