Both employees and employers need to be aware of changes made to modern awards in the health and community services sector over the past six months. Not only do the changes impact on employee entitlements and employer obligations, but they can also have an impact on current workplace practices and policies. Failure to comply can give rise to employees making underpayment claims and/or penalties for breaching the award.
Modern awards in this sector include the:
- Health Professionals and Support Services Award 2010 (HPSS Award);
- Aged Care Award 2010;
- Medical Practitioners Award 2010;
- Nurses Award 2010; and
- Social, Community, Home Care and Disability Services Award. (Awards).
Recent changes that have been made to all modern awards include the following:
Family and domestic violence leave: In the middle of last year, awards were amended to provide employees with five days’ unpaid leave to deal with family and domestic violence. The full five days of unpaid leave is available at the start of each 12-month period but does not accumulate from year to year. This change is now also reflected in the NES following amendments to the Fair Work Act 2009 (Cth), which took effect on 12 December 2018.
Right to request casual conversion: A new clause was inserted into awards in September 2018 so that regular casual employees can now request in writing for their employment to be converted to full-time or part-time. The employer may only refuse this request on ‘reasonable grounds’ after consultation with the employee.
It is also now a requirement that an employer must provide a casual employee with a copy of the relevant award clause within the first 12 months of the employee starting work. Casual employees already employed as at 1 October 2018 had to be provided with a copy of the clause by 1 January 2019. If you have not yet done this as an employer, it is important you do this as soon as possible.
In addition, the following amendments were made to the awards late last year:
Individual flexibility arrangements (IFA): If the employer proposes to vary the terms of the award with the employee’s agreement (by making an IFA) and they are aware, or reasonably should be aware, that the employee has limited understanding of English, then they must take reasonable steps to ensure that the employee understands the proposal. Employers are now required to take ‘measures’ to ensure the employee understands the proposal if they are made aware the employee has a limited understanding of English.
Notice of termination by an employee: A change to the Termination of Employment clause now makes it clear that an employer cannot deduct more than one week’s wages from an employee who fails to provide the requisite amount of notice. Furthermore, employers must not make any deductions from the employee’s wage if the employee is under 18.
- Payment on termination of employment: The awards have also been amended so that it is now a requirement that an employer must pay an employee their termination pay/entitlements within seven days after the termination of employment.
- Request for flexible working arrangements: Before responding to a request for flexible working arrangements, employers are now required to discuss with the employee their request, with regard to certain factors such as the needs of the employee arising from their circumstances. Any reasonable business grounds for refusing the request must also be discussed. If the employer refuses the request, their written response must address possible alternative options.
In addition to the above changes that were made to all awards, further award-specific amendments have been made. For instance, the following changes have been made to the HPSS Award:
- Rostering: The amendments enable a roster to now be altered at any time without consultation to enable the functions of the hospital, facility or organisation to be carried on, due to the absence of another employee because of personal/carers’ leave, compassionate leave, ceremonial leave and leave to deal with family and domestic violence. This was previously restricted to ‘on account of illness or in an emergency’.
- Meal breaks: An amendment of the meal breaks clause means an employee who works less than six hours may choose to skip their meal break with the consent of their employer.
- Shift work: Casual employees working shift work will now be paid a loading of 40% of their ordinary rate of pay instead of the casual loading of 25%. The shift loading of 15% (which applies to shifts that start and/or finish late) does not apply to shift work performed by an employee on Saturday, Sunday or public holidays where the extra loading for those days already apply.
It is important to keep up to date with variations that apply to your organisation because a failure to comply with an applicable award can give rise to employees making underpayment claims and/or the imposition of a penalty for breaching the award. It is also important because sometimes amendments are made to an award to provide greater flexibility for the benefit of the employer.