Changes to flexible working arrangements and the NES

Changes to flexible working arrangements and the NES

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Changes to flexible working arrangements and the NES

example flexible working arrangement

Under National Employment Standards, employees (other than casual employees) who have worked with the same employer for at least 12 months can request flexible working arrangements if they:

  • are the parent, or have responsibility for the care, of a child who is school aged or younger
  • are a carer (under the Carer Recognition Act 2010)
  • have a disability
  • are 55 or older
  • are experiencing violence from a member of the employee’s family, or
  • provide care or support to a member of their household or immediate family who requires care or support because that person is experiencing violence from their family.

These entitlements have been around for many years but some changes are coming in.

From 6 June 2023, the right to request flexible working arrangements will also apply to:

  • employees, or a member of their immediate family or household, experiencing family and domestic violence
  • employees who are pregnant.

In what circumstances does the entitlement arise?

What is important to remember with this entitlement is that the need for the flexible working arrangement arises specifically from the particular attribute (ie the parental or carer status or the disability, etc) that applies to the employee.

For example, the fact that I am a parent does not, of itself, mean that I have an automatic entitlement to have a flexible working arrangement. However, I do have that entitlement if the exercise of my parental responsibilities gives rise to a need for a flexible working arrangement.

Similarly, the fact that I am 55 years of age or older does not of itself mean that I can access a flexible working arrangement but I have the entitlement if a flexible working arrangement is necessary to support my transition to retirement or to allow for some age-related disability (ie it is related to the fact that I am 55 years or older),

In some cases, multiple attributes can come in to play eg I could be over 55 years of age and transitioning to retirement and be a carer for my grandchild or I could be a victim of domestic violence and have parental responsibilities. Sometimes it will be this combination of factors which gives rise to the genuine need for a flexible working arrangement.

What must an employer do if an employee requests a flexible working arrangement?

Under current rules, employers have to genuinely consider a request from an eligible employee and can only refuse a request on reasonable business grounds. An employer must respond to a request in writing within 21 days and, if the request is refused, provide details on the “reasonable business grounds” in which it has been refused.

However, from 6 June 2023, two more very important changes come in:

  • Employers will have a duty to consult the employee about the request for a flexible working arrangement – to discuss it with the employee and to see if their needs can be accommodated in some way and
  • If the employer and the employee are not able to reach agreement or the employer does not respond in writing within the prescribed 21 day period, the matter can be taken to the Fair Work Commission for mediation, conciliation or mandatory arbitration.

What are reasonable business grounds?

The threshold of “reasonable business grounds” and examples of reasonable business grounds on which an employer can refuse a request have not changed.

Without limiting these grounds, they include the following:

  • that the new working arrangements requested by the employee would be too costly for the employer

  •  that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee

  •  that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee

  • that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity, and

  • that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

The specific circumstances of the employer, including but not limited to the size and nature of the employer’s enterprise, are relevant to whether an employer has reasonable business grounds to refuse a request.

What should I do with a request from an employee who is not eligible?

 If an employee is not eligible due to not having completed 12 months service but would otherwise qualify because the request arises from needs associated with one or more of the prescribed attributes, we would suggest that you should still see if there is a way to accommodate the employee’s needs even if they technically do not have a legal right to request a flexible working arrangement.

There are other jurisdictions where an employee might be able to take a complaint of unlawful discrimination if a request is unreasonable refused.

If an employee is not eligible because the request does not arise from a need associated with one or more of the prescribed attributes, there is less of a risk of an employee having a legal basis on which to prosecute a complaint of some sort.

Having said that, we know that, resultant from COVID lockdowns, there are a lot of people who have had the experience of working from home and are looking for working from home or hybrid working arrangements.

Employers really need to look at what they are able to offer employees in flexibility of working arrangements as part of their overall talent attraction and retention strategy.

Some organisations are shifting to 4 day weeks.

For categories of employee who cannot work from home because of the job that they do (eg  nurses, factory workers, drivers, construction workers, hospitality and shop-based retail staff), look at what flexibilities you might be able to offer such as an RDO or a 9 day fortnight or an early finish on Fridays. 

Need help?

Give us a call on 1300 108 488 to arrange your free first consultation to see how we can help with advice and support on this or any other HR matter. 

Note: some of the content has a been sourced from publications by the Department of Employment and Workplace Relations and the Office of the Fair Work Ombudsman. 

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Changes to Paid Parental Leave

Changes to Paid Parental Leave

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Changes to Paid Parental Leave

father with newborn

On 1 July 2023 the Federal Government is introducing changes to the current Paid Parental Leave system in a bid to make it more flexible and promote gender equality. In this article we’ll go over how the system currently works and what the changes will be.

Current System

Currently parents/carers of newborn or adopted children are able to claim up to 18 weeks (90 payable days) of Parental Leave Pay paid at the National Minimum wage. This is made up of 12 continuous weeks (60 payable days) as well as 30 Flexible Paid Parental Leave Days. 2 weeks (10 payable days) of Dad and Partner Pay is also available but the total payment for Parental Leave cannot exceed the 18 weeks (including the Dad and Partner Pay component).

In order to be eligible for Parental Leave Pay currently you need to be the primary carer for the child, not be working for the period of Paid Parental Leave and meet income and work tests.

System from 1/7/23

From 1 July 2023 the payment will increase to 20 weeks (100 payable days) which is now able to be shared by both parents or carers. There are rules about the amount that can be shared however and the birth mother (or first adoptive parent) must approve any shared days and no one parent can claim more than 90 days unless they are a single parent or carer.

For more information on Paid Parental Leave please visit Services Australia’s website here or if you need further assistance please give us a call on 1300 108 488.

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Fair Jobs Code

Fair Jobs Code

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Fair Jobs Code

workers on roof

On December 1 2022 the Victorian Government introduced the Fair Jobs Code which lays a set of standards that businesses and organisations must meet in order to receive certain contracts or grants from the Victorian Government. The Government has introduced this in the hopes of creating a more secure, fair and inclusive process when tendering for work or grants. We’ll run through how it works here.

Who does it apply to?

The code applies to:

    • Suppliers who bid for procurements (goods, works, or services) worth $3 million or more; and
    • Subcontractors who deliver work worth $10 million or more on procurements of $20 million or more; and
    • Businesses who apply for business expansion grants of $500,000 or more where job delivery is a focus of the expansion.

What are the standards laid out in the Code?

The standards set out in the Fair Jobs Code are:

Standard 1: Comply with all applicable employment, industrial relations and workplace health and safety obligations

Standard 2: Promote secure employment and job security

Standard 3: Foster co-operative and constructive relationships between employers, employees and their representatives

Standard 4: Foster workplace diversity and equity

Standard 5: Promote supply chain compliance

How does it work?

All suppliers and businesses that meet the monetary thresholds laid out above must have a Pre-Assessment Certificate that shows how they comply with Standard 1 i.e. that businesses and suppliers have a history of complying with industrial relations and workplace health and safety laws over a 3 year period prior to applying for a certificate. For more information on Pre-Assessment Certificates visit this site.

In addition to the Pre-Assessment Certificate, businesses and suppliers who tender on large contracts or for large grants must prepare a Fair Jobs Code Plan which demonstrates how they plan to meet Standards 2-5. For more information on preparing a Fair Jobs Code Plan visit this site.

How can we help?

We can review your current policies and procedures and audit your employment and industrial relation obligations for to see if you are ready to meet the requirements of a Pre-Assessment Certificate or a Fair Jobs Code Plan.

For more information on anything mentioned please check the Fair Jobs Code page on the Victorian Government web site or if you need further assistance please give us a call on 1300 108 488.

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Put your HEART into stamping out sexual harrassment

Put your HEART into stamping out sexual harrassment

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Put your HEART into stamping out sexual harrassment

great resignation

The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) recently released its report on an investigation that it conducted into Bakers Delight Holdings’ compliance with the positive duty to eliminate sexual harassment.

Bakers Delight Holdings was chosen because it is both a head franchisor and an employer in the retail industry both of which are regarded as high-risk environments. It wasn’t because specific complaints had been made against Bakers Delight Holdings but rather the company engaged with the regulator in the investigation.

What is a positive duty?

Under the Victorian Equal Opportunity Act 2010, employers in Victoria have a “positive duty” to take reasonable and proportionate measures to eliminate workplace sexual harassment.

The “positive duty” requires employers to take action to prevent sexual harassment, not just respond to it when it occurs.

Employers must take preventative measures regardless of whether a complaint has been made.

How did they assess compliance with the positive duty to prevent sexual harassment?

The used VEOHRC’s own Guideline on Preventing and responding to sexual harassment as the authoritative reference. This sets out 6 minimum standards for employers as follows:

 

Standard 1: Knowledge

Employers understand their obligations under the Equal Opportunity Act 2010 and have up-to-date knowledge about workplace sexual harassment.

Employers understand the law relating to sexual harassment including their positive duty. Employers understand the drivers and impacts of sexual harassment. Leaders and supervisors know how to identify and respond to sexual harassment in the workplace.  

Standard 2:

Prevention plan

Sexual harassment is prevented through the development and implementation of an effective sexual harassment prevention plan.

Employers have assessed what steps they will take to prevent sexual harassment, including measures in line with these standards, and have documented the plan. Workers and their representatives have an opportunity to contribute to the development or revision of the plan. Workers understand the plan (including relevant policies and procedures) and know where to find it. Leaders have implemented the plan and are accountable for the commitments within it.

Standard 3:

Organisational capability

Leaders drive a culture of respect by building organisational capability

Expectations of respectful workplace behaviour have been set and clearly communicated to workers. Leaders model respectful workplace behaviour. Employers have taken steps to ensure workers understand that sexual harassment and victimisation are against the law and will not be tolerated. Employers encourage and support bystanders to act safely to respond to sexual harassment.

Standard 4:

Risk management

Employers have built a culture of safety and address risk regularly.

Employers have regularly identified and assessed risk factors for sexual harassment, including by seeking feedback from workers. Employers have recognised and treated sexual harassment as a work health and safety risk. Employers have taken steps to minimise and control workplace risk factors. Workers understand and are encouraged to use systems in place to address risk.

Standard 5: Reporting and response

Sexual harassment is addressed consistently and confidentially to hold harassers to account, and responses put the victim-survivor at the centre.

A fair and confidential reporting and complaints procedure is prepared in consultation with workers, with victims-survivors’ wellbeing prioritised. Workers know how and where to make a complaint or report and are supported to do so. Responses to complaints are timely and consistent, with proportionate disciplinary outcomes. Workers are safe and supported through a complaints process, including through identifying and preventing victimisation.

Standard 6:

Monitoring and evaluation

Outcomes and strategies are regularly, reviewed, evaluated and improved.

Employers regularly collect and assess reporting and complaints (and other relevant) data for trends, patterns and lessons to drive continuous improvement. Employers regularly review and update sexual harassment prevention plans (eg annually) to drive continuous improvement. Employers are transparent about trends, patterns and lessons with workers, boards and key stakeholders. Workers have confidence that sexual harassment is being eliminated in their workplace.

VEOHRC has stated that it believes that these guidelines are sufficiently authoritative to be used in court proceedings relative to the positive duty to prevent and respond to sexual harassment.

What were their findings?

Not surprisingly, they found gaps in their compliance settings and practice, as they no doubt would in most (if not all) organisations.

Following on from that investigation, Bakers Delight Holdings has entered into a compliance agreement with VEOHRC through which it has committed to:

  • developing a sexual harassment prevention plan
  • developing sexual harassment training for all Bakers Delight employees and training to assist managers to respond to reports of sexual harassment
  • updating sexual harassment policies and procedures for responding to sexual harassment
  • regular communication to Bakers Delight employees about how they can make a complaint of sexual harassment
  • developing a central register of reports of sexual harassment.

What does this mean for you?

The report and the Compliance Agreement with Bakers Delight Holdings sets a new benchmark on what organisations need to be doing to meet their positive duty.

While the focus has been on franchisors and the retail industry which should take particular note, the message is clear and transferable for any employer in any workplace setting.

Just as with the positive duty in relation to mental health and wellbeing and elimination of psychosocial hazards, we need to get real about getting the right behaviours in our workplace and eliminating the wrong ones.

Our HEART model is specifically designed to generate cultural improvements in organisations:

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Why would I want to work for you?

Why would I want to work for you?

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Why would I want to work for you?

great resignation

We are hearing a lot of business owners asking the question: “Where can I find the people I need for my business?”

Attracting and retaining the people we need is one of the greatest challenges that we have in business today.

The pandemic has had dramatic effects on the labour market in a number of ways:

  • Closed borders have meant that overseas students, backpackers and other migrant workers have not been here
  • Industries such as hospitality and tourism are ones that were hard hit and workers who had been stood down went looking for more secure work, found it and aren’t going back
  • Others which were under the pump like our essential services and frontline workers were stretched to breaking point and many have left to find less stressful work
  • People have moved to regional areas or interstate to get out of lockdown areas and to improve life balance
  • With work from home orders giving people the opportunity to do that, many have found that they like that and they want to keep doing it
  • Conversely, there are some who don’t want to work from home but would prefer to return to the office and finally
  • The pandemic has caused people to rethink what is important to them in life and where work fits in their lives and that impacts on their job choices.

As a result of all of these factors, the labour market is more competitive than it has ever been.

So how do you optimally position your business to be a preferred employer in these challenging times?

What do you have to offer when that potential employee asks the question: “Why would I want to work for you?”

What difference has the pandemic made to the answers to that question?

There have been numerous studies and surveys undertaken on what people want in their workplace and their career.
Generally, we shouldn’t be surprised with what these tell us – they are pretty obvious, when you think about it – people want:

  1. The opportunity to deploy their skills and talents on work that they enjoy
  2. The contribution that they make in their work to serve a purpose – to give meaning to their lives
  3. A sense of belonging in working for an organisation that they feel part of and can feel proud of
  4. Recognition for the work that they do in both monetary and self-esteem terms
  5. Flexibility that enables them to balance work commitments with other elements of their lives
  6. A sense of fairness and respect in the inclusion and behaviour of people in the organisation (ie everyone gets a fair go) and
  7. Trust in their employer, their boss and their colleagues to support them in their role, relationships and wellbeing.

These have always been important elements of a positive workplace culture, but the impact of the pandemic has amplified them.

Additionally, when it is an employee’s labour market as is very much the case today, candidates can pick and choose based on their personal preference set.

The challenges for employers

To be successful in today’s job market, an employer must have a valid and attractive Employer Value Proposition (EVP) which clearly answers that question: “Why would I want to work for you?”

For many business owners and managers, this requires a real mind shift – to open your mind up to new ways of working and new ways of leading and managing your people.

What flexibilities can you offer people in relation to when, where and perhaps even how they work in the role that you need filled?

While you might ideally want people to return full-time to the office, have a think about why you want that. Is it because that works best for you (because it is the way it was pre-pandemic) or is it because it is best for your people and, for that matter, the business?

Perhaps a hybrid arrangement could work – some time in the office with some time working at home or at a remote hub like a coworking space near the employee’s home.

Then there is that question of what your EVP is. Do you know?

One of the more remarkable things that we have found over the years is that 80% of job ads don’t actually give you a reason to apply for them and don’t differentiate from their competition at all.

If “people are your greatest asset” as is so often said, why don’t most job ads reflect that?

Again, you need to open your mind to where you are most likely to find the skills that you are looking for and what might be important to them in a role.

For example, a number of years ago we assisted a client with recruitment of a part-time administrative person, They started thinking of the role as 3 days a week for a full day.

Then we talked about where they would be likely to find the right person and what they had to offer someone in that segment of the labour market.

The business was in a quality suburban shopping strip with a good supermarket, a chemist, a dry cleaner and the other traders that you normally find in these places. There was a tram that stopped out the front of the office and there was nearby free parking. It was ideal for a parent with school children to work during school hours and get the other daily stuff done like picking up something for dinner or getting that script filled or the dry cleaning done. That meant that the kids could be picked up and taken home without any detours.

So they decided to reconfigure the hours for the job accordingly – 9.30 to 2.30 on 5 days per week.

They pitched it that way and got what they wanted because they thought about what a candidate would be looking for in the context of their personal needs. They crafted the role to fit that.

What is your EVP?

If you look at the 7 factors above, which of those give you a strategic advantage over your labour market competitors?

Then consider ways that you can:

  • Define your value proposition (be clear about what you offer and why it is of value) taking into account the specific market that you are likely to find people in
  • Articulate your value proposition (how do you leverage that to attract and retain the people that you need) and
  • Present it engagingly and authentically, making sure that it is real – you won’t keep people long if they find that the rhetoric didn’t fit with the reality.

Your people are a great resource for this.

Part of opening your mind up is about looking at how you interact with your people and how they might contribute in different ways to support the business.

Your people will have things that they value about working for you and they will also have ideas on what isn’t working so well or things that could help to attract and retain the people you need.

So ask them what they think. Run ideas that you have past them to see what they think.

Optimise the relationships with your people by really making them feel that their opinions and work contributions are both valued.

Would any of your employees be good ambassadors for your business (eg they might be happy to be in a video telling the public why they love working in your business)?

We know how effective customer testimonials can be for sales of our products or services – why wouldn’t testimonials by your staff work as well?

If you would like some assistance in developing your EVP so that you can position your business as an Employer of Choice – for real – we can help.

 

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Is an enterprise agreement the answer?

Is an enterprise agreement the answer?

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Is an enterprise agreement the answer?

Wouldn’t it be great if you could simplify compliance with modern awards and related matters?

If you could tailor content to your workplace?

If you could have everyone on the same terms of employment?

Guess what – you can do all of those things and more in an enterprise agreement.

What is an enterprise agreement?

An enterprise agreement is an agreement made between an employer and a group of employees on wages and conditions of employment for that group of employees.

They can be made with all or some employees in a particular enterprise and have to be approved by the Fair Work Commission.

They can incorporate modern awards that have application to the group of employees or they can exclude those modern awards, totally replacing them.

How are they made?

The process starts with the issue of a Notice of Representational Rights which informs the employees concerned that their employer wants to make an enterprise agreement and that they have the right to be represented in negotiation of that agreement.

Employees nominate one or more people to represent them and they can nominate themselves if they wish to.

If an employee is a member of a union, the union has default bargaining rights unless that employee nominates someone else as their bargaining representative.

The employer and employee representatives then develop a draft agreement and, when it has got to stage where there is a reasonable level of confidence that people are OK with it, a vote of employees is organised.

If a majority of the employees who vote, vote in favour of it, it is approved subject to certification by the Fair Work Commission.

What happens at the Fair Work Commission?

A copy of the signed agreement together with an Application to Approve an Enterprise Agreement (Form F16) and a Statutory Declaration (Form F17) and various other documents are filed with the Fair Work Commission.

The Commissioner who deals with it is then primarily concerned with the following questions:

  1. Whether the Agreement satisfies the Better Off Overall Test i.e. employees are better off under the Agreement than they would be under the relevant modern award(s).
  2. Whether the group of people covered by the agreement does not unfairly exclude other employees and
  3. Whether the Agreement has been fairly made i.e. the correct process has been followed, people have been properly consulted, prescribed timelines observed and people have been properly informed about the effects of making the Agreement on their wages and terms of employment before they voted on it

If the Commissioner has any concerns, an undertaking might be required or submissions might be invited for consideration.

Once the Commissioner can answer “yes” to the 3 questions noted above, the Agreement can be formally approved and legally takes effect from 7 days after the date of that approval.

Reasons for doing an enterprise agreement

There are a variety of very good reasons that might apply depending on the particular award coverage and the circumstances of the business. These include:

  1. Simplification: modern awards try to cover whole industries or particular occupations across multiple industries and we often find that much of the content in modern awards has little or any relevance to particular businesses. So we can trim it back to what is relevant.
  2. Flexibility: all modern awards have Individual Flexibility Clauses which allow some flexibility with existing employees in a limited range of matters and Facilitative Provisions which also allow some room for negotiation on some things. However, they won’t necessarily provide the sorts of flexibilities that employees might want and the employer is happy to offer and that can be addressed through an enterprise agreement.
  3. Customisation: modern awards are largely a one size fits all approach and we know that one size doesn’t fit all. For example, classification structures in modern awards are often difficult to apply to a particular business because they lack definition or they just don’t make sense. In most cases, they were developed decades ago and really don’t take account of technological and other changes to the way we work and the skills that we use today. If you pay people sufficiently above award, you can make your own structure that makes sense for your business and your people.
  4. Fairness: some modern awards have specific provisions which are just unfair for employer and employees. For example, modern awards which have Industry Specific Redundancy provisions allow an employee who resigns after at least one year’s service to receive a redundancy payment of up to 8 weeks while an employee who is retrenched after more than 5 years’ service gets less under the modern award than they would under the National Employment Standards that apply to most other employees. With an enterprise agreement, you can put everyone on the same footing with things like that.
  5. Protection: for some businesses, having an enterprise agreement of your own offers protection from coercion to enter into an enterprise agreement with a union which would force you to pay your workers at major project rates on all of the work that you do. That can make your business uncompetitive for other work. If you are in such an industry and have a non-unionised workforce who are happy to be that way, your own enterprise agreement can help you to get the right balance in paying higher rates on major project work and at lower levels on other work. Equally, a head contactor on a major project would likely want your business to have an enterprise agreement so as to avoid industrial relations disruptions to the project. All enterprise agreements are published on the Fair Work Commission’s website and you can use that to publicly demonstrate your employer value proposition to prospective employees because it is locked in by law.

Conclusions

The process for making an enterprise agreement is complicated and the Fair Work Commission’s approach to them is complex. Additionally, individual Commissioners can have their own way of dealing with them.

That means that you do need professional assistance in developing and implementing one and we can assist with that. Equally, if any of the scenarios described above fit your business situation, it can be a very worthwhile exercise that can deliver real positive change in workplace flexibility, fairness
and employee engagement.

If any of this is of interest to you, take advantage of our free first consultation to explore your options and how we can help.

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