Fair Work minimum pay rate increase from 1 July 2021
Employment

Fair Work minimum wage increase 1 July 2021

Fair Work minimum pay rate increase from 1 July 2021

1 July 2021

Pay rates have gone up as of 1 July 2021 across Australia.

The national minimum wage has increased to $20.33 per hour (up from $19.84) or $772.60 per week (up from $753.80).

On 16 June 2021, the Fair Work Commission announced a 2.5 per cent increase to the national minimum wage, following its Annual Wage Review. This increase applies from the first full pay period starting on or after today.

Employees covered by awards will also have base rates increased by 2.5 per cent, however, these increases to award wages begin on different dates for different groups of awards.

Casual employees that the national minimum wage applies to must receive a minimum $25.41 per hour including their 25 per cent casual loading.

Most award wages will increase from 1 July 2021, with the following exceptions for industries that have been hit hard by COVID:

  • wages in the Retail Award will increase from 1 September 2021;
  • wages in 21 other awards where the Fair Work Commission deemed there were exceptional circumstances will increase from 1 November 2021. A list of these awards can be found at Annual Wage Review 2021.

Employees covered by awards will have their base rate increase from the first full pay period starting on or after the relevant date.

Feeling stuck ? 

Be sure to refer to the Fair Work Ombudsman's free online tools available to help employers comply with their workplace obligations, they also reflect the new pay rates.

And feel free to reach out if you have any questions about this change, we're glad to help!

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Employment

Should I hire a casual or part-time worker?

Photo by Bench Accounting on Unsplash

Should I hire a casual or part-time worker?

Many business owners mistakenly think that hiring and classifying a worker as a casual is a safe bet because they can simply stop giving the employee any shifts if things don’t work out and be done with them without any consequences. 

This isn’t the case. 

Casuals have certain rights and we’ll explain these below along with some guidance on how you can choose which worker is best for your business. 

In a hurry ? jump ahead below. 

Let’s start with the characteristics of a casual employee and go from there. 

Casual worker characteristics

Your casual worker is going to work in this way: 

  • without any guarantee of work hours 
  • irregular work hours (i.e. no pattern of Tues, Wed weekly etc) 
  • doesn’t get paid sick or annual leave 
  • employer can end their employment without notice, unless notice is required by a registered agreement, award or employment contract. 


Unpaid casual worker leave entitlements

While your casual workers are not paid for leave, they are entitled to: 

  • 2 days unpaid carers leave
  • 2 days unpaid compassionate leave per occasion 
  • 5 days unpaid family and domestic violence leave (in a 12-month period) 
  • unpaid community service leave 


Long term casuals 

If a casual has been on your books for 12 months or more, then they are a long term casual and are entitled to: 

  • request flexible working arrangements
  • take parental leave. 


Casuals may have the right to convert to full-time or part-time 

Your casual worker may have the right to request to convert to full-time or part-time employment after a certain period. You’ll need to follow the rules that apply in any applicable award about casual conversation.  


Casuals can apply for unfair dismissal

Casual employees may apply for unfair dismissal if they meet certain requirements like having worked a minimum period of 6 months (if your business has 15 or more employees) and also if they have worked for your business on a regular and systematic basis. 

Regular and systematic means that they can show a pattern of work over the past 12 months or more. 


When will a casual worker will suit ?

If you have an unpredictable workflow, a casual is suitable for your business. 

An unpredictable work flow means that because demand for your business offering fluctuates, you don’t know how many workers you’ll need on a particular day. This is typically the case for retailers but may also be the case for many other businesses as well. 


Guidance for when not to hire a casual worker 

You should not hire a casual worker if you know you need them on set days of each week or most weeks because it's not the correct classification. 

If you know you need a worker for a set number of days per week, for  

example, if you know that you’ll need  your worker Tuesday and Wednesday each week and those hours aren’t going to fluctuate week to week, then your worker should be a part-time employee, and yes, part-time employees do get paid entitlements. 


What’s the difference in entitlements ?

Casual workers

A casual worker is paid a base rate just like part-timer and full-timer with a 25% loading on top. The extra amount is called a casual loading. The reason it's paid is to make up for the fact that these workers don’t get annual leave or sick leave and their hours aren't certain. 

Also, the loading makes it worth a workers time to come into work if they have been called in at the last minute. 

Part time workers

A part-time worker gets a pro rata of a full-time worker’s entitlements. 

For example, a part time worker that works 2 days per week is paid 40% of a full-time worker’s entitlements. The calculation is simply 2 days / 5 days = 40%. 

So, for annual leave, this means 40% x 20 days = 8 days of annual leave per year. 

And, for sick leave, this means 40% x 10 days = 4 days of sick leave per year. 


Awards

Be sure to check the Fair Work Ombudsman website to see if an award applies for your industry so you can read about entitlements for both casuals and part-time workers. 

An award sets out an employee’s minimum entitlements and you can use the award as a guide for choosing. 

If you need more guidance choosing, seek advice. 


What sort of advice do I need ?

It’s a good idea to get legal then accounting advice, and in that order. 

Why ?

A lawyer can listen to your plans about how you’d like to utilise the worker in your business and help you classify whether your worker should be either a casual worker or part-time worker. 

An accountant can then help you with budgeting, forecasting for wages, taxes, superannuation and setting up your payroll system including payslips. 

Of course, after your initial consultation with a lawyer and accountant, it’s a good idea to check in if work circumstances change and you aren’t sure if a casual classification is will be right going forward. 


Golden tip

While there is plenty of information to consider when choosing your worker, to avoid any overwhelm, it’s best to start with an understanding of how often you need your worker in your business.  

If you aren’t sure how many days a week you’ll need the worker, then a casual classification may be right, but consider if the casual worker is on for 12 months or more whether they will have the right to switch to part-time or full-time per any Award that applies. 

Accountants and lawyers can also guide you with your decision. 

Do you have questions or comments about hiring workers ? Be sure to leave them below.





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The Australian Fair Work Commission's 21 day limitation period calculation & extension grants
Employment

The Australian Fair Work Commission’s 21 day limitation period calculation & extension grants

Photo by Icons8 Team on Unsplash

Australian Fair Work Commission's 21 day limitation period calculation & extension grants

Updated: 27 January 2021

Both unfair dismissal and general protections applications have a strict lodgement due date and extensions are granted in exceptional circumstances. Here’s a guide so you know exactly how the limitation periods apply.

 

21 days

Employees have 21 days from the date of a dismissal to lodge an unfair dismissal application. 

The 21 day lodgement time frame is found in section 394 of the Fair Work Act 2009 (Cth).

Calculation

Below are the key rules for how the 21 days are counted.

Day of dismissal not counted

The actual day of the dismissal is not counted; the 21 days starts on the day following the dismissal. 

Weekends and public holidays

Only if the final day falls on a weekend or public holiday will the 21 days extend until the next business day. If the public holidays are during the 21 days, the 21 days will not extend out. 

Public holidays

Below are the days the Fair Work Commission counts as public holidays.

  • New years day 
  • Australia day 
  • Good friday 
  • Easter monday 
  • Anzac day 
  • Christmas day 
  • Boxing day 

For state or local public holidays like the queens birthday, electronic submissions can be made, even through the local Commission offices are closed. 

Consequences of a late lodgement

If an employee lodges an unfair dismissal outside the 21 day limitation period, an employer may make a jurisdictional objection. 

Extension grants

Extensions are granted for exceptional circumstances, so keep this in mind.

That is, circumstances that are:

  • out of the ordinary course
  • unusual 
  • special , or 
  • common 

Delay reason 

The commission must consider the delay reason. 

Case examples

Courtesy of the Fair Work Commission, we have an idea of which exceptional circumstances have warranted an extension grant to give you an idea of applications that may be accepted.

Resignation with a future date of effect

Nohra v Target Australia Pty Ltd [2010] FWA 6857 (Roberts C, 22 October 2010), [(2010) 204 IR 389].

Length of time outside time frame: 15 days

The employee resigned and gave 7 months’ notice to be the primary carer for her sick mother-in-law. The employer ended the employment while the employee was on carer's leave. The employee believed that the timeframe for lodgement was only relevant to unfair dismissal and not relevant for constructive dismissal.

Outcome: the extension of time was granted.

Illness

Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863 (Deegan C, 20 May 2010).

Length of time outside timeframe: 26 days

The employee’s delay was due to depression and anxiety exacerbated by work stress. The employee had been dismissed while he was on personal leave and was covered by a medical certificate. The employer had refused to accept the medical certificates and had claimed the employee had abandoned his employment.

Outcome: the extension of time was granted.

Technical issues

Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394 (Lawler VP, 25 February 2010).

Length of time outside timeframe: 4 days

The employee had problems twice while trying to lodge their application on the Fair Work website within time but was unable to submit the application. The application was then posted to Fair Work Australia. Fair Work found the applicant had made a bona fide attempt to make an application before the expiry of the 14 day period and that it was just and equitable to exercise the discretion to extend time (note the current 21 day limitation period was formerly 14 days). 

Outcome: the extension of time was granted.

Do you have questions or comments about the Fair Work limitation period or extension grants? Be sure to leave them below. 





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Fair Work jurisdiction and jurisdictional objection guide
Employment

Fair Work jurisdiction & unfair dismissal jurisdictional objection guide

Photo by Will Francis on Unsplash

Fair Work jurisdiction and jurisdictional objection guide

Updated: 29 January 2021

Jurisdiction is a fancy word that simply means the legal power to make a decision on a matter. 

And, when we’re talking about the Fair Work Commission’s jurisdiction, we are talking about Fair Work’s power to deal with certain matters. 

Here's what you need to know about the Fairwork's jurisdiction. 

In a hurry? You can jump ahead below. 

So what exactly is a jurisdictional objection? We’ll cover that first. 

Jurisdictional objection 

An employer is able to make a jurisdictional objection.

For example, if they are claiming that the Commission does not have jurisdiction to deal with an application.

Or, the employer could claim that the person may not be eligible to make the application at all.

Below I will take you through some common jurisdictional objections employers can make in the Fair Work Commission. 

Objection, first

In all cases, if there is a jurisdictional objection, the Commission must first deal with the jurisdictional objection, BEFORE the original employee application. 

For example, if an employee lodges an application for unfair dismissal out of time and the employer raises a jurisdictional objection, this matter will need to be addressed first, then, if the Commission grants an out of time lodgement, the original claim for unfair dismissal can then be handled.

Below are examples of jurisdictional objections for an employee’s unfair dismissal application. 

Time limitation 

Employees have 21 days to lodge an unfair dismissal or general protections application. If an employee lodges outside this limitation period, the employer may claim the Commission does not have jurisdiction to deal with the matter.

The Commission may grant out of time lodgement in exceptional circumstances. 

Minimum employment period

In the case of an unfair dismissal, an employee must have worked for at least 6 months or for one year in the case of a small business employer (with fewer than 15 employees).

Now, if the employee has not worked the minimum period, the employer may make a jurisdictional objection. 

Keep in mind, there are certain absences during an employment that do not count towards the minimum employment period. You can read about those here. 

Wrong employer

If the employee includes details of the wrong business entity on a Fair Work application form that is not the employer, then there is also another jurisdictional issue.

Multiple applications

If the employee made multiple applications about a dismissal, for example, an unfair dismissal and general protections claim, this may also give rise to a jurisdictional objection from the employer.

Casual 

The employee was a casual employee and was not employed on a regular and systematic basis and there was no reasonable expectation of continuing employment. 

Contractor not employee

If the applicant is a contractor and not an employee e.g. to complete a specific project which finished, they won’t be able to make an unfair dismissal claim.

High income threshold

If the applicant is earning more than the high income threshold, they won’t be able to apply for unfair dismissal. The threshold is updated annually each 1 July. 

National workplace relations employee

The employee was not a national workplace relations system employee.

Genuine redundancy

Employees that believe a redundancy was not genuine per section 389 meaning may lodge an unfair dismissal.

If the employee did follow the measures in an Award or enterprise agreement this the employer can raise a jurisdictional objection.

Small business dismissal code

If you are a small business that’s followed the small business dismissal code, you can raise this as an objection to an employee application.

Employee resignation 

If you did not dismiss the employee but the employee resigned voluntarily, you can raise this as an objection. 

Restructure

If the employee was demoted but not significantly but they are still employed, you can raise an objection to an unfair dismissal claim. 

Ways to make the objection 

In response to the employee’s F2 (unfair dismissal) application, the employer would lodge an F3 - employer response to an unfair dismissal application and may include objections in that form. 

Also, the employer may lodge a form F4 - objection to application for unfair dismissal application. 

Do you have questions or comments about a jurisdictional objection? Be sure to leave them below. 





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Meaning of Australian employer and Australian based employee
Employment

Meaning of Australian employer and Australian based employee

Photo by Annie Spratt on Unsplash

Meaning of Australian based employer and Australian based employee

Updated: 29 January 2021

The meaning of Australian employer and Australian based employee is important.

Why?

Because it determines whether an employee can make a claim under employment legislation.

Jurisdictional claims

Specifically, the meaning of Australian based is important for a jurisdictional claim.

For example, whether a court has jurisdiction (the authority) to deal with a particular matter. 

Employee claim

For example, an employee may claim they are an employee for Fair Work purposes like an unfair dismissal claim and because of this, Fair Work has jurisdiction to deal with the employee's claim.

Employer response

On the other hand, an employer may claim an employee is not Australian based and is not eligible to make a claim about their employment with the Fair Work Commission.

By doing this, the employer is raising a jurisdictional objection.

Below is the definition of Australian based employer and employee in section 35 of the Fair Work Act. 

FAIR WORK ACT 2009 - SECT 35

Meanings of Australian employer and Australian-based employee

(1)  An Australian employer is an employer that:

(a)  is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(b)  is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(c)  is the Commonwealth; or

(d)  is a Commonwealth authority; or

(e)  is a body corporate incorporated in a Territory; or

(f)  carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or

(g)  is prescribed by the regulations.

(2)  An Australian-based employee is an employee:

(a)  whose primary place of work is in Australia; or

(b)  who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or

(c)  who is prescribed by the regulations.

(3)  However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.

Case study

Application of section 35 - Meanings of Australian employer and Australian-based employee

In the case of Mr Nabor Fuentes v Department of Foreign Affairs and Trade (U2017/13595), Fair Work found that Mr Fuentes was not an Australian based employee so unfair dismissal provisions in the Fair Work did not apply. 

Below are the key points in the case: 

  • It does not matter if a person is located in Australia or elsewhere, an employee that’s employed by an Australian employer is an “Australian-based employee’. 
  • Mr Fuentes falls within section 35(2)(b) below but is caught by the exception in section 35(3) below, that is, he was an employee ‘engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.’

Section 35(2) and (3) Fair Work Act 2009 (Cth):

(2)  An Australian-based employee is an employee:

(b)  who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or               

[3)  However, paragraph (2)(b) does not apply to an employee who is engaged outside Australia and the external Territories to perform duties outside Australia and the external Territories.

  • Mr Fuentes was hired in Canada to perform the duties associated with his role at the Australian High Commission in Ottawa.
  • Also, Mr Fuentes’ employment agreement was signed in Ottawa. And, subsequent renewals of his contract occurred in Ottawa. And Mr Fuentes in fact performed his duties in Canada.

The finding meant that the unfair dismissal provisions in the Fair Work Act did not apply to Mr Fuentes and he was not able to bring an unfair dismissal application under the Act.

From the example above you can see that the meaning of 'Australian based' is important for employment claims in the Fair Work Commission.

Do you have questions or comments about whether an employee is Australian based? Be sure to leave them below. 





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Transfer of employment to an associated entity
Employment

Transfer of employment to an associated entity – is an employee’s service continuous?

Photo by HIVAN ARVIZU @soyhivan on Unsplash

Transfer of employment to an associated entity - is an employee's service continuous?

Updated 23 March 2022

A transfer of employment to an associated entity happens if an employee is going to start work for for a business that has a connection to the former business, they are an associated entity. We'll get into the meaning of this later. 

An employee's service won't always be continuous in a transfer of business and this is important, because this will impact employee and employer rights for entitlements and even for unfair dismissal claims.

For example, if an employee's employment is classed as continuous after transfer of business, the employee can apply for unfair dismissal shortly after their employment transfers to the new entity and don't have to wait out the minimum employment period in section 383 of the Fair Work Act 2009 (Cth). 

When does former service for an employer count?

In a transfer of employment situation, an employee’s service for their old employer will count towards their service period with the new employer per s. 22(7) Fair Work Act 2009 (Cth) if:

  • the entities are associated; and
  • if the employee becomes employed by the new associated entity within 3 months.

Notice to an employee if their prior service will count

Written notice to an employee about whether their previous period will count is very important and employers get this wrong too many times. Why? because employers may be dealing with experienced business lawyers that are not familiar with employment law as well, in particular section 384 of the Fair Work Act.

Section 384 Fair Work Act 2009 (Cth)

Section 384 states that for the service of an employee to be continuous, the new employer must not have informed the employee in writing before the new employment started that their previous period of service with the old employer would not be recognised: s. 384 Fair Work Act 2009 (Cth).

Basically, if an employee does not get written notice that a former employment period won't be recognised, the employee’s employment is continuing and the employee is simply working for an associated entity. 

So, if an employer wants an employee's employment to start fresh after a transfer of business to an associated entity, they need to give the employee a letter saying their former employment period will not count. 

Below we’ll go through the associated entity meaning to clarify. 

Associated entity

What is an associated entity for a transfer of business situation?

The associated entity meaning is found in s.50AAA of the Corporations Act 2001 (Cth).

An entity (the associate) may be an associated entity of another entity (the principal) in these cases:

  • the associate and principal are related bodies corporate
  • the principal controls the associate
  • the associate controls the principal and the operations, resources or affairs of the principal are material to the associate
  • the associate has a qualifying investment in the principal, has significant influence over the principal and the interest is material to the associate
  • the principal has a qualifying investment in the associate, has significant influence over the principal and the interest is material to the principal, or
  • a third entity controls both the principal and the associate and the operations, resources or affairs of the principal and the associate are both material to the third entity.

Because one feature of an associated entity is that the principal controls the associate, we’ll look at the definition of control next.

Control

Control is defined in s.50AA of the Corporations Act 2001 (Cth). 

One entity controls another when the first entity can make decisions that determine the financial and operating policies of the second entity.

Bringing it all together 

If you are an employee wondering if your employment is going to be continuous after a transfer of business, you need to check if there was a transfer to an associated business; you can run some ASIC company searches yourself or have a lawyer help you with this.

Then, you need to check if you have a letter from the new employer stating that your former employment period would not be recognised. If you have such a letter, then your employment is not continuing. Your employment has started fresh from the time you signed a new contract or started work for the new employer's entity. This may impact your ability to apply for unfair dismissal and certain entitlements, so you should get legal advice.

If you are an employer that's purchasing a business with a link to the former business (an associated entity), make sure you are clear with your lawyer about whether a former employment period will be recognised.

A lawyer helping an employer can take care of notice to employees per section 384 and help you structure the business sale per your goals.

Do you have questions or comments about a transfer of employment? Be sure to leave them below or reach out to us for help. 





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Minimum working hours per shift in Australia
Employment

Minimum working hours per shift in Australia

Minimum working hours per shift in Australia

Updated 3 January 2021

In Australia, employers must give their workers shifts that satisfy the minimum working hour shifts for their industry. 

And, you can find minimum working hours for a shift in the applicable Australian award. 

Minimum shift hours will vary across industries. 

However, when you look at a few Australian awards, you'll see a pattern and that around 3 hours is a good average. 

But, you need to check your applicable award, so don't assume its 3 hours automatically.

You can find your award on the Fair Work Ombudsman website.  

Minimum hours are in awards, enterprise agreements and contracts

In addition to awards, minimum shift hours can also be outlined in an enterprise agreement or an employment contract. 

So which applies if there's a conflict ?

The award, enterprise agreement or employment contract?

More favourable employee terms will always apply for the employee and I'll explain this below. 

Favourable terms trump

More favourable employee terms for minimum shift hours in an applicable award or enterprise agreement and these minimums will always apply over those in an employment contract.

And vice versa; if the employment contract has more favourable terms, those will apply over the minimums in an award or enterprise agreement.

Allocating below minimum shift hours

Giving employees less than the minimum shift hours is something that employers cannot do. 

Why?

In a nutshell - because it disadvantages employees. 

The typical disadvantage, involves an employee travelling for some time only to be told 'it's not busy, you can go home' 2 hours into their shift.

Now, there are several rules that apply across many industries in Australia.

If an employer allocates an employee less than the minimum shift hours, the employee may claim the wages for the minimum shift hours that they should have been allocated, even if they did not work those hours.

Minimum shift hours by industry

Below I have prepared a table showing the minimum shift hours for some industries.

You should check your award if you are unsure of the minimum shift hours that apply in your case.

You may typically find your minimum shift hours under sections labelled call-outs, hours, casual employment, part-time employees or recall allowance. 

Some awards will have a separate clause for part-time and another for casuals, but they usually have the same minimum number of shift hours.

Award

Hours

Award section(s)

Building and Construction General On-site Award

3 hours

34.2 (o)

Cleaning Services Award 2010

2 hours

28.8

Clerks - Private Sector Award 2010

3 hours

11.5, 12.4, 27.4

Fast Food Industry Award 2010

3 hours

12.2, 12.7

Fitness Industry Award 2010

1 hour/3 hours

12.4, 13.4 & 13.5

General Retail Award 2010

3 hours

12.5, 20.10

Hair and Beauty Industry Award 2010

3 hours

12.5, 13.6

Health Professionals and Support Services Award 2010

2 hours, 3 hours

10.4, 28.4

You can get access to your Award on the Fair Work Ombudsman's website.

Do you have questions or comments about minimum shift hours? Be sure to leave them below. 





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Period of employment definition
Employment

Period of employment definition

Period of employment definition

31 December 2019 

Calculating an employee’s period of employment is important if you are responding to an employee's application for an unfair dismissal remedy.

As you will see below, the definition is not so so straight forward so here's a guide. 

In a hurry? Jump ahead. 

First, we'll start with the period of employment definition in the Fair Work Act.

Section 384 Fair Work Act - period of employment

Below I have underlined the important parts of the definition which we'll break down after.

FAIR WORK ACT 2009 - SECT 384

Period of employment

(1)  An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2)  However:

(a)  a period of service as a casual employee does not count towards the employee's period of employment unless:

(i)  the employment as a casual employee was on a regular and systematic basis; and

(ii)  during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b)  if:

(i)  the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii)  the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii)  the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer.

Below is a break down the definition so you'll know how Fair Work calculates an employee minimum work period. 

Continuous service

Continuous service is a period of unbroken service that an employee is employed, not counting exclusions for certain types of unpaid leave and certain types of unpaid authorised absence. 

Regular and systematic 

What is employment on a regular and systematic basis? 

It has to do with the employment and not the employee's hours worked.

So, what helps to prove regular and systematic employment?

A clear pattern or roster of hours is strong evidence. 

Also, the term ‘regular’ implies a repetitive pattern and does not mean frequent, often, uniform or constant.

The term ‘systematic’ requires that the engagement be ‘something that could fairly be called a system, method or plan’.

Where there is no clear pattern or roster, evidence of regular and systematic employment can be established where:

  • the employer offered suitable work when available at times that the employee could work, and
  • work was offered and accepted regularly, not occasionally or irregularly. 

Reasonable expectation of continuing employment

What is a reasonable expectation of continuing employment?

The Fair Work Act does not define this term, it depends on certain circumstances. 

One test that has been applied is if during a period of at least six months before a dismissal, the employee had a reasonable expectation of continuing employment on a regular and systematic basis.

Transfer of employment

An employee's service with one employer (first or old employer) will count as service with another employer (second or new employer) if two conditions are met:

  • the second employer is an associated entity of the first employer, and
  • an employee becomes employed by the second employer within 3 months of their employment being terminated by the first employer.

If these 2 conditions are not met, then the period of service with the first employer will not be counted towards service with the second employer.

Excluded period

Below are examples of when continuous service will be excluded: 

  • resignation 
  • dismissal 
  • transfers of employment that don’t meet the transfer of employment definition in section 22(7) of the Fair Work Act. 

An excluded period does not break an employee’s continuous service with their employer. 

But, it does not count towards the length of the employee’s continuous service. 

Periods of casual employment may affect the length of an employee’s continuous service for an application for an unfair dismissal remedy.

The following are periods that are excluded from the definition of ‘service’ and therefore for calculating the minimum employment period:

• any period of unauthorised absence, and

• certain periods of unpaid leave or unpaid authorised absence (community service leave, certain stand downs and prescribed leave or absences are exceptions).

Unauthorised absence

The following are examples of unauthorised absence:

• periods of industrial action engaged in by employees, and

• other absence from work contrary to employer directions.

Unpaid authorised absence

The following are examples of unpaid authorised absence:

• unpaid parental leave, and

• unpaid personal/carer’s leave.

The above periods do not break service however they are not counted in the calculation of the minimum period of employment.

Unpaid personal leave not counted

Wales v 3 Point Motors Pty Ltd T/A 3 Point Motors [2012] FWA 3817 (Jones C, 22 May 2012).

An employee worked for exactly 6 months and had part of 1 days' sick leave without pay. With that period of leave deducted the employee had not met the minimum period of employment.

Injury covered by private insurer is unpaid leave not counted

L.M. v Standard & Poor’s (Australia) Pty Ltd [2012] FWA 9634 (Roe C, 12 November 2012).

The employee's absence for 5 weeks due to illness was paid for by the employee's income protection insurance. Because the employer was not legally obligated to provide income protection insurance, the employee was on unpaid leave. 

Absences that count towards the minimum employment period

What is included in the minimum period of employment?

The following are examples of unpaid authorised absence that are counted as service towards the minimum period of employment:

• community service leave (e.g. jury service), and

• certain stand downs.

Injury covered by private insurer is unpaid leave & not counted

Workpac Pty Ltd v Bambach [2012] FWAFB 3206 (Ross J, Sams DP, Booth C, 31 May 2012).

An employee's absence while on workers compensation (paid by an insurer on behalf of the employee) was not an unpaid authorised absence and not an excluded period.

Bringing it all together

Check the definition for a period of employment, 

As always, be sure to get advice if you are in doubt.

Do you have questions or comments about an employee's period of employment? Be sure to leave them below. 


​​



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Do small businesses have to pay redundancy?
Employment

Do small businesses have to pay redundancy?

Do small businesses have to pay redundancy?

Updated 12 August 2022

Making staff redundant is never an easy thing to do. There is a lot to consider. One question is, do small businesses have to pay redundancy? This is a great question. But a complex one to answer. The short answer is that most small businesses do not have to pay redundancies but there are some exceptions.

So let’s take a look at what that means.

In a hurry? Jump ahead. 

What is a small business?

First of all let’s define what we mean by a small business. Australian law defines a small business as one that has less than 15 employees. Based on the section 23 of the Fair Work Act 2009 (Cth), calculate this in the following way:

  • All employees working for the company at the time.
  • The person whose employment you are terminating.
  • Any other person whose employment you intend to terminate.
  • Only count employees who are part time or full time.
  • Do not include casual employees unless you employ them on a regular, systemic basis at the time.
  • Associated entities, such as a group of companies, count as one.

Do small businesses have to provide benefits?

Section 121 of the Fair Work Act 2009 (Cth) means that most small businesses do not have to pay redundancies to their employees when making their position redundant. But it does depend on the industry you operate in and the enterprise agreement you have in place.

The following are some industry awards that require you to pay employees redundancies:

Even if you do not need to make redundancy payments, you still need to pay out the final benefits owed to anyone you make redundant.

This can be complex to fully understand, so talk to your lawyer for guidance. You do not want to make any mistakes or you could end up in hot water.

The following table from section 119 of the Fair Work Act 2009 (Cth) sets out how to calculate what you need to pay eligible employees based on their term of service.

Table 1—Redundancy pay period

Employee’s period of continuous service with the employer on termination

Redundancy pay period

Less than 1 year

Nil

At least 1 year but less than 2 years

4 weeks

At least 2 years but less than 3 years

6 weeks

At least 3 years but less than 4 years

7 weeks

At least 4 years and over

8 weeks

Do small businesses pay taxes?

This is not taxation advice so make sure you check the ATO website for further information.

When an employer makes a redundancy payment, it is tax free up to certain limits if it is a genuine redundancy. The tax free component of a redundancy payment may include:

  • An amount paid in lieu of notice.
  • A severance payment of a certain number of weeks for every year worked for the employer.
  • A golden handshake or gratuity.
The remainder of the redundancy payment is taxed at a concessional rate up to the employment termination payment cap. Tax on the rest of the amount is at the normal amount.

Notice period when making an employee redundant

When making an employee redundant, follow the established standard minimum notice period set out in section 117 of the Fair Work Act 2009 (Cth).

The minimum notice required for the years continuously worked for an employer is as follows:

  • 1 year or less — 1 week's notice.
  • More than 1 to 3 years — 2 weeks’ notice.
  • More than 3 to 5 years — 3 weeks’ notice.
  • More than 5 years — 4 weeks’ notice.
  • Additionally, if an employer is more than 45 years old and worked for the employer for a minimum of 2 years, they receive an extra week’s notice.

An employer should tell an employee in person of their intention to make them redundant or send a notice to their home address.

Key message

It is important to check your applicable award or enterprise agreement to see if your small business needs to pay redundancy. Also remember that a genuine redundancy is when and you decide the job is no longer required in the organisation and you will not be hiring to fill the position in future.

And, as always, be sure to get advice if you are in doubt.

Do you have questions or comments about redundancy pay? Be sure to leave them below. 





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How to avoid an unfair dismissal claim for a fake redundancy
Employment

How to avoid an unfair dismissal claim for a fake redundancy

How to avoid an unfair dismissal claim for a fake redundancy

29 December 2019 

Employers can avoid unfair dismissal claims for a fake redundancy by understanding the meaning of genuine redundancy and following best practice guidelines in a redundancy situation.

In a hurry? Jump ahead. 

Section 389 meaning of genuine redundancy

The legal definition of a genuine redundancy is found in section 389 of the Fair Work Act 2009 (Cth). 

Below we'll go through that definition.

 A person's dismissal was a case of genuine redundancy if:

  • the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and
  • the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

And, an employee’s dismissal will not be a case of genuine redundancy if it would have been reasonable in all the circumstances for them be redeployed within:

  • the employer's enterprise; or
  • the enterprise of an associated entity of the employer.

Next, we'll go through that definition and make use of all the guidance we have from modern awards, enterprise agreements and fair work definitions.

Consultation (even if no award or enterprise agreement applies)       

You can follow model consultation practices below even if there's no applicable award or enterprise agreement. We'll go through the model modern award term for consultation first.

Model award term - consultation

  • employers must notify employees and their representatives who may be affected by the proposed changes
  • employers must discuss the changes with the affected employees and their representatives, and provide information in writing to them, as soon as practicable after a definite decision has been made about:
    • the nature of the changes
    • effects the changes are likely to have on employees
    • measures to prevent or reduce the adverse effects of such changes on employees
  • employers must then give prompt consideration to matters raised by the employees and their representatives in relation to the changes.

What about the enterprise agreement model? You can also use the enterprise agreement model for consultation in your business. We'll go through that next.

Model enterprise agreement term - consultation

This model term is found in the Fair Work Regulations (regulation 2.09) and outlined below. 

This term applies if the employer:

[1) (a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or

(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.

[2] Major change

For a major change referred to above:

[a) the employer must notify the relevant employees of the decision to introduce the major change; and

(b)  subclauses (3) to (9) apply.

(3)  The relevant employees may appoint a representative for the purposes of the procedures in this term.

(4)  If:

(a)  a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b)  the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

(5)  As soon as practicable after making its decision, the employer must:

(a)  discuss with the relevant employees:

       (i)  the introduction of the change; and

       (ii)  the effect the change is likely to have on the employees; and

       (iii)  measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(b)  for the purposes of the discussion—provide, in writing, to the relevant employees:

       (i)  all relevant information about the change including the nature of the change proposed; and

       (ii)  information about the expected effects of the change on the employees; and

       (iii)  any other matters likely to affect the employees.

(6)  However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(7)  The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

(8)  If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply.

(9)  In this term, a major change is likely to have a significant effect on employees if it results in:

(a)  the termination of the employment of employees; or

(b)  major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or

(c)  the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(d)  the alteration of hours of work; or

(e)  the need to retrain employees; or

(f)  the need to relocate employees to another workplace; or

(g)  the restructuring of jobs.

Now that we’ve covered the steps to follow for consultation, let’s look at redeployment, the other element in the section 389 Fair Work Act 2009 (Cth) genuine redundancy definition. 

Redeployment

A person's dismissal will not be a case of genuine redundancy if it would have been reasonable in the circumstances to redeploy the person within: 

  • the employer's enterprise, or
  • the enterprise of an associated entity of the employer.

So what exactly does reasonable in the circumstances mean?

Reasonable in the circumstances

Whether redeployment of an employee is considered reasonable will depend on the circumstances that exist at the time of the dismissal.

The factors below are relevant:

  • whether there exists a job or a position or other work to which the employee can be redeployed[2]
  • nature of any available position
  • qualifications required to perform the job
  • the employee's skills, qualifications and experience, and
  • the location of the job in relation to the employee's residence and the remuneration.

Associated entity

An employer must consider whether it is reasonable to redeploy an employee to an associated entity.

The degree of managerial integration between the different entities is likely to be a relevant consideration.

Alternative job, position or work must be identified

The Fair Work Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer's enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee. 

Evidence would usually include canvassing the steps taken by the employer to identify other work which could be performed by the dismissed employee.

The job must be suitable

The job must be suitable, that is, the employee should have the skills and competence to perform it either immediately or within a reasonable period of retraining.

Other considerations may be relevant such as:

  • location of the job, and
  • level of remuneration.

Roles with lower income & less responsibility to be considered

If an employer has other positions available, even at a lower level, that the redundant employee has the skills to perform, the employer should not assume the employee will reject the position.

Otherwise, the Commission may find it would have been reasonable in all the circumstances for an employee to have been redeployed.

Open selection processes

Open selection process may impact on whether redundancy is genuine

For example, if the employer fills a vacancy by requiring the employee to compete with other employees, it might be found that the resulting dismissal is not a case of genuine redundancy.

The next part is understanding what an associated entity is. 

Associated entity

Associated entities are businesses or other bodies that are connected to each other in some way. For example, when a business owns or controls the other business for the purpose of a transfer of business. Section 50AAA of the Corporations Act provides a full definition.

If it would have been possible for the redundant employee to be redeployed into an associated entity, then the dismissal will not be a case of genuine redundancy.

Do you have questions or comments about redundancy? Be sure to leave them below. 


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