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  • HR Heartbeat: Discrimination exceptions, closing loopholes, and...

HR Heartbeat: Discrimination exceptions, closing loopholes, and...

This week we’re talking about playground rules, how this contract stopped an unfair dismissal, the possible changes coming to the Fair Work Act, and proactive backtracking.

First published on Monday, Sep 11, 2023

Last updated on Friday, Sep 08, 2023

5 min read

Have you heard the latest news?

Everything you need to know about the latest trends impacting employers all over Australia. Keep up to date with the HR Heartbeat.

Let’s get into the headlines.

“No girls allowed”

At least not in this Adelaide barbershop trying to build a “male sanctuary”.

Understandably, this has sparked some outrage both online and offline. Some are calling it discrimination, others point to other establishments like gyms that cater to particular genders.

The barbershop owner needs to do quite a bit of convincing to a tribunal to make this playground rule stand. He said this was part of his aim to create a space where men could vent about their issues and share their troubles.

So, what does the law think? Apparently, there are instances where a business can apply for an exception under discrimination laws. This can only be granted after an application has been made to a tribunal and the business proves it has a good reason to do it. These exceptions can apply to both clients and employees.

Ask BrightLightning: * Can I terminate an employee based on their gender status? * Can employees claim discrimination based on their gender identity? * What is the Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Bill 2023?

When did this probation start again?

This employee first met their former employer when he was hired out as a casual truck driver through a recruitment agency.

He managed to impress his former employer enough to prompt them to hire him into a full-time position. Unfortunately, some employees just don’t work out in the long term, and that’s what happened here. The employer wound up terminating this employee within his probationary period.

That leads to the big question of whether the employee’s service period started with the time he spent as a casual truck driver for the company, or if his probation only began when he was formally onboarded as a full-time employee.

Does the former employee have grounds for an unfair dismissal case? The Commission says no.

Here’s why: * The employee’s contract and letter of engagement included no clauses about continuous service or recognised his previous service * There was no connection between the two employers making it a transfer of business for the purposes of s311 of the Fair Work Act 2009

No loophole to see here

On Monday 4 September 2023, the Federal Labor Government introduced The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 to Parliament.

The Bill is set to be referred to the Committee, and if passed it’s likely to come into effect later this year. So, it’s not yet law but better now than later to learn more about the changes the Bill may bring.

The changes include updates to the laws around:

  • Wage theft and intentional underpayments
  • Casual conversions and employees' rights to request it
  • Minimum payment terms for gig economy workers
  • Equal rates of pay for labour hire employees engaged with enterprise agreements
  • When payments are to be made following a shift
  • The definition of what it means to be an ‘employee’ under the Fair Work Act

And more.

Stay tuned to see how this Bill progresses!

Proactive backtracking in aged care

The largest aged care operator in Tasmania is back-paying staff to the tune of $6.9 million and has signed an Enforceable Undertaking (EU) with the Ombudsman.

It all started when the operator identified fundamental flaws in its HR and payroll systems. Following an internal review, they self-reported their breaches to the Ombudsman.

Many errors were uncovered including failing to have agreements with part-time staff to work overtime at their ordinary pay rate. Full-time and casual employees weren’t spared either, it was revealed they’d been underpaid for ordinary hours, weekend penalty rates, public holiday work, paid meal breaks, and shift penalties and allowances.

The amount that individuals were owed ranged from less than $1 to more than $220,000.

But what it all comes down to is 1,708 current and former employees owed a total of $6.87 million, which includes $5,806,756 in wages and entitlements, $313,591 in superannuation, and $754,181 in interest. Under the EU, all back payments need to be settled by the end of September.

It seems like we have a wake-up call for employers every week reminding you to make sure you’re meeting your legal obligations. These errors are easy to make, but the Ombudsman doesn’t take “accidents happen” as a valid excuse. Make sure you’re always covered with 24/7 employment relations advice from a team of experienced advisers.

Ask BrightLightning: * What happens if I underpay my employee by mistake? * What do I do if I have underpaid my employee? * How do I get money back from my employees whom I have overpaid?

That wraps up this edition of HR Heartbeat. Stay tuned for more headlines and all the latest updates that will keep you in the know with all the major employment changes coming your way.

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