It is important that all businesses consider current workplace matters to ensure compliance with legislative requirements, as we come out of coronavirus hibernation. Below is a snapshot of what is currently happening, issues we are advising on and a reminder to businesses about some of the key requirements.
Businesses have the ultimate responsibility for ensuring that employees are working safely. Specific coronavirus friendly working arrangements will need to be properly documented and complied with. SafeWork New South Wales provides a lot of information in relation to this to assist in getting back to work and the health and safety measures for all employees.
- Work Safety
Rules around office cleaning, number of employees in a business, changing working hours to scatter employee numbers in any one area at a particular time, and with some businesses a combination of still working from home and coming into the office will be important factors. For industrial environments, risk assessments may need to be performed on specific jobs that require employees to be physically close in each other’s presence and/or hygiene measures around touching machines and/or tools. It is not just physical health that employers should be looking out for. Employers should be ensuring that they are providing sufficient mental health support to their workforce and ensure that a proper welfare check is undertaken if required.
- Workforce Planning and Requirements
Some businesses have changed because of coronavirus and their workforce planning and workforce requirements are going to be different. Employers need to navigate what workforce they need for this time, and know what options are available to them. Advice will differ greatly, as to whether a business has the rights under the JobKeeper legislation to act in particular ways, and if a business doesn’t have the benefit of the rights of the JobKeeper legislation, what it can and can’t do. For example, duties that can be performed, and the hours in which employees can perform their work.
- Stood Down Employees
Any businesses which have had some or all employees on stand down, will need to consider how to bring their employees out of that stand down. If the workforce requires less employees, or perhaps reduced working hours for a longer time period, then that should be navigated and appropriately documented. If a business finds that it is the case that it no longer has positions available for all its employees, then positions will need to be made redundant and businesses should be seeking advice to ensure that redundancies are performed in a fair and un-biased manner. It is not legal for businesses to keep employees on stand down for longer than they should be. Businesses who qualify for JobKeeper can issue enabling stand down directions in certain circumstances. For those businesses who do not qualify for JobKeeper, stand down is only continued to be valid if there is a stoppage of work. Once work resumes, then the legal ability to stand down is lost.
- Minimum Pay Rates/Wage
We are expecting the Fair Work Commission to communicate to businesses this month on increases to the minimum pay rates under awards and the minimum wage. Employers should be aware of which awards the employees come under and their classifications under those awards. All employees hourly pay rates should be checked when the new award rates are announced to ensure that employees’ remuneration is at least consistent with, but preferably better off when compared to the award. The Fair Work Commission has been extensively varying existing awards as a result of the four yearly review of modern awards and this is occurring in three tranches. It is important for businesses to review the awards that apply to their workplace because it could be that the award requirements have changed.
- Payment of Annualised Salaries
Just prior to COVID-19 affecting our businesses in March, many awards were varied in relation to payment of annualised salaries. These changes were made primarily in relation to wage theft cases and paying employees hourly rates of pay which were supposedly sufficiently loaded to enable a set rate of pay to pay an employee, even when working particular shifts/overtime. Any business that is paying its employees a loaded or set hourly rate or salary must have it properly documented in accordance with the award. It is not satisfactory to simply say that a business pays all its employees above the award and therefore does not need to have regard to the award. If a business is wanting to absorb penalty rates or overtime or shift loading, then it must be clearly documented how those payments are being taken into account. All businesses should be reviewing employee salary arrangements and all employee arrangements where an employee is paid a set hourly rate of pay, regardless of hours worked, to ensure that basic award conditions are being met and to ensure that it is properly documented.
The court has given further direction on casual employment arrangements in the recent decision of Workpac v Rossato. With this decision, it increases the risk of employees successfully claiming backpay, payment for annual leave public holidays and sick leave, together with redundancy and notice of termination. This is the case even if being paid a casual loading for their working hours but where certain understandings exist between employer and employee which may go beyond 100% casual arrangement. Workpac argued that the 25% loading should be enough to compensate employees for not receiving the benefits of full-time employment, but the court disagreed and awarded leave entitlements in addition to the casual loading already paid. In effect, the decision allowed casual employees to double dip. The court also made it clear that it will look further than what is in the written contract of employment and will look at the actual work performed and the engagement of casual employees in making a decision about whether an engagement is truly casual or not.
Any business who has any casual employees on its books should be reviewing those casual engagements now.
If you have any questions regarding any of the information above or would like to discuss anything further please don’t hesitate to contact our Employment Law team on (02) 4927 2900.