Bullying, Harassment & Discrimination

And just like that, it is August! We hope that your End of Financial Year went well, and that you are ready to finish the year on a high.

By now you should be aware that the Minimum Wage (and therefore Modern Awards) have increased by 3%, if you haven’t checked that your wages comply with your Award requirements make sure that you do.

Today’s Toolbox talk is a refresher about Bullying, Harassment & Discrimination. This is such an important one to make sure that you do with your staff each year. We’ve also included some information on wellbeing and discrimination.

Download now

As always, for any HR queries or just to chat about your business worries, give us a call (07 40517307) or drop us an email at hr@hrdynamics.com.au.

Timesheets & Overtime

“More than colleagues, we are family.” – Statements from MadE Establishment before they were found to have underpaid 515 of their workers a total of over $7.8 million.

FACTS:

  • MadE Establishment, of which celebrity chef George Calombaris is a founding member and current shareholder, has admitted to underpaying staff more than $7.8 million in wages and superannuation between 2011 and 2017.
  • The underpayments are mostly from the companies inability to properly pay staff, particularly casual employees, at their correct classification under the Restaurant Industry Award 2010.

It is important to note that although this may only be a $1 at most per hour (depending on the grade classification); that it DOES ADD UP!

Fair Work Ombudsman inspectors found the underpayments occurred because:

  1. of a failure to correctly apply annualised salary arrangements, and
  2. by failing to check workers on annual salary arrangements were paid for overtime and penalty rate hours worked.

What does this mean for me in my business?

  • Check your Award. Does your Award calculate overtime on a weekly basis or a daily basis?
  • Make sure that you keep accurate timesheets. Timesheets must include a start and finish time, and start and finish time for breaks.
  • For any flat rates, make sure that you have a clear agreement in writing.
  • Never assume, always check your Award.
  • Make sure that you are aware of the break entitlements. If you are unsure check your Award or give us a call.
    Most importantly: Document, Document, Document!
    • Here is a timesheet template for you to use within your business.
      Download now

      Penalties for MadE:

      1. Required to enter into a court-enforceable undertaking (“EU”) with the Fair Work Ombudsman.
      2. Now = Has a “babysitter” (i.e. Self-funded external auditors) to ensure their workers’ pay and conditions are meeting the required obligations by law.
      3. Basically these measures will ensure that ALL current and future employees will be paid correctly.
      4. + Fined $200,000 + negative media coverage.

      Need help? Talk to us. I am always available for a chat about your rates and record keeping requirements. Contact me on 0438 735 926 or (07) 40517 307 or email phoebe@hrdynamics.com.au.

    Meal Breaks

    By Marise Donnolley workplaceinfo.com.au

    A delivery driver who was denied meal breaks for four years was entitled to double time for hours worked beyond 5.5 hours each day, a tribunal has ruled. The South Australian Employment Tribunal found the employer had failed to comply with meal break provisions in the Road Transport and Distribution Award 2010.

    Under pressure
    Clayton Taylor was employed by a fruit and vegetable wholesaler as a delivery driver from August 2012 until he resigned in August 2016. He maintained that he never took a meal break during his working hours, and was constantly pressured to improve delivery times. He told the tribunal he had been criticised “about 20 times” for being too slow making deliveries and spending too much time with customers. In January 2015 and June 2016 he received verbal warnings for being too slow to complete his run.

    Complaints
    In May 2015 Mr Taylor complained to the office of the Fair Work Ombudsman about not being paid penalty rates and not being given meal breaks. Neither issue was resolved through the complaints process. The tribunal heard Mr Taylor requested he not be identified as the complainee as he was worried about adverse repercusssions. He also gave evidence of a conversation at work where one of the owners of the business (Margy Abbott) told a new office clerk that drivers received extra pay to compensate for the fact they didn’t get a lunch break.

    Where was HR in all of this?
    Sharaze Pentland was an independent HR consultant who was engaged by the employer in December 2015 to introduce a better HR structure. Although she held several meetings with staff, she did not raise the award requirement for a regular meal break with any of the drivers. The tribunal noted that meal breaks were never on her radar as an issue or a concern. Ms Pentland had a one-on-one meeting with Mr Taylor but said he did not mention unrealistic workloads or delivery time frames.

    Meal breaks ‘not an issue’
    The owner of the business, Chris Abbott, told the tribunal he didn’t think meal breaks were an issue with drivers. He was adamant Mr Taylor always took lunch breaks but offered no evidence to support that belief. Although he conceded Mr Taylor did not record meal breaks on his run sheets, Mr Abbott did not raise the issue with him. He claimed it was communicated to Mr Taylor that he was allowed to take a meal break free of all duty, and that his allocated duties of employment “realistically always provided an opportunity to do so “. Mr Abbott said Mr Taylor had not complained to him or Ms Pentland about not having meal breaks.

    Arguments
    The employer contended that Mr Taylor should have reorganised his work schedule in such a way that he provided his own regular meal break. However, Mr Taylor submitted that the award made it the employer’s responsibility to provide him with a fair and reasonable opportunity to take a regular meal break of at least 30 minutes duration. He said it was not an employee’s responsibility to “somehow find 30 minutes for a meal break in a busy work schedule that varied daily and made no specific provision or allowance for any break”.

    Decision

    The tribunal found that Mr Taylor did not take a meal break of at least 30 minutes on any day he worked for his employer, which was supported by his complaint to the FWO in May 2015. Deputy president Lieschke also rejected the employer’s submission that it was up to Mr Taylor to complain about the lack of provision of meal breaks. “To criticise the applicant at all would be to completely reverse the onus placed on the employer by the award to ensure that compliant meal breaks were allowed,” he said. “The employer has seriously defaulted on its responsibility through its demanding work schedule, broad criticisms and warnings of slowness, and by its silence about the known lack of any recorded meal breaks… It was not entitled to ignore the daily reality of the applicant working without any meal break.” The deputy president also found no evidence that drivers received extra pay for not having a meal break.

    The tribunal ruled the employer had failed to comply with the award and Mr Taylor was therefore entitled to payment of double the minimum hourly rate in cl 15.2 of the award for all time worked beyond 5.5 hours each day.

    Taylor v Ellison House (SA) Pty Ltd [2019] SAET 35 (1 March 2019)

    If you have any questions about what you should be paying staff, or need some help interpreting your Award… call us! My direct mobile is 0438 735 926 (or the office (07) 40517307) and my email is phoebe@hrdynamics.com.au I’m always available for a chat.