Changes to Modern Awards in 2020
The Commission is finalising its review of all Modern Awards, being a process that began in 2014. During this process, they’ve clarified how some award clauses work and changed other clauses. Other changes include re-arranging clauses, and the use of plain language.
Updated Awards are being implemented in three separate tranches, with the first tranche being implemented from the first full pay period on or after 4 February 2020 (i.e yesterday).
CLICK HERE to for more information about what has or is being changed – you should re-familiarise yourself with the newly implemented Awards that cover your employees when they are implemented (Tranche 1 Awards have now been implemented).
General Protection Claims – Don’t get stung
Under the law, an employer must not take adverse / negative action against an employee in connection with a workplace right of the employee.
For example, an employer cannot terminate, demote, or take any other negative action against an employee because the employee has taken a sick day, has informed the employer they are pregnant, has queried their overtime pay etc.
General Protection Claims have exploded since that law was introduced in 2009, and the main reasons for that type of action being the preferred avenue for aggrieved employees (or former employees) are as follows:
1. No need to complete Probation – An employee does not need to have served their 6 or 12 month probationary period in order to take action (you will note that this requirement is essential in unfair dismissal actions, but not these type of actions).
2. No need to be terminated – An employee does not need to be terminated in order to take action – a warning letter, demotion or transfer to a different position and / or location can be considered “adverse action” and allow the employee to make a claim.
3. Easy to allege breach – All an employee needs to do is allege two things: that the employer took adverse action against them, and that the action was taken into connection with a workplace right of the employee.
4. Reverse onus of proof – Once an employee makes the above allegation, the onus is then switched over to the employer to prove that it did not commit the breach – if the employer is unable to do this, the employee’s action against the employer will succeed.
5. Compensation is uncapped – If an employee’s General Protection Claim is successful, the employer could potentially be ordered to pay compensation in the tens or hundreds of thousands of dollars. In mid-2019, an employer was order to pay more than $200,000 compensation to a former employee who had filed a General Protections Claim (you will note that unfair dismissal matters have a compensation cap of approximately $75,000, whereas these actions are uncapped).
Another negative aspect of General Protection Claims is that they are pursued in the Federal Court of Australia, which will require an employer to retain legal representation to defend the action, which could cost the employer up to $100,000 in legal fees, and because costs are generally borne by each party, an employee will not generally be able to recover its legal costs from the employer or any other party if it succeeds in defending the matter.
As you can see, these type of actions have the potential to cripple any small and medium business – whether you win or lose.
The most effective shield against any action or potential action from an employee is to obtain early expert advice before you take any action.
