CLIENT BULLETIN NO. 2023-27

Closing the Loophole Legislation

 The Legislation

The Bill has passed both House of Parliament, and employers will need to ensure they are up to date with the new provisions relating to the definition of casuals and the rights of casual as well as the new provisions relating to workplace delegates.

Workplace Delegates

The Bill provides as follows:

350A Protection for workplace delegates

(1) The employer of a workplace delegate must not:

(a) unreasonably fail or refuse to deal with the workplace delegate; or

(b) knowingly or recklessly make a false or misleading representation to the workplace delegate; or

(c) unreasonably hinder, obstruct, or prevent the exercise of the rights of the workplace delegate under this Act or a fair work instrument.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) To avoid doubt, subsection (1) applies only in relation to the workplace delegate acting in that capacity.

(3) The burden of proving that the conduct of the employer is not unreasonable as mentioned in subsection (1) lies on the employer.

Exception—conduct required by law

(4) Subsection (1) does not apply in relation to conduct required by or under a law of the Commonwealth or a State or a Territory.

350C Workplace delegates and their rights

Meaning of workplace delegate

(1) A workplace delegate is a person appointed or elected, in accordance with the rules of an employee organisation, to be a delegate or representative (however described) for members of the organisation who work in a particular enterprise.

Rights of workplace delegates

(2) The workplace delegate is entitled to represent the industrial interests of those members, and any other persons eligible to be such members, including in disputes with their employer.

Note: This section does not create any obligation on a person to be represented by a workplace delegate.

(3) The workplace delegate is entitled to:

(a) reasonable communication with those members, and any other persons eligible to be such members, in relation to their industrial interests; and

(b) for the purpose of representing those interests:

(i) reasonable access to the workplace and workplace facilities where the enterprise is being carried on; and

(ii) unless the employer of the workplace delegate is a small business employer—reasonable access to paid time, during normal working hours, for the purposes of related training.

(4) The employer of the workplace delegate is taken to have afforded the workplace delegate the rights mentioned in subsection (3) if the employer has complied with the delegates’ rights term in the fair work instrument that applies to the workplace delegate.

(5) Otherwise, in determining what is reasonable for the purposes of subsection (3), regard must be had to the following:

(a) the size and nature of the enterprise;

(b) the resources of the employer of the workplace delegate;

(c) the facilities available at the enterprise.

85 Subsection 539(2) (table item 11, column 1)

Fair Work Act 2009

Changes to definition of Casual

This new definition provides that an employee is a casual employee on the basis that:

• the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
• the employee would be entitled to a casual loading. 

The Bill provides to define the phrase ‘absence of a firm advance continuing and indefinite work’ by reference to the following: 

• the real substance, practical reality, and true nature of the employment relationship; 
• the contract of employment; 
• the mutual understanding or expectation between the employer and employee not rising to the level of a term of that contract, which may be inferred from the conduct of the employer and employee after entering into the contract of employment or from how the contract is performed; and
• having regard to the following considerations (but not limited to): 
  • an inability of the employer to elect to offer work or an inability of the employee to accept or reject work; 
  • the nature of the employer’s enterprise; 
  • whether there are full-time and part-time employees performing the same work; or
  • whether there is a regular pattern of work for the employee.

The proposed changes in the Bill to the definition of casual employee are significant. The proposed definition for the parties to consider the nature of the employment relationship and the mutual understanding or expectation of the employer and employee is a shift away from the current decisions of CFMEU v Personnel Contracting and ZG operations Australia Pty Ltd v Jamsek, where ‘contract is king‘ and also a rejection of the rationale underlying decisions such as Workpac v Skene and Workpac v Rosatto that brought the issue of the definition of casual employment to the attention of the Parliament a number of years ago. 

Instead, the Bill will require that not only the terms of the employment contract be considered but also the totality of the employment relationship when categorising employment. For example, the new test will invite a more detailed examination of a business’ operations and rostering plans, not simply the discrete relationship that exists between the employer and the individual employee. The new test will also allow an examination of not simply the intention of the parties when they first enter into the employment relationship, but also after the fact and if the intention of the parties ever changed.

Clearly, contracts for casual staff will need to be reviewed to ensure that staff engaged as casuals are able to meet the new requirements.

 I would encourage all employers to do their research on the new provisions of the Closing the Loophole legislation.

Clare Dewan

Public Holidays and NES Provisions

Tuesday, November 21, 2023, 12:16pm

The High Court has rejected BHP’s bid to challenge a full Federal Court ruling clarifying when employees can reasonably refuse requests to work on public holidays.

The resources giant on behalf of OS MCAP sought special leave to contest the full court’s March finding that its in-house labour supplier breached NES obligations under s114 of the Fair Work Act by unreasonably requiring up to 85 production employees to work across Christmas holidays in 2019 (see Related Article).

In upholding the CFMMEU’s appeal against last year’s judgment by Justice Darryl Rangiah, Justices Berna Collier, David Thomas and Elizabeth Raper recounted that s114(2) permits an employer to request that an employee work on a public holiday, while s114(3) allows that a request can be refused if it is not reasonable or refusal is reasonable.

“In this court’s view, a ‘request’ within the meaning of s114(2), connotes its ordinary meaning, an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday,” the full court said.

“Ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable.”

Sitting in Canberra on the 21st November 2023, High Court justices Michelle Gordon and Robert Beech-Jones declined BHP’s special leave request after hearing arguments from John Sheahan KC for the employer and Ingmar Taylor SC for the union.

The matter will now return to Justice Rangiah to determine remedy and penalties.

The CFMMEU claimed that the case exposed flaws in the way BHP deducted leave on public holidays across its entire Australian workforce, leading to the company’s revelation that it has to backpay more than $400 million to almost 30,000 employees shortchanged since 2010 (see Related Article).

OS MCAP Pty Ltd ACN 626 224 655 v Construction, Forestry, Maritime, Mining and Energy Union, B24/2023

The above is an article from Workplace Express on the 21^st November 2023

NES

Section 114 of the Fair work Act 2009 reads as follows:

1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes. (2) However, an employer may request an employee to work on a public holiday if the request is reasonable.

Employees are protected from adverse action for having, using, or seeking to use their workplace right to reasonably refuse to work on a public holiday. In determining whether a request (or a refusal of such a request) to work on a public holiday is reasonable, the following must be taken into account:

> the nature of the employer’s workplace (including its operational requirements) and the nature of the work performed by the employee;

> the employee’s personal circumstances, including family responsibilities;

> whether the employee could reasonably expect that the employer might request work on the public holiday;

> whether the employee is entitled to receive overtime payments, penalty rates, additional remuneration or other compensation that reflects an expectation of work on the public holiday;

> the type of employment (e.g. full-time, part-time, casual or shiftwork);

> the amount of notice in advance of the public holiday given by the employer when making the request;

> the amount of notice in advance of the public holiday given by the employee in refusing the request; and

> any other relevant matter

Aged Care (Residential)

Obviously, aged care relies on staff being on site and therefore it would seem that employers need to ensure they are seen to meet the test that staff have seen to have been requested to work on public holidays as a refusal would be unreasonable given the nature of the business. The legislation is rather unworkable for aged care and hospital as it is not possible to ask every staff who is to be rostered if they will work and then see if they refuse, My advice in the past on this issue was to ensure the Contracts of employment or letters of appointment are signed by both parties and have a provision in them for agreement that as the business cares for aged people 24x7x52weeks it is imperative that staff agree on commencement that they will work to their roster inclusive of working on public holidays unless they have reasonable grounds to refuse.

Zombie Agreements

Effective 6 December 2023, any employment agreements made before the commencement of the Fair Work Act 2009 that are still in operation will automatically end. Zombie agreements include:

• agreement-based transitional instruments
• Division 2B state employment agreements
• enterprise agreements made between 1 July 2009 and 31 December 2009.

Employers who have employees covered by these agreements should have already provided those employees with six months’ prior written notification that the agreement will be terminating on 7 December 2023 (unless an application for extension was made to the Commission).

Respect at Work

By December 2023, the Australian Human Rights Commission will have new powers to investigate and enforce compliance with the Respect at Work Act 2022 including employers’ positive duty to ensure preventative measures are in place to eliminate discrimination, workplace sexual harassment and victimisation in the workplace.

The Respect@Work Act implements further recommendations of the Australian Human Rights Commission’s (AHRC) landmark Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces 2020.

The Respect@Work Act has been described as “game changing” by Australia’s Sex Discrimination Commissioner, Kate Jenkins.

Most significantly, the Respect@Work Act has amended the Sex Discrimination Act 1984 to introduce:

1. A new positive duty on employers and PCBUs (“Persons Controlling a Business or Undertaking”) to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation. The Act expressly acknowledges that the new positive duty does not limit or otherwise affect a duty that an employer or PCBU has under work health and safety legislation.
2. An express prohibition against subjecting another person to a workplace environment that is hostile on the ground of sex.
3. A lower threshold for sex-based harassment, by requiring the conduct to be ‘demeaning’ rather than ‘seriously demeaning’.

An earlier proposed version of the Respect@Work Act introduced ‘cost neutrality’ provisions, under which parties to unlawful discrimination/harassment proceedings would typically bear their own costs unless there were circumstances that justified the Court departing from this default position. However, the Government ultimately decided that this will be the subject of further consideration before any legislative change – in the meantime, the Court maintains a broad discretion to award costs as it sees fit (which may mean that an unsuccessful party can be required to pay the costs of the successful party).

What does this mean in practice?

The changes represent a significant and qualitative shift away from a complaint-based system to one where an organisation must proactively prevent its employees, workers, agents, and the organisation itself, from engaging in discriminatory/harassing conduct. An organisation is also responsible for protecting its employees and workers from being subject to discriminatory/harassing conduct by third parties, such as customers and clients.

In practice, the new positive duty will look different across organisations, depending on the circumstances. Organisations need to periodically undertake risk assessments to identify ‘hotspots’ and manage these risks, by adopting measures such as:

• Having leaders model, encourage and enforce desired behaviours to send cultural signals and demonstrate expectations;
• Requiring management to periodically provide to the Board de-identified data on discriminatory/harassing conduct with a focus on systemic issues and leading indicators;
• Having gender equality and other inclusivity strategies to reduce the prevalence of discriminatory/harassing conduct;
• Having a strong and clear policy on discrimination and harassment and providing regular training to staff to ensure they understand their workplace responsibilities, including in relation to bystander intervention.
• Using human-centred approaches to respond to reports of discriminatory/harassing conduct and investigations.
• Taking proportionate action where discriminatory/harassing conduct is found to have occurred.
• Balancing confidentiality with respectful transparency around incidents and organisational responses (once outcomes have been determined), including by rethinking the role of confidentiality clauses in sexual harassment matters.

The AHRC launched a  Respect@Work website with various resources to assist organisations to comply with the new positive duty and other obligations, including guidelines and fact sheets on the use of confidentiality clauses in the resolution of workplace sexual harassment matters.

The AHRC will also have the power to monitor and assess compliance with the new positive duty and to inquire into systemic unlawful discrimination as part of changes introduced by the Respect@Work Act. These powers come into force on 12 December 2023 and allow the AHRC to, amongst other things, publish compliance notices. Kate Jenkins considers that this power increases transparency and accountability in the workplace and serves to educate organisations about what compliance looks like (Sydney Morning Herald, 6 November 2022).

Other changes

The Government has also introduced the following related amendments to the Fair Work Act 2009 by enacting the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.

New prohibition on sexual harassment and powers of the Fair Work Commission (FWC)

The amendments expressly provide that a person must not sexually harass another person who is a worker or seeking to become a worker, or a PCBU. This means that it is unlawful for a person (including third parties such as clients and customers) to sexually harass employees, contractors, subcontractors, outworkers, apprentices, trainees, students and/or volunteers, as well as prospective workers.

The amendments allow an individual worker(s) or union(s) to apply to the FWC to make a ‘stop sexual harassment’ order and/or deal with a dispute. ‘Stop sexual harassment’ orders (similar to ‘stop bullying’ orders) can be made if the FWC is satisfied there is a risk of sexual harassment continuing. The FWC can deal with a dispute application by any means other than arbitration (e.g. mediation, conciliation, recommendation, expressing an opinion). If the matter remains unresolved the FWC can arbitrate the matter by consent or a Court application can be made.

New vicarious liability provisions mean a worker can seek a remedy from their organisation, in addition to the alleged offender, where the organisation did not take all reasonable steps to prevent the sexual harassment.

These amendments will come into effect on 6 March 2023 (or earlier by proclamation).

New protected attributes

The amendments (which commenced on 7 December 2022) expand current anti-discrimination provisions to protect attributes related to gender identify, intersex status and breastfeeding. This means, in practice:

• an employer must not take adverse action against an employee because of these attributes;
• modern awards must not include terms that discriminate against an employee because of these attributes; and
• a term of an enterprise agreement is a discriminatory term to the extent it discriminates against an employee because of these attributes.

Intersection with the Respect@Work Act

The amendments to the Fair Work Act and Sexual Discrimination Act ultimately mean organisations that fail to take reasonable steps to prevent workplace sexual harassment may be subject to enforcement action and/or civil penalties.

WGEA Reporting
 Under amendments to the Workplace Gender Equality Act 2012 passed by the Closing the Gender Pay Gap Bill 2023, organisations with 100 or more employees must now share their Workplace Gender Equality Agency (WGEA) Executive Summary Report and Industry Benchmark Report with their Board. This mandatory reporting covers:

• Detailed workforce data
• CEO remuneration
• Prevention and response to sexual harassment, harassment on the ground of sex or discrimination in the workplace

And from 2024, large organisations (500 or more employees) will be required to have Gender Equality Indicator policies. 

Clare Dewan

Principal

This information is from the Fair Work Ombudsman

As part of the Australian Government’s Secure Jobs, Better Pay workplace law changes, rules about using fixed term contracts are changing on 6 December 2023.

What’s changing

From 6 December 2023, new rules apply to the use of fixed term contracts.

An employee on a fixed term contract is employed for a specific period.

The changes include new rules about:
•    how long fixed term contracts can be
•    extending fixed term contracts
•    offering new contracts that are substantially similar to previous contracts.

There are some exceptions to these rules that apply. 

Learn more at New rules for fixed term contracts.
 

Fixed Term Contract Information Statement

From 6 December 2023, employers must give employees they’re engaging on new fixed term contracts a Fixed Term Contract Information Statement (FTCIS). 

The FTCIS will be available to download from our website on that date. We’ll also send you a reminder email on 6 December.

The FTCIS must be provided to employees before, or as soon as possible after, they enter into a new fixed term contract.
 

Reminder: Fair Work Information Statement

In addition to the FTCIS, employers need to provide new fixed term contract employees with the Fair Work Information Statement. This is a separate document that provides information about minimum workplace rights and entitlements. For more information see Fair Work Information Statement.

Other upcoming workplace law changes

There are other upcoming changes to the Fair Work Act, including:

•    changes to authorised employee deductions 
•    the right to superannuation in the National Employment Standards.

Find out more at Fair Work Act changes: Protecting Worker Entitlements.

You can also access our visual timeline covering recent and upcoming workplace laws changes: Upcoming workplace law changes affecting you.
 

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 As part of the Australian Government’s Secure Jobs, Better Pay workplace law changes, rules about using fixed term contracts are changing on 6 December 2023.

What’s changing

From 6 December 2023, new rules apply to the use of fixed term contracts.

An employee on a fixed term contract is employed for a specific period.

The changes include new rules about:
•    how long fixed term contracts can be
•    extending fixed term contracts
•    offering new contracts that are substantially similar to previous contracts.

There are some exceptions to these rules that apply. 

Learn more at New rules for fixed term contracts.
 

Fixed Term Contract Information Statement

From 6 December 2023, employers must give employees they’re engaging on new fixed term contracts a Fixed Term Contract Information Statement (FTCIS). 

The FTCIS will be available to download from our website on that date. We’ll also send you a reminder email on 6 December.

The FTCIS must be provided to employees before, or as soon as possible after, they enter into a new fixed term contract.
 

Reminder: Fair Work Information Statement

In addition to the FTCIS, employers need to provide new fixed term contract employees with the Fair Work Information Statement. This is a separate document that provides information about minimum workplace rights and entitlements. For more information see Fair Work Information Statement.

Other upcoming workplace law changes

There are other upcoming changes to the Fair Work Act, including:

•    changes to authorised employee deductions 
•    the right to superannuation in the National Employment Standards.

Find out more at Fair Work Act changes: Protecting Worker Entitlements.

You can also access our visual timeline covering recent and upcoming workplace laws changes: Upcoming workplace law changes affecting you.

Clare Dewan

Changes to Services

 As of the 10th November 2023, Clare Dewan and Associates will cease sending out renewals for annual retainers and will provide consultancy services on a fee for service basis only. Clients who have retainers that have not expired will be able to continue accessing email and telephone day to day advice until the retainer date expires as well as be charged for work performed at the client preferred rate of $215.00 per hour plus GST.

The aged care sector has changed and corporatised where organisations have their own internal expertise, and many smaller facilities are choosing to use other services or relying on the in- house HR staff many now employ. It has now become apparent that my services are generally utilised for one off situations, and not on a day – to – day basis. It is not worth me being on call 24 X 7 as I have been for the last 30 plus years.

I do have some clients that rely on me still and I will be happy to continue to assist them and any other employer requiring advice and assistance on specific issues, but the bottom line is the industry is not as it was with a reliance on consultants such as myself.

We will work to conclude any Enterprise Agreements we are currently involved in, but will not be undertaking any new negotiations, (in particular) under the new EBA rules. It is my strong view that the facilities who are not part of a large corporate group and whose agreements have expired less than 5 years ago, will find they are served with a single interest enterprise bargaining claim next year, and I do not wish to be involved in that process. Clients who receive claims for agreement as a single entity can request assistance. 

Once annual retainers have expired, any work either Janis Veldwyk or I undertake will be on a fee for service basis of $235.00 per hour plus GST. The type of services will be as they are currently, and include HR and ER matters such as:

• Wages and conditions audits
• “Know Your EBA” workshops or remotely to suit.
• Provision of HR policies and procedures, including up to date recruitment procedures and forms, the provision of contemporary PDs, HR files audits etc
• Management of workplace conflict including investigations and bullying and harassment claims investigations
• Assistance with disciplinary issues, including termination of employment.
• Assistance with managing and reviewing rosters and job roles.
• Representation up to and including conciliation at the FWC in relation to claims of unfair dismissal or adverse action.
• Assistance with claims of underpayment
• Assistance with OH&S issues including assistance with WorkCover case management and up to date policies and procedures

Further details are on my website.

I am extremely grateful for the long career aged care has given me and I have had some wonderful loyal clients and I hope to be of assistance to you in the future if you need help.

Clare Dewan

FWC makes landmark supported bargaining authorisation

A FWC full bench has issued the first supported bargaining authorisation under the Secure Jobs provisions, opening the way for the UWU, AEU and IEU to negotiate a deal on behalf of 12,000 employees with 64 early childhood education and care employers.

President Adam Hatcher, Vice President Ingrid Asbury and Deputy President Peter Hampton accepted that the application met the prerequisites for authorisation, although it found the “somewhat anomalous” inclusion of major employer G8, which has 10,000 employees, counted as a factor against it.

The bench found “no doubt” that G8 shares common interests with the other employers, but “its size makes it significantly different in character to all the other employers” and it “presumably has the personnel resources to permit it to engage in enterprise bargaining”.

However, on other fronts the application met the prerequisites, including prevailing low rates pay, with almost 60% of workers receiving award rates and a further 20% of workers a premium of up to 10%.

It also found the employers had “clearly identifiable common interests” and that the likely number of bargaining representatives “would be consistent with a manageable collective bargaining process.

Both of those factors weighed in favour of authorisation.

The bench also took into account that all of the employers supported the application, that 90%-plus of the workforce is female and that authorisation would “open the prospect” of improving the rates of pay of a female-dominated workforce, consistent with new objects in the Act and that there had been a low uptake of bargaining in the sector and it “clearly” needs support to engage in “effective” negotiations.

It said the matters it considered “overwhelmingly favour” making an authorisation, with only the inclusion of G8 weighing against it.

The authorisation takes effect from today.

Application by United Workers’ Union, Australian Education Union and Independent Education Union of Australia [2023] FWCFB 17 (27 September 2023)

Authorisation, September 27, 2023

Major case page – Early education and care industry supported bargaining authorisation application

1.1              FWC backs first multi-employer negotiation

The FWC has today issued its first authorisation under the Secure Jobs single interest bargaining provisions, in a ruling that provides only a limited test of the new laws for sector-wide negotiations because of factors that include the employers’ consent.

The IEU’s WA branch will now be able to begin negotiations for a multi-employer deal to cover thousands of general and education support workers with 10 entities that operate Catholic schools across the state (see Related Article).

The same entities, structured differently, received a similar authorisation under the Secure Jobs’ predecessor provisions, but for teaching employees.

President Adam Hatcher, Vice President Ingrid Asbury and Deputy President Peter Hampton considered the union’s application “on the papers” due to the “absence of factual disputes” or any requests for a hearing, after the ACTU backed the bid and other intervenors declined to advance a position.

The bench said the s249 multi-employer bargaining provision “establishes a number of alternative pathways” to make a single interest authorisation, but the IEU application’s circumstances are “relatively straightforward” because of the consent of the employers, each of which are beyond the 50-employee threshold.

This made it unnecessary for it to consider the “proper construction and application of many of the new provisions” under s249.

The bench relied on its ruling (see Related Article) in yesterday’s supported bargaining authorisation to find the Catholic employers have a “clearly identifiable common interest”.

The authorisation operates from today.

The IEU relaunched its application in July (see Related Article), after a false start in June (see Related Article).

Independent Education Union of Australia v Catholic Education Western Australia Limited and others [2023] FWCFB 177 (28 September 2023)

Authorisation, September 28, 2023

These cases are an indication of the options open to unions in particular with smaller facilities across industries such as aged care. However, the single interest approach is most likely given the work value case outcome.

While currently the sector is waiting for the outcome of stage 3 of the work value case, there is a possibility that the unions will be pursuing all aged care facilities for a new agreement when the current agreement comes to an end. There are also a significant number of facilities who have expired agreements and to date the unions have seemingly been prepared to wait for the work value case decision before pushing for new agreements. A sector based approach may be the way the unions will move in the New Year when the FWC decision regarding the work value case should be known.  However, in terms of wages, once the third stage of the work value case is determined, all staff will have a rate of pay set as the work value of the classification they are in and therefore requiring employers to pay more may be a bit of a difficult argument.  

We await the FWC outcome.

Janis Veldwyk

For all your HR requirements, Janis Veldwyk is now again available to clients to assist.

Janis is a HR specialist and Licensed Investigator, authorised WorkSafe trainer for Health and Safety Representative Training and is also a trained Mediator. Janis has worked in the health and aged care sectors for most of her career, in various senior roles.

Janis is a member of the Australian Human Resources Institute (AHRI) and the Australian Institute of Health & Safety (AIHS). Janis has been an active member of various industry advisor committees and does appreciate and understand the issues facing aged care employers.

Janis is now working as a Human Resources Consultant across the aged and community services sector. Janis has expertise in all aspects of HR, including roster reviews, training, OH&S audits/risk assessments, policy reviews and WorkCover claims management. Janis can assist with workplace investigations, including allegations of bully, can review all HR policies and procedures to ensure they meet required standards, can undertake personnel file audits, and can provide Contracts of Employment and Position descriptions. Janis also assists clients with recruitment.

 Janis can be contacted on 0411 075 895 or jveldwyk@jvhrservices.com.au

Do Not Rely On a Employee Being “Casual” When Ceasing Their Employment

(Extract from Workplace Express)

I often get asked “Why can’t I just not call them in, they are casual?”  Here is an example of why it is not that simple.

In a close analysis of what constitutes regular and systematic employment, a senior FWC member has held that a casual trolley collector met the minimum service period to allow him to pursue Bunnings for unfair dismissal, despite “unpredictable” shifts and a contract expressly stating he should not expect ongoing work or guaranteed hours.

Deputy President Peter Anderson in rejecting the retailer’s jurisdictional objection ultimately found the “practical manner” in which the trolley collector’s contract operated relevant to whether he reasonably expected his employment to continue.

The Adelaide-based worker and full-time university student started at Bunnings in April 2021, mainly collecting trolleys in its Prospect store, until his employer removed his rostered shifts in February this year and provided no further shifts.

Deputy President Anderson noted that of the 26 weeks prior to his dismissal, the trolley collector worked at least one day in 21 of them.

With Bunnings commonly rostering him on alternate weekends, the deputy president further observed that he worked at least one day on 15 of the weekends, and both the Saturday and the Sunday on 11 of them.

Although the deputy president accepted Bunnings’ submission that the number of hours the trolley collector worked in a week “varied and was not predictable”, given it rostered him according to its needs and his availability around tertiary studies, he said this did not mean he did not work regularly.

Whilst there were exceptions to the trolley collector’s pattern of work, he said it was “frequent enough for it to be somewhat of a default arrangement”, with “clear evidence of an established and identifiable system” by which Bunnings offered him work.

For a casual employee to have worked on a regular and systematic basis, he said “it is sufficient for their employment to have been ‘regular’ in the sense of being frequent notwithstanding it being unpredictable, and ‘systematic'” in the sense it is part of a “pattern of engagement occurring as a consequence of businesses reliance” on a worker’s services.

The deputy president said this is so “notwithstanding that the precise pattern of working may not be foreseeable to the employee”.

Holding that the trolley collector’s “employment as a casual employee was regular, having regard to its frequency”, he said the “concept should be applied liberally and implies a regular pattern”.

The trolley collector also worked “on a systematic basis in the relevant sense”, he found.  Further concluding that the trolley collector had a “reasonable expectation” of continuing employment on a regular and systematic basis, Deputy President Anderson noted that the worker “organised his work around his tertiary studies and made this known” to Bunnings.

“He made himself available on a consistent basis to work on weekends, and to supplement that with weekday work when he was available,” the deputy president continued.

“Nor is the existence of an expectation discounted by reference to the relatively low number of days worked per week or that his work was secondary to his tertiary studies,” he said.

“There is no reason why an employee who makes themselves available to work a limited number of shifts in a week necessarily has less of an expectation of ongoing employment on that basis than an employee who makes themselves available for multiple shifts.”

Drilling down on whether the trolley collector’s expectation was reasonable “in objective terms”, Deputy President Anderson said he took into account “that the terms of the contract provided that as a casual he ‘may’ (not shall) be offered shifts and ‘that you have no ongoing expectation of ongoing employment or guaranteed hours of work'”.

The deputy president considered this “a relevant consideration which weighs against a finding that a reasonable expectation existed”.

“However, the practical manner in which the contract operated is also relevant,” he said.

“In the circumstances of this matter, the performance of the contract and the course of dealings between the parties over a period of nearly two years including the offer and acceptance of casual shifts on a regular and systematic basis in the six months prior to [the trolley collector’s] dismissal weigh strongly in the other direction notwithstanding the discretionary nature of Bunning’s contractual right to offer or not offer work.”

Further observing that the trolley collector was rostered to work on February 16, 17, 18 and 19 “and would have worked on those days but for being dismissed”, the deputy president said this was further evidence “that supports a finding that he had a reasonably held expectation of continuing employment on a regular and systematic basis”.

Concluding therefore that the trolley collector’s “service as a casual employee in the six months prior to dismissal counts for the purposes of the minimum employment period” in line with s384(2)(a)(i) and (ii) of the Fair Work Act, Deputy President Anderson dismissed Bunnings’ jurisdictional challenge and said he will list the matter for further directions.

Clients can read the full decision by accessing it on the FWC website.

James Arbon v Bunnings Group Limited T/A Bunnings Warehouse [2023] FWC 972 (1 May 2023)

Clare Dewan

CLIENT BULLETIN NO. 2023-16 

The 15% wage increase and EBAs

The 15% increase to certain classifications covered by three awards will apply as of the first pay period on or after the 30^th June 2023.

The three impacted awards under which employees will receive the 15% wage increase are:

• Aged Care Award 2010: Applies to recreation/lifestyle activities officers, personal care workers, and the most senior food service employee (classified as levels 4–7) in particular, aged care facilities.
• Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS): Applies to home care workers who work in aged care; and
• Nurses Award 2020: Applies to nursing assistants, registered/enrolled nurses and nurse practitioners working in aged care.

In each of the Awards, the FWC has created a set of new streams, with which employers will need to become familiar.

For employees who are covered by an impacted Award but are receiving an above-award salary or hourly rate, employers will need to ensure that the salary or rate being paid to impacted staff is no less than what they would be entitled to under the relevant Award.

Although the wage increase will not automatically apply to the rates negotiated in existing Enterprise Agreements, the minimum pay rates in any Enterprise Agreement cannot be less than the new minimum Award rates.

Support and administration employees working in aged care are not covered by the new wage increases. Additionally, neither are chefs and cooks covered by the Aged Care Award who aren’t the most senior food service employees at their specific aged care facility or site.

As the FWC’s annual wage review is still being conducted, other issues are still being considered by the FWC such as classification definitions/structures in the three Awards and potential wage adjustments for other aged care employees under the Awards that are not already included in the wage increases.

It is also not clear at this stage whether the FWC’s regular Annual Wage Review decision will further increase the minimum rates for these workers. If the FWC decides to award a further increase to aged care workers, employers will need to also pass this on, which is likely to come at a significant cost.

For all clients who currently have expired agreements, I am not able to predict what action the unions will take in relation to those agreements. Up until now, they are only following up on a few agreements that had already been partly agreed. They do not seem to be actively pursuing many clients on the matter. Therefore, it is possible that they are going to delay the process until after the 6^thJune when the new provisions of the Fair work Act commence. The unions have made it clear they expect all employers provided with the funding based on the outcome of their case to be passed to employees’ wages as a 15% increase. Perhaps this will be a claim they pursue after the 6^thJune when they can force arbitration f the negotiations are found to have reached the stage where they are “intractable”.

Clients who have agreements in place do need to ensure that they pay no less than the award rate of pay in the modern awards. However, unless your agreement states differently, you are not obliged to meet the amounts paid for any penalties rates under the awards. This is a matter of concern for the unions who are doing what they can to ensure any agreements made before the new pay rates are applicable in the awards do, have no less shift and weekend penalties than will be the case after the 30^th June.

Attached is the classification comparison document that is sent with agreements to be approved by the FWC. The pay rates for the award will be published after the effective date but can be found in full on the web site FWC by searching Aged care work value case, determinations

Below is a snapshot of wages that would apply under the award, although the classifications are not the same under the award as they are in the EBA so we have provided how the EBA classifications would be calculated, noting that while the Wage Skill Groups in the EBA have years of service, the Aged Care Award does not.

Under the FWC’s decision to increase award rates by 15 per cent, the award rates will increase to:

• Personal Care Worker Grade 2 (unqualified)s $28.14 per hour to $1069.40 per week, up from $24.47 per hour or $929.90
• Personal Care Worker Grade 3 (holds a relevant Certificate 3 qualification or possesses equivalent knowledge and skills) $28.47 per hour or $1082.00 per week per hour (holds a relevant Certificate 3 qualification or possesses equivalent knowledge and skills), up from $24.76 or $940.60 per week
• Personal Care Worker Grade 4 (holds a relevant Certificate IV qualification or possesses equivalent knowledge and skills) $29.40 per hour of $1118.70 per week (holds a relevant Certificate IV qualification or possesses equivalent knowledge and skills), up from $25.60 per hour or $972.80 per week
• Enrolled Nurse top rate in award (pay point 5 with 4 years’ experience) $30.51 per hour or $1159.40 per week, up from $26.53 per hour or $1008.10 per week
• Registered Nurse Level 1 pay point 6 (clinical nurse with 5 years’ experience – equivalent to Grade 2 Year 5 in Vic EBAs)) $35.32 per hour, up from $30.71 per hour or $1167.00 per week.
• Grade 4A year 2 (Level 3 Pay Point 2 of the award) or similar top rate $42.26 per hour or $1606.00 per week, up from $38.06 per hour or $1446.30 per week.

The award classification examples (above) may differ slightly to those in in the enterprise agreement. For example, in our base enterprise agreements the base clinical RN is Grade 2 (Level 1 in the award) while Clinical Care Coordinators and After-Hours Coordinators are Grade 5 (Level 3 in the award).  However, the award rate must be paid as a minimum. If you take Blue Cross as an example:

• a PCA with a Cert III, in the Blue Cross EBA, is at WSG 6, which attracts hourly rates of between $27.02 (Year 1) to $27.69 (Year 6) depending on years of experience. The new Award minimum hourly rate would be $28.47, an increase of only $0.78 cents per hour for someone on the current top rate, about a 2.6% wage increase. The unions are hoping that the Federal Government will ensure that providers must pass on the full $3.71 increase to the Award rate (the 15%) will be added to the current rate, making the new EBA rate $31.40.
• an EN at Pay Point 8 is currently on $31.05 per hour, the new minimum would be the award rate of $30.51, so an EN would stay on the superior EBA rate. However, the unions are arguing that the full $3.98 (15% increase to the award EN PP 5 rate) will be added to the current EBA rate to make a new EBA rate is $35.03.
• an RN Grade 5 51-200 beds is paid $52.03 per hour or $1977.40 per week. The new award rate would be $43.77 per hour of $1663 per week. So, an RN Grade 5 would stay on the superior EBA rate. However, the unions are arguing that the 15% increase to the award rate of $5.71 will be added to the current rate so the new EBA rate on 30 June becomes $57.74 per hour or $2194.10 per week.

Before we leave for the 5 weeks away on the 12^th June, we will send another bulletin with the details of the contact at VCCI should there be a need for any client to seek assistance as we will not have access to our computers. We will have access to mails as will Janis Veldwyk. Janis will be able to assist with matters other than the EBA.

CLARE DEWAN

On 21^st February 2023, the Full Bench handed down the decision that awards a 15% wage increase to direct care workers in residential and home care, head chefs or equivalent and lifestyle staff.

This will put most agreement rate behind the award when this comes into effect as of the 30^th June 2023.

Employers will now all need to ensure no pay rate is less than the modern award rates as they will be on the 30^th June 2023.

We will publish a comparison wages document well before then.

We do not know how this will be funded or what the Government plans to do to ensure any monies funded is actually spent on the wags and on costs, but most employers will need the money to pay such an increase even where there is an agreement in place.

There will also be a National Wage Case decision in June and this will not be funded. It is not clear if this will apply to the awards that this decision is in reference to.

The following link should take you to the decision handed down by the Full Bench https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb40.pdf

Clare Dewan

Principle

IMPORTANT

EBA UPDATE

WORK VALUE CASE FALLOUT

As clients are aware, the majority of enterprise agreements for Victorian aged care providers have been concluded, however some will expire this year or early 2024. There are approximately 40 facilities where they have an expired agreement and the unions, in particular the ANMF, have now proposed a clause be inserted into the agreements that have expired and that the agreements be short term. The attitude regarding the insertion of the clause, a copy of which is attached, has been that if the clause is not agreed to the union will lodge a s240 application and seek the assistance of the FWC.

Many of these facilities had agreed to a EBA well before the end of 2022 and the process has been continually delayed after the Government’s submission regarding a 10% increase in July 2023 when the unions expectations were for three 5% increases.

Currently the FWC cannot arbitrate the matter unless both parties agree, and we have assumed while most clients affected would be prepared to be involved in conciliation, most would not agree to have the matter arbitrated by the FWC. However, while employers can take that position now, after June 2023, the FWC can arbitrate without the consent of one or even both parties.

There are two main issues involved in the proposed clause. One is the unions view that because they ran the work value case that resulted in an increase in wage rates for the staff they should be involved in how and resultant funding is spent to ensure all the money allocated to each employer is spent on the wages and allowances for employees, and the second is to ensure that employees get no less in penalties and allowances that they would if covered by the modern award.

Under the Fair work Act 2009, employers cannot pay less than the modern award at any time, so this issue is already legally enforceable. However, as the modern award rates meet or exceed the EBA rates in different agreements, the penalties and allowances may become less under the EBA due to the different way these are calculated, and this is the issue in question.

We have no issue with the concept that employees will be no worse off than the modern awards in terms of allowances and penalties, however it is the administrative issues with putting the onus of employers to monitor this against the awards so there is no breach of the EBA that we see may present a problem.

The principle behind this proposed clause as far as the involvement of unions in determining what funding will be spent where and what to do with any funding given that if applied would exceed the legally payable wages and conditions is problematic and if inserted into agreements would set a precedent that is highly intrusive into employer’s businesses. It should be noted that the clause proposes that the employer will have to provide to the unions the current funding provided by the Commonwealth applied by the employer to direct care employees’ wages and conditions (pre any additional funding).  The clause also proposes that the parties are bound to consult about any further stages of the Work Value Case especially in regard to any further funding and refers to stage three of the case. It is likely that as agreements expire a similar or the same provisions as this proposed clause will be required by the unions to be inserted into all of those agreements.

The concept that unions would have the right and employer the obligation to have a consultative mechanism whereby the employer is bound to provide sensitive information regarding their business is not a concept we can support. The matter of how funding is spent and accounted for is a matter between the funding body and the employer and in our view, not a matter that the unions have any right to be involved in. The union’s view is that they won the pay increase and spent millions on the case so they should have the right to be involved in how the employers spend any funding the government provides for the sole purpose of wages and allowances increase and on costs. While the decision regarding a wage increase has not been made or has the funding method and what will be covered been decided or published, the principle of the proposed clause regarding the union’s role in deciding where this goes and how it is spent, together with the obligation on the employer to provide details of their business activities and funding, goes way further then we say is acceptable.

The precedent this would set for any organisation that receives government funding in any industry is immense in our view. Further, although this effects only a few aged care services currently, once the current agreements expire, if this clause gets into any agreement, the unions will pursue it in all agreements. 

Whether the FWC would agree that this is a permitted matter is a key issue if this is ever arbitrated by the FWC, and if the FWC decided it was, then the decision would have to go to the federal court ion appeal. Our view is that the requirement to consult the unions over the funding and how it is spent is not a permitted matter as it is not a matter between the employer and employee. The issue of accounting for funding provided is a matter between the employer and the funding body. Provided the employer is meeting their obligations under the EBA and Fair Work Act, the way the funding is utilised is not a concern of the staff or unions.

We will emphasise that if employers receive funding which is to go to wages for the employees then all of this should be spent on the employees and none should be able to be kept for the employer’s own purposes. However, the government is the body responsible for ensuring they make these funds available in a way that makes employers accountable for how it is allocated.

All employers need to be very concerned at this approach by the unions. Whether it is an attempt to make employers accountable for the funding they receive as was proposed in the Royal Commission submissions or not we are not sure, but the proposal does go to the heart of those arguments.

It is concerning that this approach is being taken where only smaller organisations in the main will be immediately affected as many do not have the funds to get involved in court battles with barristers and legal advice etc.  If any agree or the FWC agree that this clause is a permitted matter after any arbitrated outcome, a precedent will be set for all the bigger organisations. We have been told we have until 10^th February to respond on the proposed clause on behalf of four employers at this stage, and a decision will have to be made by these organisations. However, it is a much bigger issue for the rest of the sector and indeed any funded sector, going forward.

We will keep clients informed.

CLARE DEWAN

Principal

This is a continuation of Client Bulletin No. 2023-03.  We apologise this attachment was not included in the original bulletin.

 Commonwealth Submission to the Fair Work Commission

ANMF and HWU Proposal for Enterprise Bargaining

The Commonwealth Government, in its Stage 2 submission[1] to the Aged Care Work Value Case (ACWVC) Fair Work Commission (FWC) Full Bench on 16 December 2022, indicated they would provide additional funding to each employer to cover the increases in Aged Care Award 2010 and Nurses Award 2020 (Award) rates (which they proposed to be 10% on 1 July 2023 and 5% on 1 July 2024, plus on-costs).  The intent of the Commonwealth providing this funding is to lift wages (and associated entitlements) for direct-care employees.  The above is subject to a ruling of the Fair Work Commission in March 2023.

There are two potential scenarios for employers.  The scenarios depend upon what decision the FWC hands down in relation to minimum Award wages, and what the current wage rates are in the organisation’s Enterprise Agreement (EA), which varies from employer to employer.

 Scenario 1

The Fair Work Commission decision regarding the ACWVC leads to an increase in the minimum Award wage rate, but the Award rate does not overtake the wage rates in the current EA.

Where the increase in Commonwealth funding to Employers as a result of ACWVC outcome means that the employer contribution to wages decreases, the Unions wish to see the resulting savings to employers passed on to Employees. 

Scenario 2

The Fair Work Commission decision regarding the ACWVC leads to an increase in the Award rate which overtakes the wage rates in the current enterprise agreement.

The employer contribution to wage rates is therefore overtaken by the increase in funding provided by the Commonwealth as a result of ACWVC outcome.  The Unions wish to see the former employer contribution to enterprise agreement rates passed on following the increase in funding from the Commonwealth.

Both scenarios reflect the intent of the Commonwealth to provide the increased funding for direct-care employee remuneration.

The Unions therefore propose including the following clauses in the EA:

1. The Commonwealth Government, in its Stage 2 submissions to the Aged Care Work Value Case (ACWVC) Fair Work Commission (FWC) Full Bench on 16 December 2022, submitted it would provide additional funding to each employer via the daily resident Australian National Aged Care Classification (AN-ACC) funding model to cover the increases in Award rates (which they proposed to be 10% on 1 July 2023 and 5% on 1 July 2024, plus on-costs).  The parties to the Agreement acknowledge that the intent of the Commonwealth providing this funding is to lift wages (and associated entitlements) for direct-care employees.
2. The interim Award increase will be the subject of a FWC decision, expected in March 2023.  Anticipating that the FWC will decide to reflect the commitment of the Commonwealth to increase the wages of direct-care employees by the amounts in its submissions, the employer will pass-on the full funding provided by the Commonwealth to direct-care employees in the form of increased wage rates, loadings penalties and allowances , without making deductions. All allowances, penalties, incentives, overtime rates, loadings or any other separately identifiable amounts are to be increased commensurate with the interim increase in the Awards.
3. Anticipating that funding will be via increased AN-AAC funding, as opposed to a specific lump-sum being targeted at individual Award/Agreement classifications, the Employer and the Unions covered by the Agreement will meet within 14 days (and then as often as is necessary) of the FWC handing down a decision on the ACWVC implementation and/or upon the Commonwealth Government providing guidelines or directions in relation to the additional funding associated with the ACWVC outcome, to consult about how the additional money will be passed on to relevant employees and a variation to this Agreement.
4. Discussions will focus on specific classification increases for, as opposed to an across-the-board percentage increases for all staff, to determine how funds will be distributed amongst direct-care staff.
5. To provide transparency to the above commitment, the Employer will provide information to the Unions detailing:
   1. The current funding provided by the Commonwealth applied by the employer to direct-care employees’ wages and conditions;
   2. The increase in funding provided by the Commonwealth further to the ACWVC;
   3. Any directions by the Commonwealth on how the funding is to be distributed.
6. All allowances, penalties, incentives, overtime rates, loadings or any other separately identifiable amounts are to be increased commensurate with the interim increase in the Awards, excepting where Agreement rates provide for a greater benefit to employees.
7. The matters set out in 2 and 6 above, will be the subject of a proposed variation/s to the Wages and Allowances Schedules of this Agreement pursuant to the Act. The Employer will act expeditiously after the receipt of additional funding to determine the content of the variation (in consultation with the unions as per 3 above) and request that the Employees vote to approve that variation.
8. A dispute about any matter in relation to that additional funding provided by the Commonwealth, the content of a proposed variation to this Agreement or the consultation in relation to a proposed variation may be dealt with through the Dispute Resolution Procedure of this Agreement.
9. The parties agree to consult about any further stages of the ACWVC, especially with regard to further additional funding provided by the Commonwealth Government, or as a result of a decision of the FWC (for example, with respect to Stage 3 of the ACWVC.
10. As per section 206 of the Act, no employee can be paid a base rate less than the appropriate Award rate of pay. Should the Award rate equal or surpass the Agreement rate of pay, then an Employee will immediately commence to receive a base rate equal to the Award rate. For the purposes of this Agreement (and only where the relevant Award rate equals or exceeds the Agreement rate) the Employer also commits that no employee will be paid loadings, penalties or allowances which result in remuneration which is less than they would have received had they worked under the appropriate classification in the relevant Award.
11. The parties agree to commence negotiations for a replacement Enterprise Agreement no later than three months prior to the nominal expiry date.

To facilitate clear and transparent discussions during negotiations for a replacement Agreement and while this Agreement is in force, the Employer will provide to the Unions the following information no less than two months prior to the expiry of the Agreement and then upon request:

1.              A breakdown of the workforce affected by the ACWVC, including classifications;
2.            Details of the additional funding provided by the Commonwealth Government to the Employer through the AN-ACC funding model for the purposes of the interim increases of the ACWVC, including monetary sums per facility and any directions for its distribution;

iii.           Details of how the funding is proposed to be distributed by the Employer to Employees through increased wages and allowances/loadings/penalties.

[1] https://www.fwc.gov.au/documents/sites/work-value-aged-care/submissions/am202099-63-65-sub-aust-govt-161222.pdf

CLIENT BULLETIN NO. 2023-03

Changes to the Fair work Act

Enterprise Bargaining – the amendments comprise some of the most fundamental changes to enterprise bargaining since the Act was introduced, including:

• changes to multi-employer agreements, particularly the ability for unions to apply to the Fair Work Commission (FWC) for a single interest authorisation to commence bargaining, changes to the commencement of bargaining and the introduction of workplace cooperative agreements;
• new Intractable Bargaining Dispute provisions which include declarations, as well as conciliation and arbitration provisions; and
• changes to the Better Off Overall Test (BOOT), as well as protected industrial action and the termination of expired enterprise agreements.

Other Key Changes – particular changes for employers to note, include:

• new flexible work and extension of parental leave provisions which allow for the FWC to conciliate and arbitrate disputes over such matters;
• limits on fixed term contracts;
• prohibition of sexual harassment and power for the FWC to conciliate disputes about sexual harassment at work and to arbitrate where a stop sexual harassment order is sought or where arbitration is agreed by the parties;
• prohibition on pay secrecy clauses and the advertising of jobs below the minimum wage;
• the inclusion of breast feeding, gender identity and intersex as protected attributes for the general protections provisions;
• lifting the small claims cap to $100,000 to allow greater scope for employees to recover unpaid wages before the Courts; and
• abolition of the Australian Building and Construction Commission and Registered Organisations Commission.

Key Amendments

1. Enterprise Bargaining and Agreements

Single interest bargaining

There is greater scope for 2 or more employers to be subject to a single interest authorisation made by the FWC on application by a union. Subject to very limited exceptions, the only type of enterprise agreement that an employer subject to a single interest authorisation can then make is the single interest agreement (now called a multi-employer agreement). Further, multi-employer agreements that have already been made may be varied to add an employer on application by a union.

In deciding whether to make a single interest authorisation, the FWC is to consider whether:

• the employers have a clearly identifiable common interest by reference to factors such as geographical location, regulatory regime, the nature of the enterprise to which the agreement will relate, and the terms and conditions of employment in the enterprises;
• a majority of employees support bargaining; and
• the operations and business activities of the employers the subject of the single interest authorisation application are “reasonably comparable.”

The FWC must also be satisfied that the making of the single interest authorisation would not be contrary to the public interest.

A common interest will be assumed for employers who employ 50 or more employees (which includes associated entities) unless those employers prove otherwise.  Employers with less than 20 employees cannot be the subject of a single interest authorisation application.

The FWC cannot make a single interest authorisation if an employer is covered by an in-term enterprise agreement and may decide to exclude an employer where it is satisfied that the employer is bargaining in good faith, has a history of effective bargaining, and less than 9 months has passed since the expiry date of the existing enterprise agreement.

Relevantly, protected industrial action remains available subject to meeting the requirements of the Act.

Other agreements/bargaining

Greenfields agreements and multi-employer agreements remain available under the amendments with the multi-employer stream also capturing “supported bargaining” (previously low-paid bargaining) and “workplace cooperative agreements”.

The “cooperative” bargaining stream for multi-employer agreements is voluntary and the parties can choose if and when to bargain and can cease bargaining.  Protected industrial action is not available in this stream.

Commencement of Bargaining

In addition to the existing grounds which trigger bargaining, for single enterprise agreements, bargaining can be initiated once an employer receives a request to bargain, irrespective of whether the employer agrees with that request. This can occur when the proposed enterprise agreement replaces an agreement that has nominally expired within the last 5 years and the proposed agreement will cover the same or substantially the same group of employees. 

The obligations in relation to bargaining, such as the good faith bargaining obligations, then commence.

The Change to the FWC being able to arbitrate where agreement cannot be reached on the terms of an agreement have been strengthened. The ANMF have advised that where there are such disputes, they will take the employer to the FWC. This will include those who currently do not have an agreement and the union wants to include in agreements terms relating to the role of unions in employers accounting for the funding they have been given for the wages increases granted in the Work Value Case. We are currently attempting to come to some agreement on the wording although the principle of a role for unions in this matter is not agreed.

Intractable Bargaining Disputes

The existing provisions on serious breach declarations will be replaced with “intractable bargaining disputes” provisions which enable bargaining representatives (except in respect of green fields agreements) to apply to the FWC for an intractable bargaining declaration.

The FWC may make a declaration if satisfied that:

• there has been conciliation in which the applicant participated;
• there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and
• it is reasonable in all the circumstances to make the declaration taking into account the views of all the bargaining representatives.

If the FWC makes the intractable bargaining declaration, it can:

• specify a period (called the post-declaration negotiating period) during which the FWC can conciliate;
• extend the post-declaration negotiating period if it considers appropriate to do so; and
• at the end of the original or the extended period, the FWC can determine the dispute by arbitration.

Agreement Approval Requirements

Approval processes will be simplified, including by removing the seven day access period with the FWC’s focus being on whether the employees have genuinely agreed to the terms of the agreement. The FWC will publish a statement of principles to guide employees and employers on their rights and steps to facilitate genuine agreement.

Better Off Overall Test (BOOT)

The BOOT will be a global assessment of whether the employees as at the test time would be better off having regard to whether the agreement terms are more beneficial, or less beneficial, to the employee than the relevant Modern Award.

The primary consideration on whether the agreement passes the BOOT will be any common view expressed by bargaining representatives.  The FWC may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time.

Where a class of employees to which a particular employee belongs is better off, the FWC is entitled (in the absence of evidence to the contrary) to assume that all employees in that class would be better off overall. 

The FWC will also have capacity, on application at a later date, to reconsider if an agreement passes the BOOT with the potential for the FWC to:

• amend the agreement; or
• seek an undertaking that will change the effect of the relevant provision after the agreement is approved, provided the FWC first seeks the views of the employer, the employees and any union.

Protected Industrial Action

Where the proposed agreement is a single interest (multi-employer) agreement the notice requirement for industrial action changes from 3 working days to 120 hours (or such greater period as specified in the protected ballot action order (PABO)).

Once a PABO is made, the FWC must make an order directing the bargaining representatives to attend the conference in relation to the agreement.  At this conference, the FWC may mediate, conciliate, make a recommendation, or express an opinion.

Termination of agreement after nominal expiry date

The current public interest test for termination has been replaced with the requirement for the FWC to be satisfied that the continued operation of the agreement is unfair, or that its continued operation would pose a significant threat to the viability of the business, or termination of the agreement would reduce the potential for termination of employment. If there are termination entitlements in the agreement, the employees must be given a guarantee of termination entitlements to preserve their redundancy entitlements.

Timing of changes

The restrictions on terminating agreements after their nominal expiry have come into effect, as has the amendment allowing bargaining to be initiated in certain circumstances even though the employer does not agree.  The bargaining amendments will generally otherwise commence on 6 June 2023.

1. Job Security & Gender Equity

Sexual harassment

The amendments prohibit sexual harassment, with employers vicariously liable for the acts of their employees or agents where the contravention arises in connection with the employment or duties. The FWC will be empowered to resolve disputes relating to sexual harassment at work.  Where the application seeks a stop harassment order, this can be conciliated and arbitrated by the FWC.  Where no such order is sought, arbitration of the dispute requires the parties to agree to arbitration.  This change will be effective from 6 March 2023.

Prohibiting pay secrecy

Employees have a positive right to disclose (or not disclose) information about their own remuneration and any related terms and conditions of employment, as well as ask other employees about the same. The right to both disclose, and ask, will be recognised as a workplace right, even after the employee ceases their employment, extending the protection against adverse action provided under the Act. The amendments provide that any industrial instrument or contract that is inconsistent with these rights has no effect, and expressly prohibit employers from including secrecy terms in contracts of employment. These changes have commenced.

Flexible Work Requests and Extension to Parental Leave

The current right to request a flexible working arrangement is extended to a request made where the employee or an immediate family member experiences family and domestic violence or where the employee is pregnant. An employer must now have regard to the impact of a refusal of a request on the employee, and if they intend rejecting the employee’s proposed arrangement on reasonable business grounds, the employer must genuinely try to  reach agreement on alternative changes that can accommodate the employee’s circumstances. A request by an employee for an extension of their parental leave will similarly require a written response by the employer within 21 days. It will also be subject to the requirement to discuss the request with the employee to genuinely attempt agreement in respect of the request. 

The FWC will be able to resolve flexible work disputes and disputes over refusals to grant the parental leave extension, including by arbitration.

These changes will commence on 6 June 2023.

Anti-discrimination and special measures

Breastfeeding, gender identity and intersex have been added as protected attributes under the General Protections provisions.  Special measures to achieve equality will also be permitted matters that enterprise agreements can deal with. These amendments have come into effect.

Gender Equity & Equal Remuneration

The objects of the Act now include reference to job security and gender equity. In dealing with work value the FWC must ensure its consideration is free of assumptions based on gender, and include consideration of whether there has been historical gender-based undervaluation of the work.

Limiting use of fixed term contracts

Fixed term contracts for the same role will be limited to two consecutive contracts or a maximum duration of two years unless they fall within an exception which includes training arrangements and roles which in part or are wholly funded by Government for more than two years with no reasonable prospect of receiving funding after that.  The FWC can conciliate a dispute about the fixed term provisions and, if the parties agree, arbitrate.

An anti-avoidance provision seeks to prevent an employer making changes to the timing or terms of a fixed term contract to avoid the operation of the Act. A Fixed Term Contract Information Statement must be provided to new employees entering a fixed term arrangement. 

The limitations on fixed term contracts came into effect on 6 December 2023.  Accordingly, a new fixed term contract cannot be entered into after that date with a term of more than 2 years.  In addition, a period of service under a fixed term contract that is prior to any new fixed term contract entered into, on or after 6 December 2023 may be taken into account in determining whether a renewal of a fixed term contract or a consecutive fixed term contract will result in that fixed term engagement being longer than 2 years.

1. Other Amendments

Abolition of the Australian Building and Construction Commission and Registered Organisation Commission

The Fair Work Ombudsman will become the workplace regulator for the building and construction industry and the general manager of the FWC will become responsible for management of registered organisations.

Sunsetting of ‘Zombie Agreements’

All remaining transitional instruments (“Zombie Agreements”) will terminate after 12 months, subject to an extension being granted by the FWC. After the instrument ends, it will cease to cover employees and if no replacement enterprise agreement is negotiated, a Modern Award may apply from that time. Employers will be required to give employees notice of automatic sunsetting of transitional agreements within 6 months of the commencement of the amendments.

The 12 month grace period has commenced. This means that subject to an order of the FWC, a Zombie Agreement will terminate on 6 December 2023. Employers must provide notice of this termination to relevant employees by 6 June 2023.

Small claims process

To reduce barriers to pursuing redress for underpayments in relevant Courts, the small claims cap will increase in from $20,000 to $100,000.  Filing fees can be awarded as costs from the other party. This change comes into effect on 1 July 2023.

Prohibition on contravening pay rates in advertisements

Employers are prohibited from advertising pay rates that contravene the Act or an industrial instrument. Advertisements for piecework must include any period rate of pay the pieceworker would be entitled to. This change has come into effect.

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Principal

CLIENT BULLETIN NO. 2023-01

Happy New Year!

We would like to remind you of our previous bulletin in regards to the Code of Conduct for Aged Care obligations that commenced on the 1^st December 2022.

Should you require assistance please do not hesitate to conduct myself via 0412601156 or email cdewan@cdassociates.com.au

 CODE OF CONDUCT FOR AGED CARE

The Code of Conduct for Aged Care (Code) commenced on the 1^st December 2022 and places wide ranging obligations on Providers and workers.

The following people are required to comply with the Code:

• approved providers under the Aged Care Act. This includes approved providers of residential care, home care and flexible care (including care delivered under the Multi-Purpose Services, Transition Care and Short-Term Restorative Care programs) under the Aged Care Act.
• governing persons of approved providers, being individuals who are: — a member of the group of persons who are responsible for the executive decisions of the organisation, or — a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the organisation.
• aged care workers of approved providers, being individuals who are: — employed or otherwise engaged (including on a voluntary basis) by the provider — employed or otherwise engaged (including on a voluntary basis) by a contractor or subcontractor of the provider to provide care or other services to consumers. Code of Conduct for Aged Care Guidance for approved providers 10 2. Operation of the Code in aged care Examples of aged care workers and governing persons of approved providers required to comply with the Code include:

• • the executive management team
  • the chief executive oficer
  • board members
  • anyone responsible for the day-to-day operations of the service • service and facility managers
  • those responsible for the nursing services provided by the service and who hold a recognised qualification in nursing
  • allied health professionals contracted by the provider to provide care to consumers
  • kitchen, laundry, garden, maintenance, and office personnel employed or engaged by the provider
  • support workers, personal care workers, lifestyle coordinators and care companions
  • service coordinators and case managers
  • consultants, trainers and advisors for regulatory support or systems improvement who are under the control of the provider
  • independent contractors engaged by the provider (including health professionals)
  • volunteers of the provider who deliver care, supports and services to consumers

Approved providers have a responsibility to take reasonable steps to ensure their aged care workers and governing persons comply with the Code. Reasonable steps include ensuring their aged care workers and governing persons:

• read and understand the Code and relevant guidance including the Code of Conduct for Aged Care – Guidance for aged care workers and governing persons
• undergo regular training and professional development that helps them understand, apply and uphold the behaviours expected under the Code
• understand the consequences of failing to comply with the Code for the organisation and for them as individuals
• are supported to resolve issues where concerns are identified with their compliance with the Code (for example, through training, guidance and supervision to build skills and capability). Providers will not be required to ask their workforce to sign a copy of the Code. Although the law does not require this, it may be one way in which the provider ensures its aged care workers and governing persons are familiar with the Code. Providers must also have systems in place to ensure their aged care workers and governing persons are adequately trained and supported to understand the Code, systems for monitoring and reviewing the performance of their staff, complaints management systems and incident management systems. These requirements also form part of the Quality Standards. In addition to giving a copy of the Charter to consumers, providers should also inform consumers about the Code and about the steps the provider is taking to embed a culture of safe, kind and respectful care. Providers could also engage with consumers to encourage them to raise concerns (and provide feedback) about their care and services

Scope of the Code

The opening statement of the Code sets requirements for approved providers and their aged care workers and governing persons to act in a certain way during the provision of care, supports and services to consumers. There may however be instances where the Commission has regard to conduct that occurs outside the provision of care, supports and services, where serious concerns are raised about the ability of an organisation or an individual to deliver high-quality and safe aged care.

Elements

There are eight elements which each have a set of obligations and responsibilities, many of which involve ensuring staff have the correct training in various aspects of the code and that providers are applying basic HR principles, policies, and procedures. Over time I have had cause to ask for HR files and often are disappointed with the content of the files, the lack of information, the state of the file and the poor recruitment practices, all of which come under one or more of the obligations under the Code of conduct. The following are examples given as to matters that will be seen as not meeting the Code:

• Failing to manage the conduct of aged care workers who are disrespectful or rude to consumers
• Failing to ensure aged care workers are trained to deliver care that is respectful to diverse consumers
• Encouraging consumers to change their care delivery preferences to suit the service’s offerings
• Failing to ensure aged care workers understand and use the policies and practices the organisation has in place to protect consumer privacy and confidentiality
• ensure aged care workers have the necessary training, competence, and qualifications to deliver care, supports and services
• ensure there are enough skilled and qualified aged care workers to meet consumers’ needs including the right number and mix of skills to provide consumers with quality care
• maintain appropriate supervision for aged care workers
• review the training, learning and development needs of aged care workers regularly and when practices change
• support aged care workers to take up training and learning and development opportunities so they can meet the needs of their role
• provide organisational support, including to give aged care workers the time and the tools needed to deliver quality care to consumers at all times
• ensure quality and safe equipment is available to aged care workers, and that aged care workers are familiar and competent with using this equipment
• support aged care workers to provide safe care delivery including through complying with the relevant work, health and safety laws
• support aged care workers to apply concepts used in the Quality Standards and Charter, including person-centred approaches
• have systems and processes in place to: — ensure recruitment and selection includes referee checks and confirmation of the skills, experience and qualifications of aged care workers — ensure aged care workers understand their role and scope of practice — regularly assess, monitor and review the performance of aged care workers — identify the training needs of aged care workers, including through spotting trends of near misses or incidents that can inform training needs
• Failing to ensure key personnel and aged care workers are suitable to be employed in aged care
• Failing to consistently screen aged care workers at recruitment for competency and ability to deliver care, supports and services with care and skill
• Failing to take reasonable steps to confirm information provided as part of recruitment including references and qualifications
• Failing to address poor aged care worker conduct and gaps in their competence
• Failing to offer aged care workers further training where areas of improvement to their performance have been identified
• Allowing or asking aged care workers who do not hold the appropriate skills or competence to perform tasks they are unable to do or should not be doing
• Failing to ensure equipment is maintained and repaired particularly where a risk has been identified with that equipment
• Failing to induct new staff or agency staff about the provider’s policies and practices, and ensuring they are prepared to deliver quality and safe care
• Failing to have policies and practices to guide aged care workers about clinical issues
• ensure aged care workers are aware of their obligations under the Code and that they understand the consequences of such behaviours
• put controls in place to prevent, detect and respond to instances of dishonesty and fraud
• respond to allegations or suspicions about such practices occurring
• have policies in place that prohibit unethical conduct by aged care workers
• complaints or incidents
• Failing to address aged care workers who treat consumers unfairly or take advantage of them
• have systems and processes in place to ensure that aged care workers: — are aware of the risk mitigation strategies in place to protect against harm to consumers — identify and report alleged and suspected incidents to the provider — are aware of any obligations they may have under other professional codes of conduct, for example, any other applicable codes — are cognisant of when and how to raise concerns regarding acts of violence, discrimination, exploitation, neglect, abuse and sexual misconduct
• have systems and processes in place to: — encourage consumers to report any violence, discrimination, exploitation neglect, abuse and sexual misconduct — identify and record incidents of violence, discrimination, exploitation, neglect, abuse, and sexual misconduct including through use of an incident management system — report reportable incidents to the Commission — respond to incidents of violence, discrimination, exploitation, neglect, abuse and sexual misconduct, by putting the consumer first and ensuring they get the help and support they need — continuously improve both systems and processes to prevent, respond to and provide care, supports and services free from all forms of violence, discrimination, exploitation neglect, abuse and sexual misconduct.
• Failing to train aged care workers in the policies and practices that prevent harm to consumers
• Failing to train aged care workers in the policies and practices relevant to responding to incidents of violence, discrimination, exploitation, neglect, abuse or sexual misconduct
• Failing to properly assess an incident or investigate a complaint
• Failing to address allegations about violence, discrimination, exploitation, neglect, abuse or sexual misconduct

Important steps

It seems that it is imperative that all levels of staff and management become familiar with their responsibilities under the code, including RNs who are In Charge of shifts, Facility Managers, Providers and every support staff member. The RNs, in particular on night duty, often fail to perform their role as managers and this is coming to light in very unfortunate circumstances. CCTV should be regularly checked to ensure staff are not sleeping, not on their phones half the night, not sitting in the nurse station chatting and drinking tea for two hours at the beginning of a shift, not taking three hour beaks in the staff room, not doing resident checks as required etc. RNs have a duty of care to report such behaviours and now they have a duty under this code of conduct. Staff need to know they have to report and cooperate in investigations, Managers have to undertake proper recruitment practices, reference checking, application forms properly completed, training and experience logged, Certificates, police checks, nursing registration all done properly.

It maybe that clients will need assistance with a review or audit of all the HR practices referred to under the code and of all HR files and policies and procedures, job descriptions etc. Staff are supposed to be judged as suitably experienced and qualified to do the job. All of this information needs to be available and on their file.

Training in the code needs to be given and shown to have been given.

The code of conduct fact sheet can be downloaded from:

https://www.agedcarequality.gov.au/sites/default/files/media/code_of_conduct_for_aged_care_worker_fact_sheet_0_0.pdf

Janis and I will be able to offer assistance in this if required and you can give me a call if you wish to discuss any way we can help. 0412601156 or email cdewan@cdassociates.com.au

 CLARE DEWAN

Principal

CODE OF CONDUCT FOR AGED CARE

The Code of Conduct for Aged Care (Code) commenced on the 1^st December 2022 and places wide-ranging obligations on Providers and workers.

The following people are required to comply with the Code:

• approved providers under the Aged Care Act. This includes approved providers of residential care, home care and flexible care (including care delivered under the Multi-Purpose Services, Transition Care and Short-Term Restorative Care programs) under the Aged Care Act.
• governing persons of approved providers, being individuals who are: — a member of the group of persons who are responsible for the executive decisions of the organisation, or — a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the organisation.
• aged care workers of approved providers, being individuals who are: — employed or otherwise engaged (including on a voluntary basis) by the provider — employed or otherwise engaged (including on a voluntary basis) by a contractor or subcontractor of the provider to provide care or other services to consumers.
• Examples of aged care workers and governing persons of approved providers required to comply with the Code include:

• • the executive management team
  • the chief executive oficer
  • board members
  • anyone responsible for the day-to-day operations of the service • service and facility managers
  • those responsible for the nursing services provided by the service and who hold a recognised qualification in nursing
  • allied health professionals contracted by the provider to provide care to consumers
  • kitchen, laundry, garden, maintenance, and office personnel employed or engaged by the provider
  • support workers, personal care workers, lifestyle coordinators and care companions
  • service coordinators and case managers
  • consultants, trainers and advisors for regulatory support or systems improvement who are under the control of the provider
  • independent contractors engaged by the provider (including health professionals)
  • volunteers of the provider who deliver care, supports and services to consumers

Approved providers have a responsibility to take reasonable steps to ensure their aged care workers and governing persons comply with the Code. Reasonable steps include ensuring their aged care workers and governing persons:

• read and understand the Code and relevant guidance including the Code of Conduct for Aged Care – Guidance for aged care workers and governing persons
• undergo regular training and professional development that helps them understand, apply and uphold the behaviours expected under the Code
• understand the consequences of failing to comply with the Code for the organisation and for them as individuals
• are supported to resolve issues where concerns are identified with their compliance with the Code (for example, through training, guidance and supervision to build skills and capability). Providers will not be required to ask their workforce to sign a copy of the Code. Although the law does not require this, it may be one way in which the provider ensures its aged care workers and governing persons are familiar with the Code. Providers must also have systems in place to ensure their aged care workers and governing persons are adequately trained and supported to understand the Code, systems for monitoring and reviewing the performance of their staff, complaints management systems and incident management systems. These requirements also form part of the Quality Standards. In addition to giving a copy of the Charter to consumers, providers should also inform consumers about the Code and about the steps the provider is taking to embed a culture of safe, kind and respectful care. Providers could also engage with consumers to encourage them to raise concerns (and provide feedback) about their care and services

Scope of the Code

The opening statement of the Code sets requirements for approved providers and their aged care workers and governing persons to act in a certain way during the provision of care, supports and services to consumers. There may however be instances where the Commission has regard to conduct that occurs outside the provision of care, supports and services, where serious concerns are raised about the ability of an organisation or an individual to deliver high-quality and safe aged care.

Elements

There are eight elements which each have a set of obligations and responsibilities, many of which involve ensuring staff have the correct training in various aspects of the code and that providers are applying basic HR principles, policies, and procedures. Over time I have had cause to ask for HR files and often are disappointed with the content of the files, the lack of information, the state of the file and the poor recruitment practices, all of which come under one or more of the obligations under the Code of conduct. The following are examples given as to matters that will be seen as not meeting the Code:

• Failing to manage the conduct of aged care workers who are disrespectful or rude to consumers
• Failing to ensure aged care workers are trained to deliver care that is respectful to diverse consumers
• Encouraging consumers to change their care delivery preferences to suit the service’s offerings
• Failing to ensure aged care workers understand and use the policies and practices the organisation has in place to protect consumer privacy and confidentiality
• ensure aged care workers have the necessary training, competence, and qualifications to deliver care, supports and services
• ensure there are enough skilled and qualified aged care workers to meet consumers’ needs including the right number and mix of skills to provide consumers with quality care
• maintain appropriate supervision for aged care workers
• review the training, learning and development needs of aged care workers regularly and when practices change
• support aged care workers to take up training and learning and development opportunities so they can meet the needs of their role
• provide organisational support, including to give aged care workers the time and the tools needed to deliver quality care to consumers at all times
• ensure quality and safe equipment is available to aged care workers, and that aged care workers are familiar and competent with using this equipment
• support aged care workers to provide safe care delivery including through complying with the relevant work, health and safety laws
• support aged care workers to apply concepts used in the Quality Standards and Charter, including person-centred approaches
• have systems and processes in place to: — ensure recruitment and selection includes referee checks and confirmation of the skills, experience and qualifications of aged care workers — ensure aged care workers understand their role and scope of practice — regularly assess, monitor and review the performance of aged care workers — identify the training needs of aged care workers, including through spotting trends of near misses or incidents that can inform training needs
• Failing to ensure key personnel and aged care workers are suitable to be employed in aged care
• Failing to consistently screen aged care workers at recruitment for competency and ability to deliver care, supports and services with care and skill
• Failing to take reasonable steps to confirm information provided as part of recruitment including references and qualifications
• Failing to address poor aged care worker conduct and gaps in their competence
• Failing to offer aged care workers further training where areas of improvement to their performance have been identified
• Allowing or asking aged care workers who do not hold the appropriate skills or competence to perform tasks they are unable to do or should not be doing
• Failing to ensure equipment is maintained and repaired particularly where a risk has been identified with that equipment
• Failing to induct new staff or agency staff about the provider’s policies and practices, and ensuring they are prepared to deliver quality and safe care
• Failing to have policies and practices to guide aged care workers about clinical issues
• ensure aged care workers are aware of their obligations under the Code and that they understand the consequences of such behaviours
• put controls in place to prevent, detect and respond to instances of dishonesty and fraud
• respond to allegations or suspicions about such practices occurring
• have policies in place that prohibit unethical conduct by aged care workers complaints or incidents
• Failing to address aged care workers who treat consumers unfairly or take advantage of them
• have systems and processes in place to ensure that aged care workers: — are aware of the risk mitigation strategies in place to protect against harm to consumers — identify and report alleged and suspected incidents to the provider — are aware of any obligations they may have under other professional codes of conduct, for example, any other applicable codes — are cognisant of when and how to raise concerns regarding acts of violence, discrimination, exploitation, neglect, abuse and sexual misconduct
• have systems and processes in place to: — encourage consumers to report any violence, discrimination, exploitation neglect, abuse and sexual misconduct — identify and record incidents of violence, discrimination, exploitation, neglect, abuse, and sexual misconduct including through use of an incident management system — report reportable incidents to the Commission — respond to incidents of violence, discrimination, exploitation, neglect, abuse and sexual misconduct, by putting the consumer first and ensuring they get the help and support they need — continuously improve both systems and processes to prevent, respond to and provide care, supports and services free from all forms of violence, discrimination, exploitation neglect, abuse and sexual misconduct.
• Failing to train aged care workers in the policies and practices that prevent harm to consumers
• Failing to train aged care workers in the policies and practices relevant to responding to incidents of violence, discrimination, exploitation, neglect, abuse or sexual misconduct
• Failing to properly assess an incident or investigate a complaint
• Failing to address allegations about violence, discrimination, exploitation, neglect, abuse or sexual misconduct

Important steps

It seems that it is imperative that all levels of staff and management become familiar with their responsibilities under the code, including RNs who are In Charge of shifts, Facility Managers, Providers and every support staff member. The RNs, in particular on night duty, often fail to perform their role as managers and this is coming to light in very unfortunate circumstances. CCTV should be regularly checked to ensure staff are not sleeping, not on their phones half the night, not sitting in the nurse station chatting and drinking tea for two hours at the beginning of a shift, not taking three hour beaks in the staff room, not doing resident checks as required etc. RNs have a duty of care to report such behaviours and now they have a duty under this code of conduct. Staff need to know they have to report and cooperate in investigations, Managers have to undertake proper recruitment practices, reference checking, application forms properly completed, training and experience logged, Certificates, police checks, nursing registration all done properly.

It maybe that clients will need assistance with a review or audit of all the HR practices referred to under the code and of all HR files and policies and procedures, job descriptions etc. Staff are supposed to be judged as suitably experienced and qualified to do the job. All of this information needs to be available and on their file.

Training in the code needs to be given and shown to have been given.

Janis and I will be able to offer assistance in this if required and you can give me a call if you wish to discuss any way we can help. 0412601156 or email cdewan@cdassociates.com.au

 CLARE DEWAN

Principal

November 2022

Below is a summary of the Bill as at 10th November 2022. The Bill has now been passed with minor amendments.

While further industrial relations reform (such as on ‘same job, same pay’, among other topics) is expected to follow next year, the reforms tabled are significant and will substantively impact how Australian employers structure and manage their workforces and set terms and conditions of employment.

• agreements covering multiple employers – employers can be forced to bargain for agreements that cover multiple employers (including, potentially, competitors, external companies within supply chains, or internal group companies, among others) as the FWC can make a supported bargaining authorisations and single interest employer authorisations to enable this. Employees are able to take protected industrial action or seek bargaining orders in support of these agreements and there are limits on employers’/employees’ ability to remove themselves as parties to them. Employee organisations are also given significant power in the negotiation of these agreements, as each employee organisation bargaining representative must provide written consent before a multi-enterprise agreement can be put to a vote. There is a heavy onus on employers to meet the time frames and the requirements to advise employees that bargaining is to commence.
• bargaining disputes – broader powers for the FWC to intervene and make workplace determinations (effectively arbitrating an enterprise agreement) where bargaining is ‘intractable’.
• industrial action –the removal of limitations on protected industrial action in relation to multi-enterprise agreements, but the inclusion of an obligation to attend FWC mediation/conciliation before protected industrial action is taken (which applies to all forms of enterprise agreements except the ‘cooperative’ multi-enterprise stream where protected industrial action is not available).
• terminating agreements – materially reduced scope for termination of enterprise agreements, particularly during bargaining, and the sunsetting of ‘zombie’ agreements within 12 months of commencement (unless an extension is granted of up to 4 years). These “zombie” agreements are agreements made pre-2009.
• enterprise agreement approval process (BOOT and pre-approval requirements) – bargaining can start when an employee bargaining representative gives notice in certain circumstances (and without a MSD), certain pre-approval requirements have been removed, the ‘genuinely agreed’ test remains, there are limits on the use of start-up enterprise agreements (the voting employees must have a sufficient interest in its terms, and must be representative of the employees to be covered), the BOOT has been simplified and must involve a global (not line by line) assessment, the FWC can amend an enterprise agreement during the approval process rather than relying on employer undertakings, and parties may apply for a reassessment of the BOOT during the life of the enterprise agreement, e.g. if employees’ work patterns change.
• pay equity – expanded scope for the FWC to make Equal Remuneration Orders, prohibitions on and invalidation of pay secrecy clauses in employment contracts with penalties for non-compliance, and the establishment of two new expert panels within the FWC on pay equity and the care and community sector to tackle low pay in female dominated industries.
• Respect @ Work – introduction of a positive duty to prevent sexual harassment in the work place.
• discrimination – minor amendments to the anti-discrimination provisions in the FW Act to reflect other Commonwealth anti-discrimination legislation. These include adding protected attributes (breast feeding, gender identity, intersex status), and clarifying the operation of special measures to achieve equality.
• fixed term contracts – prohibitions on fixed term contracts of more than two years, with anti-avoidance provisions and exceptions for certain roles, industries, and uses of fixed term contracts.
• flexible work requests – expanded scope for employees to request flexible work arrangements, including a requirement for businesses to give reasons for any refusal of a flexible working request, limits on reasons for refusing a request, and FWC arbitration powers to deal with disputes.
• the objects of the FW Act – these have been expanded to include promotion of job security and gender equality.
• abolishing the Australian Building and Construction Commission – the ABCC would be abolished, with its remaining functions assumed by the Fair Work Ombudsman.
• establishment of the National Construction Industry Forum – with the role of providing advice to the Government in relation to work in the building and construction industry.
• abolishing the Registered Organisations Commission – the ROC would be abolished, with its functions transferred to the FWC.
• other matters – there are a range of other discrete amendments, including prohibitions on advertising roles at less than the applicable minimum rate of pay, an expansion of the small claims proceedings division in the FW Act from $20,000 to $100,000, and certain other changes.

While there are many organisations in the aged care sector which have current agreements, some do not and further, many of the renewed agreements expire in one to two years. Unions representing staff in aged care settings are likely to consider taking the path of multi- employer agreements especially given the perceived difficulties in getting many aged care providers to the table and engaging in negotiations, meeting commitments to respond, attending meetings, putting agreed outcomes to the vote, completing their F16 and F17 forms within the 14 days etc.

It seems that the unions will be able to reach agreements with some organisations in a favourable way and then seek to apply this agreement to all.

All clients need to be aware of these changes, in particular the issues for enterprise bargaining. Sexual Harassment claims can now be filed as a dispute to the FWC and if not resolved, will proceed to court. Clients must ensure all staff are aware of policies in relation to all bullying and harassment and to conduct regular training for staff to ensure they are aware of the issues and definitions of bullying and harassment.

While it would seem this sector does not use fixed term contracts for purposes other than to replace staff who are on leave, all clients need to be aware that there are strict requirements in this Bill around the use of Fixed Term contracts. If there is a need to have a fixed term contract in place, you should seek advice and ensure that the contract meets the obligations and limitations.

I am sure there will be more clarity as to all the outcomes of this legislation as expert lawyers come to fully understand the implications.

Clare Dewan

Principal

Many clients have concluded the process of the enterprise agreement but there are many who have yet to do so.

We are urging those who do have an agreement finalised with the unions to immediately put the agreement out to vote and to email me to tell me that you have started the voting process. Then please confirm the outcome by email because you then have only 14 days to lodge the required forms 16 and 17 with the FWC.

I will notify the unions that the voting has commenced and when the voting has finished and the outcome. It is important all parties know because all parties have responsibilities to get it approved.

CLARE DEWAN

Principal

Decision 4^th November 2022

The FWC has handed down the work value case today and awarded an interim decision to increase wages in the Aged Care and Nurses award of 15% and 15% to home care workers under the SCHADS award A copy of the summary of the decision is attached.

There will be another two stages of this case with a second increase likely to result.

The wages will be published by the FWC when finalised. All clients will need to ensure that staff are not paid less than the new rates despite what is in an EBA. The Fair work Act 2009 makes it an offence to pay less than the modern award. We will also send out the new rates when they are available.

CLARE DEWAN

Director

4 yearly review of modern awards –

Aged Care Work Value Case

(AM20201/99, AM2021/63 and AM2021/65)

[2022] FWCFB 200

President Justice Ross, Deputy President Asbury, Deputy President O’Neill

This summary is not a substitute for the reasons of the Fair Work Commission nor is it to be used in any later consideration of the Commission’s reasons.

Background

[1] This decision deals with 3 applications to vary modern awards to increase the minimum wages of aged care sector workers:

• AM2020/99 – an application by the Health Services Union (HSU) and a number of individuals to vary the minimum wages and classifications in the Aged Care Award 2010 (Aged Care Award)
• AM2021/63 – an application by the Australian Nursing and Midwifery Federation (ANMF) to vary the Aged Care Award and the Nurses Award 2010, now the Nurses Award 2020 (Nurses Award), 1 and
• AM2021/65 – an application by the HSU to vary the Social, Community, Home Care and Disability Services Award 2010 (SCHADS Award) (the Applications).

[2] These proceedings arose out of Recommendation 84 of the Final Report of the Royal Commission into Aged Care Quality and Safety (the Royal Commission).

[3] The Final Report of the Royal Commission was tabled on 1 March 2021. The Royal Commission received 10,574 public submissions and heard evidence from more than 600 witnesses across 99 days of hearing.2 Over 1,000 aged care providers were surveyed3 and some 12 community forums and 13 expert roundtable discussions were conducted.

[4] Modelling prepared for the Royal Commission estimated that the number of direct care workers needed to maintain current staffing levels would be approximately 316,500 full-time equivalent workers by 2050, an increase of 70 per cent.4

[5] The Royal Commission concluded that the aged care workforce faces ‘systemic’ problems: ‘In a large number of residential aged care facilities there are not enough workers to provide high quality, person-centred care. In many cases the mix of staff who provide aged care is not appropriately matched to the care needs of older people. The staff in aged care are poorly paid for their difficult and important work.’5

[6] The Royal Commission found that aged care workers should have a ‘clear vision for career progression’ and recommended that ‘existing job classifications should be reviewed and new career pathways mapped to facilitate opportunities for nurses, personal care workers and other workers to advance in the aged care sector.’6

[7] The Royal Commission also found that a ‘wages gap’ exists between aged care workers and workers performing equivalent functions in the acute health sector and concluded that the ‘bulk of the aged care workforce does not receive wages and enjoy terms and conditions of employment that adequately reflect the important caring role they play.’7 To address the inadequacies in pay for aged care workers, the Royal Commission made the following recommendation:

Recommendation 84: Increases in award wages

Employee organisations entitled to represent the industrial interests of aged care employees covered by the Aged Care Award 2010, the Social, Community, Home Care and Disability Services Industry Award 2010 and the Nurses Award 2010 should collaborate with the Australian Government and employers and apply to vary wage rates in those awards to:

• reflect the work value of aged care employees in accordance with section 158 of the Fair Work Act 2009 (Cth), and/or
• seek to ensure equal remuneration for men and women workers for work of equal or comparable value in accordance with section 302 of the Fair Work Act 2009 (Cth).

[8] The Applications seek a 25 per cent increase in minimum wage rates for all aged care employees covered by the Aged Care, Nurses and SCHADS awards.

[9] At the heart of the proceedings was the Applicants’ contention that the variation they sought to modern award minimum wages were ‘justified by work value reasons’ as required by s.157(2).

[10] There was considerable common ground between the parties in respect of the relevant factual matrix. The Unions, ACSA and LASA are signatories to the Aged Care Sector Stakeholder Consensus Statement. The content of the Consensus Statement may be viewed as broadly supportive of the Applications. The Consensus Statement represents the views of a number of stakeholders in the aged care sector and was developed in contemplation of these proceedings. The Full Bench concluded that the Consensus Statement was relevant to its determination of the Applications and took it into account.

[11] Some 16 broad factual contentions were also agreed between the parties and the Full Bench concluded:

‘… we consider these contentions to be general in their character and that they would not necessarily apply consistently across classifications or universally in every instance to all employees concerned. That said, we are satisfied there is a sound evidentiary basis for the 16 agreed contentions and we adopt them as findings.’ 8

[12] While there was a significant amount of agreement between the parties, the Joint Employers and the Unions disagreed on the extent of changes to work in the aged care sector, in particular the classes of workers affected by those changes.

[13] Ultimately, the Joint Employers submitted that, based on the evidence, the work undertaken by the following classes of employee in residential aged care had significantly changed over the past 2 decades warranting consideration for work value reasons:

• RNs
• ENs
• Certificate (III) Care Workers, and
• Head Chefs/Cooks.

[14] The Joint Employers also confirmed that they contended that an increase in minimum wages is justified on work value grounds in respect of RNs, ENs, Certificate III Care Workers and Head Chefs/Cooks in residential aged care.10

[15] The parties also agreed with a range of provisional views we expressed during the course of the proceedings.

[16] In a Statement dated 9 June 202211 the Full Bench expressed the following provisional views:

• The relevant wages rates in the Aged Care Award 2010, the Nurses Award 2020 and the Social, Community, Home Care and Disability Services Industry Award 2010 have not been properly fixed.
• It is not necessary for the Full Bench to form a view about why the rates have not been properly fixed.
• The task of the Full Bench is to determine whether a variation of the relevant modern award rates of pay is justified by ‘work value reasons’ (and is necessary to achieve the modern awards objective), being reasons related to any of s.157(2A)(a)-(c) the nature of the employees’ work, the level of skill or responsibility involved in doing the work and the conditions under which the work is done.

[17] The parties broadly agreed with the provisional views12 and in a Statement dated 5 August 202213 the Full Bench confirmed its provisional views.

[18] It was therefore accepted that, in these proceedings, the Full Bench was not required to form a view as to why the rates in the relevant awards have not been properly fixed, including by making a finding as to whether or not the minimum rates were affected by gender undervaluation.

[19] That being said, the Full Bench accepted the expert evidence that as a general proposition work in feminised industries, including care work, has been historically undervalued and that the reason for that undervaluation is likely to be gender based. The Full Bench also accepted that the evidence pertaining to gender undervaluation provides a useful context for the assessment of the work value and skills utilised in feminised industries, including in the aged care industry.

The Decision

[20] Chapter 2 provides an outline of the decision and can be accessed using the link on our website.

[21] The proper assessment of the skills utilised in aged care work is considered in detail in Chapter 7.

[22] The proposition that work in feminised industries is undervalued is addressed in the expert evidence of Assoc Prof Smith and Dr Lyons; Assoc Prof Junor; Prof Charlesworth and Prof Meagher.

[23] Based on the expert evidence the Full Bench accepted the followings propositions:

• The valuation of work is influenced by social expectations and gendered assumptions about the role of women as workers. In turn these social practices influence institutional and organisational practices.
• Undervaluation occurs when work value is assessed with gender-biased assumptions. The reasons for gender-based undervaluation in Australia include the continuation of occupational segregation, the weaknesses in job and work valuation methods and their implementation, and social norms, gender stereotypes and historical legacies.14
• Gender-based undervaluation in the employment context occurs when work value is assessed with gender-biased assumptions15 which means the skill level of occupations, work or tasks is influenced by subjective notions about gender and gender roles in society. Skills of the job occupant are discounted or overlooked because of gender.16
• Gender-based undervaluation of work in Australia arises from social norms and cultural assumptions that impact the assessment of work value. 17 These assumptions are impacted by women’s role as parents and carers and undertaking the majority of primary unpaid caring responsibilities. The disproportionate engagement by women in unpaid labour contributes to the invisibility and the under recognition of skills described as creative, nurturing, facilitating or caring skills in paid labour.18
• The barriers and limitations to the proper assessment of work value in female dominated industries and occupations include:
  • changes in the regulatory framework for equal pay and equal remuneration applications and the interpretation of that framework.
  • procedural requirements such as the direction in wage-fixing principles that assessment of work value focus on changes in work value and tribunal interpretation of this requirement. • conceptual considerations including the subjective notion of skill and the “invisibility” of skills when assessing work value in female-dominated industries and occupations.19
  • The approach taken to the assessment of work value by Australian industrial tribunals and constraints in historical wage fixing principles have been barriers to the proper assessment of work value in female dominated industries and occupations. In particular:
  • The requirement for tribunals to make an adjustment to minimum rates based only on a change in work value has meant that there has been a limited capacity to address what may have been errors and flaws in the setting of minimum rates for work in female dominated industries and occupations. These limitations in the capacity of tribunals to properly value the work arise because any potential errors in the valuation of the work may have predated the last assessment of the work by the tribunals.
  • Errors in the valuation of work may have arisen from the female characterisation of the work, or the lack of a detailed assessment of the work. The time frame or datum point for the measurement of work value which limit assessment of work value to changes of work value, or changes measured from a specific point in time mitigated against a proper, full-scale assessment of the work free of assumptions based on gender.20
  • The capacity to address the valuation of feminised work has also been limited by the requirement to position that valuation against masculinised benchmarks. Work value comparisons continued to be grounded by a male standard, that being primarily the classification structure of the metal industry awards and to a lesser extent a suite of building and construction awards.21

[24] As noted in point 6 above, the constraints in historical wage fixing principles have created barriers to the proper assessment of work value in female dominated industries and occupations. Those constraints are addressed in Chapter 3, dealing with the legislative framework, and in the Full Bench’s findings in respect of ‘invisible skills’. The following propositions are among those distilled from the discussion in Chapter 3:

• The reasons which justify the amount employees should be paid for doing a particular kind of work must be ‘related to’ any one or more of the 3 matters in s.157(2A)(a) to (c). There is nothing in the statutory context to suggest that the expression ‘related to’ in s.157(2A) was not intended to have a wide operation or that an indirect, but relevant, connection would not be a sufficient relationship for present purposes. The expression ‘related to’ is one of broad import that requires a sufficient connection or association between the 2 subject matters; the connection must be relevant and not remote or accidental.
• Section 157(2A) does not contain any requirement that the ‘work value reasons’ consist of identified changes in work value measured from a fixed datum point. But, in order to ensure there is no ‘double counting’, it is likely the Commission would adopt an appropriate datum point from which to measure work value change, where the work has previously been properly valued. The datum point would generally be the last occasion on which work value considerations have been taken into account in a proper way, that is, in a way which, according to the current assessment of the Commission, correctly valued the work. A past assessment which was not free of gender-based undervaluation or other improper considerations would not constitute a proper assessment for these purposes.
• Where the wage rates in a modern award have not previously been the subject of a proper work value consideration, there can be no implicit assumption that at the time the award was made its wage rates were consistent with the modern awards objective or that they were properly fixed.
• Section 157(2A) does not incorporate the test which operated under wage fixing principles of the past that the change in the nature of work should constitute ‘such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.’ There is simply no basis for introducing such an additional requirement to the exercise of the discretion in s.157(2), which might have been, but which has not been, enacted.
• Having regard to relativities within and between awards remains an appropriate and relevant exercise in performing the Commission’s statutory task in s.157(2). Aligning rates of pay in one modern award with classifications in other modern awards with similar qualification requirements supports a system of fairness, certainty and stability. The C10 Metals Framework Alignment Approach and the AQF are useful tools in this regard. However, such an approach has its limitations, in particular:
  • alignment with external relativities is not determinative of work value
  • while qualifications provide an indicator of the level of skill involved in particular work, factors other than qualifications have a bearing on the level of skill involved in doing the work, including ‘invisible skills’ as discussed in Chapter 7.2.6
  • the expert evidence supports the proposition that the alignment of feminised work against masculinised benchmarks (such as in the C10 Metals Framework Alignment Approach) is a barrier to the proper assessment of work value in female-dominated industries and occupations (see Chapter 7.2.5), and
  • alignment with external relativities is not a substitute for the Commission’s statutory task of determining whether a variation of the relevant modern award rates of pay is justified by ‘work value reasons’ (being reasons related to the nature of the work, the level of skill and responsibility involved and the conditions under which the work is done).

[25] Chapter 8 sets out the Full Bench’s consideration of the Applications in light of the evidence and submissions.

[26] Chapter 8.2 considers the appropriate way forward in light of the extent of agreement between the parties, the evidentiary findings and the range of complex issues that arise for determination. The Full Bench concluded that 3 broad considerations weigh in favour of an interim decision providing an increase in minimum wages for discrete categories of aged care workers:

• It is common ground between the parties that the work undertaken by RNs, ENs and Certificate III PCWs in residential aged care has changed significantly in the past 2 decades such as to justify an increase in minimum wages for these classifications. We also recognise that there is ample evidence that the needs of those being cared for in their homes have significantly increased in terms of clinical complexity, frailty and cognitive and mental health
• Accordingly, in respect of direct care workers (including RNs, ENs, AIN/PCW/HCWs) the evidence establishes that the existing minimum rates do not properly compensate employees for the value of the work performed by these classifications of employees. The evidence in respect of support and administrative employees is not as clear or compelling and varies as between classification.
• A number of complex issues require further submissions (and potentially further evidence) before they can be determined and we see no reason to delay an increase in minimum wages for direct care workers while that process takes place.

[27] The decision published today constitutes the first stage in that process. In this decision the Full Bench determined the relevant legal principles and the conceptual issues that have been canvassed by the parties in relation to the Applications and have decided that an interim increase in the modern award minimum wages applicable to direct care workers is justified by work value reasons.

[28] In Stage 2 the parties will have the opportunity to make submissions and address evidence in relation to the timing and phasing-in of wage increases. The timing of the interim increase will be the subject of a subsequent decision in Stage 2.

[29] Stage 3 will include a more detailed consideration of the classification definitions and structures in the relevant Awards. Interested parties may wish to make further submissions and call additional evidence in relation to these matters in this stage of the proceedings. A further decision will then be issued finalising the classification definitions and structures in the relevant Awards.

[30] Stage 3 will also determine wage adjustments that are justified on work value grounds for employees not dealt with in Stage 1, and determine any further wage adjustments that are justified on work value grounds for direct care employees granted interim wage increases in Stages 1 and 2.

An Interim Increase

 [31] As to form and quantum of the interim increase the Full Bench concluded that it was satisfied that a 15 per cent interim increase in minimum wages of the direct care classifications in the Aged Care and SCHADS Awards and for nurses working in aged care covered by the Nurses Award is ‘plainly justified by work value reasons’.

[32] The Full Bench made it clear that the interim increase does not conclude its consideration of the Unions’ claim for a 25 per cent increase for other employees, namely administrative and support aged care employees. Nor was the Full Bench suggesting that the 15 per cent interim increase necessarily exhausts the extent of the increase justified by work value reasons in respect of direct care aged care employees. Whether any further increase is justified will be the subject of submissions in Stage 3 of these proceedings.

[33] Given the funding arrangements in the aged care sector, the Joint Employers and the Commonwealth sought an opportunity to make further submissions regarding the timing of the implementation of any minimum wages increases arising from these proceedings. The Full Bench concluded that the course proposed is a reasonable one and is comprehended within the staged approach adopted.

[34] A Mention will be listed for 9:30am on Tuesday 22 November 2022 for the purpose of issuing directions in respect of Stage 2 of these proceedings.

– ENDS –

CLIENT BULLETIN NO. 2022-09

ANNUAL LEAVE

Michael Rahilly and Clare Dewan will be on leave from the 11th August to the 28th August 2022. While we are away, we will have access to emails, texts and phone calls; however, we have also arranged for Janis Veldwyk to be the contact for all but emergency issues. We will be within Australia.

Clients can continue to send their email queries to our usual email addresses and Janis will be monitoring these and responding. If you do need to speak to either of us you can email, text or phone us.

Janis can also be contacted on her mobile on 0411 075 895 or email jveldwyk@cdassociates.com.au

Domestic Violence Leave and Enterprise Agreements

The Federal Government has introduced legislation that will mean that there will be entitlements for all staff, no matter how few hours they work, casuals, part time and full time, to have access under the National Employment Standards to 10 days paid domestic violence leave.

We are now advising clients who have not yet finalised their new agreements to simply agree to include a provision that states the NES requirements shall apply. This would also mean there would be no agreement to provide unpaid domestic violence leave as this would then become an additional entitlement not provided by the new NES provisions.

Clare Dewan

CLIENT BULLETIN NO. 2022-07

CLASSIFICATION COMPARISONS EBA V MODERN AWARD

With the recent increase in modern award rates, we have prepared a classification comparison table for the increased rates for clients.

Clients are reminded that there is no obligation to increase the EBA rates after an agreement has expired unless there is a new agreement or the EBA rates fall below the modern award rates.

If you have any queries, please contact either Michael Rahilly (0408101139) of Clare Dewan (041260116)

CLARE DEWAN

CLASSIFICATION COMPARISONS

Agreement Classifications (based on Health and Allied Services (Private Sector – Victoria) Consolidated Award 1998 Aged Care Award 2010
N/A Aged Care Employee Level 1

Wage Skill Group 1 Aged Care Employee Level 2
Food Services Assistant
Laundry Hand

Wage Skill Group 2 Aged Care Employee Level 2
Laundry Hand (alone)
Gardner (non trade) $ 895.50 pw $ 23.57ph

Wage Skill Group 3 Aged Care Employee Level 2/3
Cook
Personal Care Worker Grade 1 (Unqualified) $929.90 pw $24.47 ph
Leisure and Lifestyle (Unqualified)

Wage Skill Group 6 Aged Care Employee Level 4
Trade Cook
Personal Care Worker Grade 2 (Cert III) $940.90pw $24.76ph
Leisure and Lifestyle (Cert III)

Wage Skill Group 7 Aged Care Employee Level 4
Maintenance/handyperson (qualified)
Gardner (trade) $940.90 pw $24.76 ph

Wage Skill Group 8 Aged Care Employee Level 5
Personal Care Worker Grade 3 (Cert IV)
Leisure and Lifestyle (Cert IV) $$972.80pw $25.60ph

Wage Skill Group 9 Aged Care Employee Level 6
Maintenance tradesperson (advanced)
Gardner (advanced) $1.025.20 pw $26.98 ph

Wage Skill Group 10 Aged Care Employee Level 6
Leisure and Lifestyle Coordinator (Unqualified)
$1.025.20 pw $26.98 ph
Wage Skill Group 11 Aged Care Employee Level 7
Food Services Supervisor
Personal Care Worker Grade 4 $1.043pw $27.46ph
Gardner Superintendent
General Services Supervisor
Leisure and Lifestyle Coordinator (Qualified)

Agreement classifications based on the Nurses (Victorian Health Services) Award 2000 Nurses Award 2010

National Training Wage Award 2000 Wage Level A plus 3.8% (for Cert IV qualification) Student Enrolled Nurse

Enrolled Nurses Enrolled Nurses
Pay point 1 Pay point 1 $958.30pw $25.22 p
Pay point 2 Pay point 2 $971.00pw $25.55 ph
Pay point 3 Pay Point 3 $983.90 pw $25.89 ph
Pay Point 4 Pay Point 4$ 998.10 pw $26.27 ph
Pay point 5 Pay Point 5 $1,008.10pw $26.53 ph
Pay point 6 N/A
Pay Point 7 N/A
Pay Point 8 N/A

Registered Nurses Registered Nurses

Level 1 (Grad Year) Registered nurse-Level 1 –Pay point 1
Level 2 Year 1 Registered nurse-Level 1 – Pay point 3 $1.071.90 pw $28.21 ph
Level 2 Year 2 Registered nurse-Level 1 – Pay point 6
Level 2 Year 3 N/A
Level 3A Year 1 Registered nurse-Level 2 – Pay point 1 $1.264.70pw $33.28ph
Level 3A Year 2 Registered nurse-Level 2 – Pay point 2 $1.284.80pw $33.81 ph
Level 3B Year 1 Registered nurse-Level 2 – Pay point 3 $1.307.10pw $34.40ph
Level 3B Year 2 Registered nurse-Level 2 – Pay point 4 $1,328.50pw $43.70ph
Level 4A Year 1 Registered nurse-Level 3 – Pay point 1 $1.371.30pw $36.09ph
Level 4A Year 2 Registered nurse-Level 3 – Pay point 2 $1.396.50pw $36.75 ph
Level 4B Year 1 Registered nurse-Level 3 – Pay point 3 $1,420.60pw $37.38ph
Level 4B Year 2 Registered nurse-Level 3 – Pay point 4 $1,446.10pw $47.57ph
Level 5 Registered nurse-Level 4 Grade 1 $1,565.10pw $51.95ph
Level 6 Registered nurse-Level 4 Grades 2 and 3
Level 7 Registered nurse-Level 5 Varies

Levels 6 ranges between $$1663.30 and $11775.10 pw

The FWC has granted a 5.2% wage increase to all modern award rates and the relevant awards will be amended accordingly to apply as of the 1^st July. All clients will now need to check their rates against the new award rates once they are published to ensure the rates in the EBA are at the same level of higher than the modern award rates.

This decision may affect some clients more than others. There will be some effect on some agreements where the pay rates have been lower than others.

We will send further information upon our return from leave.

CLARE DEWAN

The “Closing the Loopholes” Bill has been passed by the Senate. The Act as it now is, provides for a raft of significant changes which will have different impacts on different industries. Some of these are as follows:

This is an except taken from the Department of Employment and Workplace Relations website. There are many changes, and one is the role of workplace delegates.

“The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 amends the Fair Work Act 2009 (the Act) to provide specific rights and protections for the important work undertaken by workplace delegates in representing and educating employees to allow them to effectively undertake their role.

What are the changes?

The changes provide specific rights for workplace delegates to represent the industrial interests of union members and potential members, including in disputes with their employer. Workplace delegates are employees who are appointed as representatives in the workplace under their union’s rules. The changes provide that delegates are provided reasonable access to communicate with members and potential members about matters of industrial concern and reasonable access to workplace facilities.

Delegates in businesses that are not small business employers will also have reasonable access to paid time for related training.

What is reasonable for these matters will depend on the size and nature of the enterprise, and the enterprise’s resources and available facilities.

The amendments introduce a general protection for delegates when carrying out their role at a workplace, including preventing an employer from unreasonably refusing to deal with them, misleading them, or hindering and obstructing the exercise of their rights as delegates.

The Fair Work Commission (the Commission) will prepare modern award terms to ensure that these rights are appropriately adapted for particular industries and occupations. The amendments will also require the inclusion of a compliant delegates’ rights term in all modern awards and future enterprise agreements.

What do these changes mean?

This change supports and strengthens the ability of workplace delegates to perform their role in the workplace, ensuring workers have reasonable access to representation to address safety and compliance issues. Employees will benefit from having trained and capable workplace delegates who can provide effective representation and help them to understand and enforce their workplace rights. Employers will benefit from having strong, cooperative delegate structures to resolve disputes and facilitate change. When will these changes come into effect? These changes commenced on 15 December 2023. For more information on the Closing Loopholes legislation, visit: https://www.dewr.gov.au/workplacerelations Last”

My view is what it means is that there will be workplaces that will have some staff representatives that will hold the business to ransom because they will see they have the power to do so. It will feed those with a grudge or those who have an inherent dislike and distrust of all employers. It will cause division in workplaces between those who want to go with the staff rep and those who don’t. and those who don’t but do to stay out of the fire. It is giving unions a voice in the workplace where these reps were never legally recognised as having any rights but now they do.  Watch how this may impact on may workplaces in particular highly unionised workplaces. The potential is there for any work place however.

Casuals [changes effective 6 months after the Amending Act receives Royal Assent]

A new definition.

A new definition of “casual employee” will be introduced into the Act which draws on core elements of the meaning of casual employment as it was understood before the decision of the High Court of Australia in WorkPac Pty Ltd v Rossato [2021] HCA 23.

An employee will be a “casual employee” if both of the following conditions are met:

• the employment relationship is characterised by an absence of a firm advancement commitment to continuing and indefinite work; and
• the employee would be entitled to a casual loading, or a specific rate of pay for casual employees under the terms of a fair work instrument or employment contract if the employee were a casual employee.

The requirement for “continuing and indefinite work” to be according to an agreed pattern of work is to be removed.

A note will be added to make clear that a regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work. To put that another way, a casual employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work.

In assessing whether an employee is a “casual employee”, the following matters need to be considered:

• the issue is to be assessed based on the real substance, practical reality and true nature of the employment relationship – the totality of the relationship and not just the contractual terms;
• a firm advance commitment may be in the form of a mutually agreed term in an employment contract, or a mutual understanding or expectation between an employer and employee; and
• other potential indicators must be considered (but no one factor is determinative and not all factors need to be satisfied), such as whether:
  • there is an inability of the employer to elect to offer work and/or an inability of the employee to elect to accept or reject work;
  • it is reasonably likely that continuing work will be available in the future;
  • there are existing full-time or part-time employees performing the same kind of work; and
  • there is a regular pattern of work for the employee.

The emphasis of the new definition is on the totality of the employment relationship. A regular pattern of work neither automatically means the employee is casual, nor does it mean the employee is not casual. The assessment should consider the real substance, practical reality and true nature of the employment relationship, not any single factor in isolation.

Initially it was proposed to amend the Act to prevent a casual employee being engaged on a fixed term contract.  Practically there may be good reasons, however, to employ a casual employee on a fixed term contract, such as giving a clear indication to a casual employee about the potential duration of their engagement.  The final form of the amendment is limited to only apply to a member of academic staff or a teacher at a higher education institution, who is covered by one of two specified modern awards.

Employee choice about casual employment

An additional process will be introduced to allow employees to influence their employment status, supplementing some of the existing provisions enabling casual-to-permanent conversion in specified circumstances and the contractual ability of employees and employers to change employment status by consent.

The existing residual right of an employee to request casual conversion from their employer in the Act will be removed.  The removal of this existing right should simplify matters for employers and remove any potential for inconsistency or duplication.

An eligible casual employee will be able to initiate a change to full-time or part-time employment if the employee:

• believes they are no longer a casual employee at the point in time when they make the notification to their employer;
• meets the minimum employment period – 12 months if employed by a small business employer; otherwise 6 months;
• is not currently engaged in a dispute over their status, or had certain notification or dispute resolution events occur within the preceding 6 months; and
• wants to change their employment status to full-time or part-time employment.

There will be no requirement for an employee to issue a notification if they do not want to change their employment status.  Employees will have complete choice about whether or not to do so.

Practically an employee will only be able to make such a notification once every 6 months.

Employer response

Where an employee makes a notification, an employer must respond in writing within 21 days.  Employers are required to consult with an employee in relation to the notification.

If the employer accepts the notification, they must state:

• that they accept the notification;
• whether the employee is changing to full-time or part-time employment;
• the employee’s hours of work after the change takes effect; and
• the day that the change will take effect.

If the employer does not accept the notification, they must state:

• that they do not accept the notification on one or more stipulated grounds (see below); and
• reasons (previously proposed to be detailed reasons) for their decision.

An employer may refuse a notification on the following grounds:

• the employer believes the employee is still correctly classified as a casual employee;
• there are fair and reasonable operational grounds for not accepting the notification; or
• a change of employment status to full-time or part-time employment would not comply with a recruitment or selection process required by a Federal or State / Territory law.

There will be “fair and reasonable operational grounds” for refusing a notification where:

• substantial changes would be required to the way in which work in the employer’s business is organised;
• there would be significant impacts on the operation of the employer’s business; and/or
• it would be reasonably necessary to make substantial changes to the employee’s terms and conditions to ensure the employer does not contravene a term of a modern award / enterprise agreement that would apply to the employee as a full-time employee or part-time employee (as the case may be).

There are also protections against the intentional misuse of casual employment, including dismissing an employee in order to re-engage them as a casual employee and knowingly making false statements to engage a person as a casual employee.

Other changes

There will also be new dispute resolution procedures and new civil remedy provisions to protect against conduct designed to result in the misclassification of casual employees.

An employer and employee must first attempt to resolve a dispute at the workplace level, by discussion between the parties.  If the dispute is not resolved, then employer or employee may refer the dispute to the FWC.  The FWC would be required to first deal a dispute with it by means other than arbitration in the first instance (such as by mediation, conciliation, making a recommendation or expressing an opinion), but if the dispute remains unresolved, the FWC would then be able to deal with the dispute by arbitration.

A Casual Employee Information Statement will be required to be provided to an employee, at the commencement of their employment and after 12 months service. 

Intractable bargaining workplace determinations [changes effective on the Amending Act (receiving Royal Assent]

Any intractable bargaining declaration made by the FWC will required to be no less favourable to an employee or union than a prior enterprise agreement on a clause-by-clause basis (except for wage increase terms).  This is a significant change which has been heavily criticised by employer groups as unfairly impacting an employer’s bargaining power and undermining the potential for mutual benefits to be achieved through collective bargaining.

Dates the new laws come into force

5 December 2023

• Small business redundancy exemption provisions
• Regulated labour hire arrangement jurisdiction
• Workplace delegates’ rights provisions
• Protections for those subject to family and domestic violence
• Amendments to compulsory conciliation conferences in protected action ballot order matters

1 July 2024

• Determinations varying modern awards to include a delegates’ rights term
• Delegates’ rights term must be included in a workplace determination made on or after 1 July 2024
• Delegates’ rights term must be included in an enterprise agreement approved by vote on or after 1 July 2024

1 November 2024

• Regulated labour hire arrangement orders can commence operation

1 January 2025*

• Wage theft provisions apply

*the later of 1 January 2025 and the day after the Minister declares a Voluntary Small Business Wage Compliance Code

Clients are encouraged to make themselves aware of all the changes by viewing these on the Fair work Ombudsman’s website

Clare Dewan

Principal