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  • HR Heartbeat: Redundancy whiplash, what is an Australian employee? And...

HR Heartbeat: Redundancy whiplash, what is an Australian employee? And...

Get updated on the Closing Loopholes Bill, this unique redundancy case, what the changes to immigration laws can mean for your business, and so much more in this week’s HR Heartbeat.

First published on Sunday, Dec 03, 2023

Last updated on Friday, Dec 01, 2023

7 min read

Have you heard the latest news?

Everything you need to know about the latest trends impacting employers all over Australia. Keep up to date with the HR Heartbeat.

Let’s get into the headlines.

Running circles around closing loopholes

The Federal Government’s Closing Loopholes Bill has taken a win with four proposals successfully passed through the Senate.

Those proposals relate to:

  • Stopping large businesses from downsizing and avoiding paying redundancy entitlements by tapping into small business exemptions.
  • Making it unlawful to discriminate against a person based on their experiencing family and domestic violence.
  • Expanding the work of an asbestos safety and eradication agency to also include silica safety and silica-based diseases.
  • Presuming an employer in the ACT is liable when a first responder develops PTSD during their employment.

Proposals from the Senate crossbenchers didn’t have the same luck despite hours of passionate speeches.

We’ll have to wait until February to see how far the Closing Loopholes Bill will get in the Senate, so stay tuned for more updates in the new year.

How’d you hear about this role?

When a part-time hydrotherapy nurse for pets experienced the whiplash of sudden job changes, she thought it was a case for the Fair Work Commission (FWC).

First, her employer, Advanced Veterinary Care, decided to hand over the hydrotherapy side of their operations to another business in the same location, Melbourne Animal Physiotherapy (MAP).

So, the hydrotherapy nurse in this case found herself “transferred” to MAP for her existing role. The only change was to her Saturday pay rates, but no reference was made to her long service leave or arrangement about ongoing employment.

Here’s the itch. The employee was entitled to 11 weeks of redundancy pay, but from the employer’s point of view they’d already set her up with a new job, eliminating the need for payout.

That’s when the FWC answered the employee’s call and stepped in as referee. They got assurance from the employer that they would pay out the employee’s long service leave when the time came, and ruled that the redundancy pay wasn’t required in this instance.

If your takeaway from this is that redundancy pay isn’t required if you set your employee up in alternative, acceptable employment and convince the FWC of the same, then proceed with caution. Australian employment laws are an infamously slippery slope.
Make sure you’re doing redundancies right with the support of our Redundancy Navigator. Backed by our 24/7 employment relations adviceline and expertly written documents, you can make sure you’re doing right by your employees, your business, and the law.

Point to Australia on the map

Immigration is on everyone’s mind thanks to the recent High Court decision and subsequent release of detainees. But while they scramble to patch holes in the system let’s talk about how this may affect you as an employer.

If you’re considering non-Australian candidates for open roles in your business and are wondering if you can ask about immigration history, take a pause. Asking your candidates questions that don’t relate directly to the role you’re hiring for can constitute discriminatory treatment. Keep your hiring practices consistent for all candidates, including verifying their right to work and any other background checks the role demands.

Here’s a great example of why an ‘Australian-based employee’ means much more than it seems.

An Indian employee who was a US citizen living outside of Australia was employed at a company with a registered office in Sydney. The company emailed his offer of employment to him to engage him as a Chief Operating Officer on a lithium mine in Argentina. The employee then signed the contract and emailed it back to Sydney. When he was dismissed after 18 months, he filed a general protections claim.

His former company objected to this move claiming that he wasn’t an Australian-based employee, which would make him entitled to the protections of the Fair Work Act. The FWC begged to differ.

It was found that the phrase ‘engaged outside of Australia’ as it related to an employee referred to where the employment contract was formed. In this circumstance, since the employment contract was accepted and received in Sydney, this employee was an Australian-based employee and could make a general protections claim.

Like we said, it’s not easy navigating Australian laws. Make sure the moves you’re making align with the law with 24/7 compliance support from a team of experienced employment relations advisers.

Germs on a plane

Qantas has found itself on the receiving of another less-than-positive court finding.

The New South Wales District Court found that the airline had illegally stood down one of its health & safety representatives who raised health & safety concerns about cleaning planes on inbound flights from China. In February 2020, the representative had advised his colleagues to stop cleaning the planes because of the risk of being exposed to COVID-19 and was stood down.

The airline’s rush to clean and service aircrafts that were potentially exposed to COVID-19 has caused another heavy fall as the company awaits sentencing for breaching health & safety laws. Here’s a reminder that despite the WHO declaring the COVID-19 emergency over, there are still a multitude of health & safety laws you must meet, or breach at the risk of exposing your business to hefty penalties.

Make meeting your obligations easier with the right tools by your side. BrightSafe’s suite of health & safety software and services helps you protect your employees and your business from almost 400 risks.

That wraps up this edition of HR Heartbeat. Stay tuned for more headlines and all the latest updates that will keep you in the know with all the major employment changes coming your way.

If you’ve got questions about the top HR headlines from this week, ask BrightLightning:

What are the changes to migrant worker protections as a result of the Protecting Worker Entitlement amendments to the Fair Work Act?

Breaches of the Migration Act 1958 do not affect the validity of employment contracts or contracts for services for the purposes of the Fair Work Act. This means migrant workers will be entitled to the protections of the Fair Work Act, (i.e., claims unfair dismissal or general protection) even where the individual may be in breach of their visa conditions.

What's the redundancy process?

To make an employee redundant, you need to have consultation meetings with the employee to inform them of the potential redundancy. In these meetings, you need to explore other options for keeping them in the business if they are at all available, such as reducing the employee's hours or redeploying them to another role. If an alternative cannot be found, then you can dismiss the employee, ensuring that you give them the proper notice and payment

What happens if I do not respond to general protections claim?

It is important that you do not ignore a general protections claim sent by the Fair Work Commission. Responding to a claim in time will allow you to provide your version of events in response to the claim. If you do not respond or contact the Commission, a Commission Member may issue a certificate. This allows the applicant to apply to a court about the same case. When this happens, this matter will likely be escalated to the courts without your input or any opportunity to have this matter resolved prior to court proceedings.

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