31 May HR LAW NEWSLETTER – MAY 2022
Welcome to the May Newsletter.
This month, HR Law discusses the upcoming 1 July 2022 changes to superannuation and the Social, Community, Home Care and Disability Services Industry Award 2010.
We also review a general protections case which considered the complexities of determining who was the “decision maker” in terminating an employee, where various levels of decision making was involved.
Two important changes to the superannuation guarantee will commence from 1 July 2022. These changes are as follows:
- the minimum superannuation guarantee percentage will increase from 10% to 10.5%; and
- the $450.00 per month superannuation guarantee threshold will be removed.
Employers will need to ensure that they pay their employees the minimum superannuation guarantee rate of 10.5% from 1 July 2022.
Now is the time to start planning how this superannuation guarantee increase will be implemented and communicated. Employers need to consider the effect this will have on employees whose remuneration is inclusive and exclusive of superannuation and any amendments which may be required to the terms regarding their employment.
By removing the $450.00 per month superannuation guarantee threshold, employees earning less than $450.00 per month will now be eligible for the superannuation guarantee payment.
For some employers, this may mean paying superannuation to its employees for the very first time. These employees will need to be provided with a superannuation Standard Choice Form. If an employee does not provide the employer with their choice of superannuation fund, the employer is required to follow the superannuation stapling provisions. A stapled superannuation fund is an existing superannuation account linked to an individual employee. You can read our previous article regarding superannuation stapling here: https://www.hrlaw.com.au/hr-law-october-2021-newsletter/
Employers should act now and update payroll software so that their employees’ superannuation guarantee entitlements are paid correctly or clarify with their payroll provider prior to 1 July 2022 how the change will be implemented in the payroll system.
Social, Community, Home Care and Disability Services Industry Award 2010
The Social, Community, Home Care and Disability Services Industry Award 2010 (“the Award”) will introduce changes effective from the first pay period from 1 July 2022. These changes are as follows:
- Minimum payment for casuals: The minimum payment for casual home care employees will increase from one (1) hour to two (2) hours. Casual employees will be able to work for more than one client during their minimum payment period.
- Minimum payments for part-time employees: Part-time employees will need to be paid for the following minimum hours for each shift or work period in a broken shift:
- social and community services employees (except when undertaking disability services work): three (3) hours;
- social and community services employees doing disability services work – two (2) hours;
- all other employees – two (2) hours.
The part-time employee can work for more than one client during their minimum payment period. The minimum payment for part-time employees is a new entitlement. Currently under the Award, there is no provision for a minimum payment for part-time employees.
- Broken shifts: There will be two (2) new broken shift allowances for social and community employees when undertaking disability services work and home care employees, with a higher payment if there are two breaks. For the purposes of the broken shift allowance, the breaks are unpaid and are not meal breaks. If an employee is required to work a broken shift, the minimum payment will apply for each period of work during that broken shift.
- Damaged clothing allowance: Employers will be required to cover reasonable costs associated with repairing or replacing an employee’s personal clothing that is soiled or damaged beyond repair while the employee is performing their duties (excluding normal wear and tear). The employee may also be entitled to a laundry allowance for soiled clothing.
- Remote work: New minimum payments and penalty rates will apply depending on when remote work is performed and whether the employee is required to be on call. Multiple payments may apply if multiple instances of remote work are performed on any day. This new entitlement is in addition to the existing on call allowance in the Award.
- Consultation requirements for different arrangements: Currently, employers and employees can agree that an employee will work shifts or periods of work in broken shifts that are less than the new minimum payments. For these type of agreements before 1 February 2022, the employer and employee will need to:
- discuss the new minimum payment requirements; and
- try to genuinely reach an agreement on a variation to the employee’s current hours of work which are consistent with the new minimum payments and fits the employee’s circumstances.
If an employer and employee have discussed the agreement but cannot agree on a change, the agreement can be varied by the employer to meet the new minimum payments by giving the employee 42 days’ written notice of the change. This variation must not start before 1 July 2022. These consultation requirements do not stop an employer and an employee from agreeing to other changes to the agreement that are consistent with the provisions in the Award.
You can view the Fair Work Commission’s determination on the Award here:
AN EMPLOYEE CLAIMS THEY WERE DISMISSED FOR A PROHIBITED REASON BUT WHO MADE THE DECISION TO DISMISS?
In accordance with section 361 of the Fair Work Act 2009 (“FW Act”), in circumstances where an application is made alleging that a person took action for a particular reason or with particular intent, it is presumed the person has taken the action for the alleged reason or with the alleged intent unless proven otherwise. Determining who the “decision maker” was, is relatively simple when there is only one decision maker, however it is not so simple in situations where various levels of decision making are involved. This issue was considered in the recent case of Lintvelt v QGC Pty Ltd  FedCGamC2G 275.
Mr Lintvelt, a FIFO plant operator, claimed he was subject to adverse action by QGC, for a reason proscribed by the FW Act, namely that his employment was terminated during his probationary period because he exercised a workplace right to make a complaint about the safety of his workplace. Mr Lintvelt was seeking more than $170,000.00 in compensation. Mr Lintvelt contended that the relevant decision to terminate his employment was made by one or the other of the second to fourth respondents, either individually or collectively, on behalf of QGC, each of which formed part of Mr Lintvelt’s direct line of management.
QGC asserted that the Deputy Operations Manager and Shell’s Perth-based ER/IR manager were the decision makers.
Judge Brown, whilst acknowledging QGC’s assertion that neither the supervisor, field manager and QGC’s Brisbane-based HR advisor (named respondents) could be regarded as decision makers, Judge Brown considered that “there can be no doubt that information, which they provided to their superiors, was instrumental in the decision being made“.
With regards to section 361 of the FW Act, Judge Brown said that “once an applicant has established that adverse action has been taken against him or her, by an employer within an industrial context, it falls to the relevant decision maker, within the employer concerned, to provide evidence in respect of the reason why that action was taken and to establish that it was not for a protected aspect of employment”. Judge Brown said that “judgement will focus on who was the constructive or effective decision maker in respect of [the operator’s] termination, what was the information on which that decision was based and whether the information was tainted by any erroneous or illegal considerations and certainly, what was the substantive and operative reason for his dismissal”.
As QGC is a subsidiary of a corporation with employees and offices nationally and internationally, Judge Brown said that “necessarily its decision-making functions are both widely dispersed geographically and shared between many individuals, some of whom meet, for decision-making processes, collegiately”. Judge Brown ultimately found that the supervisor was the most “significant actor” in the dismissal and that Mr Lintvelt was not subject to adverse action because he raised health and safety issues in the workplace or for any other protected attribute.
This case highlights the complexities that employers have to manage when defending general protection claims and the factors the Court will consider when determining if an employee was subject to adverse action. If you have any questions about the general protection provisions of the FW Act or need to advice to avoid or defend a claim made, please contact the team at HR Law.