Following on from the audit program conducted by the Fair Work Ombudsman (FWO) into the Horse Racing Industry in Queensland, New South Wales and Victoria and subsequent final report released by FWO on 28th January 2014, it is timely to revisit certain award requirements highlighted by the December 2013 report findings.
We note that the FWO program was designed as a pilot program to determine if further activity in the industry is required. This program specifically focused on employers that employ stablehands and/or strappers on race days. Possibly if future audit programs are conducted they may involve other employees besides stablehands and strappers in your employment.
With 40% of employers found to be non-compliant it is important to ensure that you are aware of your obligations not only under the Horse and Greyhound Industry Award 2010 (HGTA) but also compliant with the Fair Work Act 2009 (the Act) and the Fair Work Regulations (the regulations).
The FWO audit reported findings that some employers had engaged employees on a casual basis;
a) Even though they did not meet the requirements or definition of a casual employee. Please refer to Clause 10.4 of the HGTA,
b) For less than a minimum daily period of three hours. Please refer to Clause 10.4 (f) (i) of the HGTA,
c) That had worked the morning shift and later that same day returned for the afternoon shift or to attend a race meeting. Please refer to Clause 10.4 (f) (ii) of the HGTA,
The above findings are contrary to the provisions of the award with regard to the classification and conditions relating to casual employees.
CASUAL EMPLOYEES AND THE “RIGHT TO ELECT”
A casual employee under clause 10.4 (d) of the HGTA can elect to be engaged as a permanent employee. Click here to download the “Right to Elect” template that we recommend employers should retain on an employees file. This template simply advises the employee of there right to elect a transfer from Casual to permanent Fulltime or Part-time employment, and if exercised any change to their pay rate and status.
The following is a copy of Clause 10.4 (Casual employment) from the Horse and Greyhound Training Award 2010, extracted on 3 February 2014.
10.4 Casual employment
(a) A casual employee is to be employed by the hour and the employment of a casual employee may be terminated at any time.
(b) Casual employees may only be engaged in the following circumstances:
(i) to meet short term work needs; or
(ii) to carry out work in emergency circumstances; or
(iii) to perform work unable to be practicably rostered to a permanent employee.
(c) A casual employee working ordinary time must be paid the appropriate minimum wage prescribed in clause 13 - Classifications and minimum wages, calculated hourly plus a loading of 25% but will not be entitled to any of the leave or public holiday benefits applying to full-time employees. The loading constitutes part of the casual employee’s all-purpose rate.
(d) A casual employee who has been employed on a regular pattern of hours in 12 consecutive weeks must after that time have the right to elect to be engaged as a permanent employee if the employment on a regular pattern of hours continues into the next consecutive week. Any eligible employee that elects to convert must thereafter be treated for all purposes of this award as a full-time or part-time employee, as the case may be.
(e) An employee must not be engaged or re-engaged as a casual employee under this clause to avoid any obligation under this award.
(f) A casual employee must be engaged:
(i) for a minimum daily period of three hours; and
(ii) not more than once on each day.
(g) If a casual employee is given notice or dismissed at other than the normal place of employment the employee must be entitled to transport or return fares to the usual place of employment.
The ATA’s Industrial Relations Manager - Wayne Lee, is contactable on (03) 9372 1688 should Members require further assistance.