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Requiring Parental Leave? Your workers’ rights in South Australia

Requiring Parental Leave? Your workers’ rights in South Australia

Requiring Parental Leave?

 Under the Parental Leave Act 2010, it is generally accepted that a significant proportion of the population will qualify for a government-funded payment of (up to) 18 weeks paid Leave at the minimum weekly wage. There are plenty of workplace agreements that are greater than this minimum entitlement, so you will need to look to your own industrial agreement/contract when considering what rights apply in your situation. Father/partner pay are paid at the same minimum wage, though for 2 weeks.

As the Parental Leave Act is 366 pages in length, the key points to know are:

  1. If you have completed 12 months continuous service in your current employment, then you are eligible to apply for Leave.
  2. Casual employees are also eligible, and an entitlement will depend on your work hours and employment being regular and systematic.
  3. The concept of continuous service takes into account the standdown provisions and the like as a consequence of Covid, and so 12 months continuous service can occur over a period of 600 days (previously this was 392 days).
  4. If you earn more than $150,000 a year, then you may not qualify.
  5. Paid Leave is for a period of 18 weeks set at the minimum wage (currently $753.80 per week).
  6. You can take 12 months unpaid Leave and may request a further 12 months but must do so 4 weeks prior to the first 12 months expiring.
  7. If you are a couple, then the 24 months is a combined amount of time between you and not more than 8 weeks can be taken together.
  8. The National Employments Standards cover the primary carer for such Leave but not the secondary carer.
  9. Parental Leave can start 6 weeks prior to the birth.
  10. The South Australian Long Service Leave Act 1987 doesn’t take into account your Leave for the purposes of your long service accruing – not even the 18 weeks that is part of the NES.
  11. You are entitled to go back to your pre-Parental Leave position, and you must be kept informed on any significant change in the workplace.
  12. On unpaid Parental Leave, you get 10 keeping-in-touch days and will be paid according to your normal wage (on a pro rata basis).
  13. You do not need to use your keeping-in-touch days but if you do decide to use them, then you can commence from 42 days post birth of your child.

While Australians are most fortunate to have Parental Leave, the current scheme still has some issues.

Long Service Leave entitlements should not be put on-hold for primary carers, usually mothers, and seems to be the only Leave that is precluded from South Australian Long Service Leave that is also a primary right under the Fair Work Act. The irony is that this is indeed discriminatory to (at this stage) mothers. And if a primary carer has more than one child, then it’s not just 18 weeks that primary carers would be excluded, but instead it is double triple, quadruple etc that amount. The more children you have the more adverse impact.

The Dad and Partner Pay is an entitlement under the Paid Parental Leave scheme which provides fathers/partners with up to two weeks of government funded pay at the National Minimum Wage. It was introduced back in 2013 and was designed to encourage fathers to spend more time with their new-born children. 

Unfortunately, the current Parental Leave system is not reflective of modern Australian views on family dynamics. Two weeks’ worth of paid Parental Leave (amounting to $1507.60) for any parent is quite insufficient.

The issue is that there exists no shared Parental Leave approach. Mothers are typically deemed primary carers and as such, are eligible for up to 18 weeks of paid Parental Leave. Fathers/partners on the other hand, are often labelled secondary carers, a categorisation which precludes that parent from accessing the maximum parental entitlements. The same attitude is taken by most organisations which provide very limited support for secondary carers. 

It could be said that the current scheme is reflective of an outdated family model: mother staying at home to raise the children, whilst the father works to provide an income. If this is the case, it would seem this is concerningly inconsistent with modern views of family, and by extension, equality. Allowing the Dad and Partner Pay to be increased or a shared Parental Leave scheme to be implemented would provide families with adequate support and equal opportunity to bond with their new-borns at home during such a critical time.

Parental Leave is a vital employee entitlement that should reflect modern family views. Parental Leave that supports both parents equally would reduce the stigma and encourage more fathers to spend time with their new-borns, as well as dismantling cultural, gendered or financial barriers that can prevent parents from caring adequately for their children. In a time where we all have less and less time to spend with what matters the most, our families, I think we can all agree that this would be the ideal Parental Leave model for all South Australian employees. 

What’s in a day? Determing what is a ‘day’ of personal leave

What’s in a day? Determing what is a ‘day’ of personal leave

What's in a day? | Boylan Lawyers

High Court Delivers Landmark Judgment

 

On 13th August 2020, the High Court handed down the landmark decision of Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29 (‘Mondelez v AMWU’). The matter clarifies the interpretation of the ‘10 day’ entitlement of personal/carer’s leave under section 96(1) of the Fair Work Act 2009 (Cth), by determining what is meant by a ‘day’ of personal/carer’s leave.

Background

The matter was originally heard in the Full Court of the Federal Court in Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Known as the Australian Manufacturing Workers Union [2019] FCAFC 138.

The dispute related to the following provision of the Fair Work Act 2009 (Cth) (‘Act’):

 

SECT 96: Entitlement to paid personal/carer’s leave

(1)  For each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer’s leave.

(2)  An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.

The matter concerned the issue of the accrual of paid personal/carer’s leave under the Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Bargaining Agreement 2017 (‘EBA’).  Under the EBA, the employees who brought the dispute worked regular 12-hour shifts and were entitled to 96 hours of paid personal leave per year, equating to 8 days of leave. The AMWU argued that such entitlement under the EBA is inconsistent with section 96(1) of the Act, as it denies employees who regularly work shifts longer than 7.6 hours their full entitlement of 10 days paid leave.

 

Issue in dispute

The issue in this matter relates to the interpretation of the word ‘day’ in the context of an employee’s right to 10 ‘days’ paid personal/carer’s leave under the Act.

It was the AMWU’s submission that the ‘working day’ should be interpreted as being consistent with a ‘calendar day’ or a 24 hour period. The ‘working day’ interpretation allows all employees to take their 10 day leave entitlement per year, regardless of their shift patterns or hours of work. The Mondelez employees of this dispute regularly worked 12 hour days, which equated to eight 12 hour days according to their EBA rather than 10 days of personal/carer’s leave prescribed under the Act.

On the other hand, Mondelez and the Minister submitted that the word ‘day’ was to be interpreted as a ‘notional day’ consisting of an employee’s average daily ordinary hours based on an assumed five-day working week. This means that paid personal/carer’s leave would be proportionally calculated based on an employee’s ordinary hours of work.

 

Decision of the Full Court of the Federal Court (2019)

The Federal Court decision preferred the AMWU’s ‘working day’ approach. This decision was significant in that it would have the effect of changing the way personal leave accrued into the future, as Australia historically applied a ‘notional day’ approach.

 

The High Court’s decision

On appeal, the High Court reached a decision which overturned the Federal Court’s decision. The High Court favoured the ‘notional day’ approach, which considers one ‘day’ of work as one tenth of an employee’s ordinary working hours in a two week period.

 

The High Court found that the adoption of a ‘working day’ approach would have adverse consequences for irregular or flexible work patterns. Under this approach, employees with hours spread across fewer days with longer shifts could accrue more leave, making entitlements unfair and reducing the desirability for employers in adopting more flexible work arrangements. The ‘notional day’ approach was found to avoid these adverse consequences, and better protect against loss of earnings and support flexible work arrangements.

 

Consequences of the decision

The effect of the High Court’s decision is as follows:

  • Employees are paid personal/carer’s leave equivalent to their ordinary hours of work in a two-week period and is calculated proportionally depending on an employee’s ordinary hours of work at the rate payable for those ordinary hours.
  • For employees who do not follow a two-week work pattern, the entitlement will be accrued at a rate of 1/26 of their ordinary hours in a year, at the rate payable for those ordinary hours.
  • The accrual and payment of personal/carer’s leave will not be affected by differences in the spread of an employee’s ordinary hours of work in a week.
  • Any personal/carer’s leave taken will be deducted based on ordinary hours taken as leave.

 

Boylan Lawyers are available to provide legal advice on any of your employee entitlement questions.

Please phone us on 8632 2777 for a free initial consultation.

 

What about the Worker? Fair Entitlements Guarantee (FEG) and COVID-19

What about the Worker? Fair Entitlements Guarantee (FEG) and COVID-19

Covid-19 | Boylan Lawyers

The International Labour Organisation (ILO) has suggested that 1 billion workers globally are at risk of a pay-cut or losing their job. Of that billion, 25 million jobs are likely to be lost globally in the foreseeable future.

Recent predictions suggest Australia’s jobless rate will double – so over 10% of the population will be without a job. 800,000 Australian businesses appear to be in significant strife after registering for the JobKeeper payments.

Unfortunately, there are many businesses that simply cannot last, and indeed haven’t been able to last, even up till now. As such they will close and may do so with significant debt.

It’s the debt that cannot be repaid that requires the business to go down the track of bankruptcy. There is no denying this is devastating for the business but spare a thought also for the employees working for that business.

What happens to workers, who were relying and had budgeted on their next fortnights wage?

Or what happens to their entitlements that accrue as a result of being loyal employees over the many years, such as entitlements (that’s right, entitlements) to Annual Leave and Long Service Leave?

What about a further entitlement to ‘notice’ if their employment abruptly comes to a halt?

All the above are part of the National Employment Standards (NES) which are clearly articulated within the pages of the Fair Work Act. They are rights that workers have under Commonwealth law, and dare I say it, International law.

FAIR ENTITLEMENTS GUARANTEE

Under The Fair Entitlements Guarantee Act 2012, workers who are unable to recover their statutory entitlements from their employer due to an insolvent event (enters administration and then liquidation), are able to be reimbursed that shortfall from the Federal Government.

The entitlements workers can claim back from the Government if the employer is unable to pay due to their insolvency consists of:

  1. Wages (capped at 13 weeks)
  2. Annual Leave
  3. Long Service leave
  4. Payment in Lieu of Notice
  5. Redundancy pay (capped at 4 weeks per year of service)

The amount a worker is entitled to be paid will be determined according to the existing terms in the employment contract but the application for assistance needs to be made no later than 12 months after termination, or the insolvency event (whichever is longer).

Stand downs

Continuity of service still applies with respect to a stand down under s524 of the FWA and so workers are not entitled to redundancy pay and therefore notice. Indeed, they are not entitled to a wage during their time in ‘limbo’.

Whilst the worker in the short term can access the increased job seeker payment, it must be borne in mind that enhanced job seeker payment will soon expire. Stand downs are also for a limited duration (though we do not know exactly how long) and so workers who are not reinstated within a reasonable time should be paid a redundancy through their employer, and if the employer cannot afford to pay, through FEG.

Workers shouldn’t have to wait twice!

The insolvent event requirement under FEG is the second waiting game that workers would have to endure. That criteria worked to an extent prior to the pandemic, but it must, like the rest of society, be flexible and change with the times. If you let workers wait too long, then the adage of ‘too little too late’ is obliviously clear!

Employers Paying Less Than The Minimum

Section 119 of the FWA articulates out how much a worker is to be paid for a redundancy. It’s the bare minimum a worker can receive for a redundancy. Any EA’s or contracts of employment are subjected to the best-off overall test (BOOT) and therefore must ensure they are at least the same as, or better than s119.

Despite what I have said above Section 120 of the Fair Work Act 2009 provides an exception to the bare minimum under s119.

It allows an employer to reduce a redundancy payment by up to 100%, if amongst other things they can establish significant financial difficulty (not an ‘insolvent event’). And so even though the employer avoids bankruptcy, the worker may not.

Mason Architectural Joinery is a Sydney business who recently requested respite (likely as a result of the downturn in business due to the pandemic) from the FWC by making an application under s120 FWA. Their application was successful such that the 7 weeks redundancy the worker would have received was reduced to 1 week.

No FEG would apply to the worker as the Order of the FWC provides the new statutory entitlement as 1 week.

Whilst there isn’t an immediate issue with the FWC assisting a business to remain open, there is an issue if it’s at the expense of the worker.

What of the scenario where the FWC allows a reduction for the employer under s120 but then bankrupts the individual in the process?

There must be a widening of the scope of FEG whenever the FWC decides that businesses should be given respite under s120 at the expense of the worker.

Whilst this issue is pertinent now, I suggest any FWC Order reducing a worker’s minimum entitlement under s120 be at the expense of the government, not the worker.

‘Presuming’ COVID-19 arises from work

‘Presuming’ COVID-19 arises from work

Nurse Doctor COVID 19 | Boylan Lawyers

If a nurse, cleaner, doctor, or any other profession working ‘on the front line’ assisting with the Covid-19 virus contracts the virus, then these vulnerable workers should be protected as much as possible under State, Territory or Commonwealth workers compensation laws.

Under the Return To Work Act 2014 (RTW Act) South Australia has a list of jobs and medical conditions that are presumed to have occurred (deemed injuries) because the injury or disease occurred when they were undertaking a task that is likely to have caused that injury or disease. Unless there is proof to the contrary from the insurer/employer (the reverse onus) then the claim for that injury is accepted.

Covid-19 must be included in that list, at least for workers such as nurses, doctors and cleaners who are working in ‘high-risk’ areas, or the front line as mentioned above. Section 9 is the evidentiary provision under the RTW Act

“An injury isn’t compensable unless it can be established on the balance of probabilities it arises from employment

As it stands, our State legislation requires a worker who contracts the virus prove they contracted it from work. Imagine then a nurse working in a clinic who tests and/or treats Covid-19 cases. The law as it stands says the nurse would need to establish, they contracted the virus from work, on the balance of probabilities. That may be difficult if for example other members of the nurse’s family (or friends) also contract the virus around the same time as they did.

S188(1) assists to some extent;

“ An injury…that develops gradually or is a disease will be taken to have occurred when the worker first becomes totally or partially incapacitated for work by the injury”

However, the worker still needs to establish the injury creating the incapacity is ‘a work injury’ as defined under s7(1) of the Act;

“This Act applies to an injury if (and only if) it arises from employment”

 Section 9(4) of the RTW Act allows Regulations to be made ‘on the recommendation, or with the approval of the Corporation’ to add a job and an illness/disease to schedule 2 Injuries.

As an example, Asbestosis is a schedule 2 injury. The worker who contracts Asbestosis need only show they had worked with asbestos previously. So surely contracting Covid-19 should be considered in the same light?

There are 24 schedule 2 injuries at present and that number must be increased to 25 and have retrospective effect.

Recovery/Return To Work Plans & Workers Compensation in the Era of COVID-19

Recovery/Return To Work Plans & Workers Compensation in the Era of COVID-19

COVID 19 | Boylan Lawyers

Recovery Return to Work (RTW) Plans

 

South Australian workers who suffer an injury at work are entitled to a maximum two years of wages and three years of medical expenses. The general exceptions are if you are a seriously injured worker, or if you require surgery.

There is a big emphasis on rehabilitating and returning injured workers to work, and rightfully so. Section 3 of the Return to Work Act 2014 sets out the Objects of the Act and essentially repeats what I have just said, namely that rehabilitation and return to work is paramount. (RTW Act)

Unfortunately, COVID-19 has created barriers for insurers to rehabilitate and return to work injured workers within a 2-year period.  Workers can no longer attend, or no longer effectively attend the likes of physios/surgeons/psychiatrists/gyms/workplaces/study to name just a few rehabilitative services and so most Return to Work Plans currently in force between insurers and injured workers, cannot and are not being achieved. (ss24 and 25) That also raises issues of mutuality (breach of mutuality) though hopefully common sense prevails for each fact that presents.

Whilst a couple of weeks of non-adherence to a plan could be ‘brushed aside’ on the basis that each of the contracting parties to the plan ‘get on with it’, the same cannot be said for the current predicament. Consideration and discussion of this issue now will have less adverse implications in the future. As far as I am aware, insurers have not turned their mind to this issue at all.

Similarly, what of the situation (of which there are many examples) where workers are keen to proceed with elective surgery so they can get the best and most timely treatment to put them in a position to get back to work as soon as possible, thus adhering to the Objects of the Act?

If a worker gets to the end of their entitlements and hasn’t been sufficiently rehabilitated and is no longer employed by his pre-injury employer (not uncommon) and not entitled to weekly payments due to the expiry of two years then why should this worker be at a further disadvantage due to the unavailability of appropriate rehabilitation during the time he was on payments?

S39(3) of the RTW Act makes it clear there is no entitlement to weekly payments after 2 years, but surely that has to be based on the insurer adhering to the Objects of the Act, namely rehabilitating and, if possible returning the worker to work (pre-injury employer or some other new employer)?

The worker must be provided with the best chance possible of selling his labour on the open labour market after the expiry of entitlements. At least, this must have been the intention of the legislature?

Solution

Extend the time allowed for weekly payments commensurate with the delay in ‘access to rehabilitation’.

 

The ‘R’ word

 

Redeeming entitlements under the repealed Act worked. It still works under this Act with the Self-Insured employer, so why can’t a policy decision created by Return To Work (The Corporation) be reconsidered in light of the COVID-19 crisis?

  • It would allow matters to settle much earlier and without the need for judicial intervention. Redemption talks could commence now and without the need for SAET (South Australian Employment Tribunal). In fact, now is the best time as we have the Independent bar without a court room and therefore with time to consider settlements, that could take the form of a redemption.
  • It would reduce the unfunded liability of the scheme. It would possibly encapsulate an overall settlement where the employer may wish to be involved for s18 issues at least. It would give the worker and employer certainty now.
  • It would give the worker money at a time it is needed most.
  • It would alleviate the need to attempt to follow a recovery/return to work plan that cannot be followed or can be followed but at great risk.
  • It would alleviate an influx of arguments from workers representatives that their clients haven’t been adequately rehabilitated and therefore s39 shouldn’t apply.

Solution

Get redemptions back on the table!