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IR Unpacked Recording

Alistair, Focus HR Director, shares a practical and engaging update on key industrial relations reforms and the new minimum wage decision coming into effect 1 July.

Focus HR IR Update Booklet

This resource is designed to help business owners and leaders navigate key updates and understand what they mean for your workplace.

You can download the PDF version of the booklet using the link below or favourite this page so you can return to it anytime.

If you have any questions, or if you’d like to have a conversation about how these changes may affect your business, we’re here to help. Please get in touch with us at info@focushr.com.au.

Q&A

Q: If an employee is paid above the award and still better off under the BOOT test, do we need to provide updated contracts and IFAs showing the new base award rate in relation to their above-award rate? Also, for employees on the award, do we have to issue new contracts of employment with the new base award rates

A: No. You are not required to issue new contracts or IFAs each time the award rate increases, especially if the original documentation was drafted to accommodate changes (e.g. by referencing “not less than the applicable minimum Award rate as varied from time to time”). This applies to employees paid on, or above the award.

However, it’s best practice to document any pay changes or reviews that have occurred and communicate the outcome to your employees.

We recommend employers provide their workers with a simple update letter explaining the outcome of the pay review and what it means to them, the employee. This can be in the form of a simple letter, or email, explaining that a recent review has been conducted (in the light of the national minimum wage increase) and detailing the outcome as it affects the employee.

Q: Re classifications – can it be a temporary position at a higher level with an agreement signed ending “until no longer required,” e.g. a forklift driver for harvest only?

A: Yes, there are a couple of equally appropriate options to apply temporary changes (typically increases) of pay, or responsibilities to a role or person.

An employee can be temporarily classified at a higher level for a defined period or specific task (such as harvest), or they can be designated additional duties, pay or conditions under a “higher duties” arrangement.

This arrangement can be documented by way of a temporary variation or letter of appointment stating the higher classification and pay will apply only “for the duration of the harvest” or “while performing forklift duties,” whichever comes first.

The key here is documentation and communication.

Ensure the agreement is in writing, sets out the relevant award classification, rate of pay, and review clause (e.g. reverting to the previous classification when the temporary period ends). Avoid open-ended “until no longer required” language — instead, use clear criteria or dates to minimise risk of disputes.

Q: Same Job, Same Pay (labour hire) – does it apply to over-award payments?

A: Yes. The “Same Job, Same Pay” provisions apply to all monetary terms, not just minimum Award rates. If a host employer pays its direct employees an over-Award rate (e.g. through enterprise agreements, above-Award rates, allowances or loadings), labour hire workers performing the same duties at the host site must receive equivalent pay and conditions — unless an exemption applies.

This means over-award payments are included in the comparison. Labour hire employers will need to obtain pay details from the host and ensure equivalency is maintained.

Q: Do General Protections claims go to arbitration if not settled at conciliation, or straight to court?

A: The pathway is largely decided by the Applicant making the claim (the employee).

The General Protections (GP) claim process involving dismissal begins with a Conference between the parties that is facilitated by a Fair Work Commission Member. If the matter is not resolved at the conference stage, the applicant gets to choose whether to:

• Request arbitration by the Fair Work Commission, (but only with the employer’s agreement); or
• Apply to the Federal Circuit and Family Court of Australia (or Federal Court) to have the matter determined by a judge.

Without employer agreement, arbitration is not available — and the matter may proceed to court. If the claim does not involve dismissal (e.g. adverse action during employment), it follows a similar process — voluntary arbitration or court.

Q: What is considered a small business? If you have 2 full-time workers but 50 casual workers in harvest for 6–8 weeks, are you still a small business?

A: Under the Fair Work Act, a “small business employer” is one that employs fewer than 15 employees, based on a headcount of all employees (including full-time, part-time, and casuals who are regular and systematic).

In the example, if the 50 harvest casuals are employed on a short-term, seasonal basis without regular and systematic hours, and their contract is clearly casual, they are not be counted in the headcount. However, if some are returning casuals with repeated seasons or regular patterns of work, or the contract is unclear (or non-existent), they may count toward the total.

If you are close to the threshold, seek tailored advice — misclassification can affect your obligations around redundancy, unfair dismissal, and other entitlements. You can seek clarity on this from FWC in some instances. If you do receive such clarity, document the reasoning and outcome and save this for future requirements

Q: Since the new pay rate applies from the ‘first full pay period in July’, if our pay cycle runs Saturday to Friday, does that mean I should still use the old rate for the current week (28th June – 4th July) and apply the new rate from the next cycle (5th July – 11th July)?

A: Correct, you will still be paying the old pay rate for the current week (28th June – 4th July) and the update the rates to the new rates for the next pay run (5th July – 11th July).