Latest News
10th September 2015
As usual, there has been a lot of news and events occuring in the world of Australian workplace relations and employment. Here is some of the latest news that may be of interest to you.
AFL Grand Final Public Holiday
The Victorian Labor Government has gazzetted Friday, 2nd October 2015 a public holiday across all of metropolitan and country regional Victoria. Shop trading hours are not affected however, as for any other public holiday employees that work on that day will be entitled to public holiday penalty rates pursuant to applicable awards and enterprise agreements.
Fair Work Ombudsman on the Prowl
Following the revelations of gross underpayment of employees in various 7-11 store franchises the Fair Work Ombudsman has announced its latest campaign to spot check Australian businesses to ensure they paying staff correctly. The Fair Work Ombudsman will audit up to 250 businesses in Melbourne’s Dandenong region and a further 150 businesses in Perth as part of a new campaign. Fair Work inspectors will check that employers are paying the correct minimum hourly rates, penalty rates, allowances, loadings and providing appropriate meal breaks. The three-month campaign will focus on businesses located in and around Dandenong, Dandenong South and Springvale in Victoria Employers from a range of sectors will be included, such as road freight transport, building and industrial cleaning, carpentry, takeaway food, cafes and restaurants.
Modern Award Review on Penalty Rates
Whilst on the subject of penalty rates, as part of the 4 yearly review of modern awards, the Fair Work Commission is reviewing penalty rates in a number of awards in the hospitality and retail sectors. In particular, the following awards:
- Hospitality Industry (General) Award 2010
- Registered and Licensed Clubs Award 2010
- Restaurant Industry Award 2010
- Dry Cleaning and Laundry Industry Award 2010
- Fast Food Industry Award 2010
- General Retail Industry Award 2010
- Hair and Beauty Industry Award 2010
- Pharmacy Industry Award 2010
The Commission is hearing evidence and submissions from the usual suspects; ACTU, affiliated unions, and employer associations during September through to 18 December 2015.
Employer Can’t Contract Out of Minimum Wage
A timely reminder this week that employers cannot contract out of their statutory obligations under awards and the National Employment Standards. It has been reported that a new ‘start up business’ must pay back-pay for five years’ of work despite entering a share options arrangement which meant that the employee had suffered no loss. The company couldn’t avoid paying the minimum entitlements under the Fair Work Act 2009.
The employee Ms Holmes, started to work for the start-up business on a voluntary unpaid basis. The business was related to US companies Balance Water Inc and Balance Water LLC — the Australian arm being the Balance Water Company.
A few months after starting work, there was an “arrangement” agreed to that she would receive a $100,000 salary, $80,000 in phantom shares and the opportunity to earn a performance bonus, back-paid to one month after she had started work. In fact, Ms Holmes worked on an unpaid basis for a year. A few payments were received after advice confirmed she should be paid (including superannuation and workers compensation insurance), but these didn’t continue.
Because there was no evidence about Ms Holmes ordinary hours, the Federal Circuit Court ordered that she receive the national minimum wage for the period of her employment based on a 38-hour week, although, the employer had asserted that she worked part time. The judge instructed the parties to work out the final amount owed, deducting parental leave and other leave taken.
For advice on any of these and any other matter impacting your business please contact me