Monday 17 April - Creating Confidence In How People Are Paid
Newsbite: Professional Employees Award changes
On 20 January 2023, the Fair Work Commission (FWC) published a decision that will significantly amend the Professional Employees Award 2020 (Award) including the introduction of penalty rates, overtime and time off in lieu. These changes take effect from the first full pay period on or after 16 September 2023.
This Award applies to employers in the IT industry, quality auditing industry, telecommunications services industry, as well as employers of professional scientists, professional engineers and medical researchers.
The key changes to the Award will be as follows:
Overtime/Time Off in Lieu
Employees will be entitled to be paid overtime or receive time off in lieu for working in excess of 38 hours per week. This entitlement applies to all hours worked, including work on or in connection with call-backs and work performed on electronic devices, as well as work performed remotely.
Penalty Rate for Early Morning and Evening Work
Employees will be entitled to a penalty rate of 125% for all hours worked (whether ordinary or overtime hours) before 6:00 am or after 10:00 pm on any day, Monday to Saturday. For casual employees, this will be in addition to their casual loading.
Penalty Rate for Sundays and Public Holidays
Employees will be entitled to a penalty rate of 150% for rostered hours (whether ordinary or overtime hours) worked on a Sunday or public holiday. For casual employees, this will be in addition to their casual loading.
New record-keeping obligations
For record keeping purposes, employers must keep records of all hours worked by their employees in excess of 38 hours per week, before 6:00 am or after 10:00 pm on any day Monday to Saturday, or at any time on a Sunday or public holiday. The above changes will not apply to your employees who are paid a salary that is at least 25% higher than the minimum annual wage for their relevant classification under the Award. Actions to take by the business now are:
The draft of the award can be found here - CLICK HERE.
Newsbite: Australian Taxation Office Draft EV Km Rate
Calculating electricity costs when charging a vehicle at an employee's or individual's home
Draft Example:
Click here for more information - CLICK.
2023 Australian Payroll Survey
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Training : LIVE 2023 End of Year Training
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Payroll Question & Answer
领英推荐
Question.
Can I roster an employee to work on a Public Holiday?
Answer.
Not automatically, employers must first request the employee to work the public holiday and if agreed then they can roster them. Employers must ask workers if they want to work public holidays and cannot just automatically roster an employee on, according to a landmark court ruling that will apply to all workplaces regardless of what is in contracts or agreements. In a judgment delivered just days before the Easter holidays, a full bench of the Federal Court held that BHP’s internal labour hire outfit, Operations Services, breached the Fair Work Act by requiring miners to work on Christmas Day and Boxing Day. The court affirmed the national employment standards (NES), which override contracts, awards or enterprise agreements, mandate that employers make reasonable requests to work public holidays. A roster or contractual requirement did not count as a request. An employer could still require the employee to work on a public holiday if the employee’s refusal was unreasonable given the nature of the work, reasonable employer expectations, the type of employment and the level of pay.
For more information - CLICK HERE.
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What can employers do when employees pre-emptively commence proceedings?
Managing disgruntled employees can often be a difficult and drawn out process. It may often also be difficult to see the path forward when an employee who is subject to management action seeks retaliation by lodging grievances or commencing proceedings against their employer.
Recently, we assisted a client in dealing with an unfair dismissal application which had been lodged by an employee even though they had not been dismissed from their employment.
The employee’s manager emailed the employee setting out concerns with the employee’s performance and advising that the employee’s performance was unsatisfactory. The email set out expectations about the performance expected of the employee in the future.
In response to the manager’s email, the employee lodged a grievance with the employer about the manager’s conduct and treatment. The employer sought the assistance of Workplace Law to conduct an investigation.
Despite the ongoing investigation process, the employee lodged an unfair dismissal claim alleging that they had been dismissed from their employment.
Workplace Law was able to assist by conducting the investigation and assist in resolution of the unfair dismissal proceedings.
It is not uncommon to see employees take this course of action.
For example, in?Ms W (a pseudonym)?[2022] FWC 1627, the employee lodged an anti-bullying application after concerns were raised with her about her performance. The employee’s manager had raised concerns about the employee’s performance during an annual performance review and then commenced an informal performance management process with the employee. The employer’s evidence was that during these meetings, the employee was argumentative, refused to acknowledge concerns about her performance and denied that there were any issues with her performance.
Following the initial informal performance review meeting, the employee sent an email alleging that her manager had engaged in inappropriate or bullying behaviours and advised that she had lodged a bullying application with the Fair Work Commission (FWC).
The informal performance management process was put on hold and the employer conducted an investigation into the bullying allegations. The investigation determined that the manager had not engaged in bullying behaviour. In response, the employee lodged a grievance in relation to the investigation and made allegations against the investigator. These allegations were found by the employer to be unsubstantiated.
In the FWC, the employee alleged that her manager had engaged in eight separate acts of unreasonable behaviour which amounted to bullying including setting unreasonable timelines, unreasonable treatment, exclusionary behaviour and micromanagement.
The FWC considered each of the allegations and determined that the manager’s behaviour was not unreasonable and rejected the employee’s bullying claim. In particular, the FWC endorsed the comments of Deputy President Sams in the matter of?Karki?[2019] FWC 3147. As we reported on in “The Stalking Horse: FWC warns of abuse of stop bullying jurisdiction”, DP Sams commented on the unacceptability of the use of the anti-bullying jurisdiction as a “shield or stalking horse” to delay disciplinary outcomes or to claim that a disciplinary process was bullying.
Lessons for employers
Unfortunately, there is often little that employers can do to prevent or stop an employee making a claim. The best defence for employers is to ensure that actions are undertaken in a procedurally fair manner to avoid any criticism of its actions.
Workplace Law can assist employers to navigate the path out of complex employment disputes or claims by employees in a pragmatic way. If you require assistance, please reach out to Workplace Law on (02) 9256 7500.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
About the Author - Athena Koelmeyer
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