Action Required – Award Modernisation – New Requirements
By Kristin Ramsey20 Nov 2018
There have been some important to changes to most modern awards in recent weeks.
The key changes relate to:
- Casual conversion rights;
- Requests for flexible work arrangements;
- Timing of termination payments; and
- Limitations on deductions for failing to provide notice.
Most of these changes have already taken effect and impact all employers who are covered by a modern award (or who are in the process of negotiating a new enterprise agreement).
The Fair Work Commission recently issued a number of decisions amending standard clauses across most modern awards.
Whilst many of these changes relate to simplifying existing wording, there are several substantive changes relating to casual conversion, family-friendly work arrangements and termination payments. Most of these changes have already come into operation.
Casual conversion rights now available to all
A model casual conversion clause has now been inserted into all modern awards which didn’t already have such a clause.
Under the model clause, a casual employee who has been working a regular work pattern for at least 12 months can request to convert to full or part-time employment.
Where such a request is made, the employer:
- has 21 days to consider the request and provide a written response; and
- can only refuse the request on reasonable grounds.
In addition, employers have an obligation to notify existing employees of their casual conversion rights by no later than 1 January 2019 and for new employees – must notify them within the first 12 months of their employment.
Businesses need to take action now to ensure that they have sufficient processes and procedures in place to manage requests for casual conversion and ensure compliance with notification and timing requirements. Consideration should be given to developing a casual conversion policy & procedure and template notification and response letters.
In addition, given the growing risks associated with the engagement of casual employees on a long-term or regular basis, businesses should take a proactive approach to monitoring casual hours and offering conversion to permanent employment (even in circumstances where this hasn’t been requested by the employee).
To support businesses in this area, we offer a casual conversion package which includes advice on the risks associated with long-term casual employment (and tips on how to manage that risk), a casual conversion policy and supporting documentation. Please contact us for further details.
Requirements for termination payments
The other substantive changes relate to the timing of termination payments and the ability to withhold money where an employee fails to give sufficient notice of termination
Going forward, most awards require that:
- termination payments be made within 7 days of termination; and
- no more than one week’s pay is withheld in circumstances where an employee fails to give the required period of notice (this is also subject to some restrictions).
Businesses need to review the provisions in their applicable awards and update their template contracts and termination policies & procedures to ensure that these new requirements are complied with. We can assist with this.
Request for flexible work arrangements
From 1 December 2018, all modern awards will be varied to include a model clause regarding requests for flexible work arrangements made under the National Employment Standards.
Under the new clause, before an employer can reject a request for a flexible work arrangement they will need to have discussions with the employee and genuinely try to reach agreement on an appropriate change to arrangements. Furthermore, an employee will have the option of raising a dispute under the dispute resolution clause in the award (and therefore ultimately seek a determination from the Fair Work Commission) if they are not satisfied with their employer’s response to their request.
These are important changes and supplement an employee’s rights under the National Employment Standards.
If they haven’t already, businesses should ensure they have appropriate policies and procedures in place regarding the making and management of requests for flexible work arrangements. To assist businesses we offer a flexible work package which includes a flexible work requests policy & procedure, application form and other associated templates. Please contact us for further details
Please contact Kristin Ramsey – Practice Group Leader, Workplace & Industrial Relations if you would like assistance with implementing these changes or would like further details regarding our casual conversion or flexible work packages.