Moving Australia



 

Industrial Relations e-Alerts 

APTIA IR e-Alerts are electronically delivered to you via email as IR news breaks. They contain the latest and breaking IR industry news as well as any recent industry decisions or important dates in the industry. 

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10 August 2018

Part-Time employment and Casual employment

The finalisation of the 4-yearly review of the modern awards is gaining pace as the Full Bench of the Fair Work Commission handed down its final decision on 9 August relating to the introduction of a casual conversion clause after having provided an interim Decision on 5 July 2017.

APTIA through its Industrial Working Group had provided submissions to the Full Bench in relation to the interim Decision.

The proposed casual conversion clause will take effect as part of the Passenger Vehicle Transportation Award 2010 from 1 October 2018.

This will mean that members who are proposing to bargain for new enterprise agreements will have to consider these terms of the amendment to the PVTA when meeting the BOOT.

The Full decision can be found by clicking on the PDF below.

The Full Bench, comprising Vice President Hatcher, Senior Deputy President Hamberger, Deputy President Kovacic and Deputy President Bull noted at paragraph 9, that:
“APTIA proposed four substantive amendments to the model clause.”

APTIA had sought a period of time (90 days) for employers to provide the notification of the right to convert to existing casual employment, to limit the right to a once only right to convert, to require the notification to be made within 21 days of eligibility and to further define reasonable grounds to include an inability to provide 52 weeks of work.

At paragraph 28 of the Decision the Full Bench agreed to amend its original draft clause to include APTIA’s proposed amendment. The Full Bench commenting in the Decision;
“The point made in the submissions of the APTIA and the NFF that, in respect of the requirement to provide casual employees with a copy of the award provision, there needs to be a transitional provision concerning existing employees has merit. The model clause will provide that existing casual employees must be given a copy of the provision within 3 months of the provision taking effect.”

The draft clause is attached to this Industry E-Alert.

Members should note and consider the effect of the proposed amendment to the PVTA.

The clause:

  1. Allows a casual employee who has worked as a regular casual for at least 12 months to request, at any time to convert to a permanent part time or permanent employee to their regular hours of work.
  2. A regular casual is defined as a person who has worked a pattern of hours on an ongoing basis without significant change.
  3. This right accrues to such a casual employee each and every 12-month period of employment and is a right that can be exercised once every 12 month period at any time during that period.
  4. The request to convert must be in writing to the employer.
  5. An employer may refuse the request but only on reasonable business grounds and only after a consultation with the employee. The discussions must be recorded in writing and any outcome reduced to writing. A decision must be given to the employee within 21 days after the request.
  6. There is a non-exhaustive set of definitions as to what constitutes ‘reasonable business grounds’ and they include: a significant adjustment to the casual’s hours of work; it is reasonably known that the position of the employee may not be available within 12 months; it is reasonably known that the hours of the employee will reduce over the next 12 months or a significant change may be required to the employees hours over a 12 month period.
  7. Employers are required to provide each new employee (casual) and all existing employees (casuals) within 3 months, i.e. by 1 January 2019, with a copy of the new casual conversion clause.

NOTE:
Remember this provision will only apply to those members who are paying and employing their employees under the PVTA or those members who have incorporated the PVTA into their enterprise agreements or who are proposing to renegotiate their current agreement.

Proposed Casual Conversion clause
XX Right to request casual conversion

(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time or part-time employment.
(b) A regular casual employee is a casual employee who has in the preceding period of 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this award.
(c) A regular casual employee who has worked equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to full-time employment.
(d) A regular casual employee who has worked less than equivalent full-time hours over the preceding period of 12 months’ casual employment may request to have their employment converted to part-time employment consistent with the pattern of hours previously worked.
(e) Any request under this subclause must be in writing and provided to the employer. (f) Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.
(g) Reasonable grounds for refusal include that:
(i) it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time or part time employee in accordance with the provisions of this Award – that is, the casual employee is not truly a regular casual employee as defined in paragraph (b);
(ii) it is known or reasonably foreseeable that the regular casual employee’s position will cease to exist within the next 12 months;
(iii) it is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months; or
(iv) it is known or reasonably foreseeable that there will be a significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
(h) For any ground of refusal to be reasonable, it must be based on facts which are known or reasonably foreseeable.
(i) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made. If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause X. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.
(j) Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in this clause, the employer and employee must discuss and record in writing:
(i) the form of employment to which the employee will convert – that is, full-time or part-time employment; and
(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause X.
(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.
(l) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.
(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under this clause.
(n) Nothing in this clause obliges a regular casual employee to convert to full-time or part-time employment, nor permits an employer to require a regular casual employee to so convert. (o) Nothing in this clause requires an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.
(p) An employer must provide a casual employee, whether a regular casual employee or not, with a copy of the provisions of this subclause within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 October 2018, an employer must provide such employees with a copy of the provisions of this subclause by 1 January 2019.
(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in clause XX(p) .

APTIA FWC Decision - Part-time employment and Casual employment APTIA FWC Decision - Part-time employment and Casual employment (449 KB)


Ian MacDonald, National IR Manager
10 August 2018

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9 July 2018

 

 

The Full Bench has finalised its position with respect to the issue of family and domestic violence leave.
In a decision handed down handed down on Friday 6 July 2018 the Full Bench advised that such leave would become effective under the modern Awards including the Passenger Vehicle Transportation Award from 1 August 2018.

An employee will be entitled to 5 days’ unpaid leave to deal with family and domestic violence, as follows:
(a) the leave is available in full at the start of each 12-month period of the employee’s employment; and
(b) the leave does not accumulate from year to year; and
(c) is available in full to part-time and casual employees.

Note: 1. A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer.

2. The employer and employee may agree that the employee may take more than 5 days’ unpaid leave to deal with family and domestic violence. An employee may take unpaid leave to deal with family and domestic violence if the employee:
(a) is experiencing family and domestic violence; and
(b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work. Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.
The Full draft term to be including into the Passenger Vehicle Transportation Award is set out below:

Leave to deal with Family and Domestic Violence: Model Term X.1 This clause applies to all employees, including casuals.

X.2 Definitions
(a) In this clause: family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful. family member means: (i) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or (ii) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
(iii) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
(b) A reference to a spouse or de facto partner in the definition of family member in clause

X.2(a) includes a former spouse or de facto partner.

X.3 Entitlement to unpaid leave an employee is entitled to 5 days’ unpaid leave to deal with family and domestic violence, as follows:
(a) the leave is available in full at the start of each 12-month period of the employee’s employment; and
(b) the leave does not accumulate from year to year; and
(c) is available in full to part-time and casual employees. Note: 1. A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer. 2. The employer and employee may agree that the employee may take more than 5 days’ unpaid leave to deal with family and domestic violence.

X.4 Taking unpaid leave an employee may take unpaid leave to deal with family and domestic violence if the employee:
(a) is experiencing family and domestic violence; and [2018] FWCFB 3936 8
(b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work. Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.

X.5 Service and continuity the time an employee is on unpaid leave to deal with family and domestic violence does not count as service but does not break the employee’s continuity of service.

X.6 Notice and evidence requirements
(a) Notice An employee must give their employer notice of the taking of leave by the employee under clause X.
The notice:

Note: Depending on the circumstances such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.

X.7 Confidentiality
(a) Employers must take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided under clause X6 is treated confidentially, as far as it is reasonably practicable to do so.
(b) Nothing in clause X prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.  

Note: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. [2018] FWCFB 3936 9 Employers should consult with such employees regarding the handling of this information. X.8 Compliance An employee is not entitled to take leave under clause X unless the employee complies with clause X.

 

Note: Members who have current enterprise agreements will not be bound by the family domestic violence leave clause unless their enterprise agreements incorporate the Award and any variations made thereto.



Ian MacDonald,
National IR Manager

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1 June 2018

Wage rates increase from 1 July 2018

Today the Fair Work Commission handed down a 3.5% wage increase to all minimum wage earners and those employees paid under a modern award.

The Passenger Vehicle Transportation Award 2010 (PVTA) will rise by 3.5%.

For example:
From July 1, 2018 increases are:
• Grade 1 = $20.42 an hour
• Grade 2 = $20.92 an hour
• Grade 3 = $22.11 an hour
• Grade 4 = $22.88 an hour
APTIA will provide a full summary of the decision in it's June Everybody Out. APTIA will also post on its website (www.aptia.com.au) a comprehensive list over the next fee days.

Ian MacDonald,
National IR Manager

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26 March 2018

 

INDUSTRY E-ALERT – FAMILY FRIENDLY ARRANGEMENTS AND DOMESTIC AND VIOLENCE LEAVE

Today the Full Bench handed down their long-awaited decisions relating to domestic and family violence leave and family friendly arrangements.

I will deal with Family Friendly Arrangements first.

The Full Bench rejected the ACTU mandatory claim for a two - year grace period for persons returning form parental leave or carers leave.

But the FWC did state:

“Supporting and enabling women to increase their employment participation is a significant public policy issue in Australia, given the aging of our population.”

The Full Bench reached the provisional view that the modern award minimum safety net should be varied to incorporate a model term to facilitate flexible working arrangements for parents and carers.

The provisional model term would supplement the NES in the following ways:

 

I will now deal with domestic and family violence leave.

Again the Full Bench rejected the ACTU claim for paid domestic and violence leave however they did decided to provide five days’ unpaid leave per annum to all employees (including casuals) experiencing family and domestic violence.

Such leave will be available in the event that the employee needs to do something to deal with the impact of the family and domestic violence and it is impractical for them to do it outside their ordinary hours of work.

The Full Bench decided to defer its consideration of whether employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave.

The Majority Decision also expressed the preliminary view that ‘employees should be able to access paid personal/carer’s leave for the purpose of taking family and domestic violence leave’.

The drafting of the model term to give effect to the Decision will be finalised in the coming weeks.

The Decision and a Summary can be found by clicking on the PDFs below:

APTIA FWC - Family and Domestic Violence Decision APTIA FWC - Family and Domestic Violence Decision (242 KB)

APTIA FWC - Family Friendly Working Arrangements Decision APTIA FWC - Family Friendly Working Arrangements Decision (381 KB)


Ian MacDonald, National IR Manager

26 March 2018

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11 September 2017

 

Fair Work Amendment (Corrupting Benefits) Act 2017

The new Fair Work Amendment (Corrupting Benefits) Act 2017 came into force today and amends the Fair Work Act 2009.

The Bill implements recommendations of the Royal Commission into Trade Union Governance and Corruption aimed at prohibiting ‘sweetheart deals’ between unions and employers, including enterprise agreements under which some unions obtained organisational benefits while agreeing to outcomes that were detrimental to employees.

The issue for APTIA members is that an arrangement to pay Transport Workers Union membership might fall into the type of corrupt action although the legislation does seem to exclude such a payment. Provisions of TWU notice boards, exclusive Union staff rooms or payment of the Union picnic day may be captured by the legislation.

APTIA will further monitor and advise on the application of the new ‘corrupting benefits’ Act once it is apparent.

The changes:

 

Ian MacDonald, National IR Manager
11 September 2017

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5 September 2017

Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017

The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, a significant piece of industrial relations legislation passed the Senate on Monday, 4 September 2017. The Bill, which will now go to the House of Representatives for rubber stamping, before Royal Assent and commencement within the week.

The Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 will provide another layer of obligation upon employers and members of APTIA.The Act will introduce another reverse onus of proof, whereby the onus will fall upon an employer to proof that it did not deliberately seek to underpay an employee and place a greater obligation upon APTIA members to ensure that proper records are kept to prove that all reasonable steps have been taken to ensure the correct wages are paid.

The new Act will:


A number of amendments were included in the final Bill including:

Government amendments

  1. A proposed subsection 557A (1) of the Bill to provide that a contravention of a civil remedy provision will only amount to a serious contravention if the person knowingly contravened the provision and the person’s conduct was part of a systematic pattern of conduct relating to one or more other persons.
  2. A new provision, subsection 557A(5A), which provides that a person (the involved person) who is involved in a contravention of civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:
    (a) The principal’s contravention was a serious contravention: and
    (b) The involved person knew the principal’s contravention was a serious contravention.
  3. A further amendment to proposed subsection 557A (2) (1) to require the Court to take into account the person’s response, or failure to respond, to any complaints made about the relevant contraventions in deciding the outcome of actions for serious contraventions.


ALP amendments

  1. Amendments that prohibit an employer from requiring prospective employees to spend or pay them money if:
    (a) The requirement is in connection with employment or potential employment of the prospective employee by the prospective employer; and
    (b) The requirement is unreasonable in the circumstances; and
    (c) The payment is directly or indirectly for the benefit of the prospective employer or a party related to the prospective employer.
  2. If a person makes an allegation of a contravention of a specified civil remedy provision and the employer has failed to keep records or provide payslips the employer has the burden of disproving the allegation. (e.g. this reverse onus of proof means that where it can be shown that records were not kept of time worked or amounts paid, and an employee alleges they worked a particular pattern of work and/or were underpaid, the employer will have the burden of disproving those allegations were not true.
  3. The introduction of regarding the FWO’s use of its expanded investigation (compulsory examination) powers. The amendments require the FWO to apply to the AAT for the issue of a notice if it would like to exercise its new investigative powers. In order to apply the FWO would need to believe on reasonable grounds that a person has information or documents relevant to an investigation by an inspector into a suspected contravention.
  4. The ALP was also successful in narrowing the types of contraventions for which the powers of the FWO can be used to employer contraventions (i.e. preventing the powers from being used to investigate contraventions involving industrial action).

 

Ian MacDonald, National IR Manager
5 September 2017

 

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3 August 2017

Casual Conversion; The Industry Response

The Full Bench of the Fair Work Commission on 7 July 2017 has now handed down its decision to incorporate a casual conversion clause in all modern awards, including the Passenger Vehicle Transportation Award 2010.

The Full Bench of the Fair Work Commission has called for submissions from Organisations as to the application of their decision and on 2 August 2017, after extensive consultation with its Industrial Working Group (IWG), APTIA lodged its submission on behalf of the public transport industry.

That submission can be found by clicking on the PDF below:

APTIA submissions to FWC August 2017 APTIA submissions to FWC August 2017 (388 KB)


In summary the industry’s position is to support the changes suggested by the Full Bench to clause 10.5 (d) of the PVTA which will now read:

“A casual employee solely engaged for the purpose of transportation of school children to and from school may be rostered to perform one engagement or two separate engagements per day, with a minimum payment of two hours for each separate engagement.”

APTIA’s further submissions sought the following variations to the draft casual conversion clause:

1. Existing casual employees who meet the eligibility to seek conversion must wait 90 days from the commencement of the Award variation to apply.
2. Employers are to provide a copy of the final conversion clause within that 90 day period. An employee can apply after that 90 day period notwithstanding that the notice is not given.
3. An eligible employee once they become eligible, either existing or after 12 months if a new employee, must exercise that right, only once, within 21 days of becoming eligible.
4. An excuse for an employer not to convert would be that the employer could not offer employment to the casual as a permanent or part time employee over a 52 week period.

Ian MacDonald

National IR Manager

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 5 July 2017

 

Casual and Part Time Employment

The Full Bench of the Fair Work Comission finally handed down today its decision relating to the application by the ACTU to include a casual conversion clause, amongst others, into all modern awards including the Passenger Vehicle Transportation Award 2010, which did not provide for such conversion.

The Full Bench decided to include into the remaining Awards a casual conversion clause with the following criteria:

  • The Full Bench rejected the remaining application of the ACTU to increase the minimum engagements for casuals and part time employees to 4 hours and also rejected the application to limit further casual work to the existing casual employees. The Full Bench took cognisance of the submissions from APTIA by allowing an employer to reject such a conversion if the conversion would require a significant adjustment to hours of work.
  • The Full Bench further rejected the application by APTIA to further reduce the minimum engagement period of 2 hours by agreement. The Full Bench did in its 368 page decision (reference: pages 319 to 331) outline what it thought the best definition of the minimum engagement would be:

    “A casual employee solely engaged for the purpose of transportation of school children to and from school may be rostered to perform one engagement or two separate engagements per day, with a minimum payment of two hours for each separate engagement.”

    The Full Bench has invited the TWU and APTIA to make representations to it regarding the final drafting of the minimum engagement clause by 2 August 2017.

    A summary of the Judgement and the entire 368 page decision can be found by clicking on the PDF below:

    FWC Summary of Decision: Casual and Part Time Employment FWC Summary of Decision: Casual and Part Time Employment (142 KB)


    FWC Full Decision: Casual and Part Time Employment FWC Full Decision: Casual and Part Time Employment (2579 KB)


    Ian MacDonald, National Industrial Relations Manager


     

     

    3 July 2017

    Family and Domestic Violence Leave

    The Full Bench of the Fair Work Commission finally handed down today the remainder of their decision concerning the application by the ACTU for ten days paid family and domestic violence leave for all employees.

    Previously Senior Vice President Watson had previously rejected the ACTU application and thereafter resigned causing a jurisdictional concern that the Full bench was not properly constituted.

    On Friday Justice Iain Ross determined that the Bench was properly constituted and invited the remaining members to hand down their decision.

    In a joint decision Vice President Gooley and Commissioner Spencer also rejected the ACCTU claim.

    However they did consider that the National Employment Standards and all modern Awards, including the PVTA, should be amended to allow for unpaid family and domestic violence leave to be available to all employees, casuals and full time employees.

    In the first instance their preference was to include the family and domestic violence leave in the current unpaid personal leave provisions which allows for unpaid leave of up to 2 days for each occasion that the leave was available.

    Both members agreed to provide further opportunity for the parties to the proceedings to make submissions as to how their intentions should be accommodated.

    Set out below are the Relevant paragraphs from their decision.
    “[119] Based on the largely uncontested evidence before us we have formed the preliminary view that it is necessary to meet the modern award objectives for provisions to be inserted in modern awards which would allow for a period of unpaid family and domestic violence leave and which would allow employees who experience family and domestic violence access to personal/carer’s leave for the purpose of taking family and domestic violence leave. As set out in [45], such unpaid leave serves to confirm the significance of family and domestic violence leave as a workplace right and provides an employment protection in circumstances where there is a need to access such leave. [120]There has been no opportunity for interested parties to make submissions or call evidence if necessary in relation to our preliminary view and we intend to provide such an opportunity. [121] We propose to convene a mention to hear from interested parties about the future timetabling of this review.”

    Note: The Casual Full Bench will hand down their decision on Wednesday at 2.00pm.

    Ian MacDonald, National Industrial Relations Manager

    6 June 2017

    Minimum Wage Determination 2017

    In line with budget predictions the Fair Work Commission has this morning granted award-reliant workers a 3.3% increase, lifting the national minimum wage by $22.20 a week or 59 cents an hour in this year's annual wage review ruling.

    The new weekly minimum wage will be $694.90 – or $18.29 an hour – from July 1.

    The C10 rate in the modern manufacturing award will increase by $25.85 to $809.25 (rounded up to $809.30).

    Justice Ross said today that the decision directly affects more than 2.3 million employees who are reliant on award rates of pay.

    The ACTU asked the panel for a $45 (6.7%) increase in the federal minimum wage, boosting it to $717.70 a week.

    ACCI called for the panel to exercise "caution and restraint" in proposing a 1.2% ($8.10) increase, while the AiG sought a "modest" increase of 1.5%, which equates to $10.10 a week for the lowest paid and about $11.75 at C10.

    The minimum wage panel last year increased all award rates by 2.4%, lifting the federal minimum wage to $672.70 a week or $17.70 an hour.

    The impact for Grade 3 permanent school bus drivers and day charter drivers not performing route work will be an increase from $20.68 (casuals $25.85) an hour to $21.36 (casuals $26.70) an hour whilst Grade 4 permanent route and long distance overnight charter drivers will increase from $21.41 (casuals $26.76) an hour to $22.12 (casuals $27.65).

    The permanent mechanics rate will increase from $20.61 (casuals $25.76) an hour to $21.29 (casuals $26.61).

    APTIA will shortly provide a detailed analysis of the increases and the figures above are only indicative.

    Members should wait until the detailed analysis is provided by APTIA or your State Association before making the relevance payroll changes.

    If you have an enterprise agreement linked to the Minimum Wage Determination then from the 1 July 2017 the wages are increased by 3.3%.

    The Fair Work Commission left the casual loading at 25%.

    Read the full determination here:

    APTIA Minimum Wage Dtermination 2017 - full determination APTIA Minimum Wage Dtermination 2017 - full determination (1539 KB)



    Ian MacDonald, National IR Manager

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    The Budget 2017

     

     

    10 May 2017
    Whilst industrial relations reform seems to be off the radar nevertheless there were a couple of interesting issues that were raised in the speech last night by the Treasurer when he presented his Government’s 2017 budget which might affect our industry from an industrial relations perspective. I have detailed them below:

    Wage Growth
    The Federal Budget is predicting that wages will rise steadily from the current financial year forecast of 2.1% to reach 3.75% in 2020-21.
    The Turnbull Government forecasts that the Wage Price Index (1.9% in the most recent December release and forecast to be 2.1% this financial year) will rise to:

    2.5% in 2017-18
    3% in 2018-19
    3.5% in 2019-20 and
    3.75% in 2020-21.

    Inflation is to remain at the current 2% forecast in 2017-18, before rising to 2.25% in 2018-19, it says. The Budget projects a rise in the CPI to 2.5% in 2019-20 and 2020-21.

    Salary sacrifice into home savings
    The Budget provides from July 1 for individuals to salary sacrifice up $15,000 a year into their super accounts to finance first home purchases. Individuals can contribute a total of $30,000.

    The Government's estimator says a person on a taxable income of $70,000 who makes an annual contribution of $10,000 would reduce their take-home income by only $6450.

    It says that after 3 years of saving, $25,892 will be available for a deposit under the First Home Super Saver Scheme ($6,210 more than if they had used a standard deposit account).

    Skilled Visas

    After unveiling its crackdown on s457 visas, the government will now require businesses that employ foreign workers on certain skilled visas to pay a levy from March 2018 that will seed a new Skilling Australians Fund.

    Businesses with turnover of less than $10 million a year will have to make an upfront payment of $1,200 per visa per year for each employee on a Temporary Skill Shortage visa and make a one off payment of $3,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa or a permanent Regional Sponsored Migration Scheme (subclass 187) visa.

    Businesses with turnover of $10 million or more a year will be required to make an upfront payment of $1,800 per visa year for each employee on a TSS visa and make a one off payment of $5,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa or a permanent Regional Sponsored Migration Scheme (subclass 187) visa.

    The government will provide $1.5 billion over four years from 2017-18 to establish a permanent Skilling Australians Fund.

    The priority will be apprenticeships and traineeships for high-demand occupations, future growth and regional and rural areas.

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    National Industrial Relations Seminar 2017

    APTIA National IR Seminar Registration Form APTIA National IR Seminar Registration Form (813 KB)


    The Australian Public Transport Industrial Association (APTIA) has issued invitations to the nation’s leading industrial relations decision makers to present at its third National Industrial Relations Seminar to be held at the Kurrajong Hotel in Canberra on 28 February 2017.

    The topic is: “Industrial Relations – Where to now?”

    And has been driven by the fact that the new Senate has shown that it is likely, with negotiated outcomes, to pass industrial relations legislation put up by the Government.

    Deputy President John Kovacic from the Fair Work Commission, James Pearson, the Executive Director of Australia’s peak Employers Association, the Australian Chamber of Commerce and Industry, Nikki Brouwers, the well-respected employment expert and passionate health professional and Professor Andrew Stewart, John Bray Professor of Law at Adelaide University and author of Stewart’s Guide to Employment Law (Fifth Edition) have already agreed to speak.

    The Minister for Employment, Senator, Hon Michaelia Cash has been invited along with Ged Kearney, the President of the ACTU and the Hon Dr. Kay Patterson, Aged Discrimination Commissioner from the Australian Human Rights Commission.

    APTIA has this year contributed to the “Willing to Work” Inquiry initiated by the AHRC into discrimination into aged employment and has closely followed the recommendations of that Inquiry.

    The Seminar is part of the joint Biz Better Together project between BIC and ACCI with Solicitors, Piper Alderman and Rehabilitation Providers, the Interact Group also supporting the Seminar. The Seminar is part of a wider program for the Bus Industry Confederation Members and Guests, which includes a National Technical and Suppliers Summit on the same day and a National Industry Dinner at the Realm Hotel in the evening.

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    July 27, 2016

    Notice of Employee Representation of Rights (NERR)
    The Full Bench of the Fair Work Commission, on 3 June 2016, handed down a decision in KCL Industries Pty Ltd [2016] FWCFB 3048, which has specifically upheld the provisions of section 174 A of the Fair Work Act, which requires the notice of employee representation rights (NERR) to be:

    It would appear that an application for approval of an enterprise agreement will fail if the NERR is not in the prescribed form.

    Click on the document below to view the prescribed form of NERR and any NERR which differs from that form should be discarded and another NERR sent out to all affected employees.

    APTIA - Notice of Representation Rights APTIA - Notice of Representation Rights (14 KB)


    In this regard all members who are in the process of negotiation for an enterprise agreement should do an immediate check to see if the NERR meets the prescribed content.

    APTIA has identified, for instance, that the phone number for the FWC online has changed and this may be used by an opponent of the enterprise agreement to prevent its approval.

    Service of the NERR can be affected by posting or emailing to the last known addresses of the relevant employees. A copy could be placed in the lockers of each relevant employee or a copy placed on the Notice Board at the Depot provided its reach is to all relevant employees.

    The relevant issues to be included in the NERR are:

    1. The full name of the Employer referred to in the Application for approval.
    2. The name of the enterprise agreement as it is known in the draft form. The name may change during negotiations by agreement.
    3. The persons who are affected by the enterprise agreement. Care should be taken to ensure that the persons affected are also described in the enterprise agreement under definition of employees.
    4. The Fair Work Ombudsman’s email address must be included i.e. www.fairwork.gov.au
    5. The phone number of the Fair Work Commission online included i.e. 1300 799 675.

     

    Ian MacDonald, National IR Manager

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    May 18 2016

     

    March Labour Price Index

    The ABS released today its March 2016 quarterly tracking for wage increases based on the wage price index. Generally the WPI/ LPI is used by most State Governments as the model upon which labour rates are increased under their bus service contracts.

    QUARTERLY CHANGE (DEC QTR 2015 TO MAR QTR 2016)

     

     

    ANNUAL CHANGE (MAR QTR 2015 TO MAR QTR 2016)

     

     

    ANNUAL CHANGE FOR PUBLIC TRANSPORT (MARCH QTR 2015 TO MARCH QTR 2016)

     

     

    Note: The Fair Work Commission will present its minimum wage determination for 2016/ 2017 in the first week of June 2016.

     

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    22 December 2015

    Productivity Commission Report

    APTIA - Productivity Commission Report APTIA - Productivity Commission Report (5826 KB)

    The Australian Productivity Commission has released its much awaited final report into Australia’s industrial and workplace relations system.

    As expected much of the initial ‘brouha ‘has centred around the APC recommendation to reduce weekend penalty rates on weekends to ‘time and half’ for both days (Saturday and Sunday) but only in the hospitality, entertainment, and retail restaurant and cafes industries.

    As further expected the Trade Union movement has marshalled their troops for a major defence of penalty rates with the Government refusing to ‘rule in’ or rule out’ anything but with the qualification that penalty rates will always be determined by the Fair Work Commission.

    Despite the issue of penalty rates there are some commendable recommendations made by the APC, some canvassed by APTIA in its submission and they are worth lobbying Government to support.

    The Minister, Senator the Hon Michaelia Cash has indicated that she will consult with stakeholders after Christmas and take any changes to next year’s election.

    Some of the more interesting recommendations that may benefit our industry include;

    Cheers,

    Ian MacDonald
    National Industrial Relations Manager

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    14 October 2015

    The Fair Work (Amendment) Bill 2014 passes the Senate

    Is it a co-incidence or was it about the happen anyway?

    With a watered down, but still relevant set of changes to the Fair Work Act 2009, the Fair Work (Amendment) Bill 2004, has passed the Senate yesterday and will be assented into law once the Government in the House of Representatives has endorsed the amended Bill.

    The Coalition and crossbench senators Glenn Lazarus, John Madigan, Dio Wang (PUP), Nick Xenophon, Bob Day (Family First), David Leyonhjelm (LDP) and Ricky Muir (AMEP) provided 33 votes to pass the legislation, while Labor, the Greens and independent Senator Jacqui Lambie opposed it.

    The main changes, if approved by the HR will be:

    The Government couldn't attract sufficient support from crossbenchers for other key elements of the bill that would have curbed right of entry, made IFAs more flexible, clarified obligations to pay annual leave loading on termination and ensured transfers to related entities didn't have to comply with transfer of business requirements.

    Nevertheless the new provisions passed relating to Greenfields Agreements and the Right to Take Protected Action are significant should be seen in the light of a change in attitude by the Senate towards genuine and reasonable industrial relations reform.

     

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    22 September 2015

    A new Minister for Employment 
    Prime Minister, the Hon Malcolm Turnbull MP, has announced Senator, the Hon Michaela Cash is the next Minister for Employment. Senator Cash will replace outgoing Minister, Senator, Hon Eric Abetz, who has been the Minister for Employment since the Government was elected in 2013. Senator Cash was sworn in on Monday 21 September 2015.

    Before entering the Senate in 2007 Senator Cash was a Senior Associate with the law firm, Freehills, in Western Australia, where she worked from 1999. Senator Cash practised as a solicitor in all areas of employment and industrial law, including industrial relations, employee relations, occupational health and safety, equal opportunity, executive employment and unfair dismissal.

    Senator Cash was appointed Shadow Parliamentary Secretary for both Immigration and the Status of Women. Following the 2013 election, she was appointed Assistant Minister for Immigration and Minister Assisting the Prime Minister for Women.
    Senator Cash is a long-standing member of the Liberal Party of WA. She was an executive member of the Curtin University Young Liberals from 1988 to 1990 and then the Western Australian Young Liberal Movement, where she held numerous positions including State Vice-President.

    She was a long time member of the Liberal Party of Western Australia’s State Council and was the President of the Moore Division. She has also served on the Party's state executive.

    Senator Cash will now inherit the unenviable task of implementing the long awaited industrial reforms, which the Government took to the last election in 2013 and which includes navigating the passage of a number of Bills before the Senate, which have either been rejected or simply not put to a vote.

    These Bills include the:

    APTIA has also recently made further submissions to the Australian Productivity Commissions interim report on Australia’s workplace relations framework and is participating in the four year review of the modern awards, which is looking at a range of Industrial issues such as productivity and flexibility in the workplace, the decasualisation of the workplace, dealing with domestic violence in the workplace, the task of getting more women into the workforce especially following parental leave and, of course, the role of penalty rates and unsociable hours in a changing work environment.

    Senator Cash will lead the Government responses to all of these issues and APTIA looks forward to working with Senator Cash to ensure that public transport industry issues are accommodated in any change.

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    4 August 2015

    Today the Australian Productivity Commission handed down its draft Report into Australia’s Workplace Relations Framework. Written submissions and comments have been invited by 18 September 2015, whilst public hearings have been set down for September 2015.

    It is anticipated that the final report with recommendations will be released in November 2015.

    Given the recently announced industrial relations platforms by the ALP and the ACTU this draft report represents the Productivity Commissions much anticipated response to Australia’s workplace relations framework.

    The draft report is available on the Productivity Commissions website www.pc.gov.au and a summary of the review can be found below.

    There are recommendations encompassing some 25 chapters. The most relevant recommendations for the bus and coach industry include:

    1. The separation of the Fair Work Commission into two bodies; one being a Tribunal division, whilst the other to establish minimum standards and to moderate awards.
    2. In unfair dismissal matters re-instatement to be removed as the primary remedy with cases being determined on the papers rather than by conciliation or hearing.
    3. The removal of the four year review of modern awards.
    4. Sunday rates to become the same as Saturday rates and in some industries (not public transport, but service industries) casuals and permanent employees would get the same rate on weekends.
    5. Enterprise agreement s to run up to five years with a change for the better off overall test to a no disadvantage test against other like classes of employees rather than the relevant modern award.
    6. The reintroduction of individual arrangements up to 12 months in which a ‘no disadvantage test’ would replace the BOOT, encompassing more than wages.
    7. A watering down of the right to take protected action, by giving to the Fair Work Commission the discretion to withhold a protected action ballot order where it appears the protected action is just being used as an industrial tactic.
    8. Powers being given to the Fair Work Commission to limit the frequency of Union visits and to restrict them to 2 every 90 days if they do not have any members.

    A more detailed analysis will be provided in next month’s Everybody Out.

    APTIA workplace relations draft overview APTIA workplace relations draft overview (1797 KB)


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    Payment of Annual Loading on Termination

    11 June 2015

    The Bus Industry was today granted a reprieve by the Full Bench of the Fair Work Commission who deferred making a decision on whether annual leaving loading is payable on termination of employment.

    The Passenger Vehicle Transportation Award 2010 is one of only 29 Awards which specifically excludes payment of leave loading and APTIA, along with the Australian Chamber of Commerce and Industry of which BIC is a member, has strongly advocated the retention of this exemption.

    The Full Bench considered a number of applications relating to annual leave including; 

    The Fair Work Commission referenced to the fact that the previous Fair Work Act Review Panel in 2012 had recommended that that the exemption should continue in those modern awards in which it applied and further referenced the fact that the Fair Work (Amendment) Bill 2014 had also sought to rectify the anomaly. The Full Bench referred to a recent case (Centennial Northern Mining Service Pty Ltd v. CFMEU (No.2)) which upheld the Fair Work Ombudsman’s view that the leave loading is payable, even for Awards in which an exemption existed. This case is under appeal by the Full Bench, which concluded;

    “There is a degree of uncertainty surrounding the operation of s.90(2)and consideration of the ACTU’s claim should be adjourned. However, any interested party may seek to have the matter called back on for further programming and submissions.”

    APTIA recommends that Bus and Coach Operators still need to be cautious when relying on the exemption contained within the Passenger Vehicle Transportation Award 2010, because of the potential of some future Full Bench decision which has retrospective consequences.

    However until such time as the Full Bench actually determines this issue or the legislation is passed then an Operator would not a breach of the terms and conditions of the PVTA to rely upon the exemption.


    The Full Bench indicated that it was considering making a model ‘annual leave’ clause relating to the other matters which are generally cover already in the PVTA.

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    Rates to rise 2.5% from 1 July 2015

    3 June 2015

    The Fair Work Commission has set out the 2015 rate increase at 2.5% which will ensure that the Passenger vehicle Transportation Award increases from the first pay period after 1 July 2015.

    The new rates of pay including casual and permanent employment is set out below:

    GRADE 

    CURRENT 

    INCREASE 1 JULY 2015 

    CASUALS (25% loading)

    Grade 1

    $691.40

    $708.69 ($18.65)

    $23.31

    Grade 2

    $708.20

    $725.91 ($19.10)

    $23.88

    Grade 3

    $748.80

    $767.52 ($20.20)

    $25.25

    Grade 4

    $774.90

    $794.27 ($20.90)

    $26.13

    Grade 5

    $817.80

    $838.25 ($22.06)

    $27.58

    Grade 6

    $853.80

    $875.15 ($23.03)

    $28.79

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    Medical Tests for Employees

    27 April 2015

    In a decision of a single Commissioner, the Fair Work Commission, on Friday 24 April 2015 (TWU v Cement Australia Pty Ltd [2015] FWC 158, before Commissioner Spencer), has ruled that an employer can’t make medical health assessments compulsory for their employees.

    The Transport Workers Union of Australia (Queensland branch) sought to arbitrate, under Section  739 of the Fair Work Act, a provision in the Cement Australia Enterprise Agreement, which required all employees to undertake bi-annual medical checks, as a proactive way to  advise employees of their fitness levels and any level of risk in their undertaking their work tasks.

    The TWU has sought a new provision to be included into the Passenger Vehicle Transportation Award 2010, as part of the 4 yearly review, to limit an employer’s right to request an employee to see the employer’s doctor to circumstances where the employer has a ‘genuine suspicion of reasonable grounds that an employee cannot perform the inherent requirements of their jobs’.

    In the Cement Australia case the TWU had disputed the Cement Australia’s right to direct its drivers to participate in the medical checks’ program, especially when regular medical assessments were a requirement under the national heavy vehicle accreditation scheme.

    The Fair Work Commission agreed and ruled that there must be a genuine need for a medical assessment and it must be relevant to the requirements of the worker’s job. The Commission also considered that the employer had an obligation to ensure that it could keep the medical reports private and secure.
    The Commission went further to uphold the basic principle that an employer could direct a single employee to participate in a medical assessment with an employer nominated doctor to ensure that the employee could perform the inherent requirements of their job.

    The TWU Queensland branch has hailed this decision as a landmark decision. The decision does not limit in any way the right of an employer to ensure that an employee is fit for work which is a critical component of a bus driver’ job description, especially from a work health and safety perspective and the retention of the driver’s driver authority.

    It is important however that APTIA members’ ensure that this right to require a ‘fit for work’ medical, is imbedded into their enterprise agreements. Currently the Passenger Vehicle Transportation Award 2010 states:

    “An employer may require an employee and the employee will agree to submit to a medical examination upon engagement and thereafter periodically at the discretion of the employer.” (Clause 15.2 (e) (i)).    

    This clause may go further than the decision in the Cement Australia case and may be varied in the current review process.


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    National Industrial Relations Seminar

    March 26, 2015

    APTIA, the industrial arm of BIC, has just held its National IR seminar at the Realm Hotel in Canberra. In a first, both the Minister for Employment, Senator the Hon Eric Abetz and  Shadow Minister for Employment and Workplace Relations the Hon Brendan O'Connor MP outlined the government and alternate government's plans for industrial relations into the future.

    High profile industrial relations advocates, Senior Deputy President Acton from the Fair Work Commission, Tim Capelin, senior IR partner at Piper Alderman, solicitors and Richard Clancy, the Workplace Relations Director from ACCI provided expert insights into a range of relevant IR topics.

    Nikki Brouwers, the Managing Director of the Interact Group, presented her research on the health and wellbeing of the bus and coach industry. The results of the research are now incorporated into the second edition of the  National Industrial Relations and Work Health and Safety Guide which along with the  Health and Well Being Awareness Guide, launched by APTIA at the seminar, can now be found in the Member's Area of this site.

    The following presentations are available for viewing:

    •    The role of the Fair Work Commission in the 4 Yearly Review of the Modern Awards - Senior Deputy President Acton

    APTIA IR Seminar - SDP Acton APTIA IR Seminar - SDP Acton (389 KB)

    •    What Business  wants out of IR Reform - Richard Clancy, ACCI

    APTIA IR Seminar - ACCI APTIA IR Seminar - ACCI (1371 KB)


    •    Preparing for an Unfair Dismissal Application - Tim Capelin, Piper Alderman, solicitors

    APTIA IR Seminar - Piper Alderman APTIA IR Seminar - Piper Alderman (1311 KB)


    •    How tailored health programs positively influence productivity, wellbeing and strength of the bus and coach industry - Nikki Brouwers, Interact Group 

    APTIA IR Seminar - Interact Group APTIA IR Seminar - Interact Group (1509 KB)

     

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    Gender Equality Reporting

    February 26, 2015

    The Government announced yesterday that it proposes to ease the gender reporting requirements on employers (i.e. who employ over 100 employees); in a move that it claims will cut compliance costs by more than a third. The new rules however won’t take effect until the 2015-16 reporting period.

    APTIA had made representations on behalf of its members both in writing and directly to the Minister.

    The good news is that reporting requirements for 2014/15 will remain the same as the previous year and the proposed more extensive reporting requirements will not be implemented.

    Members should note that the Gender Equality Reporting period runs from April 1 to March 31, rather than the financial year. Members then have two months to lodge reports, which are due between April 1 and May 31.
    From next year, employers will not be required to report data on:

    The Government further announced there would be no changes to the Workplace Gender Equality Act, which requires private sector employers with 100 or more employees to report annually to the Workplace Gender Equality Agency.

    Click on the PDF below for further information:

    APTIA Information Sheet - Gender Equality APTIA Information Sheet - Gender Equality (264 KB)


     
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    ‘No Child Left Behind’ policy upheld


    The Fair Work Commission handed down on 19 December 2014 a landmark decision upholding the right of an employer to enforce its “No child is Left Behind” policy, relating to the carriage of school children on their buses.

    In the decision, Steven Curtis v. Transit Australia Pty Ltd, [2014] FWC 867, 22 December 2014, Deputy President Hamilton was required to review the summary dismissal of an employee who had breached the Company’s “No Child Left Behind” policy, in which the employee had been trained.

    The Transport Workers Union, representing the employee, submitted that any policy which purports to remove a driver’s discretion in relation to refusal of travel to persons who do not pay a fare (including children who are not school children) cannot be lawful or reasonable.

    The Australian Public Transport Industrial Association, represented its member and submitted that the policy “No Child Left Behind”, enunciated by both Queensland Transport and adopted by Transit Australia, included all school students at infant and primary levels as well as students at secondary level, up to 17/18 years. APTIA contended that the Policy applied to all children of school age who travelled on public transport at all times of the day, on all days of the week and was an important policy for the protection of children.
     
    Deputy President Hamilton stated:
     
    “In my view (‘No Child Left Behind”) is both lawful and reasonable having regard to the principles in Woolworth Limited v Cameron Brown, 26/ 09/ 2005, PR963023. There is nothing in Government Guiding Principles, Code of Conduct or Regulations which prevents this employer in implementing its stated “No Child Left Behind” policy.”
     
    The Decision, in which the dismissal was upheld, provides comfort to APTIA members that it is lawful and reasonable for Bus Operators to adopt safety policies, advocated by Government, to protect young persons provided that their employees are fully aware of those policies.
     



























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