28 Apr HR LAW NEWSLETTER – April 2023

Welcome to the April 2023 HR Law Newsletter. 

Over the past few months, there have been a lot of changes in employment law.  This month, we provide an overview of some of the upcoming and proposed legislative changes you should be aware of, as well as a reminder about how employers should manage employees working on upcoming public holidays.  

LEGISLATIVE CHANGES

Changes to Annual Shutdowns

The Fair Work Commission has varied 78 modern awards as part of the Commission’s four yearly review of modern awards process by replacing existing shutdown clauses with a new model term.

Some of the effects of the new term include (subject to some exceptions):

• Any mechanism that directs an employee to take leave without pay during a temporary shutdown period has been removed.

• Employers must now provide at least 28 days’ written notice of the temporary shutdown period.

• Employees can now only take paid annual leave in accordance with a direction under the shutdown term.

• The employer and employee will need to agree, in writing, to take unpaid leave during a shutdown period once an employee’s paid annual leave has been exhausted.

• Where an employee has not accrued enough paid annual leave to cover the period of the shutdown, the employee may take paid annual leave in advance of accruing the entitlement in accordance with the existing “annual leave in advance” term contained in each modern award.

As the end of financial year is fast approaching, now is a good time to start reviewing your current procedures, guidelines and payroll systems that govern annual shutdowns to reflect these changes.

These variations will take effect on 1 May 2023.

To access the decision, click here.

POTENTIAL LEGISLATIVE CHANGES

Same Job, Same Pay

The Albanese Government has released its Same Job, Same Pay Consultation Paper on 13 April 2023.

The Government’s Same Job, Same Pay measure seeks to address the limited circumstances in which host employers use labour hire to deliberately undercut the bargained wages and conditions set out in enterprise agreements made with their employees.

The consultation paper outlines guiding principles for implementation of the reform, along with the criteria for identifying a “same job” and a methodology for calculating the “same pay”.

The Government is currently seeking feedback on the direction the Government should take in implementing the Same Job, Same Pay measure.

HR Law will keep you updated.

To access the Consultation Paper, click here.

Criminalising Wage Theft

The Albanese Government also released its Criminalising Wage Theft Consultation Paper on 13 April 2023.

The Government’s Criminalising Wage Theft measure seeks to address the issue that underpayments are still occurring, and with a severity and magnitude that suggest that the maximum penalty levels in the Fair Work Act 2009 (Cth) (“the Act”) are not sufficient to adequately deter wrongdoing amongst employers.

The consultation paper outlines proposed reforms to strengthen the compliance, including options for a criminal offence for wage underpayment and multiple methods for increasing the maximum civil penalties for wage exploitation-related provisions of the Act. 

The Government is currently seeking feedback on the direction the Government should take in implementing the Criminalising Wage Theft measure.

HR Law will keep you updated.

To access the Consultation Paper, click here.

REMINDER ABOUT PUBLIC HOLIDAYS

In this month’s case brief, we discuss the Full Court of the Federal Court of Australia’s recent decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (“OS Case”).

The issue in this case surrounded the proper construction of section 114 of the Act, which relates to public holidays.

Section 114 of the Act provides that an employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes.  However, an employer may request an employee to work on a public holiday if the request is reasonable.

If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

In the OS Case, employees were provided with a roster on a laminated card at the commencement of their employment, which identified all the shifts they were required to work, including any public holidays.  However, the employer did not, at any time, communicate with employees that they had the right under s114 of the Act to refuse (if the refusal was reasonable) to work on Christmas Day or public holidays generally.  Ultimately, the court found that in effect, the employer had required (rather than requested) employees to work on 25 and 26 December 2019, which were public holidays. 

Practical implications for employers

While the law has not changed, the consequences of the Full Court’s decision appears to be that employers must presume all employees will be absent from work on a public holiday.  From there, employers must then actively ask employees to work on a public holiday, rather than simply rostering or expecting them to work on a public holiday.

While this case may be appealed to the High Court, until then, employers must comply with the Full Court’s current position on the requirement to work public holidays, including on the upcoming Queensland Labour Day public holiday which is next Monday, 1 May 2023.

To read the full case, click here.

If you would like to discuss your obligations of engaging employees on a public holiday, contact the team at HR Law.

UPCOMING WEBINAR

HR Law will be hosting a Keeping Abreast Of The Changing HR Compliance Landscape Webinar next week, at 10.00am on Thursday, 4 May 2023. 

In this complementary Webinar, Jill Hignett will discuss how to keep abreast in the changing HR compliance landscape, including:

• How to understand the growing complexity of HR compliance; and
• An overview of the emerging legislation that will impact the HR function including:
• Human rights requirements;
• Domestic & Family Violence;
• Disability reforms;
• Changing payroll and wages requirements; and
• EBA and payroll requirements.

Jill will also provide some insight into other complex areas of employment law such as the employee/employers rights on flexible work arrangements as well as the essentials to include in an audit plan to ensure an organisation is HR compliant with these complex new requirements.

To find the details for the Webinar, click here.

WHAT YOU MAY HAVE MISSED

Recently, Sarah Neideck, Partner of HR Law hosted a Deep Dive Into Flexible Working Arrangements Webinar.  During the complementary Webinar, Sarah discussed:

• A re-cap of obligations for flexibility requests;
• The new changes to the law;
• The process for managing requests for flexibility;
• The new powers of the Fair Work Commission; and
• Practical guidance on how to meet your legal obligations.

To find the recording of the Webinar, click here.

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