When the Fair Work Act was introduced in Australia in 2010, it took away a lot of the confusion and loopholes of previous employment legislation. The Fair Work Act simplifies an employees rights, but eight years on, many managers still don't realise ways that they could be breaching the Act. With heavy personal fines, imprisonment and other penalties possible for breaching the Act, here are my top 3 things that you need to know about the Fair Work Act if you are managing staff:
1. What are the National Employment Standards?
The National Employment Standards (NES) are 10 basic standards that apply to every employee in Australia. Even if you are not covered by other parts of the Act, the NES applies to you. The NES covers several types of leave entitlements, including the often overlooked parental leave, carers leave, community service leave and compassionate leave, as well as unfair dismissal. If you don't know the National Employment Standards, have a look here.
2. What Awards or Agreements are your staff covered by?
The Fair Work Act 2010 simplified the multitude of Awards into basic Awards by Industry. The Award is the baseline for your sector - there is no opting out. In the Community Services Sector, for example the Award is the Social, Community, Homecare and Disability Services Industry Award (SCHADS).
You don't need to be a respondent, your staff are covered by default if you don't have an Agreement. What this means is that details like rostering, penalty rates and payments may be detailed in this Award. And I wouldn't recommend printing the Awards that apply, as they are constantly being updated, so always check the current one online.
If you don't know what Awards apply to your staff, or you have not been paying them correctly, you could be subject to back pay and heavy penalties (see the United Petroleum case in 2017, resulting in $83m payouts). Not knowing that your staff are covered by an Award is not a defense that is acceptable to the Fair Work Commission. To check what Award your staff are covered look at the Fair Work website, starting here.
3. A "resignation" could lead to an unfair or unlawful dismissal claim.
When a staff member resigns following a difficult situation or event, Managers might breathe a sign of relief, but hold your breath... There are circumstances where employees can claim "Constructive Dismissal", meaning that they were left with no alternative but resignation, and this can be understood to be the same as being unlawfully or unfairly sacked. If a worker has been harassed for example and the organisation has not dealt with it effectively, the organisation and individuals in the organisation who did not respond appropriately to the allegations can be held to account.
Read a recent example here, where a local Perth company pressured a pregnant employee to sign a resignation letter.
Claims through Fair Work can be a drain on resources and will also impact others in the organisation, as well as the reputational risk.
If you need further advice, or you would like to provide your team with some training or support in these areas, please get in touch.