7 minute read
Workplace Relations
CHANGES TO SUPER – STAPLED FUNDS
What Is It?
From 1 November 2021, if you have a new employee start with your business and they do not nominate a fund by completing the Superannuation Standard Choice form, you as the employer will then have to search for the employee’s ‘stapled’ fund using Australian Tax Office (ATO) online services.
A stapled super fund is an existing super account that is linked, or ‘stapled’, to an individual employee so that it follows them as they change jobs. This change aims to reduce the super account fees an employee may be subjected to where a new super fund account is opened every time an employee starts a new job.
What You Need to Do
You will need to request stapled super fund details when: • your new employee starts on or after 1 November 2021; • you need to make super guarantee payments for that employee; and • your employee is eligible to choose a super fund but doesn’t.
How to Prepare
To prepare for these changes you will need to check and update the access levels of your authorised representatives in ATO online services.
If an authorised representative doesn’t: • Have full access in ATO online services, they will need to have the Employee Commencement Form permission in order to request a stapled super fund. • Need to access this service, you should remove this permission for them to protect your employees’ personal information.
You need to offer your eligible employees a choice of super fund by providing them with the Superannuation Standard Choice form and pay their super into the account they have listed on the completed form.
If you pay contractors mainly for their labour, they are employees for superannuation guarantee purposes, and you may need to pay super to a fund for them. If you need to pay super and they do not make a choice, you will have to request a stapled super fund.
Step 2: Request Stapled Super Fund Details
If your employee doesn’t choose a super fund, you will need to log into the ATO online services to request their stapled super fund details.
To request a stapled super fund your authorised representative will need to: 1. log into ATO online services 2. enter your employee’s details, including their: • TFN – an exemption code can be entered where an employee cannot provide their TFN, but this could result in processing delays • Full name – including ‘other given name’ if known • Date of birth • Address (residential or postal), if TFN not given 3. The ATO online system will use rules based on the regulations to work out and return a stapled super fund in response to a request.
You will receive the response on-screen. You should be notified of the result of the stapled super fund request within minutes. The ATO will notify your employee of the stapled super fund request and the fund details that have been provided.
Step 3: Pay Super into the Stapled Super Fund
If the ATO provides a stapled super fund result for your employee, you must pay your employee’s super guarantee contributions to the stapled super fund details that have been provided.
You can pay into your employer default fund or another fund that meets the choice of fund rules if: • your employee doesn’t choose a super fund; and • the ATO have advised you that they don’t have a stapled super fund.
If you would like to talk to an accountant about how the changes to super affect your business, call Tradies Accountant on 07 3174 5010.
FAIR WORK ACT AMENDMENTS
On 10 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 came into effect after receiving the royal assent.
Some of the areas outlined in the Amendment include, but are not limited to: • Expansion of compassionate leave to include miscarriage; and • Expansion of sexual harassment legislations.
Compassionate Leave
The existing entitlement to compassionate leave will now include miscarriage as a reason to access up to two days of compassionate leave (paid for permanent employees, unpaid for casual employees). The compassionate leave entitlement can be accessed by the employee or the employee’s current spouse or de facto partner who has had a miscarriage.
Sexual Harassment
The Respect at Work Act has amended three pieces of legislation: • the Fair Work Act 2009 (Cth) • the Sex Discrimination Act 1984 (Cth) • the Australian Human Rights Commission Act 1986 (Cth)
The Fair Work Act 2009
Bullying ‘Stop Order’
The Fair Work act 2009 will be amended to make it clear that conduct amounting to bullying will also include sexual harassment. This means, individuals who are experiencing sexual harassment can apply to the Fair Work Commission for a ‘Stop Order’, just the same as those employees who experience bullying. Employees have been able apply for a ‘Stop Order’ in relation to sexual harassment since 11 November 2021.
The definition of sexual harassment will be included into the Fair Work Act 2009, which is the same as the definition in the Sex Discrimination Act 1984: • “they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or • they engage in other unwelcome conduct of a sexual nature in relation to the person harassed in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”
Valid reason for Dismissal
The Respect at Work has inserted a new note into the FW Act that makes it clear that sexual harassment can amount to a ‘valid reason’ for dismissal when considering whether an employee’s dismissal was ‘harsh, unjust, or unreasonable’.
Fair Work Act Regulations
The Fair Work Act Regulations 2009 has also been amended to include sexual harassment as ‘serious misconduct’. This clarifies that such behaviour can justify termination of employment without notice.
The Sex Discrimination Act 1984
The Respect at Work has amended the ‘objects clause’, which is the clause used to guide individuals and the court of the Act’s underlying purpose of the legislation.
A new definition will be inserted into the Sex Discrimination Act 1984. Harassment on the ground of sex – a person harasses another on the grounds of sex if: • an individual engages in unwelcome conduct of a seriously demeaning nature by reason of another person’s sex, or by reason of the characteristics which generally relate to or are imputed to persons of the same sex of the person harassed; or • if an individual engages in the above conduct in circumstances where a reasonable person would have anticipated the person harassed would be offended, humiliated, or intimidated.
In summary, this definition outlines that harassment is on the grounds of someone’s sex and, therefore, the harassment does not need to be sexual in nature to be unlawful.
Further, the Respect at Work permits that an individual who is ‘victimised’ (for example, they make a complaint of sexual harassment) can make a civil claim under the Sex Discrimination Act 1984.
The Australian Human Rights Commission Act 1986
The time limit for a sexual harassment claim to be lodged has been extended to 24 months from the incident. Previously, claims brought outside of six months of the incident would not be considered by the Australian Human Rights Commission.
The above-mentioned changes further confirm the importance for employers to have policies in place, especially in relation to sexual harassment. Employers can be held liable for the actions of an employee who engages in sexual harassment, unless the employer can show that they took reasonable steps to prevent it from occurring.
For assistance or further information on this article, please contact the MPAQ Workplace Relations team on 07 3273 0800.
Article written by Emma Ross, MPAQ Human Resources Advisor
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