Previous articles in this series have addressed the role of the Legal Services Award 2020 (the award) in the private legal workplace, the types of jobs covered by the award, the types of employment allowed under the award, the hours of work and wages and allowances provisions of the award.
Obligations relating to annual leave, requests for flexible working arrangements and individual flexibility arrangements have also been examined.
The award also imposes particular requirements to consult with employees over significant workplace and hours of work changes, provides a dispute resolution mechanism and expands on National Employment Standards (NES) requirements for termination and redundancy in a number of respects.
The award (clause 29) imposes requirements to consult with employees if there has been a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees. These include:
a. termination of employment
b. major changes in the composition, operation or size of the employer’s workforce or required skills
c. loss or reduction of job or promotion opportunities or job tenure
d. alteration of hours of work
e. retraining or transfer to other work or locations
f. job restructuring.
In these situations, the employer must:
a. provide (in writing) to the employee/s concerned (and their representatives) all relevant information about the operational changes, including:
• the nature of the proposed changes
• the expected effects of the changes on employees, for example, redundancy, and
• any other matters likely to affect employees.
b. meet with the employee/s who will be affected to discuss:
• the introduction of the changes
• effects the changes are likely to have on employees
• measures to avert or mitigate the adverse effects of such changes on employees.
c. consider any matters raised by employees about the changes.
Consultation in similar terms is also required if an employer proposes to change an employee’s regular hours of work or roster (clause 30).
The award (clause 31) provides a formal dispute resolution avenue for any disputes about award matters or the National Employment Standards. It is important to note that not all matters can be addressed through this avenue, such as disputes about performance management issues, unless the parties agree.
The first stage is that the employer and employee are required to try and resolve any dispute through succeeding levels internally in the workplace.
The second stage is referral of the dispute to the Fair Work Commission if it cannot be resolved by internal discussions. The parties can agree on a process for the commission to use such as mediation, conciliation and consent arbitration.
Otherwise, the commission can use any method of dispute resolution it considers appropriate (although conciliation and arbitration are the two common forms of dispute resolution).
Whilst these steps take place, work is to continue and an employee must not unreasonably fail to comply with employer directions about performing work.
Termination and redundancy
The basic notice and payment requirements in termination or redundancy situations are dealt with in the National Employment Standards. The award contains supplementary requirements.
The Fair Work Act does not impose minimum notice requirements on employees who resign their employment. This requirement is usually addressed in a common law contract. However, award-covered employees are required by the award to give the same minimum period of notice of resignation as the employer (except that the employee does not have to give additional notice based on age).
If the employee does not give the required minimum notice, an employer is authorised to deduct an amount of no more than one week’s pay from wages otherwise due to the employee. The deduction cannot be unreasonable in the circumstances.
If an employee is given notice of termination by an employer which they are required to work out (as opposed to payment in lieu), then the employee can take up to one day off a week (on a paid basis) to look for other work. This time off is to be taken at times convenient to the employee after consultation with the employer.
If an employee is required to work out a period of notice before their employment ends due to redundancy, then:
- the employee can finish up during the redundancy notice period and they will still be entitled to their redundancy pay (but not payment for the period of notice not worked), and
- the employee can take up to one day off a week (on a paid basis) to look for other work (subject to evidence requirements).
It is important for employers (and employees) to understand and comply with the overlapping layers of obligations imposed by the Fair Work Act and industrial awards.
Failure to do so can result in civil penalties and can be relevant to legal proceedings including unfair dismissal and breach of general protections rights claims. Written contracts of employment and policies also have roles to play, but that is a story for another day.
Rob Stevenson is the Principal of Australian Workplace Lawyers and a QLS Senior Counsellor. firstname.lastname@example.org