The Fair Work Commission has varied[1] a number of modern awards with existing annualised wage provisions and introduced new annualised wage provisions into other awards. These new annualised wage award provisions will take effect from 1 March 2020 and are significantly different to the existing award terms. The new annualised wage award terms are very prescriptive and include a number of administrative requirements that many employers will find impractical and onerous. We encourage employers to review their annualised wage arrangements now and consider whether it is practical to implement the new regime and, if not, what other compliant options exist.

Employers should note the following changes will apply from 1 July 2019:

1.                National minimum wage

The national minimum wage, which applies to employees not covered by an award or enterprise agreement, will increase by 3% from 1 July 2019. The new national minimum wage will be $740.80 per week or $19.49 per hour. This is an increase of $21.60 per week or 56 cents per hour from the 2018/19 rates.

Over 80 modern awards were varied earlier this year to include a model casual conversion clause which allows regular casual employees to ask that their casual employment be converted to full or part time employment.  A regular casual employee is a casual employee who has worked a pattern of hours over the preceding 12 months which the employee could continue to perform as a full or part time employee without significant adjustment. 

The Federal Government has changed the Fair Work Regulations 2009 with effect from 18 December 2018 so that employers can set off casual loadings against certain NES entitlements.  This change goes some way to address the fallout from the decision in Workpac v Skene and will assist employers respond to claims by casual employees for permanent employee NES entitlements, notwithstanding that the employee was engaged as a casual and paid a casual loading.

In a recent and significant decision for retailers and employers captured by the General Retail Industry Award 2010, the Fair Work Commission has handed down its decision following the 4 yearly review of the Award and has determined to increase penalty rates for casual retail employees on Saturdays and weeknights after  6:00pm.  In addition, the Commission has also determined to reduce the Sunday shiftwork penalty rate for both permanent and casual employees.

Are your award/agreement covered casual employees working regular and predictable hours? If so, they could be considered permanent employees and have claims for permanent employee entitlements, such as annual and sick leave following a recent decision of the Full Federal Court.

Following its 26 March 2018 decision to include unpaid family and domestic violence leave in Modern Awards, the Full Bench of the Fair Work Commission has now delivered the draft order to be included in Modern Awards. The terms of the draft order are as follows and take effect from the first full pay period on or after 1 August 2018:

The Fair Work Commission has described the process undertaken by an employer to dismiss a long serving employee with an unblemished employment record as “fair, thorough and balanced”. 

The Australian Human Rights Commission (AHRC) recently found that Suncorp discriminated against a job applicant on the basis of his criminal record.  In that case, Suncorp withdrew a conditional offer of employment after routine background checks revealed the job applicant had convictions for child pornography offences.  Suncorp said it withdrew the offer because it had “serious concerns” about whether the applicant was able to perform the inherent requirements of the position and because an internal candidate had been appointed to the role.

Discriminating against employees and job applicants on the basis of an irrelevant criminal record and/or spent convictions is unlawful in some Australian states, although the laws vary from state to state.  At the federal level, discrimination in employment on the basis of criminal record and/or spent convictions is not unlawful, however the AHRC has the power to investigate complaints and may conduct a conciliation to resolve a complaint.  If the AHRC makes a finding of discrimination and the matter cannot be resolved through conciliation, it may prepare a report for the federal Attorney-General, which must be tabled in Parliament.  This is what occurred in the Suncorp matter.

Taking advantage of the gig economy and sharing apps, like Uber, Airtasker, and Freelancer, can give you more flexibility to grow or scale your business, but it can also increase legal risk given many businesses aren’t aware of, or don’t consider, who will be considered an employee at law and the consequential legal implications.