What is happening in the world of HR for small businesses?

New Year – New Workplace Laws

There have been some recent changes to the Fair Work Act (FWA) that employers must be aware of. These changes fall into two categories:

• Protecting Worker Entitlements and
• Closing Loopholes

Employee authorised deductions

From 30 December 2023, an employer can only deduct money from an employee if:

• the employee agrees in writing, and it’s mainly for the employee’s benefit
• it’s allowed by a:
  • law
  • court order, or
  • Fair Work Commission order
• it’s allowed under the employee’s award (e.g. the hospitality award allows deductions to cover the cost of breakages or till shortages) or
• it’s allowed under the company’s enterprise agreement, and the employee agrees to it.

Examples of permitted deductions include:

• salary sacrifice arrangements
• voluntary contributions into an employee’s super fund.

Employers need to know:

• An employee cannot be forced to agree to a deduction.
• The employee can withdraw their authorised deductions in writing at any time.
• Deductions must be noted in an employee’s record and recorded on the payslip.
• A new written authorisation is required to cover all changes to the deduction amount.
• In cases where the employee is under 18, their parent or guardian will need to agree to the deduction in writing.

Superannuation in the National Employment Standards

From 1 January 2024, superannuation is now an entitlement under the National Employment Standards (NES) and an obligation for employers under the Superannuation Guarantee Laws.  This means that employees can take court action under the Fair Work Act (FWA) to recover unpaid super unless NES or the ATO does not cover them and has already begun proceedings concerning this.

The NES entitlement aligns with the Superannuation Guarantee laws. Employers who comply with these laws will also meet their obligations under the NES.

Discrimination protections for employees experiencing family and domestic violence

This change came into effect on 15 December 2023 and offers stronger protection against discrimination for employees experiencing family and domestic violence. It is now unlawful for an employer to take adverse action (including dismissal) against an employee because that employee is (or has been) experiencing family and domestic violence.

This discrimination protection also applies to potential future employees.

Small business redundancy exemptions

Small business employers aren’t usually required to pay redundancy pay to employees who are made redundant.

However, a non-small business can become a small business as part of downsizing its workforce. This can be due to insolvency in the period leading up to (or after) becoming:

• bankrupt, or
• going into liquidation.

In the past, this has meant that these employers no longer need to pay redundancy pay to employees made redundant after the business has fewer than 15 employees left. Under the new laws, non-small business employers that become small business employers in these circumstances may still be required to pay their employees redundancy pay.

Workplace delegates’ rights

Workplace delegates now have new rights and protections under the Fair Work Act.

A workplace delegate is an employee:

• appointed or elected under the rules of an employee organisation
• who represent members of the organisation in the workplace.

The changes mean that delegates are entitled to:

• represent the industrial interests of members and potential members of the employee organisation (including in disputes with their employer)
• reasonable communication with members and potential members about their industrial interests
• reasonable access to the workplace and its facilities to represent those industrial interests.

The changes also introduce new general protections for which penalties may apply. An employer must not:

• unreasonably fail or refuse to deal with the workplace delegate
• knowingly or recklessly make a false or misleading representation to the workplace delegate or
• unreasonably hinder, obstruct or prevent the exercise of the rights of the workplace delegate.

Changes to workplace health and safety and workers’ compensation

The changes include:

• 15 December 2023: expanding the functions of the Asbestos Safety and Eradication Agency to include silica
• 14 June 2024: introduce a new guide for arranging rehabilitation assessments and requiring examinations to be prepared by Comcare
• 1 July 2024: introducing a new criminal offence of industrial manslaughter.

Other recent changes under Closing Loopholes

The following changes all started to take effect on 15 December 2023:

• Rules for labour-hire workers – A labour-hire employer must pay their employees supplied to a host employer at least the same rate they’d receive under the host employer enterprise agreement or another kind of instrument that provides for terms and conditions of employment.
• Right of entry – The requirement for officials assisting a state or territory work health and safety representative to hold an entry permit under the FWA has been removed. This will be reviewed in September 2024.
• Compulsory conciliation conference in protected action ballot matters – If the Commission has made a protected action ballot concerning a proposed enterprise agreement, they must make an order directing all bargaining representatives to attend a conciliation conference.

We will keep you appraised of the changes across 2024 as the employment landscape evolves.  Reach out to the Strawberry Seed team if you have concerns about how any of these changes may affect your business. Call us at (03) 4216 5200.

Personal Leave

The Fair Work Act provides an entitlement to Personal Leave for all Australian employees under the National Employment Standards (NES). It comprised two components:

Paid sick leave

Full-time and part-time employees can take paid sick leave if they can’t work because of a personal illness or injury.

Full-time employees are entitled to 10 sick days per year. The leave is pro-rata for part-time employees. Unused leave is carried over to the next year.

Paid and unpaid carer’s leave

Employees can take carer’s leave (paid or unpaid) if they need to look after an immediate family member or household member who is:

• sick
• injured, or
• affected by an unexpected emergency.

If only it were that simple! We get more questions on Personal Leave than any other type combined. The most common include:

• What if an employee runs out of paid leave entitlements?
• Can I ask for evidence? What does acceptable evidence look like?
• Who is an immediate family member?
• What is an unexpected emergency?
• How do I manage an employee using a lot of leave?
• Can I terminate an employee who is on long-term sick leave?

We have scheduled our first free webinar for 2024 to address all of these issues, and given we already have 60 attendees registered, it was the right choice. Join our Director, Carli Saw, on the evening of February 7^th for ‘Let’s Talk about Personal Leave’. Click here to register.

Public Leadership Training Workshops for 2024

One of our popular HR services is developing and delivering customised in-house leadership training for our clients. However, we realise that not all small businesses are large enough to have a session independently.

Mental Health First Aid Training for 2024

Mental Health First Aid training teaches practical first aid skills to help a team member or co-worker experiencing mental health issues. We’ll teach you how to approach someone struggling, ask the right questions and assist them in accessing professional help. In 2023, we delivered 13 courses across the county, educating 128 people on Mental Health First Aid, including the whole team at Strawberry Seed.

Our Principal HR Advisor and Mental Health First Aid Instructor, Frances Orr, is an accredited MHFA trainer who has delivered in-house MHFA training for many clients since 2021.

We have several options for attending public and private in-house Mental Health First Aid training in 2024. For more information on private courses, contact mhfa@strawberryseed.com.au.

We have public Blended Online and Blended Face-to-Face workplace courses scheduled across the year. The details and dates for the upcoming sessions can be found here. Discount codes are available for HR Package clients.