Miss Tan’s Pay Review

The fact that Miss Tan is covered under the Clerk Award, she is not entitled to a national minimum wage as set out in the Fair Work Act 2009 (Fair Work Commission 2014, p.6). Therefore, Tan is covered under a modern award as stipulated under the employment laws in Australia (Mou 2017, n.d). Her pay and benefits are implemented under the Clerks Private Sector Award 2010 due to the fact that she works for a private company, GM Pty Ltd. Based on the Clerks Private Sector Award 2010 (Fair Work Commission 2017a, p.35), Miss Tan is being paid an hourly rate of AU$17 for a level I (Year 1) junior casual for an 18-year-old. Since the award uses a job classification system, her role, pay, and benefits are clearly stipulated. The fact that she is still being paid the $17 per hour rate despite currently being 19year old, Tan deserves a pay review. Therefore, she is right to assert that the current hourly rate for her duties and responsibilities is below that one specified for her role and age in the Clerk Wards 2010. Indeed, reports from her supervisor indicate that she is a great team player, diligent in her work and highly accountable. She deserves to be in level two since she has gained sufficient experience (Fair Work Commission 2017b, p.55).

According to Clerks Award 2010, Miss Tan is entitled to an hourly pay of AU$ 20.41 for the second year on a level one role at her age of 19years (Fair Work Commission 2017a, p.38). Investigations reveal that she works on two Saturdays per month, three overtimes after 2hours on Monday, Tuesday and Thursday. That means that Tan is entitled to $24.50 for every Saturday she goes to work and $36.74 for each overtime after 2hours (Fair Work Commission 2017a, p.38). Additionally, she works a night shift once in a week particularly on Friday that she should be paid an hourly charge of $ 22.86.

Miss Tan has demonstrated the exemplary performance of her duties and responsibilities in relation to the job level and age. Therefore, the investigations conclude that she is unfairly paid and should be paid an hourly rate of $ 20.41. Furthermore, GM Pty should back data her payments up to until the date of her 19th birthday and pay all her due forthright in reference of to the Clerks Private Sector Award 2010 pay guide.

Question Two

The Fair Work Act of 2009 grants employees in Australia a right to claim a personal/carer’s leave to care for a close family member who may be in need (Fair Work Commission 2014, p.4). The leave is only applicable to full-time employees for a period of 10 days per year which is fully paid by the employer (Fair Work Commission 2014, p.3; Mou 2017, n.d). To take this personal leave, employees will be required to make a flexible working arrangement request to their employer in line with the National Employment Standards(Fair Work Commission 2018, n.d).The employer may choose to honour or deny the request following proper procedures and guidelines as set out in the employment law (Fair Work Commission 2018, n.d )Such is the case with Mr. Tom Davis who is made a formal request of working arrangement to the HR at GM Pty Ltd in order to take care of his grandson once a week. He wants a change in the hours of work any day within a week to fulfill his grandfatherly duties at home.

According to Fair Work Commission (2018), the employer has the right to grant the request is the worker is 55 years old and above, are the parent/have responsibility for the care of a child, are experiencing violence from a family member, or have a disability. Therefore, since Mr. Davis is 64 years old and has a responsibility for a child (his grandson), he is eligible for a flexible working arrangement with the company. Davis made a formal request 14days ago but the law requires his employer to respond with an approval or a request within 21days (Fair Work Commission 2018, n.d). The HR director has denied the request but yet to communicate formally. The business line manager argues that the request will lead to significant loss of productivity and may require hiring someone one a part-time basis when Mr. Davis will not be around. However, the HR director can come up with some form of agreement to facilitate the request. The director should allow Mr. Davis to work from 8am-5pm from Monday to Thursday and take Friday off to be with his grandson.

Question Three

Introduction of new technology can lead to some roles becoming redundant, hence need to terminate the employment contract of affected employees. In the case of GM Pty Ltd, it has introduced automation services for bookkeeping and cash handling, making the work positions of Cheryl Banks and Patrick Sands redundant. The two employees have been duly notified in advance of their dismissal and are waiting for their final pay entitlements. According to the law, termination of employment on grounds of redundancy requires the affected workers to be paid their entitlements in full according to the National Employment Standards or their award system (Fair Work Commission 2017a, p.3).

According to my investigations, both Banks and Sands do not receive supported wage nor are they trainees or under any form of apprenticeship. None of the employees have been terminated because of serious misconduct on their part. Their termination will come into effect on 31st May 2018. They were both given a one week notice according to NES on redundancy (Fair Work 2018a, n.d). Mr. Sands is a full-time level two administrative clerk in employment since 2015. During the entire period of employment, Mr. Sands did not take any unauthorized paid leave but took 20 days of authorized paid leave. To determine Sands, final pay entitlements, a notice, and redundancy calculator were used (Fair Work Commission 2018a, n.d). His entitlements as from 31st May 2018 are as follows (Fair Work Commission 2018a, n.d);

An hourly rate of $20.21 and weekly base rate of $767.80

Public holiday $50.53 per hour with a minimum payment of 3 hours

Overtime Monday to Saturday $40.42 per hour after 3 hours of work

Night shift $23.24 finishes after midnight or before 9am.

Vehicle allowance of $0.78 per km.

Chery Banks is 19 years old. She is employed part-time as a level, one clerical administrator. She began working at the company on 1st Jan 2018 has taken no unauthorized paid leave or authorized ones. Miss Banks is entitled to the following final pay (Fair Work Commission 2017a, p.20; Fair Work Commission 2018b, n.d);

An hourly charge of $15.55

$20.22 per hour for the permanent night shift that ends after midnight.

Works on Saturdays for $19.44 for 4 hours minimum payment.

Public holiday for $38.88 per hour since she prefers not to be shift worker on those particular days.

A laundry allowance of $0.71 because part-time employees are required to change their clothing after the start and end of every shift.

Part Two

Question One

Employee pay, benefits and working conditions in Australia can be covered by an award, enterprise agreement or the NES (Fair Work Commission 2014, p.2). In most cases, an award covers all workers in an industry while an enterprise agreement only applies to a specific group of employees within an industry (Heart Harmony Communications 2017). It should be noted that an enterprise agreement does not override an industry award but rather compliments it (Heart Harmony Communications 2017). Furthermore, an enterprise agreement usually has a nominal expiry date something that does not apply to a modern award (Fair Work Commission 2018c, n.d).The Fair Work Act 2009 gives proper guidelines on how parties can reach a bargaining agreement and what should be included in it for legality (Fair Work Commission 2018c, n.d). Enterprise agreements are usually made between employers and trade unions on behalf of employees. All enterprise agreements should be made and the bargaining negotiated in good faith to make it legally binding and increasing its chances to be approved by the Fair Work Commission. A good enterprise agreement should include consultations, nominal expiry date, flexibility arrangements and a dispute resolution mechanism (Fair Work Commission 2018c, n.d).

Ford Australia is a key player in the country’s automotive industry. The company is a subsidiary of Ford Motor Company based in Michigan, US. Ford Australia The firm designs, manufactures, assembles, sells and imports SUVs, trucks, and cars (Ford Australia website 2018). As a company, Ford Australia promotes safety, fuel economy and quality of its products and services based on the latest innovative technologies (Ford Australia website 2018). Some of the popular models under production include the Ford Mustang, Range Rover, Fiesta, Focus and Escape (Ford Australia website 2018). The firm was founded in Geelong, Victoria in 1925 but currently headquartered in Richmond, Melbourne, Commonwealth of Victoria (Ford Australia website 2018).

One example of an enterprise agreement is the Ford Australia Enterprise Agreement 2017 (Skilled Trades) (Fair Work Commission 2018d, p.11). Ford Australia Enterprise Agreement is a single enterprise agreement (Fair Work Commission 2018d, p.1). Such an enterprise agreement involves related corporations that have similar interest and the employees to be covered under that particular agreement (Fair Work Commission 2018c, n.d). The Ford Australia Enterprise Agreement (FAEA) aims to foster better workplace relations between the company and its employees to increase business survival, growth and productivity of the organization (Fair Work Commission 2018d, p.12). In 2012, the Ford Motor Company (Australia) terminated 212 employees causing tensions that created the Ford Australia Enterprise Agreement 2012 (Lloyd & Lyons 2012, p.10). The current agreement does not cover all employees but only a small part of the workforce (Skilled trades). Previous bargaining agreements such as the Ford Australia Enterprise Agreement 2012 covered the Vehicle Division and General Salary Roll (Lloyd & Lyons 2012, p.10).

The bargaining agreement will become operational from 21st May 2018 and expire on 31st June 2019 (Fair Work Commission 2018d, p.10). There is also a dispute resolution mechanism both formal and informal inside the FAEA and the FWC as an external arbitrator (Fair Work Commission 2018d, p.15). The agreement also identifies consultative organizations to ensure continued engagement between the Company and other covered parties. They include Area Consultative Committees, Plant/Site Consultative Committees, Trade Training Consultative Group and Joint Strategic Issues Committee (Fair Work Commission 2018d, p.72; Lloyds & Lyons 2012, p.11). The functions of Area Consultative Committees include but not limited to the following (Fair Work Commission 2018d, p.71);

Implementation of the agreement.

Ford Production System.

Sales performance.

Diversity/work-life balance.

Occupational health and safety.

Labour and volume changes.

According to the Fair Work Commission (2018d, p.11), the current enterprise agreement covers the following;

Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union.

The Ford Motor Company of Australia.

The Australian Manufacturing Workers’ Union (AMWU) and its members who, under the rules of the AMWU as they existed on 30 September 2014, are allocated to the Metals Division.

All employees of the company covered under the agreement as skilled trades.

Question Two

If Tracey Tan were to be covered by the Ford Australia Enterprise Agreement, her situation will be slightly different than subscribing to the Clerks Private Sector Award. The reason is under the FAEA, Miss Tan will be considered tradesperson and therefore, likely to receive many of the pay and benefits enjoyed by a tradesperson in the automotive industry. Therefore, she will be relatively better off than the Clerks Private Sector Award. However, as a casual employee, she will be entitled to a weekly pay lower than that of a part-time or full-time tradesperson (Fair Work Commission 2018d, p.23). The weekly pay is different from the hourly rate of $ 20.41 as a level one year two clerical administrator under the Clerical award (Fair Work Commission 2017a, p.38). However, she will have to wait until May 21st, 2018 when the agreement will take effect to launch per pay review. Furthermore, according to the FAEA, trade and non-trade workers are employed on a weekly basis (Fair Working Commission 2018d, p.22). It means that the assertion by Miss Tan of being paid $17 per hour for a year may not be applicable if she is covered under the current bargaining agreement at Ford Motor Company in Australia. Additionally, only employees who are members of the Australian Manufacturing Workers Union before 2014 qualify to be covered by the agreement (Fair Work Commission 2018d, p.11).Nonetheless, if she were to be covered by Enterprise Bargaining Agreement (EBA), Miss Tan could find it easier to request and get a pay review than when under the Clerks Private Sector Award. The logic is that an employer is likely to take a pay review request more seriously if brought forth by a trade union representative than an individual worker. Therefore, a staff member is likely to be better remunerated if he/she is covered by an EBA than a modern award (Heart Harmony Communications 2017, n.d).

Wages in an EBA are not higher than an award to ensure that there is no huge pay variation among employees in a given industry. However, the nature of work to be done by employees requiring specialized skills in an agreement may attract higher wage rates than those contained in a modern award. For instance, the FAEA 2017 reveal that a level tradesperson in the automotive industry deserves a 60% minimum weekly wage that is relatively higher than NES (Fair Work Commission 2018d, p-.23). Since she is in her second year, the FAEA 2017 sets a 75% minimum wage rate which Tracey could have requested from the HR director (Fair Work Commission 2018d, p.23). In contrast, the Clerks Private Sector Award 2010 only sets a $20.41 per hour for a level one staff like Miss Tan (Fair Work Commission 2017a, p.38). Under his EBA, she could be entitled to a $1,296.65 weekly pay as from 1st October 2018 representing a. 2.5% increment from the current wage of $1, 234.15 (Fair Work Commission 2018d, p.31). In fact, after serving for 12 months, Tracey meets the criteria for an experienced grade 1 tradesperson with a weekly wage of $ 1,343.40 (Fair Work Commission 2018d, p.31). As such her hourly rate on casual basis will be $35.35, which is one-thirty eighth of the weekly pay as per FAEA 2017 (Fair Work Commission 2018d, p.22). Even she was not a skills trade, Miss Tan could be called upon to execute the duties of a tradesperson as stipulated in the FAEA 2017 (Fair Work Commission 2018d, p.34). As such Tracey could be entitled to all wages and benefits required for the job classification. Therefore, if Miss Tan could launch her pay review under this EBA, her situation could have definitely been better than the Clerks Private Sector Award 2010.

Question Three

Each party needs to fulfil their legal obligations according to the employment contract or an enterprise agreement or modern award is applicable and legally binding (Sappideen & O’Grady 2016, p.162). However, in the case of a breach of contract, the employer or employee can initiate a termination (Sappideen & O’Grady 2016, p.330). However, there are instances when an employee’s position in a company is made redundant, hence need for termination of employment contract (Sappideen & O’Grady 2016, p.340). Termination of employment as a result of gross misconduct does not require redundancy pay and any benefits accrued to the worker during the period of employment (Fair Work Commission 2018a, n.d). When an employer initiates termination due to redundancy, appropriate notice should be provided and ensure that the reason for making the position redundant is not discriminatory (Fair Work Commission 2018a, n.d). Lack of a notice in a reasonable amount of time as stipulated by law, can make the redundant being declared null and void and unenforceable, The law requires that workers whose roles are redundant should be paid their full entitlements pursuit to the date in which the notice of termination takes effect (Fair Work Commission 2018a, n.d).

The FAEA 2017 provides entitlements to the covered employees in case redundancy resulting from either voluntary or involuntary separation (Fair Work Commission 2018d, p.28). The termination of work due to automation services affecting Cheryl Banks and Patrick Sands qualifies as voluntary separation under the Ford EBA (Fair Work Commission 2018d, p. 28). The EBA requires that the company should provide regular updates on voluntary separation actions to the trade unions for review to ensure its adheres to Equal Opportunity Employment legislation (Fair Work Commission 2018d, p.28).According to the FAEA 2017 (Fair Work Commission 2018d, p.28), during redundancy caused by involuntary separation, the company has a responsibility to;

Consider and respond to any matters raised by effected employees which may avert or mitigate the adverse effects of such changes.

Notify affected employees of the decision to introduce major change and the effects the changes are likely to have upon them.

Mr. Sands due to his long period of service since 2015 will be paid much higher redundancy benefits upon termination of service. Therefore, Patrick Sands will be entitled to the following redundancy pay and benefits (Fair Work Commission 2018d, p.29);

A four weeks’ pay in lieu per year of service capped at 75weeks

A WorkCover compensation for 52 weeks.

Unused sick leave at 10 days a year for a maximum of 125days.

Retention of Ford Privilege Club vehicle purchase scheme for 24 months even after termination of service.

Payment of leave loading on accrued annual leave.

Outpatient medical services amounting to $1000 by a health provider approved by the union

External counselling on financial management to a tune of $500.

For Chery Banks that started employment in 2018 and therefore unlikely to belong a trade union before the making of FAEA 2017, she will be entitled to the following (Fair Work Commission 2018d, p.29);

Unused sick leave at 10 days a year for a maximum of 125days

Payment of leave loading on accrued annual leave

Employee’s assistance program.

4 week’s pay per year capped at 75 weeks excluding notice.

From the above entitlements under the enterprise agreement, it is evident that both Cheryl Banks and Patrick Sands are better off than when paid under a modern award. Conclusively, employees fair better under an EBA than a modern award after termination of service on the grounds of redundancy.

References

Fair Work Commission (2018). Requests for flexible working arrangements. Available at https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/requests-for-flexible-working-arrangements

Fair Work Commission (2018a). Notice and redundancy pay calculator. Available at https://calculate.fairwork.gov.au/CheckPay/Submit

Fair Work Commission (2018b). Notice and redundancy pay calculator. Available at https://calculate.fairwork.gov.au/CheckPay/Summary

Fair Work Commission(2018c). Enterprise bargaining. Available at https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/enterprise-bargaining

Fair Work Commission (2018d). The Ford Australia Enterprise Agreement 2017. Available at https://www.fwc.gov.au/documents/documents/agreements/fwa/ae428347.pdf

Fair Work Commission (2017a). Pay guide-Clerks Private Sector Award.

Fair Work Commission (2017b). Clerks Private Sector Award.

Fair Work Commission (2014). Fair Work handbook. Available at file:///C:/Users/user/Downloads/Fair-Work-Handbook

Ford Australia (2018). About us. Available at https://www.ford.com.au/about-ford/

Heart Harmony Communications (2017). Industrial awards vs. industrial agreements: What’s the difference? Available from ttps://www.employeemanual.com.au/awards-vs-agreements/

Lloyd, J., & Lyons, R. (2012). The automotive industry: Workplace relations impediment to survival. Available at https://ipa.org.au/wp-content/uploads/archive/1354745972_document_061212_submission_-_auto_paper.pdf

Mou, Q. (2017). Australian employment law: 10 key features. Available at https://www.personneltoday.com/hr/australian-employment-law-10-key-features/

Sappideen, C., & O’Grady, P.(2016). Macken’s Law of employment, 8th

edition. Thomson Reuters Australia Limited, Sydney.