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FROM THE EXECUTIVE DIRECTOR'S DESK 
Members would be aware that the Australian Capital Territory Fair Trading (Motor Vehicle Repair Industry) Act 2010 was passed in the ACT Legislative Assembly in March. The Act itself will come into force in September.
In itself the Act brings into law the Voluntary Code that has existed in our industry since 1999. As many would know the Voluntary Code did not succeed for many and varied reasons. Primarily the Code did not give teeth to any action needed and only worked for those who complied. By changing to a law the Automotive Industry now has the support of legislation to ensure that everyone is on a level playing field.
Attached are a number of questions that we anticipate most businesses will ask.
In the near future there will be a lot more information provided by the Office of Fair Trading, in the meantime we would strongly suggest that you all make yourselves aware of the Act and the impact it will have on your business.
Australian Capital Territory
Fair Trading (Motor Vehicle Repair Industry) Act 2010
The above Act was passed in the Legislative Assembly in March 2010.
The principal purpose of the bill is:
- To bring a level playing field to all sections of the Automotive Industry in the Australian Capital Territory (ACT)
- To lift the standards of repairers in the ACT
- To provide for the continual improvement of Repairers skill sets
- To provide improved certainty to the consumer of the skill sets of their chosen repairer
- To ensure the environment is protected
- To ensure non compliant repairers can be prosecuted
- To ensure non conforming workshops do conform
- To endow on the Office of Fair Trading (OFT) the legislative power to act to enforce the law
- To ensure the Automotive Industry in the ACT continues to upgrade the skill sets needed to service and repair vehicles built to 21st Century standards
- To remove unscrupulous and non compliant repairers from the Automotive Repair Industry
In anticipation of the introduction of the Act the following Frequently Asked Questions and answers have been prepared to best allow the Automotive Industry to themselves prepare for the legislation enactment in October 2010.
Q. Who will be required to obtain a license?
A. All principals who own or operate a repair business for financial gain.
Q. Will the tradesmen I employ need to be licensed?
A. No, it will be the licensee responsibility.
Q. What makes this different to the old voluntary code?
A. This is written into law, failure to comply will breach the criminal code.
Q. Can I operate anywhere?
A. Only if your premises complies with all the required lease purpose clauses, Territory Plan, OH&S standards and environmental requirements.
Q. Do I HAVE to apply for a license?
A. Yes there is no way you can operate without.
Q. How will people know I have a license?
A. You will be required to exhibit it in clear view at the place of business.
Q. What if I change premises?
A. You will be required to notify the registrar and comply with all statutory regulations required for the new location.
Q. Can I repair any vehicle?
A. Yes, as long as you or your employee(s) have a proven skill set to complete the task.
Q. What can I advertise?
A. You can only advertise service or repairs within your capabilities.
Q. What happens if I have an expert (brake) mechanic and he leaves?
A. You can only do repairs in that category if you or another employee can demonstrate a suitable skill set applicable.
Q. What happens if I tell a customer I can do something just to get a big job?
A. It won’t matter the size of the job if you can’t do it or try to do it knowing you can’t, you will be prosecuted (criminal offence).
Q. Will I be given an opportunity to move into a license situation?
A. Yes, you are being given one as you read this.
Q. I complied with the old Code of Conduct will this count?
A. Yes,when your Code renewal is due you will move to the new licensing legislation.
Q. Could I join the Voluntary Code now to expedite things?
A. Yes, you will only pay the pro-rata fee.
Q. What will happen in the event of a dispute?
A. Much as before the only difference now will be if in the event of a breach of your license you will be prosecuted.
Q. Is this legislation deliberately hard?
A. No, it is designed to lift the level of expertise and improve consumer confidence.
Q. Will the legislation be marketed to the public?
A. Yes, most certainly through many forms of media.
Q. Can I expect a visit from an officer from the Office of Fair Trading?
A. You may if you are compliant just as a courtesy, -- you WILL if you are not
Q. Should I obtain a copy of the legislation?
A. Yes, most certainly to comply you will need to read it.
Q. Is there an advisory body?
A. Yes, their primary role will be to advise the Minister on all aspects of the legislation and provide recommendations to improve the legislation.
Q. Can the Attorney General make suggested changes easily?
A. Yes, the legislation gives the Attorney powers under “A disallowable instrument .“
Q. Can a license be refused?
A. Yes, just like a motor vehicle dealer’s license.
Q. Do these questions cover all the legislation?
A. No, you must obtain you own advice.
EMPLOYMENT RELATIONS UPDATE
FAQs: PERSONAL/CARER'S LEAVE AND COMPASSIONATE LEAVE
Members often seek information from the MTA about entitlements to personal/carer's leave and compassionate leave under the National Employment Standards (NES). The following are some of the most commonly asked questions.
What is the entitlement to personal/carer's leave?
A full-time employee accrues 10 days of paid personal/carer's leave during each year of service at the rate of 1.4615 hours per completed week. A part-time employee will accrue on a pro rata basis depending on the number of hours worked.
When can an employee take paid personal/carer's leave?
Leave may be taken:
- if an employee is unfit for work due to personal illness or injury; or
- to provide care or support to a member of the employee's immediate family or a member of the employee's household who requires care or support because of a personal illness or personal injury affecting the member; or an unexpected emergency affecting the member.
Who are 'members of the employee's immediate family'?
Members of an employee's immediate family include:
- A spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; and
- A child, parent, grandparent, grandchild or sibling of a spouse or de factor partner of the employee. Note: a de facto partner includes a partner of the same sex.
How is the payment for personal/carer's leave calculated?
It is calculated on an employee's base rate of pay for the ordinary hours worked. The base rate of pay excludes incentive based payments, loadings, monetary allowances, overtime or penalty payments and any other separately identifiable amounts.
Is personal/carer's leave cumulative?
Personal/carer's leave is cumulative from year to year and the accrual period is uncapped.
How much paid carer's leave can an employee use?
The amount of accrued paid carer's leave an employee can use each year is uncapped. From 1 January 2010, an employee can take an unlimited amount of carer's leave out of accrued personal leave. For example, if an employee has50 days' accrued personal leave the employee can take all 50 days as carer's leave if required. There is no restriction on the number of days which can be taken in a single year provided an employee has accrued the leave.
What proof of absence must, if required by the employer, provide evidence that would satisfy 'a reasonable person' regarding the non attendance. It would usually be reasonable to request a medical certificate or a statutory declaration.
Can an employee take unpaid carer's leave if they have no paid carer's leave?
Yes. An employee may take 2 days' unpaid carer's leave on each occasion that a member of the employee's immediate family or household requires support due to illness or unexpected emergency. Unpaid carer's leave may only be taken if there is no paid carer's leave available.
When can compassionate leave be requested?
Compassionate leave is available on each occasion when a member of the employee's immediate family or employee's household:
- contracts or develops a personal illness that poses a serious threat to his or her life; or
- sustains a personal injury that poses a serious threat to his or her life; or
- dies.
How much compassionate leave does an employee receive per annum?
An employee is entitled to 2 days' paid compassionate leave for each occasion.
What evidence can an employer require to confirm the nature of the compassionate leave?
An employee who has given the employer notice of the taking of leave must, if required by the employer, provide the employer evidence that would satisfy 'a reasonable person'.
PERFORMANCE MANAGEMENT: THE IMPORTANCE OF WARNINGS
When an unfair dismissal claim made by a former employee, Fair Work Australia refers the matter to a conciliation conference to try to resolve the claim. When the reason for termination is poor performance or misconduct, the conciliator will always ask whether the employee was warned that their employment may be terminated. Unfortunately, the answer is not always "yes".
Employers often assume that having raised a concern with an employee is sufficient and that the employee should have been aware that if they did not improve their performance or conduct, then they would be dismissed. However, this is not enough to defend an unfair dismissal claim under the Fair Work Act.
It is important that you meet with an employee first to put to them your concerns and the consequences of not improving their performance or conduct. You should ensure that you have a witness at that meeting as well as offering the employee the opportunity to have a support person present. You should take into account any response given by the employee at that meeting to determine your next step. In some cases, it may be appropriate to counsel the employee but in others, a warning will be necessary.
An effective warning letter sets out:
- the conduct or performance issue
- what was discussed with the employee at the meeting
- if relevant, what you can do to assist (e.g. additional training)
- what you expect from the employee in the future (e.g. meeting monthly sales targets, improved customer relations)
- the time frame for review
- the consequences for not meeting expectations/improving (i.e. employment may be terminated depending on whether it is a first or final warning).
The warning letter should be given to the employee and a copy kept on the employee's file.
IS YOUR HOIST SAFE?
One of the most dangerous pieces of plant in an automotive workshop is the hoist. This is not because of the high number of incidents but because of the potential for very serious injuries. If a hoist falls with someone underneath it, the consequences may be disastrous.
There are a number of measures that members can take to ensure the hoists in their workshop are safe to use. These include:
Purchasing: Business owners should always seek documentation from the hoist distributor which confirms that the new hoist meets Australian Standards.
Installation: When installed, the moving components of the hoist need to be at least six hundred millimetres (600mm) away from other physical structures, including walls, posts and other hoists. The manner in which hoists are to be attached to the floor surfaces, strength and tensioning of bolts, and all electrical wiring needs to be done in accordance with the relevant Australian Standards.
Servicing and maintenance: The Australian Standards specify that hoists are to be serviced annually by a competent person. There have been a number of incidents this year where employees have lacerated and amputated fingers when they lube the hoist. Ensure procedures are in place for the loc out and tag out of the hoist and ensure employees notify management prior to undertaking any maintenance or servicing. If there are no records to verify that the servicing has been conducted in accordance with the standards, business owners place themselves in a position of significant risk if something were to go wrong.
Pre-operational checks on hoists: The Australian Standard for vehicle hoists calls for a pre-operational check on the hoist in keeping with the frequency of use (i.e. if the hoist is used every day it should be inspected every day). At the commencement of the pre-operational check the worker is required to date and sign the checklist.
The message from WorkSafe ACT is simple - if an automotive workshop owner has not had their hoist serviced at least annually and there is an accident, the owner could be prosecuted for failing to provide a safe place of work.
MTAA SUPERANNUATION 
The Henry Tax Review and the 2010 Federal Budget
The Henry Tax Review
The Henry Tax Review, a long awaited report into Australia’s future tax system, was released on 2 May 2010 and made a total of 138 recommendations, the majority of which have not yet been discussed in detail. Some of the recommendations have been rejected outright by the Government but a number have been accepted and the Government has announced that the recommendations outlined below will go ahead, although it is important to note at the time of writing these recommendations have not yet been legislated.
The Superannuation Guarantee Contribution (SGC) rate
The Government has announced that the SGC rate, which is currently set at 9 per cent, will gradually increase over a period of seven years to 12 per cent by the 2019/20 financial year. This increase will begin from 1 July 2013 and is expected to substantially increase the superannuation account balances of future generations. The lead time and phase in period will give employers time for the increased Superannuation Guarantee contributions to be factored into future employment costs.
The Superannuation Guarantee age limit
Under current legislation, employers are not required to make Superannuation Guarantee contributions for employees over the age of 70. This age limit is to be increased to age 75 from 1 July 2013 and is intended to provide an incentive for mature age workers to remain in the workforce and continue to add to their superannuation. This new age limit will also bring employer obligations in line with the age limit for voluntary contributions and contributions made by the self-employed. This will only impact a relatively small number of workers but will remove a current inequity in the system.
Government contribution for low income earners
From 1 July 2012, a new Government superannuation contribution of up to $500 will apply to workers with income of less than $37,000 per annum. The amount payable will be determined by applying a 15 per cent matching rate to the concessional super contributions made for, or by, individuals earning less than $37,000. This initiative is in addition to the existing Super Co-contribution scheme and is intended to make superannuation more attractive to low and middle income workers. The Government will pay the amount into the individual’s superannuation account.
Higher Concessional Contribution Limit for some individuals over age 50
Individuals over the age of 50 currently have an annual concessional contribution limit of $50,000. This is a transitional arrangement and will cease on 30 June 2012. Concessional contributions are those contributions generally made through employment such as the superannuation guarantee and salary sacrifice contributions. From 1 July 2012, those individuals over the age of 50 with super balances below $500,000 will continue to have a concessional contribution limit of $50,000 rather than being reduced to the standard limit of $25,000.
Federal Budget 2010
The Federal Budget 2010 was brought down on Tuesday 11 May and the recommendations of the Henry Tax review outlined above were re-confirmed in the budget announcements.
As expected, after the announcements of major changes to super under the Henry Tax Review, not much further was announced in regard to super in the budget, however there are some changes to the Super Co-contribution scheme.
The previously announced re-introduction of the $1500 maximum co-contribution rate (phasing back in over 5 years) was revoked and the current maximum co-contribution of $1000 on non-concessional contributions of up to $1000 will remain permanently. In addition, the income thresholds for the calculation of the co-contribution will not be indexed for the next two years, freezing the lower threshold at the current $31,920 and the upper threshold at $61,920.
The information in this article is provided by Motor Trades Association of Australia Superannuation Fund Pty Ltd (ABN 14 008 650 628 AFSL 238718), Trustee of the MTAA Superannuation Fund (MTAA Super) (ABN 74 559 365 913). Any advice contained in this article is of a general nature and does not take into account your objectives, financial situation or needs. The MTAA Super Product Disclosure Statement (PDS), an important document containing all the information you need to make a decision about MTAA Super, can be obtained by calling MTAA Super on 1300 362 415 or from www.mtaasuper.com.au. You should consider the PDS in making any decision about MTAA Super.
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