The New Year is upon us and it’s shaping up to be a big one with the 2014 Modern Award Review taking place throughout the year and the Productivity Commission due to commence the Federal Government’s long awaited inquiry into Australia’s workplace relations system.
In order to help ARA members prepare for the year ahead, this article will highlight some of the key issues all employers should be aware of in 2015.
In 2014 the Fair Work Ombudsman (FWO) rolled out a targeted compliance campaign which focused on various sectors, industries and geographical regions with many members feeling the effect of this campaign. It’s anticipated that the FWO will continue this approach throughout 2015 as a means to enforce compliance with Modern Awards.
So, what are the possible traps that retailers should be aware of, review and address as required?
Underpaying employees can result in hefty fines for employers, not to mention the back payments that will also need to be calculated and paid to employees.
In 2014 the FWO received approximately 23,000 claims for underpayments and ordered employers to make over $23 million in back payments. Of these claims, approximately 2,200 were lodged by employees working in the retail sector.
Most recently, in December 2014, one retailer was ordered to back pay an employee approximately $30,000 in unpaid wages. The business itself was fined $66,000 whilst one of the owners was personally fined $9,900, experiencing firsthand both the personal and professional implications of underpaying employees.
All too often we see retailers failing to comply with the part-time provisions of the General Retail Industry Award (GRIA). Retailers must ensure that all part-time employees have the following agreement, in writing, with the employee before they commence working:
- the hours worked each day;
- which days of the week the employee will work;
- the actual starting and finishing times of each day;
- that any variation will be in writing;
- minimum daily engagement is three hours; and
- the times of taking and the duration of meal breaks.
The nature of part-time employment, under GRIA, does not have the level of flexibility that many employers assume it has. Failure to establish the appropriate detail as outlined above with employees prior to their commencement is, in essence, a breach of the GRIA which can be penalised in accordance with the Fair Work Act.
Frequently, we find employers are rostering employees in accordance to their business needs, yet failing to consider the rostering provisions of the relevant award. It is crucial that employers ensure that the people within the business who are responsible for rostering are aware of the rostering provisions of the award.
Some common mistakes we see with retailers, in respect to GRIA are;
- not providing the correct number of hours off to the employee following the completion of one shift and the commencement of the next;
- not providing the correct number of consecutive days off as required by the GRIA; and
- not providing employees with the appropriate notice for changing rosters.
Finally, members should be aware that if found to be in breach of an award, the following penalties may apply per contravention:
- $10,200 for an individual; and
- $51,000 for a company.
With the FWO taking an open approach in publicly identifying businesses where non-compliance has been identified, it’s critical that retailers consider not just the direct financial impact which may flow, but also the significant impact which this may have on the brand of individual businesses.
Workplace bullying – cyber focus
As most members will by now be aware, January 1 2014 saw the commencement of the new Act bullying laws. The new laws, which cover most employers, allow a worker who reasonably believes he or she has been bullied at work to apply to the FWC for orders to stop the bullying.
Although the FWC has found that not nearly as many bullying applications were filed as originally anticipated, the development and interpretation of the new legislation is a clear indication of the wide scope and authority of the FWO.
For example, in December the FWC ruled in Bowker v DP World Melbourne Limited that nasty personal comments posted on social media can constitute “bullying at work,” even if the person who posted them or their target were not even at work at the time.
What can you do?
To address workplace bullying, all retailers should take note of the following recommendations:
- policies should clearly outline what is deemed to be acceptable behaviour at work;
- an internal grievance procedure should be both implemented and communicated to all staff;
- all employees should be trained appropriately as to what constitutes bullying; and
- regular training for line managers and senior management should also be implemented to ensure that any action taken by them constitutes reasonable management action.
Modern Award Review
The ARA continues to advocate for changes to the GRIA in order to ensure it remains fair and also reflective of the future needs of the industry. As part of the Fair Work Commission’s four yearly Modern Award Review, the ARA is collaborating with members to lead an application for changes to various aspects of the GRIA including, but not limited to, restrictive part-time employee rostering provisions and penalty rates.
How can you get involved?
As the Award Review will unquestionably have a significant impact upon all businesses operating under the Modern Award system, many retailers have already been working with the ARA to capture information and prepare detailed evidence concerning current challenges experienced as a result of the GRIA in its current form. This Award Review process presents the best opportunity to drive changes within the modern award system for the benefit of members, however, we seek the involvement and participation of members upon whom we are dependent upon in the provision of information which highlights the need for the changes.
Retailers who believe they’re in a position to contribute evidence and statements relating to the challenges of the current penalty rates or any other issues or restrictions which they face in their business due to the structure of the Award, are encouraged to contact the ARA Employment Relations team on 1300 368 041 for further information about contributing.