Limelight Articles

Limelight 01/21

Changes to casual employment, awards and paid domestic and family violence leave in store for 2021

Authors, Sarah Wood , Joel Zyngier , Lily Connell

At the end of 2020, the Federal Government introduced two new bills to amend the Fair Work Act 2009 (Cth) (FW Act):

  • Fair Work Amendment (Ten Days Paid Domestic and Family Violence Leave) Bill 2020 [No. 2] (Cth) (DFVL Bill); and
  • Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (Cth) (SAJER Bill).

The DFVL Bill – key changes

The DFVL Bill proposes to improve the existing entitlements of the National Employment Standards of the FW Act so that:

  • employees who experience domestic and family violence can receive 10 days of paid leave;
  • there is clarification regarding how employees who use this leave are to be paid; and
  • confidentiality provisions of the FW Act are tightened.
Key proposed amendments to FW Act
Current provisions in FW Act Proposed amendments
5 days of unpaid domestic and family violence leave 10 days of paid domestic and family violence leave in a 12-month period
An employer and an employee can agree that the employee can take more than 5 days of unpaid domestic and family violence leave An employer and an employee can agree that the employee can take paid or unpaid leave in addition to the 10 days of paid domestic and family leave
An employee’s entitlement to domestic and family violence leave under the FW Act is currently unpaid, there is no specification as to how employees would be paid for this leave. An employer must pay employees who take a period of domestic and family violence leave as follows:

  • employees who are not casual employees are to be paid at their base rate of pay for their ordinary hours of work; and
  • casual employees are to be paid at their base rate of pay plus casual loading for the hours of work in the period which the employee was rostered to work.
Employers must take steps to ensure information regarding an employee taking domestic and family leave is treated confidentially, ‘as far as it is reasonably practicable to do so.’ The ‘as far as it is reasonably practicable to do so’ section is removed, so employers must take steps to ensure information regarding an employee taking domestic and family leave ‘is treated confidentially.’

It is also proposed that employers should consult with employees regarding handling information about an employee’s experience of family and domestic violence due to the sensitive nature of the information.

The SAJER Bill – key changes

The SAJER Bill proposes to ‘improve the operation and usability of the national industrial relations system’ by making a number of changes to the FW Act, including:

  • providing a definition of a ‘casual employment’, to give certainty to businesses and employees about casual employment;
  • giving regular casual employees a statutory pathway to convert their employment to full-time or part-time employment;
  • giving part-time employees the option to work additional hours by agreement with their employer;
  • giving employers the power to direct employees to perform certain duties within their skill set and at certain locations outside of their normal duties or place of work;
  • amending the enterprise agreement provisions of the FW Act to improve the enterprise agreement making and approval process;
  • expanding powers of the Fair Work Commission (FWC) to make decisions during proceedings; and
  • making systematic underpayment a criminal offence.

The proposed amendments to the casual employment provisions of the FW Act, particularly the inclusion of a definition of ‘casual employment’ is the Federal Government’s response to the decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84.

The High Court of Australia will hear an appeal of this decision some time in 2021. If the SAJER Bill is passed, it is unlikely the enacted legislation will have any impact on the High Court’s decision in Rossato.

Key proposed amendments to FW Act
Proposed amendments Details of amendments
Definition of ‘casual employment’ In response to the uncertainty created by Rossato, the Bill proposes to insert a definition of casual employment in the FW Act.

Under the changes a person is a  casual employee if an employee accepts an offer of employment made by the employer to the employee if it is made ‘on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.’

Whether there is a firm advance commitment by an employer to continue indefinite work will be determined based on whether the employment is described as casual employment and whether the employee:

  • can elect to offer work;
  • can elect to accept or reject work;
  • will work only as required; and
  • will be entitled to a casual loading or a specific rate of pay for casual employees.

 This will be assessed only based on the offer of employment and not any subsequent conduct by either party.

Casual conversion requirements Under the proposed changes an employer must make a written offer to a casual employee to convert their employment to full-time or part-time employment if they have been employed for 12 months and for the last 6 months have been working a regular pattern of hours on an ongoing basis.
An employer is not required to make an offer of permanency to a casual employee where there are reasonable grounds not to.The employee will be required to give a written response to the employer within 21 days of the offer being made. The employer is then required to give written confirmation to the employee. This section also proposes to give employees the ability to request the conversion of their employment. Disputes regarding casual conversion may be referred to the FWC.
Casual Employment Information Statement Employers will be obligated to give each casual employee a Casual Employment Information Statement prepared and published by the Fair Work Ombudsman as soon as practicable after the employee starts employment as a casual employee.
Casual loading This section is relevant to situations where employees who were intended to have been employed as a casual employee but are subsequently found not to be casual employees and have sought orders from the Courts to be paid entitlements under the FW Act.

This section proposes to grant the Courts the power to ‘offset’ by ordering the employee’s claimed amount to be reduced by any casual loading which they have received.

Simplified additional hours agreements This section proposes that an employer and a part-time employee whose employment is subject to identified awards may enter into an agreement for the employee to work additional hours, called a ‘Simplified Hours Agreement’.
Flexible work directions This section proposes additional flexibilities for some awards covering industries most affected by Covid. An employer will be able to give an employee:

  •  a ‘flexible work duties direction’, which is a direction to perform any duties within the employee’s skills and competency; and
  • a ‘flexible work location direction, which is a direction for an employee to perform their duties at a different location from the employee’s normal place of work.

The directions are subject to being safe, the employee having the necessary qualifications to perform the duties and the duties being reasonably within the scope of the employer’s business.

Before giving the direction, an employer must consult with the employee by giving written notice of the employer’s intention to give a direction.

Streamlining enterprise agreement making process The object of the amendments is to make the process of creating and approving agreements easier, faster and fairer for employers and employees, by:

  • increasing the time limit for employers to give employees notice of their representation rights to 28 days;
  • creating an obligation for employers to take reasonable steps to ensure employees are given a fair and reasonable opportunity to decide whether or not to approve the agreement;
  • requesting employees who will be covered by the agreement to vote for it, which includes employees employed at the time of the request and casual employees who performed work at any time during that period;
  • adding to the ‘better of overall test’, by giving the FWC the power to approve the agreement if it is appropriate to do so by taking account of all of the circumstances and it would not be contrary to public interest;
  • single-enterprise agreements may be varied to include eligible franchisee employees; and
  • the FWC must determine an application to approve an enterprise agreement within 21 working days.
Advertising rate of pay for employment This section proposes a new civil remedy provision prohibiting an employer from advertising employment which specifies a rate of pay that is less than the national minimum wage.
Criminalising underpayments Employers will be prohibited from dishonestly engaging in a systematic pattern of underpaying one or more employees, which may result in:

  • imprisonment for 4 years or a $1.11m fine, or both for an individual; or
  • a $5.5m fine for a body corporate.
Expanding the powers of the FWC This section proposes to expand the FWC’s powers to dismiss an application on its own initiative or on application if it has not been made in accordance with the FW Act.

The FWC can then order that the applicant must not make a further application to the FWC without permission of the FWC.

It is also proposed that the FWC powers to decide an appeal without a hearing be expanded on the basis that the FWC has taken into account the views of persons who would otherwise have made submissions at a hearing.

On 10 December 2020, the Senate Selection of Bills Committee referred the Bill to the Education and Employment Legislation Committee for inquiry and report by 12 March 2021.

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.