31 Jan HR LAW NEWSLETTER – JANUARY 2023
Welcome to the January 2023 HR Law Newsletter.
This month we discuss the recent workplace legislative changes, the commencement of 10 days paid family and domestic violence leave under the Fair Work Act 2009 (Cth) (“FW Act”) and proposed changes to the Professional Award 2020 as well as consider a recent case regarding independent contractor verse employee.
Is your business compliant with the recent changes to workplace law?
As you would be aware, we ended 2022 with significant changes to various workplace laws. Whilst some of these changes commenced on 7 December 2022, such as the pay secrecy provisions, other changes will come into effect during 2023, for example the new sexual harassment provisions commencing on 6 March 2023 and changes to flexible work request provisions commencing on 6 June 2023.
Now is the time for employers to review their workplace practices to ensure compliance with these new laws. To assist employers in meeting their lawful obligations, HR Law can provide advice tailored to your workplace including a review of any policies or procedures, providing training or conducting a full audit on your business to identify gaps in compliance and provide necessary advice. Please contact the HR Law team for assistance.
If you would like to view our previous article on these significant changes, you can access it here:
Family and Domestic Violence Leave Entitlement
All full-time, part-time and casual employees will soon be entitled to 10 days paid family and domestic violence leave. This entitlement will commence as follows:
- 1 February 2023 for non-small business employers; and
- 1 August 2023 for small business employer.
Additionally, in order to reduce the risk to an employee’s safety when accessing paid family and domestic violence leave, there are also new rules regarding information that must not be included on an employee’s pay slip. For example, pay slips must not reference family and domestic violence leave, including any leave taken and/or leave balances.
Employers will need to check their payroll systems, polices and employment contracts to ensure they are compliant with these new laws.
Professional Employees Award 2020
The Fair Work Commission (“Commission”) on 20 January 2023, issued its decision with regards to the Professional Employees Award 2020 with regards to hours of employment and overtime as well as award coverage. The Commission intends to make amendments to the Award including inserting a new clause 13.1 that deals with ordinary hours of work and minimum rates, as well as inserting a new Part 5 – Overtime and Penalty Rates.
You can access the draft determination here:
The Commission’s full decision regarding these changes can be accessed here:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB/2023/13.html
Parties may file submissions in response to the draft determination by 4:00 pm (AEDT) on Friday, 10 February 2023. HR Law will keep you updated on the changes.
THIS MONTH’S CASE BRIEF
Independent contracting
The Commission has recently affirmed the principles set out in Personnel Contracting in finding that a worker engaged under an oral contract was an independent contractor. The recent decision in Sarah Mandelson v Invidia Foods Pty Ltd, Angelo Sperlinga, Richard Simiane [2023] FWC 50 concerned the sole director of Sarric Pty Ltd (“Sarric”), Sarah Mandelson (“Ms Mandelson”) who sold her business to Invidia Pty Ltd (“Invidia”) under a business sales agreement. The parties reached an oral agreement before the sale of the business that if Ms Mandelson wished to continue to work for the business, Invidia would employ Ms Mandelson on a part-time basis to perform various business development duties.
It was a condition of sale that Sarric and Invidia would each provide an employment agreement. Invidia did provide an employment agreement as required however, Ms Mandelson did not return a signed copy of the employment agreement. Invidia emailed Ms Mandelson asking for her employee details to which she replied by suggesting she would invoice as a consultant rather than become a paid employee. Once the sale agreement was finalised, Ms Mandelson continued to perform work and invoice Invidia for professional consultancy services. Invidia subsequently advised Ms Mandelson that her services were cancelled immediately. Ms Mandelson then filed a general protections claim involving dismissal.
Deputy President Boyce stated at [35] that “post-Personnel Contracting the focus is now upon the terms of a contract that were in fact agreed and the inescapable acknowledgement of same”. Furthermore, Deputy President Boyce confirmed at [36] that:
“a) contracts, in respect of employment and/or independent contracting, are to be interpreted in the same way that contracts are generally interpreted under the laws of Australia;
b) the classification of the relationship that exists between parties, being that of employment or independent contractor and principal, is to be ascertained objectively by reference to the terms of a contract (identifying the rights and obligations of the parties under the contract), and not by reference to questions of fairness or the manner in which subsequent conduct and performance might undercover a ‘reality’; and
c) the common intention of the parties to a contract (as to the type of legal relationship that they intended to create), whilst for objective determination, in the normal course, ought not be retrospectively overridden or otherwise restricted. Citing Justice Gordon’s judgment in Personnel Contracting, Deputy President Boyce stated that “where the contract is oral, or partly oral and partly in writing, subsequent conduct may be admissible in specific circumstances for specific purposes – to objectively determine the point at which the contract was formed, the contractual terms that were agreed or whether the contract has been varied or discharged“.
Deputy President Boyce dismissed the application as the contractual terms “bear all the hallmarks of an independent contractor and principal relationship” and that under that contract, Ms Mendelson had been engaged as a consultant. In reaching this decision, Deputy President Boyce considered that an agreed term of the oral contract was that Ms Mandelson was to issue tax invoices for work performed which was “inconsistent” with an employment relationship. Other factors considered were that she provided her own tools, she maintained her title as chief executive officer, and did not include superannuation, tax deductions, or annual or sick leave. Deputy President Boyce further found that she worked autonomously and Invidia did not require her to report to it on the work she performed.
You can access the full decision here:
HR LAW ANNOUNCEMENTS
SOPAC Conference 2023
Jill Hignett, Managing Partner of HR Law, will be presenting at the South Pacific and Asia Conference (SOPAC) Conference which will held from 5 to 7 March 2023 at the Brisbane Convention & Exhibition Centre. This is the premier annual event for internal auditors, risk, governance, assurance and compliance professionals in the South Pacific and Asia region.
Jill, an Accredited Specialist – Workplace Relations, will present on how to keep abreast in the changing HR compliance landscape, including how to understand the growing complexity of HR compliance, an overview of the emerging legislation that will impact the HR function including the National Childcare Safeguard Standards; Human rights requirements; Domestic & Family Violence; Disability reforms; Changing payroll and wages requirements; 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.
You can access further information about the conference here: https://lnkd.in/gDPV_Mfk
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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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