In this presentation to the GRDC Farm Business update in Tambellup, Western Australia, Pacer Legal’s Stephen Park outlines the importance of employers knowing and complying with their employment obligations.
AN EMPLOYEE turns the airwaves’ blue over the two-way radio and calls into question their upbringing.
You consider this undermines your authority with other employees, causes your neighbours some mirth and is a continuation of several performance issues that have emerged with this employee over a period.
So, this is the final straw and you consider it a sackable offence.
Not so fast!
Employers engage employees within a complex employment regime which has two fundamental components:
- A set of statutory rules which is designed to address a power imbalance between the employee and the employer and to enforce minimum standards of employee entitlements. This set of rules differs depending on which of the State or Commonwealth jurisdictions an employer is deemed to operate in.
- An occupational health and safety regime, whereby all employers are required to take all reasonably practicable measures to protect the safety and health of their employees.
- Regarding the statutory rules that apply, several considerations would need to be addressed and these are identified later in this paper when considering the two-way radio incident.
These considerations are irrespective of whether you are dealing with time sensitive operations; because as an employer you are always expected to maintain and manage the employment relationship in accordance with your Statutory obligations.
In this regard, farm business employers can be expected to be held to a high standard as there is an expectation that you have the resources, as a reasonably sized enterprise, to ensure compliancy with Statutory obligations and ignorance will not be excused.
To ensure compliance with the minimum standards of employment and to determine the set of rules which govern your employment relationship, you must identify the jurisdiction under which you engage your employee.
This must be determined as there are fundamental differences between the minimum standards that apply across jurisdictions and getting it wrong, can result in significant penalties and close examination by authorities of your employment practises.
If this sounds a little complicated and/or in the scheme of things, something that is better outsourced, I would recommend:
- Joining a professional body such as the Chamber of Commerce, which provides advisory services to members on the terms and conditions of employment;
- engaging consultants that are experienced in your industry and can provide guidance on the applicable minimum standards of employment and can assist in the preparation of employment contracts which comply with all statutory requirements; and
- contacting State and Commonwealth ‘Helplines’ for advice (discussion to follow).
Determining jurisdiction – Western Australian or Commonwealth
To determine the jurisdiction under which your engagement of employees will fall and the respective minimum standards of employment that will apply, you must consider what entity engages your employees.
Western Australia’s industrial relations system will have jurisdiction if you engage employees as a:
- Sole trader, i.e. L.A. Shuey t/a Norm Smith Enterprises; or
- Unincorporated partnership, i.e. A & J Simpson t/a Premier Farms; or
- Unincorporated trust arrangements, i.e. B. Sheppard atf The Livestock Trust.
The Commonwealth’s industrial relations system will apply if your business engages employees in an:
- Incorporated company (including employees employed through a Trust where that Trust has a corporate trustee); or
- Incorporated partnerships (i.e. includes a company as a partner, whether in its own capacity or as trustee of a trust); or
- Incorporated associations and other not for profit incorporated bodies.
- Once jurisdiction is determined, look to which relevant State or Commonwealth Act applies to the type of work that the employee does.
- Firstly, reviewing the minimum standards of employment legislation that applies in each jurisdiction; and
- Secondly, checking to determine for specific Act’s that apply to the type of work for which the employee is engaged.
The Fair Work Act 2009 sets minimum standards by which all employers in the Commonwealth jurisdiction must comply and these are:
- Maximum weekly hours are 38 hours per week for full time employees, plus such other hours as may be reasonable;
- Provision of parental leave of up 12 months unpaid leave per employee, as well as the right to request an additional 12 months leave;
- Provision of annual leave being four weeks paid leave per year, plus an additional week for some shift workers;
- Personal/carer’s leave and compassionate leave;
- Provision of community service leave on an unpaid basis for voluntary emergency management activities and leave for jury service;
- Provision of Long service leave for long term employees (refers to and applies the WA Long Service Leave Act);
- Public holiday leave i.e. a paid day off on a public holiday, unless reasonably requested to work.
- Notice of termination and redundancy pay; and
- A Fair Work Information Statement must be provided to all new employees.
In addition to these minimum standards, the Award system covers matters relating to specific industries and applies additional pay, hours of work, rosters, breaks, allowances, penalty rates and overtime considerations.
The Commonwealth Pastoral Award applies to businesses involved in the:
- Management, breeding, rearing or grazing of livestock;
- Sowing, raising or harvesting of broadacre field crops;
- Clearing, fencing, well and dam sinking and trenching in connection with livestock and crop management.
The Pastoral Act includes a classification system for minimum pay rates depending on the level of classification of duties for which an employee is engaged, including:
- From a Level 1 Farm and Livestock hand who works under direct supervision;
- To a Level 8 Farm and Livestock hand who is an employee who supervises others.
Thereafter the Pastoral Act provides that:
- A full-time employee can only work a maximum of 38 hours over any four-week period and any excess is deemed overtime requiring payment or equivalent time off; and
- If overtime is worked, the employer must provide a meal break 30 minutes before the overtime starts.
Every employer must maintain and keep for at least seven years, records which detail:
- Name and basis of type of employment (i.e. full-time, part-time or casual);
- Date of commencement; and
- Pay, overtime, hours of work, leave, superannuation contributions and termination of employment.
For assistance in determining Commonwealth Award pay rates, review the Fairwork website and/or call Fair Work Ombudsman on 13 13 94 for help on finding the right Award, calculating entitlements and how to resolve employment issues.
Western Australian standards
To employees engaged under the Western Australian jurisdiction, minimum conditions of employment are set by the Minimum Conditions of Employment Act (‘MCE’) and the Long Service Leave Act applies.
The MCE sets amongst other matters:
- Minimum pay rates;
- Maximum hours of work;
- Annual leave, sick leave, parental leave and bereavement leave provisions; and
- The employment records that an employer must maintain for each employee for at least seven years.
As with the Commonwealth provisions, an employer must consider if the minimum conditions are supplemented by an Act, and in Western Australia, the Farm Employees Award sets pay rates and employment conditions for full-time, permanent part-time and casual employees working as farm hands and farm tradespeople.
For further information, review the WA Industrial Relations Commission website or contact Wageline on 1300 655 266 for assistance in regards to Award identification and information on pay rates, employer record keeping obligations and long service leave accruals.
Unfair dismissal claims
Each jurisdiction provides for consideration of unfair dismissal which in the Commonwealth jurisdiction is where an employee is dismissed in a harsh, unjust or unreasonable manner and that employee, who has been employed for at least six months, applies to the Fair Work Commission within 21 days of dismissal.
Taking the two-way radio incident introduced at the start of this paper. On the basis that the Commonwealth jurisdiction applies and that the employee had been provided with a simple employment contract which provided that:
- Pay was $1,000.00 gross per week;
- If the employee ‘needs time away due to illness, a suitable arrangement will be made between the employee and the employer’; and
- Keep is included; comprising of sheep/beef (as long as the employee is prepared to help with slaughter and packing) and paid electricity/water (note the provision of ‘keep’ allows a lower pay rate to be paid than the minimum standards otherwise provide).
If the employee was terminated for reasons of unsatisfactory performance then matters to be considered to determine if such a termination was harsh, unjust or unreasonable would include:
- Is there a written policy against swearing;
- Has the employee been given any prior guidance over what is, and what is not acceptable behaviour on a two-way radio;
- Has the employer issued any prior formal warnings to that employee regarding behaviour of a similar nature and has the employee been given the opportunity to have a representative (this can be another employee) in your disciplinary meetings;
- How have similar instances (if any) of such behaviour been managed with other employees (if at all);
- Does the employer have a track record of behaving in a similar manner (i.e. they still talk about that incident when your son called you up over the two-way radio to let you know how he forgot to fold the auger on the chaser bin and your resulting poor reaction); and
- Are the employee’s condition of employment compliant with statutory obligations?
The last point is very relevant, because often when the Statutory authorities become involved, all terms and conditions of employment are reviewed and, in this scenario, the employer would need to consider that:
‘Keep’ does not simply infer providing a house and with the employee’s assistance, some beef or lamb. Rather ‘keep’ is ‘access to good and sufficient living accommodation, sufficient rations of well-cooked and properly served, by the cook or the kitchen-hand and the Contractual provision has resulted in the employee being under paid; and
An employer is not entitled to insert a provision relating to medical/illness that departs from the minimum conditions and in particular, an employee is entitled to 10 days sick leave per annum and there is no obligation to make ‘arrangements’ apart from when considered reasonable, i.e. informing the employer of the need to take sick leave.
The engagement of farm employees is primarily undertaken to drive farm profits and to relieve the workload on you and your family members.
However, if I had a dollar for every time I heard from a business owner ‘given the hassles and compliancy obligations, I wish I had not taken on so many staff’, I would likely be a rich man.
Yet the sourcing of labour from outside the family group is now often unavoidable given the scale of operations currently operated by many, so there are practical advantages in minimising the instances of disruption caused by disaffected employees and the consequences that can arise from an unfair dismissal claim. This can be done by:
- Knowing and complying with your employment obligations;
- Having a concise set of employment practices and procedures; and
- Maintaining, for seven years, a comprehensive set of employment records.
Fairwork Ombudsman website
Fair Work Ombudsman (13 13 94)
WA Industrial Relations Commission website
Wageline (1300 655 266)
Source: GRDC Farm Business Update, Tambellup, WA
Stephen Park is a director with legal firm, Pacer Legal, West Perth, WA.