31 Mar HR LAW NEWSLETTER – MARCH 2022

Welcome to the March Newsletter.  This month we discuss possible changes to the National Employment Standards (“NES”) as a result of the recent Budget, upcoming public holidays and a review being undertaken of family and domestic violence leave.  We also discuss recent decisions in the anti-sexual harassment jurisdiction and in regard to industrial manslaughter.

Plans to change the NES

The 2022-23 Budget handed down by the Morrison Government this week has revealed plans to discuss changes to the NES with regards to redundancy payouts for women and unpaid leave entitlements to foster and kinship carers. 

The Government has indicated that the proposed changes are to ensure fairness and equity in redundancy payouts, particularly for women, and to recognise contributions made by foster and kinship carers.

Redundancy

Currently, the NES redundancy entitlement provisions are based on years of service.  The Government is proposing to make changes to how redundancy payments are calculated to better reflect the average working hours over the period of a worker’s employment. 

Paid Parental Leave

The Government is proposing to extend paid parental leave so more eligible families will be able to access 20 weeks of paid parental leave, including single parent families, with the aim of allowing eligible families to decide how to share the paid parental leave.  The key proposed changes are:

• paid parental leave can be taken at any time within two years of the birth or adoption of the child;

• the current ‘Dad and Partner Pay’ will be rolled into the Parental Leave Pay to create a single paid entitlement of up to 20 weeks, which would be fully flexible and shareable for eligible working parents;

• the paid parental leave income test will be broadened to include a household income threshold of $350,000.00 per year; and

• removing disincentives for fathers to take up parental leave by enabling fathers to take Government paid parental leave in conjunction with employer-funded leave.

The enhanced paid parental leave for families, estimated to be a $346 million spend, will be implemented over the next five years with the majority of funding expected from 2023-2024 onwards.  The Government has indicated it will consult with key stakeholders on amending the NES. 

We will keep you updated on changes as they develop.

Jail time for work health and safety industrial manslaughter  

On Friday 25 March 2022, a Queensland business owner was found guilty of an industrial manslaughter offence and sentenced to a five year jail term (with 18 months to be served and the remaining period to be suspended).   This is the first time an individual has been prosecuted for this offence under Queensland’s Work Health and Safety Laws since the offence was bought into law in 2017.  

See our Linkedin article about this here:  https://www.linkedin.com/company/hr-law?challengeId=AQG3OkYXSRxkqwAAAX_c3mK7ZtFtuIGc7aRuL7p-FZ6owkss3RlgVGXK6HnpIyeMlBBr4Hq0Mpvh_DcR1NJDQpdnhW136d8pXw&submissionId=49270b44-f047-e116-cbb2-7a6a915d3472

Family and domestic violence leave review

As part of the four yearly review of modern awards, the Fair Work Commission varied 123 modern awards to include an entitlement to five days’ unpaid leave to deal with family and domestic violence. 

A review has now been commenced of the family and domestic violence leave terms in modern awards.  This review commenced with a conference on Friday, 30 April 2021.

The following issues will be considered as part of the review:

• whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave;

• the adequacy of the unpaid family and domestic violence leave entitlement; and

• whether provisions should be made for paid family and domestic violence leave.

The Fair Work Commission has listed this matter for final oral submissions on Friday, 8 April 2022 and a decision is anticipated to follow shortly after that.  We will keep you up to date on the outcome of the review. 

Public Holiday Provisions

As we are heading into the Easter break, it is important to revisit your obligations when it comes to employees and public holidays.  

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.

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 sufficiently compensates the employee 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 the Fair Work Act 2009 (Cth) to ensure they are complying with their obligations. We are always available to assist if you need advice.

Fair Work Commission delivers its second substantive ruling in the anti-sexual harassment jurisdiction

The Fair Work Commission has found that a supervisor sexually harassed a casual chef when he badgered her to have sex with him but has thrown out the case because the victim is no longer employed with the employer.

In the decision of Ranmeet Kaur [2002] FWC 487, it was found that the sexual harassment arose when the supervisor asked the employee if she wanted to be his girlfriend, indicated that she would get special treatment in the workplace if she agreed, and made two sexual advances – one in a phone call where he asked her to have sex with him and the second, in a phone call on her day off when he asked her to attend an outing with him.

The employer challenged the evidence on the basis that the chef was difficult to work with, was underperforming and that her allegations of sexual harassment and workplace bullying only arose after she was told she cut the calamari too thick.

The Fair Work Commission accepted that all of the conduct occurred “at work”, including when the supervisor gave the chef a lift to work and during an off duty phone call initiated by the supervisor in which the conversation was not work-related and work-related matters were only introduced by the chef at a later point.

The Fair Work Commission not only had to be satisfied that the chef had been sexually harassed at work, but that a risk remained that she would continue to be subject to the conduct.  This raised the difficulty because the chef disclosed at the hearing that she had earlier that month quit her job.  As the chef was no longer employed, the Fair Work Commission had no power to issue an anti-sexual harassment order and dismissed the case.

As we see again in this case, the Fair Work Commission can issue protective orders to those individuals that can prove they are exposed to an ongoing risk of sexual harassment however, an applicant who no longer works with the alleged offender is unlikely to be exposed to any ongoing risk and the Fair Work Commission may not be able to make such orders.

HR LAW ANNOUNCEMENTS

Excellence Awardee in the Employment Law Specialist Firm of the Year category of the Australasian Law Awards 2022

HR Law is excited to announce that it has been recognised as an Excellence Awardee in the Employment Law Specialist Firm of the Year category of the Australasian Law Awards 2022.  This Award recognises the top stars in the Australasian legal market.  We thank Australasian Lawyer for this amazing recognition and congratulate the other awardees.  This is another great achievement for our incredible team.  We thank our wonderful clients and colleagues for their continued support. #AusLawAwards.

Doyles Guide 2022

Jill Hignett, our Managing Partner, has been listed as a leading Employer-focused Queensland Employment Lawyer in the Doyles Guide 2022.  We are proud for Jill to be recognised in the Guide by her clients, industry peers and relevant bodies for her expertise and talent in this area.