UNDERSTANDING EMPLOYMENT LAW GYMNASTICS CLUB MANAGEMENT 24 Jan The information provided in this presentation is not intended to be a substitute for legal advice and should not be relied upon to determine what steps employers can or should take to address potential legal liability

 Fair Work Act 2009 (includes NES, Modern Awards)  Superannuation Guarantee (Administration) Act 1992  Work Health & Safety Act 2012 (SA)  Equal Opportunity Act 1984 (SA)  Holidays Act 1910 (SA)  Privacy Act, 1988  Long Service Leave Act 1987 (SA)  and a few others…. 24 Jan Relevant Legislation

Includes….  National Employment Standards (NES)  Modern Awards (i.e. Fitness Industry Award) 24 Jan FAIR WORK ACT 2009

Covers….  38 hour week (+ reasonable additional hours)  Requests for flexible working arrangements (to care for children)  Annual leave (20 days pa paid)  Personal leave (10 days pa paid, 2 days unpaid pa)  Bereavement leave (2 days paid on each occasion)  Parental leave (12-24 months unpaid maternity leave + paternity, adoption leave) 24 Jan National Employment Standards (NES)

 Community service leave (unpaid)  Jury service (Up to 10 days paid)  Long service leave (13 weeks paid after 15 years service)  Public holidays (paid)  Termination – notice period (1-5 weeks paid)  Redundancy (0-16 weeks)  Fair Work Information Statement 24 Jan And……

An overview…… 24 Jan FITNESS INDUSTRY AWARD 2010

An overview…… 24 Jan FITNESS INDUSTRY AWARD 2010

Permanent Full-time Part-time Casual Contract 24 Jan Employment Options

….or Volunteer??? 24 Jan 20169

Simply stating that a relationship is voluntary isn’t sufficient. The arrangement must meet specific legal tests to be considered a genuine voluntary relationship. Definitions of volunteer vary between jurisdictions (i.e. taxation, workers compensation) 24 Jan Defining a Volunteer

In a typical voluntary relationship…  The parties do not intend to create a legal relationship.  Volunteers are not obliged to offer services to the club (i.e. there is no perceived coercion to perform specific duties).  There is no form of agreed exchange of benefits between the parties. That is, the volunteer does not expect or receive monetary payments or special considerations in return for their services. 24 Jan Defining a Volunteer

In a typical voluntary relationship (contd)…  The arrangement usually benefits the individual more than the club  The club does not expect to obtain services from the volunteer or that they do productive work (i.e. there is little significant commercial gain or value for the business derived out of the work). Volunteer arrangements are more likely to involve a short placement period. 24 Jan Defining a Volunteer

Casual or Permanent? 24 Jan Discussion….

Definition of an ‘ongoing’ ‘casual’  Regular, predictable pattern of work  Expectation of ongoing work  Attendance is expected  Hours are similar to that undertaken by permanent employees  Predictable breaks in work i.e. holiday periods 24 Jan Discussion….

‘Ongoing’ Casual StaffPermanent Staff Entitled to: o Casual loading (25% or award rate) o 2 days unpaid carers leave per occasion o 2 days unpaid compassionate leave per occasion o Unpaid community services (& jury duty) leave o Right to claim unfair dismissal after 12 months service o Right to request flexible working arrangements after 12 months service o Parental leave after 12 months service o Long service leave o Parental leave after 12 months service o Notice period for termination o Severance/redundancy pay upon termination due to redundancy Entitled to: o 4 weeks paid annual leave o Annual leave loading o 10 days pa paid personal leave (i.e. sick leave, carers leave) o 2 days unpaid carers leave per occasion o Paid Compassionate leave o Unpaid community services leave o Paid jury duty leave o Parental leave after 12 months service o Notice period for termination o Severance/redundancy pay upon termination due to redundancy o Right to request flexible working arrangements after 12 months service o Right to claim unfair dismissal after 6 or 12 months service o Long service leave 24 Jan

‘Ongoing’ Casual StaffPermanent Staff Not entitled to: o Annual leave o Annual leave loading o Paid personal leave (i.e. sick leave, carers leave) o Paid compassionate leave o Paid jury duty leave Not entitled to: o 25% casual loading (or as indicated in relevant award) 24 Jan

 38 hours per week  Plus ‘reasonable’ additional hours 24 Jan Full-time

 Works less than 38 hours pw  Has reasonably predictable hours of work  At time of engagement, need to agree in writing on a regular pattern of work, specifying at least the number of hours worked each day, which days of the week the employee will work and actual start and finish times each day  Total min. 3 hours engagement on shift or broken shift  Overtime applicable if agreed regular daily/weekly hours exceeded 24 Jan Part-time

Setting working hours…. 24 Jan Tricky Issue….

 25% casual loading M-F (increased annually)  30% Sat, Sun or Public Holiday  Min.3 hours engagement for Level 1 employees (except for Level 2, 3 or 4 instructor or trainer or student undertaking practical work – min. 1 hour) 24 Jan Casuals

ClassificationAward - perm Award – casual (+25%) Level 1 – entry level roles - reception/clerical, cleaning, coach with no accreditation Level 2 – Beginner-level coach, clerical worker working under direct supervision Level 3 – Intermediate-level coach, clerical worker working under general supervision. (3a – Advanced coaching accreditation) Level 4 – Advanced silver and above level coach Level 5 – specialist coach, diploma level quals Level 6 – Club manager (small club), Head Coach/Program Manager (large club) Level 7 – Club manager (med+ club), Head Coach/Manager of several programs Jan Minimum Rates of Pay Effective 1 June 2015

Age% of adult rate 16 years & under55 17 years65 18 years75 19 years85 20 years Jan Juniors

Wage setting options…. Award or Market wage? Basic or loaded wage? Performance pay? 24 Jan Discussion….

Other staffing benefits…. Blue Card, course fees, course attendance, updating points, first aid, registration, uniform, social functions……? 24 Jan And don’t forget….

 (22.1) Weekly or fortnightly. Monthly by agreement. 24 Jan Payment of Wages

 (26.1) Mon to Sat - 1 st 2 hours at time-and-half, then double time  Sunday – double time  (26.4) Employee can elect in writing to receive time- in-lieu of overtime accrued hour for hour  Accrued time-in-lieu to be taken within 4 weeks 24 Jan Overtime

Competitions….  Payments for travel, attendance?  Judging?  National Comps?  International Comps? 24 Jan Discussion….

(Clauses 13 & 26.3)  Saturdays – +25% (permanents); +30% (casuals)  Sundays – double time (permanents); +30% (casuals)  Public Holidays - double-time-and-a-half or can substitute. 24 Jan Penalty Rates

 (18.7) Travel time and mileage/fares paid if employee required to travel from place of work to another place of work  (18.3) 0.78c per km (vehicle) or 26c per km (motorbike) 24 Jan Travel Time

 (18.4) $12.34 per day extra and $1.89 extra per day for excess fares 24 Jan Broken Shifts Allowance

 (18.2) $11.00 per meal after 1.5 hours overtime 24 Jan Meal Allowance

 (25.1) mins unpaid meal break after 5 hours of duty  (32.2) 2x10 min rest breaks (not casuals)  (26.2) 10 hour break between shifts 24 Jan Shift Breaks

(Clause 18.1) Level 1-4 employee in charge of;  1-4 staff (57c per hour)  6-10 staff (78c per hour)  10+ staff ($1.05 per hour) 24 Jan Supervisor Loading

 (18.6) If purchased by employee - reimbursement of purchase cost + laundering  No reimbursement if clothing provided by club or laundered by club. Clothing remains property of employer 24 Jan Uniforms & Protective Clothing

Is your club paying first aid allowance? 24 Jan Discussion….

 (18.5) Rostered first aid duty at a particular time paid at $2.32 per day 24 Jan First Aid Allowance

 (21) Hours worked paid at higher rate if higher duties required 24 Jan Higher Duties

 (24.1) Full-time – average of 38 hours pw averaged over 4 weeks  Daily span of hours over 5 days:  5am -11pm Mon- Fri  6am – 9pm Sat-Sun  (24.2) Max. 10 hours per day  (24.3) Up to 2 broken periods per day. Min. 3 hours in total. Max 12 hours  (24.5) Rostered day off arrangements can apply 24 Jan Hours

 (27) Annual Leave Loading %  Paid out for unused annual leave upon termination 24 Jan Annual Leave Loading

 9.5% of staff wages to be paid into super fund except if the employee:  Earns less than $450 per month, or  Is under 18 years and works 30 or fewer hours per week  Is over 70 years  Payments made at least every 3 months into a complying fund  (23.4) An eligible fund is either;  Award list of 15 eligible funds, or  Employee-choice complying fund, or  Employer complying eligible choice fund prior to 12 Sept Jan SUPERANNUATION

Financial YearRate(%) Current9.5% Future??? 12.5%??? 24 Jan Changes to superannuation!

 Small Business Fair Dismissal Code applies if the club employs fewer than 15 people (including regular casuals)  This document should be completed if the club is considering terminating a staff member 24 Jan Small Business Fair Dismissal Code

What could happen if your club doesn’t comply? 24 Jan Discussion….

1.Full compliance with NES (compulsory) 2.Comply fully with Award 3.Implement flexible working arrangements to vary Award i.e.* Implement collective agreement to vary award or Implement individual flexibility agreement to vary certain eligible award clauses or Specify varied clauses in written employment contract * need to check these docs are legally correct and meet better off overall test (BOOT) 24 Jan Don’t despair! CLUBS HAVE OPTIONS!

 Written Employment Agreements are an important tool which establishes:  Rates of pay  Employment terms  Benefits  Important information specific to the employees engagement  Important information not found in Club Policies Written Employment Agreements are much more credible than verbal arrangements which can be contested! 24 Jan EMPLOYMENT AGREEMENTS

Contact Linda Norman, Partner, HR Plus (03) Jan Want to know more?