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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 ______________________________ 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: promotion of best practice developing model productivity clauses for awards and agreements and sponsoring training workshops for employers and employees on how to enhance workplace productivity. ___________________________ Permitted deductions An employer is allowed to make a deduction from an employee’s pay if: 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: 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. ______________________________ 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. ____________________________ 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. ______________________________ 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. _______________________________ 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: The National Employment Standards also cover: 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