Creative compliance – classification structures

Creative compliance – classification structures

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Creative compliance – classification structures

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This is one of our creative compliance blogs where we explore options for being a little innovative within the constructs of the Fair Work system.

The Challenge

One of the difficulties that employers and employees can have with modern awards is understanding the classification and wage structures ie where a particular employee’s job fits and what the minimum rate of pay for that job is.

Why is this difficult?

Sadly, it is because classification structures in many awards simply don’t describe the work that people do. Some make no reference to tasks performed, some have some generic content around level of supervision or degree of independence which isn’t very helpful and some have stated qualification levels which, in some cases, are not actually relevant. 

How can that be the case?

Back in the early 1990s, employer associations and unions negotiated new so-called “skills based classification structures”. Ostensibly, this was about aligning job classifications and wage rates with industry training and qualification levels.

However, what actually happened was:

– Industry training people built the training curriculum and qualifications frameworks;

– Industrial relations people separately negotiated structures for each industry against a set of job benchmarks framed as a % of a tradesperson’s rate in the context of the particular awards relevant to the particular industry or occupation and the wage structures that already existed in those awards;

– Some industries simply set award classification levels by reference to the qualifications framework for the particular industry or occupation with little or no definition of tasks performed;

– Others set award classifications by aligning existing award wage levels for particular jobs (eg for a trades assistant or a forklift driver) with the closest benchmark % of the tradesperson’s rate, largely ignoring the qualifications framework in the negotiation process but including references after setting the wage levels; and

– While there were guidelines and the Australian Industrial Relations Commission nominally oversaw the process and had to approve the award classification structures, each industry pretty well did its own thing.

Some awards kept schedules of the pre-existing classification levels as references which were helpful.

Note: Ridgeline HR Practice Leader, Peter Maguire was a member of the Australian Textile Employers Industrial Relations Council and participated on the working party that developed the structure for the textile industry.

Then, with the advent of the Fair Work system, modern awards were created and there has been an ongoing modern award review process going on in the Fair Work Commission for the past 9 years.

With some awards, those reference schedules have been removed in these processes.

Of course, there is the other problem – that the way work is performed and the skills and knowledge required to perform that work effectively today can be very different to what it was when those so called skills-based classification structures were created 30 years ago.

Shouldn’t the Fair Work Commission fix it?

What is clear is that the award modernisation process really hasn’t been effective in modernising awards. It has largely been a rationalisation process to reduce the thousands of awards that operated federally and in States and Territories to a more manageable number. The Fair Work Commission has been effective in getting that number down to a bit over 120.

It has also been effective in standardising some provisions across awards to provide consistency but classification structures have largely been left alone and that is likely to remain the case.

What can you do about it?

If you are paying your people significantly above award, you have the opportunity of creating your own classification structure – something that you and your people see as being fair and that makes sense for your business.

You can do something entirely different to the award structure as long as people would all be paid more under your structure than they would be under the award structure.

What is important in implementing something of this sort is:

1. There are clear descriptors for each level which clearly differentiate between one level and the next

2. Your people are educated and consulted about the structure and are accepting of it as a fair way to recognise peoples’ skills and contributions

3. You have a process for people to seek reclassification based on their skills and abilities as they relate to your classification structure

4. Your classifications and remuneration satisfy the “Better Off Overall” principle i.e. they are above the award minimum rates for the corresponding award classifications

5. If other monetary award conditions (eg allowances or penalty payments or loadings) are to be factored into overall wage rates within your structure as well, your structure should include detail on what is included in the rates and how the calculations have been made

6. You update the rates every time there are award wage increases – generally these happen on 1 July each year via the federal minimum wage review conducted by the Fair Work Commission

7. You ensure that your contracts of employment and remuneration policies and procedures are aligned with your classification structure and processes.

You might also consider developing your own enterprise agreement and having that approved by your employees and the Fair Work Commission which makes it legally binding on all parties. It also serves as evidence that your pay and conditions are both fair and above award.

Conclusion

We do have strict compliance requirements under employment laws and modern awards but that doesn’t mean that you cannot be  creative and compliant.

If you want to explore opportunities to get creatively compliant, book in for your free first consultation by calling us on 0438 533 311 or emailing us at enquiries@ridgelinehr.com.au.

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What’s Labor’s Workplace Relations Agenda?

What’s Labor’s Workplace Relations Agenda?

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What’s Labor’s Workplace Relations Agenda?

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 There hasn’t been a lot of talk about workplace relations in the lead up to the federal election and it hasn’t really been put forward as an election issue. However, if you look at the workplace relations/employment policies on the ALP website, there are some big changes in the wings.

Even if the ALP is not successful in obtaining a majority in the House of Representatives in its own right, there are plenty of worker friendly partners in both Houses of Parliament for them to get their legislation through. 

So what do they have in mind?

The central themes are around security of employment, equal pay and security of worker’s legal entitlements.

Specific changes proposed include the following:

  1. Inclusion of job security as an Object of the Fair Work Act so that the Fair Work Commission would have to consider job security in all of its decision making
  2. Extending the powers of the Fair Work Commission to make orders for minimum standards for new forms of work such as gig workers.
  3. Restoring the common law definition of a casual worker to undo recent Court decisions that placed primacy on the employment contract entered into at the start of an employment relationship rather than the character of the employment relationship during  the relationship.
  4. Introducing a requirement for employees engaged through labour hire to be paid the same as workers directly engaged by the host to do the same work.
  5. Limiting the use of fixed term contracts for the same job to a maximum of 2 back to back contracts for a maximum aggregate term of 2 years. 
  6. Including superannuation as a National Employment Standard so that workers’ superannuation entitlements are better protected and  can be pursued as a workplace right if underpayment occurs.
  7. Making wage theft a crime but not overriding current legislation in States or Territories (it is currently a crime in Victoria).
  8. Consulting on the development (where practical) of portable entitlement schemes for Australians in insecure work.
  9. Legislating 10 days of paid family and domestic violence leave extending the recent decision by the Fair Work Commission to award-free employees.
  10. Legislating to require employers with 250 or more employees to publicly report on their gender pay gap and to abolish pay secrecy clauses and implementing all 55 recommendations of the Respect@Work Report
  11. Strengthening the ability of the Fair Work Commission to order pay increases for workers in low paid, female dominated industries.
  12. Reforming employment practices in the federal public service by only using non-permanent employment where it is essential and reducing the incidence of labour hire, outsourcing and back to back contracts. 
  13. Introduction of a Secure Australian Jobs Code as a criteria for performing government funded work and government procurement.
  14. As expected, Labor will abolish the Registered Organisations Commission and the Australian Building and Construction Commission which were both primarily established to regulate unions and penalise unlawful behaviour by unions and officials.

So, there is a lot in all of this and there are major structural and commercial implications for businesses in a number of areas. In the months ahead, we will unpack these policies in more detail and keep you posted on developments.

Any questions can be addressed to us at enquiries@ridgelinehr.com.au or on 0438 533 311.

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ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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Paid family and domestic violence leave arrives

Paid family and domestic violence leave arrives

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Paid family and domestic violence leave arrives

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Yesterday, the Fair Work Commission announced its decision to create an entitlement to 10 days of paid family and domestic violence for full-time employees (pro rata for part-time employees).

This is not unexpected as that level of entitlement has been in place in New Zealand for a number of years now and that has been used as a benchmark here in Australia.

The way is now clear for that entitlement to be included in modern awards. Also, don’t be surprised if this becomes a National Employment Standard as, whoever is elected on this coming weekend, they really can’t have a situation where award-free employees have no entitlement to paid family and domestic violence leave when award-covered workers do.

There is no differentiation for large versus small employers – all full-time and part-time employees will have access to the leave entitlement regardless of how many employees their employer has.

Additionally, there is allowance for the grant of family and domestic violence leave in advance of the employee actually accruing the entitlement.

Casual employees have been excluded from access to this paid leave entitlement but will still be able to assess 5 days of unpaid leave to deal with family and domestic violence in accordance with National Employment Standards.

One peculiarity of this decision is the way in which the leave accrues and is capped.

It accrues in the same way as personal/carer’s leave i.e. progressively throughout the year and ongoing but it is capped to a maximum of 10 days at any time.

For example, I might have an employee who takes 5 days of paid family and domestic violence leave in their first year and then none in their next year – this would mean that their entitlement would reach 10 days after 18 months service and stay at that level until such time as they used more paid family and domestic violence leave.

This is a hybrid arrangement that sits between leave that accrues progressively without cap (eg annual leave, personal/care’s leave, long service leave) and leave that is limited to a number of days or a specific period of time per occurrence (eg compassionate leave, jury service, parental leave, unpaid leave to deal with family and domestic violence).

That introduces yet another complication for administration of employment entitlements and modification of payroll systems to accommodate this oddity, something the Fair Work Commission seems to have a habit of doing. Perhaps it would have been better to just cap it at 10 days per annum and allow access to personal/carer’s leave for any additional leave required over and above that.

At this stage, there is no operative date – that will be dependent on the transition of the provisions to modern awards. We’ll let you know when this happens.

If you have any questions, fill out the contact us form on this website or give us a call on 0438 533 311.

 

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Is reference checking worthwhile?

Is reference checking worthwhile?

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Is reference checking worthwhile?

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That is a question that is often asked and, like lots of things in the people and culture space, the answer is “that depends on how you do them”.

Properly structured and executed, reference checks can be invaluable.

They provide a real opportunity to explore the candidate’s fit with your business and the role in question through the lens of others’ real life experiences with and knowledge of them.

However, too often, there is a standardised HR procedure with generic questions ostensibly designed to ensure equal opportunity in the selection process, but which delivers little real intelligence about the candidate’s fit with your business and the role in question.

Here are our rules for conducting effective reference checks.

Rule #1: Do your preparation

Understand the role that you are recruiting to, the skills and knowledge that are necessary to perform the role effectively and the character attributes that exemplify your culture.

As you should do throughout the recruitment and selection process, think about the best ways that you can ascertain whether someone has those qualities.

Consider what you have learned about this candidate in the recruitment process to date  – what, based on the evidence at your disposal, you have reasonably determined that you are satisfied with and what you still have questions about. 

One simple way to do this is to get out a set of highlighters (physically or electronically), look at the Position Description for the role and use the traffic light method to work through each function and attribute to give you a good graphic picture of where the candidate is at – green means “yes”, yellow is “maybe” and red is “no”.

Then consider why you think that and how you can best answer the questions that you need to get answers to.

Rule #2: Purposefully design the conversation 

Remember that you need to know if this person is a fit with the role in your business and your culture – not the referee’s business and culture. 

Also remember that the referee can only effectively answer your questions if you firstly engage with them in a positive way and secondly give them the information on your needs so that they can respond in the right context.

So, in planning the conversation, you need to: 

  • Verify that the person is happy to act as a referee for the candidate and that the time is OK with a clear indication of how long it is likely to take (book a time that is convenient for the referee)
  • Provide a concise explanation of the nature of your business, the desired culture and the contribution that this role is expected to make so as to give the referee an accurate context in which to respond to your questions
  • Pose a series of questions that are based on your needs asking the referee to provide you with evidence of the candidate’s fit with those qualities based on their experience but very much in the context of your business
  • Express gratitude for the referee’s participation (that is just courteous but, if you want an extra reason, giving thanks builds goodwill and enhances your reputation and that might just pay off sometime).

Rule #3: Make it a conversation 

People are often nervous about providing referee’s comments especially if there is anything that might not be complimentary. 

It is important that you put the person at ease by making the process as informal as possible – make it a conversation rather than an interrogation. 

Start by thanking them for agreeing to act as a referee and confirm the process and time commitment for them.  Give them a brief overview of your business and the role for which the candidate has applied. 

Ask a few questions about the referee’s background eg “before we start talking about Mr XYZ, tell me a bit about yourself and your background.” This helps to give you context about the referee and helps the referee to relax into the conversation. 

Then establish the connection and level of the referee’s experience with and knowledge of the candidate. Explore the nature of the role(s) that the candidate had, what their key responsibilities were and how effective they were in meeting those. 

Also explore the culture of the organisation – ask what the core values were and how well the candidate fitted with those, asking for examples of situations and ways in which they practised the values in real terms.

Now it is time to drill down into the questions that you identified in the planning process as needing answers, making sure that you contextualise the questions to your needs. For example, “here at ABC Inc, our staff work closely with people in difficult circumstances, and we need to ensure that we are continuously supporting them and their mental health. How do you think Mr XYZ would manage that for the team he would lead in this role and why, based on your experience with him, do you think that is the case?” 

When you have finished your questions, ask the referee if there is anything that they would like to add. 

Finally, close off the conversation, thanking the referee for their time and information about the candidate. 

Rule #4: Reflect and revise 

Now revisit those questions that you came up with in the planning phase and the Position Description for the role. Adjust your ratings where appropriate based on the feedback that you received from referees. 

Ready to make the call now?

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Fight sexual harassment with HEART

Fight sexual harassment with HEART

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Fight sexual harassment with HEART

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In a much publicised address at the National Press Club this week, Brittany Higgins and Grace Tame have called for a positive duty to be placed on employers to prevent sex discrimination, sexual harassment and victimisation.

Ms Higgins said: “If you can model the correct behaviour within your workplace, it drives it forward and it puts the onus onto other businesses in and across Australia to actually take the issue seriously.”

This is a significant step beyond what Australian employers are currently legally obliged to do.

Last September, the federal parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. That legislation essentially did 3 things:

  1. Introduced definitions of “sexually harass” and “sexually harassed at work”
  2. Created a new or expanded jurisdiction for the Fair Work Commission to allow it to make orders to stop sexual harassment at work just as it could already issue orders to stop bullying at work”
  3. Including sexual harassment in the definition of serious misconduct which justifies summary dismissal

See our earlier blog on these changes and their implications for employers.

What has been the experience with stop bullying orders?

In the last 6 years, the FWC has received between 721 and 820 stop bullying applications each year. That is representative of approximately 0.006% of the Australian workforce which is extremely low given that Safe Work Australia’s own research puts the proportion of Australian workers who experience bullying at around 10% and others cite significantly higher numbers.  According to Heads Up, it is estimated that bullying costs Australian organisations between $6 billion and $36 Billion per year.

So what the FWC sees is (at best) about 0.06% of the people who are experiencing bullying. That is literally just the tip of the iceberg and clear evidence that the jurisdiction is having little impact on workplace culture.

Will the experience with stop sexual harassment orders be any different?

Last November, the Fair Work Commission’s  new jurisdiction for applications for orders to stop sexual harassment came into operation.

As noted above, it is to operate in much the same way as the stop bullying jurisdiction and we couldn’t reasonably expect it to have any more impact on the prevalence of sexual harassment than that jurisdiction has had on the incidence of bullying.

The first application made for stop sexual harassment orders was made against two workers of a neighbouring business. It was dismissed in December for want of jurisdiction because that neighbouring business moved out so there was no longer a threat of the applicant having contact with or being sexual harassed by them.

This decision confirms that there needs to be an ongoing risk of bullying or sexual harassment to obtain a stop order from the FWC.

Why doesn’t it work?

Ms Higgins and Ms Tame are absolutely right that change will only occur in real terms if employers take responsibility for changing organisational behaviour rather than just having control measures for mitigation of risk.

In our workplaces, we need to do much more than just apply the traditional WHS risk management approach of having a policy, telling people about it, requiring them to follow it and disciplining them if they don’t. That doesn’t change language, it doesn’t change culture and it doesn’t change behaviour.

The “Stop Bullying” and “Stop Sexual Harassment” processes are really not designed to prevent improper conduct – rather they are there to stop it after it has already been occurring.

They are also totally reliant on an aggrieved worker making a complaint to the Fair Work Commission.

Most workers wouldn’t know that those jurisdictions exist let alone have the confidence to access them.

We also know that most instances of bullying or sexual harassment go unreported and that, for many who are economically reliant on the wage that they bring home every week, rocking the boat with a complaint of bullying or sexual harassment isn’t an attractive prospect.

And then there are those who are able to find somewhere else to work and they just move on to get away from the problem.

How having a HEART helps

If you want to really address these behavioural problems in your workplace, our HEART model can help:

H is for HONESTY:

Accept what statistics tell us – that some form of sexual harassment is more than likely happening in your workplace and/or to your people.  Take a good hard look at your workplace to identify any practices or behaviours that might not be quite right and think about your people to identify those who are perhaps likely to be perpetrators (whether knowingly or not) or victims.

E is for ENGAGEMENT:

Engage everyone in the organisation in the conversation through appropriate policies and procedures, training and promotions and building gender equality and respectful behaviour into your management processes, performance management  and KPIs. Also have the conversations with those people who have been identified as risks and support them in areas that they need to work on and don’t permit exceptions.

A is for ACCOUNTABILITY:

Hold everyone accountable for playing their part in the desired culture ensuring that the principles are applied to all individuals and teams and with no bystanders. Where improvements are needed for anyone, make that a corrective action for them to take on board as part of their performance plan.

R is for REVIEW:

Ensure that there is constant vigilance and that you regularly consult and check in with people to verify what is working  well and where there might be opportunities for improvement. Implement a coaching model which includes regular catch ups and discussion of relationships, values and behaviours – how they are going, what is working well and what could be better.

T is for TRUST:

Create an environment that is psychologically safe for people to put their hands up and seek an ear or a hand with any challenges that they are having – with someone else’s behaviour or their own.  Ensure that you are responsive and people believe in the integrity of both the process and management.

Conclusion

The only way that we are going to eliminate sexual harassment and bullying from our workplaces is to take responsibility ourselves to change the attitudes and behaviours that drive them.

Governments can’t do it, unions can’t do it, institutions like the Fair Work Commission can’t do it. The only ones who can do it are the people in those workplaces and it is really up to all of us to play our part in that.

Leaders need to take a stand and show that they have the HEART to take on the challenge of transforming their workplace cultures to be respectful, welcoming, inclusive and psychologically safe for everyone in reality and not just on paper.

Our PosWork Better Workplace Projects are a great place to start and we would be happy to help.

CONTACT US

Ridgeline Human Resources Pty Ltd
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0438 533 311

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Making policies real makes them work

Making policies real makes them work

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Making policies real makes them work

There has been a lot said in the media of late about the state of cultures in Parliament House, in the media and in the corporate world.

We know that issues of gender equality, equal opportunity and gender-based harassment and violence have been present and commonplace in society and workplaces for decades.

In organisations, we have our discrimination and harassment policies and our gender equity quotas and annual reporting requirements and our EAPs and more……..yet what has really changed?

When you look at how organisations and people talk and behave today, has much progress been made for women in real terms and in everyday behaviours that they experience?

Sadly not much…. as is evident from the wave of protests and outcries that we are seeing and hearing from women across Australia today.

Why is it so?

The answer is that all of those policies and quotas and reporting requirements have (in the main) just been dealt with as compliance requirements. That is to say that they have been seen to be about minimising risk of exposure for not having done the due diligence of getting a tick in that box because our lawyers or government or our customers said that we had to.

This is a common failing of policy settings and organisational mindset in all sorts of areas.

For example:

  • When we do SWOT analyses, what are the first things we focus on – weaknesses (where can we be hurt) and threats (how can we be hurt) ie we focus on risk not strengths.
  • In implementing quality assurance processes in business, the motivation most often is getting the tick for accreditation on your brand because you want to be able to qualify for that next tender or to satisfy a key customer requirement for certification.
  • With WHS policies and procedures, the focus first and foremost is to get documented systems in place, instruct people to use them and have evidence of that instruction so as to nominally be able to demonstrate satisfaction of the primary obligation to have safe systems of work. 

This means, in reality, they are only real to the extent that they generate a risk management strategy and process. Does that have real impact on organisational cultures and behaviours? Probably not.

Too often policies set out commitments or principles that are simply not supported by processes or leadership mindsets and actions. Or we decide that for operational reasons we will create an exception eg “we can’t afford to lose Harry even if he did that.” Or we don’t seem to be able to find the time to do what is required.

These scenarios just create contradictions with the end result being that people just don’t believe … how could they when “the rhetoric” and “the reality” are miles apart?

What should we do about it? 

The first thing we need to do is to acknowledge that the traditional risk management approach to implementing change doesn’t change behaviour all by itself.

The second is that the risk management process has to be real. That means that we need to genuinely explore and address the policies, processes and people who present risk in reality to women in our workplace ie in the policy settings, processes, attitudes and behaviours that define our culture.

When you introduce a new policy, do you do a real risk assessment on people ie do we identify who will be challenged to comply with this and what will we do about that?

It is also essential that leaders open their minds and hearts to the experiences and perspectives of women – not through a risk management lens that is about protecting management or fixing a problem but through an engagement lens which is about obtaining the best outcome by really giving women a voice, listening to it and acting positively on what they say. Ask the question: “How can I help?”

Be clear about what we are wanting to achieve (our purpose in this) eg: that might be “We want a workplace where equality and safety are real for everyone every day.”

Articulate some clear principles or strategies that underpin that purpose and provide the foundation for effective action, eg:

  1. Women genuinely have a voice that is heard and listened to and acted on.
  2. There is an organisation-wide process of risk assessment – a deep reflection on the people, the language, the policies and procedures and the behaviours within the organisation that present risks or disadvantages for women (directly or indirectly).
  3. There is an organisation-wide commitment to change and to not be bystanders who allow gender-based discrimination and harassment to happen.
  4. There is an ever evolving, effective and inclusive plan to deliver our “workplace where equality and safety are real for everyone every day”.
  5. Every person is held accountable for their language and behaviours and management of their relationships through regular conversations, education and coaching and, where they are not enough, discipline.
  6. Our leaders “walk the talk” in practise without exception and take proactive steps to support equality and safety for women throughout our organisation.

If you really want to change the dynamic of the conversation, the process and the outcomes, consider using Appreciative Inquiry as your change management framework. It uses a positive psychology approach centred on strengths that is much more engaging and positive to work through than traditional change processes.

It is a big challenge

This is a massive challenge for organisations and for society as a whole – for women and for men.

We have generations of institutionalised gender inequality that have defined people’s beliefs, attitudes and behaviours and we have to challenge them if we are to make progress towards true gender equality.

And it isn’t going to happen overnight – it requires commitment, perseverance, resilience and passion to keep the momentum.

It also requires respect, understanding and patience to generate and sustain lasting change.

How can we help? 

We have recently launched a new suite of services centred in positive psychology which are essentially about “making better workplaces” where organisations and their people flourish – see www.poswork.com.au 

Equality, diversity and psychological safety are all key components of Better Workplaces.

If you are interested in exploring this further, call Peter Maguire on 0438 533 311 to arrange a free initial consultation.

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH