Creative compliance – beyond minimum standards

Creative compliance – beyond minimum standards

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Creative compliance – beyond minimum standards

great resignation

In this, the second of our blogs on creative compliance, we explore the question of how limiting just complying with your legal obligations can be and what might work better than that.  

Under our Fair Work system of minimum wages and employment standards, we spend a lot of time talking about the importance of compliance with those standards – to ensure that employees are receiving at least the minima that they are legally entitled to and to ensure that employers are not vulnerable to costly underpayment claims, damaging prosecution and embarrassing publicity.

Yes, of course, compliance is important but is that the be all and end all?

Does compliance with legal minimum standards constitute a real value proposition for employees or does it say: “We are doing as little as we legally have to as an employer?”

Not much of an Employer Value Proposition, is it?

And do those minimum standards really address all of the things that they need to if we really do believe that “People are our greatest asset”?

 The immediate challenge

The events of the past couple of years have shone a real spotlight on the value proposition that employers offer as individual businesses or within specific industry sectors.

The insecurities of the hospitality industry with high levels of casualisation of labour were exacerbated by lockdowns and business closures and a continued lack of access to migrant student/backpacker labour. That caused locals in the industry to look for alternative more secure employment and many have found that alternative and are not going back.

Conversely, many frontline workers who have had to lift a very heavy load during the pandemic have sought alternative employment that is less stressful and they are not going back.

Added to that we have had the problems of not having access to migrant workers in both of those sectors and the lowest unemployment  rate that Australia has had for decades. These are affecting businesses across all sectors.

That raises the question of how you are going to attract and retain the people that you need ie how you can offer an attractive value proposition if you just comply with your legal obligations. Why would someone want to work for you as compared to other employers?

Let’s take off the compliance blinkers

One of the problems that looking at anything through the lens of compliance and risk management is that we don’t open our eyes to possibilities for something that might better match the needs of our people and our business. We are so focused on not doing the wrong thing that we don’t consider what might be the best thing.

That also influences the tone of conversations that we have with our people in relation to things that happen in their lives. If we talk in compliance terms, that can be a disappointment at a time when the employee would value a more supportive approach from their boss, HR Department or employer. And that can make a real difference to how the employee sees their employer and how that impacts on the employment relationship.

Here is a story that illustrates what I am talking about here.

That’s not in the rules

This was in the early 1990s before Carer’s Leave was introduced. An employee had been with their employer for five years and hadn’t had a single sick day off in all of that time. He approached management about whether he could use a few days of sick leave to cover an absence for a short absence that was necessary so that he could look after the children while his wife was in hospital having essential surgery. He was told that he would have to take annual leave because he wasn’t sick. From that point on, he took every single day absence as a sickie that he legally could – they lost him for 8 days each year. We do have carer’s leave now but there are other minimum standards that are equally problematic such as Compassionate Leave. That provides an entitlement to take up to 2 days of paid leave per occasion on the death or threat to life of a member of your immediate family or household.

That doesn’t provide you with an entitlement to paid leave if a best mate or a good friend or a loved uncle or aunt or cousin or niece or nephew happens to die. It doesn’t cover bereavements for a boss or a subordinate or a work colleague. It doesn’t cover bereavement for a pet. All of those situations are things which cause us grief and which we need to process and that means we are certainly not going to be at our best in doing our job while we work through that.

So, rather than just comply with the minimum standard, could you extend a bit of flexibility by offering either extended compassionate leave or access to personal/carer’s leave?

Get smart

The Fair Work Act, modern awards and other legislation just provide minimum standards that you have to comply with but that is all they are – the minimum that you have to do as an employer.

If you want to give people a reason to want to work for you, give them something more than that. Sit down with your people and work out what you can do to provide an Employer Value Proposition that works better for your business and your people.

If you want to show that you are absolutely committed to that and put it out there as a guaranteed EVP, you might even consider doing an enterprise agreement. These are all published on the Fair Work Commission website for all to see.

Interested?

If you are, we can help because we have both the compliance knowledge and the imagination and perspective to go beyond that constructively (in a legally and culturally appropriate way) . If the theme of this blog resonates with you and you would like to explore possibilities, give us a call to arrange your first free consultation on 0438 533 311 or email enquiries@ridgelinehr.com.au.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Is reference checking worthwhile?

Is reference checking worthwhile?

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Is reference checking worthwhile?

great resignation

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 too.

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. 

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?

If you need a hand with recruiting staff and getting them onboard and up and running in your business, we can help. Check out our “Find and Engage” services.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Superannuation changes keep coming

Superannuation changes keep coming

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Superannuation changes keep coming

superannuation changes

It isn’t long ago that we had some big changes in superannuation requirements with the new superannuation stapling rules that came in on 1 November 2021 – see more on that here. Now there are more changes coming in from 1 July 2022.

Removal of $450 threshold

Currently, the superannuation guarantee does not apply to an employee who earns less than $450 in a month.

That threshold is abolished so superannuation is payable on all earnings with one qualification – if you are under the age of 18, unless you are covered by a workplace agreement that states otherwise, you need to work more than 30 hours in a week.

Increase in compulsory superannuation contribution rate

Additionally, in line with the annual increases of 0.5% announced some time ago, the compulsory superannuation contribution rate increases to 10.5% from 1 July 2022.

Got any questions on this or any other employment matter? Give us a call on 0438 533 311 and take advantage of our offer of a free first consultation.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Contracts are critical

Contracts are critical

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Contracts are critical

great resignation

There have been a number of developments in the past year that make it imperative that businesses:

  • Have written contracts for all employees and contractors and
  • Ensure that the content of the contract does not contradict the intended relationship with the other party as an employee or a contractor and
  • Also make sure that the contracts reflect current standards as per the Fair Work Act and any relevant modern award

Recently, there have been two significant High Court decisions on the question of whether a worker is an employee or a contractor.

While these cases had quite different outcomes, what they had in common was that the Court found that it is primarily the contract entered into and the terms contained in it that determines the nature of the relationship.

ZG Operations v James

This case was about two truck drivers who had worked as independent contractors for over twenty years for ZG Operations. They were originally employed by the company but switched to become independent contractors when the company told them that their jobs would not be secure if they didn’t make the switch.

After the company discontinued their engagements in 2017, the workers then made claims for pay, leave and superannuation entitlements on the basis that they should have been characterised as employees.

The court found that the contracts clearly defined the relationships as independent contracting plus the workers formed partnerships with their wives and they bought trucks which were significant investments. The court concluded that these workers were genuine independent contractors as characterised in the contracts.

Key takeaways: for genuine independent contracting relationships, make sure that: 

  • you have a proper written contract for service which clearly identifies the relationship as an independent contractor and
  • the terms in the contract are consistent with an independent contractor relationship. 

CFMMEU v Personnel Contracting

This case was about a labourer (Mr McCourt) engaged by a labour hire company, Personnel Contracting, to work for Hanssen Pty Ltd. Mr McCourt was an unskilled British backpacker on a working holiday and he didn’t have his own business. The CFMMEU and Mr McCourt made a claim that he was actually an employee and should have been paid under the Building and Construction General On-site Award 2020.

The court found that the “Administrative Services Agreement” under which Mr McCourt was engaged provided Personnel Contracting with rights of control and direction over Mr McCourt eg in relation to who he worked for and Mr McCourt was contractually obliged to cooperate. As a result, the court deemed this relationship to be more characteristic of an employee than an independent contractor and ruled accordingly.

Key takeaway: you should ensure that: 

  • If you are wanting the relationship to be that of an independent contractor, the terms in the contract are consistent with that or
  • if the relationship is, in reality, characteristically that of an employee, you contract the worker accordingly and don’t try to disguise it as that of an independent contractor.

Changes to casual employment

On 27 March 2021, The Fair Work Act was varied to provide a new definition of casual employment. Here is the relevant excerpt from the Fair Work Ombudsman’s website:

“A person is a casual employee if they accept an offer for a job from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.

For example, if an employee is employed as casual, their roster changes each week to suit their employer’s needs, and they can refuse or swap shifts, that could mean they are casual. 

Specifically, under the Fair Work Act, a person is a casual employee if:

  • they are offered a job
  • the offer does not include a firm advance commitment that the work will continue indefinitely with an agreed pattern of work
  • they accept the offer knowing that there is no firm advance commitment and become an employee.” 

If there is in fact, a commitment to an ongoing pattern of work in the contract, that could well mean that the employee would not be deemed to be a casual and could create exposures as a result.

Modern Award Reviews

There have been substantial changes made to modern awards over the past two years though the Modern Award Review process that has been going on since 2013.

It is important that employers pick up on any variations that have been made to minimum terms of employment in modern awards and ensure that contracts are not inconsistent with current award provisions.

There have also been changes to National Employment Standards with respect to the requirement for issue of Casual Employee Information Statements and variations to Parental Leave provisions in relation to stillborn babies and those who die within the first 24 months of life.

The Bottom Line

If you do not have written contracts for employees and contractors, get them.

If you do have them but you haven’t reviewed them for a while, get them professionally reviewed.

Finally, make sure that they are truly reflective of the nature of the relationship – for example, if there is an ongoing commitment to an agreed pattern of work, it isn’t casual so you should contract the person as a full-time or part-time employee.

At Ridgeline HR, we can assist with preparation and review of employment contracts. Give us a call on 0438 533 311.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Fair Work Notice Update

Fair Work Notice Update

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Fair Work Notice Update

Under National Employment Standards, employers are required to give:

It is important that you use the current form of Statement. The Fair Work Information Statement is updated annually with adjustments to the federal minimum wage which normally occur on 1 July each year. The Casual Employment Information Statement has just been updated to provide more and clearer information on casual conversion rights and procedures.
 
If you have any queries, please contact us on 0421 592 541 or at enquiries@ridgelinehr.com.au.

 

If you haven’t the benefit of professional advice on your workplace relations compliance situation or you just want to make sure, you might want to take advantage of our Lockdown Special Offer on a Fair Work Compliance Assessment. Pay just $550 plus GST in lieu of the regular price of $750 plus GST. Check it out. Offer expiring 30 November 2021.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

New Fair Work Information Statement

New Fair Work Information Statement

Latest News & Events

 

New Fair Work Information Statement

Fair work information statement

The Fair Work Ombudsman has recently published a new version of the Fair Work Information Statement (FWIS).

It has had a bit of an overhaul to better set out the different entitlements of full-time, part- time and casual employees and to add recent legislative amendments with respect to casual employees.

All employers are required to provide this to every new employee whether covered by an award or enterprise agreement or neither (ie award-free people including executive, professional and managerial staff) before or as soon as possible after commencement. You might want to include this in your offer of employment or onboarding processes.

To not do so is a breach of National Employment Standards and can result in a penalty.

You can download the new FWIS at here.

Also a reminder that there is now also a Casual Employment Information Statement (CEIS) that must be given to all casual employees. This clearly sets out what casual employment is, what rights for casual conversion apply and what options casual employees have if they are aggrieved by a decision by their employer not to agree to their request for casual conversion.

You can download the CEIS here.

If you fail to provide either of these to an employee who is supposed to receive them, that is a breach of National Employment Standards and can result in a penalty.

You might want to include these statements in your offers of employment or onboarding processes just to make sure that it happens.

CONTACT US

Ridgeline Human Resources Pty Ltd
Abn : 24 091 644 094

enquiries@ridgelinehr.com.au

6 Ellesmere Ave, Croydon Victoria 3136

Peter Maguire : 0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH