New Year, New Updates in Industrial Relations!

There were several updates in the employment space that you may have missed during the festive season.  There are new model clauses in modern awards, extension of the right to unpaid family and domestic violence leave under the National Employment Standards (NES), and a new regulation which reduces the potential impact on employers of the recent Workpac decision regarding long term casual employees.

Flexible working arrangements

As part of its 4 yearly review of modern awards, the Fair Work Commission incorporated new model clauses into all modern awards.  This includes a new model clause expanding employees’ rights to request flexible working arrangements, which was incorporated on 1 December 2018.

The model clause sets out the following process for considering flexible working arrangements:

• The employer reviews the employee’s written request to ensure the employee is eligible (the criteria being that the employee must have 12 months’ service and be the parent or carer of a child of school age or younger, be a carer, have a disability, be 55 or older, or be experiencing family violence or providing care or support to a family or household member experiencing family violence);
• The employer must discuss the request with the employee and genuinely try to reach an agreement on the change in working arrangements, and must respond in writing within 21 days of receiving the employee’s request stating whether the request has been granted or refused; and
• In the event of a dispute about whether the employer has discussed the request with the employee and responded to the request, the dispute will be dealt with under the Dispute Resolution clause of the applicable modern award.

Employers should review their internal processes and procedures to ensure they are consistent with the requirements of the model clause and that managers and HR staff are aware of these new changes when considering employees’ requests for flexible working arrangements.

Domestic violence leave

On 6 December 2018, the entitlement to five days of unpaid family and domestic violence leave was incorporated into the NES.  

Accordingly, all federal system employees (including part-time and casual employees) are now entitled to five days of unpaid family and domestic violence leave within a 12-month period.

No double dipping for casual employees

In the August 2018 decision of WorkPac Pty Ltd v Skene [2018] FCAFC 131, the Federal Court found that a worker, designated as a casual employee under Workpac’s enterprise agreement, was entitled to annual leave due to the systematic and regular nature of his working hours.  One of the factors in the Court’s decision was the lack of an amount clearly identifiable as a casual loading for the casual employee.

On 18 December 2018, the Fair Work Regulations were amended to permit an employer to offset an amount paid to a casual employee and identified as a casual loading from any amount claimed to be payable to the employee for NES entitlements (such as for annual leave), effectively preventing a casual employee from “double dipping” by claiming for benefits normally associated with permanent employment on top of receiving a casual loading.

Lavan comment

These updates may require a review of employment contracts and policies to ensure they are up to date with these legislative changes. 

If you have any questions about flexible working arrangements, family and domestic violence leave, meeting your obligations under the modern awards or the NES, or the new regulation addressing casual employees, please contact Lavan’s Employment and Safety Team.