31 Oct HR LAW NEWSLETTER – OCTOBER 2022
Welcome to the October 2022 HR Law Newsletter. This month we discuss the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, the introduction of 10 days paid family and domestic violence leave and the Fair Work Commission’s Annual Report. We also consider a recent Federal Court decision on what constitutes work for the purposes of paid wages and provide a recap of updates we have recently posted.
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022
The Federal Government on 27 October 2022 introduced the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (“the Bill”) into the House of Representatives. The public debate around the legislation focused on the intention to broaden the scope of multi-employer bargaining and reduce the gender pay gap. Flexible work arrangements are also under the spotlight.
Currently, section 65 of the Fair Work Act 2009 (Cth) (“FW Act”) contains provisions regarding when an employee can make a request for flexible working arrangements. An employer may refuse the request only on reasonable business grounds as per section 65(3) of the FW Act. The view of the Government is that employers currently have minimal obligations or incentives to agree to such a request and employees have minimal recourse should the request be refused.
The Bill, if passed, will insert a section 65A – Responding to requests for flexible working arrangements. The provisions of the Bill will place an obligation on employers to attempt to reach an agreement at the workplace level with eligible employees who make flexible working arrangement requests. An employer must make a “genuine effort” to identify alternative arrangements if an employee’s request cannot be approved because of reasonable business grounds. If the parties cannot reach agreement, then the Bill gives the worker the right to take the employer’s refusal to the Fair Work Commission. The Fair Work Commission would then try to assist the parties to reach an agreement through conciliation. Should attempts to conciliate still fail, the Fair Work Commission will have the power to make a binding decision. The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of: (a) resolving the dispute; or (b) the Fair Work Commission dealing with the dispute.
Changes to flexible work arrangements and fixed term contract provisions under the FW Act are just some of the proposed amendments as well as the inclusion of Division 4 – Prohibiting Pay Secrecy provisions. In addition to these proposed changes, the Bill also introduces several other changes such as a new multi-employer bargaining regime and an exclusion scheme whereby the Fair Work Commission can issue an exclusion order to unions found to have breached the FW Act in the previous 18 months. The exclusion order can stop the union from bargaining for a specific single-interest employer agreement or multi-enterprise agreement.
You can access the full details of the Bill here: https://parlinfo.aph.gov.au/parlInfo/download/legislation/bills/r6941_first-reps/toc_pdf/22120b01.pdf;fileType=application%2Fpdf
We will keep you updated on the progress of the Bill.
Ten days paid family and domestic violence leave now a National Employment Standard entitlement
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (“FDV Leave Bill”) has now been passed by the House of Representatives, having accepted amendments made to the FDV Leave Bill by the Senate. The FW Act will be amended to provide an entitlement of up to 10 days paid family and domestic violence leave within a 12 month period for full-time, part-time and casual employees. This paid family and domestic violence leave entitlement will amend the current provision of the FW Act regarding the entitlement to five days unpaid family and domestic violence leave, which has been effective since 2018. The Federal Government will conduct a review of the provision in 12 months’ time.
Employers are reminded to prepare for these changes including reviewing their employment contracts, letters of offer and workplace policies. Employers will need to also comply with the FW Act amendments such as ensuring an employee’s confidentiality when their details are recorded on a payslip for this type of leave.
HR Law is here to assist if you need any help with preparing for this significant change.
You can access information on the FDV Leave Bill here:
Fair Work Commission releases its annual Access to Justice 2021-2022 report
The Fair Work Commission has released its annual report (“Annual Report”) for the financial year ending 30 June 2022. The Annual Report details performance, annual performance statements, management and accountability and other corporate governance matters of the Fair Work Commission.
The Annual Report highlights that out of 34,122 applications lodged with the Fair Work Commission and 15 categories listed, the largest number of applications lodged were for unfair dismissal totaling 13,096. General protection applications involving dismissals was the second largest number of applications lodged at 5,010, while the third largest was agreement approvals at 4516. General protections – other applications were listed at 1305 and Orders to stop bullying and/or sexual harassment at work accounted for 631 of the total applications lodged.
The Fair Work Commission also reported that the number of median days from the time from lodgment to conciliation in unfair dismissal applications was 34 days with 15 days being the median number of days for approval of all enterprise agreements and a median of 12 days from lodgment to agreement approval without undertakings.
If you would like to read the full Annual Report, you can access this here: https://www.fwc.gov.au/sites/default/files/2022-10/fwc-annual-report-2021-22.pdf
THIS MONTH’S CASE BRIEF
Unpaid pre-shift “work” – does this constitute paid work?
According to the Shop, Distributive and Allied Employees’ Association (“SDA”), Aldi could have to pay approximately $10 million dollars to 4000 of its national warehouse workers while also facing potential fines after the Federal Circuit and Family Court of Australia determined that required pre-shift tasks at a distribution center in western Sydney constituted work.
In the recent decision in Shop, Distributive & Allied Employees’ Association v Aldi Foods Pty Ltd  FedCFamC2G 799, Judge Humphreys has ordered Aldi and the SDA to attempt to reach agreement on a methodology to compensate workers after finding Aldi had breached section 50 and section 323 of the FW Act by failing to pay the employees for pre-commencement tasks. It was claimed by the SDA that from August 2018, Aldi had directed employees to clock-on 15 minutes prior to the start of their paid hours to carry out the tasks of collecting and assessing equipment, performing safety checks and driving their stock pickers to a central location.
Aldi argued it had not underpaid the employees as it only expects the employees to be prepared to begin work at the start of their rostered shift. Aldi provided video evidence of one employee only taking 5 minutes and 26 seconds to complete the tasks. Aldi did, however, admit during cross examination that it does expect the employees to have completed the tasks before starting their shifts and disciplinary action may be taken for those employees that repeatedly fail to do so. Judge Humphreys rejected the video evidence on the basis that it did not represent average time taken to complete pre-commencement tasks when multiple employees start at the same time and that similar post-work tasks took at least eight minutes to complete.
During the time from when the employees first record attendance (using a fingerprint scanner) and commencing the paid shift, the employees were required to:
- walk to the warehouse floor and find an order picker;
- wipe down the order picker;
- check the machines’ battery level and wheels;
- operate its forklift to check the elevation;
- drive the vehicle forward, then reverse, and then proceed to the selections area to acquire a headset that has to be checked; and
- complete a checklist.
Judge Humphreys was “reasonably satisfied” that the pre-commencement tasks took an average of 10 minutes to complete and therefore there was a “clear implied direction that employees had to arrive early” to complete the tasks before the paid shift started. In regard to the tasks, Judge Humphreys stated at paragraph  that the tasks were “not for the benefit of the employees” but rather “solely to the benefit of the employer, in that by the time the employee arrived at a designated location for the commencement of shift, all necessary activities for the employees to get immediately to work had been completed.”
Aldi further contended that 2017 and 2020 enterprise agreements had always required employees to be present at the selection desk ready to commence work at the commencement of their shifts and this did not form part of their contracted hours. Aldi argued this issue had never been raised by the SDA in the approval process for either of the enterprise agreements. Despite Aldi’s contentions that the SDA had never raised this issue previously, Judge Humphreys at paragraph  noted “If the Court finds, as it has, that the pre-commencement task[s] are work, then the time taken to perform those tasks is liable for payment by the employer.”
Aldi and the SDA were directed by Judge Humphreys to agree on the methodology for payment to the employees. If Aldi and the SDA cannot reach agreement, they are to submit their requests to the Court who will determine the matter.
Practical tips for employers
This decision shows that caution should be taken when directing employees to attend work and undertake tasks in preparation for commencement of their shifts. This case highlights that even 10 minutes of “preparation” time, if found to be work related tasks to which entitles an employee to receive payment, can end in an expensive back payment claim. If you have any questions regarding your workplace and what could be considered paid work, give the team at HR Law a call. Getting it right the first time is the best way to avoid any costly claims and penalties that may be made against you and your business.
You can access the full case here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC2G//2022/799.html
What you may have missed …
- Review of superannuation clauses in Modern Awards
The Fair Work Commission will be conducting a review of superannuation clauses in over 100 Modern Awards as a result of concerns raised that the clauses could conflict with legislative changes made recently to stapled superannuation funds and underperforming products. Generally, from 1 November 2021, if a new employee does not choose a superannuation fund, the employer must ask the Australian Taxation Office (“ATO”) if the employee has a “stapled” superannuation fund. If the ATO provides stapled fund details, the employer must make contributions to the employee’s stapled fund.
- Increase to paid parental leave
The Albanese Government has announced that there will be a phased-in increase to the total package of federally funded paid parental leave from 20 to 26 weeks between 2024 and 2026. The current entitlement provides for 18 weeks of paid leave under the Paid Parental Leave scheme and two weeks of dad and partner pay (both paid at the minimum wage). Prime Minister Anthony Albanese, Social Services Minister Amanda Rishworth and Finance and Women Minister Katy Gallagher said in a statement that the Government will introduce reforms to modernise the system and improve flexibility from July next year. From 1 July 2024, the Government will start expanding the scheme with two additional weeks a year until the scheme reaches its full 26 weeks from July 2026.
- Fair Work Ombudsman breaks previous recovery records
The Fair Work Ombudsman has announced that during 2021-22, it has recovered more than $532 million in back-paid wages and entitlements for 384,805 workers. The amount recovered and the number of employees payments that were recovered over the period are both record numbers. The 2021-22 recovery is three times higher than the previous record recovery in 2020-21 and more than four times higher than that of the record recovery in 2019-20. Large corporate employers accounted for more than half of the amount recovered, back-paying nearly $279 million to more than 267,000 employees.
You can read our previous updates on these topics on our HR Law Linkedin page: https://au.linkedin.com/company/hr-law
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.