Inside… - NSW Farmers Association

Industrial Relations
Update Edition 2
Inside…
Current Issues, News and
Updates
Harvest Safety
Quad Bike Update
Workers Compensation
Update
High Risk Work Licence
Reminder
Employment Topics
Emergency Services Leave
What happens when I overpay
an employee?
Transmission of business.
Upcoming Webinars
7 th November 10am: WHS Update
3 rd Dec 9.30am: Leave entitlements
31 st Jan 9.30am: Managing employee
performance
If you would like to register or
require further details, please
email us.
If you have particular queries or
concerns about the issues mentioned
in this update, or any other
employment related matters, please
feel free to get in touch with a
member of our team. We can be
contacted on 1300 794 000 or (02)
8251 1700, or alternatively, via email,
at industrial@nswfarmers.org.au we
are always happy to assist.
Welcome to another edition of the Industrial Relations
Update. This month, we have a look at harvest safety and
give a comprehensive update on what has been happening
in the regulatory arena in relation to quad bikes and
managing their safety. In that article, we also include some
practical tips for safe operation of quads. With the summer
season fast approaching, we also take a look at what
employees entitlements are for emergency services leave as
well as various other topical updates.
Harvest Safety
Harvest time will soon be upon us in NSW. It is a busy and
hectic time and often involves long hours. This can also be one
of the most dangerous times of the year for employers and their
workers in the grains industry. Under WHS legislation,
employers, (now termed “PCBU’s”) need to take all reasonably
practicable steps to ensure the safety of workers.
As a minimum, we would recommend that PCBU’s have
pertinent and tailored WHS polices in place and perhaps more
importantly for harvest time, processes for inducting employees,
contractors and contractors employees (collectively termed
“workers”) on to their farm. Employers have responsibilities not
only to their own employees, but to the employees of contractors
that come on to their property, and this induction process is an
important step in protecting all workers.
In addition, PCBU’s need to consult with other duty holders
(such as contractors), to ensure that safety issues are
adequately addressed. This is a positive duty to consult, coordinate
and co-operate with other duty holders. Safe Work
Australia has published a Code of Practice to assist employers
with this positive duty which can be found here.
Practical advice to help maintain safety at the farm level
includes:
Making sure that all machinery is regularly serviced, checked
and that proper guarding is in place,
Ensure that there is adequate lighting in place for work
during dusk or at night,
Arrange for referesher training if required,
Implement management strategies to combat fatigue
including rostering, sufficient breaks and providing rations
and meals as needed.

Current
issues,
news and
updates
We have been busy keeping members abreast of what is
happening in the regulatory space in relation to quad bikes.
Recently, Gracia Kusuma, IR Manager, attended a Quad
Bike Safety Forum in Melbourne hosted by Bill Shorten, the
Federal Minister of Employment and Workplace Relations.
The Forum followed an Issues Paper released by the
Minister seeking feedback on how quad bikes can be
engineered to be safer. Although the purpose of the Forum
was meant to further discuss the submissions received,
discussions held at the Forum quickly narrowed to the long
standing debate on fitment of Crush Protection Devices
(CPDs) on quad bikes.
Subsequent to the Forum, the Minister has announced that
he will be looking at mandating the fitting of CPDs on all
quad bikes used within the ComCare system (federal
government employees).
Several safety interest groups and the unions are calling for
mandatory fitment of CPDs. The manufacturers steadfastly
oppose fitment of CPDs on quad bikes, relying on
research, testing and studies that conclude fitment of CPDs
increases injury risks. The accuracy and reliability of these
studies has been challenged time and time again. Most
recently, a publication released by the Institute for Safety,
Compensation and Recovery Research at Monash
University identifies serious issues with the simulation
methods, and the conclusions of the research relied by the
manufacturers group.
NSW Farmers supports the retro-fitment of CPDs, but we
cannot support the fitment of CPDs being made
compulsory, especially when there is no definitive and
impartial scientific research in existence about CPDs on
quad bikes. NSW Farmers believes it is an issue that each
farmer should be able to decide for themselves following a
risk assessment.
NSW Farmers anticipates the research funded by
WorkCover NSW (and undertaken by university of New
South Wales) will set safety standards for quad bikes and
clarify the use and limitations of CPDs on quad bikes.
NSW Famers is part of a reference group to oversee this
research.
With that in mind, we thought it was a good time to remind
our members of the recommended best practice when it
comes to protecting your own, your families, and workers
Quad Bike Update
safety whilst operating a quad bike. It is every
employer’s duty to provide safe systems of work and to
maintain a safe work environment. The following
guidelines may help operators when developing safe
systems of work for their operation. This list is not
exhaustive, and different factors will need to be taken
into account on different properties, however, this is a
good start.
Ensure that all individuals that operate a quad bike
know how to do so competently, and have adequate
induction, instruction and training;
Passengers should never be carried on a quad
unless you are operating a quad that is specifically
designed for this purpose;
Ensure that quads are not overloaded, and that they
are fit for the particular task that is being
undertaken.
Define areas of the farm and tracks that are safe for
quad bikes to go, and also spell out where the “nogo”
areas are;
Set safe speed limits that are communicated,
understood and adhered to by all staff;
Restrict the operation of adult quads to competent
persons over 16 years of age;
Always wear a helmet; and
If you are contemplating purchasing a quad bike for
farm use, it is important that the vehicle selected
should fit the type of farm & tasks intended. There
may be another type of vehicle that is more suitable.
WorkCover NSW has published a checklist that may
assist in this decision process here.
These tips are taken out of the Australian Centre for
Agricultural Health and Safety practical management
guide for quad bikes and side by side vehicles, this
document is a very comprehensive and useful guide for
producers to consider. You can access it by registering
on their website and browsing their publications.

Employment law
reminders...
helping you to
remain compliant
This month: Emergency Services Leave
What’s the
difference
between IR
Basics and IR
Essentials
membership?
All NSW Farmers
producer members
have an IR Basics
(IRB) membership.
This gives them
access to phone
support (4 x per year)
and limited access to
the IR website.
For an additional fee,
members can upgrade
to the IR Essentials
(IRE) membership
option giving them
unlimited access to the
support services
provided by the IR
team, including
assistance with
drafting all forms of
employment
documentation such
as contracts, policies
and Individual
Flexibility Agreements
(IFA’s).
With the summer season just around the corner, it is important for employers to be
aware of the leave available for employees who volunteer in emergency services
activities.
Employers need to be aware of the entitlements of employees whilst on emergency
services leave, and also, to then ensure that employees are not unfairly victimised as
a result of taking such leave.
In NSW, the State Emergency & Rescue Management Act 1989 mandates that
employees cannot be dismissed as a result of taking emergency services leave. Also,
employers cannot alter the circumstances of the employee’s position to their prejudice
or injure the employee’s prospects for promotion in the workplace as a result of them
taking leave.
Emergency services leave is part of the wider entitlement to Community Services
Leave. Under the National Employment Standards (NES), which came into effect on
1 January 2010, employees, including casual employees, have an entitlement to
community service leave. Community Service Leave is available for employees that
are engaged in jury service or in a ‘voluntary emergency management activity’. A
‘voluntary emergency management activity’ means that the activity deals with an
emergency or natural disaster and the employee engages in the activity on a
voluntary basis. In addition, the employee needs to be a member of a ‘recognised
emergency management body’. Such bodies can include fire-fighting and rescue
bodies.
The amount of leave taken can vary, and there is no maximum limit. Generally
though, community service leave (including emergency services leave) allows
absences if it is reasonable in all the circumstances. The leave can include
reasonable travel time and time taken after the leave to rest from the activity
undertaken.
Community service leave is unpaid, except for leave taken to attend jury duty where
there is a requirement to pay “make-up” pay for permanent employees. The amount to
be paid is the difference between the amount that employee is paid for attending jury
service, and the base wage amount that they would have been entitled to had they
attended work. The NES requires employers to pay make-up pay for up to 10 days,
however, award covered employees may be entitled to make-up pay for a longer
period. You will need to check the relevant award for full details.
The notice and evidence requirements are similar as for personal leave. The
employee has to give reasonable notice of their intention to take community service
leave and the employer may require evidence that proves that the leave was for
community service purposes. Specifically for jury service leave, the employer may
require evidence of the jury pay, in order for you to correctly apply the provisions in
relation to “make-up” pay.
For more information on Community Service Leave, click here.

High Risk Work
Licence Reminder!
Are you one of the thousands of
NSW workers who hold a high
risk work licence? If so, take a
good look at your current licence
because changes are coming into
effect that mean you might have
to renew before 31 December
this year.
To meet national standards, a
number of older high risk work
licences will require conversion
and renewal before 31 December
2012. This includes licences
issued before 1996, licences
issued between 1996 and 2004
without an expiry date, and
licences issued with an expiry
date but not renewed within 12
months of expiring.
High risk work -
no photo, no valid
expiry, no
licence…
Click here for further details
including the steps you need to
take to renew your licence.
Workers Compensation
Update
As many members would be aware, the NSW Workers
Compensation scheme (“the Scheme”) has undergone a
parliamentary review due to the Scheme’s significant deficit of over
$4 billion. Without reform to the Scheme, employers were faced with
up to 28% increases in premiums. NSW Farmers and members
(through the online submission builder) made submissions to the
review to oppose any additional cost impost for employers.
Following this, amendments to workers compensation laws, to
reform the Scheme in NSW, were passed in June. One of the main
objectives of the reform is to improve injured workers’ return to work
rate, and in the long run, reduce the Scheme’s financial viability.
As a result of the reform, the WorkCover Board has since advised
that the premium target collection rate will remain the same, which is
good news for employers. Workers compensation insurance
premiums are based on a number of factors, including the industry
in which you operate, the amount of your annual wages and the dust
diseases levy. Industry rates and formulas used for calculation of
2012-2013 premiums are in the Insurance Premiums Order as
published in the NSW Government Gazette.
Details of the reform are being progressively introduced by
WorkCover based on priority timeline. We have drafted a briefing
note that is available here in order to assist members with the
changes that are happening.
WorkCover compliance activities confirm support approach
WorkCover currently appears to be maintaining a focus on
education, support and assistance for employers to help them to
meet their work, health and safety requirements rather than an
enforcement approach which is encouraging.
As of the middle of October 2012 (87% of the year) enforcement
activity was below the long term rates for the 2003-2011 period.
Infringement notices issued - 41% of long term rate.
Improvement notices issue - 74% of the long term rate.
Our sponsors:

What happens if I overpay
an employee?
Most of the wage enquiries that the IR team get are concerned with
what the minimum amounts are to pay an employee under the
relevant awards. Occasionally though, overpayments can occur,
and sometimes, these may not be a one off error, meaning that the
amount overpaid can add up to a large sum over time. In this
article, we discuss what options are available to you as an
employer when this happens, as well as your rights. It becomes
tricky when you are balancing your rights as an employer, with the
commercial reality of keeping employees happy and productive.
If an overpayment has occurred, and this is clear when compared
with the employment contract, an employer can take steps to try
recover this money. We make reference to the contract here as this
will be an important piece of documentation that sets out exactly
what the employee is to be paid, and will be much easier to rely
upon than a verbal agreement when trying to establish an
overpayment error.
In terms of broaching the subject with the relevant employee, a
one-size-fits-all approach will probably not work, and it will depend
on the relationship that you have with the employee in question as
to the approach taken.
Generally, we suggest you convene a meeting and outline to them
the nature of the overpayment, providing as much supporting
documentation as possible (payslips etc) to support your assertion
that they have been overpaid. An employer then has a number of
options:
1. Do nothing and rectify the payroll error to ensure that the
mistake does not happen again,
2. Seek to recover the money by agreement, through regular
payroll deductions, or
3. Seek to recover the money through legal channels.
If option 2 is chosen, employers should give employees adequate
time to consider their position and to figure out how they would like
to pay the amount in question off. This becomes a negotiation
between the employer and the affected employee, and all parties
should keep the details of the particular payment plan confidential.
It is important to remember that any deduction from an employee’s
wage to rectify an overpayment needs to be authorised by the
employee in writing, an employer cannot simply deduct money from
a wage without this authorisation in place. The IR team can help
with drafting an agreement for this purpose. In addition, some
organisations may consider implementing a policy which sets out
how the organisation will deal with overpayment errors and again,
the IR team can assist with developing a policy like this.
In some instances, the employee may not agree to pay back any
money at all. If this is the case, you may consider taking further
legal action to seek recompense, although such action should not
be entered into lightly, and we would strongly encourage you to
have a discussion with a member of the IR team prior to pursuing
this.
Transmission of business
From time to time, we field queries from members on
what happens to employees entitlements in the event
that they sell their farm. If you have particular
question on this, then we would encourage you to get
in touch with a member of the IR team, as this can be
quite a complicated area. However, the following
commentary gives some good general guidance on
how these entitlements are to be treated.
When is there a transfer of business?
Under section 311 of the Fair Work Act 2009 there is
a transfer of business from an old employer to new
employer if the following requirements are satisfied:
the employment of an employee of the old
employer has been terminated;
within 3 months of the termination of
employment, the employee becomes employed
by the new employer;
the work (transferring work) the employer
performs for the new employer is the same, or
substantially the same, as the work the
employee performed for the old employer; or
there is a connection between the old employer
and the new employer
What happens to employee entitlements upon a
transfer of business?
When a transfer of business occurs, service with the
old employer counts as service with the new
employer, and this is so when the new employer is
an associated entity of the old employer. The issue of
associated entities is an important one.
If the two businesses are not associated entities,
then the new employer can decide not to recognise
the incoming employee’s prior service with the old
employer (for the purpose of annual leave and
redundancy pay), which then places an obligation on
the old employer to pay them out.
If the two businesses are in fact associated entities
the new employer should recognise the entitlements
that the particular employee holds, and then in
practice, what usually occurs is that there is an
adjustment on the sale price of the business to take
this into account.
In relation to the employment records, these should
be transferred to the new business, and then the new
employer will need to retain these records in line with
the usual record keeping obligations under the Fair
Work Act 2009.