22 Dec HR LAW NEWSLETTER – DECEMBER 2022
Merry Christmas and Happy New Year
As we say goodbye to 2022 and prepare to welcome in 2023, we would like to take this opportunity to give a big thank you to all our valued clients, colleagues and on-line followers for your continued support during 2022. It has been our pleasure to work with you and support your business in managing all of your employment law matters. The HR Law team look forward to continuing to support and work with you in 2023.
We trust that our newsletters, seminars, webinars and LinkedIn posts throughout 2022 have kept you up to date with the issues facing employers and the many changes made in the employment law space. We understand that each individual employer has their own unique needs and challenges, so please continue to reach out to us if you are in need of specific advice.
If you are not already connected with us and you would like to keep up to date with topical employment law matters, please follow us on LinkedIn and subscribe to our email updates. We also post articles regularly on our website. Please email us at info@hrlaw.com.au and we will make sure we add you to our mailing list.
The team at HR Law would like to wish you a very Merry Christmas and Happy New Year. Whatever your plans, we hope you all have a safe and happy festive season.
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022
As you may already be aware and have seen from our previous updates, we are ending 2022 with significant changes happening in the area of employment law. The commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 introduced changes that impact the way employers of all sizes operate and manage their workplace. You can view our previous article summarising the changes here https://www.hrlaw.com.au/fair-work-legislation-amendment-secure-jobs-better-pay-act-2022/
This week, the HR Law team conducted a webinar discussing these changes and what employers must be aware of and action. We will be holding a seminar series in the new year and will provide further details on our website and LinkedIn, as well as by email for when these seminars will be held.
A reminder about public holidays….
We wanted to remind you of the obligations employers have regarding public holidays given the number of upcoming public holidays there are over the Christmas and New Year period.
Are employees paid for public holidays when they are on annual leave?
If an employee is on annual leave and a public holiday falls on a day that the employee would have normally worked, then yes, the employee is paid their ordinary rate of pay and no deduction is made to their annual leave balance.
Are public holidays for the whole day?
Some States and Territories have provision for part-day public holidays. For example, South Australia has a part-day public holiday between 7.00pm and midnight on 31 December 2022 for New Year’s Eve, whilst Queensland has a part-day public holiday between 6.00pm and midnight on 24 December 2022 for Christmas Eve.
What do I pay employees when they work public holidays?
An employee’s relevant modern award or industrial instrument will set out the applicable rates of pay for working public holidays. Employers are reminded that if they engage employees on a salary arrangement, the employer must ensure that the employee’s wage is set at a rate that compensates for the minimum they would receive for working any public holidays.
Can I ask the employee to work on a public holiday?
An employer can ask an employee to work on a public holiday, if the request is reasonable. An employee may refuse to work a public holiday on reasonable grounds. What may be considered a reasonable refusal may include:
• the employee’s personal circumstances (for example family responsibilities);
• the needs of the workplace;
• whether the employee will get more pay (for example penalty rates);
• the type of work;
• whether the employee’s salary includes working on a public holiday;
• whether the employee is full-time, part-time, casual or a shiftworker;
• how much notice was given to the employee about working; and
• the amount of notice the employee gives that they refuse to work.
Employers are advised to check the relevant modern award or industrial instrument for public holiday provisions and/or call us to discuss your businesses unique circumstances.
Long service leave across jurisdictions
Long service leave is governed by State and Territory legislation and is usually simple to manage when an employee works in the one State or Territory for their relevant period of service. Complications tend to arise when an employee works in multiple jurisdictions during their employment. For our final case brief of 2022, we look at the recent New South Wales (“NSW”) Court of Appeal decision in Wipro Limited v State of New South Wales [2022] NSWCA 265. This is a significant decision providing guidance to employers on how to calculate long service leave for employees in NSW. The decision has overturned the previous position of how the Long Service Leave Act 1955 (NSW) (“the Act”) applies to employees that move between States or countries.
This case concerned an employee who had commenced employment in India where he worked for a period of six years before being transferred to NSW for a further four years of employment. The issue was whether the employee, Deepak Rawat (“Mr Rawat”)’s service in India could be counted as “continuous service” with his employer (and plaintiff), Wipro Limited (“Wipro”), in accordance with section 4 of the Act.
Wipro contended that on the proper construction of the Act, the central concept of “continuous service” and the territorial reach of the Act is to be determined by considering if a substantial connection to the continuous service to NSW exists. Wipro contended that as Mr Rawat’s first part of his service was in India and had no relevant connection to NSW, he did not serve the required time to give rise to the long service leave entitlement. The first defendant, the State of New South Wales (in its role as the prosecutor under the Act) argued that the relevant event is not the continuous service over a period of time but the completion, termination or cessation of service in accordance with section 4(2)(a) of the Act.
In considering the arguments of the parties, the Court found that Wipro was not required to pay Mr Rawat’s long service leave entitlement for reasons including:
- the performance of service within NSW is an obvious connecting factor but depending on the circumstances of a particular case, there may be other factors connecting the service to NSW such as the relevant contract having been made in NSW or directions being given in NSW for an employee to work outside the jurisdiction;
- Mr Rawat commenced his employment with Wipro by serving for a discrete period of years in India before his employment came to have any connection to NSW and the initial period is not to be counted in consideration of whether Mr Rawat has an entitlement to long service leave; and
- it makes sense for the existence or otherwise of a “substantial connection” between the “continuous service” to be assessed by reference to the service when it occurs rather than retrospectively on cessation of the service.
Practical tips for employers
As we can see from this case, NSW employees who move in and out of NSW may have their entitlements to long service leave affected. We recommend conducting a review of your employee circumstances to determine if any employees may be affected by this decision and to also consider any other connecting factors such as where the contract of employment was made. If you have any questions regarding long service leave, contact the team at HR Law.
You can access the full case here:
Office Closure
Please be advised our offices will be closed from 5.00pm Thursday 22 December 2022 until 8.00am Monday 9 January 2023.
HR Law understands that your business may not stop during the Christmas and New Year period and in most cases, business only gets busier. That is why HR Law is here to assist you during this busy time, so if you have an urgent query, please send an email to HR Law’s Managing Partner, Jill Hignett – j.hignett@hrlaw.com.au.
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.
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