Ordinary Hours of Work Under the Children’s Services Award, the ordinary hours for a full-time employee are an average of 38 hours per week. Ordinary hours are no more than 8 hours per day (excluding meal breaks) between Monday and Friday, 6am to 6.30pm. However, an employer and an employee may agree in an individual flexibility arrangement to work up to a maximum of 10 ordinary hours per day. How are ordinary hours counted? Should I count lunch breaks? Lunch breaks aren't paid and don’t count as time worked, so they aren't counted when calculating ordinary hours. However, paid rest pauses do count as ordinary hours. Is paid programming time included as part of the 38 ordinary hours per week? Yes. If you are an employee, responsible for preparing, implementing and/or evaluating a developmental program, by law you get a minimum of 2 hours per week to plan, prepare, evaluate and program activities. These 2 hours count as part of your ordinary hours. Do staff meetings out of usual centre hour’s count for penalty rates/overtime if I have already completed my 8 hour shift for that day? All paid time worked is counted when calculating penalty rates and overtime. Paid staff meetings count towards an employee’s ordinary hours. Where this means they’ve worked over the ordinary hours, they should be paid overtime rates. Please note: compulsory staff meetings count as time worked and must be paid. A parent is running late collecting their child…If you a required to stay beyond your rostered hours because a parent fails to arrive on time to collect their child, this is not regarded as an emergency and should be treated as overtime. Rostered Day off Falling on a Public Holiday If your rostered day off falls on a public holiday, either of the following can occur:
According to the Children’s Services Award, rostered hours will only be changed after 7 days’ notice has been given, unless by mutual agreement between you and your employer the notice period is waived, shortened or due to an emergency beyond control. In an absence of such notice, overtime will be paid until 7 days have transpired from the date notice was given. Breaks When working as a full time employee, 38 hours per week, 7.6 hours per day, you’re entitled to:
During your meal break if you are required to stay on the premises, you will be entitled to a paid meal break of not less than 40 minutes or more than 30 minutes. If you agree to leave the premises during a meal break, however, such time away from the premises will not be counted as time worked nor will payment be made for such. If you are working an average of 38 hours per week but may work less than 7 hours on one day, you are still considered a full time employee. When working less than an average 38 hour week you will be considered part time. Rest Pauses
Overtime Overtime will be paid at the rate of time and a half for the first 2 hours and double time thereafter. Due to unforseen emergency circumstances where you are required to remain at work after your normal finishing time, you will be paid you ordinary rate. An emergency circumstance may include a natural disaster affecting a parent, educator or centre, death of a child or parents, a child requiring urgent hospitalization or medical attention. Time in Lieu You and you’re employer may agree that you will be provided with time off instead of being paid and overtime payment for all authorised work performed outside or in excess of the ordinary rostered hours, subject to the following:
Paid sick and carer’s leave All employees except casuals are entitled to paid sick and carer's leave. As an employee, you can take paid sick leave when you can't work because of a personal illness or injury. This can include stress and pregnancy related illnesses. You can also take paid carer's leave to care for or support a member of your immediate family or household who is sick, injured or has an unexpected emergency. How much paid sick and carer’s leave do I receive? Sick and carer's leave comes under the same leave entitlement. It's also known as personal / carer's leave. As an employee you get:
When working as a full time or part time employee you can also accumulate sick and carer’s leave during a year of work. It begins on your first day of work and is based on the number of hours you work. The balance at the end of the year carries over to the next year. Sick and carer’s leave continues to accumulate when you are either on paid sick leave or annual leave. It doesn’t accumulate on periods of unpaid leave, such as unpaid parental leave. Unpaid carers leave All employees working in a childcare setting including casuals are entitled to 2 days of unpaid carer’s leave. As an employee you receive 2 days unpaid carer’s leave each time your immediate family member or a household member needs to be taken care of and supported because of:
Taking unpaid carer’s leave You can take unpaid carer’s leave:
Employees who have accumulated their paid sick leave can take this time off to get better from an injury, or illness. You cannot be fired because you’re sick (even if you’re on sick leave for a long period of time). When paid sick leave runs out: If you have run out of paid sick leave, you can take unpaid leave if you cannot work due to being sick or injured. Even when on unpaid sick leave you cannot be fired if:
If you have used all your accumulated sick leave, you’re on unpaid leave for longer than 3 months and you have been dismissed by your employer, the termination is not automatically unlawful. The normal rules for a termination apply and you may dispute it by:
Annual leave allows you to be paid while having time off work. When working full time or part time you get paid 4 weeks of annual leave, based on your ordinary hours of work. How does annual leave accumulate?Annual leave accumulates from the first day of employment (even during the probation period). The leave accumulates gradually throughout the year and any unused annual leave will roll over from year to year. Even when you are on paid leave, including paid annual leave and personal leave, it still gets accumulated. Annual leave does not accumulate on:
The information provided in this article has been collected from the Children’s Services Award and the National Employment Standards. The entitlements mentioned, should be what you receive from your employer. Hopefully this helps you to gain a better understanding of what your rights are. References Children Services Award 2010 http://www.fairwork.gov.au/Leave/sick-and-carers-leave/paid-sick-and-carers-leave http://www.fairwork.gov.au/leave/sick-and-carers-leave/unpaid-carers-leave http://www.fairwork.gov.au/leave/sick-and-carers-leave/long-periods-of-sick-leave http://www.fairwork.gov.au/Leave/annual-leave
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 By Nicholas Ellery (Partner) & Klaire Mulroney (Associate) of Corrs Chambers Westgarth (Corrs)
As the year draws to a close and festive cheer begins to spread, the many potential pitfalls of the silly season workplace social calendar are once again rearing their heads. But there are steps you can take to avoid your workplace social functions turning into ‘Christ-messes’… Like the three wise men, we bear three gifts for you below: three handy tips for keeping your silly season social functions stress free. Tip 1: Be careful with the liquid gold Ensuring your event is a HR success starts with good, thorough preparation. And when it comes to alcohol, you will always need to tread carefully… Ensure control and assign responsibility If your event is going to involve alcohol, ensure the venue follows responsible service of alcohol protocols. Having a quick, quiet word to the bar staff to let them know that they can say ‘no’ to Barry from accounts if he is getting out of control can go a long way. Further, ensuring someone in management is responsible for the event and serves as the contact for the venue can help to de-escalate any problems. Even when a venue is responsible for the service of alcohol, case law suggests best practice is to have someone with managerial authority in charge of supervising the function. From a practical point of view, it is always advisable to also serve non-alcoholic drinks and a good amount of food. Avoid self service Allowing alcohol to be self-served is always risky.[1] Even if your event is at the office or a private venue, spend the extra cash and get wait staff to serve drinks. This will help you monitor how much everyone is drinking and allow you to cut someone off before things get messy if necessary. Hey, the wait staff may also offer to do the dishes for you! While employees who choose to drink can be held accountable for their own actions, an employer that provides alcohol at a work function (whether self-served or not) and takes no steps to ensure it is consumed responsibly may be culpable for events attributed to the consumption of alcohol, such as a drunken employee falling down the stairs. Keep in mind that drinking may be an explanation for bad behaviour, such as a physical altercation with a colleague or sexual harassment, but it will not be found to be an excuse.[2] Don’t be afraid to cut someone’s night short If someone is enjoying the drinks too much, it may be appropriate to cut them off from further consumption or send them home (in a safe way). Remember that if there is debate about whether an employer took appropriate steps to manage a situation, the Fair Work Commission and other tribunals or courts will often consider positive actions (such as cutting someone off or asking them to leave) as helpful in establishing that the employer took reasonable steps. A refusal by an employee to leave when directed to may in itself be sufficient grounds for dismissal.[3] Prior to your event, don’t forget to remind employees that your company’s policies and standards still apply at the Christmas function, and that any rude-olph behaviour will not be tolerated. Tip 2: Consider the myrrh-ky line between employment and the after party Where an incident occurs (i.e.at an official function or at an after party) will be relevant to whether the employer has liability for it and whether the employee’s conduct can be the basis for disciplinary action. Make start and finish times clear Setting the boundaries of your event by making the start and finish times clear (either by calendar invite or in an email) can be the first step in limiting what the employer will be responsible for. Additionally, ensuring the venue makes it clear when the party or tab is over can be another step towards successfully defending any potential claims. An announcement can be made by bar staff or a manager when the party is over, and you should also consider mentioning safe ways employees can get home. Keep in mind however, that the end of food and alcohol paid for by the employer may not always indicate that the work function, and therefore liability, has ended – particularly if employees hang around at the venue.[4] Monitor any pre-parties You should consider what employees might be doing before the official party starts. Teams holding long pre-party lunches or pre-drinks can lead to employees being several eggnogs down before they even arrive. Ensuring managers monitor this, and having security at the door refusing entry to those who are already intoxicated, may assist. If someone is refused entry, ensure you have let security know the steps you would like them to take (such as making sure they get in a cab or letting the employee’s manager know). Be aware of after parties If an incident occurs after the official event at an after party, you will need to consider if there is a sufficient nexus between the conduct and the employment relationship to justify disciplinary action or termination. While it will be many shades of grey, if the conduct in question is not connected with the employment because it was not ‘organised, authorised, proposed or induced’ by the employer, it may not be appropriate to discipline or terminate the employee because of the conduct.[5] This will also depend on the circumstances. It has previously been held that conduct (including telling a co-worker that their ‘mission for the night is to find out what colour knickers you have on’) upstairs at the same venue as the work party, and at the cab rank later on, was not within employment.[6] In this case, the company dismissed the employee for the conduct and it was ultimately found the dismissal was unfair. However, in another case, conduct in the taxi on the way home from the staff party (which included a manager threatening to inappropriately touch a female colleague if she did not stop talking) was held to be within employment, and therefore formed a valid reason for dismissal.[7] Keep watch on online activity In the digital age, even Santa can’t resist a selfie. Make sure your company’s social media policy is up-to-date (and includes guidelines on posting photos from work events), and remember that this will be another area in which determining what is or isn’t within the employment relationship will be complicated (perhaps even more so than navigating the Boxing Day sales!). Giving employees a gentle reminder that they should treat each other with respect, in person and online, can go a long way towards helping people remember their manners. Also, if you have a particularly snap-happy workforce, consider holding some training about appropriate online conduct before the event. While the strategies we’ve outlined above may help, case law ultimately shows that in some circumstances, incidents that occur after the lights go out and the event is officially over may still be within the employment relationship. The guiding principle from the leading case of Rose v Telstra[8] remains that to justify a dismissal where the event took place out of hours or outside of normal work activities, the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee. Make sure you keep this in mind when determining if an employee should be disciplined for their conduct. Tip 3: You don’t need frankincense, just use your common-sense! If anything inappropriate does occur at your event, snap into action straight away. Investigate any incidents promptly Follow your normal procedures and don’t wait for January to start an investigation into an incident. For example, if it is relevant to look at security camera footage, ask the venue for it promptly, as such footage is often only held for a short time. If you deal with issues quickly, it will be easier to gather the necessary facts. If your company is in shut down over the Christmas period, it may still be necessary that a skeleton staff from HR is available to deal with any issues that arise. If key witnesses are away, make sure the issues are followed up as soon as possible and all those involved are updated on the reasons for any potential delays. Ensure support is given to any alleged victims or complainants. If you hear of bad behaviour through the grapevine, don’t wait for a formal complaint to start looking into the issue. Despite everything we’ve outlined above, there’s no need to be a Grinch! When it comes time for your workplace Christmas function, just make sure you keep these three tips in mind, and ultimately, remind employees it is still a workplace and they should save the inappropriate behaviour for Christmas dinner with the in-laws. [1] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156. [2] McDaid v Future Engineering and Communications Pty Ltd [2016] FWC 343. [3] McDaid v Future Engineering and Communications Pty Ltd [2016] FWC 343. [4] Hughes v Momentum Wealth Ltd t/a Momentum Wealth [2017] FWCFB 759. [5] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156. [6] Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156. [7] Rogers v Allianz Insurance Australia T/A Club Marine Insurance [2017] FWC 537. [8] Rose v Telstra Corporation Limited [1998] AIRC 1592. The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication. 6 November, 2017 - By Richard Ottley, Partner and Simon Obee, Associate SWAAB Attorneys  Depending on how an employer goes about things, terminating staff who are surplus to requirements, can have very different legal consequences. This article looks at the lessons for employers in this situation as apparent from decisions by the Fair Work Commission (FWC) and the Australian Industrial Relations Commission. The Fair Work Act 2009 ('the Act') is drafted in a way that provides a shield to unfair dismissal claims brought by employees where there is a "genuine redundancy" within the meaning of section 389 of the Act. If an employer can demonstrate that termination was due to a genuine redundancy then the matter can go no further; the Fair Work Commission ('FWC') does not have to (and indeed does not have power to) consider whether the dismissal was otherwise "harsh, unjust or unreasonable". This means that the criteria referred to in section 387 of the Act which the FWC considers in unfair dismissal applications – some of which go to whether procedural fairness was afforded to the employee – do not apply. For example, the question of whether an employee was unreasonably refused a support person in discussions relating to the dismissal (section 387(d)) will be irrelevant if termination was due to a genuine redundancy. In the recent decision of Mr Muhammad Buttar v PFD Food Services Pty Ltd T/A PFD Food Services [2017] FWC 4409 ('PFD') the FWC has provided guidance on what an employer must do (or rather, must not do!) in order to avail itself of the "genuine redundancy" protection. In particular, the FWC discussed the obligations on employers relating to consultation and redeployment. To briefly recap the genuine redundancy provisions (section 389 of the Act), a dismissal is a case of "genuine redundancy" if (and only if):
As to consultation, it was common ground that the Seafood Processing Award 2010 applied to Mr Buttar's employment and that the award contained an obligation to consult regarding redundancies. The FWC noted that the following consultation process took place:
"[42] I find that Mr DeCasto did not consult in any meaningful way with Mr Buttar about his decision to make him redundant, either on 29 May or on 2 June. There was nothing to prevent Mr DeCasto doing so on either of these days, or at any time in that week. [43] Clause 8 of the Seafood Processing Award 2010 imposes a requirement on an employer to consult with an employee concerning major change that is likely to have significant effects on their employment. It compels an employer to discuss with the employees the introduction of the changes and take efforts to mitigate adverse impacts. The discussions must be as early as practicable after a definite decision is made. Clause 8.1(b)(ii) requires the employer to provide in writing to the employees all relevant information about the changes and their effects. [44] I find that Mr DeCasto failed to consult Mr Buttar at all, let alone consult within the meaning of clause 8 of the Award. I reject PFD’s submission that the 29 May meeting was a consultation. At its highest, that discussion simply put Mr Buttar on notice that there may be a restructure in the near term and that it may affect him. The non-specific nature of the information conveyed by Mr DeCasto meant that Mr Buttar was entitled to form the view that the unspecified restructure may affect him positively or equally not affect him at all. He believed on reasonable grounds that he could just get on with his job without concern for his job security, which he did. In no sense did PFD provide Mr Buttar “a real opportunity to influence the decision maker”." A footnote to the phrase "a real opportunity to influence the decision maker" in the judgment referenced paragraph 25 of the case of CEPU v Vodaphone Network Pty Ltd (2001) PR911257 which concerned a consultation obligation contained within the Workplace Relations Act 1996 (the forerunner to the Fair Work Act 2009). In that case the Australian Industrial Relations Commission said: "In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker. Section 170GA(1)(b) of the [the Workplace Relations Act] speaks of measures to avert or minimise terminations or to mitigate the adverse effects of the terminations. Consultation is not joint decision making or even a negative or frustrating barrier to the prerogative of management to make decisions. Consultation allows the decision making process to be informed, particularly as it may effect the employment prospects of individuals. The opportunity to seek to avoid or mitigate the effects of a termination cannot be underestimated by those who wield power over those and their families who will the subject of the exercise of that power." What appears from the FWC's reasoning in PFD is, that in order to satisfy the consultation obligations, the employer should have done more than meeting with Mr Buttar and giving him notice of the restructure and the fact that it might affect him. Firstly, it should have given him full details of how the restructure might affect him. Secondly it should have given Mr Buttar an opportunity to influence the employer's decisions in respect of the redundancy. The case implies that Mr Buttar could not have had a chance to influence the decision unless he was given specific information about how the restructure might affect him. It also appears that the FWC was of the view that allowing an employee an opportunity to make comments concerning their redundancy after they had been told they are to be made redundant does not amount consultation (as the decision had already been made). Having found that Mr Buttar had not been "consulted" in respect of the redundancy, it followed that his termination was not a genuinely redundancy within the meaning of the Act (on this ground alone). However, the FWC also considered that the employer had not fulfilled separate requirements under the Act concerning redeployment. It had this to say: "[50] I accept that Mr DeCasto completed a ‘Skills Matrix’ on 1 June 2017 to assess Mr Buttar’s capability for alternate roles. In the circumstances of this matter, I do not find that completing this matrix was an adequate or sufficient mechanism to discharge the statutory obligation to take reasonable steps to explore redeployment. It was a rushed job and Mr DeCasto did not seriously want to redeploy Mr Buttar. He wanted to save labour costs by having him out of the business. The Matrix only assessed capabilities, not alternate roles. It was unilaterally completed by Mr DeCasto. Mr Buttar was given no opportunity to provide input into what he considered to be his adaptable skill set. [51] The Matrix was completed by Mr DeCasto on 1 June (the day before the redundancy letters were given to the three employees on 2 June) and the day after the letters were prepared for signature by the human resources department (31 May). Mr DeCasto had already decided to make Mr Buttar redundant, considered that he had no future in the business, and had unreasonably formed a negative attitude towards him by concluding that he had acted in a “menacing” manner on 29 May. I find that Mr DeCasto only gave fleeting thought to other roles, and dismissed them in his mind quickly. No other persons in the business in South Australia or elsewhere were spoken to about whether they had actual roles on offer that Mr Buttar could fill, or whether they were interested in employing him." Having lost the shield of a "genuine redundancy" the Fair Work Commission had then to consider whether the dismissal was "harsh, unjust or unreasonable". In doing so the FWC referred to matters such as the unreasonable refusal of a support person for Mr Buttar and the fact that Mr Buttar was given no opportunity to respond to the reasons informing the decision to make him redundant. It was also critical of the fact that at the final redundancy meeting, Mr Buttar was not dealt with on an individual basis. In all of the circumstances the FWC found Mr Buttar to have been unfairly dismissed. The FWC subsequently ordered (in a separate hearing on remedy) that Mr Buttar's employment be reinstated and that PFD must find him an alternative position on no less favourable terms than his previous role. PFD was also ordered to compensate Mr Buttar for his loss of earnings as a result of the dismissal. This really brings into focus the consequences of businesses – especially large businesses - getting redundancies wrong. Often employers only consider the risk of unfair dismissal claims in financial terms, ie "what will the award of damages be?". This case reminds us that the FWC can, and sometimes does, order employers to reinstate dismissed employees in alternative roles, even if their previous role is no longer available. This may well not be something the business is prepared for. It is important to note, that where an employee is held not to be "genuinely redundant" it does not automatically follow that they have been unfairly dismissed. Indeed, there are a number of cases where it has been held that where consultation would not have had any prospect of changing the outcome, failure to consult will not mean the dismissal was unfair[1], see: Mawson v Escada Textilvertrieb [2011] FWA 4339. Presumably the same approach would be followed if an employer did not turn its mind to redeployment options, if it transpired that no opportunities for redeployment had existed. That said, if an employer has not complied with consultation requirements (under an award / enterprise agreement) or the requirement to consider redeployment in a meaningful way, then the shield of "genuine redundancy" will not be available. The employer will therefore face the risk of a finding of unfair dismissal, perhaps on a merely procedural ground. We consider the lessons to take from the PFD decision are that it is not sufficient to pay lip-service to consultation and redeployment. On the face of it, PFD had two meetings with the employee concerning the redundancy and had written evidence it had considered redeployment options (the skills matrix completed by the employer). This was found not to be enough in the circumstances. In particular, we would advise employers to consider the following points when preparing for redundancies:
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice. This article first appeared on the SWAAB website and has been reproduced with permission.
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