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.
varied certain overtime rates and minimum shift entitlements for casual and part-time employees in several awards.