29 Jul HR LAW NEWSLETTER – JULY 2022
Welcome to the July 2022 Newsletter. This month, HR Law focuses on employee leave entitlements, a recent significant penalty imposed for an employer’s underpayment, and the Fair Work Ombudsman’s 2022 – 23 Compliance and Enforcement Priorities.
LEAVE PROVISIONS
- Paid family and domestic violence leave laws introduced
The Federal Labor Government has introduced the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (“the Bill”). The Bill will amend the Fair Work Act 2009 (Cth) (“FW Act”) by introducing a non-accumulating entitlement of 10 days’ paid family and domestic violence leave (“FDV Leave”) each year under the National Employment Standards (“NES”). The entitlement to be paid FDV Leave will be available to all full-time, part-time and casual employees and will take effect next year on 1 February 2023 for most employees. Those employers considered a small business will have a further six (6) months, until August 2023, to adjust to the change.
We will keep you updated on the progress of the Bill.
- Unpaid pandemic leave in modern awards
Whilst the entitlement to unpaid pandemic leave ceased in most modern awards on 30 June 2022, due to the increase in COVID-19 cases, employees covered by certain awards can once again access two (2) weeks’ unpaid pandemic leave (“Pandemic Leave”) if they are prevented from working because of COVID-19. The employee needs to start the period of Pandemic Leave before 31 December 2022 and can finish the leave after 31 December 2022.
Those employees able to access the extended Pandemic Leave entitlement, if they are eligible, are those engaged under the following modern awards:
- Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020
- Ambulance and Patient Transport Industry Award 2020
- Health Professionals and Support Services Award 2020
- Supported Employment Services Award 2020
- Social, Community, Home Care and Disability Services Industry Award 2020
Pandemic Leave does not have to accrue and is available to full-time, part-time and casual employees. Full-time and part-time employees do not have to use their paid leave entitlements before accessing Pandemic Leave. Pandemic Leave is not pro-rated for employees that do not work full-time and leave taken for Pandemic Leave still counts as service for entitlements under modern awards and the NES.
An employee must give notice to their employer that they are going to take Pandemic Leave and the reason for taking the leave. This notice must be given to the employer as soon as possible and this can be after the leave has commenced. The employer is entitled to ask the employee to provide evidence for the reason for the leave. An employer cannot dismiss an employee or take any other adverse action against an employee because the employee is entitled to unpaid pandemic leave.
- Productivity Commission seeking submissions on extended unpaid leave
The Productivity Commission is calling for submissions on the costs and benefits of an extended unpaid leave entitlement for informal carers. In April 2022, in response to the Aged Care Royal Commission, the Productivity Commission commenced an inquiry into the effects of creating a right under the NES for extended unpaid carer’s leave for workers providing informal care to older people living at home.
Currently under the FW Act, carers can access the following leave entitlements:
- 10 days of paid personal or carer’s leave;
- two days of unpaid carer’s leave; and
- a right to request flexible working arrangements, which employers can refuse on reasonable business grounds.
The concept behind unpaid carer’s leave is based on carer wellbeing, care recipient wellbeing and reducing the demand for formal care. The Productivity Commission seeks submissions on such an entitlement including the effects of a carer’s leave entitlement on economic activity such as employers’ hiring decisions, a carer’s decisions to work or provide care and the redistribution of resources from employers and employees and from carers to older Australians.
Submissions are being accepted up until 26 August 2022 with a draft report expected in January 2023. You can access the Productivity Commission’s Carer Leave Issue Paper here:
HEFTY PENALTIES FOR BRISBANE SUSHI RESTAURANT
The Fair Work Ombudsman (“FWO”) has secured a total of $355,000.00 in penalties against the operators of a Brisbane sushi restaurant after it was found the company had deliberately underpaid employees and falsified records. The penalty consisted of a $305,000.00 penalty against the company and a $50,000.00 penalty against the company’s sole director. The total amount of penalties is the second highest the FWO has obtained in a Queensland matter and one of the highest obtained in a case nationally.
The FWO commenced investigations after being contacted by an employee claiming to being paid $16.00 per hour. Upon investigation, the FWO found that across 34 employees, there had been various instances of underpaid minimum wage rates, casual loadings, overtime, split-shift allowances, and penalty rates for weekend, public holiday and night work, under the Restaurant Industry Award 2010 as well as breaches of the FW Act. The Company had also breached record-keeping and pay slip obligations.
The FWO had previously cautioned the Company on underpayments to staff and the Company knowingly provided the FWO with false records. The Federal Circuit and Family Court was satisfied that the conduct was of a systematic pattern and deemed the underpayments serious contraventions under the Protecting Vulnerable Worker laws, which allow for higher maximum penalties.
FAIR WORK OMBUDSMAN 2022 – 23 COMPLIANCE AND ENFORCEMENT PRIORITIES
The Fair Work Ombudsman has released its 2022 – 23 Compliance and Enforcement Priorities (“Compliance Priorities”). The Compliance and Enforcement Priorities focus on industries at significant risk of non-compliance, emerging issues of considerable public interest and concern and those identified as requiring additional assistance or are vulnerable. The priority sectors and issues are:
- Agriculture;
- Fast food, restaurants and cafés;
- Large corporate and University sectors;
- Sham contracting; and
- Contract cleaning
Although the Compliance Priorities focus on priority sectors and issues, employers across all industries and sectors are reminded that the FWO has the power to monitor compliance with the FW Act, investigate alleged breaches of the FW Act and take enforcement action. If you would like assistance in meeting your obligations in respect of your staff, please contact the team at HR Law.
A REMINDER OF CHANGES THAT CAME INTO EFFECT 1 JULY 2022…
- High income threshold increase
From 1 July 2022, the high income threshold increased from $158,500.00 to $162,000.00.
- Cap on unfair dismissal
The maximum amount that an employee may recover i their unfair dismissal application is successful is $81,000.00. This is applicable for unfair dismissals occurring on or after 1 July 2022. This is the upper limit for compensation in this jurisdiction, meaning that an employee will only be entitled to up to six months of their pay capped at $81,000.00.
- Rate increases effective 1 July 2022
The National Minimum Wage increased to $812.60 per week or $21.38 per hour from 1 July 2022. This is an increase of $40.00 per week or $1.05 per hour.
- Modern awards
Modern Award minimum wages increased by 4.6% subject to a minimum increase for adult award classifications of $40.00 per week. The $40.00 per week increase is based on a 38-hour week for a full-time employee. In effect, Modern Award minimum wage rates above $869.60 per week received a 4.6% adjustment, while wage rates below $869.60 per week have been adjusted by $40.00 per week. The wages increase is staged over two dates, being 1 July 2022 and 1 October 2022 (for employees in the aviation, tourism and hospitality sectors).
- Changes to Superannuation
Two important changes to the superannuation guarantee commenced from 1 July 2022:
- the minimum superannuation guarantee percentage increased from 10% to 10.5%; and
- the $450.00 per month superannuation guarantee threshold was removed.
Employers need to ensure they are paying their employees the minimum superannuation guarantee rate of 10.5%.
You can read our previous article on the 1 July 2022 changes here: https://www.hrlaw.com.au/hr-law-alert-annual-wage-review-2021-2022/
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.
No Comments