Summary of key updates in 2018

  • The introduction of Domestic Violence Leave - The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 was passed in December 2018 which will see all workers under the Fair Work Act 2009 (Cth) entitled to 5 days’ unpaid domestic violence leave.
  • Casual conversion clauses took effect 1 October 2018 into 84 modern awards allowing a ‘regular casual employee’ to request that their employment be made full time or part time (subject to certain requirements).
  • New flexible model clause incorporated into all modern awards effective 1 December 2018 which requires an employer to make a genuine attempt to reach agreement on employee requests regarding flexible work arrangements.
  • Introduction of the Fair Work Amendment (Casual Loading Offset) Regulations 2018 permitting an employer to take into account any ‘identifiable loading’ received by a casual employee if there is a subsequent claim by the casual employee for additional entitlements under the National Employment Standards.
  • The Modern Slavery Act 2018 (Cth) came into effect on 1 January 2019 to combat modern slavery and prescribes requirements for certain entities that have an annual consolidated revenue exceeding $100 million.  

Summary of some key decisions in 2018

Klooger v Foodora

Further to our previous Toolbox Edition 16 (October 2018), Foodora’s administrators have since conceded that the company has underpaid workers around $5 million by erroneously classifying riders as independent contractors instead of casual employees.

  • On 16 November 2018, the Fair Work Commission has found that Mr Klooger, a former Foodora delivery driver, was in fact an employee and not an independent contractor.
  • Commissioner Cambridge ordered Foodora to pay Mr Klooger $15,559 compensation within 21 days. To read the full decision, click here.

WorkPac v Skene

In the high-profile case reported in a previous Toolbox Edition 16 (October 2018), the Full Federal Court has found that a casual was entitled to annual leave entitlements under the National Employment Standards.

This decision was not appealed. However, we look forward to the outcome of similar litigation in WorkPac Pty Ltd v Rossato [2018] FCA 2100, which is expected to be heard by the Full Federal Court in February 2019 with a judgement possibly around June 2019.

2019 - A changing landscape?

Federal Election 2019

Depending on the outcome of the looming Federal Election, there could be a considerable number of changes to workplace relations laws.  Key issues to watch include:

  • Industry wide negotiations and bargaining at the enterprise level – Changes proposed in this area include (i) access to collective bargaining via ‘multi-employer’ bargaining, and (ii) introduction of a ‘disclosure framework’ by the employer, which may see more power in the hands of employees’ bargaining representatives.  It remains to be seen whether industry wide bargaining is adopted across all sectors or focused solely on certain sectors that have low paid workers.
  • Tribunal’s arbitrary powers to settle disputes under enterprise agreements - Currently, if a dispute has reached an impasse between parties, there is little, if any relief available. We may see power conferred on a tribunal, such as the Fair Work Commission to settle unresolved agreement disputes.
  • Ability to terminate expired agreements – If agreements pass their nominal expiry date, they will continue to operate unless (i) terminated; or (ii) replaced.  The ACTU is lobbying for change to the law such that enterprise agreements can only be terminated in exceptional circumstances and not when bargaining is underway or being sought.
  • Engaging Labour Hire – If case law is any indication, we can expect to see increased regulations and restrictions when engaging casual employees to ensure that they have access to workplace entitlements. There will be a greater focus on (i) "creating job security", and (ii) "giving employees a ‘fair go’".
  • Penalty Rates – We may see the restoration of penalty rates specifically in the hospitality, fast food and retail industries for Sunday and public holiday rates. This may result in proscribing future variations to minimum rates contained in modern awards.  It is unclear at this stage whether employees will be better off under this arrangement compared to modern awards.
  • Whistleblowing laws – This may include the (i) consolidation of state and Federal legislation; and (ii) regulations by an independent Whistleblower Protection Authority within the Office of the Commonwealth Ombudsman.  We will wait and see whether the existing (newly passed) Treasury Laws (Enhancing Whistblower Protections) Bill 2018 remains untouched after the election or whether it will be replaced.

We look forward to providing you with a more detailed update in due course as we get a glimpse into the various competing policies attached to the respective employment and workplace relations portfolios.