Employment Law Update - Award Changes
September 2017 | News | Peter Wilson
As part of its four-yearly review of all modern awards, the Fair Work Commission (FWC) has recently issued a number of significant decisions. Changes to casual employment arrangements were widely commented on in the press in July. However, that FWC decision also dealt with changes to part-time work. Further changes to many awards will also occur over the balance of this year.
Casual employees covered by most modern awards will soon be able to request conversion to permanent/ongoing employment on a part-time or full-time basis where they have 12 months employment on a pattern of hours which could (without significant adjustment) convert to full-time or part-time employment.
To refuse a request, an employer must establish:
- that a significant adjustment to working hours would have to be made to accommodate the conversion;
- the casual position is likely to end within 12 months;
- the hours of work for the casual position will significantly change or be reduced within 12 months; and
- any other reasonable grounds based on facts which are known or reasonably foreseeable.
A casual employee whose request is refused may seek redress under the dispute resolution procedure of a modern award. Also Employers must provide all casual employees with a copy of the casual conversion clause in the first 12 months of employment.
It should be noted that Casual conversion clauses have existed in a number of awards for many years and have not been utilised very often by employees in these industries.
The FWC also decided that all modern awards should have a minimum two hour period of casual employment. We note that some awards already have two, three or four hour minimum engagement periods, and these will remain. The FWC has also determined that all casuals covered by modern awards should be paid overtime for hours worked outside the standard daily or weekly hours.
These changes are likely months away from becoming law, so employers have time to review their operations and the impact of the decision on their casual employees.
The FWC also decided to allow employees, in certain industries, to engage part-timers more flexibly. There will be changes to the modern awards in the hospitality and retail industries to introduce greater flexibility in relation to current operational and rostering practices, so employees can more practically engage part-time employees.
Unfortunately for many Charities working in the areas of social work, disability or community development, the FWC rejected employers’ arguments for increased flexibility in the engagement of part-timers in these sectors. It stated that the substantial evidence about NDIS demands was speculative, at this stage, and the sector already had a substantial percentage of part-timers (cf. evidence in the hospitality industry which showed part-time work is almost non-existent and needed reform).
Leave for Blood Donors and victims of Domestic Violence
The FWC recently rejected a union claim for 10 days paid leave for victims of domestic violence. However the FWC agreed that all modern awards should contain some form of unpaid leave for victims of domestic violence. This will probably lead to additional unpaid leave for victims of domestic violence being inserted in modern awards, in addition to the existing entitlements to unpaid parental leave, community service leave and compassionate leave.
Importantly, the FWC rejected employer arguments that the parliament should be the only one adding additional leave requirements by amendments to the National Employment Standards (NES). The FWC confirmed that it can and will review and update award standards as required. Therefore, similar to annual leave rules, there will continue to be additional rules and leave entitlements for award covered employees on top of the NES leave provisions that apply to all employees.
Also the FWC recently rejected union claims for additional paid leave (for 2 hours x 4 times per year) for blood and bone marrow donors to be inserted into all modern awards. So this area of leave will remain covered by employer policies and/or enterprise agreements.
If you would like to discuss any of these issues, and how they may impact on your organisation, please contact Peter Wilson at email@example.com or (02) 9466 5022.