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Industrial Relations e-Alerts 

APTIA IR e-Alerts are electronically delivered to you via email as IR news breaks. They contain the latest and breaking IR industry news as well as any recent industry decisions or important dates in the industry. 

8 December 2018

New IR Legislation 2018

The major political parties, no doubt in the spirit of Christmas, have reached consensus and actually passed two pieces of industrial relations legislation in the final parliamentary sitting days of 2018.
The two new enactments include:

Fair Work Amendment (Domestic and Family Violence) Bill 2018
Under the family and domestic violence leave amendments to the NES:

Unpaid family and domestic violence leave can be accessed by employees if:

Employers should be aware that:

The legislation once it is assented to will apply to all Awards, which has a similar provision most recently added to it and more importantly all enterprise agreements as the legislation amends the NES, which forms part of all agreements.

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017

Under these amendments, which had been lingering in the Parliament for over a year, despite pleas from both employer and employee groups, the Fair Work Commission will:

Of equal importance for this Bill was that the Senate did not proceed with the amendments of the Labour Opposition, titled ‘Protecting Take Home Pay for All Workers’, which sought to reinstate and protect penalty rates and to ensure that no worker could be paid less under any new agreement. This would have prevented efficiency gains or productivity gains for an employee, which were not financial to be provided or negotiated as part of the enterprise agreement.

Both these Bills are now awaiting the Royal Assent of the Governor General.

Ian MacDonald, National IR Manager
6 December 2018

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Request for flexible working arrangements

2018 FWCFB 6863 Family Friendly Arrangements 2018 FWCFB 6863 Family Friendly Arrangements (200 KB)


The Full Bench of the Fair Work Commission has made a final determination with respect to ‘family friendly arrangements’ which was an ACTU application in the 4 yearly review and have determined that all 122 modern Awards will be amended from 1 December 2018 to incorporate a new clause which is set out below.

The impact of this decision is that the Awards, including the Passenger Vehicle Transportation Award, will have prescriptive obligations upon the employer and employee in circumstances where an employee makes a request for changed working arrangements, as the employee was otherwise entitled to make such a request under section 65 of the Fair Work Act i.e. in circumstances where the employee is a carer, has responsibility for a child, is over 55 years of age, is experiencing violence from a family member or supports a family member who is experiencing such family violence.

The further impact is that all newly negotiated enterprise agreements to meet the BOOT will need to incorporate this new clause, which will commence from 1 December 2018.

The new clause sets out a process of consultation between the employer and employee and is prescriptive to the extent that an employee can seek a dispute resolution if the employer does not follow the prescriptive process.

An employer may refuse such request on ‘reasonable business grounds’ which are untested with the written reasons for such a refusal required to provided by an employer in writing to an employee within 21 days from the written request.


XA. Requests for flexible working arrangements
XA.1 Employee may request change in working arrangements


XA.2 Responding to the request
Before responding to a request made under s.65, the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:

Note 1: The employer must give the employee a written response to an employee’s s.65 request within 21 days, stating whether the employer grants or refuses the request (s.65(4)).
Note 2: If the employer refuses the request, the written response must include details of the reasons for the refusal (s.65(6)).


XA.3 What the written response must include if the employer refuses the request

XA.4 What the written response must include if a different change in working arrangements is agreed

XA.5 Dispute resolution

The Decision and a copy of the draft clause can be foundby clicking on the PDF above.

This decision would in all likelihood conclude the 4 yearly review commenced in 2014.

Ian MacDonald, National IR Manager
20 November 2018

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10 August 2018

Part-Time employment and Casual employment

The finalisation of the 4-yearly review of the modern awards is gaining pace as the Full Bench of the Fair Work Commission handed down its final decision on 9 August relating to the introduction of a casual conversion clause after having provided an interim Decision on 5 July 2017.

APTIA through its Industrial Working Group had provided submissions to the Full Bench in relation to the interim Decision.

The proposed casual conversion clause will take effect as part of the Passenger Vehicle Transportation Award 2010 from 1 October 2018.

This will mean that members who are proposing to bargain for new enterprise agreements will have to consider these terms of the amendment to the PVTA when meeting the BOOT.

The Full decision can be found by clicking on the PDF below.

The Full Bench, comprising Vice President Hatcher, Senior Deputy President Hamberger, Deputy President Kovacic and Deputy President Bull noted at paragraph 9, that:
“APTIA proposed four substantive amendments to the model clause.”

APTIA had sought a period of time (90 days) for employers to provide the notification of the right to convert to existing casual employment, to limit the right to a once only right to convert, to require the notification to be made within 21 days of eligibility and to further define reasonable grounds to include an inability to provide 52 weeks of work.

At paragraph 28 of the Decision the Full Bench agreed to amend its original draft clause to include APTIA’s proposed amendment. The Full Bench commenting in the Decision;
“The point made in the submissions of the APTIA and the NFF that, in respect of the requirement to provide casual employees with a copy of the award provision, there needs to be a transitional provision concerning existing employees has merit. The model clause will provide that existing casual employees must be given a copy of the provision within 3 months of the provision taking effect.”

The draft clause is attached to this Industry E-Alert.

Members should note and consider the effect of the proposed amendment to the PVTA.

The clause:

  1. Allows a casual employee who has worked as a regular casual for at least 12 months to request, at any time to convert to a permanent part time or permanent employee to their regular hours of work.
  2. A regular casual is defined as a person who has worked a pattern of hours on an ongoing basis without significant change.
  3. This right accrues to such a casual employee each and every 12-month period of employment and is a right that can be exercised once every 12 month period at any time during that period.
  4. The request to convert must be in writing to the employer.
  5. An employer may refuse the request but only on reasonable business grounds and only after a consultation with the employee. The discussions must be recorded in writing and any outcome reduced to writing. A decision must be given to the employee within 21 days after the request.
  6. There is a non-exhaustive set of definitions as to what constitutes ‘reasonable business grounds’ and they include: a significant adjustment to the casual’s hours of work; it is reasonably known that the position of the employee may not be available within 12 months; it is reasonably known that the hours of the employee will reduce over the next 12 months or a significant change may be required to the employees hours over a 12 month period.
  7. Employers are required to provide each new employee (casual) and all existing employees (casuals) within 3 months, i.e. by 1 January 2019, with a copy of the new casual conversion clause.

NOTE:
Remember this provision will only apply to those members who are paying and employing their employees under the PVTA or those members who have incorporated the PVTA into their enterprise agreements or who are proposing to renegotiate their current agreement.

Proposed Casual Conversion clause
XX Right to request casual conversion

(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.
(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.
(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.
(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.
(e) Any request under this subclause must be in writing and provided to the employer. (f) Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.
(g) Reasonable grounds for refusal include that:
(i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part time employee in accordance with the provisions of this Award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);
(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;
(iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or
(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.
(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause X. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.
(j) Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:
(i) the form of employment to which the employee will convert – that is, full-time or part-time employment; and
(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause X.
(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.
(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.
(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.
(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert. (o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.
(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 October 2018, an employer must provide such employees with a copy of the provisions of this subclause by 1 January 2019.
(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in clause XX(p) .

APTIA FWC Decision - Part-time employment and Casual employment APTIA FWC Decision - Part-time employment and Casual employment (449 KB)


Ian MacDonald, National IR Manager
10 August 2018

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9 July 2018

 

 

The Full Bench has finalised its position with respect to the issue of family and domestic violence leave.
In a decision handed down handed down on Friday 6 July 2018 the Full Bench advised that such leave would become effective under the modern Awards including the Passenger Vehicle Transportation Award from 1 August 2018.

An employee will be entitled to 5 days’ unpaid leave to deal with family and domestic violence, as follows:
(a) the leave is available in full at the start of each 12-month period of the employee’s employment; and
(b) the leave does not accumulate from year to year; and
(c) is available in full to part-time and casual employees.

Note: 1. A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer.

2. The employer and employee may agree that the employee may take more than 5 days’ unpaid leave to deal with family and domestic violence. An employee may take unpaid leave to deal with family and domestic violence if the employee:
(a) is experiencing family and domestic violence; and
(b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work. Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.
The Full draft term to be including into the Passenger Vehicle Transportation Award is set out below:

Leave to deal with Family and Domestic Violence: Model Term X.1 This clause applies to all employees, including casuals.

X.2 Definitions
(a) In this clause: family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful. family member means: (i) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or (ii) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
(iii) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
(b) A reference to a spouse or de facto partner in the definition of family member in clause

X.2(a) includes a former spouse or de facto partner.

X.3 Entitlement to unpaid leave an employee is entitled to 5 days’ unpaid leave to deal with family and domestic violence, as follows:
(a) the leave is available in full at the start of each 12-month period of the employee’s employment; and
(b) the leave does not accumulate from year to year; and
(c) is available in full to part-time and casual employees. Note: 1. A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer. 2. The employer and employee may agree that the employee may take more than 5 days’ unpaid leave to deal with family and domestic violence.

X.4 Taking unpaid leave an employee may take unpaid leave to deal with family and domestic violence if the employee:
(a) is experiencing family and domestic violence; and [2018] FWCFB 3936 8
(b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work. Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.

X.5 Service and continuity the time an employee is on unpaid leave to deal with family and domestic violence does not count as service but does not break the employee’s continuity of service.

X.6 Notice and evidence requirements
(a) Notice An employee must give their employer notice of the taking of leave by the employee under clause X.
The notice:

Note: Depending on the circumstances such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.

X.7 Confidentiality
(a) Employers must take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided under clause X6 is treated confidentially, as far as it is reasonably practicable to do so.
(b) Nothing in clause X prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.  

Note: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. [2018] FWCFB 3936 9 Employers should consult with such employees regarding the handling of this information. X.8 Compliance An employee is not entitled to take leave under clause X unless the employee complies with clause X.

 

Note: Members who have current enterprise agreements will not be bound by the family domestic violence leave clause unless their enterprise agreements incorporate the Award and any variations made thereto.



Ian MacDonald,
National IR Manager

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1 June 2018

Wage rates increase from 1 July 2018

Today the Fair Work Commission handed down a 3.5% wage increase to all minimum wage earners and those employees paid under a modern award.

The Passenger Vehicle Transportation Award 2010 (PVTA) will rise by 3.5%.

For example:
From July 1, 2018 increases are:
• Grade 1 = $20.42 an hour
• Grade 2 = $20.92 an hour
• Grade 3 = $22.11 an hour
• Grade 4 = $22.88 an hour
APTIA will provide a full summary of the decision in it's June Everybody Out. APTIA will also post on its website (www.aptia.com.au) a comprehensive list over the next fee days.

Ian MacDonald,
National IR Manager

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26 March 2018

 

INDUSTRY E-ALERT – FAMILY FRIENDLY ARRANGEMENTS AND DOMESTIC AND VIOLENCE LEAVE

Today the Full Bench handed down their long-awaited decisions relating to domestic and family violence leave and family friendly arrangements.

I will deal with Family Friendly Arrangements first.

The Full Bench rejected the ACTU mandatory claim for a two - year grace period for persons returning form parental leave or carers leave.

But the FWC did state:

“Supporting and enabling women to increase their employment participation is a significant public policy issue in Australia, given the aging of our population.”

The Full Bench reached the provisional view that the modern award minimum safety net should be varied to incorporate a model term to facilitate flexible working arrangements for parents and carers.

The provisional model term would supplement the NES in the following ways:

 

I will now deal with domestic and family violence leave.

Again the Full Bench rejected the ACTU claim for paid domestic and violence leave however they did decided to provide five days’ unpaid leave per annum to all employees (including casuals) experiencing family and domestic violence.

Such leave will be available in the event that the employee needs to do something to deal with the impact of the family and domestic violence and it is impractical for them to do it outside their ordinary hours of work.

The Full Bench decided to defer its consideration of whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave.

The Majority Decision also expressed the preliminary view that ‘employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave’.

The drafting of the model term to give effect to the Decision will be finalised in the coming weeks.

The Decision and a Summary can be found by clicking on the PDFs below:

APTIA FWC - Family and Domestic Violence Decision APTIA FWC - Family and Domestic Violence Decision (242 KB)

APTIA FWC - Family Friendly Working Arrangements Decision APTIA FWC - Family Friendly Working Arrangements Decision (381 KB)


Ian MacDonald, National IR Manager

26 March 2018



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