New reforms (As of today – Nov 8, they are being debated – CCIQ will update as issues are settled)
An IR Alert was sent to our members on last week with some excellent information about the Christmas-New Year period considerations, as well as an update on a new workplace entitlement for all employees that our members need to get across.
IR Reforms on the Agenda
On Thursday, 28 October, the Federal Government introduced the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (‘Bill’). The Bill proposes to amend several sections of the Fair Work Act 2009 (Cth) (‘FW Act’) in the following ways:
- Inserting job equity principles into the FW Act;
- Amending enterprise bargaining provisions to:
a. Increase access to single bargaining
b. Increase multi-employer bargaining
c. Amend the current Better Off Overall Test
- Amending FW Act section 65 flexibility requests provisions to enable disputes over reasonable business grounds to be dealt with by the Fair Work Commission;
- Limiting the use of fixed term contracts for the same role to a maximum of two years, or two consecutive contracts (whichever is the shorter). Note that a limited number of exemptions are proposed to apply;
- Sunsetting workplace agreements that were made prior to 2010 so they automatically cease to operate 12 months after the Bill takes effect;
- Prohibiting pay secrecy – to prevent employers from requiring staff to not disclose their salary;
- Expressly prohibiting sexual harassment in the FW Act;
- Abolishing the ABCC with the Fair Work Ombudsman to take on those functions;
- Abolishing the Registered Organisations Commission with the Fair Work Commission to take on those functions;
- Establishing new expert panels in the Fair Work Commission on pay equity and the care and community sector; and
- Increasing the cap that an employee can claim in unpaid wages from $20,0000 to $100,000.
* This is not an exhaustive list
What Does This Mean to Business?
The Bill proposes a number of changes to the FW Act and employers need to be across what the changes will mean for them.
At the date of this IR Alert, the Bill is still before the House of Representatives and is unlikely to be approved by both the House and Senate prior to the end of 2022. While the Bill progresses through its usual approval process, CCIQ’s Workplace Services team will prepare a detailed overview of the Bill and what it means for members.
Relevant resources, including a webinar to explain the changes, will be available shortly to assist CCIQ members to navigate the reforms.
Please note that a second tranche of IR reforms is expected to be introduced in early 2023.
ALSO – see PDF (click here)
October HR Update
PAID FAMILY AND DOMESTIC VIOLENCE LEAVE
Yesterday, Thursday 27 October, the Senate passed the Fair Work Amendment (Paid Family and Domestic Violence Leave) Billl 2022 (‘Bill’).
The Bill amends the Fair Work Act 2009 (‘FW Act’) and will introduce 10 days of paid leave per year that an employee, including a casual, can access as Family and Domestic Violence (‘FDV’) leave. This entitlement will replace the current five days of unpaid leave in the National Employment Standards.
The Bill will have effect on February 1, 2023, except for Small Businesses who will have an extra six months to prepare for this new entitlement.
CCIQ’s Workplace Services team is preparing more detailed information on this new FDV entitlement and will provide it to members soon.
CHRISTMAS-NEW YEAR PUBLIC HOLIDAYS
Members are reminded of the upcoming Christmas and New Year related public holidays for 2022.
Saturday, 24 December – 6 pm until midnight
Christmas Eve part-day public holiday
Sunday, 25 December
Christmas Day public holiday
Monday, 26 December
Boxing Day public holiday
Tuesday, 27 December*
Christmas Day additional public holiday
Sunday, 1 January 2023
New Year’s Day public holiday
Monday, 2 January 2023*
New Year’s Day additional public holiday
* The Holiday Act 1983 (Qld) provides for an additional public holiday to be recognised when Christmas Day, Boxing Day and New Year’s Day fall on a weekend.
PUBLIC HOLIDAY ENITITLEMENTS
Entitlements for working on public holidays
Members are reminded where an employee works on either the actual or the additional public holiday, public holiday rates of pay and other entitlements may apply. Refer to any relevant award or registered agreement that applies for more details.
Payment for not working on public holidays
In accordance with the Fair Work Act 2009 (Cth) (‘FW Act’), a permanent employee is entitled to be absent from work on a public holiday and receive payment at their base rate of pay for the ordinary hours that would have been worked on the public holiday.
An employer can request an employee to work on a public holiday if it is reasonable, having regard to the criteria in the Fair Work Act 2009 and any relevant award or registered agreement terms.
Part Day Christmas Eve public holiday
Queensland has a part-day public holiday for Christmas Eve from 6 pm to midnight.
The part-day public holiday on Christmas Eve will activate public holiday provisions under the FW Act and any other industrial instrument that may be applicable to your workplace.
During this time, any worker would be entitled to refuse to work in reasonable circumstances, or to the payment of public holiday penalty rates where work is performed during the Part Day Christmas Eve Public Holiday.
PUBLIC HOLIDAY INTERACTIONS WITH ANNUAL AND PERSONAL LEAVE
If a public holiday falls during a period of paid leave (for example, annual leave or personal leave), the employee is entitled to be paid for the public holiday at their base rate.
Section 87 of the FW Act provides that annual leave and personal leave is exclusive of public holidays. This means the day that the public holiday falls is recognised as a public holiday, not as a day of annual leave or personal leave. The employee’s accrued leave balances are therefore not affected by the public holiday.
Unpaid Leave and Public Holidays
Unpaid leave is not a statutory entitlement – it is not a formal leave entitlement. This means that any period of unpaid leave sought by an employee must be approved by the employer.
Where a public holiday falls during a period that an employee is on unpaid leave, the employee is not entitled to be paid for any public holiday. This is because the employee does not have ordinary hours during the unpaid leave period.
Many employers will be looking at closing down their businesses over the Christmas and New Year period so they and their employees can have a well-deserved break.
Some awards require at least four (4) weeks’ notice of a close down to be provided to employees. It is therefore important that employers intending to close down their operations review employment contracts, awards or registered agreements for conditions and notice periods which apply to their employees.
A contract, award or registered agreement review will assist an employer to determine the following:
- How much notice employees need to receive of the closure;
- Whether employees can be directed to take annual leave during the close down; and
- Whether unpaid leave will be applied where an employee has insufficient annual leave.
Where an award or registered agreement that applies to an employee is silent on whether employees can be directed to take annual leave, employees cannot be directed to take leave and will either need to be provided with work or be paid for any day where work is not provided.
Award/Agreement Free Positions
Where employees are not covered by an award or registered agreement, a direction to take annual leave must be reasonable in the circumstances. Where a business closes down over the Christmas and New Year period, this request may be viewed as a reasonable one.
It is recommended that as much notice of the close down and resulting need to take leave be given to the employee.