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:
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:
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:
The Commonwealth’s industrial relations system will apply if your business engages employees in an:
The Fair Work Act 2009 sets minimum standards by which all employers in the Commonwealth jurisdiction must comply and these are:
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:
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:
Thereafter the Pastoral Act provides that:
Every employer must maintain and keep for at least seven years, records which detail:
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.
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:
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.
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:
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:
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:
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.