Insights & News

July 2, 2020

In a continuing uncertain environment, the Fair Work Commission’s (FWC) temporary variations to a number of modern awards sunsetted on 30 June 2020, but a lifeline has been extended, with the extension of the operation of a number of the temporary variations, with differing effects.

In the midst of the Commission’s efforts to provide employers and employees with temporary relief, planned changes to scope the Miscellaneous Award took effect from 1 July, with the effect that very few non-managerial/professional employees will be left without safety net modern award entitlements.

COVID-19 still warrants variations to award – FWC

In welcome news, the FWC has decided to extend the period of operation of the COVID-19 related variations to modern awards.

On 28 March this year, the FWC granted a joint application from employers and unions to vary the Clerks Award to help manage the challenges COVID-19 was placing on business and employees (read about the changes in our article here).

The FWC also granted similar variations to the Hospitality and Restaurant Industry Awards, the Vehicle Repair Award and a number of others. On its own motion, it varied a further 99 awards. The variations include an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay.

The temporary changes were due to end on 30 June 2020. However, the FWC has granted an application by parties to extend the application of the variations to between one and 12 months.

The FWC has extended the operation of the variations as follows:

No More Gaps – changes to the Miscellaneous Award effective 1 July

A Full Bench of the FWC, presided by Vice President Hatcher, recently confirmed its decision to vary the coverage of the Miscellaneous Award. The decision has wide ranging impacts for employers and employees, particularly those covered by industry awards that had confined classification descriptors.

The decision is effective from 1 July 2020.

What exactly has changed?

The key change is who is excluded from coverage of the Miscellaneous Award. Historically, it has not covered an employee whose employer was covered by an industry award, but who did not fall into one of the classification levels therein. The Commission has now removed this exclusion.

Who does the Miscellaneous Award now apply to?

The Miscellaneous Award covers employers in Australia and their employees who:

1. Fall into the classification levels in the award; and
2. Who are not covered by any other modern award.

It is designed to cover those employees who perform work that has traditionally been award covered but have somehow slipped through the cracks of award coverage.

However, the Miscellaneous Award does not cover:

• managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists;
• employees who perform work that is not of a similar nature to work that has traditionally been regulated by awards; or
• employees who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether Commonwealth or State awards).

Determining whether someone falls into these last two categories (Fair Work Act Exclusions) should be approached carefully. This is particularly so for low-paid employees performing lower-skilled manual work functions.

Who is the decision particularly relevant to?

The decision is most relevant for employers who employ people who are not managerial or professionals, but who consider those employees to be award free. It is possible those employees are covered by the Miscellaneous Award. For employers entering into bargaining, the extended application of the Miscellaneous Award may have implications on the assessment of the better off overall test for cohorts that have previously been assessed on the basis that they are award free.

To determine if an employee is covered by the Miscellaneous Award, you need to ask:

1. Does the employee work with a level of supervision and responsibility that means their position falls into the classification levels in the Miscellaneous Award?
2. Are they covered by any other modern award?
3. Are they managerial or professional employees?
4. Are they excluded from modern award coverage by the Fair Work Act Exclusions?

If the answer to the first question is ‘yes’, but ‘no’ to the remaining questions, then the position is now likely covered by the Miscellaneous Award. Answering the last question can be difficult and may require a detailed historical analysis of whether the work they perform has ever been regulated by awards.

Katie Sweatman
Partner
+61 3 9958 9605
katie.sweatman@kingstonreid.com

Peter Willink
Lawyer
+61 2 9169 8413
peter.willink@kingstonreid.com

June 24, 2020

COVID-19 has seen the Fair Work Act 2009 (Cth) (the Act) stand-down provisions being used like never before.

Historically, unpaid stand down has not been available in cases of business deterioration, raising questions about the capacity to stand employees down as a consequence of COVID-19 related impacts. The Fair Work Commission has now given some clarity to the application of these provisions, which will be of particular relevance to employers who do not have access to JobKeeper enabling directions.

Although the capacity to stand down employees without pay in response to the sudden impact of COVID-19 has been unclear so far, the Fair Work Commission (FWC) decision in Michael Marson v Coral Princess Cruises has provided some certainty to employers relying on these provisions under s 524 of the Act to survive commercial fallout.

This decision supports the position that extraordinary plunges in market demand may trigger the lawful stand down of employees because they cannot be usefully employed. The decision also offers some useful insights into what it means for an employee to be ‘usefully employed’.

Employers eligible for JobKeeper can issue JobKeeper enabling stand-down directions to eligible employees. The principles applicable to a s 524 stand down will have some application to aspects of such a stand down under the JobKeeper legislation; however, the critical distinction is that a complete stoppage of work is not necessary to invoke a stand-down direction.

Background to Michael Marson v Coral Princess Cruises

In March 2020, Coral Princess Cruises faced desperate commercial circumstances when government directives aimed at suppressing the spread of COVID-19 caused the cruise line’s business operations to be suspended. To mitigate mounting losses, Coral Princess Cruises stood down 107 employees without pay under s 524.

One employee, Mr Marson, notified the FWC, arguing that because certain day-to-day administrative functions remained, there was no stoppage of work requisite to invoke the stand down. Mr Marson also argued that he could still be usefully employed by carrying out small administrative tasks.

The FWC held that Mr Marson’s stand down was lawful, clarifying the availability of stand down as a mitigating action available to businesses in times of overwhelming economic catastrophe – a good outcome for employers.

When can you stand down an employee without pay

Under s 524(1) of the Act, an employer can stand down an employee if that employee cannot be usefully employed for prescribed reasons, including:

‘a stoppage of work for any cause for which the employer cannot reasonably be held responsible’.

To meet the requirements of the section, the stoppage of works must mean that the employee is temporarily unable to be usefully employed.

An employee will not be treated as being stood down pursuant to s 524 where they are taking authorised paid or unpaid leave (see s 525). The Federal Court recently clarified that a period of personal leave does not affect a period of stand down, as discussed in our Legal Insight here.

What constitutes a ‘stoppage of work’

Implementing a s 524 stand down requires a relevant stoppage of work.

As a reflection of the rapidly evolving law in this area, what constitutes a stoppage of work will be further considered by the Federal Court in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association.

In this case, the ALAEA is challenging the validity of the stand down of Qantas aircraft engineers on the basis of both:

1. whether there was a ‘stoppage of work’; and
2. whether the volume of work available justified the extent of the stand downs.

The key question for the Court in the Qantas case is whether there was a sufficient stoppage of work to trigger the stand-down provisions in the circumstances that a skeleton crew was able to continue work while the engineers were stood down.

In the Coral Princess Cruises case, the FWC confirmed that a total cessation of the employer’s trade or business constituted a ‘stoppage’ for these purposes.

Mr Marson’s argument that there had not been a ‘stoppage’ because he still had residual administrative tasks was not successful.

The FWC accepted Coral Princess Cruises’ argument that although administrative functions incidental to the business’ core activities remained, they did not go to the issue of whether the ‘work’ of the employer (carrying passengers) had ‘stopped’.

Therefore, any residual, maintenance, or administrative tasks still being done by a reduced workforce does not affect a ‘stoppage of work’ for the core workforce for the purposes of s 524(1)(c).

When is an employee not ‘usefully employed’

The other key element of a s 524 stand down is the need to establish that the employee cannot be usefully employed because of the stoppage of work.

The employee’s capacity to be usefully employed must be considered in relation to their work role, not the employee themselves. Once performance of an employee’s role no longer generates a ‘net benefit’ to the business, it may mean there is no useful employment for the employee for the relevant period.

Where there is not the volume of work available to keep an employee ‘usefully employed’, the employer is not required to create alternative work.

In this case, the FWC has maintained the position that s 524 requires that in order to rely on the provision, there must be a substantiated causal link between the stoppage of work and the circumstance where the employee cannot be usefully employed.

Accordingly, if there are other factors that mean that an employee cannot attend work (for example, if the employee is suspended due to alleged misconduct) this may not be treated as a stand down.

If an employee cannot be usefully employed for a prolonged period, a redundancy situation may arise.

Fairness and Good Faith Requirement

The FWC stressed that a decision as to whether an employee is ‘useful’ must be made with fairness and in good faith.

However, as pointed out by the FWC, while a crisis is still unfolding it is rarely possible to know all the facts, deliberate on those facts, and act upon them in a reasoned way.

Therefore, when considering if an employer has acted with fairness and in good faith, their actions will be considered broadly and not compared to the standard available with hindsight.

This decision is relevant to employers considering whether a stand down may be the answer to safeguarding their business’ financial position while preserving as much of the employment relationship with employees as possible.

For employers eligible for JobKeeper

For eligible employers, an alternative to invoking s 524 is to issue a JobKeeper enabling stand-down direction. Unlike a stand down under s 524, the JobKeeper provisions do not require a stoppage of work.

However, JobKeeper enabling stand-down directions are only exercisable in respect of employees receiving JobKeeper payments.

A JobKeeper enabling stand down may be exercised to direct employees:

1. not to work on one or more days that they usually work; or
2. to work:
   1. for a shorter period than usual; or
   2. less hours overall than usual.

Given the greater flexibility under a JobKeeper enabled stand down, eligible employers may wish to consider standing employees back up from any s 524 direction, and then issuing a JobKeeper enabled stand down for all or part of their hours of work.

Kingston Reid can guide employers through this process.

Key Takeaways

Stand down is intended to be a last resort to ease financial pressure on employers while enabling both employer and employees to preserve the employment relationship.

The making of a stand-down direction, under either s 524 or the JobKeeper provisions, is not without a degree of legal risk, but the evolving interpretation of these provisions will give some comfort and clarity to employers forced to stand down large parts of their workforces.

The FWC decision does serve as a useful reminder of the need to consider carefully whether an employee can perform useful work, and this consideration should be undertaken on an ongoing basis.

Even if the Federal Court reaches a similar view to the FWC in the Qantas proceedings, it is likely that stand downs that extend for a prolonged time will be scrutinised, and pressure placed on employers to stand employees back up at the earliest opportunity.

Katie Sweatman
Special Counsel
+61 3 9958 9605
katie.sweatman@kingstonreid.com

Aimee Ford
Lawyer
+61 3 9958 9610
aimee.ford@kingstonreid.com

June 22, 2020

In the midst of robust discussions about the potential reform of Australia’s industrial relations system, late on 16 June, the Victorian Parliament passed the Wage Theft Bill 2020.

Upon commencement on a date to be proclaimed or else from 1 July 2021, the wage theft laws will make it a criminal offence, punishable by fines of up to $198,264 for individuals, $991,320 for companies, or up to 10 years’ imprisonment, to dishonestly withhold employee entitlements, dishonestly falsify an employee’s employment records or dishonestly fail to keep employee entitlement records.

The wage theft laws have noble aims, but their critical deficiency is that they are disconnected from the regulation and enforcement system they are intended to supplement. With limited exceptions around long service leave, child employment and other discrete areas of employment law, our minimum employment entitlements are derived from Federal, not State, law.

This creates two critical questions: one, whether the laws have constitutional validity and, two, whether they are reasonably capable of achieving their aims.

In 1996, Victoria referred the bulk of its industrial relations powers to the Commonwealth Government. Put very simply, this gave the Commonwealth Government its power to legislate the Fair Work Act 2009 and predecessor workplace laws to cover Victorian employers and employees, the Fair Work Ombudsman the power to regulate those laws, and the Fair Work Commission, Federal Circuit Court and Federal Court the jurisdiction to enforce those laws.

To keep things neat, the Australian Constitution provides that, to the extent of any inconsistency, a law of the Commonwealth will prevail over a law of the State. So, while the States do have power to make laws about criminal matters, the Commonwealth has power to make laws about the regulation and enforcement of workplace matters. A live question accordingly arises as to whether the Victorian wage theft laws have constitutional validity, particularly if the Commonwealth creates its own wage theft laws, as has been mooted by the Industrial Relations Minister, Christian Porter.

More fundamentally, the wage theft laws do nothing to make it easier for employers to understand and comply with their minimum wages obligations. The wage theft laws also do nothing to support the Fair Work Ombudsman to regulate employer compliance with their minimum wages obligations.

To the extent that there are flaws in our workplace relations system around the enforcement of minimum wage and employee recordkeeping laws, the proper mechanism for dealing with this is under Commonwealth law. The neighbour’s guard dog might create some level of dissuasion for burglars scoping out your property, but it will ultimately not remedy the gaps in your own security perimeter.

For Victorian employers considering how the wage theft laws will affect them, the Victorian Government has been clear that employers who make honest mistakes or who exercise due diligence in paying wages and other employee entitlements will not be subject to the legislation.

Notwithstanding that the concept of “wage theft” has largely emerged out of a run of high-profile self-reports of wages non-compliance in big business arising from payroll system problems, these big business errors will not be the primary focus of the new Wage Inspectorate’s attention.

The wage theft laws will however elevate the existing risk for small businesses utilising a level of “cashie” labour, and it is foreseeable that small businesses without dedicated human resources and payroll staff will be disproportionately exposed to the wage theft laws, with a line to be defined between an incompetent failure to make and amend employee records and a dishonest failure to make and amend employee records.

In the absence of a simplified workplace regulatory system and enhanced education around wages obligations, the threat of throwing small business owners behind bars only creates anxiety for those trying to do the right thing, and incentivises others to do a better job of hiding their books.

It will accordingly remain to be seen whether the laws will turn out to be more bite or more bark.

Katie Sweatman
Special Counsel
+61 3 9958 9605
katie.sweatman@kingstonreid.com

June 19, 2020

National Minimum Wage increased by 1.75% from 1 July 2020.

On Friday 19 June 2020 the Fair Work Commission handed down the Annual Wage Review 2019–20 decision.

Key Feature of the Decision

• The National Minimum Wage has been increased by 1.75% to $753.80 per week, or $19.84 per hour. The minimum wage increase will take effect from the first full pay period on or after 1 July 2020.
• Modern Award minimum rates of pay will also increase by 1.75%. Modern Award increases will have staggered operational times:
  

  Award Group	Operative Date
  Group 1	1 July 2020
  Group 2	1 November 2020
  Group 3	1 February 2021

  See below for a list of the Modern Awards in each group. 

What this means for businesses

Businesses that pay employees in line with the National Minimum Wage need to make sure that employees are paid in accordance with the new minimum rates from the first full pay period on or after 1 July 2020.

Business that pay employees in line with Modern Awards need to make sure that employees are paid in accordance with the new minimum rates from the first full pay period on or after the operative day for the relevant Modern Award.

For enterprise agreement covered employees, business must ensure that the base rates in the enterprise agreement will not fall below the new base rates in the relevant Modern Award or the National Minimum Wage.

Minimum Wage Award Groupings

Emily Baxter
Senior Associate
+61 2 9169 8411
emily.baxter@kingstonreid.com

June 15, 2020

Recent legislative and case law developments have put the spotlight back on the now real consequences of failing to address known and foreseeable risks in the workplace. Whilst lots of attention has been placed on mitigating COVID-19 risks, workplaces need to make sure they don’t neglect other risks which can lead to significant consequences for their organisations and decision makers.

In this Insight, we look at one recent case and legislative amendments which will mean that businesses will need to be proactive and methodical in identifying and addressing risks to avoid prosecution and the wider implications that come with that.

First Industrial Manslaughter Conviction – Brisbane Auto Recycling decision

On 11 June 2020, sentences were recorded against Brisbane Auto Recycling Pty Ltd (Brisbane Auto), and two of its directors, for an incident at the workplace resulting in the death of an employee. Brisbane Auto was an auto wrecking business in Rocklea, Queensland. The employee was struck by a reversing forklift whose operator was not licensed. The directors supervised the work activities at the workplace.

Following the incident, one director told a treating paramedic that the employee had fallen from a truck. Eight days later, on 25 May 2019, the employee died from the injuries he had sustained. The incident was captured on CCTV.

Brisbane Auto was charged with the offence of industrial manslaughter under section 34C of the Work Health and Safety Act 2011 (Qld) (WHS Act). The two directors were not charged with industrial manslaughter but rather category 1 breaches of the officers’ duty of due diligence.

All three defendants pleaded guilty at an early stage.

The maximum penalty in Queensland for an offence of industrial manslaughter committed by a body corporate is a $10 million fine. The maximum penalty for a category 1 offence by an officer is a $600,000 fine or 5 years imprisonment.

The Court imposed the following sentences:

1. Brisbane Auto – Conviction recorded and a $3 million fine
2. The directors – Convictions recorded and both sentenced to 10 months imprisonment, wholly suspended for an operational period of 20 months.

The Court noted that there were no safety systems in place at Brisbane Auto and the defendants knew of the potential consequences of the risk, which ultimately was catastrophic. There were steps available that could have been easily taken to lessen, minimise or remove the risk. These included a proper risk assessment of the task, measures to control the interaction between mobile plant and the workers, and proper supervision of the work. These steps were available but not taken.

The directors received suspended sentences in large part because of the risk of their deportation and the role they had as financial supporters of their respective families.

Workplace Manslaughter laws to commence in Victoria on 1 July 2020

Victorian businesses and officers will need to take notice of the Queensland decision as workplace manslaughter laws will commence in Victoria from 1 July 2020.

Under those provisions, the following persons can be found guilty of a workplace manslaughter offence:

1. Any person (other than an employee or volunteer) who owes a duty under Part 3 of the OHS Act. This means that any employer (whether incorporated or unincorporated) can be charged with workplace manslaughter.
2. An officer of a body corporate, unincorporated body, unincorporated association or partnership.

The offence is one of negligence (not recklessness) and requires the relevant persons to have a duty, and breach that duty which results in the death of a person.

When first enacted, the provisions provided for maximum penalties of a $16.5 million fine for a body corporate and up to 20 years imprisonment for an individual. However, in late May, the legislation was amended to increase the maximum penalty for individuals from 20 years to 25 years imprisonment.

Amendments to NSW WHS Act

Unlike Queensland and Victoria, NSW is not introducing industrial manslaughter provisions into its WHS legislation. Rather, the NSW Work Health and Safety Amendment (Review) Bill 2020 has been passed by parliament which clarifies that an offence of industrial manslaughter can be commenced under the Crimes Act.

The amendments also introduce the following changes:

• Increasing WHS fines. For example, the maximum fine for a category 1 WHS breach will jump from $3 million to $3,463,000. Maximum fines for category 2 and category 3 contraventions will go from $1.5 million to $1,731,500, and from $500,000 to $577,000, respectively,
• Making it easier to secure category 1 convictions (by expanding that category to include ‘gross negligence’ in addition to recklessness),
• Creating a new WHS offence relating to entering into, providing or benefiting from insurance and/or indemnity arrangements for the payment of WHS penalties, and
• Allowing inspectors to exercise their entry powers under s171 of the WHS Act for a period of 30 days.

The debate continues in WA

The Western Australian Parliament continues to debate the Work Health and Safety Bill 2019 which passed the Legislative Assembly (Lower House) on 20 February 2020.

Importantly, the Bill includes two separate offences for industrial manslaughter:

1. Industrial manslaughter – crime
   This provision contains the highest penalties for a work health safety offence with:
   •  an individual exposed to imprisonment for 20 years and a fine of $5,000,000; and
   •  a body corporate exposed to a fine of $10,000,000
2. Industrial manslaughter – simple offence
   This provision contains penalties for a work health safety offence with:
   •  an individual exposed to imprisonment for 10 years and a fine of $2,500,000; and
   •  a body corporate exposed to a fine of $5,000,000

What does the Queensland case and these legislative changes mean?

The Queensland decision and the amendments in Victoria and NSW (and the introduction of industrial manslaughter offences more generally in a number of jurisdictions), highlights the importance of organisations and their officers carefully scrutinising the adequacy of their existing safety management systems, reviewing those systems on a regular basis and ensuring that deficiencies are rectified as quickly as possible.

These developments also demonstrate that there are various options available to safety regulators to prosecute corporate officers for negligent or reckless conduct, including where it cannot be proved that an officer’s conduct caused a workplace death.

If you would like to discuss how these developments impact upon your business please do not hesitate to contact our team.

John Makris
Partner
+61 2 9169 8407
john.makris@kingstonreid.com

Michael Stutley
Partner
+61 8 6381 7060
michael.stutley@kingstonreid.com

Dominic Fleeton
Special Counsel
+61 3 9958 9616
dominic.fleeton@kingstonreid.com

Erica Elliott
Special Counsel
+61 2 9169 8409
erica.elliott@kingstonreid.com

Sevasti Xanthos
Lawyer
+61 3 9958 9609
sevasti.xanthos@kingstonreid.com

Kathleen Weston
Lawyer
+61 2 9169 8415
kathleen.weston@kingstonreid.com

May 27, 2020

Yesterday’s announcement by the Prime Minister brings the opportunity for industrial relations in Australia to change for the better as the nation rebuilds from the economic damage caused by COVID-19.

It appears that the Government is not aiming for the type of “business or unions first” reform that last caused difficulties for the Howard government over 10 years ago but rather a consensus approach not seen since the early days of the Accord more than 35 years ago.

The Prime Minister has announced that Industrial Relations Minister, Christian Porter will chair 5 working groups made up of business and union representatives in the following areas between now and the release of the October Budget (Due on 6 October 2020).

The working groups will cover the following areas, and the Prime Minister’s comments or rationale is noted too, for context:

1. Award simplification – As this is what small and medium sized businesses deal with “every single day”.
2. Enterprise agreement making – “We’ve got to get back to basics”.
3. Casuals and fixed term employees – Apparently “made even more prescient by recent changes through the Fair Work Commission”.
4. Compliance and enforcement – Since “People should be paid properly. And unions need to, obviously, do the right thing. As must employers.”
5. Greenfield agreements for new enterprises – As this is “where the new investment will go and the certainty is needed more so than ever”.

Apart from confirming the involvement of business and unions in the working groups, the Prime Minister has confirmed his government will pause its pursuit of new laws which would have allowed courts to deregister rogue unions and officials.

This looks to be a concession aimed at building on the goodwill that the Government has built with unions in the response to the economic challenges of COVID-19.

This process is being described as similar to the Accord but this is not simply about wages; dealing with business concern with overregulation and red tape is covered in the “Award simplification” and “Enterprise agreement making” working groups but this is balanced against a working group dealing with the protection of employee rights through “Compliance and enforcement”.

Employers, industry groups and employee representatives will be invited to join each group, as well as individuals chosen based on their demonstrated experience and expertise. This will include “especially small businesses, rural and regional operators, multicultural communities, women, families”.

The purpose of the working groups is to attempt to reach consensus on industrial relations reform.

The process will be “time bound” and the PM has indicated that the process will move quickly, noting “It will become apparent very quickly if progress is to be made. The working groups will either reach something approaching a consensus on issues, or they won’t.”

Kingston Reid will contribute to the public debate that accompanies the discussions and policy responses that the working groups may develop.

What should you do?

1. Give careful consideration to how your voice is heard during the debate. Will you contribute? If you contribute, will it be through direct comment or via an industry association or other representative?
2. Think about the areas to be covered by the working groups are relevant to your business?
3. Keep up to date with reform proposals so that you can build the potential for change into your long term planning.

Although it is the very early stages, we see the potential value in this process for you and the Australian Economy.

Duncan Fletcher
Partner
+61 8 6381 7050
duncan.fletcher@kingstonreid.com

May 22, 2020

If you’ve been holding your breath for the double-dipping precedent set by WorkPac v Skene[1] to be overturned, unfortunately your wait isn’t over.

On Wednesday, the Federal Court in WorkPac Pty Ltd v Rossato[2] confirmed that Rossato, who had been employed as a ‘casual’ by WorkPac, was entitled to paid annual, personal/carer’s and compassionate leave, plus payments for public holidays.

The Court rejected the employer’s claim that they could off-set these entitlements via a higher hourly rate, stating that “where the purpose of a payment is not to provide the entitlement in the terms required but to provide a substitute, there will not be a “close correlation” between that purpose and the entitlement”.[3]

Significantly, WorkPac’s bid for restitution of the casual loading paid to the employee was also rejected.

Background

The Rossato decision upholds the precedent set by WorkPac v Skene in 2018, where a casual miner who had regular and predictable shifts was found to be entitled to permanent employee benefits.

Controversially, WorkPac chose to run Rossato using a different employee with a different Full Court, rather than appeal WorkPac v Skene to the High Court.

In Rossato the employee was classed by WorkPac as a ‘casual’ but had been engaged under six consecutive contracts for a period of four years.

WorkPac’s primary case this time round was that, unlike in Skene, because Mr Rossato’s written contract had no firm advance commitment regarding days or hours, he was a casual employee.

“Permanent casuals” can’t exist; employers can’t seek restitution

WorkPac’s primary case was rejected.

Instead, the Court found that WorkPac and Rossato “had agreed on employment of indefinite duration which was stable, regular and predictable such that the postulated firm advance commitment was evident in each of his six contracts”.

Under each contract, Rossato was ‘other than a casual employee’ for the purposes of the Fair Work Act and not a casual FTM (Field Team Member) under the 2012 WorkPac EA. This meant that Mr Rossato became entitled to payments of annual, personal/carer’s and compassionate leave and payment for public holidays.

Significantly, the Court also held that WorkPac was not entitled to recover any amount from Mr Rossato as restitution of the casual loading paid to Mr Rossato in a bid to off-set any liabilities.

Can the decision in Rossato be distinguished from other casual engagements?

We think so.

Mr Roassato’s employment was covered by an Enterprise Agreement as well as six consecutive common law contracts. The Court looked at the interaction of respective contracts with the Enterprise Agreement(s) and held that the Enterprise Agreement(s) did not provide for the payment of a casual loading in lieu of annual leave entitlements and personal leave entitlements. In addition, the underpinning award to the Enterprise Agreement was an award that did not provide for casual employment.

Mr Rossato and the CFMMEU also disputed WorkPac’s claim that it had paid Mr Rossato a causal loading of 25%. White J agreed with this proposition in respect of each of the fourth, fifth and sixth contracts, on the basis that those contracts did not contain an independent express term that a casual loading was to be paid in substitution of leave or public holidays.

However when assessing whether WorkPac could successfully say it had ‘set off’ the entitlement to paid leave by paying a higher rate under the first, second and third contracts, the Court still found there was no entitlement to set off portions of the casual loading paid to Mr Rossato.

But didn’t the Government amend the FW Regulations to enable employers to offset certain amounts?

It did. You will recall that in December 2018, regulation 2.03A was introduced and WorkPac sought to rely on this regulation. Importantly, the regulation applies if:

1. a person is employed by an employer on the basis that the person is a casual employee; and
2. the employer pays the person an amount (the loading amount) that is clearly identifiable as an amount paid to compensate the person for not having one or more relevant NES entitlements during a period (the employment period); and
3. during all or some of the employment period, the person was in fact an employee other than a casual employee for the purposes of the National Employment Standards; and
4. the person makes a claim to be paid an amount in lieu of one or more of the relevant NES entitlements. (our emphasis)

However none of Mr Rossato’s claims were for ‘an amount in lieu of’ an NES entitlement.

Rather Mr Rossato sought payments of the entitlements (namely annual leave for the entire period of his employment, personal and paid compassionate leave for leave he took but did not receive payment and public holidays in which he was rostered off over the period of employment). On this basis, the Court rejected WorkPac’s set off claim.

Takeaway for Employers

So where does this leave employers?

The situation remains unchanged from Skene in the sense that the critical issue is the characterisation of the ‘casual’ employment. Ask yourself, are your casual employment arrangements ‘stable, regular or predictable’ and is there an indefinite period of engagement or advance commitment?

The decision in Rossato does however present further concerns for those employers who do or have had ‘permanent casuals’ on their books and this decision will also have a critical impact on several pending class actions. Whilst each case will stand and fall on its own facts, the decision of the Court not to accept WorkPac’s offset argument is significant.

Allowing casuals to effectively “double-dip” through accessing both leave entitlements and hourly casual loadings, without entitling businesses to restitution, could have significant financial and logistical impacts on employers, especially in the context of COVID-19.

What is abundantly clear is that legislative change will be needed if Regulation 2.03A is going to have any practical work to do moving forward.

Whilst there are (many) calls for legislative intervention, the fact remains that employers need to deal with the practical issues arising from the decisions now.

Some initial steps to be taken by businesses responding to these decisions could include:

• reviewing all existing casual employees and considering converting those who work on a regular, ongoing basis with an advance commitment to more work;
• considering the interaction of any common law contract with an underlying industrial instrument, including any applicable enterprise agreement;
• ensuring casual employees are engaged from now in a manner that is irregular, uncertain, intermittent and unpredictable; and
• implementing a framework that allows you to monitor the nature of your casual employees.

Should you be worried about your exposure, or how to implement the above, please feel free to reach out to us here at Kingston Reid to discuss.

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com

Kathleen Weston
Lawyer
+61 2 9169 8415
kathleen.weston@kingstonreid.com

[1] [2018] FCAFC 131.
[2] [2020] FCAFC 84.
[3] Rossato, [231].

May 19, 2020

Intuitively it makes sense that you can’t access paid personal leave if you aren’t at work in the first place. This common sense principle was affirmed on Monday by the Federal Court as it sided with Qantas in a dispute over the payment of entitlements to employees stood down due to COVID-19 restrictions.

The Court made it clear that the purpose of the entitlement to personal/carers’ and compassionate leave is to relieve employees from the work they were otherwise required to perform. That is, you get paid when you are too sick to come to work. Where employees have been stood down due to COVID-19, there is no work. Thus, “if there is no work available to be performed by the employee, there is no income and no protection against that which has not been lost.”[1]

Background

In mid-March this year Qantas announced its intention to temporarily stand down approximately two-thirds of its employees, a total of around 20,000 workers. A number of Unions, on behalf of those Qantas employees, claimed that stood down workers were entitled to access paid personal, carer’s or compassionate leave during their period of stand down.

Qantas denied that it owed stood down employees these entitlements.

While the proceedings also dealt with certain entitlements under Qantas enterprise agreements, the relevance of the case for all employers is what the Court said about the provisions of the Fair Work Act (the Act) and the National Employment Standards.

No work, no income, no protection

If asked the question without looking at the provisions of the Act, most people would assume that where there is no work and an employee is stood down, it would be incongruous for that employee to be paid because they were sick or had to care for a family member. However, the words of the Act do not state this logical conclusion expressly.

The Court’s decision was that logic prevails following from:

• the terms of ss 97, 105, 524 and 525 of the Fair Work Act;
• an understanding of the object and purpose sought to be achieved by the power to stand down employees; and
• a proper understanding of the object and purpose of the leave entitlements in issue in the present proceeding.[2]

Central to the analysis of the above was the idea of personal, carer’s and compassionate leave as a form of ‘income protection’.

In circumstances where an employee is lawfully stood down, and there is no work which the employee can perform and thus receive an income for, an employee is not entitled to access these ‘income protection’ leave entitlements.

Should employees have been able to access sick leave and other related entitlements whilst lawfully stood down because there was no work, this would “go against the very object and purpose of conferring those entitlements – namely an entitlement to be relieved from the work which the employee was otherwise required to perform”.[3]

The Court also emphasized that the stand-down power itself served two important purposes; offering businesses financial relief and protecting workers from termination. Making employers pay these entitlements after standing down employees would defeat the principal purpose, being “namely, to protect the employer against such claims”.[4]

Takeaway for Employers

If you have had to stand down employees as a consequence of COVID-19 restrictions, and have done so lawfully, those employees do not have a right to access paid personal, carer’s or compassionate leave during their stand down period.

However, keep in mind that stood down employees can access other entitlements, such as annual leave, long service leave and government assistance like JobKeeper payments.

The unions involved have foreshadowed an appeal so employers should keep an eye on this space.

If this alert has raised any concerns for you in relation to stand downs and leave or other entitlements, please feel free to contact us here at Kingston Reid to discuss.

Alice DeBoos
Partner
+61 2 9169 8444
alice.deboos@kingstonreid.com

Kathleen Weston
Lawyer
+61 2 9169 8415
kathleen.weston@kingstonreid.com

[1] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited [2020] FCA 656, [35] (Qantas Decision).
[2] Ibid, [10].
[3] Ibid, [35].
[4] Ibid.

May 6, 2020

Signs are encouraging that our communities will slowly start to return to normal. Students are returning to schools, the Premier has encouraged business to “have a go” at reopening their doors provided adequate safety measures are in place, more people are downloading the COVIDSafe app and encouragingly the curve continues to flatten. In this context, it is likely that within a few weeks, employees will be encouraged to return to the workplace.

It was impressive to see how quickly and effectively NSW government sector employees were able to transition to a largely remote workforce where required (acknowledging of course that many continued to work as normal).  It is evident that there are both the resources and processes in place to facilitate a productive and engaged workforce working from home.  Whilst feelings will no doubt be mixed; it is inevitable that for a lengthy period there will be a portion of the workforce who will remain working from home; even if it is for just a portion of the week.

Flexible work has long been available to all NSW government sector employees.  Given the evidence that is now available to employees to support an argument that flexible work is successful on a large scale, agencies and departments should now start thinking about the circumstances in which flexible work is not desirable and instead when you need employees to be physically present in the workplace.  The preparations that you make now will make the return of your employees easier to manage.  It will also assist you to identify which roles will have greater restrictions in terms of flexible work and to explain why some requests for ongoing flexible work cannot be accommodated.

Of course, maintaining social distancing and hygiene measures will be paramount to any successful return to work planning. COVID-19 safe workplaces will require significant changes for the many thousands of public sector employees who hot desk or work in open plan environments.  These, at least for a time, will require adjustments as hot desking becomes a thing of the past.

What questions do you need to answer?

1. What work is best done in the office?

The recent period will have given you a clear indication of work which is simply more difficult to manage and complete from home.  It may be work that is more difficult for a team to complete when they all work remotely, or work that requires access to resources that are not available from home.

Identifying the work that is best performed in the office will enable you to identify which roles will require less flexibility moving forward.

2. When is it preferable to have a team working in person, and why?

No doubt in the last month, you have experienced the challenges that can arise when an entire team is remotely located.  Identifying and specifying that work which requires a team to work face to face either all or some of the time, will enable you to justify why certain teams may have less flexibility than others.

3. What works from home?

In the same way that you have been able to identify which work is not done as effectively from home, you will also have been able to identify work which can be done efficiently and effectively at home. Employees who perform that work, and who request ongoing flexibility should be more easily accommodated.

4. When does working from home cause a major disruption to the flow or completion of work?

It is important to identify those projects or other pieces of work that will be impacted if those people working on them are working from home. Those employees working on these projects, or pieces of work, may have less flexibility than others.

5. How does the physical office environment impact on the above?

Employees who previously hot desked or who work in open plan offices will be anxious to return where there is inadequate consideration of the physical environment and hygiene measures. A natural barrier to full integration, open plan layouts will require proactive planning around staggered working days and start times. Clear communication regarding expectations will be key.  The removal of hot desks, greater distancing and staggered starts will be the norm.

6. What about collaboration and team dynamics?

Separate from the details of specific tasks and operational requirements, a big factor in requiring physical presence is the need for employees to collaborate, supervise, coach, learn, interact and relate to one another in a physical environment. While this can be done remotely, it is often a poor substitute for a physical working environment and this should not be discounted. This is particularly important for very junior roles and those in supervisory or managerial positions.

How do you manage flexible work by a larger portion of your team on an ongoing basis?

As it is likely that there will be an increase in the number of employees working from home, it will be more difficult to maintain cohesiveness and inclusion once the workforce is split.  You will need to implement practices to:

1. Mitigate against isolation.
2. Ensure work is allocated in a fair and equal manner.
3. Ensure work and performance requirements are clear and demonstrable.
4. Address issues quickly when they arise.
5. Ensure that you can properly manage your employee’s performance as well as them meeting deadlines and achieving outcomes.

Remember there are steps you can take to require employees to perform their functions from the workplace.  It is preferable however to consult directly with your employees to resolve issues and questions that arise.

What safety issues do you need to consider?

Of course, the issues identified above raise a number of health and safety issues employers will need to consider when returning workers back into the workplace. We have identified a number of these issues in our article “Are you COVID-19 ready to get back to your workplace?”. These include:

• Have you identified the physical and psychological risks of your returning workplace arrangements, and what specific controls do you need to implement to address those risks?
• How will you consult with your workforce about the proposed arrangements including those workers who will continue to work from home?
• What hygiene and distancing measures do you need to implement to reduce the COVID-19 risks and are compliant with WHS legislation (including applying the hierarchy of controls)?

It will be crucial that you remain up to date with Federal and State health authority updates and information from Safe Work Australia’s COVID-19 Information for Workplaces pages to meet your health and safety obligations.

COVID-19 has given both departments and agencies the chance to lead the way in properly assessing how to make the most of working from home.  Whilst there will be employees who are happy to return to the office as soon as possible, there will be others who want to continue to work from home. It is important that whatever model you implement works for your team, your department or agency and you. Giving consideration to these factors now will assist both with returning your employees to the workplace and managing an increased remote workforce, both now and in the future.

Lucy Shanahan
Partner
+61 2 9169 8405
lucy.shanahan@kingstonreid.com

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com

John Makris
Partner
+61 2 9169 8407
john.makris@kingstonreid.com