by theladEmployment Law: Casual Conversion from 1 October 2018
What happened?
On 1 October 2018, a significant change to the majority of modern awards came into effect. This change, referred to as ‘casual conversion’, affects most employers across Australia, including those operating in the hospitality and retail industries.
In short, casual conversion provides a pathway to casual employees, who, if certain criteria are met, may be entitled to convert their employment status from casual to part-time or full-time.
How does it work?
Broadly speaking, casual conversion allows casual employees whose employment is ‘regular’ to request that their employer convert their casual employment to part-time or full-time employment.
For an employee to satisfy the requirement that their casual employment is ‘regular’, they must have worked the equivalent of 38 hours per week (i.e. full-time equivalent) over the preceding 12 months.
For an employee who has worked less than 38 hours per week over the preceding 12 months, they may request to have their casual employment converted to part-time employment, based on the equivalent hours they have worked.
Any casual conversion request from an employee must be made in writing.
Can an employer refuse the casual conversion request?
Yes, an employer may refuse a casual conversion request.
However, refusal must be based on reasonable grounds. Furthermore, the employer must consult with the employee on their decision.
Reasonable grounds may include the following:
- That casual conversion would require a significant adjustment to the casual employee’s hours of work.
- It is known or reasonably foreseeable that the casual employee’s position will cease to exist within the next 12 months.
- It is known or reasonably foreseeable that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months.
- It is known or reasonably foreseeable that there will be significant change in the days and/or times at which the employee’s hours of work are required to be performed in the next 12 months.
Should the employer refuse an employee’s casual conversion request, such refusal must be communicated to the employee in writing, within 21 days of the casual conversion request being made.
Should the employer and employee not see eye to eye on the casual conversion request, the matter may be referred to the Fair Work Commission under the relevant dispute resolution clause in the applicable Modern Award.
Should an agreement on casual conversion be reached, such an agreement must be reduced into writing, and also record the new form of employment (i.e. part-time or full-time).
What should I do now?
An update to a Modern Award (such as this) presents a great opportunity to review your business’s employment policies and procedures.
Ensure you know if a Modern Award applied to your business and employees. If one does apply, familiarise yourself with its terms.
If you have casual employees, make sure you provide them with a copy of the casual conversion clause by no later than 1 January 2019.
Most importantly, should an employee request casual conversion, don’t assume such conversion will be detrimental to your business. Consider the upsides, such as greater employee engagement.
Should you not be able to accommodate a casual conversion request, seek professional advice first, to ensure that your reasons for refusal are clear and comply with the relevant Modern Award.
Finally, remember that the requirement to consult your employee does not simply mean communicating your decision. Rather, consultation requires you to take the time to sit down with your employee and discuss with them, openly and frankly, your views and concerns on casual conversion. Likewise, you must also listen to, and consider, the views and concerns of your employee.
How Can DSA Law Help?
If you are seeking advice regarding employment law and believe you could benefit expert legal assistance, please Contact Us or one of our Employment Lawyers at DSA Law on (03) 8595 9580.
by theladCommon misconceptions about Wills
Do I need a Will?
This is one of the most common questions asked by our clients (other than “will I win?”). Generally speaking, we find that people are evenly split on this issue, with half thinking a Will is a good idea, and the other half not.
For those who consider a Will to be unnecessary, such perception is usually based on assumptions that only wealthy people need a Will, or that if somebody dies without a Will, the estate will always go to the deceased’s domestic partner.
For many of those who believe having a Will is a good idea, a large cohort of them consider a standard ‘will kit’ to be as effective as a professionally drafted Will.
In short, these assumptions are false – everybody needs a Will, and every Will should be professionally drafted by a lawyer.
Don’t only wealthy people need a Will?
No. Everybody needs a Will.
While you may not consider yourself wealthy today, you cannot predict the future. What if you land that big promotion? What if you inherit money yourself?
Additionally, people can sometimes die unexpectedly in a way that results in compensation or insurance funds being paid out to a deceased person’s estate.
Furthermore, most superannuation schemes have life insurance (or a like policy) included as part of their fund membership, which can also result in large payments to an estate.
Won’t my estate go to my domestic partner?
Ordinarily, yes. But not always.
Each state has their own intestacy laws (when someone dies without a Will they die intestate). For example, in Queensland, only the first $150,000.00 goes to the deceased’s domestic partner, with a remaining portion going to any surviving children. This sometimes leads to unfortunate situations where the domestic partner must hold money on trust for small children, resulting in that money being quarantined and not available for general household use.
Equally, you may decide that you want to gift part of your estate to somebody else, such as a friend, a sibling, or even a charity. More often than not, intestacy laws will not accommodate such gifts.
Why put your faith in the intestacy laws when you can decide for yourself where you would like your estate to go?
Can I use a Will kit?
This is a question we hear everyday – why pay a lawyer when I can use a Will kit?
Beware! Will kits vary dramatically in quality, from the ‘just OK’ all the way down to the absurd (why does this Will kit not allow me to nominate an Executor?)
Not only can the quality of the Will kit cause problems, but so too can the person who is completing it. It is not uncommon to discover that a Will, completed by a recently deceased, was filled out incorrectly, or not executed properly. This can cause problems for the surviving family, as time and money if often then spent trying to determine the true intentions of the deceased, or explaining to the Court why the Will was not executed properly.
It’s not worth the risk
You’ve worked hard to build up your wealth. Wouldn’t you prefer to decide where it goes?
Having your Will drafted by a lawyer will help ensure your wishes are properly reflected in your Will. Additionally, a professionally drafted Will can help prevent legal challenges to your estate.
How Can DSA Law Help?
If you are seeking advice regarding Wills and believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.
by theladHow to avoid an unfair dismissal claim
Do you operate or manage a business? Are you considering terminating an employee because they are causing you grief by always arriving late, or just not competing their work to the high standard you require? Be careful about an Unfair Dismissal Claim.
Then, you should exercise a high degree of care if you do choose to terminate that employee. Otherwise you may run a serious risk of being on the receiving end of an expensive Unfair Dismissal Claim.
Serious misconduct
Serious misconduct is conduct that is considered sufficiently serious to warrant immediate dismissal, without the provision of notice. The Fair Work Act defines serious misconduct as:
“….an employee deliberately behaving in a way that is inconsistent with continuing their employment.”[1]
Therefore, serious misconduct can include theft, fraud, violence, or a serious breach of occupational health and safety laws. [2]
Should you believe an employee has engaged in serious misconduct, we recommend you seek professional advice first, as the boundaries of what may be considered serious misconduct are often blurred.
Don’t forget, even though an employee may have committed serious misconduct, they are still entitled to their employment entitlements, such as annual leave and long service leave. [3]
What if the employee has not engaged in serious misconduct?
A high degree of caution must be exercised where an employee has not engaged in serious misconduct. [4]
While certainly not intended to be a definitive guide, the following may assist you in reducing the likelihood of being on the receiving end of an unfair dismissal claim:[5]
- Do you have a valid concern about the employee’s capacity or conduct in the workplace?
A valid reason will be well-founded, defensible and not spiteful or fanciful, and related to the employee’s capacity or conduct. Dismissing an employee for a reason not related to their capacity or conduct is often a guaranteed way get yourself before the Fair Work Commission.
- Have you adequately warned the employee about your valid concern?
Putting your employee on notice about your valid concern is absolutely critical to ensuring any subsequent dismissal is fair. How can an employee be expected to improve their capacity or conduct if they are not aware of your concern? In addition, rather than simply handing your employee a warning letter, consider sitting down with them to discuss, in a non-confrontational manner, your concerns.
- Have you notified the employee that they could be terminated, should they fail to improve their capacity or conduct?
It goes without saying that people should be told the risk their capacity or conduct poses to their continuing employment. Being open and straightforward with your employee about this is often the deciding factor in whether any subsequent dismissal was fair.
- Have you given the employee sufficient time to improve their capacity or conduct?
Generally speaking, this is a matter of common sense, as people should be allowed a reasonable opportunity to rectify their poor performance and improve. How much time you should give an employee to improve their performance will be dependent on the duties they perform and what, in particular, needs improvement.
What happens next?
You should only consider proceeding with the termination of an employee once you have satisfied the above requirements and the employee’s capacity or conduct has not improved. [6]
Importantly, if you are a Small Business Employer (you employ fewer than 15 people), we recommend you read and follow the Small Business Fair Dismissal Code Checklist. [7] Doing so may further reduce the risk posed by any subsequent unfair dismissal claim.
Even armed with this information, we recommend employers still seek legal advice, prior to terminating an employee. Every workplace and employee is different, and every termination requires a targeted and bespoke approach.
How can DSA Law help?
If you have an employment law issue or are being unfairly treated and believe you could benefit expert legal assistance, please Contact Us or one of our Employment Lawyers at DSA Law on (03) 8595 9580.
[1] Fair Work, Dictionary <https://www.fairwork.gov.au/Dictionary.aspx?FirstLetter=s>.
[2] Fair Work Regulations 2009 (Cth) reg 1.07.
[3] Fair Work Act 2009 (Cth), s 61(2).