Industrial Relations Report
ALAN HOLLWAY Industrial Relations and HR Manager
It has been an interesting and busy time over the past 3 months in the IR/HR area. National Issues Update From a national perspective things are moving slowly in relation to the matters before the Fair Work Commission. The issues currently under consideration are: 1. Penalty rates – Fair Work Commission has sought further information however position has not changed. 2. Greater flexibility in relation to part time employment – submissions currently being made to increase the flexibility of part time employment; and 3. Annualise Salaries – 3 member full bench and hearings set for 5 to 7 December 2016.; and Matters that have been resolved are: 1. The ability to pay out Annual Leave; and 2. To accrue Time in Lieu. Please Note The THA Small Bytes emails sent to you will advise you of any resolved matters. If you can’t find them call us and we will update your details and send to you again. Please refer to our Small Bytes articles that have been emailed to you that provide the details on the resolve matters. If you cannot locate these please contact our office to ensure your details are correct so you receive important information and updates as they are distributed. Adverse Action Claims There are a number of businesses around the state that have had issues arise that relate to claims by employees (or ex-employees) for underpayment of wages, not being compensated correctly for breaks, failing to pay out leave and other entitlements upon resignation. A number of these matters were addressed in the last quarterly publication and members are encouraged to review this and what the business is doing to ensure compliance. If you find an error it is recommended you fix this sooner rather than later. Remember An employee (or ex-employee) has 6 years in which they can lodge an Adverse Action Claim for matters other than unfair dismissal. Fixed Term Contracts Recently a number of clients have benefited from a review of their workforce that has identified opportunities for employers to employ staff on a fixed term basis rather than as a casual. This has
resulted in a substantial cost saving to the business. What is a Fixed Term Contract?
A fixed term contract can be used where the work offered is for a fixed duration. It has a clear start and finish date and may be related to a specific event. For example employment of people for a special project/event or to cover Long Service, Maternity or long term Sick Leave. Employees under these contracts have the same entitlement as a permanent employee as they accrue leave on a pro-rata basis. Consequently they are paid the same as a permanent employee and are not paid a casual loading.
Type of Fixed Term Contracts An employee may be employed as full time or part time on a fixed term contract
Termination of a Fixed Term Contract All fixed term contracts should have a nominated end date. Special care needs to be exercised in the development of the contract where there is no definitive end date as the work may be subject to funding or dependent upon things outside of the employer’s control. Even though the fixed term contract specifies an end date it is recommended that Employers reconfirm this as the nominated date approaches. If the employee is not re-hired at the end of their fixed term, task or season they are not eligible to bring forward an unfair dismissal claim. If however a person is given a number of consecutive Fixed Term Contracts it is highly likely that it will be determined that the employment relationship is ongoing that may provide the employee with access to unfair dismissal or eligibility for a redundancy. What happens if I need to extend the Contract? Fixed term contracts can be extended by written agreement by both parties. The general rule of thumb is that the contract should only be extended once, normally no more than the length of the original contract. Continuous extensions or providing continuous new contracts has been deemed by Industrial Tribunals as being continuous, ongoing employment and the employee may have the ability to lodge a claim for unfair dismissal or payment of a redundancy.
Remember Contact the THA if you wish to renew or reissue a Fixed Term contract so as to avoid an unfair dismissal or redundancy claim.
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October 2016
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