29 Sep HR LAW NEWSLETTER – SEPTEMBER 2023

Welcome to the September 2023 HR Law Newsletter.  September has been a very busy month, with several changes announced in the employment space.  This includes the Fair Work Commission announcing a review of modern awards as well as the Federal Government’s proposed changes to the Fair Work Act 2009 (Cth) (“FW Act”).  This month, we discuss these changes and also focus on a recent case, in which the Fair Work Commission found in favour of the employer and upheld the dismissal of a worker who committed timesheet fraud.

UPCOMING PUBLIC HOLIDAYS

A reminder that there are several public holidays occurring next Monday, 2 October 2023, including:

• Australian Capital Territory (Labour Day);
• New South Wales (Labour Day);
• Queensland (King’s Birthday); and
• South Australia (Labour Day).

Do you have staff working or need staff to work on a public holiday? 

Employers are reminded that they should only request (rather than require) employees to work on a public holiday and that the request has to be reasonable.

An employee can refuse a request to work on the public holiday if:

• the employee has reasonable grounds upon which to refuse the request; or
• the request is unreasonable.

Do you need some assistance in meeting your obligations for requesting staff to work public holidays? Contact the team at HR Law today to discuss.

UPCOMING CHANGES

Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 Announced

On Monday, 4 September 2023, the Federal Labor Government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (“the Bill”) into Parliament.

The Bill proposes amendments to the Fair Work Act 2009 (Cth) that the Government says aim to further safeguard pay and conditions for employees and employee-like workers.  Some of the key changes under the proposed legislation include:

• criminalising wage theft;
• introducing minimum standards for workers in the gig economy;
• new casual employee definition;
• closing the labour hire loophole; and
• right to challenge unfair contractual terms.

However, the Bill has likely been delayed until early next year.  On Tuesday, 5 September 2023, Parliament voted to refer the Bill to the Education and Employment Legislation Committee for an inquiry and report by 1 February 2024, due to the Bill involving “complex” issues which need wide-ranging consultation with multiple stakeholders.  HR Law will keep you updated.

HR Law also recently wrote an article outlining the changes.  To read the article, click here.

Review of Modern Awards

After a request from Workplace Relations Minister Tony Burke, the Fair Work Commission (“Commission”) has initiated a review of the modern awards.  During the review, a Full Bench of the Fair Work Commission will consider:

• the new Object of the FW Act and modern awards objective regarding job security and the need to improve access to secure work across the economy;

• the impact of workplace relations settings on work and care; and

• award coverage and minimum standards for the arts and culture sector.

On Tuesday, 26 September 2023, the Commission released its draft timetable for the review.  Amongst other key dates, the draft timetable has an anticipated review completion date of on or about 28 June 2024.  A Directions Hearing will be conducted next Tuesday, 3 October 2023 to allow interested parties the opportunity to respond to the above draft timetable.  Following this, a final timetable will be published. 

To view the draft timetable, click here.

To view the Modern Award review, click here.

THIS MONTH’S CASE BRIEF

Do you have a policy around time keeping and time sheets?

In this month’s case brief, we discuss the case of Ms Julie Budgen v Verifact Traffic Pty Ltd [2023] FWC 2224, in which the Commission upheld the dismissal of an employee, after it was found that the employee had committed timesheet fraud.

Ms Budgen (‘the Applicant”) was employed by Verifact Traffic Pty Ltd (“Employer”) full-time as a traffic controller.  An investigation revealed that the Applicant had left her work site early 17 times in six weeks and forged the finish time on her work dockets.  As a result, the Applicant had falsely recorded more than 25 hours of time she did not work.  The Employer subsequently terminated the Applicant for serious misconduct.

The Applicant then brought an unfair dismissal application against the Employer, however, the application was dismissed by the Commission. Deputy President Nicholas Lake held that the Commission “has found on multiple occasions that misrepresenting timesheets is a valid reason for dismissal“.

Further, the Commission found the Employer had:

• made its stance on inconsistent dockets clear, when in the 18 months before it dismissed the Applicant, sent all its employees two notices emphasising the importance of accurately completing dockets; and

• outlined its expectations around time sheets/work dockets in its Enterprise Agreement, which the Applicant’s employment was covered by.

Accordingly, given the Applicant was aware of the expectations regarding timesheets, it was determined that the dismissal of the Applicant was not harsh, unjust or unreasonable.

In this case, the Employer’s stance on timekeeping and timesheet accuracy was pivotal in upholding the dismissal.  Employers can draw several lessons from this case including:

• employers must communicate their expectations regarding timekeeping and timesheet accuracy clearly and consistently to their employees;

• outline the business’ expectations in policies and procedures, or in the employee’s employment contract.  Such policies will then serve as a reference point for an employer to rely upon when taking disciplinary action;

• employers should ensure that they consistently apply their policies and standards to all employees.  This can assist in defending an employer’s actions, where an employee brings an unfair dismissal claim; and

• employers should ensure that employees understand the business’ timekeeping policies by training them in the policy.

If your business does not currently have a Timesheet/Time Record Policy, we strongly recommend you implement this type of policy.  HR Law can assist you with drafting a Timesheet/Time Record Policy or if you would like to discuss your existing policy, please contact us. 

To read the case, click here.

UPCOMING WEBINAR

HR Law’s sister company, HR Business Assist is hosting a free Webinar event on Wednesday, 4 October 2023 commencing at 9:00am.

In this Webinar, HR Business Assist will deep dive into the basics of modern awards including:

• how you should determine modern award coverage;
• the significance of the classification levels under each modern award;
• how pay guides relate to the relevant modern award; and
• some tips on what to look out for in modern awards (i.e. pay frequency, additional leave, minimum shift engagements, ordinary span of hours etc.).

To register for this essential and informative Webinar, please click here.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.