The Monthly Employee Relations Review will be emailed to Hunter Employee Relations Update subscribers at the end of each month. If you wish to receive it monthly please subscribe here.  

• The Review will include summary updates on the following: Government initiated Fair Work Act 2009 or other employment related Acts changes.
• Fair Work Commission special/test cases with a potential flow on impact beyond a particular industry or Award.
• ACTU campaigns with a reasonable potential to result in Government legislative changes or Fair Work Commission test cases.
• ABS or Enterprise Agreement wage increase data etc. 

We include recent changes that have occurred in the last few months in case you were too busy.  

Please note this is a high-level summary review only. Specific advice should be sought in relation to your particular business and circumstances. 

If you wish to discuss a particular workplace matter related to these changes, or are seeking more information, please do not hesitate to contact me. 

Kind Regards
Michael Schmidt
Hunter Employee Relations

Casual Changes

• Casual Definition 
• Casual Conversion 
• Information Statement 

The Fair Work Act 2009 has been changed to provide for a new casual definition based on a ‘firm advance commitment to continuing and indefinite work’.

Secondly the new casual conversion process allows employees to request conversion to permanent full time or part time employment. 

Employers must provide the Casual Employee Information Statement to all casual employees at specific points in time.

The changes commenced 26 August 2024 for larger employers. Smaller employers will commence on 26 February 2025. Further transition dates apply.

Applies to Award and non-Award casual employees.

Employer Action: Employers who employ casuals or intend to, need to make themselves familiar with the changes. 

Employer Action: Please email Michael to request a copy of the Hunter ER Casual Employment Employer Guidelines to be sent to you. More info.

Hunter ER Update - Casual Employees – New Definition

Hunter ER Update - Casual Employees – New Conversion to Permanent Rules

Hunter ER Update - Casual Employees Must be Given Information Statement

Delegates Rights

New delegates rights have become available to employees via changes to all Awards. These changes are based on the delegates provisions in Fair Work Act. The changes recognise delegates and allow them a variety of accommodations and entitlements in the workplace. This is a substantial change for unionised workplaces.

Awards have been updated to incorporate the standard Delegates clause.

New Agreements must also provide a Delegates clause with the same or similar rights.

Non-Award existing union rights have been maintained in the Fair Work Act.

The changes became effective from 1 July 2024

This change predominantly affects Award covered employees.

Employer Action: Employers with union members should review their applicable Modern Award to make themselves familiar the new provisions rather than being caught on the back foot by union delegates or organisers demands.

Hunter ER Update - New Workplace Delegates Rights

Union Right to Investigate Underpayments

Exemption to 24 Hours Notice

Unions can make an application to the Fair Work Commission for an exemption to the usual 24 hours’ notice requirements to enter a workplace. The Commission will be obliged to provide the waiver if it is satisfied that an underpayment of wages has occurred to a member of that union.

This means union officials can turn up on your doorstep without notice and seek information on wages paid to determine whether an underpayment as occurred. Employers are also prohibited from acting inappropriately towards a union official where an exemption has been provided.

This change took effect from 1 July 2024

Employer Action: Undertake an audit to ensure your employees are correctly paid. Facilitate union entry and review of pay records where the exemption has been provided.

Hunter ER Update: Union Right to Investigate Underpayments

Right to Disconnect

Changes to the Fair Work Act 2009 have created a formal right to disconnect from work outside of their usual work hours. These changes have now been inserted into all Modern Awards.

This change became operative from 26 August 2024 for non-small employers and 26 August 2025 for small employers.

Employer Action: Applies to Award and non-Award casual employees. Employers should check their applicable Award. As it is a term of the Fair Work Act it also affects non-Award employees.

Hunter ER Update - Right to Disconnect from Work After Hours

Labour Hire - Regulated Labour Hire Arrangements Orders

From 1 November 2024 the Fair Work Commission can make Orders for labour hire workers to be paid the same rate of pay (‘protected rate of pay’) that is paid to the staff who are directly employed and undertaking the same work. It is important to note this applies to supplying labour and not to supplying services.

Unless such an Order is made the employees of the labour hire employer will legally be required the applicable rate in their Enterprise Agreement or Award. It is usually the union covering the labour hire employees who would be seeking such an Order.

The protected pay rate would typically include loadings, allowances, penalty and overtime rates of pay. The Fair Work Commission cannot make an Order in relation to Small Business employers.

This change commenced on 1 November 2024

Employer Action: Employers who engage labour hire on the same rate of pay as their directly employed employees do not have to take action. Those who pay labour hire less than directly employed persons may be required to pay the same through a Fair Work Commission Order. Orders are usually initiated by a union.

Hunter ER Update: Labour Hire Workers – Equal Pay Rules

Regulated Workers

New provisions regarding gig workers (minimum standards) and transport industry (contractual chain order). More information about Regulated Workers.

Review of C13 and C14 Wage Rates

The Fair Work Commission has reviewed the C13 and C14 equivalent wage rates and classifications in Modern Awards. The original C13 and C14 rates were set in the Metal Industry Award (now called the Manufacturing and Associated Industries and Occupations Award 2020) review in the 1990s. Multiple Awards have a C14 equivalent entry level rate but no clear transition to level C13. This application provided transition guidelines and timeframes.

Award changes will take affect from 1 January 2025.

The changes are currently flowing into a large number of Awards that use the C13 and C14 standard rates as their lowest and entry level classifications. Any C14 equivalent Award will now have a defined transition period.

Employer Action: Employers should review their applicable Award to determine the impact of these changes.

Criminalising Wage Underpayments

Where an employer intentionally engages in paying an employee incorrectly this will now be classed as a criminal offence. The legislative changes provide for very large penalty payments and or prison sentences up to a maximum of 10 years.

A Voluntary Small Business Wage Compliance Code is expected to be available soon.

This change will become effective from 1 January 2025

Employer Action: While we understand that most employers do not intentionally underpay employees there can be substantial cash flow issues if you are required to make back payments for up to 7 years for affected employees due to an error. It would be better to determine that wages are being paid correctly or not through a desktop audit rather than have a union or the Fair Work Ombudsman make this discovery for you.

Hunter ER Update: Wage Theft – A New Label for Payroll Errors

Gender Undervaluation Test Case

The Fair Work Commission has initiated a test case examining the following Awards:

• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020
• Children’s Services Award 2010
• Health Professionals and Support Services Award 2020
• Pharmacy Industry Award 2020
• Social, Community, Home Care and Disability Services Industry Award

The case is examining a large number of issues centred around whether the work covered by the classifications in these Awards has been historically undervalued because of assumptions based on gender. 

Submissions are currently being received with formal hearings scheduled in December 2024. 

Outcomes and flow on implications from this test case are unclear. There is a potential for any outcome to be replicated in other Awards or industry sectors with predominant female employment. 

Employer Action: No action is required by employers at this time. 

Junior Rates Review

The SDA has applied to change the minimum wage rates in the following Awards.

• General Retail Industry Award 2020
• Fast Food Industry Award 2020
• Pharmacy Industry Award 2020

The application seeks to remove 18 – 21-year-old wage rate and classing them as adults receiving adult wage rates.  

Submissions are currently being received with a Directions hearing scheduled for 21 March 2025 which is likely to set formal hearing dates.

Any outcome to remove the wage rates from the three named Awards is likely to flow on to other Awards with Junior rates. 

Employer Action: No action is required by employers at this time. 

Model Terms for Enterprise Agreements

The Fair Work Commission is reviewing the following Enterprise Agreement Model terms. These clauses are required in all Enterprise Agreements.

• Flexibility
• Consultation
• Dispute resolution

The Commission will seek submissions and employ a best practice approach. 

The new model clauses are expected to come into effect before 26 February 2025.

This change will affect only new Enterprise Agreements after that date.

Given the recent substantial Delegates Rights provisions inserted into all Awards it is envisaged this review could result in extensive union friendly changes to these three clauses.

While these terms are focussed on clauses that must be inserted into new Enterprise Agreements it is likely any outcome will flow back into all Awards as well.

Employer Action: No action required unless negotiating and lodging an Enterprise Agreement after the implementation date.

Modern Awards Review 2023-2024

The Fair Work Commission initiated the current Modern Awards Review after receiving a request from the Minister for Employment and Workplace Relations. The review will look at the following specific areas in relation to Modern Awards

• Making Awards Easier to Use
• Work and Care – how Award terms impact workers with caring responsibilities.
• Job Security – will examine whether Modern Awards support the objective of promoting job security and the need to improve access to secure work.
• Awards in the Arts and Culture sector 

This has resulted in the Final Report of 18 July 2024 which is now being reviewed by the Fair Work Commission. 

The Report is likely to result to further Award changes.

Clients wishing to review the 42-page Report should request a copy from Hunter Employee Relations.

Employer Action: The outcomes of this report do not require action from employers.

Clerks Private Sector Award 2020 – Model Working from Home Term

An outcome of the Modern Awards Review 2023-2024 is the Fair Work Commission initiating its own motion to review the Clerks Private Sector Award for the purpose of inserting a working from home term ‘supporting’ employers and employees making a workable arrangement.

The Fair Work Commission Full Bench has requested submissions by late May 2025 with hearings being programmed on 6 June 2025.

Any changes resulting changes to this Award are likely to flow on to other Awards.

There is also the possibility for the Fair Work Act 2009 to be amended to include similar working from home provisions for non-Award employees similar in nature to the current Flexibility Provisions in the Act.

Employer Action: No employer actions required at this time.

(Working from home requests may currently be made under the Flexibility Provisions in the Fair Work Act 2009. Hunter ER Update - When Can Employees Demand Flexible Working Hours)

Social, Community, Home Care and Disability Services Industry Award 2010

There are three related applications currently being heard by Vice President Gibian of the Fair Work Commission. These matters relate to coverage of Therapeutic Carers, sleepover arrangements, 24 hours care, rest breaks between work, overtime and penalty rates. Hearings are currently underway and the matter appears to be extensive.

Please let me know if you require more information on the above.
 

Part-time Employment Review

The Fair Work Commission has foreshadowed it will review Award part-time employment provisions as an outcome of the Modern Awards Review 2023-2024.

The test case is likely to be initiated early in 2025.

Once this matter has been determined via a test case it is likely to flow to other Awards later in 2025. There is some potential for it to flow on to non-Award employees via a change in the Fair Work Act meaning it will cover all part-time positions.

Employer Action: no employer action required at this time.

Payday Superannuation

The Government has announced changes that will require all employee superannuation payments to be made on the same day as wages are paid to the employee.

This change will commence 1 July 2026.

Employer Action: This will affect all employers making the SGC Superannuation contributions on behalf of their employees.

More information – ATO superannuation

ACTU Reproductive Health Leave Campaign

The ACTU is pressuring the Government to amend the National Employment Standards to provide for 10 days paid leave to allow employees to have time off and flexible work arrangements to deal with a range of reproductive health issues.

Reproductive health issues include menstruation, pregnancy, contraception, miscarriage, perimenopause, menopause, chronic conditions such as poly-cystic ovarian syndrome and endometriosis, hormone therapy and fertility issues, as well as vasectomy, hysterectomy, terminations, and breast and prostate cancer screenings.

It is unknown whether this change would occur via changes to the National Employment Standards in the Fair Work Act or through an Award test case process in the Fair Work Commission. Given the large number of employee and union friendly changes that have occurred in the last 12 -24 months it is likely the ACTU claim will be looked at seriously by the Government if Parliament sits before the next Federal Election which must be held before 17 May 2025 or if the Government is returned to office.

Employer Action: no employer action required at this time.

CPI data - September Quarter 2024

The latest CPI data comes in at 2.8% for the last 12 months to August 2024. This is a significant drop from 3.5% reported in July. It may be affected by a number of Government initiatives such as the energy payments to consumers and business. The Reserve Bank’s target band is 2-3%.

Wage Increase Data

The ABS September quarter Wage Price Index recorded an annualised wage growth of 3.5% slowing from the 4.1% recorded over the year to June 2024.

The Average Annualised Wage Increase for federal enterprise agreements approved in the June quarter 2024 was 4 percent. This was based in 984 approved Enterprise Agreements.

The AAWI increase in the March quarter was 3.9 percent.