Time to review that contract?

Over the past couple of years, there have been lots of changes in employment conditions and related legislation, regulations and modern awards.

Do you have a regular review of your employment documentation to ensure that your employment contracts and HRM policies and procedures are consistent with current workplace relations requirements?

Can you demonstrate as an employer that you are responsibly exercising your duty to provide your people with compliant wages and conditions of employment?

Here are just some of the things that have come in over the past year and you need to cover off:

  • New leave to deal with family and domestic violence provisions in modern awards and National Employment Standards
  • New casual conversion provisions in modern awards
  • Variations to flexible working arrangement obligations in modern awards
  • Variations to penalty rates for evening and weekend work in modern awards in some industries
  • Variations to termination of employment provisions in many modern awards
  • A new Victorian Long Service Leave Act 2018 in November 2018 (and a new Long service Leave Benefits Portability Act 2018 taking effect for some industries in 2019)
  • Federal regulation on employment contract content required in casual employment to avoid double dipping on casual loadings and leave entitlements
  • Every year, there is an adjustment to the national minimum wage, award rates and various other benchmarks and a new Fair Work Information Statement is published.

In this area, we are “Helping PEOPLE in BUSINESS” by keeping abreast of these changes and reviewing employment contracts and HRM policies and procedures to address them.

If you need a hand, please feel free to give us a call on 0438 533 311 or email enquiries@ridgelinehr.com.au

Fresh thinking for old challenges

We recently launched our new Better Workplace Projects and we are getting terrific feedback on the impact like:

“The session was excellent – great buy in from everyone and really positive feedback afterwards.”

“The team and I loved the session and felt very positive and inspired”.

Why are they having this impact?

It’s fresh thinking for old challenges!

We look at what drives people engagement and high performance through a positive psychology lens where the focus is on how we use our strengths to improve rather than just how we fix the problems.

We also reinvent the performance management process to provide a positive and continuous development experience that gets people engaged, aligned and accountable.

In our interactive Better Workplace Project Introductory Workshops, we introduce you to the best practice models that underpin the methodology and have an open conversation with you about how these might be used to address the people and culture challenges and opportunities and deliver high performance in your organisation.

For a small investment of $800 plus GST and a couple of hours of your time, we can help you to get started or step up on that journey to a Better Workplace.

Our Better Workplace Project Introductory Workshops are delivered by our Practice Leader, Peter Maguire, who has consulted to hundreds of organisations on people and culture strategy and practice. Peter has an extraordinary breadth of experience with clients in public, private and NFP sectors and in a wide range of industry and people culture settings. He is also a former Investors in People Assessor and has presented internationally on HRM best practices.

Getting the balance right with casual employment

There has been a lot of activity around casual employment over the past year or so – in the courts, in the Fair Work Commission and in regulation by the Federal Government.

What we aim to do in this article is to dispel some of the myths that create confusion and concern and to offer advice on practical tips for “getting the balance right with casual employment”. In doing that, we do have regard to the recent developments in:

  • The Workpac v Skene case wherein the Court awarded annual leave payments to a nominally casual employee
  • Casual conversion provisions introduced to modern awards
  • Regulation by the federal government to limit the ability for a nominally casual employee to be awarded annual leave payments

Is this really a casual employee?

The classic casual is someone who is required to work on an irregular or limited tenure basis.

It might be as a shop assistant in the lead up to Christmas or in hospitality or security at events like the Australian Open or the Melbourne Grand Prix ie the job only exists for a limited time.

It might be someone who is on a relief roster and is called in as needed or someone whose work hours vary in line with their availability while they are still at school or university.

Or it could be someone who is called upon as projects come online and they come in and perform certain tasks on the project and then stop being employed when they finish the tasks.

All of those are true casuals.

If the role is really a continuing one with reasonably consistent and predictable hours of work and it continues that way month after month, that creates an expectation for the employee that they will have continuing employment. So it isn’t really casual, is it?

That is essentially what the judgement in Workpac v Skene said.  The employee concerned was on back to back contracts and fly in fly out rosters with pre booked accommodation for two and a half years and had no indication that that pattern would not continue indefinitely.

The pros and cons of hiring continuing workers as casuals

The first point here is that, in a competitive labour market, limiting engagement options to casual distinctly limits your ability to find the best staff for your business. People are generally unlikely to leave secure employment to take on a casual job.

There are those who believe that engaging workers as casuals is safer and cheaper when, in reality:

  • the 25% casual loading applying under modern awards is a lot more expensive than the paid leave entitlements a full-time or part-time employee gets
  • you still have to pay the superannuation guarantee
  • casuals accrue long service leave and, where they work in an industry with a portable long service leave fund, are entitled to employer contributions into that fund just as full-time and part-time employees are
  • casuals have the same access to the unfair dismissal, adverse action, industrial dispute, bullying and discrimination and WorkSafe and WorkCover jurisdictions as continuing employees do

Where it is really (or potentially) a continuing employment arrangement, one advantage of engaging someone as casual is that you don’t technically have to provide notice of termination because that is notionally compensated for by the casual loading.

Another might be that, if there is some fluctuation in hours of work, that can be more easily managed if the employee is engaged as a casual.

The question is, when you look at all of the elements set out above, what’s the best option having regard to your overall business needs?

How you hire a casual

One of the main reasons that the judgement in the Workpac v Skene case was to award annual leave entitlements was because the employment contract did not specify the amount of the casual loading ie it didn’t specify how the entitlement to annual leave that a continuing employee would have was set off by the casual loading.

In response, the Federal Government’s regulatory change provides some relief from so called “double dipping” of casual loading and annual leave payments but stipulates that there must be an employment contract that includes that specification.

There is  an obligation to provide a Fair Work Information Statement on first engagement as a casual…..and there is the obligation to provide a casual with a copy of the Casual Conversion clause in any award that was varied last year to provide that right.

So ensure that you do all of this in writing before the employee starts and get professional advice if you aren’t sure on what to include or writing isn’t your strength.

Dealing with casual conversion

Last year, a casual conversion clause was included in most modern awards which did not already have one.

This provides the right for an employee who is engaged regularly and systematically as a casual for 12 months to request conversion to full-time or part-time employment.

The employer has to provide casuals with a copy of the casual conversion clause and, if a request is made, has to respond within 21 days in writing.

If the employer refuses the request which can only be done in quite limited circumstances, the employee has the option of taking the matter to the Fair Work Commission. for conciliation and arbitration. 

Our advice is to be proactive in satisfying the obligation to offer casual conversion by:

  1. Providing any new casual employee with a copy of the casual conversion clause from the relevant award on engagement or in the onboarding process.
  2. When it becomes clear that the employee is going to continue in employment on a regular and systematic basis for a period of at least 12 months, remind them in writing of the opportunity to convert to full-time or part-time, spelling out the options and what they each mean for the employee (eg if I stay casual, this is what I get, and, if I convert to full-time, this is what I get).
  3. Require the employee to nominate in writing which of the options they want to take up.
  4. Confirm in writing the agreed arrangement going forward and implement it in practice.

One other option you could consider is to tell casuals when you engage them that, if they get through their probation period or at some point up to reaching twelve months’ employment, they will be offered full-time or part-time employment as applicable. You would do this if you wanted to secure employees who had proven themselves to be productive and a good fit during their initial period of engagement. 

Note: there are a number of awards which already had casual conversion clauses requiring the employer to offer conversion after six months regular and systematic employment. These include building and construction, manufacturing, quarrying and trades industries among others. Check the clauses in the modern awards applying in your business to be sure.

Dealing with family and domestic violence

Over the past few months, there has been a succession of changes in provisions of modern awards and the Fair Work Act relative to family and domestic violence. In this article, our aim is to provide you with a sense of how they come together and what that means in terms of your legal obligations and how to manage those.

Early this year, the Australian Institute of Health and Welfare (AIHW) released a report “Family, domestic and sexual violence in Australia 2018” which told us that:

 

Family and domestic violence is the most significant social and welfare issue that we have in Australia and we can all do something about that.

Introduction of “Leave to deal with family and domestic violence” in modern awards 

The significance of this issue is such that the Fair Work Commission deemed it necessary to insert “Leave to deal with family and domestic violence” provisions in all modern awards. In essence, this provides an entitlement of up to 5 days of unpaid leave per annum for employees regardless of their employment status ie whether they are full-time, part-time or casual, they are entitled to the full 5 days each year.

An employee may take unpaid leave to deal with family and domestic violence if the employee:

(a) is experiencing family and domestic violence; and

(b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.

That leave entitlement for award-covered employees came into effect on 1 August 2018.

Extension of entitlement to non-award employees

On 12 December 2018, the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 took effect and essentially extended the modern award entitlement effective from that date.

So effectively that means that all employees now have access to this entitlement as follows:

 Entitlement to unpaid leave

An employee is entitled to 5 days’ unpaid leave to deal with family and domestic violence, as follows:

(a) the leave is available in full at the start of each 12 month period of the employee’s employment; and

(b) the leave does not accumulate from year to year; and

(c) is available in full to part-time and casual employees.

So our take on that in implementation is:
  1. For existing award-covered employees and those who are subject to an agreement that incorporates the award, the entitlement takes effect from 1 August 2018
  2. For award-covered employees and those who are subject to an agreement that incorporates the award and who commenced employment after 1 August 2018, the entitlement takes effect from their date of commencement.
  3. For existing non-award employees and those who are subject to an enterprise agreement that doesn’t incorporate an award, the entitlement takes effect from 1 December 2018.
  4. For  non-award employees and those who are subject to an enterprise agreement that doesn’t incorporate an award and who commenced employment after 1 December 2018, the entitlement takes effect from  their date of commencement.
  5. All employee have the entitlement to 5 days per annum regardless of their employment status ie whether full-time, part-time or casual.

Interaction with new rules on Flexible Working Arrangements

We recently reported on these new rules.

Two of the categories of workers who have entitlements under these rules are:

  • employees experiencing family or domestic violence; and
  • employees caring for family members experiencing family or domestic violence.

Accordingly, we can expect that eligible employees like these might well seek both leave to deal with family and domestic violence and flexible working arrangements. Alternatively, because the leave is unpaid, people might be more likely to seek flexibility in working arrangements that allow them to maintain their income while varying their hours of work to meet their personal or family needs.

If these matters cannot be resolved at workplace level, they may well end up in the Fair Work Commission via the disputes resolution clause in a modern award or enterprise agreement.

Additionally, while these rules on flexible working arrangements technically apply only to award covered employees, it should be expected that they would be regarded as a procedural and fairness benchmark for dealing with requests from non-award employees.

Care should be taken to ensure that any workplace policies on any of the above are reviewed to reflect current minimum standards and benchmarks.

We will publish an article soon on what employers can do to genuinely and positively influence the incidence and impact of family and domestic violence and why you should be doing that. Stay tuned!

Oddities in our workplace relations system – #2 classification structures

Do you find that the classification structures in the modern awards  that apply to your business don’t make sense or don’t fit your business operations very well or, in some cases, are just not easy to understand?

In many cases, you would be absolutely right to think so because they are, in the main, flawed in design.

Back in the late 1980’s and early 1990’s, unions and employer organisations went through prolonged negotiations on what was then called development of skills-based classification structures.

In reality, in most industries, it was nothing of the sort – it was an industrial relations exercise which really amounted to little more than a negotiation of wage rates for different jobs and each industry did it differently.

Some awards just have AQF qualification levels as the basis for classifying people with little or no detail on job functions to be performed at each level. That is not very helpful especially when most of the workers in a business don’t have any of those qualifications but perform distinctly different jobs with greater or lesser skill requirements.

Others have classifications increasing on the basis of the size of the plant being operated without any reference to the complexity of or skills involved in performance of particular tasks.

Few modern awards consider the benefits and value of multi-skilling.

None take account of some fairly significant developments that have occurred since the structures were first established – like the world wide web, social media and GPS technologies. Some still refer to “typing” as distinct from “word processing” as a competency.

In 2010, we saw the introduction of so called “modern awards” which consolidated thousands of awards down to 122 modern awards but did little to improve the classification structures and clearly failed to recognise the technological changes that have affected the way we work.

Currently, we are nearing the end of the fifth year of our first four yearly review of modern awards and classification structures appear not to be even on the agenda.

What is clear is that we don’t have “modern awards” – and we are unlikely to in the foreseeable future.

If you want a classification structure that works for your business, you can have one provided you are paying sufficiently above award and your people are better off overall than they would be if you strictly applied award conditions.

If you would like to explore how to do that, give us a call on 0438 533 311 or email enquiries@ridgelinehr.com.au.

 

What are you doing for mental health month?

October is Mental Health Month and World Mental Health Day is on October 10, a day for global mental health education, awareness and advocacy.

This a great opportunity for businesses to get proactive in dealing with a major challenge for Australian society and every business – the impact of mental illness.

A recent Pricewaterhouse Coopers report identified that ignoring it costs Australian businesses around $10.9 billion a year in lost productivity. And with poor mental health likely to affect one in five employees, by taking action the benefits can be profound.

PwC discovered that on average, across all businesses, for every one dollar invested in mental health initiatives, there’s a return of $2.30 and reports showed that in many industries the returns were even greater. 

Source: Heads Up

So what that says is that working on improving people’s mental wellbeing at work will generate great returns for business owners. That means that looking after your people is not just the right thing to do but also the smart thing to do.

So what are you going to do to get started on the mental health improvement journey?

There are lots of resources at Heads Up, the website of the Mentally Healthy Workplace Alliance.

Mental Health Australia which is leading the campaign for World Mental Health Day also has useful information and materials to promote mental health in the workplace – see https://1010.org.au/.

This is an area where Ridgeline HR is committed to making a difference through our Better Workplace Projects, a key component of which is creating mentally healthy work environments.

This post is one way that we can help to raise awareness of the issue and encourage employers to be proactive and tackle mental health in your workplaces.

Join us by sharing this and other promotions of mental health to help that happen and make a difference.   Pictured: Croydon Chamber of Commerce  AGM giving a thumbs up for workplace wellbeing.

 

 

 

 

What are our “Better Workplace Projects”?

In essence, they are whatever you need them to be. Here are some different elements of better workplaces that we might include in a “Better Workplace Project” depending on client needs, preferences and budget:

  • A Respectful Workplace: implementing a values-based approach to behavioural standards that are to be applied across the business and addressing legal requirements relative to bullying, harassment, discrimination, gender inequality and related unsatisfactory behaviours.
  • An Aligned Workplace: providing clear direction to employees on organizational goals and structures and what they translate into in terms of the roles and performance expectations of teams and individual employees.
  • A Safe and Healthy Workplace: developing and implementing a risk management and employee engagement strategy that helps to improve the wellbeing of people in the areas of physical, emotional and mental health as well as addressing legislative requirements in relation to workplace health and safety.
  • A Connected Workplace: developing and implementing consultation and communication processes that ensure effective employee voice and timely and constructive communications between people across the business as well as better informing management decision making.
  • An Engaging Workplace: developing and implementing performance feedback and development processes that are timely, balanced and friendly whereby each employee has a performance and development plan of their own. Managers meet with them regularly to review progress against the plan, provide positive feedback on achievements and guidance and encouragement with areas for development.
  • A Sustainable Workplace: equipping and coaching leaders to maintain the impetus focused on constantly reviewing workplace policies and practices and identifying and harnessing opportunities for continuous improvement.

If you are interested in making your business a “Better Workplace”, give us a call on 0438 533 311 to see how we can help.

Make every day RUOK Day

Today is the official RUOK day, that day once a year when the spotlight is shone on mental health and what we can all do to support those doing it tough on the mental health front.

Those 4 simple steps can make such a difference:

  1. Ask RUOK?
  2. Listen
  3. Encourage action
  4. Check in

And please here are 4 things that you don’t want to do:

  1. Don’t tell me to cheer up.
  2. Don’t be judgmental, telling me what my problem is.
  3. Don’t be instructional, telling me what I must do.
  4. Don’t give up on me – just being there helps.

20% of people have mental health challenges so the odds are that 1 in 5 people in your workplace do too.

In our Better Workplace Projects, we help employers and employees to develop high performing, caring and supportive workplaces where peoples’ wellbeing is a priority because it is both the morally right and the commercially smart thing to do.

We want you to “Make every day RUOK Day” but also to reduce the incidence of mental health problems by having a great place to work. Don’t let your workplace be a contributing factor to Australia’s mental health challenge.

There are lots of resources available at RUOK and Heads UP.

These are some of the tools that we use in our Better Workplace Projects.

Give me a call on 0438 533 311 if you would like to learn more about how we might help.

 

Procedural fairness so often the stumbling block

I have read a number of stories in the media and on social media about sacked employees successfully prosecuting unfair dismissal claims even though the Fair Work Commission found that there was justification for the sacking.

This happens a lot (even to large employers) and it is because, according to the law, it is not just about whether the sacking is justified (substantive fairness), it is also about how the sacking takes place (procedural fairness).

So, here are some tips on due process (ie what you need to do to demonstrate procedural fairness):

  1. Properly investigate matters ensuring that you have evidence to present as underpinning the allegations of underperformance or misconduct.
  2. Advise the employee that you will be meeting with them at a date/time/place to discuss significant issues regarding their work performance and that they have the opportunity to have a support person present.
  3. Have a management representative present at the meeting (especially if the employee is likely to be contentious) to act as a witness to proceedings and to sign off on meeting notes as a true and accurate record.
  4. Present the employee with the allegations and the specific evidence/examples of occurrences in detail to respond to. Note, in circumstances where the allegations are particularly serious or complex or could have serious consequences (eg termination of employment), it can be appropriate to provide advice of these in advance of the meeting to allow the employee the opportunity to obtain advice.  
  5. Consider what the employee has had to say and determine what you believe the facts to be based on that response (on the balance of probabilities) and other evidence and what course of action needs to be taken eg if new information is presented that would warrant further investigation, adjourn the meeting to undertake the investigation or, if that is not necessary, determine what course of action is appropriate in the circumstances.
  6. If additional investigation was necessary, present the findings and associated evidence back to the employee when you re-adjourn, repeating steps 4 and 5.
  7. Once the investigation is completed and the employee has had the opportunity to respond to all of the evidence, make a final determination as to what the facts of the matter are “on the balance of probabilities” and what the appropriate action to take in the circumstances would be.
  8. Advise the employee of your findings and the action that you propose to take, asking the employee if they can provide any reason as to why you should not take that action. One of the things that needs to be considered is the question of the severity of the impact this action would have on the employee having regard to their personal circumstances (eg terminating a mature age worker with little prospect of alternative employment and a low level of financial sustainability could have serious consequences for that person and the FWC has been taking such matters into consideration in relation to the harshness of the penalty).
  9. Having heard and considered what the employee has had to say, advise them of the action that you have decided to take, having considered everything that has been presented in the process.
  10. Confirm the outcome in writing including, if a warning is involved, what the performance improvement expectations are and what the consequences are if those expectations are not met including advice of a reasonable period for review and implement it.

This should  all be underpinned by a clear and practical written disciplinary procedure which is provided to everyone and is followed religiously without exception. Those responsible for investigating concerns and complaints and initiating disciplinary action all require training and access to professional advice.

There could also be circumstances where it would be appropriate to stand the employee in question down with pay if termination of employment appeared to be a likely outcome and/or if the continued presence of the employee in the workplace would interfere with the proper or efficient conduct of the investigation.

Have a look at our article on substantive fairness as well for as simple approach as you will find for determining what action is justified – “The 3 tents test”

And for small businesses with less than 15 employees, the Small Business Fair Dismissal Code provides a checklist for you to follow: Small-Business-Fair-Dismissal-Code-2011.

Following the type of process that we have set out in this article won’t guarantee that you won’t still get an unfair dismissal claim from a terminated employee. However it will help you to defend that claim and minimise the cost of settlement.

It also sends a really positive message to your employees that you understand your legal obligations and that you will give your people a fair go and honour those obligations.

Sacking someone is not an easy thing to do and, for most managers, it isn’t something that you do often so don’t be afraid to call out for help. A small investment can make a world of difference to the outcome.

Note: We are not qualified lawyers and this article does not constitute legal advice. It is intended to provide inexperienced employers and managers without access to professional workplace relations advice with some tips on the sorts of things that they need to take into account procedurally in dealing with matters of this sort. We are of course able to assist with developing the right procedures for your business, training your managers and supervisors and providing professional advice and support as needed.

Are you ready for casual conversion?

All modern awards which do not already have a casual conversion clause will have one from 1 October 2018.

This means that employees who are engaged as casuals on a regular and systematic basis for 12 months can apply to convert to full-time and part-time employment.

An employer can refuse such a request on reasonable business grounds but these grounds are quite limited. In essence, if the employee would continue in employment beyond 12 months on much the same basis as a casual without any expectation of that arrangement changing, it would be difficult to reasonably decline a request for conversion.

This is a particular challenge for labour hire firms who typically engage most of their hired out workforce as casuals.

That challenge has been heightened in the minds of many by a recent decision of the Full Bench of the Federal Court  in the case Workpac v Skene. In that case, the Court decided that a labour hire casual who worked regular and predictable hours was a permanent employee at law, and was therefore entitled to paid annual leave, and other permanent employment rights.

This was a fly in fly out worker who was engaged on successive rosters for 6 months, 12 months and 12 months on regular and systematic hours. That really isn’t characteristic of a real casual employment relationship and that is what the court found.

In another case in South Australia (Apostolides v Mantina Earthmovers & Constructions Pty Ltd) earlier this year, the employee who had been engaged as a casual for 15 years but worked full-time over that period was also found to be a permanent employee and was awarded annual leave for the entire period of employment.

Our advice to businesses is that, rather than trying to avoid the issue, be proactive about it and here are some tips:

  1. Be realistic about the nature of the engagement – if it is going to be a regular and systematic arrangement where the employee works the same hours week in and week out ongoing, it isn’t really casual employment.
  2. Don’t be frightened by the myth that you want to keep employees as casuals to avoid unfair dismissal. The truth is it doesn’t matter whether an employee is engaged on a permanent or casual basis as they can both claim unfair dismissal if engaged for 12 months for businesses with less than 15 employees or 6 months for businesses with 15 or more employees.
  3. Have written employment contracts for all employees and ensure that they clearly state the nature of the engagement. Also ensure that you comply with any award provisions that stipulate information to be provided to casual employees on engagement.
  4. Have a system for dealing with the casual conversion election process and lead it to get each casual employee to make the decision, clearly spelling out what the differences would be if the employee converts to full-time/part-time employment or elects to remain casual. Many will decide to stay casual to get the 25 % casual loading.

Casual employees must be given a copy of the new clause within the first 12 months of their employment, or if already engaged, by 1 January 2019.

At Ridgeline HR, we have put quite a bit of thought into ways in which we can help labour hire businesses and any others with significant levels of casual employment to minimise the risks and treat their workforces ethically by ensuring they are informed about their rights and giving them fair choices.

Contact us using the form below if you would like us to discuss ways in which we might be of assistance with this issue.

[contact-form][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Phone’ type=’text’/][contact-field label=’Enquiry’ type=’textarea’ required=’1’/][/contact-form]