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Adviser Employers

October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

Paid parental leave—your questions answered

T

here is now a paid parental leave scheme in place in Australia for eligible women—and in some cases other primary carers— for a child born on or after 1 January 2011. Employers will start administering the scheme for eligible longer-term employees from 1 July 2011. The following article answers some of the most frequently asked questions we have received about the new paid parental leave laws.

What is paid parental leave? A payment, principally for eligible working women, of a maximum of 18 weeks pay at the national minimum wage ($570.00 for the 2010―2011 financial year) following the

birth of a child. Parents of adopted children are eligible too.

Important dates 1 October 2010

Act starts—eligible pregnant women can apply but the child must be born on or after 1 January 2011 and payment doesn’t start until then.

1 January 2011

1 July 2011

Parental leave pay starts—eligible people who are the main caregiver of a child born on or after this date are paid by the federal government’s Family Assistance Office*. Employers start making payments—if the person is eligible, the office has made a determination that the employer must make the payments and the employer has accepted.

IN THIS ISSUE

ƒƒ Paid parental leave—your questions answered ƒƒ NSW Premier seeks changes to model Work Health and Safety Act ƒƒ ‘Go away’ claims here to stay ƒƒ WorkCover updates NSW return to work guidelines ƒƒ The correct form for a payslip ƒƒ The end of division 2B state awards

*Family Assistance Offices have been set up in Medicare and Centrelink offices. 1


October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

continued from page 1

CONTENTS

Features 1

Paid parental leave—your questions answered

5

NSW Premier seeks changes to model Work Health and Safety Act

5

Open letter to the NSW government

6 7

‘Go away’ claims here to stay

8 9

The correct form for a payslip

10

WorkCover updates NSW return to work guidelines

The end of division 2B state awards Calculating transitional modern award wage rates, penalties and loadings

Cases & the law

AFEI paid parental leave seminar To help you understand your obligations under the new laws, we are running a series of seminars on paid parental leave, starting in November. The seminar will cover: eligibility criteria, employer determinations, acceptance notices, funding, paying an instalment, the power of government agencies to gather information and financial penalties. If you would like to attend, please register on the AFEI website to book. Places for this seminar are limited, but we will be releasing new dates soon.

DATE

Thursday 25 November 2010

TIME

9.30am - 12.00pm

FEE

non-member $240 or member $190

REGISTER http://afei.org.au/paid_parental_leave_

seminar

PHONE

02 9264 2000

EMAIL

training@afei.org.au 02 9264 5699

11

Unions applying for first low paid bargaining order

FAX

12

The unbearable burden of NSW employers

ADDRESS PO BOX A233

Training & events 13 14

November & December training dates Diploma of human resources management BSB50607

SYDNEY SOUTH NSW 2000

When can an employee apply for paid parental leave? Employees can apply now, but payments can only be made for a child born on or after 1 January 2011 and only after the birth of the child has been verified.

Who’s eligible? A person is eligible for parental leave pay if they: ƒƒ are the primary carer of the child ƒƒ haven’t returned to work ƒƒ satisfy the work test—see definition on the next page ƒƒ satisfy the income test—see definition on the next page ƒƒ satisfy the Australian residency test ƒƒ aren’t entitled to the baby bonus for the child and don’t have a partner—or former partner—who’s entitled.

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The Adviser

www.afei.org.au


October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

FEATURES parental leave days that are week days ƒƒ the person has, or will have, been employed by the employer for at least 12 months immediately before:

This is defined as performing paid work, whether as an employee, contractor or otherwise, for at least one hour a day for approximately 10 months (295 days) consecutively during the 13 months (392 days) before the child is born. A break of eight weeks or less from paid work doesn’t break the consecutive days of paid work.

The income test A person satisfies the income test if their taxable income was $150 000 or less for the financial year that ended before the day the person made the claim or the day the child was born (whichever came first). This amount will be indexed annually on 1 July starting in 2012.

What makes an employer responsible for paying the instalments? An employer is responsible for paying parental leave instalments if the Family Assistance Office makes an employer determination and the employer accepts the determination. Failing to give an acceptance notice results in large financial penalties. The following additional criteria are used to determine if the employer should make the payments to an eligible person: ƒƒ the employer is likely to pay instalments to the person for at least eight weeks—this is defined as 40 consecutive paid

The Adviser

—the expected date of birth of the child (if the person’s claim was made before the birth of the person’s child), or —the later of the expected date of birth of the child and the day the child was born (if the person’s claim was made after the birth) ƒƒ the person is likely to be an Australian–based employee of the employer during the person’s paid parental leave period ƒƒ the employer has an ABN.

What if the points above could apply to more than one employer? If more than one employer could be responsible for paying an instalment, the employer who is nominated by the person in their application will make the payment.

How do I respond to an employer determination? You must either give the Family Assistance Office written notice— the acceptance notice—within 14 days after the date of the notice of the determination, or apply for a review of the determination. There are financial penalties for a number of matters under the Act. Failing to give the Family Assistance Office an acceptance notice within 14 days of the date of the notice—which is the date the preparation of the notice was completed—attracts a financial penalty of up to $6600*. *This amount is correct for the 2010—2011 financial year.

The Family Assistance Office and the Fair Work Ombudsman also have the power to issue compliance notices if an employer doesn’t respond to an employer determination. We will discuss compliance notices in a future issue of the Adviser.

What’s in an acceptance notice? The acceptance notice must contain: ƒƒ a declaration from you accepting the obligation to pay instalments ƒƒ bank account information ƒƒ pay cycle information ƒƒ any additional information required under the Paid Parental Leave rules, which are yet to be released. Note: AFEI is developing a template acceptance notice that we will notify you about in a future issue of the Adviser. The template will also be placed on the AFEI website.

What’s bank account information? This is defined as the account number, BSB number, account name and financial institution name for an account that you hold and maintain and that the paid parental leave funding will be paid into.

What’s pay cycle information? You must provide details of the person’s regular pay period, regular payday and the cut–off for your payroll. You must also notify the Family Assistance Office of the first day of the pay period that overlaps with the person’s period of paid parental leave. If the person doesn’t have a regular pay period, the pay period for parental leave pay is each

www.afei.org.au 33


October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

FEATURES

calendar month and the payday is the first day after the end of the pay period.

Making payments The federal government has said employers won’t start paying instalments until 1 July 2011. We expect the Family Assistance Office to start making employer determinations that take effect from that date onwards. An employer must pay a paid parental leave instalment to a person on their payday if: ƒƒ an employer determination is in force for the employer and the person on a day covered by the instalment ƒƒ the employer has been paid enough to fund the instalment at the payroll cut-off point.

but doesn’t, they can be forced to pay a financial penalty of up to $6600*. However, you won’t breach this part of the law if you can’t pay an instalment on a particular day, but you make that payment as soon as practicable after that day. *This amount is correct for the 2010—2011 financial year.

When will I get the funds from the government to pay an instalment? The Family Assistance Office is required to fund a paid parental leave instalment amount to an employer by a ‘reasonable period’ before the payroll cut-off for the payday. A reasonable period isn’t defined in the Act. If the office doesn’t fund the instalment by the first payroll cut–off—and the employer hasn’t otherwise been paid enough to fund the instalment—the office must pay the missing amount to the employer before the next payroll cut–off.

How much do I pay an eligible employee?

An employer has been paid enough to fund an instalment if the amount paid to the employer is at least: the amount of the instalment, the amount of the instalments the employer has previously paid to the person for the child or the amount of any other instalment that is to be paid to the person on the payday for the instalment. If an employer has been paid enough to fund an instalment,

An eligible employee is paid the amount of the daily national minimum wage—defined below—times the number of week days that fall during the regular pay cycle, which are also paid parental leave days. Their payday is the day that they would usually be paid for their regular pay period. Explanation: The daily minimum wage is 7.6 times the amount of the national minimum wage—per hour. The current hourly rate is $15.00, making the amount of the daily national minimum wage

amount $114.00. The amount of an instalment of five week days is $570.00 and not $569.90. These amounts are reviewed annually by Fair Work Australia. You would pay the following amounts for a regular pay period that’s: Weekly Fortnightly Monthly*

$570.00 $1140.00 $2394.00

*This is an example of a monthly payment made on the first of the month each month using the example of 1 March 2011, which would be a payment for 21 week days— assuming the next monthly payment is made on 1 April 2011.

Do I have to provide a pay slip? You will have to provide the person with a record of payment before the end of the day that follows payday. The actual form of the information you must provide is described by rules that haven’t been released yet. We’ll tell you when we know more, but for now we anticipate the form will be similar to the form of a payslip required under the Fair Work Regulations.

What happens if the birth is before 1 January 2011? The person isn’t eligible for paid parental leave.

How does paid parental leave interact with existing schemes? The payment of paid parental leave doesn’t affect other employer obligations, including unpaid parental leave under the Fair Work Act or any paid parental leave arrangements you have for your employees.

Paid parental leave is new and complex. The analysis in this article covers some of the most critical areas for employers, but we urge you to contact the AFEI Hotline or attend our training seminar for more information. 4

The Adviser

www.afei.org.au


October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

FEATURES

NSW Premier seeks changes to model Work Health and Safety Act WorkCover NSW had advised us that the NSW Bill to adopt the model Work Health and Safety Act would be introduced into the NSW Parliament by the end of October 2010.

have long objected to two key provisions in the model Act that depart from current NSW OHS legislation—the reversal of the onus of proof and the removal of the union right to prosecute.

The NSW Premier has now written to the Prime Minister seeking changes to the model Work Health and Safety Act. Unions NSW

The need for union support in the forthcoming NSW elections is evident in the Premier’s request to the Prime Minister that the model

Act be changed so that defendants will have to prove everything practicable was done to ensure safety, and to reinstate the right for unions to prosecute. We will update you on developments in the NSW government’s attempt to change the model legislation, which it had previously endorsed.

Open letter to the NSW government AFEI chief executive Garry Brack has signed an open letter to the government of NSW urging the Premier to drop her request for exemptions from the model Work Health and Safety laws.

The letter was published in The Australian and the Sydney issue of The Daily Telegraph on Wednesday 20 October. AFEI was one of five business and employer signatories to the letter.

We called on the state government to recommit to the agreement that it reached on the model Act.

Please go to www.afei.org.au/files/pdf/open_letter.pdf to read the open letter.

The Adviser

www.afei.org.au 55


October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

FEATURES

‘Go away’ claims here to stay FWA releases its first unfair dismissal statistics Recent statistics released by FWA show that employers are paying ‘go away’ money in the majority of unfair dismissal claims that settle at conciliation. Three quarters of the unfair dismissal applications that settled in July and August this year involved the payment of some money. FWA couldn’t say whether the payments were ‘go

away’ money or money paid as ‘a result of genuinely discussed compensation’. Senator Abetz, the Shadow Minister for Employment and Workplace Relations, questioned FWA during the latest round of Budget Estimates hearings in the Senate. The questioning revealed that 979 applications settled at conciliation in the two months that

the data was collected. Payments to ex-employees range from under $2000 to amounts in excess of $40 000. A further 245 (approximately) settled without payment, which could mean the employee withdrew their application. The following table shows the breakdown of the payment range by the percentage of matters in that range.

Table 1—Percentage of unfair dismissal applications settled at conciliation by the range of settlement amount Percentage of unfair dismissal matters settled at conciliation*

Range of settlement amount

28 per cent

less than $2000

30 per cent

between $2000 and $4000

15 per cent

between $4000 and $6000

10 per cent

between $6000 and $8000

5 per cent

between $8000 and $10 000

7 per cent

between $10 000 and $15 000

2 per cent

between $15 000 and $20 000

2 per cent

between $20 000 and $30 000

1 per cent

between $30 000 and $40 000

*979 matters settled Note: The compensation for unfair dismissal is capped at $56 900, which is half the high income threshold for the 2010―2011 financial year.

Fair Work Australia’s annual report shows that applications around termination of employment issues soared by 63% to 13 054 in 2009–10, of which almost 10 000 were unfair dismissal cases (the others were adverse action and unlawful termination claims). The report shows 81% of these were settled at the conciliation stage. Not surprisingly, very few small employers were relying on the Government’s Small Business Dismissal Checklist for protection—just nine cases were dismissed on the grounds the employer had followed the checklist.

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The Adviser

www.afei.org.au


October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

FEATURES

WorkCover updates NSW return to work guidelines WorkCover has updated these very detailed guidelines, which are now called ‘guidelines for workplace return to work programs’ and were gazetted in September 2010 to take effect on 1 January 2011. NSW workers compensation laws require employers to document policies and procedures outlining their system to manage the return to work of workers with a work related injury or illness. This document, called a return to work program, must be consistent with the injury management program of the employer’s insurer. The injury management program is meant to be the blueprint statement that sets out how treatment, rehabilitation, claims management and employment practices are to be coordinated to achieve a safe and durable return to work for an injured worker. The guidelines are intended to assist employers comply with these legislated obligations. Many of the changes in the guidelines simply reflect changes to the law that have happened since the guidelines were first published, for example:

pay the worker’s first week of compensation ƒƒ legal requirement that an employee not be dismissed because of their injury in the first six months following a workers compensation claim ƒƒ the effect of the National Privacy Principles and NSW Privacy Act. However the guidelines have an increased emphasis on certain employer obligations. For example: ƒƒ return to work coordinators are to have the necessary qualifications, authority and resources to ‘negotiate’ return to work policies and procedures ƒƒ employers must cooperate with the insurer in relation to providing different job opportunities. Significantly, there is not the same emphasis for insurers to inform themselves about suitable duties which are available at the workplace, or to take note of what employers may be telling them about suitable duties to get the worker back into the workplace ƒƒ provide accurate wage information to the insurer

ƒƒ time frame for notification of injury to the insurer—all injuries notified by employer to insurer within 48 hours

ƒƒ communicate with worker’s doctor and insurer re requirements of pre-injury job and availability of suitable duties

ƒƒ incentive for early notification— an employer who doesn’t notify the insurer within the first five days after the injury must

ƒƒ respect privacy and confidentiality of medical examinations

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ƒƒ expanded description of hierarchy of return to work and its purpose ƒƒ return to work plan must be developed for injured worker on suitable duties prior to commencement ƒƒ treatment times should be outside working hours but need to take account of worker’s circumstances. Overall the guidelines have a greater emphasis on protection of worker rights, negotiation and dispute, and union involvement in the process. There is an example given of a policy for preventing and resolving return to work problems i.e. a dispute resolution procedure. There is also a description about how to get disputes before the Workers Compensation Commission (WCC), information which is likely to be of little assistance to employers. However, if your insurer takes a disputed claim to the WCC, we urge employers to be closely involved in the process, particularly to provide a detailed knowledge of the facts of the case. The guidelines make it clear that a Register of Injuries may be paper based or electronic which is being addressed in the remake of the 2003 Regulation, which will recognise electronic versions. A Register of Injuries is included as an appendix to the new guidelines.

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Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

October 2010

FEATURES

The Standard return to work program, which WorkCover has developed for use by small employers, has been revised to reflect the changes in the guidelines for workplace return to work programs.

Do you have the right qualification?

updated guidelines discussed in this article.

AFEI is running the WorkCover approved ‘Introduction to returnto-work coordination’ course over two days on Thursday 18 and Friday 19 November. This course includes information on the

For more information on the course, or to register go to: http://www.afei.org.au/returnto-work-coordination or contact training: 02 9264 2000.

The correct form for a payslip Under the Fair Work Regulations a payslip can be in either an electronic or hard copy format. It must always state: ƒƒ the employer’s name ƒƒ the employee’s name ƒƒ the period the pay slip relates to ƒƒ the date the payment was made ƒƒ the gross amount of the payment ƒƒ the net amount of the payment ƒƒ any amount paid to the employee that’s a bonus, loading, allowance, penalty rate, incentive-based payment or other entitlement that’s separately identified ƒƒ your ABN. You might also have to include extra information if the person is paid an hourly rate. In this case you must also state: ƒƒ the hourly rate ƒƒ how long an employee was paid that rate ƒƒ the total remuneration for that period.

8TheThe Adviser Adviser

If you make superannuation contributions for the benefit of the employee, you must also state:

ƒƒ the name of the fund the contribution was made, or will be made, to.

ƒƒ the amount of each contribution that you’ve made, or are liable to make, during the period to which the payslip relates

There are financial penalties of up to $3300 for a breach of the regulations.

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October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

FEATURES

The end of division 2B state awards Since 1 January 2010, employers in New South Wales, Queensland, South Australia and Tasmania, who are not constitutional corporations, and who were previously covered by state industrial relations systems, have been covered by the national system as a result of the referral of state industrial powers to the Commonwealth.

employees who were previously covered by division 2B state awards.

Those employers and their employees are now covered by division 2B state awards, which reflect the terms of the state awards applying at 31 December 2009.

In most cases employers who are already covered by a modern award had a minimum of seven months to prepare for the transition to modern awards. Our experience was that it was barely sufficient for the complex and often confusing requirements of the move to modern awards.

Division 2B state awards cease to have effect from 31 December 2010. From that date modern awards will cover employers and

AFEI has made submissions to FWA about transitional provisions for these awards. We’re concerned that the time that employers have to make the transition to their modern awards is inadequate.

Employers covered by division 2B awards don’t know, at this stage, what transitional arrangements will be applied and potentially will have very little opportunity to prepare for them if they started on 1 January 2011. As yet Fair Work Australia hasn’t issued a decision about what these arrangements will be. We will assist members throughout this period by providing them with information and advice on what they need to do as soon as the transitional arrangements are announced. See the full AFEI submission on the division 2B state awards for more information.

PROTECT YOURSELF FROM UNFAIR DISMISSAL ‘One of the best seminars I have been to, clear, detailed and no padding. Very informative.’ AFEI course participant, Understanding unfair dismissal, 2010 If your not sure what unfair dismissal means under the Fair Work Act, attending the new AFEI course on ‘Understanding unfair dismissal’ could be the best business decision you make.

NEW DATES

The Adviser

Contact us: Phone

02 9264 2000

Email

training@afei.org.au

Register

www.afei.org.au/courses

22 & 26 November 2010

www.afei.org.au 99


October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

FEATURES

Calculating transitional modern award wage rates, penalties and loadings From the first full pay period on or after 1 July 2010, employers who are covered by Modern Awards have to start the ‘transition’ to Modern Award minimum wages, most of which might be higher or lower than the Old Award or NAPSA rates*. The Modern Award transitional wages are calculated by adding—or subtracting—a proportion of the difference between the two for each of the next four years. The method for calculating the amounts payable is complicated so AFEI has developed two separate spreadsheet calculators to help you work out the wage rates, penalties and loadings. The calculator also takes account of the $26.00 increase to minimum wages following the Annual Wage Review. AFEI members can access the wage rates calculator and penalties and loadings calculator by logging on to the AFEI website www.afei.org.au. The calculators are under the ‘Member Resources’ heading. It’s important that you have your Old Award or NAPSA wage rates, penalties and loadings and the Modern Award wage rates, penalties and loadings to use the calculators. We are also explaining the transition to Modern Award wage

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The Adviser

rates, penalties and loadings in a series of Modern Award specific member circulars that we are sending out in November. They also contain the new Modern Award wage rate schedules. Before you pay the rates you calculate with the spreadsheet, you will also have to consider the effect of the ‘take home pay’ rule. If you have any questions about the calculators or Modern Awards please call the AFEI Hotline: 02 9264 2000.

Help with calculating the new rates—AFEI teleconferences

amounts to help members understand what they need to do and how they need to do it. We invite you to telephone Michelle Serra (02 8246 2542) or email us (michelle.serra@afei.org. au) to register for a teleconference as a complimentary part of your subscription with AFEI. We’ll send you separate information about the dates of the teleconferences with details on how to telephone in and take part. *This doesn’t apply to employers covered by the Social, Community, Home Care and Disability Services Industry Award 2010 who don’t start the transition to the wage rates, penalties and loadings in that award until 1

We are also scheduling a series of teleconferences to further explain the calculation of the transitional

July 2011. A circular on this modern award was sent to members in September.

10 www.afei.org.au


Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

October 2010

CASES & THE LAW

Unions applying for first low paid bargaining order Unions are continuing to push for new rights and entitlements under the Fair Work Act following a significant new application that will test wage fixing under the new regime. Unions have made an application for a ‘low-paid’ authorisation within the aged care industry. It’s the first application made under the Act and is reminiscent of former ‘logs of claims’ made to rope employers in to federal awards. The union seeks to force over 300 aged care industry employers across the ACT, NT, QLD, SA and WA into bargaining with the unions for an industry style multi employer agreement. NSW and Victorian employers aren’t included in the application. If multi employer bargaining isn’t successful, a low paid authorisation will enable the unions to apply for a workplace determination either by consent, or by FWA, imposing a determination. ‘Low-paid employees’ aren’t defined in the

Act and unions can use the power to pursue claims against employers paying award rates in any industry. If the unions are successful, this will add a further layer of arbitrated compulsory conditions over and above the current minimum safety net that has already been set by taking into account relative living standards and the needs of the low-paid. Any productivity offsets are likely to be ephemeral or non existent, just as they have been in the past when parties have been made to justify wage increases in the former Commission that were, in reality, a payment in exchange for peace and the ability to operate. Importantly the outcome is a multi enterprise determination by FWA, rather than a separate determination for each single enterprise. It’s difficult to envisage a ‘one size fits all’ or multienterprise outcome approach actually improving enterprise level productivity.

There are clear, and well established reasons why award rates are paid. Employers either can’t afford to pay higher rates, however socially and politically desirable this may be, or the value of the job can’t be sustained at a higher price. This means it’s not economically possible, even with commensurate job losses. If bargaining had the potential to produce better wage productivity outcomes these employers would have already embraced collective bargaining. Further, each tier of wages— minimum, award, bargained or arbitrated—feeds into the wage system through the still entrenched comparative wage justice our system continues to perpetuate. There will be consequent flowon effects of any new arbitrated, minimum outcome to other sectors where award rates are paid. For more information see our full submission to FWA on the union application.

There’s a lot going on at the moment in workplace regulation and industrial relations. Call the AFEI Hotline for more information about any of the issues covered in the Adviser or other topics that you need to know more about.

The Adviser

www.afei.org.au 11 11


October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

CASES & THE LAW

The unbearable burden of NSW employers Two important safety cases are underway in NSW, one brought by two company directors and another by a construction company, that continue to argue the High court safety decision in Kirk applies to NSW employers in spite of findings by the NSW Industrial Relations court that in their case it can’t.

Non-executive directors challenge guilty verdict In the first case, two directors have appealed to the NSW Court of Appeal after the NSW Industrial Court last month refused to stop a safety prosecution against them following the accidental death of an employee. The Industrial Court decision in Chevalley was one of the first postKirk decisions and was anticipated as a good test of whether change would be brought about by the strongly critical High Court decision. See our full report on the Chevalley decision in last month’s issue of the Adviser. The High Court said in Kirk that the Industrial Court had lost touch with the ‘traditions, standards and mores of the wider profession and judiciary’. Specifically, the sevenstrong bench said the Industrial Court offended a fundamental aspect of the rule of law by putting obligations on employers that were impossible to comply with and burdens that were impossible to bear.

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The Adviser

In Chevalley the two non-executive directors refused to plead guilty, arguing that there was nothing more that they could have done to prevent the accident, something the prosecutor was obliged— since Kirk at least—to state and particularise. The operations manager and the company had already entered guilty pleas. The Industrial Court disagreed, finding that the law in NSW only required a prosecutor to clearly identity what measures the corporation, could have taken, but didn’t. Individual directors’ are then deemed guilty, along with the corporation, until they prove otherwise by proving one of the defences in the Act. The court partly explained it’s reasoning on the difference between what it called regulatory or ‘quasi-criminal’ offences, as distinct from ‘true’ criminal offences. We will update you on the outcome of the Chevalley appeal in a future issue of the Adviser and on the AFEI website www.afei.org.au.

Construction company decision expected soon In the Holland case, which we reported in the May issue of the Adviser, the NSW Industrial Court also ‘read down’ the High Court decision in Kirk. In Holland the construction company was similarly unsuccessful in arguing that for charges under the NSW OHS Act to be valid, they must clearly identify what measures the company could have taken, but didn’t, to prevent the relevant risk. The company was prosecuted following the collapse of a section of the Lane Cove Tunnel during construction. There were no injuries. Rather, the NSW Industrial Court found Kirk’s arguments didn’t apply in this case because, even if essential factual ingredients weren’t in the charge, the essential legal elements were. This meant Holland knew enough about what it should have done, but didn’t, to mount a defence. We expect the Holland decision to be handed down in November.

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October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

TRAINING

AND EVENTS

AFEI runs a comprehensive range of nationally recognised qualifications and short courses.

NOV

COURSE TITLE

3

OHS consultation for workplace committee members and OHS reps (4 days)

4

Effective supervision and team leadership III—the high performance team (2 days)

8

OHS committee refresher training (1 day)

8

Train the trainer (3 days)

9

Time management (1 day)

11

Review human resource functions (2 days)

12

Understanding unfair dismissal (1/2 day)

15

Advanced Word for Windows (2 days)

15

OHS risk management (2 days)

15

Telephone techniques and positive first time impressions (1 day)

1

Develop teams and individuals (1 day)

17

Develop and evaluate OHS management systems (3 days)

1

OHS workplace committee chairpersons course (1 day)

18

Introduction to return-to-work coordination (2 days)

2

Manage plant hazards (1 day)

18

Coaching and mentoring (1 day)

3

Writing safe work statements (1/2 day)

22

Applying principles of occupational health and occupational hygiene (2 days)

6

OHS Consultation for workplace committee members and OHS representatives (4 days)

22

Understanding unfair dismissal (1/2 day)

6

Workplace assessing (3 days)

23

Introduction to Excel (2 days)

9

Recruiting and selecting staff (2 days)

24

Effective supervision and team leadership I— motivating and supervising staff (2 days)

26

Networking skills (1 day)

26

Understanding unfair dismissal (1/2 day)

29

Your legal obligations under the Fair Work Act (1 day)

29

Strategic governance and management sustainability for not for profit services in the community sector (1 day)

30

Personal influence skills (1 day)

Next month ... DEC

10

COURSE TITLE

Conducting performance appraisals (1/2 Day)

The board and management partnership in the

30

community sector—governance for a not for profit organisation (1 day)

The Adviser

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October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

TRAINING & EVENTS

Diploma of human resources management BSB50607 AFEI started offering a Diploma of Human Resources Management at the start of 2010. It takes between 6 to 12 months to complete and we run core and elective units at different times throughout the year allowing you to fit the qualification around your workload. Most people enrolled in the course are working full time and expect to complete their qualification by the end of the year. Kylie Pearson is the human resources manager of the one of the largest not for profit organisations in Australia, YMCA Sydney. She enrolled in the diploma in mid 2010 and is now part way through her course. Here we talk to Kylie about why she chose AFEI as her training provider and what she’s gained from the experience so far.

to work in human resources, but it’s giving me an insight into the practical application of skills in this area.

Unlike other courses I have attended, AFEI’s diploma is run by industry professionals with many years experience, so I not only gain a qualification, but get to meet other people in the industry, share experiences, and take away Background human resource management skills Kylie was in a new role as a human that I can apply right now in my resources manager with YMCA. She role with YMCA.’ enrolled in this human resources What have been the biggest qualification with AFEI on the gains for your organisation? advice of her supervisor, who had ‘Our organisation has taken away also completed qualifications with so many practical skills and ideas AFEI. Before starting the course that we are changing the way her experience managing human we practice HR to take a more resources was limited. strategic approach.

Why did you choose this qualification and what made you want to train with AFEI?

‘This qualification had more credibility than some of the other vocational institutions I considered. AFEI really focuses on work based situations and the application of knowledge in ‘real work’ scenarios. Completing the diploma will not only give me the technical skills

14 TheThe Adviser Adviser

Kylie Pearson, human resources manager, YMCA Sydney.

year. Most courses are run several times a year so you can attend at the time that suits you and your workplace best. The Diploma is made up of eight units, including: ƒƒ human resources ƒƒ staff performance ƒƒ industrial relations ƒƒ workforce planning ƒƒ staff recruitment and selection ƒƒ termination and separation

We’ve reviewed our performance management structure and we are seeing some great results in the performance of our employees.’

Enrolling in a diploma When you enrol in a diploma with AFEI you can choose your core and elective units from a number of dates that we offer throughout the

ƒƒ remuneration and employee benefits. To find out more visit the AFEI website www.afei.org.au and look up qualifications or contact PetaJade Pearson at AFEI by phone 02 9264 2000 or email training@afei.org.au.

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October 2010

Published by AFEI - Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000

TRAINING & EVENTS

Adviser Employers

Future issues...

The November issue of the Adviser will feature: ƒƒ Social networking and workplace surveillance ƒƒ Modern Awards and the absorption of over award payments ƒƒ Christmas and New Year holiday period 2010–2011—employee entitlements

Highlights from previous issues... August 2010 ƒƒ OH&S obligations of designers, manufacturers and suppliers ƒƒ Unpaid parental leave update ƒƒ Bleak House—harder to appeal unfair dismissal under fair work

September 2010 ƒƒ Directors guilty until proven innocent according to NSW IR court ƒƒ High income employees and unfair dismissal ƒƒ What should I do when a WorkCover inspector visits my workplace? We provide an archive of past issues of the Adviser at: www.afei.org.au/adviser_archives Members are entitled to full access once they login to the AFEI website. Call us on: 02 9264 2000 if you need more information.

www.afei.org.au The Adviser

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Š Australian Federation of Employers & Industries (AFEI) 2010 ABN 68 337 541 246 This work is copyright. No part of the work may be used or reproduced by any process, apart from any use permitted under the Copyright Act 1968 (Cth), without prior written permission from AFEI. Please address enquiries to Copyright at info@afei.org.au

The Adviser is intended as a guide to the law and shouldn’t be used as a substitute for legal advice. This information applies to employers who have premises in Australia, or are affected by industrial and workplace relations law as it applies in Australia. The publisher and the authors, consultants and editors expressly disclaim all and any liability and responsibility to any person, whether a purchaser or reader of this publication or not, in respect of anything, and of the consequences of anything, done or omitted to be done by any such person in reliance, whether wholly or partially on the contents of this publication. The publisher does not warrant the accuracy or otherwise of any statements made by any person or organisation in this publication. For members that want advice about any of the subjects discussed in this publication please call Member Services at AFEI on: 02 9264 2000 and ask to speak to one of our advisers or consultants. You can also speak to a lawyer from AFEI Legal by calling: 02 8088 4999.

For further information about the Adviser or AFEI please visit: www.afei.org.au You can also write to: AFEI Adviser PO Box A233 SYDNEY SOUTH NSW 1235 Street Level 2, 97-99 Bathurst Street, SYDNEY NSW 2000 Postal PO Box A233, SYDNEY SOUTH NSW 1235 Phone 02 9264 2000 Fax 02 9264 5699 Email admin@afei.org.au

www.afei.org.au 16

Adviser Oct 2010  

Monthly news and analysis on Australian workplace and industrial law

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