NEW YEAR, NEW NUMBERS

It is the start of a new financial year, and with that comes some new key numbers:

• National Minimum Wage: $24.10 per hour.
• High-income threshold: $175,000.
• Unfair dismissal compensation cap: $87,500.
• Increase to minimum wages in modern awards: 75%.
• Superannuation guarantee: 5%.
• Maximum super contributions base: $65,070.

For more information, see the:

• Annual Wage Review decision here, with a summary here.
• new minimum rates of pay in modern awards here.
• new (and historical) high-income threshold here.
• super guarantee information here.

There is also a new Fair Work Information Statement. Employers must give every new employee a copy of this Statement before, or as soon as possible after, they start their new job. The updated statement is available here.

WORKPLACE DELEGATES’ RIGHTS TERM TO BE INCLUDED IN ENTERPRISE AGREEMENTS

Last Friday, the Fair Work Commission issued a Statement confirming the details of the new workplace delegates’ rights terms to be included in all modern awards.

From 1 July 2024, where employees are asked to vote on a new enterprise agreement (EA), the EA must include a delegates’ rights term. Otherwise, the delegates’ rights term set out in the relevant modern award will be included in the EA.

The delegates’ rights term must be no less favourable than the corresponding term in the relevant modern award.

A link to the Full Bench Statement setting out the detail of the new delegates’ rights terms to be included in all modern awards can be found via this link.

Interestingly:

• the Full Bench decision was not unanimous. Deputy President Binet does not endorse the term. We will learn further details once the full decision is published; and
• there are 38 modern awards which will have an additional term inserted. This deals with the interaction issues that arises for awards that already contain other terms dealing with workplace delegates. A full list of these awards can be found in Schedule B of the FWC’s Statement.

EXEMPTION CERTIFICATES FOR SUSPECTED UNDERPAYMENTS NOW AVAILABLE

The Fair Work Commission now has the power to issue an exemption certificate to a union for the purposes of entering a workplace to investigate a suspected contravention.

The union must apply for the certificate and the Commission must reasonably believe that advance notice of the entry given by an entry notice might result in the destruction, concealment or alteration of relevant evidence.

See section 519 of the Fair Work Act 2009 here.

ADDITIONAL FIXED TERM CONTRACT EXCEPTIONS HAVE BEEN EXTENDED

The additional fixed term contract exceptions that were due to end on 1 July 2024 have been extended.

The limitations on fixed term contracts introduced by the Secure Jobs Better Pay amendments do not apply to certain contracts that are entered into on or after 6 December 2023 and before:

• 1 November 2025 for organised sport, high performance sport, live performance and funding reliant positions; or
• 1 January 2025 for higher education.

See further information here.

REVIEW OF MODERN AWARDS

Gender undervaluation

An Expert Panel at the Fair Work Commission will review 5 modern awards concerning pay equity in the care and community sector. The Panel will consider making changes to award rates of pay in those awards on work value grounds in order to address gender undervaluation.

The five priority awards are:

• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020.
• Children’s Services Award 2010.
• Health Professionals and Support Services Award 2020.
• Pharmacy Industry Award 2020.
• Social, Community, Home Care and Disability Services Industry Award 2010.

Preliminary conferences will be held between the parties in July. Evidence and submissions are due on 6 September 2024 and reply materials are due on 15 November 2024. The next hearing will be on 19 November 2024 and a number of dates in December have been set aside for hearing, if required.

Click here for more information.

Junior rates

The SDA has applied to vary the General Retail Industry Award 2020, the Fast Food Industry Award 2020 and the Pharmacy Industry Award 2020 so that:

• Employees aged 16 and under would receive 50% (instead of 40%) of the adult rate;
• Employees agreed 17 and above would receive 75% (instead of 60%) of the adult rate; and
• Employees aged 18 years or above would receive the full adult rate.

Click here for more information.

SAME JOB SAME PAY

Applications for regulated labour hire arrangement orders are coming through at an increased pace. In the last fortnight:

• The ETU has applied for an order against a labour supplier to Esso’s Bass Straight operations.
• The MEU and AMWU have applied for orders in respect of various suppliers in relation to work performed for BHP Coal.
• The AMIEU’s application for orders in respect of Australian Country Choice Production has been programmed for directions.
• The FAAA applications for orders against Qantas Domestic and Maurice Alexander Management in the cabin crew industry has been adjourned until 30 July 2024.

We can expect more applications to keep coming through in the lead-up to the ‘go live’ date on 1 November 2024.

NEW LEGISLATION: CFMEU DEMERGER

The Federal Government has introduced legislation which provides avenues for the Manufacturing Division of the CFMEU to demerge from the union.

The Bill seeks to:

• enable an application to be made to the Fair Work Commission before 31 October 2024 for a ballot to be held to decide whether the Manufacturing Division should withdraw from the union;
• apply the provisions of the Registered Organisations Act and the Fair Work (Registered Organisations) Regulations 2009 as they were immediately before commencement of Part 13 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, with appropriate modifications;
• specify coverage rules for the new registered organisation, if the ballot is supported by a majority of relevant members;
• provide an alternate pathway if the parties both agree (and subject to strict time limits), by way of a notice being given to the Minister which initiates a separate process to support a consensus-based approach to facilitating withdrawal; and
• require consensus on any relevant proposed alterations to the CFMEU’s eligibility rules that affect both parties before 1 January 2034.

See the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamation) Bill 2024 here, and the Explanatory Memorandum here.

FAIR WORK OMBUDSMAN ACTIVITY

In the last fortnight, the Fair Work Ombudsman (FWO) has reported the following regulatory activities:

• More than $760,000 recovered for 379 underpaid food outlet employees in Perth following surprise inspections. Inspectors investigated 46 businesses in the fast food, restaurant and café sector. Of the 41 investigations that were finalised, 38 were considered to have breached various workplace laws, including failure to pay penalty rates, failure to pay the correct minimum wage and failure to provide minimum leave entitlements. See report here.
• Enforceable Undertakings for ACUG NSW and ACUG SA container unloading businesses. The FWO investigation found that casual employees were not being paid by the hour, but were instead receiving a piece rate based on the number of containers unloaded. There were further issues regarding compliance with the minimum engagement hours and waiting times under the Road Transport and Distribution Award 2010 and 2020, as well as record keeping issues. The total backpay paid to employees was approximately $149,000 to nearly 1000 employees. See report here
• $108,980 in court ordered penalties against the CFMEU and three of its officials for unlawful conduct at a construction site. The Court found that the union officials engaged in conduct that was “needlessly obnoxious and rude”, “inherently aggressive”, “potentially dangerous” and “wildly improper”. One of the officials blocked three concrete trucks from working. See report here.
• $6,000 court ordered penalty against a former director who was the sole director of an telecommunications company which failed to comply with a Compliance Notice. See report here.