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The big workplace law shifts you may have missed

By CCIWA Editor

COVID-19 overshadowed some big shifts in workplace law over the last six months, but the changes will still have a significant impact on business.

There have been new JobKeeper-enabling flexibilities, movement in Modern Award scopes, shifts to the definition of "casual" workers, and high profile fall out from annualised award underpayments.

And critically, proposed laws meaning employers could face up to 10 years' jail for industrial manslaughter, even if they were not negligent, passed WA's lower house.

We've broken down some of the most important.

Employment flexed for COVID-19

As part of the JobKeeper scheme, the Federal Government introduced temporary new powers within the Fair Work Act which allow employers to alter the duties, location and ordinary hours of employees while they accessed the JobKeeper payment.

These provisions will continue to operate until September 28, 2020.

The Fair Work Commission also made changes to most modern awards that allowed staff to double annual leave at a half rate, and utilise new 'pandemic leave' protections during periods of unpaid leave they may need to take because of COVID-19 medical advice.

Some awards in the most impacted industries, like the hospitality industry and many clerical roles, were granted even more flexibilities.

These changes had ended on June 30, 2020. However, The Fair Work Commission made a provision to allow some extension of flexibilities. Some variations are now continuing until the end of 2020.

Annualised wage arrangements

In March 2020, new rules for annualised salaries made keeping timesheets and conducting yearly pay reviews compulsory for some businesses.

The rules also restrict how long employers have to compensate workers for underpayment.

The amendments were aimed at ensuring that those staff with annualised salary arrangements were paid more, or the same as, those paid under the award for the hours, days and duties they worked.

The changes formalised the need to review remuneration arrangements in the event the scope or hours of work changed.

This process of amending annualised salary arrangements is still underway for a handful of awards.

Plain language rewrites

A plain-language review to help make Modern Awards easier to interpret has been underway for some time now.

The review has so far seen the majority of awards updated from a 2010 to 2020 title, accompanied by an adjustment in how the awards are formatted, what content is placed where, and the language used throughout.

These changes have clarified the meaning of some wording which has, up until this time, debated between employee and employer advocacy groups.

A recent example is Miscellaneous Award changes, in which the scope has been varied so that more lower-skilled workers fall within its scope.

'Casuals' and leave

In late May, the Federal Court ruled a “casual” worker could claim leave entitlements in the WorkPac Pty Ltd v Rossato case.

The ruling reinforced that casual employees with “predictable periods of working time” are likely to be considered permanent.

This has implications for casual loading — which is the extra money businesses pay casuals to compensate for the leave entitlements that permanent staff members receive.

The impact of this decision is currently being discussed at the Federal Government’s industrial relations reform roundtable.

Industrial manslaughter

WA's lower house recently passed new industrial manslaughter laws which could see business owners jailed for up to 10 years if a worker dies on the job, even if the owner hasn't been negligent.

The legislation follows the introduction of new penalties for industrial manslaughter in Queensland, Victoria and the Northern Territory.

However, where the test of manslaughter in other jurisdictions is based on gross negligence or recklessness, WA is proposing a two-tier system.

The first tier, which carries the greater penalty of up to 20 years imprisonment, imposes a test of recklessness where a party knowingly engages in behaviour that could result in the workplace fatality.

The second tier carries a maximum 10-year jail sentence for the employer or a senior officer of an organisation where there's a workplace fatality arising out of a breach of duty of care.

It means, if the employer could reasonably have done something to prevent a fatal accident from occurring, there is a potential they could be imprisoned.

The CCIWA is working hard to prevent this second-tier legislation from passing the Upper House. Click here to learn more.

COVID-19 overshadowed some big shifts in workplace law over the last six months, but the changes will still have a significant impact on business.

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