From today, 7 December 2023, all remaining agreements made before 2010 (also referred to as “Zombie Agreements”) are automatically terminated unless a prior extension was granted by the Fair Work Commission or the extension request is yet to be considered.

Common types of pre-2010 Zombie Agreements include; Certified Agreements, Collective Agreements, Australian Workplace Agreements, Individual Transitional Employment Agreements and Enterprise Agreements made by the Fair Work Commission between 1 July 2009 and 31 December 2009.

For those employers who previously operated under a Zombie Agreement and have not replaced their agreement with a new registered Agreement, from today your employees will now automatically be covered by and entitled to the minimum pay and conditions set by the relevant Modern Award for your industry. In some cases, there may be no Modern Award or agreement that now applies to your employees. If this is the case, the employment conditions for these employees are set out in the National Employment Standards and these employees are entitled to the National Minimum Wage.

Where your employees are now covered by a Modern Award, it is vital that you understand new terms and conditions of employment that will apply. Due to most Zombie Agreements being created prior to the commencement of the Fair Work Act 2009 (Cth) and the introduction of the Modern Award system, there may be substantial differences between your Zombie Agreement and the Modern Award entitlements that now apply.

These differences could relate to the following entitlements:

• Minimum pay rates and Classifications;
• Penalty Rates, Loading and Allowances; and
• Hours of Work and Overtime.

Non-compliance and breaches of these new conditions and entitlements can lead to substantial penalties for an employer, so immediate action should be taken to review employee entitlements to avoid the risk of non-compliance.

If you would like more information on the impact the termination of Zombie Agreements might have on your organisation or the appropriate Award coverage for your employees, please contact us today to see how we can support you and your organisation!

From today, 6 December 2023, Employers will be bound by new limitations on fixed term contracts under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (‘Secure Jobs, Better Pay Act’). The intent of the new legislation is to protect employees from being engaged on rolling fixed term contracts in the same position.

This article breaks down what these changes mean for Employers.

The new rules apply to contracts entered into or renewed after 6 December 2023 and prohibit Employers from offering fixed term contracts if:

• The contract operates for a period greater than two years;
• The contract can be extended for a period greater than two years; or
• The contract provides an option for the Employer to extend or renew the contract more than once and:
  • The previous contract was for the employee to perform the same, or substantially similar work; and
  • There is substantial continuity of the employment relationship between the termination of the previous contract and the commencement of the new contract; and
  • Either:
    • The previous contract and new contract will operate for more than two years;
    • The new contract contains an option for renewal or extension; or
    • The employee has previously been engaged under two consecutive fixed term contracts (not necessarily in excess of two years in duration).

The above limitations will not apply to certain contracts under the Secure Jobs, Better Pay Act. These exceptions broadly include:

• Contracts to perform a distinct and identifiable task involving specialised skills;
• Apprenticeships or traineeships;
• Essential work during a peak period (e.g. fruit picking or other seasonal work);
• Work during emergency circumstances or during a temporary absence of another employee (e.g. additional staff is needed to replace a permanent employee who is absent for personal or other reasons, parental leave, sabbatical, long service leave or an absence relating to workers’ compensation);
• If an employee earns above the high income threshold (currently $162,000);
• Eligible positions linked to Government funding.

If an Employer seeks to rely on one of the above exceptions when engaging a fixed term employee, it is recommended that this is clearly articulated in the contract.

While successive contracts for distinct and separate roles are permitted, the new legislation requires Employers to be mindful of the employee‘s continuity of service.

Short breaks between contracts will not break continuity for assessing an employee’s period of employment under these provisions, such as when teachers finish at the end of one semester and start at the beginning of the next semester.

To prevent Employers from artificially altering the employment relationship to bypass the limitations, the Secure Jobs, Better Pay Act has an anti-avoidance provision. Employers must not deliberately avoid the fixed term contract limitations by entering into a new contract that seeks to exploit loopholes or create unnecessary changes in the employment relationship. This could include, but is not limited to, terminating an employee or delaying their reengagement to break continuity of service or engaging another person on a fixed term contract to perform the same, or substantially similar work.

In the event that an Employer engages in anti-avoidance behaviours, an employee would have the ability to make a general protections claim on the basis that the Employer took adverse action against them because of their workplace rights.

A new requirement mandates that each fixed term employee must receive the Fixed Term Contract Information Statement (‘FTCIS’) from the Fair Work Ombudsman’s website before, or as soon as practicable after, the employment contract is entered into.

With these new limitations, Employers must take immediate steps to ensure compliance with the updated legislative requirements. Employers should:

1. Conduct an audit of existing fixed term contracts to identify those that may be affected by the new limitations or may be subject to an exception upon renewal.
2. Revise the provisions of fixed term contracts for compliance with the new legislation when new contracts are entered into.
3. When any current fixed term employees are converted to permanency, provide them with a new permanent contract of employment.
4. Incorporate the Fixed Term Contract Information Statement into the onboarding process to ensure that employees are aware of their rights.

The new limitations on fixed term contracts under the Secure Jobs, Better Pay Act mark a significant change in Australia’s employment landscape. Compliance with the new legislation should be prioritised by Employers as civil penalties may apply for non-compliance, with the Fair Work Commission now also having jurisdiction to resolve disputes in relation to fixed term contracts.

Our team of highly qualified consultants can provide customised advice to ensure any potential risks associated with non-compliance are adequately addressed.

Contact us today to see how we can support you and your organisation!

“I enjoy the feeling I get from building business relationships centred on capability, credibility, reliability and openness. Those relationships are the best ones, as they deliver sustained long term positive outcomes to all parties.”

Damien is a welcome addition to our current Sydney team, working alongside Jamie Paterson, Associate Director to provide high quality, innovative, and effective people solutions.

Need prompt and practical advice? Please contact us and one of our Workplace Strategists will be in touch within 24 hours.

The Fair Work Commission (‘FWC’) recently reviewed an application from an employee whose employer had denied his request for a flexible working arrangement. Charles Gregory v Maxxia Pty Ltd (C2023/5280) has provided employers with some useful lessons in understanding how much they need to “flex” when it comes to requests under section 65 of the Fair Work Act 2009 (Cth) (‘Act’).

Section 65 (1A) of the Act provides that employees may make requests for flexible working arrangements where:

(a) the employee is pregnant;

(b) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

(c) the employee is a carer (within the meaning of the Carer Recognition Act 2010);

(d) the employee has a disability;

(e) the employee is 55 or older;

(f) the employee is experiencing family and domestic violence;

(g) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing family and domestic violence.

An employee is not entitled to make the request unless the employee is a permanent employee and has completed at least 12 months of continuous service with the employer immediately before making the request, or is a casual employee, who immediately before making the request, was a regular casual employee of the employer and who was employed on that basis for a sequence of periods of employment during a period of at least 12 months and had a reasonable expectation of continuing employment by the employer on a regular and systematic basis

Finally, the Act provides that any request for a flexible working arrangement must be in writing and must outline the details of the change sought and of the reasons for the change.

There were two grounds for his request:

1. Mr Gregory was the parent of a child who was of school age. At the time of applying for the arrangement Mr Gregory was caring for his child for one day every two weeks but was separately seeking a custody arrangement that would provide him custodial access on a week on week off basis; and
2. Mr Gregory suffered from inflammatory bowel disease, which was confirmed by his General Practitioner (‘GP’).

Maxxia considered Mr Gregory’s application and assessed the following factors:

• Maxxia’s clients services and employee productivity expectations and the possibility of significant financial penalties should Maxxia not meet its contractual obligations;
• Mr Gregory’s current level of productivity (which at the time was below targets);
• Mr Gregory’s recent role change into a specialist role and the additional training and support sessions Maxxia had provided to Mr Gregory;
• Maxia’s desire for Mr Gregory to be able to share his experience and contribute to team culture, team training and team discussions; and
• Maxia’s desire to adopt a fair and consistent approach across the team in applying the Hybrid Working Guidelines, and only allow exceptions that were genuinely required.

Later the same day Maxxia advised Mr Gregory in writing that it would not agree to the request, on the basis that:

• there had been formal discussions between the parties;
• Maxxia had made genuine efforts to reach agreement about a flexible working arrangement to accommodate his medical condition and parental responsibilities;
• Maxxia had committed to other forms of flexibility if Mr Gregory’s access to his son under custodial arrangements increased; and
• Maxxia had considered the consequences of refusal and said that the application was refused on reasonable business grounds pursuant to section 65A(3)(d) of the Act.

Mr Gregory, who was the Applicant, lodged an application for the FWC to deal with a dispute under section 65B of the Act regarding his request for a flexible work arrangement which had been declined by his employer, Maxxia, who was the Respondent.

The FWC found that Mr Gregory was entitled to apply for a flexible working arrangement as he had more than 12 months continuous service and was a permanent employee.

The FWC was not persuaded by either of the two justifications given by Mr Gregory in support of his application for a flexible working arrangement:

(a) in relation to Mr Gregory suffering an inflammatory bowel disease that required him to go to the toilet with urgency and more frequently than usual, the FWC did not find the medical evidence submitted compelling and noted Mr Gregory was not seeking on-going treatment to address his condition. The FWC did not find the medical condition sufficient to meet the definition of a disability as per section 65(1A)(c) of the Act and instead characterised it as an inconvenience; and

(b) in relation to Mr Gregory’s intention to negotiate an agreement with the mother of his child that would secure him increased custodial access from one day a fortnight to one week out of two, the FWC noted that the flexible working arrangement to work from home 100% of the time would only be necessary once the custodial arrangement was changed and he would only need to work from home 100% of the time in the weeks where he had custodial responsibilities.

In a post COVID-19 environment where the issue of what is a reasonable level of flexibility is in flux, this case illustrates the need for employers to:

• give proper and genuine consideration to requests made by employees for flexible working arrangements;
• engage with employees in genuine discussions about the flexible working arrangement request;
• earnestly try and find solutions including employers offering alternative flexible working arrangements;
• make reasonable accommodations to facilitate a flexible working arrangement; and
• document the process, outcomes and formally advise employees in writing of the decision reached.

It also illustrates that employers can (where all the steps above have been followed) deny a flexible working arrangement request based on reasonable business grounds, and that they do not need to provide unlimited flexibility to employees when it comes to flexible working arrangements.

If you would like to know more about flexible workplace arrangements and how to proactively manage the challenges and demands of modern working flexibilities, please contact us and a Mapien Workplace Strategist will be in touch within 24 hours.

Discover how mentoring can significantly elevate your career and organisational culture, plus get insights on the innovative reverse mentoring trend!

Mentoring is the silent catalyst in professional development, often overlooked yet very impactful. It’s not just about guiding; it’s about opening doors to opportunities including:

• Improving career:
  greater pay and more promotions for mentors and mentees
• Breaking down barriers:
  increased collaboration across silos
• Alignment to thrive:
  faster onboarding and alignment for mentees with the organisation’s culture, vision, and goals
• Enrichment:
  Higher organisational commitment and job satisfaction in mentors
• Leadership edge:
  Increased team leadership performance in mentors
• Encourage staying:
  Reduce turnover

Want to stay ahead? Mentoring might be your best-kept unexplored secret!

Reverse mentoring changes the traditional roles, pairing enthusiastic mentees with experienced mentors. It’s a collaboration where those with contemporary skills can mentor others, sharing their expertise, contemporary approach and new perspectives. This method not only connects people of different backgrounds but also reverse mentoring promotes diversity and inclusion, creating an environment where everyone, regardless of their background and tenure, can both teach and learn.

Mentoring isn’t just a passing phase; it’s a lifelong journey of growth.

From acclimating to a new organisational culture to developing leadership skills, mentoring offers a variety of benefits that resonate throughout one’s career. With the inclusion of reverse mentoring, the potential is limitless, empowering every individual in the organisation to contribute, learn, and grow.

Ready to tap into the power of mentoring? Contact us to learn how we can help you build a successful mentoring program tailored to your needs.

In the evolving landscape of workplace health and safety, the introduction of Queensland’s codes of practice for managing psychosocial risks, effective from April 2023, presents a pivotal opportunity for organisations.

The Code has clarified the legal responsibilities of employers to safeguard employees from the harmful impacts of stress that can arise from psychosocial hazards such as:

• Job demand
• Low role clarity
• Poor change management
• Low reward / recognition
• Remote or isolated work
• Poor environmental conditions
• Traumatic events
• Violence, aggression, bullying, and harassment.

While the thought of navigating these guidelines – and the hefty fines for non-compliance that could reach up to $10 million – might appear overwhelming, reframing this challenge is essential.

Viewing these changes as a burden may lead to a minimalist approach – doing just enough to scrape by legally. This defensive stance limits the organisation’s growth and can be more costly in the long run, as it fails to address the underlying issues that affect employee well-being and, consequently, productivity.

For leaders ready to take a strategic step forward, Mapien’s Psychological Health & Safety Maturity assessment is your starting point. And for a deeper understanding, our Myth Busting Psychosocial Hazard Management paper can serve as a valuable resource to dismantle common misconceptions and guide you towards alignment with the Code.

Transforming your workplace into a beacon of psychological health and safety is not just a legal imperative but a strategic differentiator. For a guided approach to transforming your workplace, please reach out to our expert team hello@mapien.com.au.

If you would like to learn more about our Myth Busting Psychosocial Hazard management paper, please let us know here!

This is blog #3 in our series on coaching models. Sign up to our mailing list to make sure you don’t miss out on our future content.

Got a challenge you need to work through or set a big goal you haven’t achieved yet? Wondering how you can get from where you are now to where you need to be — while confidently leading your team to the other side?

Perhaps you’re dealing with major industry or technology changes (most CEOs would agree that AI is a big one right now). You might need to lead your team through a restructure, relocation, acquisition, or merger. You may even find yourself experiencing unexpected challenges like natural disasters, supply chain issues, or global events. 

Whether you’re currently facing a challenge or simply want to be better prepared for the future, the GROW Coaching Model is a great addition to your toolkit. In this blog, you’ll learn how you can apply this framework to your own situation – and how you might use it to support others.

The GROW Coaching Model is a framework with four distinct steps that form the acronym: Goals, Reality, Options, and Will.

This simple-but-effective model can be used to encourage healthy conversations that are focused on solutions. You can apply the framework in team meetings, project planning, coaching sessions, leadership development, and more. It can help you build confidence, overcome difficulties, navigate change, and work towards goals.

So, let’s break each step down a little further…

The first part of the framework involves identifying your aspirational goals and desired outcomes. Starting here will help you shift the focus of the conversation from problems to solutions.

Useful prompts for identifying goals include: 

• What are you trying to achieve?
• What does success look or feel like?
• What would you like to happen that is not happening now?
• What is important about this?
• How will you know when you have achieved your goal?

If you’re not sure what challenges or goals to focus on (and you’re feeling stressed or under pressure), you might like to check out our previous blog on How Leaders Can Apply the Circles of Control, Influence & Concern. This coaching model can be useful for figuring out which challenges you should tackle first.

Once you’ve established some meaningful goals, it’s time for a reality check. You need to consider your current situation, any obstacles that might come up, and what resources you have available to help you achieve your goals.

Prompts that will help you identify your reality include:

• What is happening at the moment?
• When and how often does this happen?
• What impact does this have on you?
• What progress have you made so far?
• What is working well right now?

By the way, if it feels like you’re facing a lot of obstacles right now, it’s not just you. A recent survey of CEOs revealed mixed feelings about performance over the coming 12 months compared to the start of 2023, thanks to obstacles like the increasing cost of doing business, rising capital costs, and geopolitical tensions.

Next, it’s time to consider all the options and opportunities that may help you get closer to your goal. At this stage, don’t worry about getting it perfect. Take a ‘quantity over quality’ mindset to help broaden your thinking, encourage creativity, and generate a variety of ideas. There are many possible pathways to success — challenge yourself to identify as many as you can!

Some questions that can help you explore your options include:

• What are your options?
• What approaches or actions have been used under similar circumstances?
• What has worked in the past?
• What could you do differently?
• What are the benefits and pitfalls of these options?

If you or your team feel tired, stuck, or negative after brainstorming some options, it might be a good idea to pause and take a break. Research shows that broad thinking and creative problem solving works best when people are in a positive mindset. So, it’s okay to take a coffee break or (if time allows) come back and finish step four the following day.

The final part of the GROW Coaching Model involves deciding which specific, short-term actions will be beneficial to help you move forward. You don’t have to plan out all your steps. Instead, focus on what you can do now to clear some blocks, boost your motivation, and build momentum towards your goal.

These prompts will help you determine what to do next:

• What do you want to do?
• What one small step are you going to take now?
• When will you do that?
• What might get in the way?
• How will you know you have been successful?

Studies show that the level of accountability in organisations positively and significantly impacts performance. Meanwhile, individual accountability predicts higher levels of task and challenge performance. So, in addition to defining your next steps, we also recommend scheduling timeframes, setting accountability measures, and organising check-ins to encourage ownership.

If you’re not sure where to start with your to-do list, check out our previous blog: Get Priorities Straight With Covey’s Time Management Matrix.

These extra tips will help you get the most out of this coaching model.

Write Down Your Goals

When writing out your goals, it’s a good idea to note your answers down on paper. Written goals reduce the risk of ‘shifting goalposts’ – and ensures you have something specific you’re working towards, even as you go through periods of intense change. And when you do achieve your written goal, you’ll get the feelings of pride and fulfilment that come with completing a task – which can help build momentum and motivation for your next big goal.

Be the Facilitator

If you’re using the GROW Model to coach others or lead a team, you should assume the role of a facilitator. This means you’ll need to focus on active listening instead of offering direct advice. Ask questions that will help participant(s) identify information and ideas within each part of the framework. Then guide them through the process to select and implement the options they believe to be best.

Go Back If You Need To

Finally, what many people don’t realise is that the GROW Coaching Framework doesn’t have to be linear. You can go back to earlier steps in the sequence and even repeat the process in order to deepen your understanding. This might involve refining your goals, adding more insights about your current situation, or exploring more options in order to move forward more easily.

Not sure how you might apply the GROW Coaching Model? We’ve put together a few examples that show how you could use this framework to explore a specific goal and confidently move forward. Like the below examples, you might write down notes as you work through the four steps, or you might use the framework to guide your team’s conversations towards a solution.

Goal:

We want to expand the business into a new market and location. This will drive revenue growth and help us work towards our bigger mission of reaching people all over Australia.

Reality:

Right now, we’re only operating one storefront in our local market. This limits our growth. We’ve started to conduct market research to determine where we should go next. We don’t have a lot of capital, so we need to make sure that anything we invest in will pay for itself quickly.

Options:

• We could open a new store in another state or major city.
• We could offer to buy a competitor business in an area we want to target.
• We could look into expanding our products/services at our existing location to grow the business without opening a new location.
• We could partner with other businesses to offer our products/services in different markets without having to open our own premises.
• We could promote our online options heavily in potential new markets to test the waters first.

Will:

The first step is to research each option further. We’ll do some rough projections, costs, and timelines. Then we’ll consult with various business advisors to develop the pros and cons, with the view of making a decision by the end of the year.

Goal:

We want to improve environmental sustainability in the business. We know that sustainability is an important responsible business practice — and matters to both staff and customers.

Reality:

While we’ve already implemented some initiatives, we could do a lot better. We’ve gone totally paperless by embracing digital recordkeeping and our energy supplier is carbon neutral. But most of our staff members drive cars to work (and to coffee/lunch), which increases our carbon footprint. Local public transport options are limited. We’re unclear on how sustainable some of our suppliers are.

Options:

• We could start a car-pooling initiative.
• We could hire or buy our own bus that drives staff to work.
• We could lobby the government to provide more public transport.
• We could encourage staff to take more work-from-home days.
• We could cater lunch in the office some days to reduce car trips.
• We could provide good quality, compostable coffee pods and reusable mugs in the breakroom.
• We could ask our suppliers to share information on their sustainability measures.
• We could switch to new suppliers that have better track records with sustainability practices.

Will:

The first step is to consult with our team to see if they have any more ideas about sustainability. We’ll also research each option further so we have clearly defined facts that back up whether an option is feasible and whether it would genuinely improve sustainability. We want to make at least some improvements to our transport-related carbon footprint and supplier choices by the end of the year.

Goal:

We want to eliminate our unpaid invoices or late payments because they have a negative impact on our business and staff.

Reality:

Over the last year, 43% of our invoices were paid late and 1% were written off. This impacts our cash flow and ability to hire new team members, which increases stress for existing staff and makes it hard to deliver services on time. Some of our customers are feeling the impacts of the economy and although costs have gone up, our customers’ budgets have not. This could be contributing to slow payments.

Options:

• We could require all invoices to be paid upfront.
• We could offer payment plans to help customers stick to their budget.
• We could offer a longer payment period on invoices.
• We could update our accounting system to offer more payment methods.
• We could implement an automatic reminder system.
• We could refer some invoices to a collections agency.
• We could reposition our services to attract a different market that is more likely to pay on time.
• We could communicate with customers to expect longer timeframes for our services.
• We could introduce a late payment fee or early payment rewards to incentivise customers to pay on time.
• We could ask the bank for a loan to help us hire new staff without having to wait for the cash flow to catch up.

Will:

We’ll start by immediately setting up a meeting with our accounting and finance team to discuss the options further and find out what solutions they can recommend and implement. We will interview some of our customers to check our assumptions about why they might be paying late. We will engage a consultant who has expertise in the area, as well as chat to the bank to find out what’s possible. We’ll decide which strategy is our lowest hanging fruit and implement this by the end of the month so we can start seeing our unpaid invoice as soon as possible.

“Moving forward is easier if you know where you are and where you can go”.

You can use the GROW Model to support yourself, your employees, and your teams to boost performance, learn new skills, solve problems, and make better decisions. By asking targeted questions, you can go from goal setting, to planning a way forward and achieving your goals.

Whether you’re keen to have a productive conversation with the team, work with a leadership coach, or coach yourself through a challenge… this four-step framework can help you find a way to move forward.

We’d encourage you to give the GROW Coaching Model a try today!

Looking for leadership coaching or hands-on help with more great tools like this one? Contact us today!

The Department of Home Affairs has announced its proposed changes to the employer sponsored pathways to permanent residence are expected to take effect from 25 November 2023, subject to approval of updated legislation.  

This is the welcome news many of Australia’s large contingent of permanent temporary migrants have been waiting for, after their previous pathway to permanent residence was removed in 2017 by the changes to the operation of the occupation lists at that time.

To have this confirmed so close to Christmas is indeed a Christmas wish come true.

These changes are part of the broader reform process the Government is undertaking to ensure equitable access to permanent residence for all sponsored skilled workers, while also seeking a return to a streamlined skilled migration program that can again adapt and respond to Australia’s changing skills needs, as they occur.

Australia is in a global fight to attract skilled workers and the Government has acknowledged the current program is hindering Australia’s growth and talent attraction strategies.  Australia is no longer the first choice of destination or skilled migrants, particularly when considered against comparable countries including Canada and Singapore, both of which offer faster streamlined pathways to permanent residence. The system is in desperate need of this redesign, to ensure we can once again attract top talent to our shores.

If you have sponsored 482 visa holders with a STSOL occupation, this is obviously great news and means they will now have a clear pathway to permanent residence, subject obviously to meeting all eligibility criteria for that visa.

This is not only a great outcome for these employees but also provides Australian employers with the certainty that they will be able to retain these skilled workers in their businesses in the longer term.  Keeping in mind that many of the occupations on the STSOL that have had limited avenues to permanent residence in the last few years are the business expanders and job-creators.

If you have any questions in relation to the above, please don’t hesitate to get in touch.

With the festive season creeping in, employers need to be aware of the entitlements and rules that apply whilst their business operates during the end of year holiday season.

During this season, business activity can increase for many employers, requiring their employees to work more hours and possibly public holidays. On the same note, other employers may request their employees take leave (shutdown).

On 25 August 2022 the Commission’s decision to replace the existing shutdown model clause on ‘Direction to take annual leave during shutdown’ has affected 78 Modern Awards.

Stand down

Stand down is initiated by an employer informing employees not to work for a period of time due to reasons outside the employer’s control, i.e., industrial action, equipment breakdown, inclement weather.

This is typically borne from an urgent set of circumstances beyond the employer’s control.

Shut down

Shut down occurs where a business or employers choose to temporarily close down a part or all of the business for a particular period, i.e., Christmas and/or New Year. During this period employees can be directed to take annual leave.

This is considered an organised and communicated close of business, intended for various reasons.

The following provides a summary of rules employers should keep in mind:

• Employers intending to shut down all or part of its operation during this period are required to request relevant award covered employees to take annual leave during shutdown. This must be reasonable, in writing and if applicable, within the required notice period (28 days).
• Employees can agree to take annual leave or leave without pay during the planned shutdown period.
• If an employee continues to work when a business shuts down, they are entitled to their normal pay.
• Employers must keep in mind that they cannot direct their employees to take annual leave during the shutdown period if the relevant award or agreement does not allow for it.

Navigating legislative requirements to fit your business requirements can be tricky, specifically trying to ensure you meet the necessary rules. Employers must consider if a relevant industrial instrument provides for the ability to direct or request employees to take a period of annual leave.

If you are a business that observes a shut down period and you would like to know more about your responsibility as an employer or the rules that apply whilst operating your business during the end of year holiday season, please contact us at hello@mapien.com.au and a Mapien Workplace Strategist will be in touch within 24 hours.

A full bench of the Fair Work Commission (‘FWC’) in the decision of 233 Victoria Square Hotel Pty Ltd T/A Hilton Adelaide [2023] FWCFB 163 has rejected an application by the Hilton Adelaide to extend the default period for the Hilton Adelaide 2006 Certified Agreement (‘Agreement’).

On 31 May 2006, the Agreement was certified by the Australian Industrial Relations Commission under section 170LT of the Workplace Relations Act 1996 (Cth). It became known as a collective agreement-based transitional instrument under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (‘Transition Act’) and continued operation.

The Transition Act was amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay Act) 2022 (Cth) which referred to such agreements as ‘zombie’ agreements and provided for automatic termination on 6 December 2023 unless extended by the FWC.

The Hilton Adelaide made an application to the FWC to extend the default period of the Agreement for a period of four years. The application was made under subitem (4) of item 20A of Schedule 3 of the Transition Act. Subitem (6) provides that upon application, the FWC is required to extend the default period for an agreement for a period of no more than four years if the FWC is satisfied that:

“(a) Subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to do so; or

(b) it is reasonable in the circumstances to do so.”

The application was made by reference to subitem (6)(a) on the basis that subitem (9) applies and is otherwise appropriate to do so. Subitem (9) applies if:

“(a) the application relates to a collective agreement-based transitional instrument and;

 (b) it is likely that, as at the time the application is made, the award covered employees for the instrument under subitem (10), viewed as a group, would be better off overall if the instrument applied to the employees than if the relevant modern award or awards referred to in that subitem applied to the employees.”

Under subitem (10) of item 20A, ‘award covered employees’ for a collective agreement-based transitional instrument are those employees covered by the instrument who, at the time the extension application is made under subitem (4), are covered by one or more modern awards that are in operation in relation to the work to be performed under the instrument, and are employed at that time by an employer who is covered by the instrument and the modern award(s).

There was no dispute that the Hilton Adelaide was covered by the Hospitality Industry (General) Award 2020 (‘Hospitality Award’) and is the relevant modern award for the purpose of the better off overall test (‘BOOT’).

The full bench applied the decision of Suncoast Scaffold Pty Ltd as trustee for The Warren Family Trust [2023] FWCFB 105 (‘Suncoast Decision’) which is precedent that the BOOT for item 20A(9) of the Transition Act requires a broad evaluative judgment based upon an overall comparison of the terms of the transitional instrument and the relevant award in its application to the award covered employees.

The Hilton Adelaide submitted that employees were better off under the Agreement than the Hospitality Award as follows:

• Clause 24 which provides a minimum guaranteed payment of 1% above the Hospitality Award;
• Clause 23 allows employees at levels 2,3, and 4 to attain an additional classification to levels 2A,3A and 4A with higher wages in recognition of their experience;
• Clause 17(g)(i) provides full-time employees with a 150% penalty for work on Saturday and a 175% penalty for work on Sunday;
• Clause 17(g(ii) provides variable part-time employees with a 110% penalty for all hours performed Monday to Friday;
• Clause 17(g)(iii) provides all part-time employees with a 150% penalty on Saturday and a 175% penalty on Sunday;
• Clause 17(g)(iv) provides all casual employees with a 150% penalty for all hours.

The full bench took issue with clause 24 of the Agreement and noted that the wording of the clause referred to the Hotels Clubs Etc Award (SA) or (when implemented) the Australian Fair Pay Commission Minimum Wage rate. The clause did not refer to the Hospitality Award.

The Hilton Adelaide submitted that the Agreement did not apply to it when made but later applied in about mid-2022 when there was a transfer of business. At this time the Hilton Adelaide applied for an order under section 319 of the Fair Work Act 2009 (Cth) (‘FW Act’) to enable non-transferring employees (those employees employed after the transfer) to also be covered by the Hilton Agreement. When the transfer order was made, the Hilton Adelaide provided the FWC with an undertaking which included that “The Hilton Agreement will be read and interpreted such that any reference to an Award is a reference to the Hospitality Award.” On this basis, the Hilton Adelaide contended that the transfer order read in conjunction with the undertaking and clause 24 of the Agreement provided that the ordinary hourly rate will exceed the minimum rate provided in the Hospitality Award by 1%, which is what it had done in practice. The Hilton Adelaide then submitted that the transfer order granted under section 319 of the FW Act constituted a variation to the Agreement pursuant to section 320 of the FW Act. The full bench rejected this submission on the basis that section 320 of the FW Act is only available upon application, provides limited circumstances for variation and requires consideration of a list of factors. Therefore, the undertaking could not be regarded as a variation to the Agreement as the application was not made under section 320 of the FW Act.

The Hilton Adelaide alternatively submitted that as the undertaking was given to the FWC in proceedings and referred to in its decision, that it had the standing of a court order. However, this was also rejected on the basis that the undertaking was given to address union concerns and the FWC is not a court.

With the undertaking excluded, the full bench proceeded with the BOOT analysis conducted by the FWC Agreement Team. It was noted that the Agreement generally provides full-time and fixed part-time employees with similar terms to the Hospitality Award with more beneficial Saturday and Sunday ordinary hour penalties. However, it provides less beneficial public holiday penalties and overtime provisions. On this basis, full-time and fixed part-time employees could not be considered better off overall than the Hospitality Award.

It was noted that variable part-time employees is not an employment category in the Hospitality Award but receive a 10% loading for work performed Monday to Friday. These employees receive more beneficial Saturday and Sunday ordinary hour penalties and work between 782 and 1981 hours per annum averaged over a four-week period. However, this was inconsistent with the part-time provisions of the Hospitality Award which requires guaranteed hours. The overtime provisions in the Agreement are less beneficial Monday to Saturday and on public holidays. The full bench noted that whether these employees were better off overall than the Hospitality Award was dependent on the number of overtime hours worked. With the higher penalties for working ordinary hours on Saturday and Sunday the full bench was of the view that variable part-time employees who consistently work on weekends may be considered better off overall.

It was noted that the Agreement is silent about most Hospitality Award allowances and does not provide a definition for shift workers. This would leave these employees worse off. While clause 17(f) of the Agreement provides for annualised salaries, it is silent on the safeguards outlined by clause 24.2 of the Hospitality Award thereby leaving these employees worse off. The Agreement provides less beneficial shift penalties for shifts worked Monday to Friday with the full-time and fixed part-time rates in the Agreement not high enough to compensate for this reduction.

It was noted that clause 17(g)(iv) of the Agreement provides casual employees with a 50% premium on the ordinary rate of pay with a minimum engagement of 2 hours. However, it excludes casual employees from overtime penalties and premiums. The full bench referred to the decision of Loaded Rates Agreements [2018] FWCFB 3610 and noted that it is difficult for casual employees with loaded rates to be considered better off due to the ability to roster them to work at various times. Therefore, without other compensation, casual employees could not be considered better off overall.

It was also noted that apprentices are worse off and the safeguards in clause 15.1 of the Hospitality Award providing ordinary hours of work and rostering arrangements for full-time employees were not present in the Agreement.

The Hilton Adelaide submitted that the flexible rostering arrangements for variable part-time employees provided a benefit as these employees are parents or students who are from a demographic that appreciates flexibility. In relation to annual salaries, it contended that in practice it substantially complied with the protections of clause 25 of the Hospitality Award. It also submitted that the less beneficial shift penalties were adequately compensated by the higher rates paid in the Agreement.

The Hilton Adelaide proposed new undertakings so that employees were better off overall on a global basis under the Agreement than the Hospitality Award. However, the full bench expressed the view that undertakings could not be part of the assessment of the BOOT for item 20A(9)(b) of Schedule 3 of the Transition Act. It requires a comparison between the Agreement and the Hospitality Award which is consistent with the approach adopted in the Suncoast Decision.

The full bench expressed the view that the matters raised by the Hilton Adelaide in its evidence and submission would also have been relevant to whether it was reasonable in the circumstances to extend the default period under subitem 6(b). The Hilton Adelaide referred to this subitem but made no submissions. The full bench noted that this subitem requires a broad evaluative judgement as outlined in the Suncoast Decision and concluded that it would not be reasonable to extend the default period in the circumstances.

As neither subitem (6)(a) nor (b) of item 20A of Schedule 3 of the Transition Act were satisfied the full bench was not required to extend the default period for the Agreement. Therefore, the application was dismissed. This means that unless the Hilton Adelaide implements an enterprise agreement, the Agreement will automatically terminate on 6 December 2023 leaving it subject to the Hospitality Award.

Agreement-based transitional agreements such as collective agreements made under the Workplace Relations Act 1996 (Cth) will automatically terminate on 6 December 2023 unless the FWC approves an application to extend their period of operation. The provisions of the Transition Act give primary consideration to whether employees are better off overall under the collective agreement than the applicable modern award. If this cannot be satisfied, the FWC will not grant the application thereby leaving the collective agreement to terminate on 6 December 2023. The FWC is not able to accept undertakings to satisfy the BOOT and therefore guarantee employees more beneficial terms and conditions of employment.

Collective agreements were implemented at a time when the BOOT Test did not apply and modern awards did not exist thereby making it unlikely that a collective agreement will satisfy the BOOT. Employers should be assessing their collective agreements to determine whether an application is viable and if not, take steps to implement an enterprise agreement (time permitting) or prepare to be subject to one or more applicable modern awards.

If you would like to know more about the cessation of collective agreements or enterprise bargaining, please contact us here and a Mapien Workplace Strategist will be in touch ASAP.

Our consultants are continually monitoring the implementation of the amendments to the Fair Work Act, and their implications.