04 Sep HR LAW NEWSLETTER – AUGUST 2024
Welcome to the August 2024 HR Law Newsletter.
This month, we are excited to share some key updates from HR Law. We also delve into some recent legislation that has come into effect. Finally, we discuss a recent case, in which two recycling industry workers were allowed to keep 30% of their redundancy payments after the Fair Work Commission (“FWC”) accepted that whilst their previous employer had found them acceptable alternative employment, the new proposed office was a “dirty environment” compared to their former office.
HR LAW ANNOUNCEMENTS
Gold Coast Office
HR Law is pleased to announce it is expanding and has now opened a Gold Coast office situated in the heart of Coolangatta at Suite 203, Level 2, The Strand, 72-80 Marine Parade, Queensland, 4225.
The Gold Coast office will be managed by Victoria Mitchell, Special Counsel. Victoria is experienced in all aspects of employment and workplace relations law. As both an experienced lawyer and human resources specialist, Victoria’s legal skills and knowledge combined with her practical corporate management experience gives Victoria a highly developed understanding of the multifaceted operations and legal requirements and risks businesses face in the management of their workplace law obligations.
If you would like to contact Victoria or schedule a meeting at our Gold Coast Office, please email Victoria at v.mitchell@hrlaw.com.au or call direct on (07) 5619 8153.
Upcoming Webinar
Over the past year, there have been significant amendments to the Fair Work Act 2009 (Cth) (“FW Act”) through the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and its successor, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (“Closing Loopholes No. 2”). These pieces of legislation have enhanced worker protections, introduced new regulations and reshaped various aspects of employment law.
With many of these changes already in effect and more on the horizon, HR Law will be hosting a complimentary Closing Loopholes webinar to guide you through these changes and what they mean for your organisation. The details are as follows:
Date: Wednesday, 25 September 2024
Time: 10:00 AM
Presented by: Sewar Mitanis, Partner and Olivia Sinnamon, Solicitor
You can register for the webinar here.
FAIR WORK LEGISLATION AMENDMENT (CLOSING LOOPHOLES NO. 2) ACT 2024
A reminder that on 26 August 2024, new laws came into effect pursuant to Closing Loopholes No. 2. This includes various amendments to the FW Act including the following (not limited to):
- Section 15AA has been inserted, which sets out how to determine whether a relationship is an employment relationship for the purposes of the FW Act.
- A new definition of “casual” employee has been inserted in section 15A of the FW Act. In addition, the FWC is now able to deal with disputes about the right of casual employees to become permanent (in certain circumstances).
- Employees now have a new workplace right, the “right to disconnect”. The right to disconnect protects employees who refuse to monitor, read or respond to contact or attempted contact outside their working hours, unless their refusal is unreasonable. In addition, the FWC is now able to deal with disputes about the right to disconnect, including making “stop orders”. Note for employers who are small business employers on 26 August 2024, the right will start on 26 August 2025.
- The FWC can now deal with disputes about unfair contracts for independent contractors. Specifically, the FWC can cancel (set aside) or change (amend or vary) unfair terms that would relate to workplace relations matters if the independent contractor were an employee.
GENERAL RULING – CASUAL LOADING
On 16 August 2024, the Queensland Industrial Relations Commission (QIRC) delivered a General Ruling that for all industrial instruments of the QIRC (awards, certified agreements and arbitration determinations), the loading prescribed for casual employees shall be no less than 25% from the date of effect of the General Ruling. The Ruling will take effect on and from 23 September 2024.
This Ruling will affect various employers and employees governed by QIRC industrial instruments, including local governments in Queensland.
For example, it will affect casual employees covered by the Queensland Local Government Industry Stream B Award and C Awards, who are currently paid a casual loading of 23%. This 25% loading would apply despite the existence of certified agreements that may stipulate a casual loading of 23%.
To view the Ruling, click here.
To view the Decision, click here.
CASE BRIEF – WORKERS ALLOWED TO KEEP PORTION OF REDUNDANCY PAYMENT
In a recent decision, two recycling industry workers were allowed to keep 30% of their redundancy payments after the FWC accepted that whilst their previous employer had found them acceptable alternative employment, the new proposed office was a “dirty environment” compared to their former office.
Section 120 of the FW Act allows an employer to apply to FWC to reduce the amount of redundancy pay to an employee (as appropriate) in circumstances where the employer obtains other acceptable employment for the employee.
In this case, the former employer found alternative employment for each employee at another recycling waste firm. However, the new firm’s office was attached to a warehouse, where recycling management took place. The new office was therefore a vastly different work environment to the previous employer’s “nicer, cleaner office”. On this basis (among other matters), each employee declined the new employment and requested to be paid out their redundancy payments. The former employer subsequently made an application pursuant to section 120 of the FW Act to the FWC to reduce each employee’s redundancy payment.
The Decision
Commissioner Perica found that the employer had found suitable employment for each employee. Specifically, the Commissioner found that each new proposed role was sufficiently comparable to the work being performed for the previous employer, and not unreasonably removed from each employee’s original duties, and in line with their skills set, qualifications and experience. However, the Commissioner also found the new role would be in a different work environment, accepting evidence that the new office was “dusty, noisy and malodorous with trucks entering and leaving”. Commissioner Perica stated whilst the “dirty environment” may have made the new roles unattractive, it did not make the job objectively unacceptable. Nevertheless, Commissioner Perica found that there was a “marked difference between performing administrative work in an office attached to a warehouse where recycling takes place, compared to working in an office removed from the actual process of recycling.”
As a result, Commissioner Perica concluded that the former employer was entitled to reduce each employee’s redundancy payment by 70%, thereby allowing each employee to keep 30% of the payment.
To read the case, 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.
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