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.

 

Judge and FWO create confusion in car rental industry

A decision by a Federal Circuit Court Judge has thrown the car rental industry into confusion about the award coverage of its workers.

For over a decade, the Fair Work Ombudsman and its predecessor government agencies have held that customer service staff are covered by clerical awards and car cleaners are covered by vehicle industry awards. Where a staff member might perform both customer service and car cleaning duties, they were paid according to whichever award/classification attracted the higher rate.

Now, because of the decision made in this case, (SURACE v PEOPLESMOVE PTY LTD), the Fair Work Ombudsman has changed its mind and, on their website, is advising:

Retail Award

The Retail Award covers employees of car rental businesses who:

  • perform administrative work at the business retail premises, for example the shop front where you hire the vehicle
  • organise bookings, receive payments and sell extra products or services to customers
  • work as car washers and detailers.

Clerks Award

The Clerks Award covers employees of car rental businesses who perform administrative work away from the business retail premises, for example in the head office.

Why is it a problem?

Sure there are new legal precedents that come along but the problems here are threefold:

  1. The decision appears to be flawed (and I’m not a lawyer but I don’t need to be to reach that conclusion in this case based on the evidence)
  2. The Fair Work Ombudsman’s interpretation of the decision also appears to be flawed
  3. The effect of the decision (if applied as the Fair Work Ombudsman has determined it should be) is to really complicate award designation in the industry unnecessarily.

What was this case about?

Mr Surace brought an underpayment of wages claim against his former employer  Peoplesmove Pty Ltd (trading as Carhood). He performed a mix of customer service, car cleaning and supervisory/team leader duties and claimed that he was covered by the Clerks – Private Sector Award 2010. That was opposed by the former employer who argued that he was award-free or, alternatively, covered by the Miscellaneous Employees Award 2010.

So the Judge had to first determine the question of award coverage for this worker.

What is the basis for the decision?

There appears to have been conflicting evidence about just how much time this worker spent on supervisory duties versus customer service versus car cleaning functions.

The Clerks – Private Sector Award 2010 was ruled out as it technically covers employees “wholly or principally engaged in clerical/administrative duties” and the Judge felt that this was not the case with Mr Surace, notwithstanding the long history of clerical award coverage of customer service functions in the industry.

Then the Judge considered the question of the “Retail Award” :

  1. The Respondent submits that the Retail Award is not applicable to the Respondent’s business, because cl.3.1 of the Retail Award “defines explicitly and with limitation the establishment must be one of the below definitions”.[3] This submission misconceives the ordinary meaning of cl.3.1 of the Retail Award. The list of businesses specified in cl.3.1 of the Retail Award under the definition “general retail industry” are clearly not an exhaustive list of businesses that fall within the scope of the Retail Award. This is made clear by the opening words in the definition of general retail industry: “general retail means the sale or hire of goods or services to final consumers for personal, household or business consumption including…” (emphasis added). Clearly, by the use of the word “including”, the identified retail businesses do not exhaust the type of retail business which may fall within the meaning of “general retail industry”.
  2. The ordinary meaning of the definition of “general retail industry” can be read as meaning “the sale or hire… of services to final consumers for personal… or business consumption”. I am satisfied that the Respondent’s business involves the hire of a service (car-sharing) to final consumers (traveling to and from the airport) for their personal or business consumption. The fact that the business of the Respondent is novel does not preclude its service from falling within the definition of “general retail industry.”
  3. Accordingly, I find that the Respondent operates a business within the meaning of “general retail industry” of cl.3.1 of the Retail Award.

What is wrong with that decision?

The decision correctly notes that  “general retail means the sale or hire of goods or services to final consumers for personal, household or business consumption”.

However, that clause in the General Retail Industry Award 2010 also lists a number of exclusions (not mentioned in the decision) and one of those exclusions is: “motor vehicle retailing and motor vehicle fuel and parts retailing”.

So, if retailing includes “hire of goods or services” and “motor vehicle retailing” is specifically excluded from coverage of this award, how can car rental be covered by the General Retail Industry Award 2010?

The simple answer is that logically it can’t, notwithstanding this judicial decision.

Why the Judge ignored that very explicit exclusion in the Award is a mystery.

What then is wrong with the FWO interpretation of this decision?

  1. The Judge made a decision in an individual case based on a particular mix of duties – it was about that worker, not the entire industry and it should be viewed as such.
  2. If there is a concern about whether that decision affects traditional award coverage of the industry, perhaps that question should be referred to the Fair Work Commission whose role it is to determine award matters. That would provide greater clarity for the industry.
  3. The decision did not consider award coverage of car cleaning functions at all – there is no mention of that and it specifically did not address coverage under the Vehicle Manufacturing, Repair, Services and Retail Award 2010 which has car cleaner classifications and includes in its coverage “the repair and servicing of motor vehicles in the establishment of an employer ……who is engaged in the motor vehicle rental business”.
  4. As the decision did not in any way comment on award coverage of car cleaning activity let alone make any decision on that, how could the FWO reasonably determine that the current award provisions are not applicable and that car cleaning at a retail site now falls under the General Retail Industry Award 2010?

Are there deeper problems?

Unfortunately, yes there are.

Our Award system remains ridiculously complicated and difficult to navigate for the average business owner or employee. That was a significant contributing factor in the decision in question – the Judge had to make a determination of award coverage for an employee whose duties spanned multiple awards (according to traditional award coverage determinations) and seemingly looked for an easy solution to this, even if it was technically the wrong answer.

The irony in this case is that the Judge could have made an alternate decision that would have made much more sense and actually simplified the Award coverage issues for the industry.

The Vehicle Manufacturing, Repair, Services and Retail Award 2010 has Salesperson classifications but the authorities have traditionally held the view that Sales did not include rental sales. If the Judge had applied the retailing definition in the General Retail Industry Award 2010 (ie including hire of goods and services) to the Vehicle Award which otherwise covers car rental and so designated the Vehicle Award as the industrial instrument in this case, the industry would have one award to cover most activities.

An opportunity missed.

By Peter Maguire

 

 

 

 

7 ways to build trust

In the backwash of the banking royal commission, the investigations into paedophilia in religious institutions, ongoing domestic violence and gender inequality, much publicised cases of underpayment of wages by rogue employers and gig businesses and rorts by members of parliament and government officials, there is a lot of talk about “trust” and Australia having a “crisis of trust”.

Interestingly, one of the primary qualities that great employers have is trust and there is a great opportunity for businesses to make a difference in our community by leading change through the practice of trust.

Are there things that you as an employer can do differently to be more trusting in your people and to be more trusted by your people?

Here are a few suggestions for any leader.

 

Respect my views

Seek my opinions and ideas, listen to any concerns I have and always ensure that you understand what I am saying and why. Respond to me in a timely, polite and constructive way. Never leave me wondering where I sit with you and any issues of concern.

Believe in me

I want to do a good job and want you to help me do that. Accept that sometimes I might make mistakes but that, with your help, I will learn from them. See me as someone worthy of investment and optimism rather than through the lens of risk and micro management.

Let me be myself

All of us have our own styles and strengths and that diversity is powerful. Give me opportunities to use my strengths so that I can enjoy and succeed in my work, grow in my own way and enhance my value to the business.

Let’s get to know each other (appropriately)

If we understand who each other is, what each other’s strengths are and what we rely on each other for, we have the foundation for building a positive and constructive relationship. I may be able to help you with something that you are struggling with just as I expect you as my employer to support me.

Give me clarity

I want to know where we are going and what it is that you need me to do to help you get there. Put a plan in place and help me to do my part by having clear goals and responsibilities and a plan of action. Catch up with me regularly to coach me and support me to deliver on the plan. Celebrate successes and capture the improvement opportunities.

Give me a sense of belonging

Have clear statements of purpose and values that tell me what the organisation stands for (ie why it exists and how it behaves). Engage me by living that purpose and values every day in every way so that I am inspired to perform for you and go the extra yard.

Believe me

If I tell you something, believe that I am telling you my truth. If I tell you I can’t come in today, believe that I have a good reason for that. If I tell you that I am unwell, don’t make me go to the doctor to prove I am unwell – let me get better. If I am struggling to get the desired outcome with something, accept that I am trying my best and look at how you can help me to deliver what you want.

Our EngageMentality coaching and organisational development model focuses on peoples’ strengths and building respectful and productive relationships in the workplace. Building trust is a central element of the process. To find out more, call Peter Maguire on 0438 533 311.

New leave to deal with family and domestic violence

All modern awards have been varied with effect from 1 August 2018 to provide all employees including casuals with an entitlement of up to 5 days unpaid leave per annum to deal with family and domestic violence.

Read more

More changes for employers

The changes keep coming in the field of workplace relations:

Annual Wage Review

There are a number of changes taking effect from 1 July 2018 as a result of the decision in the 2017-2018 Annual Wage Review as follows:

  1. The national minimum wage and award rates have been increased by 3.5%.
  2. The filing fee for dismissals, general protections and anti-bullying applications made to the Fair Work Commission increased to $71.90.
  3. The high income threshold in unfair dismissal cases increased to $145,400 and the compensation cap to $72,700.

Penalty Rates

The next wave of Sunday penalty rate reductions flowing from last year’s penalty rates decision also take effect from 1 July 2018 as follows:

Fast Food Industry Award 2010

  • Level 1, full-time and part-time employees: 145% > 135%
  • Level 1, casual employees (including casual loading): 170% > 160%
  • Other levels: no change

Hospitality Industry (General) Award 2010

  • Full-time and part-time employees: 170% > 160%
  • Casual employees stay at 175% including casual loading

General Retail Industry Award 2010

  • Full-time and part-time employees: 195% > 180%
  • Casual employees (inclusive of casual loading): 195% > 185%

Pharmacy Industry Award 2010

  • Full-time and part-time employees: 195% > 180%
  • Casual employees (inclusive of casual loading): 220% > 205%

Extension of ATO’s contractor reportable payments scheme 

On 9 May 2017 the Government announced that from 1 July 2018 businesses that supply courier or cleaning services will need to report payments made to contractors if the payments are for courier or cleaning services.

These payments must be reported to the ATO each year using the Taxable payments annual report.

Businesses in the building and construction industry have been subject to this requirement for a number of years.

Labour hire licensing

The Victorian Labour Hire Licensing Act has been passed by Parliament and is expected to come into effect by no later than 1 November 2018.

This means that labour hire firms will not be able to legally operate in Victoria unless they have a licence having passed a fit and proper person test and satisfied a number of other requirements.

Similar legislation is already operating in Queensland and in the process of implementation in South Australia.

Long service leave

The Long Service Leave Act 2018 makes a number of changes to long service leave entitlements in Victoria. These include:

  • Employee access to long service leave after 7 years of eligible service (down from 10 years).
  • The existing entitlement to payment in lieu on termination of employment after 7 years’ eligible service remains.
  • Unpaid parental leave will count as service (whereas currently it does not count but doesn’t break service).
  • If an employee resigns and is reemployed within 12 weeks, service will be deemed to be continuous (currently that only happens if the employee is dismissed and reengaged within 12 weeks).
  • Long service leave service will transfer from one employer to another where there is a transfer of tangible and/or intangible assets and the employee performs duties in connection with those assets (currently only tangible assets matter).
  • The method of calculating entitlements where there have been changes in an employee’s working hours is changing.
  • The ability of an employer to apply for an exemption will be abolished.
  • Penalties for non-compliance will go from being civil penalties to being criminal penalties.

This legislation is expected to come into operation on or about 1 November 2018.

Portable long service leave in some industries

There is already a statutory portable long service leave scheme in the construction industry – see Coinvest.

The Victorian Long Service Benefits Portability Bill 2018 (Bill) will, if passed, extend portable long service leave benefits to employees in the the community services, contract cleaning and security industries.

In essence, this means that a worker in those industries will be eligible for long service leave once they have 7 years’ industry service regardless of how many employers that might be with.

Employers will have to contribute to a fund run by a statutory authority which will manage workers’ entitlements.

Domestic Violence Leave

The Fair Work Commission has approved an award entitlement to unpaid domestic violence leave of up to 5 days per annum as part of the 4 year review of modern awards. More to come on this regarding when it will take effect but it should be some time soon.

Casual Conversion

The Fair Work Commission also made a decision on a model clause for conversion of casuals to full-time or part-time employees in 2017 but it is yet to be flowed on to awards. Again that is something that should happen soon.

Conclusion

There is a lot that has changed and a lot more coming employers’ way. We will be issuing regular updates on new developments so please subscribe if you want to be kept informed. Scroll down to the right bottom of the page to do that.

Significant non-compliance in local government security supply chain

The Fair Work Ombudsman has reported on an Australia-wide audit of the security service supply chains of 23 local councils with key findings as follows:

  • non-compliance with workplace laws in the supply chains of 14 (61 per cent) of the 23 councils, with breaches primarily relating to underpayment of minimum award rates as well as under- or non-payment of applicable penalty rates and overtime;
  • 63 per cent of subcontractors were found to be non-compliant compared to 42 per cent of principal contractors, who had a direct relationship with the council.
  • the Fair Work Ombudsman issued 26 formal cautions, 15 compliance notices and four infringement notices to non-compliant contractors and subcontractors.
  • A total of $72,250 was recovered for underpaid workers.

The full media release can be accessed here.

The Fair Work Ombudsman, Ms Natalie James also stated:

“While it is the primary responsibility of the employer to ensure compliance with workplace laws, it is clear that councils could – and should – be doing more to keep tabs on what is going on in their security contracting networks.”

“We’re recommending that local councils amend their security services tender documents to reflect best practice on contracting labour and ensure that the amounts paid in their contracts are sufficient for contractors and subcontractors to cover employee entitlements.

“We also expect that councils are proactive in monitoring their security supply chains, including by requiring contractors to regularly report on their compliance with their workplace obligations.

“Beyond such measures being in line with community expectations, councils should note that it is not just employers who can be held liable for breaches such as underpayments occurring in a supply chain – in certain circumstances councils themselves may be held legally responsible when their contractors or subcontractors are not complying with the law.”

With penalties of up to $630,000 per offence for a corporation and up to $126,000 per offence for an individual, there are also strong commercial grounds for local councils and their officers to follow the Fair Work Ombudsman’s advice.

Ridgeline HR provides tailored, thorough and affordable workplace relations compliance and audit programs for franchise groups and supply chains. 

“Ridgeline HR has  recently completed a very thorough confidential assessment within our wider franchise network to check understanding of workplace laws and minimum standards.    This has also involved the provision of a comprehensive compliance kit.   Peter Maguire (Practice Leader) has a very thorough knowledge of workplace relations within Australia, provides an excellent service and brings a very practical approach.   I would warmly recommend them.”

Leida Meijers, HR Director, Europcar

How mature are your HR practices?

Questions are often asked about the value of HR to an organisation and the level of influence that the HR function has on overall business direction and decision-making.

More recently, with the disclosures of corporate malpractice and unethical executive conduct in the finance industry in particular, there are significant questions about the culture of the organisations concerned and, by extension, as the culture custodians, where were HR in all of this.

The truth is that HR can look very different in different organisations and is more often than not reflective in style of the mindset of senior management. Is the focus compliance or is it about real employee engagement? Is it about risk management and enforcement or is it about leadership and values-based behaviour? Or is it just a processing function administering operational procedures and conflict transactions?

Where does HR sit on the scale of maturity in your organisation?

Back in 2005,we developed a maturity model based on our experience in dealing with hundreds of organisations and this 4C model is a core part of our consulting and coaching offerings. While in our consulting, we focus on “People and Culture”, you can apply the methodology to any business function.

Here is what it looks like:

C1 = Commitment: this is the ground floor, the point at which an organisation makes a specific commitment through a vision statement or a values statement or a set of goals in a business plan or a policy statement or a contract which sets out an obligation that the business commits to.

C2 = Capability: this involves the organisation investing in the resources needed to give life to the commitment including the right people, processes, tools and equipment.

C3 = Competency: here the organisation has invested in the learning and support that people need to effectively play their part in utilising the resources and they are delivering good outcomes in the area of the commitment.

C4 = Culture: where the commitment has been fully embedded in everyday activity in practice, people believe it and they are consistently delivering high performance outcomes.

A lot of the organisations that we have worked with in our compliance activities are at C1 to C2 level and a significant number are quite limited in the breadth or range of commitments that they have made in real terms. Managing people is an ongoing challenge for these businesses.

Then there are the others who aspire to be employers of choice and really get the connection between employee engagement and wellbeing and high performance. With the right leadership, a positive mindset and values driven behaviours, those aspirations can be realised. Our 4C framework provides a simple and effective roadmap for getting there.

If you look at the people and culture practices in your organisation, where do you sit on the 4C scale?

6 tips on effective communication

Why is it that, whenever you conduct an employee survey or business diagnostic, communication comes up as one of the key areas for improvement?

In part, it is because we are human and we each deliver and receive and interpret information in our own individual way.

In part, it can be because, as business owners and managers, we are technically competent in what our businesses do but we are not necessarily trained or skilled in communication techniques.

In part, it is also because, in any business, the timely and accurate flow of the right information to the right people is critical for getting work done efficiently and optimising job satisfaction for the people involved.

In part, it can be because we don’t think through the actions that we are taking or changes that we are implementing by consciously considering who is affected and needs to be communicated with.

And, in part, it can be because in the everyday hurly burly of running a business, we can forget to communicate or have trouble listening to others who have something to say that is significant for them.

So what can you do to improve communications in your business?

  1. Project positivity from the top.
  • Be honest and transparent
  • Be clear about the purpose
  • Set good practice standards in policies (not just consequences for breaches)
  • Ensure that all of your managers/leaders believe the message and “sing from the same hymn book”
  • Be timely
  • Be responsive
  • Celebrate successes
  1. Define the audience on 3 levels

Tailor your message to people to take account of:

  • Whole of business communications (what everyone needs to know)
  • What particular teams might need to know about the impact for them and
  • What individuals need to know about the impact for them

Consider other stakeholders as well eg customers, suppliers, contractors, etc and what you need to tell them if they are (potentially) affected in some way

  1. Build it into project management
  • Identify stakeholders in each project up front
  • Identify key points and messages to be given in the project
  • Build these communications into the project plan
  • Make sure it happens
  • Review the effectiveness of communications as part of the review process on project completion.
  • Learn from that and continuously improve
  1. Validate understanding

This is about ensuring that the people concerned “get the message” and know what it means for them. It is really just a question of asking them what it means for them, ensuring they understand and observing what is happening in practice

  1. Give your people genuine voice

This is probably the improvement opportunity that comes up most often in employee surveys and there are lots of options such as:

  • Set up a staff consultative committee or representative workplace improvement team
  • Do regular employee surveys to get people’s views and spot check progress
  • Have a publicly committed to improvement plan for people and culture
  • Ensure that you have trusted and effective grievance and suggestions processes in place
  • Give people regular and balanced feedback about how they are going
  1. Make sure you have the capability

Continuously work on your communication processes and skills as a core business competency that impacts critically on all aspects of running a business.

If you don’t have the strengths internally, look externally to get help in communications design, positive policy writing and coaching for people in your business who play key roles in communications.

The spin offs are higher efficiency, happier people and a more profitable business.

Ridgeline HR offers a variety of coaching, consulting and contracting services to assist businesses with consultation and communication requirements and enquiries can be directed to Peter Maguire on 0438 533 311 or email pmaguire@ridgelinehr.com.au.  

 

Is an enterprise agreement right for your business?

It is now over 25 years since enterprise bargaining became an option in the Australian industrial relations system, first introduced via the Prices and Incomes Accord between first the Hawke and then the Keating Governments and the ACTU.

Unfortunately, over the years, unions and employers with unionised workplaces have dominated the enterprise bargaining space and there are few examples of genuine change delivering benefits for both employers and their people. They have really been just about negotiation of over award pay and conditions.

That is why many corporates are stepping away from enterprise agreements now – they don’t see them as offering productivity and flexibility benefits, notwithstanding the fact that they don’t see modern awards as positive alternatives either.

So why would any employer want to have an enterprise agreement today?

Ridgeline HR Practice Leader, Peter Maguire, who has been involved in enterprise bargaining since the early 1990s, offers some options for you to consider:

  1. “The first enterprise agreement that I negotiated was nominally about pay and conditions but what it was really about for me was enshrining a requirement that any matter requiring a vote by employees had to be by secret ballot. Why? Because the women who made up most of the workforce were intimidated by a small group of males backed by male hierarchy in the union and the blokes would hold sway if the vote was just by a show of hands. The union said the agreement wouldn’t get up – the secret ballot delivered an 87% approval by employees. We gave the women their voice and they backed us and that was a significant cultural change for them and the business.”
  2. “25 years ago, I participated in the process that developed the so called skills based classification structures that grace our modern awards today. The reality is that those structures were primarily the product of  industrial relations negotiations so they were mostly flawed from the outset. The world of work has also changed dramatically since then and it should be no surprise that they are not a great fit with the skill sets and talent hierarchies that exist in lots of businesses today. So, if your business is paying your people significantly above award, why wouldn’t you put in place the classification and pay structure that makes sense for your business and your people in today’s world.”
  3. “There are some award provisions that are just wrong. For example, the Building and Construction General On-site Award has an Industry Specific Redundancy Provision that gives employees who leave after their first year ‘other than for reasons of misconduct or refusal of duty’ a redundancy payment of up to 8 weeks’ pay. In the civil construction industry that means that a Plant Operator or Labourer or Traffic Controller would receive that benefit if they resign or are sacked on other grounds eg performance grounds. Other staff in civil construction such as engineers, administrative people, truck drivers etc don’t get those benefits. That is just not right or fair and can be addressed by including the National Employment Standard on redundancy for all employees regardless of business size and employee occupation.”
  4.  “The pay structures in some awards are extremely complex with a combination of base rates, allowances, penalty rates and loadings and, in some cases, specific clauses on annualisation of salaries all of which can be hard for small business owners to get their heads around. An enterprise agreement can help to make that all a lot simpler by redefining how all of that works in simple and easily understood terms and in the context of normal business operations. For example, you might typically work a 40  hour or 45 hour or 50 hour week and would like to be able to just pay a flat rate or an annual salary for doing that. That can be done in an enterprise agreement by striking flat rates that factor in all of monetary award rates, loadings and allowances with a caveat that, if you go outside the prescribed arrangement, there are extras that come into play and they are defined in the agreement as the exception rather than the rule. This ensures that your people are still better off overall and you know just what you need to do to safeguard that outcome and stay compliant.” 
  5. “Principals in supply chains and head contractors on major projects like to be assured that they will not be subject to operational disruptions caused by protected industrial action. That assurance can come from the delivery partners or sub-contractors having their own current enterprise agreements and this provides a resultant advantage when your business is bidding competitively for work.”
  6. “Enterprise agreements sit in the public domain on the Fair Work Commission’s website and so serve as both a demonstration of your business’s compliance with workplace laws and your value proposition as an employer. This sends positive messages to both the labour market and the regulator. ” 

So perhaps there are some benefits to having an enterprise agreement after all.

If you would like to explore the opportunities that enterprise agreements offer, give us a call.