Wednesday 6th May 2015
When being ‘compassionate’ to
an employee could break the
In today's Workplace Bulletin:
- Case law: FWC says paying a carer employee less for flexible hours is not appropriate
Many of the words we use in everyday conversation can have very different meanings in the world of employment law.
Take ‘compassionate’. You might see ‘being compassionate’ as those general acts and deeds which are part and parcel of being a kind and fair employer.
Such acts and deeds could include being generous with leave when employees need it, or identifying and dealing with workplace stress and overload quickly. Or even offering flexible work arrangements to employees returning after an absence.|
But that last arrangement is what got rail freight company Aurizon into trouble with the Fair Work Commission.
It had a clause in its enterprise agreement that gave employees the right to return to work on light duties – but at a reduced rate - if there were compassionate grounds for doing so, including a short-term medical disability.
Aurizon ran aground when it applied that clause to an employee returning from her parental leave.
Her union was up in arms, and pointing to the dictionary. The Unabridged Random House Dictionary, to be specific: which defines compassion as “a feeling of deep sympathy and sorrow for another who is stricken by misfortune, accompanied by a strong desire to alleviate the suffering”.
To care for a child, the union argued, is hardly to be “stricken by misfortune”. The Commission – and no doubt, many proud mothers and fathers – would agree!
It found the clause did not apply to carers, and ordered that the driver receive the full rate of pay she was entitled to.
We summarise the full case below. But here’s the essential legal takeaway for you – an employee who is a parent or caregiver has the right to request flexible working arrangements from you under the National Employment Standards. And you can only refuse that request on reasonable business grounds.
And that’s not just a matter of compassion – it’s the legal minimum. Your workplace agreements can build on that entitlement – but they can’t contradict or undercut it.
Until next time,
Editor, Workplace Bulletin
Ongoing amendments to the Fair Work Act mean that your responsibilities as an employer change all the time.
But there is a way you can make sure your business is always well-informed when it comes to employment law…
Case Law: FWC rules that paying
a carer employee less for flexible
hours is inappropriate
In Australian Rail, Tram and Bus Industry Union v Aurizon (2015), an employer was ordered to provide the full rate of pay to a driver who would otherwise have received a reduced amount under a clause in her enterprise agreement.
The driver, who had recently returned from maternity leave and requested part-time hours to meet her parenting duties, was to be covered by a clause that usually applied to employees who had to restrict their work duties on compassionate or disability grounds.|
The Commission ruled that it was not appropriate to include parents in the clause’s scope.
The QR National Traincrew Enterprise Agreement (‘the agreement’) that covered the employer and driver stated that part-time employees received, on a pro-rata basis, the same pay and conditions as full-time permanent employees doing the same kind of work.
However, the agreement also included a clause stating that an employee who “is not able to perform full depot duties for compassionate reasons, or due to a short term medical disability” would be treated differently.
Under this clause, an employee would receive their full flat rate for a period of six weeks, then this would be reviewed on a case-by-case basis. In some cases, they would receive a lower percentage of penalty allowance than other employees.
The employer proposed that the driver come under this ‘compassionate’ clause, and that she receive a lower rate of pay.
The driver and her union, the Rail, Tram and Bus Industry Union (RTBU), objected to her being covered by the clause, arguing she should instead receive the pro-rata equivalent of a full-time employee, without any other reduction.
The RTBU argued that the clause was regularly used for employees with medical conditions who could not, for a period, fulfil the inherent requirements of the role due to illness or injury. It said that treating a parent’s duties as being of the same category was offensive and discriminatory.
The employer attempted to justify the use of the clause on the basis that the high penalty allowances for night and weekend work would mean that a driver who requested flexible part-time hours could potentially end up receiving a similar overall rate to a full-time employee who only worked weekdays.
The Fair Work Commission agreed with the RTBU that the clause was not applicable to the circumstances of trying to facilitate care of a child. The care of a child is not a short-term situation or a medical disability that requires a compassionate response.
It also noted that the agreement said nothing about the employer having a right to reduce the penalty allowance subject to which shifts were available for an employee.
The employer was ordered to continue paying the driver her pro-rata flat annual rate, including the base and penalty rate, with no reductions.
For other employers, it presents a lesson about how the requirements of parents or carers seeking flexible working arrangements must be considered.
It will not be appropriate to categorise an employee’s genuine need to work around their childcare commitments as a ‘compassionate grounds’ matter (i.e., as an illness, injury or incapacity matter).
As well, courts continue to interpret enterprise agreements strictly. This means that if a practice relating to wages and flexible working arrangements is not included in the agreement itself, it will be difficult to imply it into the agreement unless it is otherwise provided for by the law.
Employment Law Practical Handbook
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