Payday super – exposure draft legislation now open for consultation
In the 2023-24 Budget, the Government announced that the super guarantee framework will be reformed to align the payment of super guarantee contributions with an employee’s regular pay cycle, instead of the current quarterly requirements.
The exposure draft legislation for the new ‘Payday Super’ rules has now been released, with consultation open until 11 April 2025.
The super guarantee charge, payable where employers fail to make contributions in full and on time, will be updated, including a new ‘administrative uplift’ component of up to 60% of the shortfall amount.
Reducing Underpayment Risk
Workers' compensation liability for home office hazards.
Full Federal Court provides guidance on the application of disability discrimination laws
Preparing for the New Workplace Right: The Right to Disconnect
Options for flexibly rostering part-time employees
The AHRC Releases Guidance On New ‘Positive Duty’ For Employers
Discrimination & Art: The ‘Ladies Lounge’ Legal Challenge
Discrimination & Art: The ‘Ladies Lounge’ Legal Challenge
Guide to the meaning of ‘shiftworkers’ in Awards / EBAs
The AHRC Releases Guidance on New ‘Positive Duty’ for Employers
The Australian Human Rights Commission (the Commission) has released guidance for employers on how to comply with the new positive duty under section 47C of the Sex Discrimination Act 1984 (Cth) (the Sex Discrimination Act).
Flexible Working Arrangements
Recent amendments to the Fair Work Act 2009 expand employee rights to make flexible working arrangement requests. The changes also require employers to follow a detailed process upon receipt of such requests. The amendments also permit employees to escalate their requests and seek orders from the Fair Work Commission (FWC).
Diplomatic Immunity not available to former Indian High Commissioner to Australia for breaches of the Fair Work Act
In an interesting decision traversing both industrial relations and public international law, the Federal Court has found that the former Indian High Commissioner to Australia committed significant breaches of the Fair Work Act between September 2015 and May 2016.
Expansion of the Sick Pay Guarantee Scheme
The Victorian Government’s Sick Pay Guarantee Scheme (the Scheme) commenced operation in Victoria on 14 March 2022. Less than a year after its commencement, attention turned to whether the Scheme’s operation would be expanded as the first year was under budget and uptake by eligible employees was below anticipated levels (see previous article here).
Navigating Australia’s Third Tranche of Workplace Reforms: Implications for Employers
Changes to the Pacific Australia Labour Mobility Scheme
Protecting Worker Entitlements – What Do the Changes Mean for Your Business?
The second tranche of workplace relations reforms have now received Royal Assent, bringing into force the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth) (Entitlements Act) on 1 July 2023. It is important that employers are aware of the changes and how these changes will impact the workplace.
Challenge to routine requirements for shiftworkers to work on public holidays upheld
Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51
Background facts
The Respondent (OS)[1] — BHP’s in–house labour hire provider — operates the Daunia Mine near Moranbah in central Queensland. OS employs shiftworkers on a 24/7 basis to work in the Daunia Mine.
OS rostered shiftworkers on Christmas and Boxing Day 2019 as part of standard operations at the Daunia Mine
An application was brought by the CFMMEU contending that a routine requirement for employees to work during public holidays (as rostered) contravened ss 44 and 114 of the Fair Work Act 2009 (FW Act). The CFMMEU argued that a requirement for workers to perform work during public holidays by way of routine rostering enlivened section 114 of the FW Act such that employers would need to first reasonably request employees to work on public holidays. At first instance the Federal Court held that a routine requirement to work on public holidays was not in contravention of section 114 of the FW Act. The CFMMEU subsequently appealed to the Full Court.
OS’s standard form contracts said that the expectation to work on public holidays was incorporated into existing remuneration. Relevant contractual provisions stipulated that employees “may be required to work on public holidays”.
Key Issues to be decided
The Full Court considered whether OS’s engagement of shiftworkers on 24/7, 365-day rosters enlivened section 114 of the FW Act in circumstances where employees were routinely required to work on public holidays (and specifically on Christmas Day and Boxing Day in 2019).
The CFMMEU argued that a contravention of s 114(2) would occur where an employer imposes a requirement for employees to work on public holidays without making any request at all. OS argued that its requirement for shiftworkers to work on Christmas and Boxing day 2019 was a reasonable request within the meaning of section 114(2) of the FW Act.
Determination
The Full Court held that OS had contravened section 114(2) because it required the employees to work on Christmas Day and Boxing Day in 2019 without affording an opportunity to reasonably challenge or refuse the requirement. The evidence showed that OS required (and did not request) shiftworkers to work on the relevant public holidays. There was an assumption that employees rostered to work on public holidays would work unless they applied for leave and it was granted. OS did not communicate to employees that they had any right under s 114 or otherwise to refuse to work on public holidays.
The Full Court cited the previous decision of Shop, Distributive & Allied Employees Association v Woolworths Ltd [2012] FCA 540 in which Barker J suggested that a request in the context of section 114(1) included “leaving room for negotiation and discussion.” The Full Court further considered that section 114(2) required employers to provide employees with an opportunity to refuse the request on reasonable grounds.
The Full Court said:
[38] The intended mischief the provision confronts is the inherent power imbalance that exists between employers and employees. By virtue of this imbalance, employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable. The requirement that there be a “request” rather than a unilateral command, prompts the capacity for discussion, negotiation and a refusal.
The Full Court has clarified that s 114(2) will be contravened if there is no opportunity afforded to refuse an unreasonable request
Implications for Employers
Ask employees: Employees cannot unreasonably refuse a request to work on a public holiday. Employers can robustly respond to refusal communications in accordance with business / operational requirements. However, it is important to set expectations upfront.
Provide an opportunity to challenge: Employers must at least provide employees who are rostered to work on a public holiday with an opportunity to challenge the applicable roster if it would be unreasonable to work on a particular public holiday. This requires making employees aware that they can reasonably refuse a request to work on a public holiday.
Take action: Employers who employ shiftworkers on 24/7 rostering arrangements should take action as follows:
implement policies, procedures and processes to assess and respond to employee refusals to work on public holidays; and
ensure that employees who are rostered to work on public holidays confirm that they have agreed to work (ideally in writing) on the relevant public holiday.
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