Download WIS Newsletter No. 4 of 2012 - Walk Industrial Services Pty Ltd

WALK INDUSTRIAL
SERVICES PTY LTD
NEWSLETTER N0. 4 of 2012
Address: PO Box 5453, Alexandra Hills QLD 4161
Mobile: 0431 882 549
Phone / Facsimile: (07) 3824 1363
Email: [email protected]
Website: www.walkindustrialservices.com
Facebook: kenneth.law.96592
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WIS encourages employers to review
and consider their obligations,
employment terms and conditions,
policies, procedures and practices to
ensure an industrially successful year.
The Meaning of Continuous Service
Fair Work Australia (FWA) has
rejected on appeal by WorkPac Pty Ltd
and employer groups arguments that
workers compensation absences should
not count as continuous service
towards the six-month qualifying
period for protection from unfair
dismissal.
A Fair Work Australia Full Bench
comprising of Justice Ross, Deputy
President Sams and Commissioner
Booth on 31 May 2012 delivered its
decision in the appeal by a labour hire
company WorkPac Pty Ltd with
employer peak bodies intervening
against a decision of Fair Work
Australia Commissioner Macdonald
that a period on workers compensation
counted toward the six-month
qualifying period for protection from
unfair dismissal.
The Full Bench ruled that because the
injured worker was receiving workers
compensation payments “pursuant to a
legal obligation upon the employer”
the employee [Mr. Bambach] was not
taking an unpaid authorized absence
and as a result, his employment was
continuous for the purpose of
calculating the qualifying period.
The Full Bench observed that the word
unpaid” presents insurmountable
problem for the appellant in this case.
The period during which Mr.
Bambach’s absence was absent was
due to his work related injury and was
not “unpaid”..the fact that [workers’
compensation] payments were made
pursuant to a legal obligation upon the
employer is the critical consideration.
The Tribunal concluded that an
“absence on workers compensation is
not an excluded period with the
meaning of the Fair Work Act 2009.
In doing so the Full bench rejected a
number of submissions advanced by
the appellant and intervening parties
including implications such as the
calculating of entitlements for
superannuation and should the
Commissioner’s decision be allowed to
stand, employers would be reluctant to
continue to employ long-term injured
workers and gives employers a
significant disincentive to continue to
employ workers who are absent from
work for extended periods as a result
of workplace injuries is inconsistent
with the objects of the Act and is not
sensible.
The Full Bench also rejected the
argument that employers would not be
able to assess the capacity and conduct
of a new employee if their period of
absence counted as continuous service
for the purposes of the unfair dismissal
qualifying period.
The Full Bench said this would depend
on the length of the absence and
whether the employee could return on
modified duties until fully fit.
Employee absences while on jury
service or community service activities
counted towards the minimum
employment period, the bench ruled,
yet both do not allow the employer to
assess the capacity and conduct of the
employee.
Contrary to the appellant’s submission,
the fact that WorkPac chose to insure
against such liabilities, and hence the
payments were actually made by
WorkPac’s insurer, is irrelevant.
The Construction Forestry Mining
Engineering Union, who ran the
original case and defended the appeal
for the employee, said the union
welcomed this good common sense
decision. They said the decision is
important because the employers said
there has been confusion and that some
employers had not recognized this
right in the past.
This should now mean that workers on
workers compensation have this
benefit flow naturally to them.
The meaning of the term “continuous
service” is critical in determining
entitlements when an employee is on a
wide range of different types of leave
and when absent from work in a wide
range of different circumstances. These
are issues of relevance to all employers
and all employees.
*Bambach v WorkPac Pty Ltd [2012] FWA 670
(9 March 2012), &
WorkPac Pty Ltd v M Bamback [2012] FWAFB
3206 (31 May 2012)
FACTS & FIGURES:
CHILDCARE – Number of people
employed in childcare – Nationally
107,000 Queensland 26,000.
By 1 January 2014, every childcare
worker in Australia must have, as a
minimum, a Certificate III
qualification. Half the staff must have
at least a TAFE child-care diploma.
There has been an increase the number
of Certificate III places at education
bodies as these courses have now
attracted government funding. This has
increased the number of Certificate III
candidates in the market.
Source: Hays Salary
Productivity v Fair Work Act 2009
Productivity growth over the past
decade has been “disappointing”, but
cannot be blamed on the Fair Work
Act, according to a review of the
industrial relations regime released in
June 2012
In a rebuttal to business leaders who
have in recent months clamoured for
changes to the laws, the review found
the industrial relations framework had
no negative impact on productivity.
The review stated that productivity
growth was a key concern in drafting
its recommendations.
The panel made several suggestions to
this end, including having the
institutions created by the Fair Work
Act take a greater role in encouraging
productive workplaces. Their
suggestions included:
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promotion of best practice
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developing model productivity
clauses for awards and
agreements
and sponsoring training
workshops for employers and
employees on how to enhance
workplace productivity.
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Permitted deductions
An employer is allowed to make a
deduction from an employee’s pay if:
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the employee agreed in writing
and the deduction is principally
for the employee’s benefit, or
the employee authorised the
deduction in accordance with
an enterprise agreement, or
the deduction is authorised by
or under a modern award, a
pre-modern award (federal
award, NAPSA, or transitional
award), or an order of Fair
Work Australia, or
the deduction is authorised by
or under a Commonwealth,
State or Territory law or an
order of a court.
Generally speaking, even if the
deduction is authorised by an
enterprise agreement or award as set
out above, an employer cannot make a
deduction from someone’s pay if:
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the deduction is for the benefit
of the employer or someone
related to the employer and is
unreasonable in the
circumstances, or
the employee is under 18 years
of age and their guardian or
parent hasn't authorised the
deduction in writing.
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Use of individual
flexibility arrangements
Flexible work practices can deliver
benefits to both employers and
employees. Individual flexibility
arrangements can lead to greater job
satisfaction and help attract and retain
skilled and valuable staff. Flexibility in
the workplace can also improve
workplace productivity and efficiency
by helping maintain a motivated
workforce with reduced staff turnover
and absenteeism.
Protection from termination
An employee can’t be fired because
they have taken leave or because they
have the right to take leave. This is
called a breach of ‘general
protections’. To find out more about
General Protections please contact
Kenneth Law as above.
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Sick, carer’s and
compassionate leave
Employees can take leave if they’re
sick, have to care for a family or
household member or when a family or
household member has a lifethreatening illness or passes away.
Under the National Employment
Standards, full-time and part-time
employees get paid personal, carer’s
and compassionate leave. Casuals can
also take certain types of unpaid leave.
Sick & carers leave
If a full-time or part-time employee is
sick, they need to be paid personal
leave (sick leave) as long as they have
enough leave and they have given
notice and evidence (if required). If
they need to look after a family or
household member who is sick, they
could also be entitled to paid carer's
leave .
All employees are also entitled to 2
days unpaid carer’s leave.This applies
to casual employees and to full-time
and part-time employees who don’t
have any personal leave left.
Compassionate leave is not part of this
balance - it is a separate entitlement.
Compassionate leave
Employees can take compassionate
leave when an immediate family or
household member has a lifethreatening illness or injury or passes
away. Compassionate leave doesn’t
come out of an employee’s personal
leave balance - it is a separate
entitlement of 2 days each time it is
needed. Full-time and part-time
employees are entitled to paid
compassionate leave. For casuals, this
leave is unpaid.
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What is an apprenticeship
or traineeship?
An apprenticeship or traineeship is a
formal training arrangement between
an employer and an employee.
registered and recognised by the
relevant state or territory training
authority or done under a relevant law.
The state and territory training
authorities determine which
qualifications are apprenticeships and
which are traineeships in each state or
territory.
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National Employment
Standards (NES)
The National Employment Standards are a
safety net of 10 minimum entitlements for
employees in the national workplace
relations system. They are part of the Fair
Work system that began on 1 January
2010.
The National Employment Standards
cover:
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The National Employment Standards also
cover:
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Apprentices and trainees do a
combination of work and study to get a
qualification, certificate or diploma.
An apprenticeship or traineeship can
be full-time, part-time or school-based
and can be undertaken by anyone
who's old enough to work.
maximum weekly hours of work
annual leave
personal / carer’s leave and
compassionate leave
parental leave.
the right to request flexible
working arrangements
community service leave
long service leave
paid days off for public holidays
notice of termination and
redundancy pay
a Fair Work Information
Statement for all new employees
that sets out your entitlements and
how to get help.
Any Client seeking further information on
issues mentioned in this newsletter or
other issues please contact Kenneth J.
Law on mobile 0431 882 549 or
[email protected]
An employee is classed as an
apprentice or trainee if their training is