Rates of Pay

It is crucial for employers to identify and correctly pay minimum rates of pay and entitlements to their employees. A failure to pay employees their minimum entitlements can result in significant financial penalties and/or expensive and time-consuming underpayment of wages claims.

Calculating correct pay rates for employees can be complex. We can assist to identify the correct instrument (i.e. award, enterprise agreement or legislation), and provide specific advice on matters such as penalty rates, allowances and loadings, and “loaded” rates of pay.

Master Builders SA has prepared a number of pay guides, to assist members with identifying rates of pay and other obligations under the applicable modern award. The pay guides are available to members on our Master Suite platform.

National Employment Standards

The Fair Work Act 2009 imposes a number of obligations on employers, including minimum employment entitlements contained in the National Employment Standards (NES). The NES apply to all employees, and will overrule any term in an enterprise agreement or employment contract that is less favourable than the NES.

The NES regulate maximum working hours, leave entitlements (including annual leave, personal/carer’s leave and parental leave), flexible work requests, public holidays, notice of termination, redundancy pay, and the right of employees to receive a Fair Work Information Statement upon commencement of employment.

In addition to these leave entitlements, employees are entitled to long service leave. Employers in the building and construction industry (who employ “on-site” employees) are required to comply with the long service leave scheme that applies to the industry in South Australia – known as “Portable Long Service”.

Workplace Relations Evaluation

We provide free IR evaluations to assist members to understand and comply with complex workplace relations laws.

This includes a comprehensive review of all employment practices and identify and minimising risks.

RDO Calendar

Master Builders SA publishes a Rostered Day Off (RDO) and Public Holiday Calendar each year. The RDO calendar is available to members of Master Builders SA through the Master Suite platform.

Unfair Dismissal

Unfair dismissal and adverse action (or “general protections”) claims can be time consuming and costly.

We can provide advice and assistance to minimise the risk of a claim being made.
If a claim is made, we can assist you to defend the claim by preparing a response to the claim and representing you at the conciliation conference. We can provide advice in relation to the risks associated with defending the claim at hearing, including potential outcomes and costs.

Termination of Employment

Before ending an employee’s employment, it is important for the employer to understand its obligations and the potential liability that might arise from the termination.

For employees who are “protected” from unfair dismissal, the employer must have a “valid reason” for dismissing an employee, based on the employee’s performance, capacity, or conduct. In addition to having a valid reason, the employer must also comply with procedural requirements, including allowing the employee to respond to the reason for termination, before the termination occurs. Where the reason for dismissal is redundancy, the employer must satisfy the requirements for a “genuine redundancy” in the Fair Work Act 2009.

Bullying and Harassment

Employers have an obligation to ensure that employees are not subjected to inappropriate behaviour at work, including bullying and harassment.

Bullying occurs when a person or group of persons repeatedly behaves unreasonably towards a person, and the behaviour creates a risk to health and safety.

Bullying and harassment can result in claims by employees, and potentially investigations or prosecutions under work, health and safety laws. We can assist your business to minimise the risk of bullying and harassment occurring, including preparing and implementing workplace policies, and undertaking employee and management training.

Are they an Employee or a Contractor?

Incorrectly engaging a person as an independent contractor instead of an employee is unlawful and can have significant financial consequences.

In the building and construction industry, there is a common misconception that engaging a person “on an ABN” means that the person is a genuine independent contractor. The question of whether a person is a contractor or employee (at law) is complex, and involves a consideration of numerous elements of the relationship, and how these operate in practice. The question of whether a person has an ABN is not a relevant consideration.

An employment relationship is more likely to exist where the worker:

• performs work exclusively or almost exclusively for the business;
• is under the direct control of the business and is required to perform work under its direction and supervision;
• cannot delegate the work to others or engage a “subcontractor”;
• works set hours, as required by the business;
• is paid according to time worked (i.e. hourly) rather than according to the completion of a task;
• uses tools and equipment that have been supplied by the business;
• is not personally responsible for rectification work;
• is required to wear clothing that identifies the name of the business;
• does not bear any risk of loss, or have the ability to make a profit from the work.

A contractor relationship is more likely to exist where the worker:

• regularly performs work for other businesses (or themselves);
• performs work according to their own processes and is not under the direct control or supervision of the business;
• engages other people (and pays them directly) to assist with the work;
• does not work set hours and is free to refuse requests for additional work;
• is paid according to the completion of a task (i.e. in accordance with a pre-prepared quote), rather than hourly;
• provides their own tools and equipment, especially tools of significant value;
• is responsible for rectification work at their own cost;
• bears a risk of loss, or has the ability to profit from the work.

There can be significant consequences for incorrectly engaging a person as a contractor, including financial penalties for breaching the “sham contracting” provisions in the Fair Work Act 2009. There can also be liability arising from:

• Unpaid employee entitlements (for example annual leave, long service leave and award entitlements);
• Superannuation contributions;
• Workers compensation;
• Taxation (PAYG and payroll tax).

We can provide assistance to your business to minimise the risk arising from the engagement of independent contractors. This includes helping to identify the true nature of the relationship and preparing a written contract to minimise risks. We can also assist with the defence of claims or investigations where it is alleged that a contractor is or was an employee.