HR & IR Support

Advice on all aspects of employee management

Employee Relations Paul Maguire - HR & IR Support - NESA Members

exclusive NESA member access

Developed in partnership with Paul Maguire of Maguire Consulting and covering every aspect of employment regulation; Employee Relations Online Employment, Education & Community Services provides the best employee relations advice available, with information, management tools and guides tailored exclusively to the sector.

The Employee Relations Online subscriptions service covers all employees’ relations issues including:

  • Coronavirus Response
  • Industry pay rates
  • Awards conditions
  • Leave and Holidays
  • Workplace Agreements
  • Termination of employment
  • Employee tax and superannuation
  • Health and Safety

Membership also gives you access to fact sheets, pay scales, guides, calculators, templates and model employment policies; Updates informing of the latest news and additions to our extensive library of resources; Confidential and expert advice online and via the 1300 Priority Help Desk.

NESA members wishing to access additional services (please note, the basic plan HR Essentials is included in your NESA membership) from Maguire Consulting receive a discounted rate. We recommend visiting Employee Relations online to view available plans suited to your organisational needs. 

Visit Employee Relations Online for further information or call 1300 021 800.

See below for a preview of the most recent advice and information from Employee Relations Online. 

RECENT ADVICE AND INFORMATION FROM ERO

OCTOBER 2020

Latest News in Australian Workplace Relations

Welcome to the Spring 2020 edition of ERO Update. The latest news, views and hot topics on employee relations management as we emerge from the Winter COVID into the new life of COVID Spring 2020. I trust the topics selected for you will be of interest.
Annual Wage Review Increases November 2020.

Annual Wage Review Increases November 2020

The next group of modern award wage increases of 1.75% commence in the pay period on or immediately following 1 November 2020. 

The Awards in Group 2 include: Building and Construction General On-site Award, Clerks Private Sector Award, Educational Services (Post-Secondary Education) Award, Labour Market Assistance Industry Award, Miscellaneous Award, Supported Employment Services Award and the Waste Management Award 

The new rates will be published in the ERO Awards & Pay section prior to 1 November 2020.

Jobkeeper Extension

As readers will undoubtedly be aware, the Australian government has extended the Jobkeeper scheme until 29 March 2021.

Part 6-4C of the Fair Work Act 2009 has been extended to enable employers to continue to issue ‘Jobkeeper enabling directions. However, there are some significant changes including a new category of Legacy employer for businesses that no longer qualify for the scheme but are able to issue limited stand down directions to employees.

Check of the ERO fact sheet Extension of hte Jobkeeper Payment Scheme in the Coronavirus Response section of the ERO Library. 

Victorian Portable Long Service Leave

The new Victorian Long Service Portability Benefits Regulations 2020 are now operative. Employers engaged in community services, contract cleaning and security services should acquaint themselves with the regulations.

Community service employee is now defined according to modern award coverage. An employee covered by the following awards are included in the scheme: Social Community Home Care and Disability Services Industry Award; Labour Market Assistance Industry Award; Children’s Services Award; Educational Services (Teachers) Award; and Supported Employment Services Award.

New PAYG Tax Tables

The new ATO Pay As You Go tax tables reflecting the latest income tax rates have been published and are available in the Tax and Superannuation section of the ERO Library

Changes to personal income tax thresholds announced by the Government during the Federal Budget have been incorporated into the withholding schedules and tax tables and will apply to payments made on and from 13 October 2020.

Annual and Sick Leave and Workers Compensation

The entitlement to accrue and take annual leave and personal/carers leave whilst absent on workers compensation is not a uniform arrangement. It varies for each State and Terriroty according the the local regulations. 

The Fair Work Ombudsman has published a fact sheet explaining the entitlement. The ERO fact sheets on Annual leave and Personal/Carer’s leave have also been updated to explain when and how the entitlements apply to employees absent on workers compensation.

2 SEPTEMBER 2020

JobKeeper Payments Amendment Bill Passed by Parliament

The Coronavirus Economic Response (JobKeeper Payments) Amendment Bill 2020 (Cth) passed through the Australian Parliament yesterday.

You will recall the Australian Government announced the JobKeeper payments scheme due to expire on 27 September 2020 would be, subject to changes to the scheme, extended until 28 March 2021. The changes to eligibility, payments, rights and obligations of employers contained in the Bill include:

  1. JobKeeper payment (prescribed in the Rules) reduced to $1200 per fortnight 28 September 2020; $1000 per fortnight 4 January 2021 
  2. JobKeeper payment reduces to $650 per fortnight for employees that were working less than 20 hours in February 2020
  3. Business eligibility will be tested against June, September and December 2020 BAS Quarters
  4. Minimum payment guarantee to employees unchanged
  5. Automatic extension of JobKeeper Enabling Directions beyond 27 September 2020
  6. New category of Legacy employer,businesses that are no longer eligible for JobKeeper payments experiencing 10 per cent decline in revenue, may continue to give limited JobKeeper enabling directions to employees
  7. Obligation on employees not to unreasonably refuse their employer’s request to take annual leave expires on 28 September 2020.

The rights and obligations of businesses that fit the new category of Legacy employer are complex and substantially limited in comparison to businesses that continue to qualify for the JobKeeper payments. The capacity to maintain flexibe work arrangements is probably outweighed by the regulatory requirements imposed by the law. Most employers should be able to achieve flexibilities by agreement with their employees without recourse to these provisions.

The guides, tools and resources in the ERO Library will be progressively updated over the next few weeks to ensure you have the latest information available to download and use in your own businesses.

If you haven’t viewed the presentation, the current rules applicable until 27 September 2020 are explained in the ERO presentation ‘The Jobkeeper Scheme and Fair Work Obligations.’

ERO Members can also login and go to Conoronavirus Response on the ERO Menu and read, download and apply the current Guides, Fact sheets and Jobkeeper Enabling Direction Model letters in your organisation.

14 AUGUST 2020

High Court restores sanity to accrual and payment of personal leave

The High Court of Australia in a majority decision overturned on appeal a judgment of the Full Court of the Federal Court of Australia concerning how the entitlement to paid personal/carer’s leave is calculated under s 96(1) of the Fair Work Act 2009 (Cth).

ERO members may recall that in August 2019 the Full Bench of the Federal Court of Australia in the infamous Mondelez case flipped on its head the traditional understanding of the meaning of a ‘day’ of personal / carer’s leave provided in the National Employment Standards.  

The High Court has reinstated the traditional interpretation of the accrual and payment of personal leave based on the notional full-time ordinary hours of work i.e. 10 days equals 76 hours. 

What is meant by a day of personal leave?

The High Court rejected the “working day” construction preferred by the Federal Court and instead held that what is meant by a “day” or “10 days” must be calculated by reference to an employee’s ordinary hours of work.

“10 days” in s 96(1) is two standard five-day working weeks.

One “day” refers to a “notional day” consisting of one-tenth of the equivalent of an employee’s ordinary hours of work in a two-week period.

Because patterns of work do not always follow two-week cycles, the entitlement to “10 days” of paid personal/carer’s leave can be calculated as 1/26 of an employee’s ordinary hours of work in a year.

What happens now?

The NES provides a minimum amount of 10 days personal / carer’s leave, which accrues progressively during the year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

Personal leave accrues at the rate of 0.03846 for each hour of work

This means a full-time employee accrues no more than 76 hours per year and a part-time employee pro rata, no matter how many days over a week or fortnight or month they are rostered to work over the year.

28 JULY 2020

Paid Pandemic Leave for Aged Care, Health Professional and Nurses Award Employees

The Fair Work Commission has awarded 2 weeks paid ‘pandemic leave‘ for employees engaged and paid under the Aged Care, Nurses and Health Professionals and Support Services Awards that are required to self isolate due to COVID-19. The new Schedule Y in the awards commences 29 July 2020 and provides:

  1. An employee including a regular casual employee is entitled to take up to 2 weeks paid leave on each occasion the employee is prevented from working (including working from home) because the employee is required to self isolate because they are  displaying symptoms of, or are suspected of having contact with, or in quarantine awaiting results of COViD-19 testing;
  2. An employee cannot take paid pandemic leave if they could instead take paid personal/carers leave;
  3. Employees must provide evdience of the requirement to self isolate including if requested, a medical certificate;
  4. A casual employee is not entitled to paid pandemic leave unless engaged on a regular and systematic basis;
  5. Employees are not entitled to paid pandemic leave unless they agree to undertake COVID-19 testing at the earliest opportunity;
  6. Full-time employees shall be paid at their base rate of pay in the period of leave;
  7. Part-time employees must be paid the greater of their agreed weekly ordinary pay or the average rate of the weekly ordinary hours for the previous 6 weeks;
  8. Casual employees that are entitled to the paid pandemic leave must be paid the average weekly pay received in the previous 6 weeks;
  9. An employee cannot take paid pandemic leave if they are entitled to workers compensation as a result of contracting COVID-19.

The new paid leave entitlement does not apply to aged care, nursing and health professional and support service employees whose terms and conditions are covered by an enterprise agreement.

The entitlement to paid pandemic leave expires 29 October 2020. 

23 JULY 2020

Understanding Casual Employment in 2020

Engaging a person in casual employment was once the most flexible form of employment, but no longer. There are many risks for employers.
What defines casual employment in 2020? When do casuals become entitled to benefits normally reserved for full-time and part-time employees? Does the casual loading paid in lieu of paid leave cover every circumstance? How long should I employ casuals?
In this presentation we explain the essential character of casual employment, the statutory exceptions and benefits that accrue to casual service, and discuss the lessons for employers.

VIEW VIDEO

22 JULY 2020

Jobkeeper Scheme Extension

The Australian Government announced the Jobkeeper Scheme due to expire on 27 September 2020 will be extended until 28 March 2021. However, there a significant changes to eligibility and payments.

  1. Jobkeeper payments reduces to $1200 per fortnight 28 September 2020; $1000 per fortnight 4 January 2021
  2. Payments for employees working less than 20 hours in February 2020 Jobkeeper payment reduces to $650 per fortnight 
  3. Business eligibility will be tested against June, September and December 2020 BAS Quarters
  4. Payments to employers continue to be paid in arrears
  5. Minimum payment guarantee to employees unchanged

Check out the Australian Government fact sheet. As the minimum payment guarantees and Jobkeeper enabling directions are due to automatically expire on 28 September 2020, the Australian government must also extend the operation of these complementary arrangements under the Fair Work Act 2009 (Cth).

The guides, tools and resources in the ERO Library will be progressively updated over the next few weeks to ensure you have the latest information available to download and use in your own businesses.

If you haven’t viewed the presentation, the current rules applicable until 28 September 2020 are explained in the ERO presentation ‘The Jobkeeper Scheme and Fair Work Obligations.’

ERO Members can also login and go to Conoronavirus Response on the ERO Menu and read, download and apply the current Guides, Fact sheets and Jobkeeper Enabling Direction Model letters in your organisation.

29 JUNE 2020

The Financial Year is Coming To a Close | Consider The Benefits of Upgrading your License

The end of financial year is fast approaching, and right now would be a great time to consider upgrading your membership license

In the current climate of business we are finding ourselves under a significant magnifying glass by the public. Determining easy resolutions to new problems can be hard to manage while juggling operations and growth, that’s why we’re here!

Having an easy access online tool that provides advice and resources to solve problems in the workplace and current changes in legislation that may affect you.

Upgrading to our Employee Relations Advisor or Fair Work Plus – lets more members gain access to the many resources, tools and guides in the ERO Library that are unavailable to HR Essential Users.

ERO Help Desk – Fast Support

If any of the members on your account has an employee management issue, question or problem that they want advice on, chat online, send us a message or e-mail at [email protected]
Fair Work Plus members can call the Help desk on 1300 021 800 as many times as they wish Monday to Friday.

Coronavirus Response Information and Resources

• Informational video on Jobkeeper and how to deal with the Coronavirus Response
• Jobkeeper Enabling Directions Guide;
• Managing Workplace Risk of Coronavirus Fact Sheet
• Model Jobkeeper Stand Down Direction letters to download and use in your organisation

Advice Knowledge Support and Representation

Advice, Knowledge, Support and Representation are the 4 key pillars of Employee Relations Online service to members. We spend time getting to know you and your organisation. We designed ERO to create a better user experience including tailored knowledge, advice, support and representation of employment, education and community service providers. Have a look at some of these features:
• Fair Work Representation for unfair dismissal conciliations
• How To Guides explaining how to navigate and find the information that you want
• Model employment contracts and guides taliored for full-time, part-time, casual and trainee employment (Award and Award-free)
• Award and pay information regularly updated to ensure you are compliant with minimum wages
• Understand workplace rights such as anti-discrimmination, workplace bullying and harassment prevention, and adverse actions
• Model employment policies to use in your organisation
• Termination, change and redundancy obligations
• Workplace health and safety guides and resources

Upgrade to Employee Relations Advisor or Fair Work Plus and Enjoy the Benefits

19 JUNE 2020

Annual Wage Review Increase - 1.75%

The Fair Work Commission Annual Wage Review Panel has decided to increase the National Minimum Wage (NMW) and all Modern Award wages by 1.75 per cent. However, not all of the Panel members agreed and the increase to award rates are to be staggered.

  1. The NMW will be $753.80 per week or $19.84 per hour commencing 1 July 2020. This constitutes an increase of $13.00 per week to the weekly rate or 35 cents per hour to the hourly rate.
  2. Award wage increases of 1.75% commence on either 1 July 2020, 1 November 2020 or  1 February 2021 depending on the group in which the award has been allocated.

The decision to stagger the commencement dates of the award increases is due to the impact of the COVID-19 pandemic measures on specific industries.

Group 1 award wages increase on 1 July 2020 covering industries and sectors less affected by the pandemic and, in addition, includes modern awards applying to frontline health care and social assistance workers, teachers and childcare workers and employees engaged in other essential services, who have continued working throughout the pandemic, to keep the community safe; to protect the vulnerable and those at risk; and to keep the economy functioning.

Including Aged Care Award, Cleaning Services Award, Health Professionals & Support Services Award, Nurses Award, and Social Community Home Care and Disability Services Industry Award.

The modern awards in Group 2 cover industry sectors adversely impacted by the pandemic, but not to the same extent as the sectors covered by the Group 3 awards. The Panel was satisfied that there are exceptional circumstances justifying the variation determinations in respect of these awards coming into operation on 1 November 2020.

Including Building and Construction General On-site Award, Clerks Private Sector Award, Educational Services (Post-Secondary Education) Award, Labour Market Assistance Industry Award, Miscellaneous Award, Supported Employment Services Award and the Waste Management Award.

The modern awards in Group 3 cover the industry sectors which have been most adversely affected by the pandemic; that is:

  • Accommodation and food services;
    • Arts and recreation services;
    • Aviation;
    • Retail trade; and
    • Tourism.

Including Airport Employees Award, Alpine Resorts Award, Fast Food Industry Award, Fitness Industry Award, General Retail Award, Hair and Beauty Industry Award, Hospitality Industry (General) Award, and Restaurant Industry Award.

Go to the Summary Statement below to view the full list of awards in each group. Award wage information including wage guides will be updated and available to read and download once the Fair Work Commission publishes the individual orders.

Annual Wage Review Decision 2020 – Summary Statement

Annual Wage Review Decision 2020

21 APRIL 2020

Presenting the Jobkeeper Scheme and Fair Work Obligations

The Jobkeeper Scheme is up and running. Soon eligible employers and their employees will receive the first payments. The not so good news is new rules that employers in receipt of the Jobkeeper payments are obliged to follow. Get used to the new terminology:
• Jobkeeer enabling stand down direction
• Wage condition
• Minimum payment guarantee
• Designated employment instrument
• Requests for secondary employment
The new rules are explained in the latest ERO presentation ‘The Jobkeeper Scheme and Fair Work Obligations.’ Once you have viewed the presentation login to ERO, go to Conoronavirus Response on the ERO Menu and read, download and apply the Guides, Fact sheets and Jobkeeper Enabling Direction Model letters in your organisation.

If you are not a member and would like to join go to tour.employeerelationsonline.com.au and select the membership category and level that suits your business. NESA corporate members may join online and take advantage of the significant discount on the Fair Work Plus premium membership

HELP DESK 1300 021 800

9 APRIL 2020

Jobkeeper Payments and the Fair Work Act: Get to Know the Rules

The Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) and Coronavirus Economic Package Omnibus (Measures No 2) Act 2020 (Cth) passed by the Australian Parliament introduce the $1500 per fortnight Jobkeeper wage subsidy scheme for eligible Australian employers.

The law introduces a new Part 6-4C into the Fair Work Act 2009 (Cth) prescribing the rights, entitlements and obligations of employers and employees where eligible employers implement different employment arrangements to enable it to maintain the business during the pandemic. There are lots of rules that employers must understand if they wish to stay on the right side of the law. ERO Members should read and download the latest fact sheet linked under Further Reading below.

The new Part 6-4C of the Act specifically authorises an employer’s right to:
(i) stand down employees (including reduced hours,
(ii) change duties, and
(iii) alter the location of work
as well as authorising agreements to work different days and arrangements for taking annual leave. Notably there are additional obligations on employers provide 3 days’ notice and to consult with employees before issuing a jobkeeper enabling direction.
The effect of Part 6-4C is to override an applicable ‘designated employment instrument’ which means a provision of the National Employment Standards (NES), award, enterprise agreement and individual contract of employment.

Part 6-4C makes clear that the obligations associated with the Jobkeeper enabling directions and agreements to change days of work and taking annual leave, are workplace rights pursuant to the General Protections under the Act.
This establishes an additional burden on employers that was not necessarily anticipated. Consequently, employers that qualify for the Jobkeeper scheme must strictly comply with the requirements of Part 6-4C of the Act.

Employers that impose jobseeker enabling directions assume several important obligations in relation to payment of the jobseeker payment and wages to employees. There is a wage condition, a minimum payment guarantee and an hourly rate of pay guarantee.
In summary employees must receive no less than the $1500 Jobkeeper payment (less tax) and employers must not pay employees less than the rate of pay the would otherwise have been entitled for the work done whilst a Jobkeeper enabling direction or agreement is in place.

If an employer requests an employee to take paid annual leave; and complying with the request will not result in the employee having a balance of paid annual leave of fewer than 2 weeks, the employee must consider the request and must not unreasonably refuse the request.
The requirement to retain 2 weeks leave does not apply to the circumstance where the employee requests leave, or to the cashing out of annual leave. The applicable award, enterprise agreement or contract of employment applies.
An agreement in writing may be made to take twice as much annual leave at half pay, notwithstanding any terms of an award, the NES, enterprise agreement or contract of employment.

All times during a jobkeeper enabling direction period counts as continuous service as if the direction had not been given.
If a jobkeeper enabling stand down direction applies to an employee, the employee accrues leave entitlements as if the direction had not been given
If an employee takes paid annual leave on half pay the employee accrues leave entitlements as if the agreement had not been made.

Part 6-4C of the Act does not affect in any respect the rights and obligations of employers and employees in relation to absence from work due to personal illness or injury or carer responsibilities.
Where such employee has tested positive to COVID-19 then the self-isolation requirement is enforced and the stand down ceases for that employee.

Further reading is available to ERO Members by selecting the links below. Any questions please contact the ERO Help desk 1300 021 800

Managing Workplace Risk of Coronavirus – Jobkeeper payments and the obligations under the Fair Work Act 2009 Small Business

Managing Workplace Risk of Coronavirus – Jobkeeper payments and the obligations under the Fair Work Act 2009 – Employment, Education & Community Service

5 APRIL 2020

Award Changes in the Era of the Pandemic

There are several important initiatives this week affecting the manner in which employers may manage their workforces during the pandemic.

  • Variations to the Hospitality and Restaurant awards in relation to Annual leave and reductions in employee hours or work 
  • The Clerks Private Sector Award has been varied enabling work from home, extenstion of ordinary hours and temporary relief from evening penalty rates.
  • The Australian Government announced it’s intention to legislate the Job Keeper scheme this week subsidising employee wages $1500 per fortnight.

The Fair Work Commission intends to vary 103 awards to provide 2 weeks unpaid Pandemic Leave.

The Australian government will legislate this week its Job Keeper wage subsidy of $1500 per employee each fortnight. Although the devil is in the detail, it is understood all employees of eligible businesses (excluding most casuals) employed on 1 March 2020 will be entitled to the subsidy including employees that have been stood down without pay.

The $1500 wage subsidy will be paid to eligible employers in May and  backdated teffective from 30 March 2020. Register as soon as possible to ensure you are kept informed.

The Fair Work Commission issued a Statement on 1 April 2020 outlining its intention to vary 103 awards to provide for 2 week’s unpaid Pandemic leave and an option for taking extended Annual leave on half pay.

The proposed variations would operate until 30 June 2020. The list of the awards the Commission proposes to vary is in paragraph [108] of the Statement.

Awards will be updated in the ERO Library as soon as the variations are published.

A new Scheudle entitled ‘Award Flexibility During the COVID-19 Pandemic’ has been inserted into the Hospitality Industry (General) Award 2010, and the Restaurant Industry Award 2010 enabling employers to direct employees to take Annual leave with 24 hours notice, an option for extended Annual leave on half pay, and reduction to 60% of the agreed hours of employment.

Note that employee leave entitlements continue to accrue and must be paid if taking Annual leave, at the full-time or part-time wage they would have been entitled if not for the reduction in agreed ordinary hours of employment. The new Schedule operates from 24 March and expires on 30 June 2020.

The Clerks Private Sector Award 2010 has been varied to enable working from home, expansion of the daily span of ordinary hours with no obligation of penalty rates, the right to reduce hours of work, direct employees to take Annual leave and the option of extended Annual leave on half pay.

The variations are less flexible than the Restaurant and Hospitality industry award variations, and may not be of much assistance to employers that need to reduce hours of work or have already stood down or sent employees on annual leave. Leave entitlements continue to accrue at the employee’s pre-reduction hours of employment even where stood down or on upaid leave.

Further details will be provided to ERO Members as they unfold during this week. If you have any questions please contact the ERO Help desk 1300 021 800

26 MARCH 2020

Managing Risk of Coronavirus : Everything You Need to Know Now in One Place

Due to the overwhelming demand for information on how to manage the workforce during the COVID-19 Pandemic, we have established a new section in the ERO Menu – Coronavirus Response. 

All of the facts sheets and templates that you need are located in this section. ERO Employee Relations Adviser and Fair Work Plus level Members may exclusively access each of the following resources. Select the link to the documents listed below. ERO ‘HR Essentials’ Members must upgrade to either Employee Relations Adviser or Fair Work Plus licenses to access the resources.

  • Managing the Workplace Risk of Coronavirus: Leave Entitlements
  • Managing the Workplace Risk of Coronavirus: Standing Down Employees in a Pandemic
  • Managing the Workplace Risk of Coronavirus: Model Stand Down Letter (Small Business)
  • Managing the Workplace Risk of Coronavirus: Model Stand Down Letter (Small Business Closure)
  • Managing the Workplace Risk of Coronavirus: Model Stand Down Letter (Employment, Education & Community Service)

Managing the Workplace Risk of Coronavirus: Leave Entitlements – Employment, Education & Community Service

Managing the Workplace Risk of Coronavirus: Standing Down Employees in a Pandemic – Employment, Education & Community Service

Managing the Workplace Risk of Coronavirus: Model Stand Down Letter – Employment, Education & Community Service

Managing the Workplace Risk of Coronavirus: Leave Entitlements – Small Business

Managing the Workplace Risk of Coronavirus: Standing Down Employees in a Pandemic – Small Business

Managing the Workplace Risk of Coronavirus: Model Stand Down Letter – Small Business

Managing the Workplace Risk of Coronavirus: Model Stand Down Letter (Closure) – Small Business

STAY UP TO DATE

It is vital for organisations to stay up to date with advice and information published by the Department of Health, as well as state and territory health authorities.