30 Jul HR LAW NEWSLETTER

July 2021

Welcome to the July 2021 HR Law Newsletter.  July has been a busy month for employers effecting 1 July changes such as the increase to the national minimum wage and modern award wages and the increase to superannuation, i.e. from 9.5% to 10%.  

These changes demonstrate that employment law obligations are always changing, making it essential that employers keep up to date.  The team at HR Law are here to assist you every step of the way, to help you comply with your workplace law obligations.  

Fair Work Commission rules on casual terms in Modern Awards

As you may be aware there were significant changes to rules regarding casuals, which came into effect on 27 March 2021, including a new casual employee definition and casual conversion arrangements. You can read more about these changes in our previous article which you can access here: https://www.hrlaw.com.au/hr-law-alert-changes-to-casual-employment/ and the HR Law Webinar ‘Significant changes to casual employment – everything you need to know” at https://www.hrlaw.com.au/april-2021-webinar-significant-changes-to-casual-employment-everything-you-need-to-know/.

It was determined that in bringing in these changes, within six months of the 27 March 2021 the Fair Work Commission (“the FWC”) would be required to review “relevant terms” of modern awards on the basis of their interaction with the new casual employee definition and casual conversion arrangements.  

Clause 48(1)(c) of Schedule 1 to the Fair Work Act 2009 (Cth) (“FW Act”) provides a relevant term is one that:

• defines or describes casual employment; or
• deals with the circumstances in which employees are to be employed as casual employees; or
• provides for the manner in which casual employees are to be employed; or
• provides for the conversion of casual employment to another type of employment.

Termed the “Casual Terms Award Review 2021“, the FWC has structured the review by grouping modern awards into two stages. The Stage One modern awards are:

• General Retail Industry Award 2020;
• Hospitality Industry (General) Award 2020;
• Manufacturing and Associated Industries and Occupations Award 2020;
• Educational Services (Teachers) Award 2020;
• Pastoral Award 2020; and
• Fire Fighting Industry Award 2020.

All remaining modern awards are classified into Stage Two and will be reviewed accordingly.  

The FWC has completed its review of the relevant terms of the Stage One modern awards, taking into consideration submissions from interested parties such as unions and industry groups. Apart from the Fire Fighting Industry Award 2020, the FWC found inconsistencies, uncertainties and difficulties between the casual terms in the Stage One modern awards and the FW Act. 

The FWC will now issue its draft determinations for the variation of the Stage One modern awards.  It is anticipated that the variations will likely take effect on 27 September 2021.  The basis of the draft determinations will provide the review model for the Stage Two modern awards.

Employers should consider the potential impact that any such variations will have on contracts of employment and the engagement of casual employees.  If you require assistance with ensuring that your contracts of employment and relevant documentation reflect the amendments, please get in touch with the team at HR Law.  

The full decision of the FWC review can be found on the FWC website at: https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb4144.htm

FW Act to be amended to address sexual harassment in the workplace

The Federal Government’s Sex Discrimination and Fair Work (Respect at Work) Amendment Bill (2020) (“the Bill”) is set to introduce changes to the FW Act, the Sex Discrimination Act 1984 (Cth) (“the SDA”) and the Australian Human Rights Commission Act 1986 (Cth) (“the AHRCA”). 

This Bill is the result of the recommendations made in the Respect@Work Report published by the Sex Discrimination Commissioner. Although, not all recommendations have been implemented, the aim of the legislative reforms is to address the issue of sexual harassment within workplace law.

The proposed amendments to the FW Act give the FWC greater powers for considering sexual harassment in Australian Workplaces.   The proposed amendments to the FW Act include:

(a)     expansion of the anti-bullying orders available to the FWC in the context of sexual harassment, that is, a person can apply to the FWC for a “stop sexual harassment order”;

(b)     amending section 104 of the FW Act to extend compassionate leave provisions for an individual or their spouse when a miscarriage occurs;

(c)     amending section 387 of the FW Act to clarify that sexual harassment can be conduct that is a valid reason for dismissal when determining whether a dismissal is harsh, unjust or unreasonable; and

(d)     expanding the definition of “serious misconduct” to include sexual harassment.

The Bill also proposes amendments to the SDA that expand the coverage to workers and persons conducting a business or undertaking, expands the scope for accessorial liability of sexual harassment, clarifies public servant obligations and includes provisions for harassment on the grounds of sex that may not be of a sexual nature. The Bill also proposes to amend the AHRCA to extend the time for making a compliant, as well as giving the complainant the option to initiate proceedings for unlawful discrimination in the Federal Court or Federal Circuit Court should the President of the Australian Human Rights Commission terminate a complaint.  

The Senate Employment and Education Committee will review the Bill and provide its report before 6 August 2021 at which time the Bill will be considered by Federal Parliament.

To prepare for these impending changes to the legislation, employers should ensure policies, complaint processes and disciplinary procedures reflect the changes to the legislative provisions.  HR Law can assist you to ensure compliance with the introduction of these new laws.   

Regional Public Holidays – South East Queensland

Employers across Australia are reminded to check which regional district Show Days are considered public holidays for the purposes of employee entitlements.

For businesses in the city of Brisbane area, Wednesday 11 August 2021 is People’s Day as a result of the Brisbane Ekka.  Employees working on People’s Day will be entitled to public holiday entitlements under the relevant industrial instrument which applies to their employment such as a modern award or enterprise agreement. 

Is your business based on the Sunshine Coast, but you have employees working in Brisbane on that day? Are you confused about which regional Show Day public holiday is relevant to your business?

Contact the HR Law team to check which regional public holiday applies to your business and what your employees’ entitlements and your obligations are.

Federal Circuit Court finds employee was covered by Modern Award

In a recent decision by the full Federal Court, the full Federal Court considered on appeal whether an employee fell within a particular modern award classification, namely a classification in the Fitness Award 2010 (now the Fitness Award 2020) (“the Award”).  

Mr King was employed as a swimming coach by the Melbourne Vicentre Swimming Club Inc from 22 August 2006 up to his dismissal on 28 May 2018.  Mr King’s claim specifically related to his employment from 29 May 2012 to 28 May 2018. 

In King v Melbourne Vicentre Swimming Club Inc [2021] FCAFC 123, the Full Bench considered two questions of construction of award classifications:

• whether the general wording in the Award pertaining to the seniority of a relevant employee meant that Mr Matthew King (“Mr King”) was covered by the Award or whether Mr King needed to meet the description provided by the more specific wording about the work, qualifications and experience of swim coaches; and

• whether if Mr King did need to meet that more specific wording, swim coaches who exceed the specified level or work, qualifications and experience are not covered by the Award.

The Full Bench agreed with the primary judge on the first question but disagreed as to the second question.  At paragraph [3], Justices Collier, Katzmann and Jackson noted:

“ … on its proper construction, the wording did not exclude employees with high levels of work, qualifications and experience.  The result is that Mr King’s employment was covered by the Award during the relevant periods”.

The Award contains nine classification levels, Level 1 to Level 7.  Mr King’s claim on appeal was confined to him falling within Level 4.  A key consideration in determining if Mr King was covered by the Award was the fact that Mr King held a Silver Licence and not a Bronze Licence and coached swimmers above a beginner level.  As clause B.5.3 of Level 4 included the words “may also be”, the issue of construction was whether the clause described both a minimum and maximum requirement for Level 4 coverage or was it the minimum requirement only. 

Justices Collier, Katzmann and Jackson found that Mr King did in fact fall within the Level 4 descriptors under the Award, overruling the previous decision that Mr King was overqualified and worked at too high a level.  Their Honours at paragraph [76] observed:

“The Award does not expressly say the requirements of a Bronze Licence and the coaching of beginner swimmers are both the “floor” to level 4 and also its “ceiling”.

It was found that the descriptors in the classification level were only the minimum requirements for a swim coach covered by Level 4 and did not set a ceiling for that classification level.  As such, Mr King did fall within the Award paving the way for Mr King to have underpayment claims determined. 

Practical Implications and tips

This case highlights the importance of correctly interpreting the classification levels of an award when determining if an employee is covered by a modern award or is award free. Simply focusing on one or two modern award classification requirements to determine coverage without considering other classification factors may result in incorrect classifications. 

If you require any assistance with ensuring you are correctly classifying whether an employee falls under a modern award classification, and if so which classification, or is award-free, please get in touch with the team at HR Law for advice. We can assist in helping you to avoid breaching your legal obligations and facing consequences, such as back payments and potential penalties under the FW Act.