Tag Archives: employment

Wet Weather and Work

WET WEATHER & WORK

Given the current wild weather in NQ and FNQ questions are being asked about entitlements to pay when stood down due to weather.

If an employer stands down an employee because of a natural disaster, they don’t have to make inclement weather payments, unless it is provided for in the Award, Contract, Letter of Offer or Enterprise Agreement etc. 

If you are concerned about if you should be paid during a shut down for inclement weather, you should review the terms of your employment, (please don’t rely upon advice from well-meaning Facebook comments from non-qualified individuals).

If the terms of your employment make no reference to inclement weather, then pursuant to the Fair Work Act, your employer is not required to pay you during the stand down.

Inclement or severe weather

Inclement weather is when it is unsafe or unreasonable for an employee to work because of severe weather conditions.

Awards, enterprise agreements and other registered agreements can set out:

  • what inclement weather includes
  • what employees and employers have to do when there is inclement weather.

Stand down

Unless the terms of employment provide otherwise, an employer can send employees home if there is no useful work for them to do because of natural disaster (including floods, bushfires, tropical cyclones).  This is known as a stand down. This can only happen if the reason for the stand down was out of the employer’s control.

Employees can’t be stood down just because there is not enough work.

Pay during stand down

An employee is not paid during a stand-down period unless the terms of the employment state otherwise.

The Fair Work Ombudsman has published a “Best practice tip”

An employee is not paid during a stand down period. However, an employer can be flexible and consider other options that will allow an employee to be paid.

The employer can consider letting employees:

  • take a period of paid leave, such as annual leave
  • work at another location such as from home or another work site.

However, you should be aware this is a best practice tip, not a requirement unless provided for in the terms of the employment.

Employers should review documents before standing employees down

Employers can often be caught out being unaware of their obligations to employees.  This can be unintentional, but despite this, it can often lead to angst and discourse in the workplace.  Don’t be caught out. Make sure you are prepared for inclement weather events (particularly given where we live).

Employers prior to, and during times of inclement weather should review their terms of employment, enterprise agreements or awards to ascertain their legal requirements and obligations to their employees.

Employers should also review these documents to establish if they have an obligation to find other work or consult with employees before standing them down due to inclement weather.  Failure to do so can also have legal ramifications for breaching general protections.

Contracts of Employment/ Enterprise Agreement may provide for pay

Employees and Employers should review terms of employment to determine if your employment conditions include being paid for stand down during severe weather.  It is not unusual in fields such as civil mining/mining for contracts/enterprise bargaining agreements to provide that employees are to be paid a portion or their full wage during a stand down.

Remember in times like these, if it’s flooded FORGET IT!  Stay safe Queenslanders!

For more information, see the Fair Work Ombudsman Website https://www.fairwork.gov.au/pay/pay-during-stand-down-and-severe-weather

The information provided in this article is general in nature and is intended to provide a summary or general overview.  It is not intended to be comprehensive and does not constitute legal advice.  You should obtain legal advice specific to your circumstances.

 

Casual workers can have unfair dismissal rights too!

All too often I see and hear people comment that casual workers don’t have rights in regard to unfair dismissal.  “You’re a casual, they can sack you at any time.”

This is a false statement and casual workers who rely upon this information are potentially losing out on entitlements.  Casual workers do have rights, which include, in some circumstances, actions for unfair dismissal.

Casual workers are excluded from bringing unfair dismissal claims unless they:

  • worked on a regular and systematic basis,
  • had a reasonable expectation of ongoing employment, and
  • worked in excess of 6 months (if their employer is not a small business employer) or 12 months (if their employer is a small business employer (under 15 staff).

Regular and Systematic basis

The Fair Work Commission considers the following factors when determining whether a casual’s employment was regular and systematic:

  • the worker is offered work regularly and generally accepts work when offered
  • a pattern or system is clearly established that the casual worker is offered work regularly and the worker would accept that work.
  • the casual worker generally works as part of a regular crew and has a reasonable expectation of work on particular days of the week. The casual does not need to be told each and every day to be required to work in these circumstances. This illustrates evidence of a regular and systematic basis for the employment.
  • there is a clear pattern of work being offered with reasonable frequency and of the work being generally accepted.
  • the employer has a reasonable expectation that the casual worker would work when work is offered. The pattern of employment cannot be described as irregular, informal or occasional.
  • it is not necessary to establish that shifts and start and finish times are regular or rostered to establish that the employment is on a regular and systematic basis.
  • whether during the period of employment there was a reasonable expectation of ongoing employment.
  • the evidence of what actually happened supports the finding that there was a reasonable expectation of ongoing employment on the same basis as had been occurring during the period of employment.

The recurring factors are that a casual worker is regularly offered work when it was available and came to expect that.

Reasonable expectation of ongoing work

The Fair Work Act also provides that a “long term casual worker “ is a national system worker of a national system employer at a particular time if, at that time:

(a)  the worker is a casual worker; and

(b)  the worker has been employed by the employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

The next step a casual need to consider is if they meet the requirements to bring an unfair dismissal on the basis that the dismissal was harsh, unjust or unreasonable. Strict 21-day time limits apply, so legal advice should be obtained urgently.

Employers and workers should also remember that just because a worker is called a casual does not necessarily mean that they are one! Many times, casuals have been found to be permanent employees.

This article is written to provide information only.  You should consult with a qualified lawyer with questions about your employment entitlements, specific to your circumstances.  State and Territory workers will need to review the State and Territory Laws, where they are not a national worker.  Other avenues also exist for general protection matters (involving termination) which has not been covered in this information sheet.

School aged young workers and employment – what do you know about it?

Young worker

A few months ago, our eldest daughter (who is 15) started her first paid job.  It was a bittersweet moment.  My bank account was grateful and thankful to the employer for providing her with a job.  But, my head and heart felt concerned and anxious about how our eldest baby will experience her first job.

Our eldest daughter has been tasked with 7 years of emptying the dishwasher as her one chore.  Now, this is paid work within the home so I expect (as any employer would) for the job to be done.  However, sure enough, I have had to remind her to unload said dishwasher nearly each and every one of those days …for 7 years.  Hence my concern regarding her entering the workforce.  As the relationship dynamics are different, would she perform well? What if she doesn’t? How will her employer deal with her? And my “inner protective lioness”  moment of how is she going to deal with rude customers?

Fast forward to now.  She commenced her employment with an employer who has an impressive training technique.  She felt comfortable enough with the trainer and manager to ask a lot of questions during her training.  She likes her job.  Her employer likes her work performance and I like and appreciate her employer’s style.  She has dealt with rude customers in a way in which I am super proud! On this occasion, it all worked out.

In contrast, I have heard about the other end of the spectrum with inadequate training, questionable verbal interactions and bullying of young workers. Employers must take reasonable steps to ensure that a child (a young worker) is not subject to deliberate or unnecessary social isolation or any behaviour likely to intimidate, threaten, frighten or humiliate them.  Apart from rupturing young workers confidence, this is a serious health and safety risk.

Employing young workers is beneficial to businesses as it significantly reduces wages.  However, this also means that an employer must understand and adapt to the special characteristics involved.  The special characteristics of young workers include, but are not limited to;

  • The size of the person and physical maturity;
  • Their general behaviours and maturity;
  • Their work experience and training;
  • Their confidence to raise problems with their supervisors;
  • Their ability to make mature judgements about their own safety and the safety of others;
  • Their ability to cope with unexpected and stressful situations; and
  • Special characteristics that mean young workers are more likely to be affected that adults in the same situation.

Each State and Territory have legislation dealing with child employment which supplements the Fair Work Act 2009. This article is dealing specifically with the Queensland Child Employment Act 2006, the Child Employment Regulation 2016 (commenced 1 September 2016) and school-aged workers.

The common misconception is that children must be 14 years and 9 months in which to seek and obtain employment.   Queensland legislation generally prohibits (unless approved) the employment of young workers younger than 13 years of age.  Prior to age 13 approved circumstances include: for entertainment employers, family business and some forms of supervised employment such as deliveries and charitable collections.

Hours of work

For those young workers who are still at school there are restrictions on hours that can be worked on a school day and non-school day:

  • During a school week, a school-aged child can work a maximum of 12 hours per week;
  • Work on a school day is a maximum of 4 hours only; and
  • On days that children are not required to attend a school they can work a maximum of 8 hours, but again this is capped for a 12 hour week during school weeks.

During a non-school week, a school-aged child can work a maximum of 38 hours.

Times of work

Restrictions are in place regarding the times for work:

  • School-aged and young children cannot work between 10pm and 6.00am.
  • Those children between the age of 11 and 13 years (that carry out delivery work) cannot work between 6pm and 6am.

Children working in a family business are not subject to these restrictions, however family businesses should be mindful of the power the Director-General of the Department of Justice and Attorney- General’s office has to issue a work limitation notice (where it is reasonably believed that the work may interfere with a child’s schooling or be harmful to their safety, health, physical, mental or social development).

Business Owners

Business owners who should already be familiar with our Federal workplace laws should also review the Child Employment Act 2006, Child Employment Regulation 2016, the Child Employment Guide and Children and Young Workers Code of Practice 2006.

There is a number of published materials available online to assist employers, however, these should be tailored specifically to the workplace and the young workers employed.

The Fair Work Ombudsman has published the “Best Practice Guide – An employer’s guide to employing young workers.” Located here.

Queensland Work Health and Safety has published guidance material.  Located here.  In addition to a “Young Worker Safety Toolkit” located here.

Practical tips for working with young workers include: invite interactions, set short terms goals, tailor training to cultural, literacy and learning needs, provide a thorough induction and continued supervision, check for understanding and provide positive affirmations on their work progress.  If you are particularly keen, try reverse mentoring! Many young workers are highly skilled in tech and social media skills which may be beneficial to your business.

Parents/Guardian

Your school-aged or young child worker will need you to complete a parents/guardian consent form.   A parent/guardian must ensure:

  • they are present if it is their baby that is employed;
  • they provide a parent’s consent form to the employer before employment can occur;
  • they inform the employer if their child’s school hours change by submitting a parent’s consent form within 14 days of the hours changing.

Parents and guardians should familiarise themselves with the law surrounding young workers employment to ensure that both their child’s rights and obligations are being met.

The Queensland Department of Justice and Attorney General has published a “Child Employment Guide” located here.  By law, this guide is required to be displayed conspicuously in a child’s (young workers) workplace where it can be easily accessed by the child to read (by the employer).

The Fair Work Ombudsman has published a “Best Practice Guide – A Guide for young workers” located here.

The Regulations also provide for circumstances when your child is ill, parent/child communication during working hours and employers requirement to provide notice.

Young entertainment workers rights and obligations are not covered in this article.  This article provides very brief general information and does not cover all aspects of young workers in employment.  This article was written in 2016 qnd the law may have changed since then. Should you have a legal question or situation you should engage the services of a lawyer to provide you with advice on the law specific to your circumstances.