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. |