Employment & Safety 2019: What Lies Ahead?
There’s a lot happening, including a Federal election which will no doubt bring further change. Here’s what to expect in 2019:
Casuals & Contractors: In 2019 there will be increasing pressure to change the way we regulate the use of casual employees and contractors. Late last year a casual loading offset regulation was introduced to address the problem of regular casual employees ‘double dipping’ by claiming their casual loading and then seeking payment of permanent employee benefits like annual leave too.
However, regular casuals now have an award right to request conversion to permanency after 12 months’ service. This may be extended as a right for all Australian employees under the National Employment Standards (NES). Some are calling for a statutory definition of casuals which would restrict the current practice of ‘if I tell you you’re a casual, you’re a casual’.
The genuineness or otherwise of contractors will be another focus. Last year the Fair Work Commission found a Foodora food delivery bike rider to be an employee rather than a contractor and therefore able to bring an unfair dismissal claim. The Fair Work Ombudsman is also pursuing Foodora for sham contracting, despite the collapse of the business.
Although recent decisions of the Fair Work Commission found that Uber drivers were not employees, late last December a UK Court decided differently. There is growing dissatisfaction with the ‘multi-factorial’ test that currently determines whether a worker is entitled to access protections available under employment legislation.
Calculation of Leave: How does leave accrue and how should the entitlement be calculated? Have we been getting it wrong? We’ll follow the case of Mondelez, and keep you informed.
#MeToo: The findings of the National Inquiry into Sexual Harassment will be delivered in 2019. Commissioner Jenkins has already flagged a concern about the way non-disclosure agreements can mask the problem and the prevalence of sexual harassment in Australian workplaces. No doubt she will have more observations to make. Hopefully they will include comment about the swift and effective way the stop-bullying jurisdiction of the Fair Work Commission can provide relief for victims of workplace harassment.
Further moves towards equality can be seen in the right to request flexible work arrangements being embedded into modern awards last year. When such requests are denied this year, the Fair Work Commission is likely to play a role in dispute resolution.
The first family and domestic violence leave balances have appeared on Australian payslips as a result of the modern award (and NES) changes last year. The equal remuneration case for educators limps on, and the approval of an MFS Enterprise Agreement has been challenged by the government on the basis that the proposed Agreement’s restrictions on the use of part-time work in firefighting are discriminatory. The MFS will need to provide undertakings to address the Commission’s concerns that its restrictions on part-time work do not undermine the right to request flexible work contained in the NES.
The Modern Award Review: The 2014 four yearly review just keeps going. The Commission is still finalising some issues so keep an eye on ongoing changes to awards that apply to your business. While a number of standardised ‘model’ clauses have been inserted into many awards, the modern awards are by no means uniform.
It will be important to be familiar with the content of the awards that cover your business. This is because there remain differences in things like minimum periods of engagement, penalty rates and when overtime is payable. Keeping on top of this detail guards against expensive underpayment claims.
Ensure you understand your new obligations arising from new features of modern awards including overtime for casuals and the right for casuals to request conversion to permanency (no doubt all Australian businesses complied with their obligation to provide a copy of the casual conversion award clause to their casual employees prior to 1 January 2019). Terms of part-time work need to be agreed in writing on commencement of employment.
Know how to manage requests for flexible work arrangements and for family and domestic violence leave. More consultation is required about changes to rosters and hours of work and there is additional regulation of how wages are paid. If you haven’t reviewed your awards for a while, the annual leave clause is worth a revisit too.
Personal Liability for Employment & Safety Breaches: Limits to the protection that insurance can offer were further highlighted in 2018 with the Federal Court issuing a number of personal payment orders against union officials (these prevent a third party from paying your fine) after the High Court confirmed courts can order that penalties be paid personally.
A Queensland director was sentenced to seven years’ jail over the manslaughter of a young man electrocuted on a construction site. Queensland’s industrial manslaughter laws were introduced in 2017. Last October a Senate Committee recommended they form the basis of new national industrial manslaughter provisions under the model Work Health and Safety laws so watch this space in 2019.
The lawmakers keep getting more effective at motivating those with influence to comply with workplace and safety laws so in 2019 words like ‘compliance’ and ‘safety’ will feature more prominently than ever before in Board Minutes.
For support with your organisation’s compliance measures, please contact Thea Birss by email (firstname.lastname@example.org) or mobile (0413 301 815).