Changes to the Racial Discrimination Act propose to replace multiple sections of the act with a single section that makes it unlawful to do an act “otherwise than in private “ that is reasonably likely to “vilify” or “intimidate” another person’s race or colour.
Whether an act is reasonably likely to vilify or intimidate someone is to be determined “by the standards of a reasonable member of the Australian community”, for example, whether Aboriginal people had been vilified or intimidated would be determined not by whether members of that community believed they had been, but whether the overall Australian community judged that they had been.
Currently it is unlawful to “offend, insult, humiliate or intimidate” another person or group of people. So “offend”, “insult” and “humiliate” will be replaced by “vilify”.
It seems that someone will be able to insult or offend someone else based on the other person’s ethnicity, but if a “reasonable member of the Australian community” would not regard that conduct as severe enough to be considered vilification, the provisions in the Exposure Draft will not be breached.
Despite of the outcome of the Exposure Draft, all workplaces and employers will be covered by other conditions of the Racial Discrimination Act and other anti-discrimination laws.
Exploitation of an employee for a reason that included their race would be unlawful discrimination in employment on the ground of race, but would be dealt with under other sections of the Racial Discrimination Act.
The Proposed changes to the Racial Discrimination Act may lead to workers to seeking out more complicated and expensive legal routes to address prejudice in the workplace the Diversity Council of Australia believes.
The proposal to weaken sections of The Racial Discrimination act regarding “hurt feelings” could lead to more complaints under defamation laws.
Research indicates that non – Australian born residents are far more likely to experience racial discrimination in the workplace. Indigenous Australians are also more at risk to experience improper behaviour.
The current Racial Discrimination Act Framework relies on conciliation to resolve problems. The current proposals may encourage complaints under defamation laws instead which is far more costly and time consuming as well as being bad for business and staff morale.
To save your business any possible litigation you should make sure that your policies on racial discrimination are clear and your employees are well trained in them.
Wednesday 23 July 2014
Monday 21 July 2014
3 Common Employment Law Questions Answered
Sometimes employment law can be difficult to comprehend. Here are three common work place situations and their legal ramifications.
1: DISMISSAL DUE TO ILLNESS
There are three potential areas of legal exposure:
• unfair dismissal;
• unlawful termination; and
• discrimination
From time to time an employee will have to leave your employment due to long term health issues. They may decide to resign or you may have to eventually consider dismissing them. It is beneficial to consider as many ways possible to help them back to work – dismissal should be a last resort and could be deemed unfair if not managed properly.
If continued employment is no longer achievable because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.
The Fair Work Act 2009 states that an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury.
The Fair Work Regulation 2009 provides that it is not a “temporary absence” if the employees absence from work extends for more than 3 months , or the total absences of the employee , within a 12 month period , have been more than 3 months. The employer still requires a valid reason to dismiss the employee, even if the employee has been absent on unpaid leave for three months or over.
We suggest you ask the employee to provide medical information on his capacity for work and what support he might need to return to work.
2: EVIDENCE OF ILLNESS
You can insist on employees providing evidence that would satisfy a reasonable person that they are entitled to sick leave, for example, a medical certificate or statutory declaration. That being said there is no specific timeframe as the timeframe required is “as soon as practicable”.
For this reason you should devise a written policy that stipulates that your employees provide such information within a specific timeframe. Your policy should also specify that your employees inform their manager directly of their absence (when possible), or phone their manager within a certain timeframe to explain why they cannot make it to work and when they expect to return.
3: NOTICE OF REDUNDANCY
When dismissing an employee it is necessary to give them notice. The notice commences when the employer tells the employee that they want to end the employment. If you notify them of their redundancy just before leave, the time spent on annual leave will count towards their notice period.
1: DISMISSAL DUE TO ILLNESS
There are three potential areas of legal exposure:
• unfair dismissal;
• unlawful termination; and
• discrimination
From time to time an employee will have to leave your employment due to long term health issues. They may decide to resign or you may have to eventually consider dismissing them. It is beneficial to consider as many ways possible to help them back to work – dismissal should be a last resort and could be deemed unfair if not managed properly.
If continued employment is no longer achievable because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.
The Fair Work Act 2009 states that an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury.
The Fair Work Regulation 2009 provides that it is not a “temporary absence” if the employees absence from work extends for more than 3 months , or the total absences of the employee , within a 12 month period , have been more than 3 months. The employer still requires a valid reason to dismiss the employee, even if the employee has been absent on unpaid leave for three months or over.
We suggest you ask the employee to provide medical information on his capacity for work and what support he might need to return to work.
2: EVIDENCE OF ILLNESS
You can insist on employees providing evidence that would satisfy a reasonable person that they are entitled to sick leave, for example, a medical certificate or statutory declaration. That being said there is no specific timeframe as the timeframe required is “as soon as practicable”.
For this reason you should devise a written policy that stipulates that your employees provide such information within a specific timeframe. Your policy should also specify that your employees inform their manager directly of their absence (when possible), or phone their manager within a certain timeframe to explain why they cannot make it to work and when they expect to return.
3: NOTICE OF REDUNDANCY
When dismissing an employee it is necessary to give them notice. The notice commences when the employer tells the employee that they want to end the employment. If you notify them of their redundancy just before leave, the time spent on annual leave will count towards their notice period.
Monday 14 July 2014
Engagement the key to improving business results
An employee who is engaged works with their colleagues to improve performance within their job for the benefit of the organisation. An organisation should work to develop engagement to achieve a symbiotic relationship between employee and employer.
By nurturing an engaged workforce your company can receive many benefits, including:
• 60% reduction in quality defects
• 16% increased profits
• 37% less absenteeism
• 18% productivity increase
• 12% customer satisfaction improvement
• 25% reduction in staff turnover
Research confirms that engagement leads to higher financial performance, higher customer satisfaction and higher employee retention.
Senior leader participation is a critical factor for employee engagement. Good leaders create an environment of engagement .If senior leaders do not understand the importance of an engaged workforce your business can suffer because of it.
Higher levels of employee engagement in an organisation can unmistakably help improve business performance. To encourage a sense of engagement in a workforce it’s vital to have leaders that motivate employees and win their respect.
Leaders should act as role models and inspire employees.
There is a powerful connection between the level of employee engagement and organisational performance.
Consider using customer satisfaction surveys to assess the levels of staff engagement in your organisation. If customer satisfaction is high, it is likely that employee engagement is too. If customer satisfaction is poor, so is employee engagement. The results can help to prove to your management team the effects of employee engagement and encourage them to foster it in the workplace.
Disengaged workers can be the most harmful employees in the workplace. They are discontented and let that unhappiness show in words, attitudes and actions. They can undermine the performance of others by dragging down the morale and drive of the team. Improving employee engagement does not necessarily need to be expensive or time consuming.
Here are 3 effective ways of boosting staff engagement in your workplace:
• Praise from supervisors
• Attention from leaders
• Opportunity to lead projects
Many companies are beginning to understand that engaged employees are a formidable source of competitive advantage.
An engaged employee is more enthusiastic to expend more effort into their work, put in more hours, brainpower and energy. They have more commitment to do the best job they can and take on roles with more enthusiasm and energy.
They bring original concepts and ideas and infuse their team with enthusiasm and are less likely to seek employment elsewhere.
By nurturing an engaged workforce your company can receive many benefits, including:
• 60% reduction in quality defects
• 16% increased profits
• 37% less absenteeism
• 18% productivity increase
• 12% customer satisfaction improvement
• 25% reduction in staff turnover
Research confirms that engagement leads to higher financial performance, higher customer satisfaction and higher employee retention.
Senior leader participation is a critical factor for employee engagement. Good leaders create an environment of engagement .If senior leaders do not understand the importance of an engaged workforce your business can suffer because of it.
Higher levels of employee engagement in an organisation can unmistakably help improve business performance. To encourage a sense of engagement in a workforce it’s vital to have leaders that motivate employees and win their respect.
Leaders should act as role models and inspire employees.
There is a powerful connection between the level of employee engagement and organisational performance.
Consider using customer satisfaction surveys to assess the levels of staff engagement in your organisation. If customer satisfaction is high, it is likely that employee engagement is too. If customer satisfaction is poor, so is employee engagement. The results can help to prove to your management team the effects of employee engagement and encourage them to foster it in the workplace.
Disengaged workers can be the most harmful employees in the workplace. They are discontented and let that unhappiness show in words, attitudes and actions. They can undermine the performance of others by dragging down the morale and drive of the team. Improving employee engagement does not necessarily need to be expensive or time consuming.
Here are 3 effective ways of boosting staff engagement in your workplace:
• Praise from supervisors
• Attention from leaders
• Opportunity to lead projects
Many companies are beginning to understand that engaged employees are a formidable source of competitive advantage.
An engaged employee is more enthusiastic to expend more effort into their work, put in more hours, brainpower and energy. They have more commitment to do the best job they can and take on roles with more enthusiasm and energy.
They bring original concepts and ideas and infuse their team with enthusiasm and are less likely to seek employment elsewhere.
Monday 7 July 2014
2014 WAGE DECISION: FWC orders 3% increase in minimum wages
1.5 Million Of Australia’s lowest paid workers will have a pay increase of 3% by July of this year. For a full-time employee working a 38-hour week the increase is $18.70 per week (50 cents per hour) to $640.90 per week, or $16.87 per hour.
FWC President Justice Iain Ross announced the decision, noting that the increase in super guarantee from 1 July had a moderating impact.
The ACTU had originally asked for a $27 per week, or 4.3% increase but the Federal Government warned that increases that high would lead to a loss of jobs as some businesses would not find this affordable.
Ai Group had proposed a 1.6% or $10 per week increase, with ACCI's proposal even more conservative at 1.3%.
The panel suggested that it would not be as low if the superannuation guarantee rate was not also due to rise in July.
The Fair Work Commission last month ruled to limit Sunday penalty rates for some restaurant and cafe staff from July, expected to save businesses up to $112 million a year.
What this means for you
Modern Awards
Businesses that apply Modern Award rates will have to increase them to comply with the FWC decision. From 1 July 2014 all wage rates and penalties will need to match the applicable Modern Award.
Annualised Salaries and Individual Flexibility Agreements
if your business has utilised Individual Flexibility Agreements, you will have to review those agreements to guarantee employees are still “better off overall” when compared to the increased modern Awards rates.
Employers who use annualised salary arrangements under Modern Awards should also check the Award requirements.
Enterprise Agreements
if you are currently negotiating an Enterprise Agreement or if you already have one, you should consider the increase to ensure that the rates that are negotiated are enough to pass the Better off Overall Test.
If you have an Enterprise Agreement, you will need to ensure the minimum base rates in the EA remain at least equal to the new Modern Award rates.
Allowances
The Fair Work Commission’s decision will impact allowances as well as base rates. A number of Modern Award allowances are expressed as a percentage of the "standard rate", which is the rate applicable to the trade’s equivalent classification in the award. These allowances will therefore increase in line with the increase in the standard rate. Expense related allowances will increase in line with the relevant CPI index.
High Income Guarantee
the High Income Threshold will also increase from 1 July. Any employers who avoid Award conditions by using High Income Guarantees to will need to examine their agreed terms to remain compliant and above the new threshold. If guarantee levels fall below the threshold minimum entitlements will revert to those in the Award (including, for example, overtime and penalty rates).
Employers will have to identify and implement any changes promptly to ensure compliance to the Fair Work Commission’s decision.
FWC President Justice Iain Ross announced the decision, noting that the increase in super guarantee from 1 July had a moderating impact.
The ACTU had originally asked for a $27 per week, or 4.3% increase but the Federal Government warned that increases that high would lead to a loss of jobs as some businesses would not find this affordable.
Ai Group had proposed a 1.6% or $10 per week increase, with ACCI's proposal even more conservative at 1.3%.
The panel suggested that it would not be as low if the superannuation guarantee rate was not also due to rise in July.
The Fair Work Commission last month ruled to limit Sunday penalty rates for some restaurant and cafe staff from July, expected to save businesses up to $112 million a year.
What this means for you
Modern Awards
Businesses that apply Modern Award rates will have to increase them to comply with the FWC decision. From 1 July 2014 all wage rates and penalties will need to match the applicable Modern Award.
Annualised Salaries and Individual Flexibility Agreements
if your business has utilised Individual Flexibility Agreements, you will have to review those agreements to guarantee employees are still “better off overall” when compared to the increased modern Awards rates.
Employers who use annualised salary arrangements under Modern Awards should also check the Award requirements.
Enterprise Agreements
if you are currently negotiating an Enterprise Agreement or if you already have one, you should consider the increase to ensure that the rates that are negotiated are enough to pass the Better off Overall Test.
If you have an Enterprise Agreement, you will need to ensure the minimum base rates in the EA remain at least equal to the new Modern Award rates.
Allowances
The Fair Work Commission’s decision will impact allowances as well as base rates. A number of Modern Award allowances are expressed as a percentage of the "standard rate", which is the rate applicable to the trade’s equivalent classification in the award. These allowances will therefore increase in line with the increase in the standard rate. Expense related allowances will increase in line with the relevant CPI index.
High Income Guarantee
the High Income Threshold will also increase from 1 July. Any employers who avoid Award conditions by using High Income Guarantees to will need to examine their agreed terms to remain compliant and above the new threshold. If guarantee levels fall below the threshold minimum entitlements will revert to those in the Award (including, for example, overtime and penalty rates).
Employers will have to identify and implement any changes promptly to ensure compliance to the Fair Work Commission’s decision.
Thursday 3 July 2014
2 Ways the Budget Affects You
The 2014 budget may affect many different aspects of your business. Here are 2 changes that may affect both staff and employers.
1. Superannuation Guarantee increase delayed
Effective from 1 July 2014, the Superannuation Guarantee percentage has increased to 9.5% from the current 9.25%.
The Superannuation Guarantee percentage will gradually rise to 12 % by July 2022,
Superannuation Guarantee is the official term for compulsory superannuation contributions made by employers on behalf of their employees. An employer, whether they are a small or large business, must at this time, contribute the equivalent of 9% of an employee’s salary.
The new increases are laid out in the table below:
The Superannuation Guarantee has financial implications for anyone planning to remain in the workforce for more than 7 years as the increase of 3% will take full effect in just over 6 years’ time. According to the Federal Government, the 33% increase will give a 30 year old on average full time wages an extra 108, 000 in retirement savings.
2. Changes to the Fair Entitlement Guarantee
One of the other important changes the 2014 federal budget delivered was alterations to the fair Entitlements Guarantee, which guarantees several unpaid employee entitlements in the event of insolvency or bankruptcy.
From January 1 2015 the maximum payment for redundancy pay will be 16 weeks. Previously redundancy pay was capped at 4 weeks’ pay per full year of service. From 1 July 2014, indexation of the maximum weekly wage used in calculating entitlements for claimants earning above the maximum weekly wage of $2,451 will be paused until 30 June 2018.
The changes will apply only to liquidations and bankruptcies that occur on or after the commencement date of 1 January 2015.
Employees seeking to claim an entitlement above the maximum will maintain rights as unsecured creditors to recover any outstanding entitlements through the winding up of their employer’s business.
The Government will achieve savings of $87.7 million over four years by aligning redundancy payments under the Fair Entitlements Guarantee scheme to the National Employment Standards contained in the Fair Work Act 2009.
The savings from this measure will be redirected by the Government to repair the Budget and fund policy priorities.
1. Superannuation Guarantee increase delayed
Effective from 1 July 2014, the Superannuation Guarantee percentage has increased to 9.5% from the current 9.25%.
The Superannuation Guarantee percentage will gradually rise to 12 % by July 2022,
Superannuation Guarantee is the official term for compulsory superannuation contributions made by employers on behalf of their employees. An employer, whether they are a small or large business, must at this time, contribute the equivalent of 9% of an employee’s salary.
The new increases are laid out in the table below:
|
Financial year
|
Superannuation
guarantee
|
|
July 2014-June 2015
|
9.5%
|
|
July 2015-June 2016
|
9.5%
|
|
July 2016-June 2017
|
9.5%
|
|
July 2017-June 2018
|
9.5%
|
|
July 2018-June 2019
|
10.0%
|
|
July 2019-June 2020
|
10.5%
|
|
July 2020-June 2021
|
11.0%
|
|
July 2021-June 2022
|
11.5%
|
|
July 2022-June 2023
|
12.0%
|
The Superannuation Guarantee has financial implications for anyone planning to remain in the workforce for more than 7 years as the increase of 3% will take full effect in just over 6 years’ time. According to the Federal Government, the 33% increase will give a 30 year old on average full time wages an extra 108, 000 in retirement savings.
2. Changes to the Fair Entitlement Guarantee
One of the other important changes the 2014 federal budget delivered was alterations to the fair Entitlements Guarantee, which guarantees several unpaid employee entitlements in the event of insolvency or bankruptcy.
From January 1 2015 the maximum payment for redundancy pay will be 16 weeks. Previously redundancy pay was capped at 4 weeks’ pay per full year of service. From 1 July 2014, indexation of the maximum weekly wage used in calculating entitlements for claimants earning above the maximum weekly wage of $2,451 will be paused until 30 June 2018.
The changes will apply only to liquidations and bankruptcies that occur on or after the commencement date of 1 January 2015.
Employees seeking to claim an entitlement above the maximum will maintain rights as unsecured creditors to recover any outstanding entitlements through the winding up of their employer’s business.
The Government will achieve savings of $87.7 million over four years by aligning redundancy payments under the Fair Entitlements Guarantee scheme to the National Employment Standards contained in the Fair Work Act 2009.
The savings from this measure will be redirected by the Government to repair the Budget and fund policy priorities.
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