FAIR WORK COMMISSION’S EOFY CHANGES

Employers and employees – take note of the changes to the Fair Work Commission’s application fees, high income threshold and compensation awards that came into effect on 1 July 2014:

Fair Work Commission application fee

The Commission’s application fee to file an unfair dismissal application, general protections application and anti-bullying application has increased to $67.20 (see regulation 3.02 of the Fair Work Regulations 2009).

There has been no change to the time limit on making applications involving a dismissal, which is 21 days from the dismissal taking effect. 

High income threshold

To bring an unfair dismissal claim, employees must have been employed for over 6 months (or 12 for those employed by Small Business Employers) and either earn under the high income threshold, or have their employment covered by a Modern Award or an Enterprise Agreement (see section 382 of the Fair Work Act 2009). 

The high income threshold is now $133,000 (see regulation 2.13 of the Fair Work Regulations 2009).

The high income threshold includes wages, salary sacrifice amounts and non-monetary benefits.  

It does not include reimbursements, employer superannuation contributions, or payments that cannot be calculated in advance, for example bonuses that are reliant on an employee’s performance.

Compensation limits

For unfair dismissal applications relating to dismissals occurring on or after 1 July 2014, the Commission can award an employee a maximum of 26 weeks pay for compensation for their lost earnings.  This amount cannot exceed $66,500, which is half of the high income threshold (see section 392 of the Fair Work Act).

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Workplace bullying: the new jurisdiction

Since 1 January 2014 workers who believe they have been bullied may apply to the Fair Work Commission for an order to stop the bullying.  A worker includes an employee, a contractor or sub-contractor an outworker, an apprentice or trainee, a student gaining work experience or a volunteer.

 

The definition of bullying is wide and includes either an individual or a group of individuals who have been subjected to repeated, unreasonable behaviour that creates a risk to health and safety.

 

The bullying needs to have occurred more than once but includes victimising, intimidating, humiliating or threatening.

 

Bullying excludes reasonable management action carried out in a reasonable manner.  The bullying has to occur at work but it is arguable that provided there is a connection with work bullying via social media including Facebook and LinkedIn and bullying at work related functions would be included.

 

Employers not included in the new bullying jurisdiction of the Commission include partnerships, sole traders, State Government Departments and unincorporated associations.

 

The Commission can make orders to stop the bullying, which can be directed at both the employer or the individuals involved.

 

The range of orders that could be made include:

 

·        Monitoring of behaviours by an employer;

·        Compliance with an employer’s anti-bullying policy;

·        The provision of information and additional support;

·        A review of the employer’s workplace bullying policy.

 

The Commission cannot order compensation but if its orders are not complied with it can order substantial penalties of up to $51,000.00 for a body corporate and up to $10,200.00 for an individual. 

  

Employers should ensure that they:

 

·        Understand the scope of the Commission’s new bullying powers;

·        Understand the definition of bullying;

·        Understand the difference between bullying and reasonable management action;

·        Have a clear policy stating that bullying is unacceptable, and conduct training which promotes this policy.

·        Conduct regular health checks to manage the risk of bullying.

 

In the first month of operation of the anti-bullying laws the Commission received 44 applications to stop bullying and commenced to deal with them well within the 14 day limit that the laws set.

 

The Commission will publish a report on the stop bullying applications it receives on its website in early April.  At that time we will have a better idea of how bullied people subject to the anti-bullying laws are making use of their rights.

Greg Doran
Director

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.
 

 

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