35 Responses to “Fair Work Act Questions – Ask An Expert”

1. Phil Says:
   October 9th, 2009 at 12:48 pm

   Hello Ron. We operate a medium size business of about 65 staff servicing the mining sector. Work has fluctuated over the last few months but we now expect it to pick up a fair bit. We still want to keep our costs down and I am concerned that we will have to pay overtime if anyone works more than 38 hours a week. What are my options? Thank you.

2. Ron Jones Says:
   October 9th, 2009 at 1:00 pm

   Phil – thank you for your questions. Hours of work are regulated by the new National Employment Standards and by the award modernisation process. The NES stipulate that minimum hours of work are 38 plus reasonable additional hours. The precise nature of what is reasonable additional hours depends on a number of things, including the nature of the industry and whether there is any payment for overtime. So, just because an employee works more than 38 hours, this does not mean they will be paid overtime. The number of hours worked can also be averaged over a number of weeks, say 4 or even 12 weeks. If there is an existing award, or there is a Modern Award applying to your industry from 1 Jan 2010, hours of work and overtime arrangements might be set out in such a way as to provide for how many hours can be worked before overtime is paid. One option for you is to vary these award provisions by establishing an Enterprise Agreement which reflects your particular needs. Of course, such an agreement itself will need to comply with the NES, but this can still provide you with a great deal of flexibility as your business grows and will help you manage your costs. I hope this helps you.

3. danb Says:
   October 9th, 2009 at 1:05 pm

   Ron I run a retail business and have been getting a lot of mixed messages about Fair Work Australia. What is it and how does it affect me? I am mainly worried about getting all my paperwork right and not getting done for unfair dismissal. We have less than 15 staff but I don’t know whether I should bother going over that limit.

4. Ron Jones Says:
   October 9th, 2009 at 5:51 pm

   danb – many thanks for your question. This is a major concern for a number of small businesses such as yourself. Fair Work Australia is the new ‘umpire’ in the industrial relations environment and it replaces the old Australian Industrial Relations Commission. FWA will deal with unfair dismissal claims and other disputes that arise from workplaces. Almost every business within Australia will be accountable to FWA and I would expect this includes your business. Under the Fair Work Act, there are special provisions relating to small business in the event of unfair dismissal claims. If a person is dismissed, and the employer is a small business and followed the Small Business Dismissal Code, then the dismissal will not be considered harsh, unjust or unreasonable. The code is provided for in the legislation and a copy of it is available on the Fair Work Australia website (www.fairwork.gov.au).
   The definition of a small business for the purpose of applying the Code, is a business with up to 15 full time equivalent employees. This means using a calculation to average the number of ordinary hours worked by all employees in the business for 4 weeks immediately prior to the employee’s dismissal and then dividing that figure by 38 (the maximum hrs of work set out in the National Employment Standards). This definition will apply up to 1 January 2011. After that, the definition of a small business will be based on a head count of 15 or less employees in the business.
   The other agency you should be aware of is the Fair Work Ombudsman which is responsible for ensuring compliance with awards and enterprise agreements. The FWO has inspectors with very broad powers to enter workplaces and investigate breaches and undertake prosecutions. For example,Fair Work inspectors have earmarked the retail and hospitality industries in Tasmania for a targeted campaign over the next two months. Details of the Ombudsman can be found at http://www.fwo.gov.au
   Although these two agencies have separate responsibilities, you can anticipate them working very closely together.
   If you require any further information please post another query.

5. Phil Says:
   October 11th, 2009 at 10:28 am

   Thankyou Ron. If we go downthe enterprise agreement path, do we have to become unionised?

6. Ron Jones Says:
   October 11th, 2009 at 10:29 am

   Hi Phil – you don’t have to be unionised but this is probably going to depend on history, any business transfer that occurs affecting your business and the wishes of your employees.

   If you are setting out to create an enterprise agreement, then you are going to have to provide this to staff and consult with them. They may ask for a representative to assist them and this could obviously be the union.

   Once you engage in bargaining, irrespective of whether it is directly with employees, or via a representative, both sides are obliged to engage in good faith bargaining.

   This really menas that the bargaining has to be undertaken in a genuine way.

   If you need more specific information on this aspect, I would be happy to assist.

   Regards

   Ron

7. danb Says:
   October 12th, 2009 at 8:24 am

   Thanks a lot ron. I took a look at the dismissal code like you suggested and it is very handy. Great advice too.

8. Ron Jones Says:
   October 12th, 2009 at 8:25 am

   Hi danb – glad to hear it was useful for you. Keep checking the Fair Work Ombudsman and Fair Work Australia sites to ensure that you are getting up to date information as well.

   Regards

   Ron

9. MB Says:
   October 12th, 2009 at 3:27 pm

   Our metal fabrication business has three small sites with about 20 workers each place. We just go by the award but we also give them a letter when they start. Is it ok to keep doing this or do we need to do agreements with each guy from now on?

10. Ron Jones Says:
    October 12th, 2009 at 3:28 pm

    MB – Thanks for your query. You can keep going as at present, provided of course that the letters you are giving them are consistent with the award and that you are happy with the provisions set out in the award. Similarly, you will need to ensure that what you offer is consistent with the relevant new modern award and the National Employment Standards.

    If you need particular variations to suit your 3 work sites, then it might be best to negotiate enterprise agreements which reflect your business requirements.

    Please let me know if you need anything further.

    Regards

    Ron

11. handerson Says:
    October 12th, 2009 at 4:04 pm

    Ron, can you confirm if we will need to be part of the new Fair Work system? As an IT company weve never worried about workchoices and that sort of thing but I’m confused now because apparently there’s a new overall or “leftovers” award or contract for IT – is that right?

12. Ron Jones Says:
    October 12th, 2009 at 9:10 pm

    Hi Handerson – well you and many others are concerned about the IT industry! There are now at least 3 new modern awards which will come into play on 1 January 2010 – the Contract Call Centres Award, the Business Equipment Award and the Professional Employees Award. It is most likely that the last of these will apply, but depending on the specific services you are engaged in, either of the others might as well.

    The modern award process will probably get you somehow because there is also a Miscellaneous Award – designed to capture anything not exempt from the award system or not covered by another award.

    For most of the IT industry, the joys of being award free will no longer apply. Since many companies used common law contracts without any underpinning award or agreement, these will now have to be reviewed to not only bring them into line with the National Employment Standards, but also to address any issues, such as penalty rates, which will now be provided in an award and likely override existing contracts.

    And it is only about 70 days left to make the changes.

    All the best

    Ron

13. gillian Says:
    October 14th, 2009 at 7:32 am

    hi ron, my name is gillian – we have a small automotive body repair shop, with four paid employees. our business is in one small location.we have always worked under the federal award [our entity is a family trust, with the company - pty ltd - as trustee]; and any industrial relations issues/questions we have always checked in with our industry association, tacc/vacc, and acted accordingly- do we need to do anything?

14. Ron Jones Says:
    October 14th, 2009 at 9:31 am

    Hi Gillian – thanks for your query. If you are already dealing with your industry body, they will be able to keep you informed as the new award (modern award) which will apply to you and whether there are any particular issues. You will need to ensure that you also comply with the new National Employment Standards which come into effect from 1 Jan 2010 and also any requirements relating to pay slips and time and wages records. You can do self audit checks by going to the Fair Work Ombudsman site http://www.fwo.gov.au

    If you need any more information, please feel free to send through a question or query.

    Regards

    Ron

15. RB Says:
    October 14th, 2009 at 9:49 am

    Hi Ron

    here goes a stupid question…

    I am conflicted over which Fair Work Act draft applies to us. I am giving advice at the moment to a worker in regards to section 334 of the act. I have seen a few versions of this. Can you please advise which is the correct version under the Qld State awards?

    Cheers mate

16. Ron Jones Says:
    October 14th, 2009 at 11:54 am

    Dear RB

    It is certainly not a stupid question – this is a potentially contentious area of the new legislation. Sect 334 is and following sections form the essence of Chapter 3 covering Rights and responsibilities of employees, employers and organisations and is directed towards Employment Protections. The objective of this section is to establish the basis on which people are protected against discriminatory or wrongful conduct. There are references to coercion, victimisation, misleading representation and undue pressure. These are referred to as Adverse actions and are illegal under the Act. If an action by an inddividual, or an organisation is unlawful under, in your case, the Queensland Anti-Discrimination Act 1991, then it will also be unlawful under the Fair Work Act. With respect to your reference to the Qld State Awards, the Fair Work Act will cover the majority, if not all, employees of a national entity that were previously covered under a State Award. There are some exemptions and I would need more information as to the company structure, industry and the nature of the matter which causes Section 334 to be considered.

    If you can send through those details, I can have a closer look for you.

    All the best.

    Ron

17. Karl Says:
    October 14th, 2009 at 12:21 pm

    Hi Ron I work for a law firm employing 30 staff. I’m confused about what we need to put on payslips these days. What information is mandatory now on payslips? Karl

18. Ron Jones Says:
    October 14th, 2009 at 5:19 pm

    Hi Karl – there are now a number of requirements for payslips and these are:

    Legal and/or trading name of employer;
    Employee name;
    Date of payment;
    Period of payment (ie the actual dates of the pay period of weekly, fortnightly, monthly etc;
    Gross and net amount of the pay;
    If an employee is paid hourly, then the pay slip must include details of the hourly rate of pay, the number of hours worked at that rate, and the amount of payment at that rate;
    If an employee is paid an annual salary, then the pay slip must include details of that salary as at the last day in the pay period;
    Details of any deductions made from the employee’s pay; and
    Details of the amount and name of the superannuation fund (where employers are required to make superannuation contributions for the benefit of employees.

    Please note that employees are to receive their pay slip within 1 day after they are paid.

    The Fair Work Ombudsman has a series of checklists for self auditing purposes and you should review these to make sure you are complying. The Ombudsman will take action against employers who do not comply with the requirements relating to pay slips, time and wages record keeping as well as obligations to provide the correct conditions of employment.

    You can find out more about these from the Fair Work Ombudsman web site http://www.fwo.gov.au

    All the best

    Ron

19. Myfanwy Edwards Says:
    October 15th, 2009 at 12:52 pm

    Hi Ron,

    I have a small tutoring business with under 15 staff and currently they are under no award. I pay tutors by the session which are 70 mins in length. I have an agreement that we both sign in terms of pay, no school holiday work, no pay if don’t work , they get paid if students away etc.
    What type of agreement do I need to meet fair work Australia guidelines although I don’t want to go to the cost of registering an agreement as staff are very transit. All staff will be employed as casual as of Jan 1st. Will they have to come under the ‘catch-all’ award?
    thanks.

20. Ron Jones Says:
    October 15th, 2009 at 5:44 pm

    Dear Myfanwy – I will need some more information, particularly relating to the nature of what is in your current agreements and the nature of the employment relationship, particularly if it includes engaging people with their own ABN. Details such as hours of work, pattern of work, provision of insurance cover, superannuation and the like will be of relevance.

    I am checking current modern awards to determine their applicability, including the new miscellaneous award.

    Irrespective of the award, any agreement with staff will need to comply with the National Employment Standards and any relevant award provision.

    Depending on the nature of all of the above, it may then be possible to develop an agreement which is a modification of the one you have, but which sits within the protective umbrella of the award flexibility provisions.

    If you can provide me with further details as to your current agreement, then I can advise as to how much modification is necessary.

    Regards

    Ron

21. Myfanwy Edwards Says:
    October 19th, 2009 at 9:25 am

    Dear Ron,

    Thanks for your reply.

    As of next year, I will employ all staff as a casual worker rather than contractors. I pay workers comp. and super currently for all contractors and casual employers. Staff work set hours i.e 2 sessions per week for a sessional rate of pay. Currently just have an agreement between staff and myself as they can move/leave frequently. Current agreement contains expectations of dress, professional presentation/preparation to students, sessional pay rates, don’t work school holidays and if they don’t work due to school commitments then they don’t get paid by me.
    Not on a contractual basis i.e 1 year although we do discuss this at time of appointment and the agreement states there is 1 month probation.
    I will make sure that we meet the National employment standards but not sure as to what agreement etc to employ staff as of Jan1 next year.

    Hope that helps.

    Regards,

    Myfanwy

22. Ron Jones Says:
    October 21st, 2009 at 5:55 pm

    Dear Myfanwy – I have asked the AIRC to specifically identify the appropriate award as I am not able to find anything specific at present. It may be that the Miscellaneous Award will be the most applicable. This is currently out as an ‘exposure Draft’ with various parties making submissions on its contents. The final award should be issued shortly.

    I would operate on the basis that this will be the Award and you could therefore make reference to it in your agreement document. The agreement document which you would sign with your employees would make reference to the provisions of the agreement being an outcome of negotiations in accordance with Clause 7 Award Flexibility of the award (the clause providing for flexibility). This clause is similar in all modern awards and is always Clause 7.

    The agreement should also provide for a reference to the rate being paid, if it is for a sessional or casual, as being inclusive of the relevant loadings. The agreement should also include provision for the employee to acknowledge that they have been shown a copy of the Award and are aware of its contents.

    As soon as I receive anything more specific from the AIRC I will let you know.

    Regards

    Ron

23. Myfanwy Edwards Says:
    October 22nd, 2009 at 10:05 am

    Thanks Ron,

    That is a great help.

24. Emma Says:
    October 22nd, 2009 at 5:18 pm

    Hi Ron

    I am an HR Manager for a WA based Childcare group and wanted to ask about receiving reimbursement from employees who have either been terminated or have resigned before completion of traineeships…

    We currently have it written into our employment contracts that the moneys paid for the traineeship will have to be returned to the company if a trainee should leave or be asked to leave before trainee completion…

    My issue is how to get it back.. I am not overly comfortable with taking the money from their termination pay but do not want to rely on them paying the firm back as it may never happen…

    Can you give me some advice? In past companies, we have reimbursed employees upon completion of study proving they are still with the firm but I find that this does not exactly encourage employees to want to study!

    Cheers and thanks
    Emma

25. Ron Jones Says:
    October 23rd, 2009 at 9:18 am

    Hi Emma – this is a sore point with a number of HR managers and Finance Managers! The difficulty is that even upon termination, an employee is due the entitlements available to them under their contract/award/agreement. These entitlements cannot be reduced by an arbitrary act of the employer. There are, unfortunately, only 2 ways to recover the monies owing – to have an agreement with the employee that he or she accepts the deduction from their final pay, or, resorting to legal action to recover the debt.

    There will need to be some agreement signed between the employer and the employee at the beginning of the traineeship to acknowledge each others obligations.

    One alternative might be find different ways to split the initial costs – employer pays first instalment, deducts pay to cover second instalment, reimburse pay after 12 months, pay a bonus at the successful conclusion of each part of the traineeship to reward commitment and encourage personal/professional development, etc

    I hope this helps

    Regards

    Ron

26. Emma Driscoll Says:
    October 23rd, 2009 at 11:34 am

    Hi Ron

    Thanks a lot for this, yes it is a painful subject…

    So, with this particular case, we have one girl who has been told that it will come out of her pay and she accepted that.. This was before my time so I was not aware of this…

    She is leaving Friday next week, we have another girl who is being terminated on the 13th and has also been told that she will have to pay back the money for the course…

    In both cases, the trainees were aware that the money had to be paid back but there was nothig in their contracts to state how..

    What would you suggest I do here? I am not keen to take the money out of this trainee’s pay as she has not signed anything at the beginning of the traineeship to say that this would be ok but the other trainee has been told this would hasppen.. I certainly do not want one paying and the other not??

    I am happy to look a process for the future but need to get this one sorted out first

27. Emma Driscoll Says:
    October 23rd, 2009 at 12:25 pm

    Hi Ron

    Looking at waht you have written again, I think you have actually answered my question… I thought you were talking about future but can see now that you were relating this to all cases……

    The letter will help for future as we would not take them on if they refused

28. Ron Jones Says:
    October 23rd, 2009 at 9:07 pm

    Emma – it would be good at this stage to try to get a written acknowledgement from the staff that firstly acknowledges and accepts their obligation and secondly seeks to have them accept that the monies will be deducted from final pay.

    It might at least be worth the discussion with each one and present them with a document to sign.

    You should also now review all of your letters of offer and contract documents to give yourself the maximum opportunity to recover outstanding monies in future cases.

    If I can be of any further help let me know.

    Regards – and good luck

    Ron

29. Faye Says:
    October 26th, 2009 at 2:51 pm

    Hi Ron, here’s a question, I have a small security business where we have aprox 15 staff at the moment, but this can increase/decrease depending on the time of year. None have a set contract as we as a business are also sub contractors.
    All bar one staff members, work on ABN with no superannuation etc.
    Is this ok or will it cause issues to us?
    Thanks
    Faye

30. Ron Jones Says:
    October 27th, 2009 at 8:41 am

    Hi Faye – thank you for your query. In general, you should be ok as contractors are not employees and therefore there is no employment relationship.

    You should review your letters of contract to ensure that there is no suggestion of a direct employment relationship. You will also need to review the elements of ‘control’ – quite often the control exercised by a company over a contractor renders the relationship to be as if it were that of an employee. This is especially the case if you have contractors engaged by you for a long period.

    Contractors using an ABN should have no more than 80% of their income from any one source so this might also be something you need to discuss with them if you think this is a problem.

    If I can assist further let me know.

    Regards

    Ron

31. HRwisdom Support Says:
    October 29th, 2009 at 6:44 pm

    Should you wish to reach Ron, he is happy to be contacted via his company web site: http://www.createHR.com.au

    HRwisdom Support

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33. Ggrotewold Says:
    November 10th, 2009 at 2:24 pm

    Hi Ron,
    I am looking to give notice to an employee that the role is being removed/made redundant. The employee is on an FTC with a difinitive end date but the FTC has reference to previous service. Can I therefore give employee notice of termination and use the FTC as the reason for selection?
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    E

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