fbpx
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. 

Hearing Awareness Week – 1 – 7 March, 2021

Hearing loss is silent. It often arises gradually, and the sufferer will usually not be aware that they have it until significant damage has occurred. This makes it both insidious and dangerous, for if there is an external cause it may be that awareness comes too late for anything to be done to stop the damage. Indeed, as you are reading this, the damage may already have been done to you.

Hearing loss can have many causes. Some benign, perhaps even reversible, others more serious and indicative of underlying conditions. It is often permanent. Noise exposure is a common work-related cause. It can also be caused by other factors such as exposure to certain types of chemicals known to enter the body and cause damage to the hearing (a phenomenon known as “ototoxicity”).

Hearing loss is a quality-of-life condition. There is a tendency to treat it as insignificant and stoically shrug it off (or worse, have others dismiss it) but hearing loss is a pervasive and life-altering permanent disability and it must be regarded with due seriousness. Experiences with hearing loss can range from not being able to hear family members (especially children and grandchildren) when they speak, through to being unable to hear the smoke alarm if it goes off during the night. Daily hurdles impact different people differently, and can be inconvenient, frustrating, isolating, and even devastating. This is to say nothing of the effects of tinnitus (ringing or other sound that is perceived by the brain) which often arises in tandem with hearing loss itself and which can run the gamut from an occasional buzzing through to constant, blaring noise. Without proper management, these conditions can become all-consuming and those who suffer from them need understanding and, above all, support. Especially when these life-altering conditions are inflicted upon them by their work environment.

What Can Be Done If You Have A Hearing Loss?

If you have a hearing loss and were exposed to noise or chemicals known to damage hearing in the course of employment, then you should arrange a consult to speak to a lawyer about it. In South Australia, it is better to make a claim either while you are still working or within 2 years of retirement, but even if the exposure was many years ago, or you have been retired for a while, you may still be able to make a claim. It is better to ask the question than to leave the issue unaddressed.

If successful in a claim you could get both a lump sum payment as well as high-quality hearing aid devices and associated battery and maintenance costs covered on an ongoing basis.

You can contact Boylan Lawyers on 08 8632 2777 to arrange a free 30-minute consult.

Andrew Wright visits Woodville High School to speak to Year 12 Law Studies class

Andrew Wright visits Woodville High School to speak to Year 12 Law Studies class

Andrew Wright | Boylan Lawyers

On Wednesday the 24th of February 2021, my good friend Andrew Wright, Partner in Adelaide law firm Boylan Lawyers, one of the largest independent legal practices in South Australia, visited the Woodville High School Year 12 Law Studies class as a guest speaker to talk about his experiences and responsibilities as a lawyer. In addition, he took questions from the students which varied greatly on many interesting topics that Andrew was more than happy to chat about.

Topics covered included; Andrew’s pathway to becoming a lawyer/barrister and partner in a successful law firm, his experiences across many fields including; criminal disputes, personal injury, workers compensation, industrial relations and civil law more generally. And finally, his journey as a successful business owner was also discussed.

Andrew was incredibly impressed with the interesting and thoughtful questions put to him by the class. The students were both fascinated and moved by the inspirational advice and stories that Andrew was able to share with us about his time in the field of law.

Hopefully, Andrew’s visit has inspired a few or perhaps many members of my class to pursue a career in law and or the State/Federal Parliaments.

The students and I are grateful to Andrew for taking time out of his busy schedule to catch up with us!

 

Damon Flint

Legal Studies Teacher

Woodville High School

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.

 

Superannuation – What to Know

Superannuation – What to Know

Superannuation TPD | Boylan Lawyers

In Australia superannuation has been compulsory since 1992.

Most Australians hold insurance through their super fund membership and most super funds provide cover automatically to their members.

Whether income protection, or total and permanent disability (TPD) cover, or both, these types of insurance provides most people with a financial safety net should they fall ill or become injured and can no longer work.

This insurance can be cancelled OR not included in your super when:

  • No contributions have been made for more than 16 months
  • There is not enough balance in the account to pay for your insurance
  • You are under 25 years of age and do not work in a “dangerous job”.

If you become ill or injured and are no longer able to work, we can check the insurance you have through your super, even if you do not recall which super funds you are a member of.

We will check and confirm your cover and advise you on making a claim.

If you have cover to claim against, we can act on your behalf to complete all the necessary forms and collate all the relevant medical, occupational, and financial information to make your claim.

We can also ensure there is no undue delay in determining your claims and/or complain about any unreasonable conduct from the insurer.

The insurance company may take some time to determine your claim and if they reject your claim, we can also dispute this on your behalf.

At Boylan Lawyers we offer “No Win, No Fee” on super claims, this means we get paid for the work we do when your claim is paid, contact us today to find out more.

Been Unfairly Dismissed? Here’s what you need to do

Been Unfairly Dismissed? Here’s what you need to do

Unfair Dismissal | Boylan Lawyers

Seek legal advice – ASAP!

If you have a claim for Unfair Dismissal you have only 21 days from being told that you are dismissed to do so.

 

Keep a copy of any relevant documents

Gather up the documents your employer gave you, you will need these when speaking to your lawyer and to other parties that might be assisting you (e.g. Centrelink or Community Services).

 

Consult with your Doctor

It is a very distressing time, especially if you were injured or bullied or harassed at work. Make a prompt appointment with your GP to talk things over.

 

Rely on the support of your trusted family and friends

Losing your job can be a life changing event, the emotional support from your nearest and dearest will help you through such a difficult time.

 

Stay positive

Update your CV, register with job agencies and recruiters, network with trusted contacts in your industry, look for new jobs, explore training opportunities are just some ideas you might have. Taking constructive steps like these helps to boost your confidence, keep you busy and gives you a chance to put your best foot forward for the future.

 

For detailed and personal legal advice, that is based on your personal circumstances, make a time to speak with Boylan Lawyers today, do so without delay!