Short Answer question （500 words） IN 6 hours
Lingyun017
MinStandardsslideslabourlaw1.pptxMinimum Employment Standards
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Explain the rationale for minimum standards
which workers do the minimum standards provisions in the Fair Work Act cover?
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The Fair Work Act 2009 (Cth)
Current scheme is Fair Work Act 2009 (Cth)
Under the Fair Work Act minimum standards provisions mostly apply to employees of national system employers including employees of foreign, trading and financial corporations; commonwealth public sector employees; flight crew officers, maritime employees and waterside workers employed by a business operating in interstate and overseas trade or commerce; all employees in the Australian Capital Territory and the Northern Territory; All private sector employees in referring States: s14, s13
Parental leave and notice of termination – covers all Australian employees
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Devices setting minima
Statutory provisions
National Employment Standards (NES) in the Fair Work Act 2009
Modern Awards
Comparison of award vs statutory regulation
Compare and contrast the setting of minimum standards in awards to setting minimum standards in statutory provisions. Which mechanism is better? Why is it better?
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National Employment Standards under the Fair Work Act 2009 (Cth)
Maximum hours of work
Right to request flexible work arrangements
Annual leave
Personal leave
Unpaid parental leave
Community service leave
Long service leave (limited entitlement)
Public holidays
Notice of termination and redundancy pay
Fair Work Information Statement
Unpaid domestic violence leave
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What is the standard for hours of work under the Fair work Act?
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s62 Maximum weekly hours
Maximum weekly hours of work
(1) An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full‑time employee—38 hours; or
(b) for an employee who is not a full‑time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
Employee may refuse to work unreasonable additional hours
(2) The employee may refuse to work additional hours (beyond those referred to in paragraph (1)(a) or (b)) if they are unreasonable.
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s63 Modern awards and enterprise agreements may provide for averaging of hours of work
(1) A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:
(a) for a full‑time employee—38 hours; or
(b) for an employee who is not a full‑time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
(2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
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s64 Averaging of hours of work for award/agreement free employees
(1) An employer and an award/agreement free employee may agree in writing to an averaging arrangement under which hours of work over a specified period of not more than 26 weeks are averaged. The average weekly hours over the specified period must not exceed:
(a) for a full‑time employee—38 hours; or
(b) for an employee who is not a full‑time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
(2) The agreed averaging arrangement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).
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Hours of Work
38 hours per week (ordinary hours) plus reasonable additional hours for a full-time employee: s62(1) of the Fair Work Act
Modern Award ordinary hours currently = 38 hour per week
Awards and agreements can be used to average hours over a period of greater than a week: s63
Award/Agreement free employees can have their hours averaged over up to 26 weeks: s64
For what factors must be considered to determine what is ‘reasonable’ additional hours see s62(3).
It is explicitly provided that an employee may refuse to work unreasonable additional hours: s62(2) Fair Work Act
MacPherson v Coal & Allied (2009) 189 IR 50
Premier Pet v Brown (no2) [2013] FCA 167 (5 March 2013)
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Questions
What is the annual leave standard under the Fair work Act?
How do arrangement for cashing out annual leave operate?
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Annual leave
NES entitlement to 4 weeks annual leave per year: s87 Fair Work Act
Annual leave accumulates from year to year: s87(2).
An employer can direct an employee to take annual leave where it is reasonable to do so: s94(5)
‘Cashing out’ of annual leave allowed in certain circumstances
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Questions
What is the entitlement to personal leave under the Fair Work Act?
what is the entitlement to unpaid carers leave?
What is the entitlement to compassionate leave?
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Personal/carer’s leave
10 days’ paid personal/carer’s leave for each year of service: s96, s97 Fair Work Act
Mondelez v AMWU[2020] HCA 29 (13 August 2020) – paid personal leave to be paid at a rate based on ordinary hours of work
Personal leave accumulates from year to year: s96(2) Fair Work Act
2 days’ unpaid carer’s leave for each permissible occasion: s102, s103
2 days’ paid compassionate leave: ss104- 106 Fair Work Act
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Questions
What is the current entitlement to unpaid parental leave?
Who is eligible for unpaid parental leave?
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Unpaid Parental Leave
NES employee entitlement to 12 months unpaid parental leave: ss70 Fair Work Act
Each parent may take parental leave:s72
Right to request further 12 months unpaid leave if partner has not taken leave: s76
FW Amendment Act 2015 inserted new s76(5A) into FW Act
All Australian Employees with 12 months continuous service eligible for unpaid parental leave: s67, s743, s744
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Who is eligible for the parental leave payment?
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Paid Parental Leave
Paid Parental Leave Act 2010 (Cth)
Paid at federal minimum wage rate for 18 weeks.
A carer must have undertaken paid work for at least 10 of the 13 months preceding birth or adoption without a break of more than 12 weeks.
High income earner exclusion
Paid Parental Leave Amendment (Work Test) Act 2019 – (break of 12 weeks now allowed).
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Question
What is the right to request flexible work under the Fair work Act?
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Right to request flexible work arrangement
The following employees (with 12 months service) may request a change to work arrangement s65:employees with caring responsibilities ;parents or guardians of children that are school age or younger ;employees with disability ; employees who are 55 years or older ; employees who are experiencing family violence or who are caring or supporting a family or household member who is experiencing family violence
Employers can refuse request on reasonable business grounds: s65(5)
The employer must provide written reasons for a refusal: s65(6)
An employer refusal cannot be challenged in court: s44(2)
FWC report November 2012
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Notice of Termination and Redundancy Pay
Requirement for notice of termination – up to 5 weeks’ notice depending on employees’ age and length of service: s117
Severance Pay upon redundancy up to 16 weeks’ pay based on length of service: s119.
Redundancy pay can be reduced by the FWC where employer obtains for the employee other acceptable employment (s120): this is determined objectively: Spotless Services Australia Limited t/as Alliance Catering - [2016] FWC 4505; Australian Chamber of Manufactures v Derole Nominees Pty Ltd [1990] AIRC 980; (1990) 140 IR 123
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Other Standards
Information Statement: s125 Fair Work Act
Public Holidays: see especially s114-s116
Community Service Leave: see especially s108-s109
Long service leave
Unpaid domestic violence leave : s106A-106C [added by Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 (Cth).]
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Award Modernisation
Award Modernisation commenced pursuant to provisions in the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth)
Minister requested modern awards under s576C of the Workplace Relations Act 1996
Fair Work Commission has power to make modern awards under Part 2-3 of the Fair Work Act
Modern awards objective under s134 of the Fair Work Act
4 yearly review of modern awards - penalty rates (2017) 265 IR 1
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Who do the modernised awards apply to?
What content can modern awards include?
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Who do modern awards cover?
Awards may apply on a ‘common rule’ and/or industry basis to classes of employer and employees: see 143(5)(a) of the Fair Work Act
Awards may not apply to high income employees: see ss47(2), 329, 333 and Fair Work regulation 2.13
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Award Variation and Flexibility Clauses
Initial review of awards 2 years after commenced operation
First 4 yearly review
Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018(Cth).
Individual Flexibility Clauses: s144
Individual Employee must be better off overall: s144(4)(c)
Model Clause written by industrial tribunal
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Content of modern awards
May include:
minimum wages
type of employment
arrangements for work (rosters etc)
overtime rates
penalty rates
annualised wage arrangements
allowances
leave, leave loading etc
superannuation
consultation, representation and dispute resolution
outworkers
Must include:
coverage terms
flexibility term
dispute settlement
ordinary hours of work
(relevantly) pieceworkers rates, industry-specific redundancy schemes
automatic variation of allowances
Must NOT include:
objectionable terms
payments/deductions for employer benefit
right of entry
discriminatory terms
state-based differences
long service leave
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Question
Who sets the minimum wage?
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Wage Setting
Specialist Minimum Wage Panel of Fair Work Commission (see s617) set and vary minimum wages.
Minimum wage objective: s284
Panel must take into account factors including:
Performance and competitiveness of national economy including productivity, business competitiveness, inflation and employment growth;
Promoting social inclusion through increased workforce participation; and relative living standards and the needs of the low paid
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Wage Setting
Fair Work Commission must make minimum wage order and may vary or revoke modern award minimum wages: s285
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Question
What was the last wage rise and what is the current minimum wage?
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Wage Setting
FWC Minimum Wage Panel Annual Wage Review 2019-2020
The national minimum wage is $19.84 per hour or $753.80 per week as of 1 July 2020
%1.75 increase in wages
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Are the current minimum wages and conditions in Australia adequate?
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[2017] FWCFB 3500 Annual Wage Review 2016–17 at paragraph [14] wage review “modest and regular increases do not result in disemployment effects”.
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Covid-19 ‘Jobkeeper’ Arrangements
Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) Sch 1; Part 6-4C; Coronavirus Economic Response Package (Payments and Benefits) Act 2020; Coronavirus Economic Response Package (Payments and Benefits) Rules 2020; Coronavirus Economic Response Package (Payments and Benefits) Amendment Rules (No. 2) 2020;Coronavirus Economic Response Package (Payments and Benefits) Alternative Decline in Turnover Test Rules 2020
Ian Neal, David Chin and Christopher Parkin, ‘Guide to the Jobkeeper Scheme’ (Vers. 4, updated 12 May 2020): https://www.ianneil.com/jobkeeper-guide
