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Extensive changes to workplace law and casual employment proposed

The Morrison Government’s Omnibus Bill was introduced into Federal Parliament on 9 December 2020. The Bill proposes to make extensive changes to workplace relations and employment. If legislated, relevant changes will also apply retrospectively from employees’ commencement dates. 

The Bill introduces a number of reforms in the industrial relations space:

  1. The definition of a casual employee will be introduced as someone who is offered and accepts employment without ‘firm, advance commitment’ that it will continue indefinitely or follow an agreed pattern of work. It will be an objective common-sense test, considering a range of factors including whether the employee receives a casual loading and has the ability to accept or reject work.
  2. Casual employees who have been employed for 12 months and have worked regular shift patterns for 6 months can convert to permanent part-time or full-time unless there are reasonable business grounds against doing so.
  3. Employers will be able to set off any leave and other entitlements owing to a casual employee who is later found to have been incorrectly classified, against any casual loading previously paid to the employee (in direct response to the double-dipping issue which arose from WorkPac Pty Ltd v Rossato [2020] FCAFC 84 earlier this year).
  4. Employers will be able to enter into simple written agreements with certain part-time award-covered employees which offer additional hours without attracting overtime (so long as the total hours worked are no greater than 38 per week or over the maximum hours in a day in accordance with the applicable award).
  5. Flexible work directions around duties and locations of work (similar to the JobKeeper enabling directions) can be given award-covered employees to assist employers for two years after they are introduced.
  6. The EBA approval process will be eased and timelier, with the Fair Work Commission only able to consider patterns of work or types of employment when assessing whether it meets the Better Off Overall Test if these are engaged in by award-covered employees or are reasonably foreseeable when the application for approval is made.
  7. ‘Life of project’ greenfield agreements will be introduced to cover the reality of major projects that extend significantly longer than the current four-year lifetime.
  8. A new criminal offence will be introduced for the dishonest underpayment of wages which carries a maximum penalty of 4 years’ jail and/or a fine of up to $1.1 million for an individual and $5.5 million for a body corporate.

Written by Nes Demir

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Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career.

Paul Evans

Managing Director, Toro Digital

Psychological hazards of e-working during the pandemic is a relevant factor. The Australian Psychological Society identified these hazards as conflicts between work and family, workload and over-working, future uncertainty and isolation/loneliness.

Heightened levels of stress around the pandemic is also a relevant factor. An April 2020 study reported 88% of the participants (US employees) faced moderate to extreme stress during the pandemic and nearly 70% faced the most stressful time of their professional career. Participants noted their productivity consequently declined by at least one hour a day for 62% and at least two hours for 32%.

Unsurprisingly, there has been a marked rise in mental health related prescriptions since March 2020.

These risks can be mitigated by undertaking appropriate risk analysis for each employee, ensuring controls are instituted that mitigate those risks, ensuring regular communication between management and employees around individual circumstances, setting clear expectations including around joint goals and objectives, scheduling regular informal team gatherings, and ensuring access to support and resources.

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