- Tough lessons learnt in unfair dismissal for casual
We are looking back at the 2020 Fair Work Commission Unfair Dismissal case, Angele Chandler v Bed Bath N’ Table Pty Ltd, which highlighted key issues relating to unfair dismissal for casuals along with the importance of due process.
The case determined that despite a valid reason for Chandler’s termination existing, the company’s incompetent National HR Manager had contributed to bungling the employee’s sacking, resulting in it being unreasonable. Say what?!!
In an earlier hearing before the Commission, arguments were heard regarding whether a casual employee could claim unfair dismissal. This particular summary can be found here.
The HR Manager’s bungled termination
In this particular case, the Commission found that the National HR Manager was “incompetent in respect of her ability to deal with the termination of an employee”. In an overall messy process, the National HR Manager relied on a number of invalid justifications for terminating the employee, while avoiding due process for another allegation which was, in fact, a valid reason for dismissal. Therefore, despite a valid allegation existing for a termination, the National HR Manager failed to allow the employee to respond to it, and therefore the dismissal was deemed unreasonable.
What does this mean for employers?
Ensuring that due process is followed during disciplinary and termination processes is critical to the employer’s ability to defend an unfair dismissal claim, even where there is a valid reason for a termination. Therefore employers should carry out the correct process each and every time. It is also extremely important to check the credentials of your appointed HR resource. They should have abundant recent experience in handling disciplinary and termination matters – this goes for both internal and outsourced providers. If they don’t stack up, we recommend engaging a specialist.
Casuals and unfair dismissal
Despite initial debates in the Commission as to whether Chandler could claim unfair dismissal as a casual employee, the Fair Work Commission determined that even though the employee had been classified as a casual by the employer, the employee was entitled to claim as they had been employed continually for over six months. In coming to this decision, the Commission considered the employee’s rosters, the ongoing contract of employment, and whether the employee had an expectation of ongoing employment and ultimately decided the employment was regular and systemic.
What does this mean for employers?
Essentially, this case further clarified the current stance on how casual employment is to be handled by the Commission and could mean that more casuals may be entitled to make unfair dismissal claims in the future.
Despite this decision, we are keeping a close eye on possible upcoming reforms for casual employees.
Get in touch with the team at Industryus if you would like to find out more about how we can support your organisation.
- The new Industrial Relations Bill – unpacked
On Tuesday 9th December 2020 the Morrison government tabled their new industrial relations bill in the senate.
Prior to this, on 26 May 2020, the Prime Minister the Hon. Scott Morrison MP announced the Australian Government’s JobMaker plan. Part of this plan was to explore reforms to the industrial relations (IR) system to regrow jobs lost in the COVID-19 pandemic.
Since June, the Attorney-General and Minister for Industrial Relations, Christian Porter, has led the IR reform working group process bringing together employers, industry groups, employee representatives and government to chart a practical reform agenda. Five working groups were established to discuss potential solutions to key issues within Australia’s industrial relations system.
The five working groups:
- The Casuals and fixed-term employees working group.
- The Award Simplification working group
- The Enterprise Agreements working group
- The Compliance and Enforcement working group
- The Greenfields Agreements working group.
The Industrial Relations Bill
According to the government, The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 supports the government’s commitment to Australia’s jobs and economic recovery, by:
- providing certainty to businesses and employees about casual employment;
- giving regular casual employees a statutory pathway to ongoing employment by including a casual conversion entitlement in the National Employment Standards (NES) of the Fair Work Act;
- extending two temporary JobKeeper flexibilities to businesses, in identified industries significantly impacted by the pandemic;
- giving employers the confidence to offer part-time employment and additional hours to employees, promoting flexibility and efficiency;
- streamlining and improving the enterprise agreement making and approval process to encourage participation in collective bargaining;
- ensuring industrial instruments do not transfer where an employee transfers between associated entities at the employee’s initiative;
- providing greater certainty for investors, employers and employees by allowing the nominal life of greenfields agreements made in relation to the construction of a major project to be extended;
- strengthening the Fair Work Act compliance and enforcement framework to address wage underpayments, ensure businesses have the confidence to hire and ensure employees receive their correct entitlements; and
- introducing measures to support more efficient Fair Work Commission (FWC) processes.
Below is a breakdown of the key issues.
Casual and fixed-term employees
The Industrial Relations bill introduces, for the first time, a statutory definition of a casual employee that focuses on the offer and acceptance of employment and draws on common law principles.
The Bill is intended to prevent unfair outcomes in situations where employers have to pay an employee twice for the same entitlement. In the event that an ongoing employee is misclassified as casual, the Bill enables casual loading amounts to be offset against claims for leave and other entitlements in certain circumstances, to address any potential for ‘double-dipping’ when recognising the employee’s correct classification.
The Bill introduces a statutory obligation for employers to offer casual staff conversion to full or part-time employment after 12 months unless there are reasonable business grounds not to do so. The Bill also requires casual employees to be provided with a Casual Employment Information Statement published by the Fair Work Ombudsman (FWO).
The Bill introduces part-time flexibility provisions This will enable employers and employees to work together to agree additional hours of work to part-time employees who already work at least 16 hours per week, to be paid at ordinary rates of pay. Currently, under many awards, the only way a part‑time employee can work additional hours at ordinary rates of pay is to formally alter the regular pattern of hours. An ad hoc arrangement to work additional hours may attract overtime rates – even if an employee volunteers to work those additional hours.
To ensure flexibility for employers, especially small businesses in distressed sectors, the Bill will extend existing JobKeeper flexibilities in the Fair Work Act concerning duties and location of work to employers and employees to whom identified modern awards apply. These flexibilities, with appropriate employee safeguards, will be available for a period of 2 years from the passage of the Bill.
Enterprise and greenfield agreements
The Fair Work Commission (FWC) will no longer be required to be satisfied that the terms of an enterprise agreement do not exclude the safety net provided by the National Employment Standards (NES) and instead, the agreement must include a term which explains the interaction between the NES and enterprise agreements. The Fair Work Commission will also be required to approve agreements, as far as practicable within 21 working days.
The process for assessment of enterprise agreements against modern awards will also be clarified by requiring the FWC, in applying the better off overall test (BOOT), to:
- only take into account patterns or kinds of work, or types of employment, that are currently engaged in or are reasonably foreseeable, not those that are hypothetical or not reasonably foreseeable;
- have regard to the overall benefits (including non-monetary benefits) employees would receive under the agreement compared to a relevant modern award; and
- have regard to any views relating to whether the agreement passes the BOOT expressed by employers and employees and their bargaining representatives.
The Bill will also enable the FWC to approve longer-term greenfield agreements which are a form of enterprise agreement used by new enterprises before they recruit any staff.
Greenfield agreements are commonly used in project-based industries, such as mining and construction. Under the legislation, greenfield agreements made in relation to the construction of a major project, are to specify a nominal expiry date of up to eight years after the day the agreement comes into operation. Where the greenfields agreement specifies a nominal expiry date more than four years after the day on which the FWC approves the agreement, the agreement must include a term that provides for annual pay increases for the nominal life of the agreement.
Compliance and enforcement
This Bill enhances the Fair Work Act compliance and enforcement framework to more effectively deter non-compliance with workplace laws and make it easier to recover wages when underpayment does occur.
To better deter non-compliance, the Bill introduces a new criminal offence for dishonest and systematic wage underpayments and increases the value and scope of civil penalties and orders that can be imposed for non‑compliance.
Fair Work Commission
The Bill includes measures to support more efficient FWC processes, to enable the FWC to:
- deal with appeals ‘on the papers’ where appropriate;
- vary or revoke decisions relating to enterprise agreements and workplace determinations more easily, to correct minor errors; and
- deal more effectively with unmeritorious applications.
These measures will enable the FWC to deal with matters more expeditiously and promote effective allocation of its resources.
Further review of Modern Awards in distressed industries
In addition to the Industrial Relations bill, Christian Porter has released a letter in which he has requested the FWC conduct a review of modern awards in distressed industries. Mr Porter said that stakeholders have identified two changes the commission could (and should) make separate to the IR legislation:
- To simplify pay arrangements by allowing “loaded rates” – for employers to pay employees a higher base rate of pay instead of penalty rates, on an opt-in basis so that workers are not financially worse off; and
- To streamline classifications so that workers in retail, hospitality, restaurants, and registered clubs are not paid many different rates of pay based on their duties
Next steps for the Industrial Relations Bill
There will be months of discussion on the Bill, so it’s likely that decisions on the key areas won’t be made until well into 2021.
The full bill can be assessed here.
If you need human resources advice, consider the Industryus Membership. We offer a tailored HR solution according to the level of support needed. Call us on 07 5655 4047 or go online and book in a Free Introductory Session at our Gold Coast office or via Zoom.
- New Fair Work decision – overtime for casuals
Do you employ casual workers?
If you do, you should keep reading… A decision has recently been made by the Fair Work Commission that overtime for casuals should be calculated using the casual ordinary rate (inclusive of the 25% casual loading). This ruling comes as part of the four yearly review of Modern Awards.
Summary of the changes
- New overtime penalty rates for casual employees will be inserted into 97 Modern Awards.
- These changes will take effect from 1 March 2021 for the Aged Care Award and 20 November 2020 for all other affected Modern Awards.
- The changes will not impact enterprise agreements that operate to the exclusion of a Modern Award; however, they will apply to businesses covered by enterprise agreements that incorporate or are read in conjunction with the terms of a Modern Award.
Where your business utilises casuals you should check the requirement to pay overtime. Keep in mind, there may be other circumstances apart from working over 38 hours per week that overtime for casuals may apply. Modern award rate tables will be updated in due course.
The full decision can be found here.
If you need ongoing HR support, consider booking a Free Introductory Call with Industryus, to find out more about our support options. Or call our friendly team on 07 5655 4047.
- New Laws for Casuals: have you met your obligations?
No doubt you may have heard a lot in the media recently about the new laws for casuals. And, it may seem a bit overwhelming at times as there is so much information and sometimes it can seem a bit sensationalised. In this three minute read, Industryus has done the hard work and summarised the important bits for you.
Where did all this casual talk suddenly come from?
The court case which has caused the recent attention on casual employment was Workpac v Rossato. While the matter was heard in the Federal Court about 12 months ago, the 250 odd page decision took until late May 2020 to be finalised. That is one big read!
As you can imagine with anything of this size, it is complex. We are sure you don’t have any interest (or time for that matter) to read through it. So, to make it simple here is a very quick summary of how the new laws for casuals came about.
The recent Workpac v Rossato decision re-affirmed the 2018 Workpac v Skene decision which found that some casual workers might be able to ‘double-dip’ (receive a casual loading plus be entitled to paid leave like a permanent employee receives). What is significant however about Workpac v Rossato is that the decision contradicts new government regulations introduced to stamp out the right to double-dip in casual employment. Essentially the Workpac v Rossato case means that the new regulations are useless and in certain situations where casuals are employed regularly and systemically they could be entitled to paid leave – even when they are receiving a loaded rate of pay.
Does the Workpac v Rossato decision mean that all casuals will automatically be entitled to back payments of leave or offers of permanent work?
No. You may have heard in the media that future legislation could be introduced to correct this decision made by the courts. This is true, but we don’t know exactly when this may happen. Therefore, as it currently stands, the decision made in Workpac v Rossato is currently the law and employers need to be mindful about how casuals are engaged, or they could risk back payment claims being made by casual employees.
We don’t think that employers need to panic, however. Rather, employers should carefully review their casual workforce to get an understanding of how casuals are engaged and work on strategies that will reduce the organisation’s exposure to underpayment claims from casuals or breaches of Fair Work rules. If you are concerned about or unsure whether casual obligations are being properly met, we recommend engaging a professional to work through it all with you. Rectifying issues now will place your organisation in the best position to defend any future claims.
What should employers do?
- Ensure the casual conversion obligations in the relevant modern award are adhered to.
- Review your casual workforce and consider which employees might be regular and systemic and could be offered permanent employment. Follow casual conversion rules in this regard.
- Implementquality employment contracts for all casual employees so that your business is in a defensible position.
- Ensure your casual employees are treated as such. E.g. casuals will have no firm expectation of future shifts/work, and generally have more control over when they work.
How to get help regarding the new laws for casuals
The information above is general guidance. Industryus HR strongly recommends employers seek advice from an employment relations professional to implement the steps required for better compliance with the new laws for casuals.
Don’t hesitate to organise a Free Introductory Callto find out how we can help.