Schools Alert

At press time, the website of the World Health Organisation (WHO) had listed 39 countries that have reported a total of 8,480 confirmed cases of H1N1 Influenza 09 (Human Swine Influenza or Swine Flu). One case has been reported in Australia. There have been deaths in four countries – 66 in Mexico, four in the United States, and one each in Canada and Costa Rica. The WHO has suggested that up to two billion people could be infected if the current outbreak turns into a pandemic lasting two years.

In the following article, Cormack Dunn of Baker & McKenzie Lawyers (cormack.dunn@bakernet.com), discusses the nature of the virus and its OHS implications for employers. The article is followed by some guidelines for principals for managing the virus in the school environment.

Actions to manage exposure to H1N1 Influenza 09

In the first week of May the WHO raised the global pandemic-alert level to Phase 5, which is a strong signal that a pandemic is “imminent”. ¹ The WHO also advised that the Southern Hemisphere may be most at risk as it is entering the winter months, which is the period when influenza is known to be most prevalent.

Within Australia, state and commonwealth health agencies have begun to introduce a number of measures to prevent and control the introduction of the virus into Australia. These measures have been introduced in accordance with the Australian Health Management Plan for Pandemic Influenza (AHMPPI) 2008. These measures include:

What is it and how is it transmitted?

The virus is a highly contagious respiratory disease of pigs, caused by one of several Swine Influenza A Viruses. ²The virus is spread among pigs by aerosols, direct and indirect contact, and asymptomatic carrier pigs. The virus can be directly transmitted from pigs to people. Human infection is most likely to occur when people are in close proximity to infected pigs, such as in pig barns and livestock exhibits housing pigs at fairs.

What are the symptoms?

The symptoms of Swine Flu in people are similar to the symptoms of regular human influenza and include:

In the past, severe illness (such as pneumonia and respiratory failure) and deaths have been reported in people infected by the virus. Like seasonal flu, the virus may also cause a worsening of underlying chronic medical conditions. ⁴

Is there any available treatment?

There are no vaccines to prevent humans from contracting the virus and it is unknown whether existing human seasonal influenza vaccines may provide any protection.

In the absence of human vaccines, there are medicines available to treat people. The WHO and CDC recommend the use of oseltamivir (Tamiflu ®) or zanamivir (Relenza ®). ⁵

Antiviral drugs are prescription medicines (pills, liquid or an inhaler) that fight influenza by keeping it from reproducing in the body. ⁶Antiviral drugs may reduce serious complications as well as making the illness milder so that the patient will feel better faster. ⁷

For treatment, antiviral drugs should only be used if started soon after getting sick (within two days of symptoms). ⁸

What are the OHS implications?

Under Australian state and territory OHS legislation, employers and persons in control of a workplace have an obligation to ensure that they take all reasonably practicable steps to ensure that peoples’ health is not put at risk whilst at the workplace.

This obligation is likely to extend to include the risk to health arising from people at the workplace being exposed to the virus.

Accordingly, organisations may need to take appropriate precautions to ensure that employee’s health is not put at risk from the virus while they are at work.

What precautions are currently necessary?

In light of the WHO’s upgrade to a Level 5 Pandemic Alert, individuals and organisations should be aware of precautionary measures that may need to be taken in the near future.

What other precautions may become necessary?

Should more cases of the virus be reported within Australia, organisations should consider adopting additional precautions, such as:

For updated information about the virus, please regularly check the following websites:

Responsibilities of schools

Education authorities around the country have provided policies and advice to school principals regarding appropriate action if they suspect a student at their school has developed Swine Flu. In addition, as workplace managers for OHS and injury management, principals are accountable for safety within their school. In general, education authorities are requiring principals to take the following measure:

New Commonwealth Health Hotline

The Department of Health and Ageing has established a new, national hotline for the public to receive health information about the outbreak overseas of H1N1 Influenza 09 (Human Swine Influenza). The number is 180 2007.

Footnotes
1	WHO at www.who.int/csr/disease/avian_influenza/phase/en/index.html
2	Centers for Disease Control and Prevention Swine Flu Questions and Answers Sheet, 28 April 2009
3	Centers for Disease Control and Prevention, 28 April 2009
4	Ibid
5	Centers for Disease Control and Prevention 28 April 2009; World Health Organisation Swine Influenza Frequently Asked Questions
6	Centers for Disease Control and Prevention, 28 April 2009
7	Ibid
8	Ibid

NEWS

Boy dies after school awning fall

A 13-year-old boy died after falling from a shade sail at a primary school at Hastings, south-east of Melbourne on 9 March 2009. Police say the teenager was on the sail with a group of friends celebrating winning a cricket grand final when it gave way. Another boy, a 14-year-old, sustained serious head injuries, while a third boy received minor injuries. Ambulance officers initially had trouble reaching the injured children because the school was locked. Parents of the boys brought bolt cutters to the school to try and get access to the boys. They performed CPR on the dead boy. The other children were taken home after the accident, but reported injuries hours later and were taken to hospital.

Teacher bullying is rife

Researchers from the University of New England have found that almost all teachers have been bullied in the workplace, often by senior staff or the principal. The findings were made in a national survey of 800 school staff members from government and non-government primary and secondary schools. 99.6% of the surveyed group had experienced one or more of 44 types of bullying.

The most persistent bullies identified were the school executive staff, followed by the principal, with the typical victim being a classroom teacher. 44 types of bullying were listed in the survey, including:

Disabled have right to play sport

The United Nations Convention on the Rights of Persons with Disabilities was the first UN Treaty of the 21^st century. Both Australia and New Zealand signed the convention on 30 March 2007 in a formal opening ceremony for the convention. Subsequently, on 18 July 2008 Australia ratified the convention, joining 29 other countries around the world in a move that aims to ensure that persons with disabilities enjoy human rights on an equal basis with others.

Article 1 of the convention states that the purpose of the convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedom for all persons with disability, and to promote respect for their inherent dignity.

Of relevance to sport is Art 30 of the convention which deals with “participation in cultural life, recreation, leisure and sport”. Article 30.5 calls on participatory states to take appropriate measures to enable persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities and to that end requires them to take appropriate measures:

Ratification of the convention means that it is now part of our laws, putting schools and sporting bodies on notice that greater integration of persons with disabilities into sporting life is to be expected in the future.

LEGISLATION

First of two transitional IR Bills (Cth)

The Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009, which was introduced in the federal parliament on 19 March 2009, amends the Fair Work Bill 2008, the Administrative Decisions (Judicial Review) Act 1977, the Federal Magistrates Act 1999, the Federal Court of Australia Act 1976 and the Workplace Relations Act 1996.

It is the first of two Bills which make transitional and consequential provisions in relation to the new federal workplace relations system set out in the Fair Work Bill 2008. Specifically, it:

A second Bill will deal with consequential amendments to other Commonwealth legislation and amendments consequential on state referrals of power.

Disability discrimination changes (Cth)

The Disability Discrimination and other Human Rights Legislation Amendment Bill 2008 will amend the Disability Discrimination Act 1992, the Age Discrimination Act 2004 and the Human Rights and Equal Opportunity Act 1986.

The Bill provides certainty for people with assistance animals and service providers by recognising animals accredited either under a state and territory law or by a relevant organisation, and by clarifying each party’s obligations.

School leaving age raised (NSW)

The Education Amendment Bill 2009 passed the Legislative Assembly on 2 April and was introduced into the Legislative Council on 5 May.

The object of the Bill is to insert proposed s 21B into the Education Act 1990 so as to change the current school leaving age of 15 years by requiring children:

Participation in approved education or training includes an apprenticeship, a TAFE or other vocational course or a university course.

“Risk of harm” reporting threshold raised (NSW)

The Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 (Act 13/2009) amends various Acts and other legislation to give effect to recommendations in the Report of the Special Commission of Inquiry into Child Protection Services in NSW (the Wood Report).

In particular, the Bill amends the Children and Young Persons (Care and Protection) Act 1998 to raise the “risk of harm” reporting threshold so that a child will not be reported to the Director-General of the Department of Community Services (DoCS) unless the circumstances that are causing concern for their safety, welfare or wellbeing are present to a significant extent.

The Bill also extends the circumstances when a child or young person is at risk of significant harm to include the situation when they are not receiving an education as required by the Education Act 1990. It also provides alternative mandatory reporting arrangements whereby children at risk of significant harm may initially be assessed within the reporter’s agency instead of being reported directly to DoCS.

Employee protection when query conditions (Vic)

The Equal Opportunity Amendment Act 2007, which commenced on 31 March 2009, amended the Equal Opportunity Act 1995 and seeks to provide further protection to Victorian employees where they make a reasonable request as an individual to their employer for information about their employment entitlements or communicate concerns to their employer about whether they have been, are being or will be given their employment entitlements. The amending Act inserts into the principal Act a new attribute of employment activity on the basis of which discrimination is prohibited. The attribute of employment activity is defined to describe the actions of the employee in asking reasonable questions or communicating concerns about their employment entitlements.

Under this amendment, direct discrimination may occur if an employer treats or proposes to treat an employee with the employment activity attribute less favourably than the employer treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

An employer must not discriminate against an employee by, amongst other things, dismissing the employee, denying or limiting the employee’s access to benefits connected with his or her employment, or by subjecting the employee to any other detriment. However, for a direct discrimination complaint to succeed, the employee’s employment activity must be a substantial reason for the less favourable treatment.

An employer may also indirectly discriminate against an employee by imposing an unreasonable condition, requirement or practice that someone with the employment activity attribute cannot comply with and that a higher proportion of people without the attribute can comply with. In determining whether or not a person discriminates, the person’s motive is irrelevant.

The amendment also provides that an employer may be vicariously liable for a contravention of the Equal Opportunity Act 1995 by a person in the course of employment or while acting as an agent of the employer.

An employee must make their complaint to the Australian Industrial Relations Commission in writing. The commission may decline to entertain a complaint for a number of reasons, including on the basis that it considers the complaint to be frivolous, vexatious, misconceived or lacking in substance. If the commission considers it reasonably possible that a complaint may be conciliated successfully, the commission must refer the complaint for conciliation. If conciliation of a complaint is inappropriate or unsuccessful or if the commission declines a complaint, the complainant may require the commission to refer the complaint to the Victorian Civil and Administrative Tribunal for hearing.

Gay teachers can be refused jobs in church schools (SA)

Religious schools in South Australia will be able to continue to refuse employment to gay teachers under the Equal Opportunity (Miscellaneous) Amendment Bill 2008.

The Bill replaces a controversial 2006 Bill, following nearly three years of debate and intense behind-the-scenes negotiations between Labor and the Opposition. The original Bill required church schools wanting an exemption to discriminate on the grounds of sexuality to lodge a copy of their policy with the Equal Opportunity Commissioner and make it available to current and prospective staff, students and parents. Now, the Bill as passed by the Upper House only requires a written policy made available to applicants for positions in the school, or made available to current or prospective staff, parents and students, and other members of the public on request.

As well, church schools will retain the right to prevent students from a non-Christian religion from wearing the dress, such a burka, or adornments of that religion, at school. Instead, employers will be allowed to set “reasonable” standards of workplace dress.

The Bill was passed by the Legislative Council with the support of Liberals, Family First and No Pokies members.

IN COURT

Principal wins damages for unfair dismissal

The Supreme Court of Victoria (the SCV) has ruled that a school principal was entitled to damages for multiple contractual breaches after her employment was unfairly terminated.

The principal, who ran a Catholic secondary school within the Archdiocese of Melbourne, was summarily dismissed after she lost the faith of her employers, the Association of Canonical Administrators (the ACA). At the time she was provided with six months’ pay in lieu of notice.

It was later accepted that this dismissal was wrongful because under the terms of her contract of employment, the principal was entitled to work out her notice period.

In accordance with another term of her contract, the dispute went to an arbitrator for a finding on whether or not damages should be awarded for breach of contract.

The arbitrator awarded damages for loss of opportunity, breach of the duty of mutual trust and confidence, and disappointment and distress.

The ACA appealed against each of these awards. The principal also appealed, claiming she was entitled to “reasonable notice” on termination and not just the six months provided for in her contract of employment.

The SCV dismissed each of these appeals, and upheld the arbitrator’s findings.

In upholding the arbitrator’s award for loss of opportunity, the SCV observed that damages had been awarded on the ground that it would have been easier for the principal to find alternative employment had she remained employed by the ACA. This was an award of damages for breach of contract in accordance with ordinary compensatory principles.

The SCV observed that the common measure of damages for a breach of this kind was the sum of money representing the remuneration that the employee would have earned during the period of notice less any sum actually earned. However, further loss could be recoverable if it arose from the breach and on this occasion the arbitrator had made an award based on the particular circumstances of the case.

The SCV noted the arbitrator’s ruling that the ACA had breached its duty of trust and confidence to the principal arose from the ACA’s failure to provide her with an opportunity to respond to all material received by a committee reviewing her conduct, as well as a failure to advise her that the committee’s findings may lead to her dismissal.

The SCV ruled that the ACA’s only argument to counter this finding amounted to an insistence that the common law provided no implied contractual obligation to provide an employee natural justice and procedural fairness. This was not sound as a matter of logic.

The SCV also ruled that it was unsurprising that the flow-on effect of this breach of mutual trust and confidence led to the principal suffering distress and disappointment to the extent that it affected her physical and psychological wellbeing.

Finally, the SCV also ruled that the principal’s argument that she was entitled to “reasonable notice” was at odds with the construction of her employment contract as a whole and that the six months she was paid in lieu of notice was adequate.

TAX

Payroll tax exemption for schools (Tas)

The State Revenue Office of Tasmania has issued Revenue Ruling PTA032 which explains the operation of the payroll tax exemption in Tasmania for wages paid by certain schools, colleges and group training organisations. The exemption is contained in the Payroll Tax Act 2008 (Tas) which commenced on 1 July 2008.

Self-education expenses deductible

The Federal Court has held that self-education expenses were deductible against Youth Allowance income.

During the 2005/06 year, the taxpayer was enrolled as a full-time student undertaking a teaching degree. In her tax return for that year, the taxpayer declared that she had received $14,946 from working as a part-time sales assistant, as well as Youth Allowance of $3,622. She did not declare the receipt of any income from having worked as a teacher.

To be eligible for and to continue to receive Youth Allowance under the Social Security Act 1991, the taxpayer had to be:

The issue was whether the taxpayer, as a recipient of Youth Allowance, was entitled to deduct self-education expenses of $920 under s 8-1(1)(a) of Income Tax Assessment Act 1997. These consisted of travel expenses other than to university, supplies for children during teacher rounds, student administration fees, depreciation of computer, and textbooks and stationery.

The court held that it was sufficient if the claimed expenditure was incurred “in the course of” gaining or producing the taxpayer’s assessable income. It said that the various eligibility and qualifying requirements for Youth Allowance could not be satisfied otherwise than by enrolling in an educational institution, undertaking the course for the necessary proportion of the normal amount of full-time study and (in the Secretary’s opinion) making satisfactory progress towards completing the course. If those requirements could only be satisfied by the expenditure of money, then that expenditure was incurred in gaining or producing the Youth Allowance within the meaning of s 8-1(1)(a). That the taxpayer’s ultimate purpose or motive in undertaking the course was to acquire a qualification leading to future employment as a teacher was irrelevant to the characterisation of the expenditure. It was sufficient that the expenditure was incurred as a necessary incident of deriving the Youth Allowance.

INDUSTRIAL RELATIONS

Future prospects under the Fair Work Act 2009

The Fair Work Act 2009 represents a landmark piece of labour law in Australian industrial relations history. These reforms built on the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008, which started the process of dismantling the Howard Government’s Work Choices reforms.

Arguably, while Work Choices pushed the boundaries of industrial relations reform to unacceptable limits for the trade unions and for many Australian voters at the last election, these Forward with Fairness reforms set a framework and agenda for workplace relations for the coming decades.

Significantly, it replaces institutions that the union movement and the Labor Party have traditionally seen as essential in providing a fair and balanced industrial relations system. The Fair Work Act replaces the Australian Industrial Relations Commission which has governed industrial relations for more than a century with Fair Work Australia (FWA). There is also a new emphasis on informal resolution of some disputes through a newly created Fair Work Divisions in the Federal Court and Magistrate’s Court. This new division will be able to make any order “appropriate” and “not be bound by the rules of evidence”.

Also significant is the departure from Labor’s traditional industrial relations platform through the removal of arbitration to resolve disputes (aside from in exceptional circumstances) and, with their agreement, the exclusion of workers earning over $100,000 from award coverage.

Perhaps most importantly, incorporating an unprecedented degree of consultation with both unions and employers, the Fair Work Act represents a finely balanced work of art in diplomacy and compromise to build on Labor’s Forward with Fairness agenda. However, like any compromise, not everyone will be satisfied with aspects of these reforms.

For unions, the Fair Work Act presents greater opportunities to influence wage negotiations and increase its presence in the workplace. This includes those workplaces that are currently non-union through increased union rights to entry and, under certain conditions, union access to employee records. The Fair Work Act will also place unions at the centrestage in Australian industrial relations, offering greater collective bargaining rights through “good faith bargaining” and potential avenues for arbitration for low income workers.

FWA may arbitrate in limited circumstances when bargaining is causing negative or dangerous impacts, or is threatening or causing significant economic harm to the bargaining parties.

Importantly for unions the re-emergence of “modern” awards as a benchmark for collective bargaining (including the National Employment Standards) and regular four yearly reviews of minimum terms and conditions will increase union input into the process of wage determination.

An interesting and surprising aspect of the Fair Work Act, and what some commentators argue as contrary to what was stated in Forward with Fairness proposals, is that there is no distinction between a union and non-union agreement, although a union can apply to FWA to be a signatory to an agreement. Workplace Relations Minister Julia Gillard indicated in parliament that:

For the purposes of “good faith bargaining” under the Fair Work Act, if an employer refuses to bargain with its employee, an “employee bargaining representative” (normally a union) can ask FWA to determine majority support to require an employer to bargain in good faith (although not necessarily make concessions). Under the Act, a valid majority of employees will be determined by FWA and “may work out whether a majority of employees want to bargain using any method FWA considers appropriate”. This aspect potentially signals a degree of inconsistency in how a majority is determined by the FWA.

As outlined in Forward with Fairness, all employees will now be covered by unfair dismissal provisions. However, those employed by an organisation with fewer than 15 people must be employed for at least a year before they are eligible for unfair dismissal protection. Those employees who work for larger firms will need to wait for six months.

However, perhaps the real concern for business will be the role of enterprise bargaining under the Fair Work Act. Despite the way the debate has been couched by the government, the new industrial relations reforms go far beyond their promise to “tear up Work Choices”. While Ms Gillard has praised the benefits of the Fair Work reforms in terms of promoting enterprise bargaining, the Fair Work Act may well end up having the opposite effect, and could harm the future prospects of economic recovery.

Many people thought Work Choices went too far in swinging the pendulum in favour of employers. However, the Fair Work Act goes much further in re-regulating the labour market than the Forward with Fairness proposals the Labor party took to the last election. Not only have statutory individual agreements been abolished, but the Fair Work Act may well reduce, rather than encourage, genuine enterprise bargaining.

Firstly, it dramatically limits the scope for non-union bargaining. Since 1993, there have been no specific provisions for non-union agreements. While technically all agreements (apart from Greenfield Agreements) are made with employees, any union where an employer wishes to negotiate an enterprise agreement has virtually an automatic right to be involved in the negotiations. Not only does the employer have to talk to the union — it has to bargain “in good faith”, which means, for example, providing reasoned responses to every proposal made by the union.

This situation could occur where only one employee in a workplace is a member of the union. While it is not spelt out in the legislation, it is also likely that the union would have the ability to make submissions to FWA about whether the agreement should be approved. The scope for union involvement — even where the overwhelming numbers of employees are not members — is likely to act as a very strong deterrent to engaging in enterprise bargaining for many employers.

Complications may also arise in relation to the bargaining process in enterprise agreements. The Fair Work Act states that each employee may appoint their own bargaining representative, which may not necessarily be a union. The complex negotiations that would be required with multi-bargaining agents and multiple unions could deter the employer from attempting to make an enterprise agreement.

Another provision in the Fair Work Act that has so far received little attention is the green light given to multi-employer agreements. Multi-employer agreements have technically been available since the introduction of enterprise bargaining by the Labor Government in the early 1990s. However, there are provisions in the legislation that put special hurdles in the way of such agreements, for example, by ensuring that they are only approved when they are in the public interest.

Those restrictions are removed in the Fair Work Act. There is little to stop employers in industries, such as transport and construction, from taking wages out of competition by making ineffective industry level deals and having these processed as a multi-employer “enterprise” agreement.

While Ms Gillard has repeatedly insisted the reforms would prohibit “pattern bargaining”, in reality there is little to stop a union mounting an “enterprise bargaining” campaign that leads to a settlement involving a multi-employer agreement.

Other provisions in the Fair Work Act allow greatly increased scope for arbitration by FWA, particularly for low paid workers who are not adequately defined under the Act. Potentially, this further increases the scope of those employees covered by arbitration in the labour market.

We need to forget about comparisons with Work Choices and start debating the specific provisions and implications of the Fair Work Act since it will set the framework for industrial relations in this country for many years to come.

Although the Rudd Government has promoted enterprise bargaining as a way forward in producing greater efficiency gains, in practice these reforms may well undermine future increases in workplace productivity.

Without proper clarification, the Fair Work Act potentially represents an enterprise bargaining “can of worms”, which in these uncertain times could harm future productivity growth and Australia’s economic recovery.

Dr Paul J Gollan is an associate professor, Department of Business, Macquarie University and an associate fellow in the Employment Relations and Organisational Behaviour Group at the London School of Economics.

The NES: what will employers have to do?

The 10 National Employment Standards (NES) in the Fair Work Bill 2008 take effect in just over a year’s time, on 1 January 2010. Unlike the provisions in modern awards, which apply only to workers earning under $100,000, the NES will constitute a safety net that all national system employers will have to abide by, irrespective of an employee’s salary.

The NES expand significantly on the five minimum standards contained in the Australian Fair Pay and Conditions Standard (AFPCS). Unlike the AFPCS, however, they do not deal with minimum wages. This is a matter that will be covered in modern awards. As Workplace Relations Minister Julia Gillard explained at a press conference following the introduction of the Fair Work Bill:

“If you earn less than $100,000 that safety net is your award and the National Employment Standards, and if you earn more than $100,000 it’s the National Employment Standards.”

Maximum weekly hours of work

The NES provide for a maximum of 38 ordinary hours of work for full-time employees. This is the same as the maximum hours under the AFPCS.

Employers can ask an employee to work more that 38 hours, either through a direct request or by implication (eg because work cannot be completed unless additional hours are worked). Such a request must be reasonable.

Hours can still be averaged; the NES do not limit the period over which hours are averaged if done via a modern award or enterprise agreement. If an employee is not covered by a modern award or enterprise agreement, then hours can only be averaged over a six-month period. Under the AFPCS, hours could only be averaged over a 12-month period.

Unlike averaging agreements under the AFPCS, additional weekly hours worked because of an averaging arrangement will be subject to a reasonableness test.

Reasonableness will depend on circumstances, including, for example, an employee’s health and safety, their personal circumstances (including family responsibilities), the nature of the business, compensation payable for working extra hours (either extra compensation or a level of remuneration that reflects an expectation of longer hours), notice of the request, patterns in the industry and the employee’s role or level of responsibility.

Employers note: employees can be required to work additional hours, over and above the 38 hour maximum, either via averaging or by a request for extra hours, provided the arrangement satisfies a reasonableness test.

Requests for flexible working arrangements

This is a new entitlement, allowing parents or carers of children under school age to request a change in working arrangements to assist with the care of the child.

Employees must have worked for the employer for at least 12 months before making such a request, or must be long-term casuals with an expectation of ongoing employment.

The employee must make the request, setting out the change sought and the reasons, in writing.

The employer must respond in writing within 21 days. If the request is refused the employer must set out the reasons for refusing in a way that the employee can understand. The employer cannot simply refuse without explanation.

An employer can only refuse a request on reasonable business grounds including, for example, because of the effect a change would have on the business (ie financial, efficiency, productivity or customer service), an inability to organise work among other staff or to recruit a replacement, or the practicality of the request.

Employers note: a flexibility request can only be refused on reasonable business grounds. A refusal must be in writing and must explain, in a way that the employee can understand, why the request was refused.

Parental leave

Like the AFPCS, the NES provide for unpaid parental leave for full-time employees who have worked for an employer for at least 12 months and for long-term casuals with an ongoing expectation of employment. The leave is available to employees who will have responsibility for the care of the child.

The NES increase the total amount of unpaid parental leave (which includes birth-related leave and adoption-related leave) that an employee can request from 12 to 24 months. The terms “maternity” and “paternity” leave are not used.

Each parent can take up to 12 months’ unpaid leave (to run consecutively) or one parent can request up to 24 months’ leave. Leave has to be taken in a single continuous period. An exception to the requirements that leave be taken in a continuous period, and that parents’ leave periods run consecutively, is an entitlement to a maximum of three weeks’ concurrent unpaid parental leave around the time of a child’s birth/adoption.

An employee can request up to an additional 12 months’ leave after the first 12-month period. The employee must give the employer at least four weeks’ notice. The employer must respond to the request within 21 days. An employer can refuse a request for an additional period of parental leave (after the first 12-month period) on reasonable business grounds. The employer must provide the employee with reasons for refusing.

Unlike the AFPCS, the NES specifically permit same-sex de facto partners to take parental leave.

Employees must give their employer 10 weeks’ written notice of the proposed parental leave start and end dates. An employee wishing to extend a period of parental leave must give the employer four weeks’ notice.

Employers note: each member of an employee couple can request to up to 12 months’ consecutive parental leave, or one parent can request up to 24 months’ leave to care for the child. The employer can only refuse a request for an additional 12 months’ leave on reasonable business grounds, which it sets out for the employee in writing.

Annual leave

Annual leave entitlements under the AFPCS and the NES are the same, ie four weeks annual leave.

However, the NES has made changes regarding the manner of accrual and the concept of service for the purpose of calculating the entitlement. Leave is accrued and paid according to the ordinary hours of work.

All employees, whether or not covered by modern awards or agreements, can cash out annual leave, provided an accrued balance of at least four weeks’ leave remains. An award or agreement can deal with cashing out. Where an employee is not covered by an award or agreement the employer and employee must agree to the cashing out. An employer cannot exert undue influence on an employee to cash out leave.

Employers note: annual leave is accrued and paid according to ordinary hours of work, and can be cashed out by an employee providing an accrued balance of four weeks’ leave remains.

Personal/carer’s and compassionate leave

Casual employees are not entitled to any paid leave but may be entitled to take up to two days unpaid personal/carer’s or compassionate leave at a time.

If there is a public holiday while an employee is on leave the employee is not taken to be on personal/carer’s leave on that day.

Personal/carer’s leave accrues at the rate of 10 days per year. The number of days paid carer’s leave that an employee can use is no longer capped at 10 days a year.

Leave can be cashed out under provisions in modern awards and agreements, but employees not covered by such instruments cannot cash out this leave.

Employers note: employees covered by modern awards or agreements can cash out leave, providing a minimum accrued balance of 15 days’ leave remains.

Community service leave

Employers must allow their employees to take unpaid leave for eligible community service activity, such as jury duty or voluntary emergency management.

Employers will have to pay full-time and part-time employees undertaking jury duty for a period of up to 10 days. They are to be paid at their base rate of pay of ordinary hours of work.

Employees currently rely on a range of state and territory legislation as well as award and agreement provisions for jury make up pay.

Employers note: employers are required to make up jury duty pay for full-time and part-time employees for up to 10 days.

Long service leave

Long service leave will continue to be regulated by state and territory legislation, awards and agreements as the government works towards a national system.

Pubic holidays

Both the NES and the AFPCS provide for payment when an employee is absent on prescribed public holidays.

Under the NES, an employer must pay an employee’s base rate of pay for ordinary hours that would have been worked on that day.

An employer can make a reasonable request that an employee work on a public holiday, and an employee can refuse on reasonable grounds. The reasonableness test is similar to the one applied in respect of additional weekly hours of work.

The Queen’s birthday holiday will be added to the list of prescribed public holidays. The list now includes the following eight days: 1 January (New Year), 26 January (Australia day), Good Friday, Easter Monday, 25 April (Anzac day), the Queen’s birthday (as per state or territory), 25 December (Christmas) and 26 December (Boxing day).

Employers note: the Queen’s birthday will be added to the list of prescribed holidays. A request to work on a public holiday will be assessed under the reasonableness test (which will include a consideration of the nature of the business, the employee’s personal circumstances and compensation for working on a holiday).

Notice of termination and redundancy pay

The NES set out the period of notice that an employer must give, based on length of service (from one week where an employee has up to a year’s service, progressing to four weeks’ notice where an employee has more than five years’ service).

An employer must give an employee who is older than 45 an additional week’s notice if the employee has worked for the employer for at least two years.

The NES set out the redundancy pay scale, providing for four weeks’ pay for employees with one to two years’ service progressing to 16 weeks’ for employees with nine to ten years’ service.

An employer does not have to pay any redundancy pay if it is classified as a small business (ie one with fewer than 15 employees) or the employee being made redundant has less than one year’s service.

Employers note: notice of termination must be given in writing. Redundancy payments must be made if an employee is redundant, unless the business employs fewer than 15 employees or the person has worked for the employer for less than a year.

Fair Work Information Statement

Employers will have to provide all new employees with a Fair Work Information Statement.

The Fair Work Information Statement will be drafted by Fair Work Australia and will contain information about the NES, modern awards, agreement making, freedom of association and the role of Fair Work Australia and the Fair Work Ombudsman.

Employers note: all new employees, but not existing employees, must be given a Fair Work Information Statement.

EDITORIAL BOARD

Schools Alert board

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