The year is well under way, and with every new year comes a new raft of employment law issues to consider.
Here are ten key issues that should be at the forefront of every boss and HR manager’s mind this year.
- Review Employment Contracts and Policies regarding Annual Leave
The Fair Work Commission (FWC) has approved new annual leave provisions which are to be inserted into all Modern Awards, including the right for employers to direct employees to take annual leave if they have accrued more than eight weeks, the ability of employees to take leave in advance if the employer agrees, and the inclusion of a ‘cashing-out’ provision allowing employers to agree with an employee to cash out built up annual leave (subject to certain conditions).
- Review Procedures regarding Payment of Annual Leave on Termination
In 2015, the court ruled that where an employee is covered by a Modern Award or is otherwise entitled to annual leave loading, the loading should be paid to them on termination.
Failure to do so will result in underpayment and possible prosecution. Check payroll procedures to ensure employees are paid annual leave loading upon termination if they are entitled to it.
- Re-Analyse Over-Award Payments
The FWC has ruled that the standard absorption clause in Modern Awards will be removed. This means that if an Employer is making an over-award payment to an employee covered by a Modern Award, and this payment is designed to capture all potential entitlements under the Award, an appropriately worded ‘set-off’ provision will need to be included in the Employment Agreement. Further, a review should be done of employees’ Award entitlements to ensure that the employee’s payment is still sufficient under the Award.
- Review Contractor Arrangements
The Fair Work Ombudsman has cracked down on ‘sham contracting arrangements’ whereby an employee is disguised as a contractor.
Employers should check their arrangements to ensure that both contractors and employees are engaged under the correct agreement and comply with the Fair Work Act 2009 (Cth).
- Review Drug & Alcohol Policies
2015 saw the FWC uphold an employer’s right to randomly sample both saliva and urine of an employee, while the FWC and the Federal Court overturned the reinstatement of an employee for breaching his employer’s “zero tolerance” policy.
Your workplace Drug & Alcohol Policy should be reviewed to ensure that it incorporates these approaches.
- Review Bullying, Social Media and Internet Policies
The FWC in 2015 ruled that employees can make bullying claims regardless of whether the alleged bullies were “at work” at the time of the relevant conduct.
Since bullying claims have been interpreted broadly, employers should review workplace bullying, social media and internet use policies to limit risk.
- Review Volunteer Worker Engagement Practice
In 2015, the Fair Work Ombudsman prosecuted an employer for failing to pay minimum wages to an intern on ‘work experience’, issuing a $24,000 penalty under the Fair Work Act.
It is only in very limited circumstances that individuals undertaking “work experience” do not require payment, so make sure your workplace practices comply else risk large penalties.
- Review Anti-Discrimination Policies and Practices
Australia Post was recently found vicariously liable for racially discriminatory conduct by an employee, because they did not adequately implement their anti-discrimination policy (despite the policy itself being described as “exemplary”).
As such, employers should ensure their policies are up to date, that they are properly enforced, and that the employer’s level of response to the complaint is appropriate. As always, regular training of employees in relation to the policies and procedures, is essential.
- Review Injured Employee Practices
In 2015, it was held by the Court that an employer has a right to request an employee attend an appointment with the employer’s nominated medical practitioner, to determine whether the employee is fit for work. In some instances, an employer can even dismiss an employee if they refuse to attend.
Care needs to be taken in exercising this right, as it will depend on the circumstances of each particular case. There are also different rules if the matter is a workers’ compensation matter.
Policies and procedures dealing with sick and injured workers should be reviewed to ensure that they properly reflect employers’ rights.
- Review Paid Parental Leave Policies
Potential changes to the Paid Parental Leave Scheme from 1 July 2016 could mean that employees may no longer be able to ‘double dip’ from the government funded parental leave scheme and employer provided parental leave payments.
Whilst it is unclear whether the Senate will pass the requisite legislation, come July 2016 it is worthwhile reviewing any workplace Paid Parental Leave policies to ensure that they comply with the law as it stands.