The proposed changes to government-funded paid parental leave… what employers need to know?

23 March, 2017

The Fair Work Commission’s 2019/20 Annual Wage Review decision has now been handed down.

A majority of the Expert Panel for annual wage reviews (Panel) noted that this review was undertaken during a global pandemic, with the outbreak of COVID-19 changing the way work and society is conducted, with “substantial economic consequences”.

However, while taking into account the effects of the COVID-10 pandemic on the economy, the majority of the Panel has stated that it needed to balance these effects against the relative living standards and the needs of the low paid.  The majority of the Panel also observed that a decision to grant no increase in this Review would mean that the living standards of low-paid, award-reliant employees would fall.  The majority of the Panel went on to note that it is the requirement to take into account such relative living standards and the needs of the low paid which supports an increase in the NMW and modern award minimum wages.

On this basis, the majority of the Panel has awarded a 1.75% increase to the national minimum wage (NMW) from 1 July 2020 and to modern award rates. The NMW will increase from $740.80 to $753.80 per week, or $19.49 to $19.84 per hour. This equates to an increase of $13 per week for those on the NMW.

Timing of the adjustments

Notably, the majority of the Panel indicated that the timing of the increases for award covered employees will be staggered and depend on the industry or occupation.  This is in recognition that the economic impact of the COVID-19 pandemic has not been consistent across all sectors.

Using data from the Australian Tax Office, published by the Australian Bureau of Statistics, the majority of the Panel has identified “clusters” of industries that have been variably affected by the pandemic, noting that this warrants a more nuanced approach to the implementation of the wage increases.  On this basis, the wage increase will be applied with different operative dates for different groups of modern awards as follows:

<h4><em>Group 1 Awards</em></h4>
<p>The modern awards in Group 1 cover industry sectors apparently affected less by the pandemic than others, as well as those modern awards applying to frontline health care and social assistance workers, teachers, childcare workers, and employees engaged in other essential services.  Awards in Group 1 are:</p>
<li>Aboriginal Community Controlled Health Services Award 2020</li>
<li>Aged Care Award 2010</li>
<li>Ambulance and Patient Transport Industry Award 2020</li>
<li>Banking, Finance and Insurance Award 2020</li>
<li>Cemetery Industry Award 2020</li>
<li>Children’s Services Award 2010</li>
<li>Cleaning Services Award 2020</li>
<li>Corrections and Detention (Private Sector) Award 2020</li>
<li>Educational Services (Schools) General Staff Award 2020</li>
<li>Educational Services (Teachers) Award 2010</li>
<li>Electrical Power Industry Award 2020</li>
<li>Fire Fighting Industry Award 2020</li>
<li>Funeral Industry Award 2010</li>
<li>Gas Industry Award 2020</li>
<li>Health Professionals and Support Services Award 2020</li>
<li>Medical Practitioners Award 2020</li>
<li>Nurses Award 2010</li>
<li>Pharmacy Industry Award 2020</li>
<li>Social, Community, Home Care and Disability Services Industry Award 2010</li>
<li>State Government Agencies Award 2020</li>
<li>Water Industry Award 2020</li>
<h4><em>Group 2 Awards</em></h4>
<p>The modern awards in Group 2 cover industry sectors adversely impacted by the pandemic, but not to the same extent as the sectors covered by the Group 3 awards.  Examples of awards in Group 2 include:</p>
<li>Animal Care and Veterinary Services Award 2020</li>
<li>Architects Award 2020</li>
<li>Book Industry Award 2020</li>
<li>Building and Construction General On-site Award 2010</li>
<li>Clerks—Private Sector Award 2010</li>
<li>Food, Beverage and Tobacco Manufacturing Award 2010</li>
<li>Graphic Arts, Printing and Publishing Award 2010</li>
<li>Legal Services Award 2020</li>
<li>Manufacturing and Associated Industries and Occupations Award 2020</li>
<li>Mining Industry Award 2020</li>
<li>Miscellaneous Award 2020</li>
<li>Professional Employees Award 2020</li>
<li>Real Estate Industry Award 2020</li>
<li>Security Services Award 2020</li>
<h4><em>Group 3 Awards</em></h4>
<p>The modern awards in Group 3 cover industry sectors which have been most adversely affected by the pandemic, including those in the accommodation, food, arts and recreation services, aviation, retail trade and tourism, including the following awards:</p>
<li>Commercial Sales Award 2020</li>
<li>Fast Food Industry Award 2010</li>
<li>Fitness Industry Award 2010</li>
<li>General Retail Industry Award 2010</li>
<li>Restaurant Industry Award 2020</li>
<p>A copy of the decision, setting out the full list of the awards in each of Group 1, Group 2 and Group 3, can be found by <a href=clicking here.

Further information for employers

If you would like to receive further information about the wage increases relevant to your organisation, please complete the short survey at this link.

What does this mean for employers?

  • Employers paying employees the NMW or in accordance with a Group 1 modern award minimums will need to increase wages from 1 July 2019.
  • Employers who currently pay only slightly above the NMW or relevant modern award rate will need to reassess their employees’ salaries or wages to ensure they remain above the new rates.
  • Employers covered by an enterprise agreement that refers to the Annual Wage Review will need to review the remuneration paid to their employees to ensure they remain compliant with the terms of that enterprise agreement.

If you would like further information regarding the annual wage review and what it means for your business, please get in touch with the Employment team at McCabes.

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Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract.   Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed.   Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)."   Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and   The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and   The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter.   Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship.   Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest.   What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan
29 August, 2023

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty.  The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes
18 August, 2023
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023