1. UNDERSTANDING EMPLOYMENT LAW GYMNASTICS CLUB MANAGEMENT 24 Jan 2016 1 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

2.  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 20162 Relevant Legislation

3. Includes….  National Employment Standards (NES)  Modern Awards (i.e. Fitness Industry Award) 24 Jan 20163 FAIR WORK ACT 2009

4. 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 20164 National Employment Standards (NES)

5.  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 20165 And……

6. An overview…… 24 Jan 20166 FITNESS INDUSTRY AWARD 2010

7. An overview…… 24 Jan 20167 FITNESS INDUSTRY AWARD 2010

8. Permanent Full-time Part-time Casual Contract 24 Jan 20168 Employment Options

9. ….or Volunteer??? 24 Jan 20169

10. 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 201610 Defining a Volunteer

11. 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 201611 Defining a Volunteer

12. 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 201612 Defining a Volunteer

13. Casual or Permanent? 24 Jan 201613 Discussion….

14. 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 201614 Discussion….

15. ‘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 201615

16. ‘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 2016 16

17.  38 hours per week  Plus ‘reasonable’ additional hours 24 Jan 201617 Full-time

18.  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 201618 Part-time

19. Setting working hours…. 24 Jan 201619 Tricky Issue….

20.  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 201620 Casuals

21. ClassificationAward - perm Award – casual (+25%) Level 1 – entry level roles - reception/clerical, cleaning, coach with no accreditation 17.2921.61 Level 2 – Beginner-level coach, clerical worker working under direct supervision 17.7922.24 Level 3 – Intermediate-level coach, clerical worker working under general supervision. (3a – Advanced coaching accreditation) 19.10-20.1323.88-25.16 Level 4 – Advanced silver and above level coach 20.96-21.9626.20-27.45 Level 5 – specialist coach, diploma level quals 23.1528.94 Level 6 – Club manager (small club), Head Coach/Program Manager (large club) 22.9528.69 Level 7 – Club manager (med+ club), Head Coach/Manager of several programs 23.8429.80 24 Jan 201621 Minimum Rates of Pay Effective 1 June 2015

22. Age% of adult rate 16 years & under55 17 years65 18 years75 19 years85 20 years100 24 Jan 201622 Juniors

23. Wage setting options…. Award or Market wage? Basic or loaded wage? Performance pay? 24 Jan 201623 Discussion….

24. Other staffing benefits…. Blue Card, course fees, course attendance, updating points, first aid, registration, uniform, social functions……? 24 Jan 201624 And don’t forget….

25.  (22.1) Weekly or fortnightly. Monthly by agreement. 24 Jan 201625 Payment of Wages

26.  (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 201626 Overtime

27. Competitions….  Payments for travel, attendance?  Judging?  National Comps?  International Comps? 24 Jan 201627 Discussion….

28. (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 201628 Penalty Rates

29.  (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 201629 Travel Time

30.  (18.4) $12.34 per day extra and $1.89 extra per day for excess fares 24 Jan 201630 Broken Shifts Allowance

31.  (18.2) $11.00 per meal after 1.5 hours overtime 24 Jan 201631 Meal Allowance

32.  (25.1) 30-60 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 201632 Shift Breaks

33. (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 201633 Supervisor Loading

34.  (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 201634 Uniforms & Protective Clothing

35. Is your club paying first aid allowance? 24 Jan 201635 Discussion….

36.  (18.5) Rostered first aid duty at a particular time paid at $2.32 per day 24 Jan 201636 First Aid Allowance

37.  (21) Hours worked paid at higher rate if higher duties required 24 Jan 201637 Higher Duties

38.  (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 201638 Hours

39.  (27) Annual Leave Loading - 17.5%  Paid out for unused annual leave upon termination 24 Jan 201639 Annual Leave Loading

40.  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 08 24 Jan 201640 SUPERANNUATION

41. Financial YearRate(%) Current9.5% Future??? 12.5%??? 24 Jan 201641 Changes to superannuation!

42.  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 201642 Small Business Fair Dismissal Code

43. What could happen if your club doesn’t comply? 24 Jan 201643 Discussion….

44. 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 201644 Don’t despair! CLUBS HAVE OPTIONS!

45.  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 201645 EMPLOYMENT AGREEMENTS

46. Contact Linda Norman, Partner, HR Plus (03) 9681 9119 0412 602 713 linda@hrplus.com.au 24 Jan 201646 Want to know more?