Welcome to the new working year which has officially started now that school has begun for 2019 and we can finally focus on getting productive once again.
We thought we’d start the year with a “what’s changed” in the employment landscape.
So what has changed from 2018? What do workplaces need to know?
I provide a brief overview of recent legislation and a few decisions that are likely to impact your workplace context:
1) Casual Conversion
In August 2018, the Fair Work Commission handed down its decision to introduce a model clause into most modern awards dealing with the right of casual employees to request conversion of their employment to permanent employment. The model clause took effect from 1 October 2018. So if your business is covered by a modern award then this change in legislation may apply to you.
To put this simply, a “regular casual employee” has the right to request that their employment be converted to permanent full time or part time employment if in the previous 12 months they have worked in a regular pattern.
So as a business owner what do you need to do?
The answer is to consult with the individual and offer the affected casual(s) an opportunity for part time or full-time employment in writing. As an employer you do have the right to refuse the conversion if after consultation there are reasonable grounds for doing so.
(Reference:http://www.workplacelaw.com.au/workplace-relations-review-2018-key-moments-and-2019-forecast/ and Lexis Nexis: “Model casual conversion clause now applies to almost all modern awards” – 28.12.2018)
2) Domestic and Family Violence leave
The Fair Work Amendment (Family and Domestic Violence Leave Act 2018) was implemented in December 2018 (as was discussed in my last blog).
The recent changes mean that all employees are entitled to 5 days of unpaid family and domestic violence leave each year of their employment. This includes part-time and casual employees.
The leave can be taken anytime to deal with matters relating to the domestic and family violence situation and where these tasks cannot be done outside of their ordinary hours of work. Examples include making arrangements for their safety, or safety of a close relative (including relocation), attending court hearings, or accessing police services. The leave doesn’t need to be taken all at once and can be taken as single or multiple days.
Employees are entitled to the full 5 days from the day they start work. They don’t have to build it up over time. The 5 days renew each 12 months but doesn’t accumulate from year to year if it isn’t used.
(Reference: Lexis Nexis ‘’Fair Work Amendment (Domestic and Family Violence Leave) Act 2018 (Cth)’’ – 12 Dec 2018)
3) New Family Friendly working arrangements
The Fair Work Commission made a determination in November 2018 that required all new modern awards to include a flexibility clause. The decision was implemented in December 2018.
The clause includes the following:
· An employer must discuss a request with the employee and genuinely try to reach an agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances;
· An employer must provide written details of the reasons for any refusal and how the grounds apply. In addition, the employer must state whether there are any (and if so what) changes that he/she can instead offer the employee so as to better accommodate the employee’s circumstances; and
· An employee must also have the ability to dispute whether their employer has correctly discussed their request with him/her, as well as whether the employer has properly responded to the request.
When a request for flexibility is made by an employee it must be discussed with the employee and there should be a genuine attempt to reach an agreement on a change in working arrangements that will reasonably accommodate the needs of the employee arising out of their circumstances.
There should be consideration of the consequences for the employee, if the request for changes are not made. Reasonable business grounds for refusing the request should be identified. Any request must be responded to in writing within 21 days and if refused needs to include details of the reasons for the refusal.
(Reference: Lexis Nexis ‘’New Family Friendly Working Arrangements from 1 December 2018’’ – 28.11.2018)
4) Amendments to NSW Crimes Act passed on 20 June 2018
The Crimes Amendment (Publicly Threatening and Inciting Violence) Act 2018 (NSW) was passed in June 2018.
The issue with the change in this legislation is that it now prohibits “a person from intentionally or recklessly, by a public act, threatening or inciting violence towards another person or group of people, on the grounds of race, religious belief or affiliation (including lack of religious belief), sexual orientation (which is now broader than homosexuality), gender identity (which is now broader than transgender), intersex status or HIV/AIDS status and any of these acts” . These acts are considered a crime.
Any of these acts is considered public and it may also include:
· Online communications, social media and any public communication
· Any conduct observable by the public; and
· The distribution or dissemination of any matter to the public
So, what does this mean for your workplace?
Employees who engage in communication that threatens violence, (such as online bullying) will not be tolerated and may now be prosecuted by NSW Police and may face a misconduct investigation in the workplace. Therefore this sort of this behaviour may be considered a criminal offense.
You may need to consider how this new legislation will impact you and what systems, policies and processes you will need to implement and roll out to your teams.
If you require assistance with any of these processes feel free to contact ResolveHR who can assist with any of these matters big or small.
Nick Hedges is the founder of Resolve HR, a Sydney-based HR consultancy specialising in providing workplace advice to managers and business owners.