Federal Government announces early
WorkChoices Amendments

Federal Government announces early WorkChoices Amendments The Federal Government has announced early changes to the WorkChoices Regulations in the areas of record keeping and leave entitlements. Despite criticism that it was reacting to the ongoing union campaign against the new reforms, the Government explained this was just routine “fine-tuning” – and predicted more could be expected.

As far as employers are concerned, the amendments extend the period of grace in which businesses need to adjust their record keeping practices and clarify some of the new provisions about annual leave and personal leave. It is important that employers incorporate the latest changes in their human resource management practices.

Record Keeping

Under the changes, the transitional period in which employers are able to avoid prosecution for record keeping offences under WorkChoices has been extended by six months – to 26 March 2007.

The initial reform package introduced substantial obligations on employers in relation to record keeping requirements. These extended to general employee records as well as the recording and retention of specific information about pay, pay slips, annual leave, personal leave, superannuation, termination and transmission of business (see WorkChoices FAQs in the April 2006 Employers Adviser™).

Employers were given time to adjust to the new record-keeping requirements, with the legislation providing for a transitional period up to 26 September 2006 during which employers could not be prosecuted for failure to comply. Although the extension is welcome news for some businesses, it could mean further changes down the track because it gives employers more time in which to lobby the government to simplify the record keeping obligations. The latest amendment is likely to be a delaying measure rather than a final solution because the Government has indicated it is willing in principle to consult on areas that are causing administrative problems.

Personal/Carer’s Leave

One of the important WorkChoices reforms is the introduction of the Australian Fair Pay and Conditions Standard. Amongst other things, it sets out a range of rules relating to Personal/Carer’s Leave and Compassionate Leave.

The latest amendments are meant to clarify some confusion that has arisen about accrued leave.
It is now clear that:

• the Standard does not apply in relation to Personal/Carer’s Leave or paid Compassionate Leave entitlements that accrued before the commencement of WorkChoices. Therefore, any Personal/Carer’s Leave and Compassionate Leave that employees accrued before WorkChoices started (27 March 2006) will continue to operate under the relevant pre-reform rules (for example, under the rules set out in applicable awards).

• the accrued leave will only operate on this basis for 5 years after 27 March 2006. The amendments will not effect entitlements of this type that have accrued since the introduction of WorkChoices.

• a workplace agreement may contain provisions allowing an employee to forego an amount of pre-reform leave of this type for an amount of pay or other benefit.

• if employees wish to forego an amount of leave of the Personal/Carer’s or Compassionate Leave they accrued prior to the commencement of WorkChoices for an amount of pay or other benefit, they must elect to do so in writing.

• employees cannot ‘cash out’ Personal/Carer’s Leave accrued under the Standard.

Restrictions on Imposing Monetary Penalties

The new amendments also prevent employers from including provisions in contracts or agreements that impose monetary penalties on employees for:

• not attending work due to illness, injury or emergency

• failing to meet notice or evidence requirements under the Australian Fair Pay and Conditions Standard. The government explains that this means “…an employer cannot ‘fine’ an employee for failing to provide notice of absence on sick/carer’s or compassionate leave, but can legitimately withhold payment where an employee is not entitled to paid leave because of a failure to comply with his or her obligations in relation to notice or evidence.”

Other Amendments

The amended regulations also contain a number of changes of a more technical nature. These include changes to:

• clarify that no term may be included in a workplace agreement that requires an employee to cash out an amount of annual leave

• allow the crediting of annual leave in advance of service

• correct some minor errors and amend various definitions. Operational Dates When do these amendments come into effect? The relevant operational dates are:

• as of 27 March 2006 (retrospectively) for the changes relating to Personal/Carer’s Leave and Compassionate Leave that accrued before the commencement of WorkChoices

• as of 22 September 2006 for all other amendments.

Contact the Employers Hotline™ on (02) 9264 2000 if you need to know more.