
28 Sep HR LAW NEWSLETTER – SEPTEMBER 2022
Welcome to the September 2022 HR Law Newsletter. This month we discuss the progress of the final stages of the Modern Award plain language review, Respect@Work legislation and consider an unfair dismissal case that considered whether a casual employee was dismissed following comments the casual employee had posted on the employer’s rostering app. We also remind employers of the 1 October 2022 wage increase for particular Modern Awards.
Fair Work Commission plain language Modern Award review almost complete
The Fair Work Commission has completed its “plain language” review of 118 of the 121 Modern Awards. This review commenced in September 2015 with the aim to simplify the language and structure of Modern Awards.
The three remaining Modern Awards to be completed as part of the Fair Work Commission’s plain language review are the Children’s Services Award 2010, the Aged Care Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010. A draft of the Children’s Services Award 2010 is expected shortly, however, the Fair Work Commission has advised that it does not propose to undertake a plain language review of the Aged Care Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 until the applications in the Work Value case – Aged Care Industry are determined.
You can access the full statement here:
Interpreting Modern Awards can be challenging as employers need to carefully consider matters such as whether an employee would be covered by an industry award or an occupational award, the classification of an employee and what entitlements an employee should receive. Getting this wrong can expose employers to significant back payments and the risk of having to pay penalties if it is found, for example, that an employee was engaged under the incorrect Modern Award or not receiving the correct entitlements etc. If you would like assistance with determining which Modern Award (if any) applies to your workplace and interpreting Modern Award provisions to ensure compliance, give the team at HR Law a call.
Respect at Work Legislation
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (“the Bill”) has been introduced into parliament, which implements a further seven of Sex Discrimination Commissioner Kate Jenkins’ Respect@Work recommendations. One of the seven recommendations introduced in the Bill includes a positive duty for employers to prevent workplace sex discrimination, harassment and victimisation and implements recommendation 18 by increasing the Australian Human Rights Commission’s (“AHRC”) powers to enforce the positive duty.
The AHRC’s functions will include:
- conducting inquiries into compliance;
- making recommendations to achieve compliance;
- giving compliance notices specifying actions to address non-compliance;
- applying to the courts for an auditor to direct compliance with notices; and
- a power to enter into enforceable undertakings.
The Bill also implements:
- Recommendation 16(a) by changing the objects of the Sex Discrimination Act 1984 to state that it seeks to achieve substantive equality between men and women.
- Recommendation 16(c) by amending the Sex Discrimination Act 1984 to introduce an express prohibition “to protect people from hostile workplace environments on the ground of sex“. The protection “will not require the conduct is directed at a specific person, but instead prohibits conduct that results in an offensive, intimidating and humiliating environment for people of one sex“;
- Recommendation 19 by empowering the AHRC to inquire into systemic unlawful discrimination. The AHRC will be able to inquire into “any matter that may relate to systemic unlawful discrimination, or suspected systemic unlawful discrimination“. Systemic unlawful discrimination is defined as “unlawful discrimination that affects a group of people and is continuous, repetitive or forms a pattern”;
- Recommendation 23 by enabling representative actions before the AHRC to proceed to the courts;
- Recommendation 25 by inserting costs protections into the Australian Human Rights Commission Act 1986; and
- Recommendation 43 updates the Workplace Gender Equality Act 2012 (“WGEA”) to require the federal public sector to report against six gender equality indicators to the WGEA.
We will keep you updated on the progress of this Bill.
You can access the Bill here:
THIS MONTH’S CASE BRIEF
Employee found to be unfairly dismissed despite posting critical comments on Roster App
A casual employee who posted comments of a critical nature against her Director on the Roster App Tanda (“Tanda”) was found by the Fair Work Commission to be unfairly dismissed. This issue arose when a Director of Aussie Kids Pty Ltd (“Aussie Kids”) sent an email to all employees that expressed her disappointment at the high rate of staff absences on a particular day. The casual employee at the center of this case, Ms Renee Royall (“Ms Royall”) aired her concerns at the Director’s comments by posting on Tanda that some employees had valid reasons for their absences and employees should be praised for their efforts, not criticised. Ms Royall also sent an email to the Director, attaching the post. The Director met with Ms Royall to express her concerns, pointing out the issue should have been raised in private. Ms Royall was sent home for the rest of the day, had her rostered shifts cancelled for the rest of the week and had her Tanda account deactivated without being notified.
Following the actions by the Director, Ms Royall filed an unfair dismissal application. The Director denied that Ms Royall had been dismissed and contended the shifts were only cancelled due to an excessive number of employees rostered on for that week. The Director did admit, however, that Ms Royall was the only one out of 17 casual employees whose shifts were cancelled, and the Director could not remember ever cancelling another whole week of rostered shifts for any other employee. Despite the Directors arguments, Deputy President Masson found Ms Royall had been dismissed from her employment.
The Director argued that Ms Royall did not meet the minimum employment period due to Ms Royall taking 18 weeks of unpaid parental leave, effectively breaking her continuous service. Deputy President did not agree and found the unpaid parental leave did not break the continuous service. Deputy President Masson also found that Ms Royall was a casual employee employed on a “regular and systematic” basis and that she had a reasonable expectation of continuing employment. Whilst Aussie Kids argued that Ms Royall had misused Tanda, Deputy President Masson could not determine whether it constituted misconduct of any kind, let alone a kind that would justify dismissal as the post was not in evidence. Deputy President Masson found Ms Royall’s dismissal was unfair because Aussie Kids did not have a valid reason for the dismissal, Ms Royall was not notified of her dismissal or the reason for it, nor was she provided an opportunity to respond.
Practical tips for employers
This decision shows that caution should be taken when taking action against an employee for behaviour and conduct issues. The Fair Work Commission will consider all circumstances of the matter including minimum employment periods, continuous service, the conduct of the employer and any actions taken against the employee as well as procedural fairness matters. If you would like assistance with managing employees, 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.
If you would like to read the case, you can access the case here:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/2301.html
What you may have missed…
1 October 2022 Modern Award wage increases
As previously advised in our August 2022 Newsletter, the following Modern Awards in the aviation, hospitality and tourism industry will be subject to a wage increase. The increases apply to the following specific Modern Awards:
- Aircraft Cabin Crew Award 2020
- Airline Operations – Ground Staff Award 2020
- Air Pilots Award 2020
- Airport Employees Award 2020
- Airservices Australia Enterprise Award 2016
- Alpine Resorts Award 2020
- Hospitality Industry (General) Award 2020
- Marine Tourism and Charter Vessels Award 2020
- Registered and Licensed Clubs Award 2020
- Restaurant Industry Award 2020
You can access our previous article which discusses the 1 October increases here: https://www.hrlaw.com.au/hr-law-alert-annual-wage-review-2021-2022/
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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.
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