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Domestic violence leave and casual employee conversion - these rulings may impact your business

NewsFlash 18 July 2017

The Fair Work Commission (FWC) has recently handed down two key decisions that will impact the way businesses manage their workplace planning and the workforce generally.

FWC rules on domestic violence leave

The Australian Council of Trade Unions has failed in its bid for 10 days paid domestic violence leave to be included in modern awards however the FWC has formed the preliminary view that all modern award covered employees should have access to unpaid family and domestic violence leave.

The FWC said that while it rejected the Unions’ claim on this occasion it did not mean a future finding that paid leave was needed was off the table, particularly since family and domestic violence is a social and workplace issue with widespread impacts.

The FWC emphasised that employees should be able to currently access personal / carer’s leave if they need to attend family and domestic violence related appointments.

The decision recognises that workplace rights need to keep pace with community expectations. Interestingly, public sector employees in many States (QLD, Victoria and WA for example) are already entitled to paid leave if they are experiencing family and domestic violence.

Many employers are of course already sensitive and compassionate towards employees experiencing family and domestic violence and provide paid leave, unpaid leave and flexible working arrangements. Policies addressing family and domestic violence are of course a great tool to remind employees of the support the workplace is able to provide and to set any parameters around employee expectations.

Under the Fair Work Act 2009 (Cth) employees have the right to request flexible working arrangements in certain circumstances if they have worked with the same employer for at least 12 months. Employers can only refuse these requests on reasonable business grounds. We encourage employers to genuinely consider any request made by an employee to work flexible hours as a result of family or domestic violence at any time during the person’s employment.  

Contact our Employment, IR & Workplace Safety team if you want to find out more about flexible working arrangements, including what employers should do with a request or if you need a family and domestic violence policy prepared for implementation in your business.   

Visit the Fair Work Commission Modern Award – 4 yearly review - family and domestic violence clause page to access a copy of the Full Bench decisions and other materials.

National domestic violence helpline: 1800 737 732 or 1800RESPECT. In an emergency call 000.

FWC inserts casual conversion clause in all modern awards

Before the introduction of modern awards, casual conversion clauses were a feature of many State Awards and the majority of those casual conversion clauses were lost as a consequence of the award modernisation process which came into effect on 1 January 2010. Since then, Unions have been lobbying to have casual conversion clauses inserted into all modern awards.

As part of the four yearly review of modern awards, a five member FWC Full Bench has ruled that modern awards should now contain a provision enabling casual employees to elect to convert to full time or part time employment, subject to certain rules and restrictions.

The Full Bench noted that HILDA* data provided that 29% of casual employees work full time hours, with the average weekly hours worked being 16.1 hours. The data also showed that 60% of casuals had worked regular shifts for 6 months or more with the same employer, and 28% of casuals had worked with their current employer for 3 or more years.

Unlike permanent full time and part time employees, casual employees are not entitled to certain benefits under the National Employment Standards such as paid annual and personal leave. To compensate for this, they are entitled to receive a casual loading.  

The FWC determined that if an individual’s casual employment is long-term in nature, and sufficiently regular, then it is “fair and necessary” to allow those casual employees to access the entitlements of permanent employees.

A model clause for casual conversion has been drafted by the FWC, and will be inserted into 85 modern awards that do not already contain a casual conversion provision. The draft conversion clause states that casual employees who have worked a regular pattern of hours on an ongoing basis for 12 months, which could be performed as full-time or part-time work, will be able to elect to become permanent employees at their initiative.

Employers can refuse a casual employee’s election on reasonable grounds which will include if:

  • it would require a significant adjustment to the casual employee’s hours of work;
  • it is known or foreseeable that the casual employee’s position will shortly cease to exist;
  • the employee’s hours of work will significantly change or be reduced within the next 12 months.

The draft conversion clause also requires employers to give all casuals, regardless of whether they work regularly or not, a copy of the conversion clause during the 12-month qualifying period, so that they are aware of their entitlement to convert.

It is important to note, that these changes are not yet finalised and therefore do not apply yet. Despite this, you may already have received questions from some of your casual employees. As the timing of this significant change to the workplace landscape is unclear (although it is unlikely to take effect this year in our view) we recommend employers follow this issue closely. That way, you and your business can be aware of, and take necessary steps to comply with any new obligations regarding casual conversion and make appropriate planning and adjustments.

For further information on casual conversion and how you can get ready for this change, please contact our Employment, IR and Work Safety team.

*HILDA is an acronym for The Household, Income and Labour Dynamics in Australia and is a household-based study and research into a wide range of social, economic and demographic issues. Results are collated and managed by the Melbourne Institute, which is affiliated with University of Melbourne.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


Peta Tumpey, Partner
Sydney

Vanessa James-McPhee, Senior Associate
Brisbane

Keely Horan, Senior Associate
Sydney

NewsFlash 18 July 2017
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