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Work Place Legal IN FOCUS
August 2016 2016


Section 125 of the Fair Work Act 2009 provides that employers must give all new employees a copy of the Fair Work Information Statement (‘the Statement’) as published by the Fair Work Ombudsman before they start employment or as soon as practicable after their employment commences.  The Statement can be given to employees in person, by mail, email or fax.

The Statement provides employees with information about their employment including information relating to the National Employment Standards, right to request flexible working arrangements, modern awards, making EA’s, individual flexibility arrangements, freedom of association and workplace rights, termination of employment, right of entry and the role of the Fair Work Commission.

Failure to give employees the correct statement is a breach of a civil remedy provision under the Fair Work Act 2009 for which an employer could face a fine – up to $54,000 for a corporation and $10,800 for an individual (i.e. director or HR Manager).

You can find a  copy of the new Statement  Here for your reference.

Please contact  Naomi Boyle at WPL on 9972 4950  or email nboyle@workplacelegal.com.au  for further information or assistance


The rules that determine whether an employee is entitled to bring a claim for unfair dismissal under the Fair Work Act 2009 state that they may only do so, where their annual earnings are less than the "high income threshold" prescribed by regulations from time to time unless a modern award or an EA applies to the employee's employment (in which case their earnings are not relevant).

Whether an employee has a potential remedy for unfair dismissal may significantly impact on an employer's ability to dismiss an employee and the potential risks of doing so (and the process it must follow to dismiss the employee).

From 1 July 2016, the high-income threshold has risen from $136,700 to $138,900.  This means that the employer’s maximum exposure in an unfair dismissal case before the Commission is now $69,450. (Adverse action claims are not subject to this threshold).

In calculating an employee's earnings for the purpose of the ascertaining whether they fall below the high-income threshold, compulsory superannuation contributions are not included nor are non-guaranteed earnings such as overtime, commission or bonuses.

Non-monetary benefits may be included, such as the value attached to the use of a company car for personal use.

Please contact Natasha Fletcher  on 9972 4950  or email nfletcher@workplacelegal.com.au  for further information or assistance.



Employers are reminded that from 1 July 2016 the minimum hourly and weekly pay rates under modern awards have increased by 2.4%.

Employers should check that rates of pay of employees covered by modern awards do not fall below the new minimum rates set out in the modern awards.

Employers with EA’s should note that the Fair Work Act 2009 stipulates that an employee's base rate of pay can never be below that which it would be if the employee were instead covered by an applicable modern award, so employers may wish to review current levels of remuneration in EA’s, particularly expired EA’s.

It is sometimes forgotten that award and EA free employees also have a minimum wage. For employees of 21 years or over this figure has now risen to $17.70 per hour, up from $17.29. Junior employees (those 20 years of younger) are entitled to a percentage of this figure, set on a sliding scale, dependent on their age. Details are available on the Fair Work Commission's website.

The above changes are effective from the first full pay period after 1 July 2016.

Employers should note that there is usually no obligation on them to increase employees' pay rates if they are already equal to or greater than the new minimum wage or award rates as the case may be (subject to any relevant terms in a contract of employment or an EA).

Please contact Naomi Boyle at WPL 03 9972 4950 or email  nboyle@workplacelegal.com.au for further information or assistance


Most Community Health Services are now or will in the future be involved in considering new EA’s:

  • SACS Agreement (expired 30 June 2015)
  • Health & Allied Services (expired 31 December 2015)
  • Nurses Agreement (expired 31 March 2016)
  • Health Professionals (expired 31 June 2016)
  • Medical Scientists (expires 31 October 2016)
  • Dentists (Filed with Commission 2016)
  • Dental Hygienists etc. (expires 31 May 2017)

The main agreements are of course SACS, Health Professionals and Health & Allied Services.  The latter two involve the HSU.

For Community Health the main drivers in achieving appropriate outcomes include the following:

  1. Capacity to pay (Payroll currently between 70% - 90% of revenue)
  2. Private Sector Not For Profit Agencies (i.e. Competition)
  3. Consideration of remaining Public Sector Standards
  4. Sources of funding (State and Commonwealth)

The ASU ‘Log of Claims’ in the case of SACS contains the following:

  1. One EA across the sector
  2. Rates of pay aligned to Health Professionals in the Public Sector
  3. Some conditions of employment based on ANMF EA (i.e. family violence leave)
  4. Superannuation in excess of 9.5%
  5. Redundancy in excess of NES standards
  6. LSL based on Public Sector standards plus greater access sooner
  7. Post Graduate Allowances
  8. Compassionate Leave in excess of NES
  9.  Portability of sick leave across the sector
  10. 5 days Professional Development Leave and 2 days Conference/Seminar leave
  11. Mental health/wellbeing – 3 days pa.

The fundamental question in relation to the Log of Claims is the failure to recognise that the community health sector is no longer part of the public sector.  It appears to ignore the fact that the previous connection between increases in wage rates and funding is broken.   It also takes for granted that there is one EA in the sector, thus ignoring the environment in which community health, as non-government organisations find themselves.  It also, by implication ignores various sources of funding such as that from the State and the Commonwealth.

The ASU ‘Log of Claims’, also contains various leave provisions which amount to in excess of 30 days of paid leave per annum (i.e. Family Violence 20 days; Compassionate leave 5 days per occasion; CPD leave 5 days; Conference/Seminar leave 2 days; Health/Wellbeing leave 3 days, thus making the total leave provisions available to an employee over 60 days per annum without counting LSL.

All of the above ‘begs the question’ whether the sector should consider terminating the expired EA’s with a view to removing the legacy of provisions that are in effect public sector conditions of employment.  These can impose unwarranted and costly restrictions on the ability of the sector to operate its business efficiently and productively. (See: S 226 of the Fair Work Act 2009).

For more information please contact Ignatius Oostermeyer or Natasha Fletcher on 9972 4950 or email ioostermeyer@workplacelegal.com.au or nfletcher@workplacelegal.com.au


It seems that the DHS is now looking at further restrictions on powers of Boards of health services in rural Victoria. DHS is relying on the Duckett Report on Safety and Quality following the failures in Bacchus March. This Report has not as yet been released, but multiple copies of drafts have apparently been sighted.

DHS already requires that appointment and re-appointment of CEO’s is not for a Board to determine.  In fact, the Secretary of DHS reserves that right, by relying on the Health Services Act 1988 S.25 (2).  There are of course other sections of the same Act that confers those exact same powers to Boards (S.65s section 65 XA (1) and (2) 65XB which spells out the functions of the CEO.

This is an apparent conflict between the powers conferred on a Board and those of the Secretary DHS. The Health Services Boards and the CEO’s are at a distinct disadvantage given the latest assertions of failures in safety and quality relating to clinical governance.  This is despite the fact that other parties are also at play.

DHS has now decided that Boards should “test the market” in cases “… where the tenure of a CEO is greater than 10 years.”  DHS also insists that a department representative “be invited” to participate in CEO interviews and when a recommendation is reached, the Board must forward a written request to DHS seeking approval detailing the TRP and willingness to sign a GSERP Contract by the candidate.

For more information please contact Ignatius Oostermeyer or email ioostermeyer@workplacelegal.com.au

Suite 101, 88 Albert Road
South Melbourne VIC 3205
tel 03 9972 4950
fax 03 9923 6441


Disclaimer: Please note that “In Focus” is intended to provide general information only and does not constitute legal advice. Workplace Legal does not accept any responsibility for loss or damage of any kind arising from reliance on articles appearing in “In Focus”. Clients should always seek advice from Workplace Legal relevant to their specific circumstances. Material may be reproduced only with prior permission and attribution