Atkinson Vinden Lawyers

Employment laws in Australia are in a constant state of flux, and there are many mandatory aspects to the Fair Work Act about which all employers need to be vigilant.

We have a particular depth in this area, with one of our directors Rod Berry and two of our employed solicitors, Tom Howard and Caitilin Watson providing regular advice and representation to a host of employers in this area of the law.

Litigation has the potential to be expensive, and in the employment law area, most jurisdications will not award legal costs.  This means that employers can successfully defend a claim, but still be out of pocket.  It is for this reason that our emphasis is upon preventative action through well worded employment contracts and well informed workplace procedures, to avoid disputation where possible.

In some contexts, strong advocacy and representation before Fair Work Australia and the Fair Work Ombudsman are called for, and we excel in providing these resources for our clients.

 Areas include:

• drafting and interpreting contracts of employment;
• workplace policies and procedures;
• staff discipline;
• how to dismiss an employee (and how not to do so);
• redundancy;
• discrimination, bullying and harassment;
• employee fraud;
• confidentiality and restraint of trade;
• occupational health and safety issues and defence of charges;
• all types of employee related proceedings, including unfair dismissal, adverse action, breach of contract, injunctions.

Meet The Team:

Rod Berry Managing Partner rberry@atkinvin.com.au	Tom Howard Solicitor thoward@atkinvin.com.au	Caitilin Watson Solicitor cwatson@atkinvin.com.au

Articles:

Paid Parental Leave

Introduction:

The Federal Government's Paid Parental Leave Scheme (PPLS) came into effect on 1 January 2011.

The PPLS provides entitlements to all employees except State Government employees.  State Government employees have had paid maternity for some time under separate provisions.

The PPLS is fully funded by the Australian Government, and provides eligible working parents with a maximum of 18 weeks pay at the weekly rate of the national minimum wage (which is currently $570.00 per week less tax).

However whilst the funding is provided by the Government, the payment will be made through the employer's payroll.  It is therefore essential that all employers are aware of their role and obligations pursuant to the PPLS to ensure compliance.

Who is an eligible employee?

To be eligible, an employee must:

• Be the primary carer of a child born or adopted after 1 January 2011.
• Be an Australian resident.
• Have been engaged in paid work for at least 10 of the 13 months before the child is born or adopted.
• Have worked at least 330 hours during that 10 month period; and
• Have earned less than $150,000 per annum over that 10 month period.
• Be on leave or not working from the time they become the child's primary carer.

An employee is not required to have been working on a full time basis to be eligible. An employee may still be eligible if they are a part time, casual or seasonal worker, a contractor or self employed, have multiple employers or have recently changed job.

Whilst an employee is free to choose the start date of their Parental Leave Pay at any time from the date of the birth or adoption of their child:

(a)    They must receive all their Parental Leave Pay within 12 months of the date of the birth or adoption of their child; and

(b)    To be eligible for the maximum 18 week payment, an employee must choose a start date that is within 34 weeks of the date of the birth or adoption of the child. If they claim after the 34 weeks, the payments are reduced.

Obligations and role of employer

An employer's role under the PPLS was voluntary until 1 July 2011. Since 1 July 2011, all employers have been required to comply.

Employers are responsible for providing the Parental Leave Pay - funded by the Government - to their eligible employees who:-

(a)        have or adopted a child from 1 July 2011;

(b)       have worked in the business for 12 months or more (however this proviso only applies to the employees who do not meet the criteria above, that is, an employee who has worked for 330 hours in the 10 month period referred to above is still eligible, however employees who have not satisfied that criteria fall under this 12 month rule);

(c)       are entitled to 8 weeks or more parental leave.

If the employee does not satisfy the criteria in (b) and/or (c) above, then the employer has the option of not having to provide the Parental Leave Pay, that is, the employee will be paid directly by the Family Assistance Office without the involvement of the employer.

How Does the Employer receive the money?

In most cases, the Family Assistance Office, will pay the money for the Paid Parental Leave to the employer's nominated bank account before the employee's pay cycle. The idea is that this will then enable the employer to have the money to pay the employee through the existing payroll cycle.

What an Employer must do:

• Provide the information and details as required by the Family Assistance Office, such as bank account details and pay cycles, to enable the Parental Leave payment to be paid to the employer.
• The employer has to register for the PPLS with Centrelink through the Business Online Services or by telephone through the Centrelink Business Hotline.
• Pay the Parental Leave Pay that the employer has received from the Family Assistance Office to the employee for the Paid Parental Leave period.
• Provide the Parental Leave Pay as part of the employee's usual pay cycle.
• An employer must deduct income tax from the Parental Leave Pay under the usual PAYG arrangements.
• An employer must include the Parental Leave Pay in the total amounts on an employee's annual group certificate.
• Provide a record to the employee (e.g. a payslip) of the Parental Leave Pay.
• An employer must keep financial records of the receipt of the Paid Parental Leave funds from the Family Assistance Office and a record of the Parental Leave Pay to the employee.
• The employer must notify the Family Assistance Office if:
• The employee returns to work before or during the paid Parental Leave Period;
• The employee ceases to be in your employ;
• The employer changes its bank account details;
• The employer changes the employee's pay cycle;
• The amount of Parental Leave Pay received is not correct;
• The employer has ceased trading, or is selling the business or is transferring ownership of the business.
• Any unpaid Parental Leave funds must be returned by the employer to the Family Assistance Office.

What an Employer does NOT have to do:

An employer:-

• Does not have to apply for PPLS for their employees: the employee is responsible for lodging the application with the Family Assistance Office;
• Does not have to assess if their employee is eligible for the PPLS: this is done by the Family Assistance Office;
• Does not have to pay the parental pay to their employees until after they receive it from the Family Assistance Office;
• Does not have to pay Parental Leave Pay to Independent Contractors or to a person who ceases to be an employee of the business (this does not mean that such persons are not entitled to Parental Leave Pay), however they can deal directly with the Family Assistance Office, and the employer need not be involved;
• Does not have to pay superannuation contributions on the Parental Leave Pay.
• Does not have to pay any payroll tax or incur additional workers compensation premiums on the Parental Leave Pay.
• Does not have to provide additional leave, that is, there is no accrual of annual leave or long service leave or personal/carers leave entitlements.
• Does not have to have a separate bank account for paid parental leave funds, or separately identify these funds in their annual financial statements (however, an employer should be able to separately identify the parental pay for reasons of superannuation, payroll tax etc, as set out above).
• Does not have to provide regular reports to the Family Assistance Office.

Existing Paid Parental Leave

Employers should note that if they already have an agreement in place with their employees which provides for some form of paid parental leave, this cannot now be unilaterally withdrawn by the employer because of the introduction of the PPLS. The PPLS sets the minimum entitlement. An employee with pre PPLS entitlements is still entitled to receive any benefit under their previous arrangement to the extent that they exceed the PPLS.

Compliance and Penalties

Employers must be aware that the Fair Work Ombudsman can enforce an employer's obligations under the PPLS, and it will investigate any related complaints. The Fair Work Ombudsman may impose penalties on employers for breaches of these obligations.

Discrimination

How can I protect my company against discrimination claims?

State and Federal laws do not tolerate discrimination in the workplace.  To succeed in a discrimination claim, an employee needs to prove that discrimination was only one of a number of factors that has led to termination.  Employers therefore need to be vigilant regarding discrimination in the workplace, and develop a sound policy to enforce proper standards.

Unlawful discrimination occurs when a person is discriminated against on the following grounds:

• sex
• marital status
• pregnancy or a potential pregnancy
• caring and family responsibilities
• race, colour, ethnicity or religious background, descent or nationality
• disability
• age
• HIV/AIDS status
• homosexuality
• transgenderism (ie. anyone who lives, has lived or wants to live as a member of the opposite gender to their birth).

If an employee believes that they are the subject of unlawful discrimination in the workplace, they should in the first instance approach a supervisor, human resources manager, or designated workplace harassment contact officer or an appropriate coordinator in the workplace.  It is important therefore that your staff understand the chain of command for making such complaints.

If this does not provide a satisfactory resolution, there is a risk the aggrieved employee will contact the NSW Anti-Discrimination Board or the Australian Human Rights Commission (depending on the standing of the employee).  They will then be provided with a complaint form to complete and return and the Board or Commission will investigate and endeavour to conciliate the complaint.  This would involve your company providing input on the complaint and possibly the need to justify company policy.

Most importantly, the focus of legal procedure in discrimination is upon conciliation to attempt a resolution of the complaints made by an individual or groups of individuals.

The conciliation process is confidential between the parties and focuses on:

• trying to clarify the complaint and ascertain whether any breach of the legislation can be identified;
• trying to resolve the differences between the parties by structuring a resolution that may include compensation, reinstatement, an apology, or a change in policy or practice.

If the conciliation breaks down or is not possible, several options are possible.  In the case of the Anti-Discrimination Board, the President can refer the matter to the Administrative Decisions Tribunal for determination.  In the case of the Australian Human Rights Commission, the aggrieved employee can commence proceedings in the Federal Court.  If a claim is successful in either of these jurisdictions, the aggrieved employee can expect to receive an Award of damages which include an amount as compensation for the distress and humiliation suffered and a further amount for any wage loss suffered.

Where to get further information

NSW Anti-Discrimination Board: Level 17/ 201 Elizabeth St. Sydney  02 9268 5544
www.lawlink.nsw.gov.au/adb

Australian Human Rights Commission (HREOC): 9284 9600 
HREOC Complaints Infoline: 1300 656 419, www.humanrights.gov.au

Advice recommended

A discrimination claim in the workplace can have a tremendously damaging affect on staff morale.  It can also cause a decline in productivity.  Employers should obtain urgent legal advice to contain a discrimination claim if possible.

We welcome your enquiries regarding unfair dismissal claims.  Please contact a member of our employment team for further information on (02) 9411 4466.

Unfair Dismissal and Unlawful Termination

How can I protect my company against Unfair Dismissal and Unlawful Termination claims?

Having a claim lodged against you can be disruptive to your organisation and costly, both in terms of the cost of defending it and the effect it has on you and the people who work for you.  For this reason, we would advise an employer to obtain legal advice regarding any proposal to terminate a contract of employment or to make employees redundant, as this can save considerable legal costs and time in the future.

It should also be noted that if a matter reaches Fair Work Australia ("FWA") each party is usually responsible for their own costs, irrespective of the outcome of the decision of the the FWA.  This means that it is critical for employers to act swiftly to resolve the matter if possible, before it gets out of hand.

Contact Us

We welcome your enquiries regarding unfair dismissal and unfair contract claims.  Please contact a member of our employment team on (02) 9411 4466 to discuss your particular circumstances.

Smarter Employment Contracts

What should be included in an Employment contract to protect your company's interests?

Introduction

It is commonsense that a person would not buy a house for $500,000 without first checking the contract.

It is quite puzzling then that many employers are so relaxed about their employment contracts that they do not give them proper consideration.  If a person is employed for $90,000 per annum plus super and they are employed for 5 years, that is a $500,000 investment made by the company.  A properly worded contract is merited.

The benefit of spending time getting the contract right is obvious given the significant damages that may be payable if the employment contract goes sour. 

For business with important marketing and trade secrets, employment contracts may be used to restrain an employee from damaging the business post-employment by way of carefully worded confidentiality and anti-competitive clauses.

There are other benefits to having properly worded employment contracts.  Most importantly, a properly worded employment contract provides comfort to both employer and employee as it sets out clear expectations.  Where conflict does arise, a properly worded contract will make careful provision for resolving such disputes without having to take the matter to court.

At Atkinson Vinden we believe it is worth spending the time drafting high quality employment contracts.  Once an employer has taken the trouble of preparing a carefully worded employment contract that contract can be replicated and used for new staff that later commence with the company.

Contract Audit

Your company may benefit from an employment contract audit.  Atkinson Vinden provides a service whereby we review your employment contracts and provide you with specific feedback and guidance as to how they can be tightened to protect your company's interests.  If you are interested in this service, please do not hesitate to contact a member of our employment team at Atkinson Vinden on (02) 9411 4466.

Casual Employees

How does the treatment of casual employees differ from that of permanent employees in the workplace?

This information sheet will discuss the important factors to consider with regard to:

1. Defining casual employment
2. Unfair Dismissal
3. Entitlements
4. Tips for managing casual employees

Casual employment - a definition

There are many common misconceptions about what casual employment means.  Strictly speaking, a casual employee is an employee who has varying hours of work with no expectation of ongoing work.  Such an employee is said to enter into a new employment contract each time he or she accepts an offer of work, even if that offer is from the same employer.

At times, even though an employment relationship is classified by the parties involved as being casual in nature, it may be that a court would consider the employment to be permanent because the employee has an expectation of ongoing work.  This commonly arises when the "casual" is employed for the same hours each and every week over a considerable period of time.

Employment relationships are complex and change as economic circumstances change.  The courts will take into account a whole host of factors in determining the nature of an employment relationship.  Employers need to approach this issue cautiously so that they avoid unexpected obligations to such employees.

Entitlements

With the increasing casualisation of labour, many in government and employee advocate groups are concerned that casual employees are missing out on entitlements to sick leave, annual leave and the benefits of permanence of employment.  As courts and legislatures try to deal with these issues, new approaches to the problem of casual employment are constantly being developed.

In some instances, for example, where a court holds that a person should have been employed as a permanent employee rather than as a casual, the court will award back pay of annual leave, sick leave, and long service leave where appropriate. Such actions are usually brought by way of an "Application for Recovery of Moneys".

Where there is some doubt, it is sometimes in the best interests of both employer and employee to clarify matters by engaging employees on a permanent basis.  Where casual employment is used, employers and employees should be careful to ensure that the law views the relationship in the same way as the parties do.

Tips for managing casual employment

Employers should be careful to:

• avoid promising continuity of employment;
• avoid contracts or letters of appointment that appear to create permanency;
• vary shifts and rosters so as to avoid an expectation of regular and ongoing employment; 
• consider whether the employment relationship is such that a court might consider the casual employment to be designed to avoid paying employee entitlements. In this case, the employer should discuss with the employee whether they would like to become a permanent employee.

For further advice on casual employment, please contact a member of our employment team on (02) 9411 4466.