HR Toolbox Edition 12 – 2018

by | Apr 5, 2018 | Employment Law and Workplace Relations Blog

Employment law and HR news for employers and HR professionals

Latest news

  • Single Touch Payroll

The ATO will introduce the Single Touch Payroll (STP) Reporting system on 1 July 2018 for employers with over 20 employees and 1 July 2019 for employers with 19 or less employees. The objective of STP is to provide payroll data including superannuation, in “real time” across government platforms including the Departments of Human Services, Immigration and ASIC concurrently with the employer’s usual pay run.

The potential effect of STP will be the capability of government bodies to detect discrepancies and non-compliance of reporting obligations sooner.

Click on the following links to prepare yourself and your business:

  • Domestic Violence Leave

The Fair Work Commission has handed down a decision on 26 March 2018, finding that the model term providing an entitlement to five days’ domestic unpaid family and domestic violence leave, is ultimately a term within the meaning of s.139(1)(h) of the Fair Work Act 2009 (Cth). Consequently, the Turnbull Government plans to extend five days’ unpaid domestic violence leave to all award-based employees as revealed in the joint media release on 26 March 2018. A copy of this media release can be viewed here. To read the full decision of the Fair Work Commission, click here.

  • Ministerial Review of the State Industrial Relation System

An interim Ministerial Report has been released by the Department of Mines, Industry Regulation and Safety, outlining the complex and ambiguous procedures and structures of the Western Australian Industrial Relations System. The review includes the Western Australia Industrial Relations Commission (WAIRC), and its constituent authorities, comprising the Public Services Arbitrator and Public Services Appeal Board. The review is long overdue, as the system has not been reviewed or updated since 2002.

The objective of the report is to achieve a more streamlined system by publishing submissions and recommendations received from various stakeholders including unions, government agencies, employers and legal practitioners, and to (hopefully) implement unanimous changes.

Some of the terms of reference include:

    • current access on a range of matters for public sector employees to the jurisdiction and power of the WAIRC;
    • equal remuneration provision in the Industrial Relations Act 1979 (WA);
    • current definition of “employee” and whether the definition sufficiently captures workers in the evolving “gig” economy;
    • updating State awards for private sector employers and employees; and
    • whether local government employers and employees should be regulated by the State Industrial Relations System.

The Industrial Relations Regulations 2005 (WA) is also currently undergoing a review, and submissions are sought until 10 April 2018.

To read the full report, click here

Latest decisions

  • Reinstatement may not be the best remedy if an employee has lost trust and confidence in their employer.

In an unprecedented case, the Fair Work Commission held that an employee who has been unfairly dismissed and who has lost trust in their employer such that a viable or productive relationship is not tenable, has ordered compensation instead of reinstatement. The Applicant, Mr Priest, was employed for approximately 4 years as a warehouse/forklift driver for Albury Blue Logistics (AB Logistics). Early on in his position, he was assigned the position of “Metro Supervisor” which required additional supervisory tasks for which he was compensated an additional $80 per week. However, a few years later, AB Logistics decided unilaterally to demote Mr Priest, to his original position and his remuneration decreased from $857.86 per week to $777.86. AB Logistics hired an additional employee to take on the supervisory duties, with limited notice and no consultation with Mr Priest.

Commissioner Wilson held that Mr Priest was dismissed by reason of his demotion which involved a significant reduction in remuneration. Additionally, his dismissal was found to be harsh, unjust or unreasonablegiven that there was limited notice to the unilateral decision and there was no opportunity provided to Mr Priest to respond.Reinstatement was not regarded to be the appropriate remedy as the Commission was “not satisfied there will be a sufficient level of trust” given AB Logistics “poor decision-making processes” which may be repeated. AB Logistics was ordered to compensate Mr Priest $5,136 comprising 6 weeks project lost income at the higher rate, plus superannuation. To read the full decision, click here.

  • The Fair Work Commission rules that it is not necessary to consider the unfairness created between parties because of representation.

The French owned employer, Valco Group Australia Pty Ltd, (Valco) made an application to be represented by a lawyer, because the employee pursuing the unfair dismissal claim was the only manager based in Australia and the language barrier would prove a hindrance in the proceedings. The employee however, argued that there was no complexity to the case other than was already addressed in the material and allowing the application would be unfair and contrary to the Commission’s Practice Note encouraging “quick” and “informal” procedures for self-represented parties. Commissioner Bissett disagreed with the employee’s submission and held that “it will never be the case that there will be a true balance in skills, knowledge and/or ability in representation”.

As such, the Commissioner granted Valco permission to be represented by a lawyer or paid agent pursuant to s 596(2) of the Fair Work Act 2009 (Cth), as a result of the complexity involved in determining the manager’s earnings which may or may not include a car allowance, coupled with the employer’s limited knowledge of the Australian legal system.

Notwithstanding the permission for representation, the Commissioner stated that the proceedings will not be “slowed down” by “unnecessary technicalities” or formalities. To read the full decision, click here.

  • The Federal Circuit Court has fined an Employer $250,000 for underpaying casuals.

The Company, Acute Health, a provider of first aid services at major events, underpaid 6 casuals $13,715 between March 2014 and November 2016.Whilst the case may not have involved significant under-payments, the effects of those employees underpaid are significant given that they were “generally students who were relying on the income to fund living expenses whilst studying”.

Judge McNab held that the director had a “flagrant disregard for the rights” of the 6 employees involved. The director was also fined a further $50,000 for continuing to trade, irrespective of the alleged incapacity to pay on the part of the director. To read the full decision click here.

Jenny Edinger

Jenny Edinger