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The Experts

David Bates
+ About David Bates

David Bates is a Team Leader and Strategic Consultant at Harmers Workplace Lawyers, where he works across all of the firm's practice areas. Prior to his appointment in August 2017, David was the Managing Director of a leading, online, subscription-based employment relations service where he provided a wide range of strategic, practical and plain-English advice to Australian business owners and operators.

David gained his BA (Government) from the University of Queensland in 1998 before going on to complete a Law degree, with Honours, in 2001. He began his career working for a large, blue-collar union before moving to Canada and then the United Kingdom, where he was employed by both the Commission for Racial Equality and its successor, the UK Equality and Human Rights Commission.

David routinely represents parties in Fair Work-related proceedings and is available to assist clients with all aspects of employment law-related compliance and best-practice. David is also an accomplished and highly sought-after public speaker who facilitates dynamic, informative and highly interactive workshops on all aspects of Australian employment law.

Myth busting: Annual leave

Wednesday, May 31, 2017

By David Bates

Today, I’d like to bust some of the most common annual leave related myths our team of HR experts here at Workforce Guardian regularly encounter.

Fact: Annual leave is one of the ten National Employment Standards (NES)

The vast majority of employees in Australia are covered by the Fair Work Act 2009. These employees accrue annual leave in accordance with the National Employment Standards, which are an important part of that Act. As a minimum, permanent full-time employees must accrue at least four weeks of annual leave each year.

Many employees who are covered by the Fair Work Act 2009 are also covered by a Modern Award or Enterprise Agreement. These often contain additional annual leave entitlements which must be provided to employees. For example, full-time nurses covered by the Nurses Award 2010 must accrue a minimum of five weeks’ annual leave each year.

Fiction: Annual leave can be ‘reset’ to zero if leave isn’t taken

Under the Fair Work Act 2009, an employee’s unused annual leave must rollover from year to year. An employer covered by this Act must not ‘reset’ an employee’s annual leave balance to zero if leave isn’t taken within a specific period of time.

Fact: Annual leave accrues progressively

Under the Fair Work Act 2009, annual leave accrues progressively throughout each employee’s year of service, based on the employee’s hours of work. For example, a full-time employee who is entitled to accrue four weeks of annual leave per year will have accrued exactly two weeks of annual leave after completing six months’ service (assuming no leave has been taken during that time).

Similarly, permanent part-time employees accrue annual leave on a pro-rata basis based on their actual hours of work.

Fiction: All employees receive ‘annual leave loading’

Annual leave loading is an additional amount paid to some Modern Award or Enterprise Agreement-covered employees when they take annual leave. It is usually (but not always) set at 17.5%.

Some other employees also receive annual leave loading because their employer has voluntarily chosen to provide this benefit.

This means an employee who is not covered by a Modern Award or an Enterprise Agreement – and whose employer has chosen not to offer annual leave leading – does not receive this specific benefit.

It’s accordingly very important to always check applicable Modern Awards and Enterprise Agreements carefully to confirm whether annual leave loading is payable to a given employee.

Fact: Unused annual leave must be paid out when employment ends

An employee’s unused annual leave needs to be paid out to them when employment comes to an end. If the employee would have been paid annual leave loading if the leave had actually been taken, then this almost always needs to be added to the payout.

Lastly, please keep in mind deductions can sometimes be made from an employee’s final payment, however, very strict rules apply. We strongly recommend you obtain expert advice before making any deductions from an employee’s final pay.

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The importance of good HR advice

Wednesday, May 24, 2017

By David Bates

Should ‘HR’ stand for ‘human relations’ instead of ‘human resources’? Fair Work Commissioner Ian Cambridge thinks so.

In a recent decision delivered by the Fair Work Commission against Komatsu Forklift Australia Pty Ltd, Commissioner Cambridge concluded the Company’s decision to dismiss an employee with mental health issues via email was unacceptable, and that dismissal ‘by electronic means should be strenuously avoided’.

To make matters even worse, the Commissioner found Komatsu’s HR Department had incorrectly treated the employee’s absence on medically-certified sick leave as a refusal by the employee to perform his duties.

In one sobering passage of the decision, the Commissioner stated: “In fairness to Komatsu, many large employers with dedicated HR specialist teams seem to be unable to avoid errors of the kind identified in this instance".

And therein lies the problem: far too many employers rely on dodgy (not a legal term!) advice from both internal and external HR advisors/consultants/lawyers who know far too little about the strict dismissal-related obligations imposed by a combination of the Fair Work Act 2009 and Australia’s state and Commonwealth anti-discrimination laws.

There is clearly no point putting your HR Department in charge of a performance review or disciplinary procedure if they don’t understand the difference between a person who is on certified personal leave and a person who simply refuses to return to work!

We see similar mistakes being made all the time when it comes to redundancies. Employers decide they want to get rid of someone and then simply announce they have been made redundant. 

Unfortunately, this almost always triggers an expensive and time-consuming unfair dismissal claim because the vast majority of Australian employees have a legal right to be meaningfully consulted before a final decision to declare their position redundant is reached by their employer. By the time the hapless employer contacts our team for help, it’s just too late because we can’t undo what’s already been done.

The solution is, in fact, quite simple: get advice from qualified experts before you do anything.

Relying on outdated HR processes – or naively thinking every member of your internal HR Department understands all the nuances of the Fair Work Act 2009 – will, more often than not, result in HR tragedy.

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Online medical certificates: An employer headache

Tuesday, May 09, 2017

By David Bates

Sometimes I feel like our HR Consultants here at Workforce Guardian should be re-named ‘Mythbusters’. They seem to spend so much time ‘busting’ commonly-held HR myths that this new title seems rather more fitting than ‘Senior HR Advisor’.

Take the ‘3 written warnings myth’ for example. I’m sure you’ve heard this one before: an employee must be given three written warnings before they can be dismissed. Really? You’ll have a hard time finding that requirement anywhere in the Fair Work Act … because it isn’t there.

Another commonly-encountered myth is this one: a medical certificate can only be requested if the sick day falls either side of a weekend or a public holiday, or if the leave lasts two or more days. Um, no, these requirements aren’t imposed by the Fair Work Act either.

In fact, employers are entitled to ask an employee to produce evidence to support a sick leave absence every time it is taken, regardless of whether it’s a single day or at the start (or in the middle) of the week. 

The important thing to note, however, is that the employee isn’t required to provide supporting evidence unless and until it is requested by their employer. If no request is made, no evidence needs to be provided.

And here’s another sick leave-related myth: medical certificates are the only acceptable form of evidence an employee can provide. 

The Fair Work Act makes it clear that employees are entitled to provide any form of evidence which would ‘satisfy a reasonable person’. In the vast majority of cases, employees provide their employer with either a medical certificate or statutory declaration.

As you may already be aware, pharmacists are often willing and able to provide their customers with a ‘certificate’ confirming the person is unfit for work. Many employers aren’t exactly pleased by this development because it means employees don’t even need to go to the trouble of booking (and often paying) for an appointment to see their GP to justify their absence.

Well, things just got a whole lot worse.

Enter ‘Qoctor’ , Australia’s ‘quick, online doctor’. Yep, for just $19.99, your employees can book a ‘Skype’ appointment with a GP who’ll conduct a consultation online and then email through a medical certificate. No need to leave home! No need to practice that limp! And no need to even slide out of bed! (However you will, sadly, need to pause that episode of Game of Thrones that you’re streaming long enough to Skype with the doctor).

The real question is this: would a medical certificate issued by a GP who has never met your employee in person satisfy a ‘reasonable person’ that the sick leave was justified?

You be the judge.

Because sooner or later, one of these certificates is going to land in your inbox and this will no longer be a hypothetical situation. Instead, it will be your latest headache (but don’t worry, Qoctor can issue scripts for severe headaches too!).

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The wage underpayment saga continues

Wednesday, May 03, 2017

By David Bates

Not too long ago, I wrote that the wage underpayment scandal engulfing 7-11 franchisees was just the tip of the iceberg.

Well ladies and gentlemen, the rest of that iceberg is about to smash head-on into hundreds of unsuspecting Australian employers.

Caltex is now the latest brand to be tarnished by seemingly widespread wage underpayments by some of its franchisees. The Company is currently auditing its service stations and, to date, 19 franchise agreements (covering a total of 43 separate locations) have been terminated because the franchisee was found to be in breach of applicable employment laws.

The problem is so bad, Caltex has now set up a $20,000,000 fund to cover the back-payments likely to be owed to current and former employees.

You might be thinking ‘wow, that’s a lot of money!’. But it’s all relative. Have a guess at the total value of the underpayment claims processed so far by 7-11 Australia since it set up its own ‘Wage Repayment Program’.

$30,000,000? No. Higher.

$50,000,000? Nope. You’re not even close.

A staggering $90,000,000+ in claims has been processed so far, and there are still plenty more to go. You can monitor their progress for yourself here.

But things are set to get a while lot worse, because Caltex and 7-11 aren’t alone, and there are also thousands of other franchisees out there who think they’re doing the right thing but who will shortly learn (to their dismay) that they’re not.

Perhaps they think their employees are covered by the Retail Award when they are, in fact, covered by the Vehicle Manufacturing, Repair, Services and Retail Award … and have been since 2010 (think: massive underpayments and potentially crippling back-payments).

Or perhaps they’ve been relying on workplace relations advice provided by their franchisor, which has been sketchy at best or hopelessly misguided at worst (such as the advisers who recommend magically ‘turning’ everyone into an independent contractor by applying for an ABN).

Or maybe they’ve just paid ‘the going rate’ and innocently assumed Australia’s employment laws are similar to those in other Western economies (read: imminent HR tragedy).

We’ve been saying for years the only reason the Fair Work laws haven’t crippled small businesses is because most employers either don’t understand them or feel they have no choice other than to ignore them.

Makes you wonder where it’s all headed, doesn’t it?

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Enterprise agreements come unstuck

Wednesday, April 12, 2017

By David Bates

Phew, it’s been quite a week in the world of HR and Fair Work.

Let’s start with the latest developments in the ongoing saga of the Enterprise Agreement (EA) which covers tens of thousands of workers at Coles.

EAs are, of course, those legally-binding documents containing the minimum terms and conditions which apply to employees in a specific workplace.

They’re traditionally negotiated directly between the employer and a union.

EAs must be lodged with the Fair Work Commission (FWC) for formal approval. The FWC can only approve an EA – and it can therefore only have legal effect – if it passes the ‘Better Off Overall Test’ (BOOT) (by now you’re probably starting to wonder why anyone goes through this tortuous process!).

The BOOT is where all of the problems for Coles and the relevant union – the SDA – began. You see, it turns out the last EA should never have been approved because it left lots (read: thousands) of employees worse off and didn’t pass the BOOT.

You might think the union was thrilled to have an EA which underpaid workers thrown out. They weren’t. In fact, they opposed the application made by the worker who had been short-changed and wanted the whole thing undone. Go figure.

As a result, Coles (and the SDA) had to begin complying with their previous EA. However, it now looks like that one should have failed the BOOT too. Oh dear.

The FWC will shortly determine whether that old EA also needs to be quashed. If it is (and I certainly hope it is), the entire EA-making system will begin to fall apart. Hundreds of other ‘dodgy’ EAs will be put under the microscope, and potentially hundreds of thousands of employees will become entitled to back payments.

Just don’t hold your breath waiting for a union to step in and help them. After all, it’s the unions which negotiated these EAs in the first place.

Before I sign off this week, I also wanted to mention a recent FWC decision which will be of interest to employers everywhere.

The FWC has awarded $6,000 compensation to an employee who was fired after he posted a number of incredibly offensive comments on Facebook about a person employed at his mother’s business.

According to the employer, LED Technologies, the posts breached the company’s social media policy and justified instant dismissal. The Commission disagreed, finding the posts were sent while the employee was on a break and, besides, he’d never even seen the policy in question.

Furthermore, the FWC found the dismissal was also unfair because offensive language was often heard in the employee’s workplace, and the employer failed to provide the employee with an opportunity to explain why he shouldn’t be sacked before the final decision was made.

Moral of this story: communicate your policies, watch your language, and follow a formal process when dismissing an employee.

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Masterchef cooks up a Fair Work disaster

Wednesday, April 05, 2017

By David Bates

If you’re a fan of reality TV, chances are you’re familiar with George Calombaris from the hit show Masterchef. He cooks up lots of incredible dishes, the latest of which is a rich serving of humble pie.

You see, Mr Calombaris is the latest Australian employer to discover our nation’s ridiculously complex employment laws make it virtually impossible to pay employees correctly.

The Fair Work Ombudsman (FWO) has this week confirmed Mr Calombaris underpaid his restaurant employees. By $2.6 million. The average underpayment was approximately $16,000 per employee. According to the FWO, poor business practices were to blame, and Mr Calombaris didn’t mean to underpay his staff.

That’s not very reassuring, is it? I mean, if one of the nation’s most well-respected employers – who presumably has a wealth of accounting and HR professionals at his disposal – can’t get it right, what hope is there for the rest of the country’s employers?

But, of course, Mr Calombaris isn’t the first employer to learn the hard way that you basically need to have a Masters in Employment Law to comprehend – and comply with – Australia’s ludicrous system of Modern Awards.

Take employers at 7-11 for example. According to the official wage underpayment website set up by the company, they have so far processed over 2,200 claims from current and former employees, and the total dollar value of these claims now exceeds $85,000,000.

Yes, 85. Million. Dollars.

Many of these employers thought they were paying their staff correctly under the General Retail Industry Award 2010, only to discover (much to their surprise) that their employees are actually covered by the Vehicle Manufacturing, Repair, Services, and Retail Award 2010. (No, not complex at all, right?).

And don’t forget the wage underpayment scandals now engulfing Pizza Hut, Domino's Pizza, and a number of other franchises. 

Luckily for all of us employers, there’s a Commonwealth Government Agency responsible for making sure we all understand the law and are able to fully comply with all our obligations. It’s called the Fair Work Ombudsman. 

Yep, that’s right, them. Good luck.

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More HR myths busted

Wednesday, March 29, 2017

By David Bates

A lot has happened in the world of Fair Work since my last appearance on the Switzer program … and none of it has been good for small businesses. 

Given the nature of the 24-hour news cycle – and the might of the Australian Council of Trade Union’s (ACTU) media machine – a range of damaging myths about these Fair Work developments have been incorrectly reported as facts … so let’s set the record straight:

Myth #1: The Turnbull Government is ‘Ripping Away’ Penalty Rates from Aussie Battlers.

Question: Who set up the review which resulted in the Fair Work Commission reviewing Modern Awards? 

Answer: Labor’s Julia Gillard.

Question: Who specifically instructed the Fair Work Commission to look at penalty rates during their review?

Answer: Labor’s Bill Shorten.

Question: Who appointed the current President of the Fair Work Commission?

Answer: The Labor Party

Question: Who promised to respect the decision of the ‘independent umpire’, even if they decided in favour of reducing penalty rates?

Answer: Labor’s Bill Shorten.

Noticed the pattern of brazen hypocrisy yet?

Myth #2: The Turnbull Government Understands Small Businesses.

Sorry to tell you, they don’t. If they did, Employment Minister Senator Michaelia Cash would have managed to appoint at least one small business owner during her last round of appointments to the Fair Work Commission last week.

While employers should at least be thankful that none of the appointees are former trade union officials (because former employee advocates already comprise the majority of appointed Commissioners), it is simply unfathomable to me (and countless others who don’t belong to the IR boys club) that not a single small business owner was considered worthy of appointment to the Commission.

Want to reform the Commisssion and inject some much-needed common sense into this  apparently ‘partisan and dysfunctional’ (the description provided by recently-departed Commission Vice-President Graeme Watson) organisation? Appoint some small business owners.

Myth #3: The ACTU deserve a seat at the table.

No, it doesn’t. The ACTU is now a shadow of its former self. Once upon a time, its leaders worked constructively with government and employers to bring about important social reforms and protect the rights of workers.

Nowadays, it’s a socialist shambles that has no respect for either our democracy or the rule of law.

But don’t take my word for it – take the word of the ACTU’s new secretary, Sally McManus, instead.

When asked on the 7:30 program if she supported the rule of law (you know, that pesky thing that separates our country from third world dictatorships), Sally said yes. But Sally then said it was perfectly fine to break laws if you felt they were unjust. Seems Sally may not have really understood what ‘the rule of law’ means after all.

So, in Sally’s world, if you think income tax is unfair: don’t pay it. If you think the speed limit is for schmucks: just ignore it. If you don’t like workplace health and safety laws: pretend they don’t exist.

I call it the ‘Silly Sally Defence’: if you personally feel a law is unfair, you can just disregard it. 

And how did ACTU President Ged Kearney respond to Sally’s extraordinary disregard for our nation’s laws? She called her ‘refreshingly honest’.

Ready to close your business yet?

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Annual leave changes causing confusion

Wednesday, March 15, 2017

By David Bates

If your employees are covered by one of the nation’s 122 Modern Awards, chances are you’re unaware significant changes were made by the Fair Work Commission to their annual leave entitlements in 2016.

These changes – many of which were made after years of lobbying by employers – are of considerable importance to you and your business. They allow:

  • employers to direct an employee to take annual leave once they have accrued an ‘excessive’ annual leave balance; and
  • employees to cash-in a portion of their accrued annual leave; and
  • employers to recover annual leave ‘debts’ via deductions from final pay if an employee has been provided with annual leave in advance of its accrual, and the employee subsequently leaves before their accrual has returned to a positive balance.

Crucially, however, these changes generally only apply to employees who are covered by a Modern Award which has been specifically amended by the Fair Work Commission (most of them have been). Given that Modern Awards apply as a matter of law and not choice or preference, it’s accordingly very important for all employers to confirm:

  • if their employees are covered by a Modern Award; and
  • whether that Modern Award has been varied by the Fair Work Commission to include the above-mentioned changes.

For those employers already familiar with Australia’s employment laws, it won’t be surprising to learn these annual leave changes are accompanied by a large number of very strict rules which must always be carefully followed. 

For example, if an employee wants to cash-in some of their annual leave, they must:

  • have a remaining balance of at least 4 weeks’ annual leave after the cashing-in has been processed; and
  • be paid the same amount that they would have received had the annual leave actually been taken; and
  • record the agreement to cash-in annual leave in writing; and
  • not cash-in more than two weeks of annual leave in any 12 month period.


Despite the abundance of bureaucracy imposed by the Fair Work Commission, these changes are ultimately good news for employers. Of course, they’re of no benefit at all if employers don’t know about them. 

Given how rarely the Commission appears to support businesses these days, it’s definitely worth taking the time to familiarise yourself with the Awards which apply to your workplace and making the most of these recent amendments.


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Fair Work Ombudsman throws in the towel

Thursday, March 09, 2017

By David Bates

For more than seven years now, the team at Workforce Guardian has consistently described Australia’s so-called ‘Fair Work’ laws as ‘hopelessly complex’. We’ve backed this claim by comparing Australia’s workplace relations system with those in comparable jurisdictions such as New Zealand, the UK, and Europe.

Only here do we maintain an archaic system of over 100 ‘Awards’ which baffle and befuddle small business owners.

Only here do we force employers to sift through ‘Pay Guides’ – some almost 200 pages long – to determine how much employees need to be paid.

Only here do we allow former trade union officials with no legal qualification to sit as judge and jury at an employment tribunal which we know – thanks to the frank admission of former Fair Work Commission Vice President Graeme Watson – is widely regarded as ‘partisan’ and ‘dysfunctional’.

So, isn’t a relief we have a Commonwealth tax payer-funded agency responsible for ‘educating people working in Australia about fair work practices, rights and obligations’.

Well, it would be a relief if that agency actually did its job.

It doesn’t.

And the proof is in the incredibly high rates of non-compliance with our (hopelessly complex) employment laws which are consistently confirmed by the Fair Work Ombudsman itself.

Think 7-11 underpayment scandal. Think Pizza Hut scandal. Think general incompetence.

And now, it seems, the Fair Work Ombudsman has simply decided educating employers about their obligations is all just too hard. So, instead, the agency responsible for educating employers is going to force advisors to business – bookkeepers, accountants, HR consultants – to do their job for them.

They’re doing this by increasing their reliance on section 550 of the Fair Work Act, which allows the Ombudsman to prosecute anyone who is ‘knowingly involved’ in a breach of the Fair Work Act.

This remarkable section even extends liability where the party accused of being knowingly involved in the breach indirectly didn’t do something (yes, you read that right). This is because the section expressly states an advisor to business can be prosecuted as an ‘accessory’ as a result of a direct or indirect act or omission.

Rather than doing the job it was set up to do, the Fair Work Ombudsman is going to force business advisors to do it for them under threat of prosecution as an accessory if the employer isn’t fully-compliant with Australia’s (hopelessly complex) employment laws.

Raising the white flag of surrender … the latest chapter in the debacle that is the Fair Work Ombudsman.

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6 facts about the penalty rates decision

Tuesday, February 28, 2017

By David Bates

Last Thursday’s decision by the national employment relations tribunal, the Fair Work Commission, to reduce penalty rates for some employees on Sundays and public holidays was completely unsurprising to all of us who have followed the Commission’s work in this area.

Equally unsurprising was the near hysterical reaction of both unions and the members of the political party owned and operated by the unions.

So, let’s pause for just a few minutes and look at the cold, hard facts.

Fact #1: The only reason the Commission looked into penalty rates at all was because Bill Shorten told it to! Back when he was Employment Minister in the last Labor government, Bill Shorten expressly directed the Commission to look at penalty rates when it conducted its first four-year review of Modern Awards. Talk about an own goal.

Fact #2: In April 2016, Mr Shorten stated unequivocally that he respected the independence of the Fair Work Commission, and promised neither he, nor his party, would stand in the way of any reductions to penalty rates if these were ordered by the Fair Work Commission. It seems his promise to respect and preserve the independence of the Commission didn’t go down too well with his comrades in the union movement.

Fact #3: On the night of the Commission’s decision, Mr Shorten invited a young retail worker to front the cameras and explain how ‘gutted’ he was by the Commission’s decision. The only problem was that the young man works for Coles and is covered by an Enterprise Agreement. As a result, the Commission’s decision actually doesn’t impact him at all. #oops

Fact #4: The Enterprise Agreement which covered the young man in question was negotiated between the SDA (the militant retail union) and Coles. And guess what? That Agreement had long ago reduced penalty rates to below the Modern Award rates. Put another way, the union had already cut penalty rates for precisely the same employees they now claim will be devastated by the Commission’s decision to do exactly the same thing. Now that’s embarrassing.

Fact #5: Only employees covered by 5 of the 122 Modern Awards are affected by the Commission’s decision. Furthermore, we don’t even know yet when the changes to Sunday penalty rates will apply because the Commission hasn’t made up its mind. The changes to public holiday penalty rates will apply from 1 July this year.

Fact #6: Penalty rates have not been abolished! The Commission has announced reductions in some penalty rates paid to employees covered by some Modern Awards some of the time. The sky is not falling down. The sun will rise tomorrow. And the person most responsible for the Commission making the decision to reduce penalty rates is the Hon Bill Shorten, who never lets the facts get in the way of a good story.

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