Employment law is rapidly evolving, and it is important to keep abreast of the changes to minimise risk. In this article we update you on two changes impacting your Practice: new rules for calculating overtime rates for casuals, and importantly, the introduction of wage theft laws.
New Casual Rates
The Health Professionals and Support Services Award was totally updated in June 2020. The overtime rates for casuals have recently been updated again, effective 20 November 2020. If your casuals work in excess of 38 hours per week or 76 hours in a fortnight, or more than 10 hours a day, they are entitled to overtime calculated as follows:
- Monday to Saturday, 187.5% of the minimum hourly rate for the first 2 hours and 250% of the minimum hourly rate after 2 hours
- Sunday, 250% of the minimum hourly rate
- Public Holidays, 312.5% of the minimum hourly rate
As a simple example, if your level 5 casual Receptionist works 43 hours over Monday to Friday, then 5 hours will comprise overtime. If he/she is on a casual rate of $29.85 ($23.88 minimum rate plus 25% casual loading), then you need to pay $44.78 per hour for the first 2 hours of overtime and $59.70 per hour for the remaining 3 hours of overtime. Put simply, you calculate the above amounts on the minimum rate (the 25% casual loading is already included).
The overtime rates for full-time and part-time employees are unchanged.
This rule is effective 20 November 2020, and we suggest you review your pays to ensure from this date, casuals have been paid correctly. For assistance on classifications or the interaction of overtime/penalty rates, please contact us [email protected].
Criminalising Wage Theft
As to wage theft laws, governments at both a state and federal level are currently in support of introducing criminal laws to penalise employers for deliberately underpaying employees. We expect this to be formalised at a national level in 2021, but as at now, Victoria and Queensland have already taken steps to criminalise wage theft. The Victorian legislation for wage theft is expected to take effect on 1 July 2021.
In Victoria for example, the maximum penalties for dishonestly withholding employee entitlements, falsifying (ie making a record that is misleading, false or deceptive) or failing to keep employee entitlement records to dishonestly obtain a financial advantage are $991,320 for bodies corporate and 10 years’ imprisonment for individuals. In Queensland, employers found guilty of deliberate wage theft can be subject to imprisonment of up to 10 years and 14 years when fraud is involved.
Incidentally, the existence of a criminal record could pose a risk to a professional’s right to practise so compliance cannot be understated.
While there are defences of honest mistakes, we expect the filing of a claim and participation in the process would cause emotional and financial pain to many practitioners. Therefore prevention is important.
We strongly suggest you review your contracts to ensure you have written ones in place, you have correctly classified employees and have addressed their entitlements (such as allowances and leave loading etc which can often be missed). Taking all reasonable steps to inform yourself and comply will likely be favourably regarded by a regulator.
Finally, for employers there is some good news on the horizon. The government is currently introducing new workplace laws to amend the Fair Work Act to provide for greater flexibility and clarity. In our next update we will outline some of the anticipated changes and benefits. However, any changes are not likely to come into effect until well into 2021 so should not be relied upon now.
To read our prior updates, including on the new June 2020 Award please see https://www.clinlegal.com.
If you are an employer and have any questions please email us [email protected].
Please note the laws are evolving and may change in the coming days and weeks. The above information is current as at the date of publication and is based on information made publicly available. It is important to stay appraised of any developments or changes. This Circular is produced for guidance purposes only and is not a substitute for legal advice. Legal advice should be sought for individual circumstances. For tailored advice for your Practice, please contact us for a confidential discussion:[email protected].