Helping growers to understand their obligations under the Fair Work legislation to manage their business risks

Transcription

1 FFI Workplace R elations R isk A ssessment Workshop Helping growers to understand their obligations under the Fair Work legislation to manage their business risks

2 A bad look for industry.

3 A bad look for industry.

4 Workplace Relations Risk Assessment Activity 18 questions 90 minutes Take a deep breath..

5 Q 1/2 Industrial Instruments Modern Awards Award coverage across Agriculture Pastoral Award grains, grazing, pork, poultry, shearing Horticulture Award fruit (inc table grapes), vegetables, nuts, tree crops Sugar Industry Award sugar cane Nursery Award turf, flowers, seedlings Wine Industry Award wine grapes, winemaking, cellar door sales Road Transport Awards delivery and long distance (2) Storage Services & Wholesale Award (packing sheds) Retail Award (farm shops, not cellar doors) Clerical Award admin, management MAKE COPIES AVAILABLE TO EMPLOYEES

6 Q 3 - NES Maximum weekly (ordinary) hours Requests for flexible working arrangements Parental Leave and related entitlements Annual Leave Personal, carers leave and compassionate leave Community Service leave Long Service Leave Public Holidays Notice of Termination and Redundancy Pay Fair Work Information Statement

7 Q4 Fair Work Information Statement The Fair Work Information Statement must be provided to all new employees as soon as possible after commencement, and/or to those who have not received it

8 Q 5 - Employee or Contractor Indicator Employee Independent Contractor Degree of control over how work is performed Performs work under the direction and control of the employer on an ongoing basis High level of control how work is done Hours of Work Generally works standard or set hours (casual hours may vary) Determines work hours to complete the task Expectation of work Usually has an ongoing expectation of work Usually engaged for a specific task (ex fixed term contract) Risk Bears no financial risk Bears the risk for making a profit or loss on each task. Usually bears responsibility and liability for poor work or injury sustained. Contractors generally have their own insurance policy. Superannuation Tools and Equipment Entitled to have superannuation contributions by their employer Tools and equipment provided by employer or a tool allowance paid Pays own superannuation Provides own tools and equipment (unless specifically provided in contract of services) Tax Has income tax deducted by their employer Pays own tax and GST to the ATO Method of Payment Paid regularly (weekly, fortnightly, monthly) Has ABN and submits invoice for work completed Leave Paid leave entitlements or loadings in lieu (casuals) Does not receive paid leave

9 Q6 Employment contracts Ensure written contracts of employment in place for permanent/part-time and fixed term employees which set out wages and terms and conditions If hiring staff on salary, ensure written contract of employment provides detail of what is to be included in the annual salary Include signature page on Induction docs which function as written evidence of information, training, etc provided to casuals

10 Q 7 - Award Classification Structures All Awards contain a Classification Structure aligned to the wage scale. Classification Structure outlines skill levels, qualifications and sets out typical duties and responsibilities which are reflected in the wage scale Level 1 of most awards is generally a probationary or training level Level 2 is generally the standard rate used for calculating allowances etc

11 Qs 8/9 Overtime, Penalty Rates, Allowances, Meal/Rest breaks Check various overtime and penalty rates in awards, eg: Outside span of hours Saturdays/Sundays Public Holidays Ensure proper allowances are paid First Aid, Leading Hand, Wet Weather Provide appropriate meal breaks and rest pauses Working through a meal break may constitute overtime

12 Q10 Minimum engagement Check award for minimum engagement periods for casual and part-time employees Hort Award currently no minimum Pastoral/Nursery Awards currently 3 hour minimum Award review matter under deliberation by FWC

13 Q11 Long Service Leave While contained in NES, LSL is a state matter All staff with continuous service eligible for LSL Breaks of not more than 3 months will constitute continuous service Check casual calculations total hours

14 Q12 Parental Leave Detailed provisions contained in NES Illegal to dismiss or discriminate against pregnant employee during employment or on return to work Ensure safe working environment/job Parental leave in NES is unpaid Department of Human Services oversee parental leave payments through Centrelink - $ per week Return to original position and pay required

15 Q 13 - Payslips Must include: Employer Name/ABN Employee Name Pay period and date of payment The hourly rate (if applicable) / annual salary, weekly/f nightly amount Number of hours worked at that rate Total dollar amount of pay at that rate Loadings, allowances, bonuses, penalty rates separate from ordinary rate Pay rate that applied on last day of employment Authorised deductions amount and details of each deduction Superannuation contributions including amounts, fund name, account number Optional: leave balances (good practice)

16 Qs 14 Record Keeping Employer Details & ABN Employee Details and commencement date Whether employee is fulltime, part-time, casual Pay rates paid, gross/net amounts, deductions, loadings, penalties etc. Hours worked and on which days Leave accrued, taken, balances, cash out agreements, loadings Superannuation amounts/date paid, fund details, fund choice documentation IFAs copy of agreements / notice to terminate Guarantee of annual earnings Termination of employment specify details, why, how, who terminated

17 Q 15 Individual Flexibility Agreements Allows employer and individual employee to agree on arrangements which varies the effect of the modern award or agreement in order to meet the genuine needs of the employer and employee. Can be initiated by either employer or employer No obligation to agree Restricted to: Arrangements around working hours Overtime rates penalty rates Allowances Leave loading IFA cannot undermine award entitlements Employee must be better off overall

18 Q 16 Termination of Employment Focus on demonstrating procedural fairness, evidence and employee rights Who has power to terminate? - eg Supervisors/Managers? Wrongful termination can lead to orders of backpay, compensation or reinstatement Develop policy and procedures for managing Covered in more detail in Session 2

19 Serious Misconduct [a] Wilful or deliberate behaviour that is inconsistent with the continuation of the employment contract; and [b] Conduct that causes serious and imminent risk to: - the health and safety of a person, or - the reputation, viability or profitability of the employer s business [c] theft, fraud, assault [d] Intoxication at work [e] Refusing to carry out a lawful and reasonable instruction that is consistent with the employee s contract of employment

20 Q 17 The importance of Induction Be clear about your expectations around performance and conduct/behavior - attendance, punctuality, fit-for-work, performance, behaviour, language, attitude, bullying, harassment, disputes Use multiple platforms paper-based, online, face to face, video.. (ensure sign off) Lead by example and train Supervisors Regular discussions with staff in an open environment Commitment to managing issues

21 Induction - Setting the Scene Introduction to workplace, company mission, who we are, what we do and why Employee details, contacts, medical declaration ID key go-to people, Supervisors Conditions of employment hours of work, breaks, rates of pay Key policies/procedures Job descriptions, training, performance and conduct expectations WHS employer and employee responsibilities and expectations Facilities, amenities, emergency plans, no-go areas Safe Work Procedures, incident reporting EMPLOYEE SIGN-OFF

22 Q17 International Workers Subject to same wages and conditions as Australian workers Backpacker tax 15% - must register with ATO as backpacker employer Superannuation must be paid 9.5% taxed at 65% on departure Special provision for Seasonal Workers travel costs ($500) and pastoral care Be aware of and sensitive to language barriers and cultural differences Use interpreters where available

23 Q 18 - Labour hire contractors Labour hire Contractors are the legal employers of on-hire workers Both LHC and Host employers are responsible for the health and safety of their workers with the host employers having a legal obligation to provide and maintain a safe work environment Consultation, understanding and agreement with LHC is essential Written LHC Agreement a must

24 Q 18 Labour Hire Contractors Accessorial Liability for farmers who use LHCs under both Fair Work and Migration Acts: workers not legally entitled to work, underpayment of wages, other abuses/exploitation of vulnerable workers FWO cases and media around prosecutions of LHCs still unregulated anyone with ABN can set up Qld & Vic licensing; RCSA Code of Practice Only use known/trusted LHCs due diligence and references