Basic Employment Conditions

Transcription

1 Employer As an employer, you MUST provide the following: Fair wages and conditions of employment A safe work environment, free from hazards, discrimination and harassment Employment conditions which allow employees to balance work and family Fair ways to resolve disputes Opportunities for employees to be involved in decisions which affect them and offer suggestions for improvement How you go about fulfilling these obligations are detailed in the various Acts and Awards relevant to your business. For example, trainers and employees in Victoria are covered by federal legislation. The main award which sets out the basic employment conditions of stable employees and track riders is the Horse and Greyhound Training Award ( This Award covers all employers and employees in Victoria involved in the training of thoroughbred race horses. In addition to the federal laws, there are Victorian state laws which apply to your business and employees, such as occupational health and safety, long service leave and equal opportunity. The Horse and Greyhound Training Award, 2010 The Horse and Greyhound Training Award 2010 (the Award) details the minimum standards and conditions you must provide your employees with. You cannot provide less than the pay and conditions outlined in this Award. It is the source of workplace pay and conditions for employers and employees working in the horse training industry, including stable employees, track riders and stable foreman (see the Award for all the classifications covered). Minimum Conditions The National Employment Standards (NES) There are ten (10) basic minimum national conditions which apply to all workplaces and employees in Australia. They are the National Employment Standards (NES) and are contained in the Fair Work Act 2009: 1. Maximum hours of work - 38 hours plus reasonable overtime (full time) 2. Ability to request flexible working arrangements 3. Parental Leave of 12 months unpaid parental leave for each member an employee couple 4. Annual Leave of four (4) weeks per year 5. Personal Carer s Leave of 2 weeks per year Page 1

2 6. Community Services Leave which allows employees to take unpaid leave to engage in prescribed community service activities such as fire fighting. 7. Long Service Leave 8. Public holidays 9. Notice of termination and redundancy pay 10. Fair Work Information Statement Hours of Work and Reasonable Overtime Under the Horse and Greyhound Training Industry Award 2010 commences, ordinary hours of work remain 38 hours plus reasonable overtime. What are reasonable additional hours or overtime? What constitutes reasonable additional hours depends on a range of factors including: any risk to the employee's health and safety from working the additional hours; the employee's personal circumstances, including family responsibilities; the operational requirements of the workplace; the amount of notice given to the employee of the request or requirement that they work additional hours; and when the additional hours are worked. Hours of Work and Categories of Employees A full-time employee is a permanent employee who works 38 hours a week; A part-time employee is a permanent employee who works a regular pattern of hours which is less than 38 hours a week; A casual employee can be asked to work up to 38 ordinary hours a week, with reasonable overtime, but has not set pattern of work hours and is employed on a day to day basis, with no guarantee of ongoing employment. The ordinary hours of work for all employees shall be 38 hours and can be rostered over five (5) full days or over four (4) full days and two (2) half days, Monday to Saturday. You must provide your employees with a roster one week before it is due to commence (See clause 18.1 Hours of Work and Related Matters in the Horse and Greyhound Training Industry Award 2010). Letters of Employment A good employment practice is to provide your employees with an employment letter which details how they are employed i.e. casual, full-time or part-time. Page 2

3 Payment and Wage Related Matters Payment for Hours of Work The basic hourly rates of pay are contained in the Horse and Greyhound Training Award 2010 (clause 13). You should seek advice from the Fair Work Commission if you are unsure. Casual Employees Casual employees must receive a 25% loading on their hourly rate (see Award). They are not entitled to receive annual or sick (personal) leave. Casual employees should only be engaged to meet short term and/or irregular work needs or emergency situations. If they are working more regularly and on a long-term basis, they may be deemed to be a permanent full-time or part-time employee. The Award states that an employee who has been working for more than 12 weeks on a regular roster can elect to become a permanent employee. A casual employee must be engaged for a minimum daily period of 3 hours and not more than once on each day. For more information check the Horse and Greyhound Training Award Part-time Employees Part-time employees receive the same conditions as full-time employees but on a pro-rata basis. Allowances The Award (Clause 14) details a range of allowances which are payable to employees. These are paid on top of their normal rates of pay, unless provided. Allowances include: The racecourse attendance allowance entitles employees to a certain payment if the race course the employee needs to travel to attend work, is a certain distance away. A meal allowance which is payable for each meal the employee requires whilst working at a race track. This is not payable if you provide the employee with a meal. A travel allowance is applicable when the employee is required to travel for work, or required to live and sleep at some other place than their normal place of residence. Payslip or Pay Notices You are legally required to provide employees with a pay slip within one (1) day of them receiving their pay. The pay slip must specify details such as name of the employer, name of the employee and their ABN and the date on which the payment was made. For the complete legal requirements for pay slips, visit the Australian Taxation Office (ATO) website. Page 3

4 Time and Wages Records You are required by law to keep the certain records relating to employee wages and time worked for seven (7) years. Superannuation Employees are covered by the Superannuation Guarantee legislation. You MUST make a financial contribution to an employee s nominated superannuation fund. The amount payable under this legislation is 9.25% of the employee s ordinary earnings (i.e. not on overtime payments or allowances). For further information, contact the Australian Taxation Office (ATO) website on and search for superannuation guarantee meet your obligations. Deductions from an Employee s Pay The Fair Work Act 2009 details what deductions are allowable from an employee s pay. You may: Deduct amounts for the employees benefit if they authorise you in writing to do so. Any authorisation needs to include the amount of the deduction; Recover an overpayment of wages, as long as the deduction is reasonable in the circumstances; To recover damage to the employer s property, provided that it is reasonable and has been discussed with the employee; To cover the cost of board and lodging if the employee is living on or adjacent to the property. The deduction should be discussed with the employee and not be greater than if the employee found their own accommodation (see Award). Annual Leave What the NES and Award says Annual Leave is paid leave which the employee becomes entitled to after a period of 12 months of continuous service. The employee is entitled to four weeks leave with pay after this time. This entitlement is contained in the National Employment Standard and also the Award. The intention of annual leave is to enable the employee to take time off away from the workplace to rest. Annual Leave should be taken when it suits the employee and the business. This means striking a balance between the needs of both the employee and the employer. Full-time and part-time employees are entitled to accrue and take annual leave, whereas casual employees are not. Casual employees receive a loading in lieu of this annual leave to compensate. Page 4

5 Payment for Annual Leave Annual leave should be paid at the amount the employee would have received had they worked. Additionally, the Award provides for payment of a loading of 17.5% on annual leave. Under some other employment contracts and workplace agreements, annual leave loadings may have been absorbed into pay amounts and are therefore may not be applicable. Can I direct an employee to take annual leave? There may be circumstances where you can direct an employee to take leave. These include during a business shut-down (see clause 23.3), or if the employee has a large accumulated annual leave balance. An example of a large accumulated annual leave balance is 8 weeks for an employee working 38 hours per week over a 2-year period. Personal/Carer s Leave What the NES and Award say The NES provides for personal/carer s leave of 2 weeks per year. What is Carer s Leave? Carer s Leave is leave with pay in order to care for an immediate family member, or member of the employee s household, who is sick or injured. An Immediate family member refers to the employee s spouse (including a domestic partner, former spouse, or former domestic partner) children (including adopted child, a step-child, or ex-nuptial child), parents, brothers, sisters, grandparents, or legally appointed guardian. A Member of the employee s household refers to persons who permanently reside at the employee s normal domicile. Carer s Leave is provided on the basis of up to 10 days per annum of an employee s Personal Leave balance. Specifically, Carer s Leave is deducted from an employee s Personal Leave accrual and is not an additional leave entitlement. Personal/Carer s Leave is not cumulative. Who Does Carer s Leave Apply to? Full-time and part-time employees are entitled to take carer s leave. Under the NES, casual employees will be entitled to two unpaid days of carer s leave. The Horse and Greyhound Training Award 2010 refers entirely to the NES provisions for personal/carer s leave. Page 5

6 Approving Carer s Leave The approval of Carer s Leave is based upon the following criteria: A member of the employee s immediate family, or a member of the employee s household is either ill or injured and requires the employee s care and assistance If required, satisfactory evidence of the illness or injury to the immediate family member, or the member of the employee s household, is provided. Notification Required Employees requiring carers leave are required to notify you at the earliest opportunity possible on the first day of absence. They should also advise of the nature of the illness or injury of the person they will be caring for and the estimated duration of leave. Failure to notify an absence on the basis of taking carers leave where the employee has the capacity to notify, within four full working days, may be regarded as abandonment of employment. If this situation arises, it is best to seek advice on how to handle an abandonment of employment situation. Supporting Documentation You may request the following documentation from the employee to support their application for paid carers leave: A certificate signed by a qualified medical practitioner Notification (verbal or written) that the employee is the care-giver of the employee s immediate family member, or member of the employee s household. Parental/Maternity Leave Legislation and Parental Leave The National Employment Standards (NES) provides for unpaid parental leave of 52 weeks. Parental Leave covers Maternity, Paternity and Adoption Leave. An employee is entitled to parental leave after a period of continuous service of 12 months. Parental leave is provided so the employee can take leave following the birth or adoption of a child. It applies to all permanent employees (full-time and part-time) but not casuals. The National Employment Standard for parental leave: Maternity and adoption (unpaid) leave are provided for periods of up to 12 months after fulfilling at least 12 months continuous service Paternity (unpaid) leave is provided for periods of either one week, or up to 52 weeks, after fulfilling at least 12 months continuous service. The Horse and Greyhound Training Award 2010 refers entirely to the NES provisions for parental leave. Page 6

7 Eligible parents who are primary carers of children born or adopted from 1 January 2011 can receive a maximum payment of 18 weeks of Parental Leave Pay, paid at the national minimum wage, which is currently $ per week before tax. Eligible fathers and partners can receive up to 2 weeks Dad and Partner Pay. For additional information on the Paid Parental Leave Scheme go to It is your employee s responsibility to apply to the Family Assistance Office for this payment and advise you. The Family Assistance Office will determine eligibility and then advise you as the employer of the outcome. If eligible, you as the employer will make the payments to your employee and the Family Assistance Office will pay you the money. Applying for Leave All Parental Leave: An employee needs to provide at least 10 weeks notice (in writing) of intention to seek approval to take parental leave. Maternity Leave / Paternity Leave: The employee must produce a medical certificate stating the expected date of confinement. Adoption Leave: Applicants must produce a statement from an adoption agency or other appropriate body of the presumed date of placement of the child with the employee for adoption purposes or A statement from the appropriate government authority confirming that the employee is to have custody of the child pending application for an adoption order. Basic Entitlements Maternity Leave: Up to a maximum of 52 weeks leave Must include at least six weeks following birth of child. May work up to six weeks prior to date of expected confinement. Beyond this period a doctor s certificate indicating fitness to attend duty may be required indicating any restrictions on employment. An employee may take annual leave or long service leave as part of the maternity leave period. Paid sick leave is not available during any period of approved maternity leave. Paternity Leave: Up to 52 weeks leave to care for a child not beyond the child s first birthday An employee may take annual leave or long service leave as part of the paternity leave period. Paid sick leave is not available during the approved period of paternity leave. Page 7

8 Adoption Leave: Up to 52 weeks unpaid leave to care for children up to 16 years of age. An employee may take annual leave or long service leave as part of the adoption leave period. Paid sick leave is not available during the approved period of adoption leave Long Service Leave What is Long Service Leave? The intention of long service leave is to recognise the lengthy service of an employee and to provide the employee with a substantial period of leave from work. Long Service Leave Legislation Long service leave entitlements are governed by the Victorian Long Service Leave (Amendment) Act The Act provides 1) All employees (permanent and casual) are entitled to LSL and 2) LSL is 13 weeks after 15 years of continuous service, with a pro-rata entitlement upon termination of employment after 7 years of continuous service ( weeks per year of service). Continuous Service Continuous service includes: any unbroken periods of service of less than 3 months at a time; any authorised paid or most forms of unpaid leave will be counted for continuous service the customary nature of the employment. Approving Long Service Leave The granting of Long Service Leave periods to employees is achieved by balancing the employee s needs and the needs of the business. You need to consider the employee s reason for taking leave, including balancing work and family responsibilities. Payment for Long Service Leave For permanent employees either taking leave or having it paid out at the cessation of employment, the ordinary earnings at the time of taking LSL are used as the basis for payment. Casual employees accrue long service leave at the same rate as permanent employees. As casuals hours fluctuate, the entitlement is calculated on either: the average weekly hours/gross earnings in the past 12 months, or the average weekly hours/gross earnings in the past 5 years, whichever is the higher. Page 8

9 Termination of Employment and Payment of Long Service Leave An employee is entitled to pro-rata payment for Long Service Leave upon termination of employment, after at least seven years continuous service (but less than 10 years continuous service), except where the employee s employment is terminated for serious misconduct. Can I direct an Employee to take Long Service Leave? You can direct employees take long service leave under certain situations. If you cannot reach an agreement with the employee about taking long service leave (at 10 years as it can t be pro-rata), you can direct them to take it by giving them 90 days notice. However, as the employer, you MUST have a reason to direct the taking of leave. Your businesses financial circumstances may be a relevant factor if you are carrying a large amount of accrued long service leave which continues to rise in monetary value each year with salary increases. If the employee does not agree with you directing them to take leave, the matter may proceed to the magistrate s court, so it is advised that you seek appropriate advice before deciding to direct an employee to take long service leave. Can employees cash out Long Service Leave? No. Employees cannot cash out long service leave. It is not legal. For further information, see the Long Service Leave (Amendment) Act Community Service Leave What the Fair Work Act 2009 Says The Fair Work Act 2009 (Division 8) states that an employee who engages in an eligible community service activity is entitled to be absent from his or her employment to engage in the activity. The employee is also entitled to reasonable travelling time and reasonable rest time immediately following the activity. What is an Eligible Community Service Activity? An eligible community service activity is currently defined as voluntary emergency management activity or jury service. A voluntary emergency management activity includes fire fighting, civil defence, rescue and natural disaster activities with recognised emergency management bodies. If the absence is for voluntary emergency management activity it must be reasonable. Page 9

10 Notification Required The employee must give you notice as soon as is practicable, and advise of the expected period of the absence. If the employee is able to provide earlier notification of their intention to take Community Services Leave, then they must do so. If required by the employer the employee must also provide evidence to support the application for Community Services Leave. Payment for Community Service Activity Permanent employees must receive their normal base rate of pay for the first ten days of jury service. Emergency management leave covers voluntary emergency activity only and therefore the employer is not required under the Fair Work Act. Page 10

11 Public Holidays What the NES says The NES provides that an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes. However, you may request an employee to work on a public holiday if the request is reasonable (see following section on Reasonable Request ). Reasonable Request to Work on a Public Holiday In deciding whether a request or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account: 1) the nature of the workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee; 2) the employee s personal circumstances, including family responsibilities; 3) whether the employee could reasonably expect that the employer might request work on the public holiday; 4) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of work on the public holiday; 5) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork); 6) in relation to the refusal of a request the amount of notice in advance of the public holiday given by the employee when refusing the request. It would be reasonable, for example, for you to request an employee to work if there was a race meeting on a public holiday and that employee would ordinarily have been working on that day. In this example, the employee would be entitled to receive penalty rates under the Horse and Greyhound Industry Award 2010 or agree to take the time-in lieu/substitute the day. An employee s refusal to work would need to be reasonable and detail why they could not work on the public holiday. If an agreement could not be made, you would need to work through a dispute resolution procedure. For further information, check the Horse and Greyhound Training Award and the Fair Work Act available at Flexible Work Arrangements The National Employment Standards (NES) in the Fair Work Act 2009 introduced flexible work arrangements for employees with parental or carer responsibilities. This builds upon the existing legislation in Victoria - The Victorian Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic). These laws recognise the need to balance work and family commitments. Page 11

12 What are parental or carer responsibilities? Parental or carer responsibilities relate to the employee s role as a parent or carer to a child or another person who depends on the employee for care. The NES Flexible Work Arrangements The NES provides for a parent or carer of a child under school or a disabled child under 18 years old to make a request to have their work hours changed or varied permanently or temporarily to accommodate their carer responsibilities. In order to do this, the employee must have been employed by you for a minimum of twelve (12) months. It also applies to casuals who have been long term and who have a reasonable expectation of continuing employment with you. The aim is to ensure discussions take place between the employer and the employee as to what can reasonably be achieved through flexible work practices to accommodate family responsibilities. Considering a Request You can refuse an employees request for flexible working arrangements on reasonable business grounds, however, you must provide written details of why you have refused the request within 21 days. If there is a dispute and this matter goes to Fair Work Commission, this document will be important evidence. You need to include your reasons for the refusal in the written response to the employee. The key to this legislation is that employers should not unreasonably refuse to accommodate an employee s request for changes to their work arrangements because of parental or carer responsibilities. If an employee wishes to change their work hours, for example, the employer is required to consider a number of facts and circumstances, including the following: Factors to consider The cost of the proposed work changes for the business The effect on the organisation to be able to provide a service The type of work the employee performs How the change would affect other employees workload OH&S requirements The employee s needs Each request for flexible work arrangements should be considered fully and upon their merits. There are benefits for employers who grant employees flexible work arrangements, and these include greater productivity, loyalty and gaining recognition in the industry as an employer of choice. Page 12

13 Examples of flexible work arrangements Changes in work arrangements may include a reduction in hours, changing the days of work, job sharing, modifications to rosters and breaks, and working from home, to name a few. What if the flexible arrangements don t work? You can revisit the arrangements by providing the employee with adequate notice. If the arrangement just does not work in practice, you may advise the employee and discuss alternatives. If need be, you can go back to the original arrangements outlined in the contract of employment. It is important to document this. Put it in writing to the employee. A dispute resolution procedure for situations where a solution cannot be amiably sorted is provided in the following section on EO Legislation. The Fair Work Commission will also mediate in these matters and can be contacted for advice. The Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic) Whilst it has always been against Equal Opportunity law to discriminate on whether an employee is a parent or carer, the amendment to the existing Equal Opportunity Act 1995 (Vic) 2008 provides further protection. It recognises the need for employees to balance work with parental and carer responsibilities. Whilst the law is very similar to the NES requirement, the Victorian Act extends its coverage to working parents and carers and what it says is that it is unlawful to unreasonably refuse to accommodate an employee s parental or carer responsibilities. Caring has a broader application under this State legislation and may relate to an aging parent, or sick spouse, for example. The difference is that the NES relates to carers with children under school age or disabled children under the age of 18 years. As an employer, you need to consider all requests upon their merits and consider the benefits and disadvantages to your business. As previously highlighted, there are significant benefits to providing flexible working arrangements, be they permanent or temporary. However, if the business cannot accommodate the requests, you need to documentation the decision and advise the employee in writing. Be aware that the employee may appeal to the Victorian Equal Opportunity Commission on the basis of discrimination. You need to keep the documentation and ensure you are consistent when applying this law. A Safe Work Environment As an employer, you must provide a safe workplace for your employees and identify risks to health and safety. This is one of your basic obligations to your employees. Your employees must take reasonable care and cooperate with you to ensure a safe workplace. Page 13

14 The Occupational Health and Safety Act 2004 The Occupation Health and Safety Act 2004 (The OH&S Act) requires that employers take every reasonable action and work proactively to ensure health and safety in their workplace. Under the OH&S Act, your employees have a duty to take reasonable care in performing their duties, as well as a duty to cooperate with you by following OH&S policies and helping to identify hazards in the workplace. Your Legal Obligations You have a duty to protect the health and safety of your employees while at work by providing and maintaining a working environment that is safe and without risks to health. Risks must be eliminated or reduced as far as is practicable to do so. What is reasonably practicable in a given situation will depend on the nature of the risk the hazard presents, and the control measures available. Notifying of Incidents You are required to notify WorkSafe immediately after an incident that results in death or serious injury in the workplace. You must also notify WorkSafe of incidents that expose a person in the immediate vicinity to an immediate risk to their health or safety. Within 48 hours of notification, you must also give a written record of the notifiable incident to WorkSafe and retain a copy of this record for five years. Where a notifiable incident had occurred, the site of the incident must not be disturbed until advised by a WorkSafe Inspector. This does not apply where a site has been disturbed to protect the health and safety of a person, to aid an injured person or to take essential action to make the site safe. Further Information Contact WorkSafe Advisory Service (03) or (toll free). Page 14