Multiple lessons for employers

Multiple lessons for employers

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Multiple lessons for employers

example flexible working arrangement

A recent case in the Fair Work Commission has produced far greater consequences than might have been anticipated by an employer who faced an unfair dismissal dismissal claim from a 67 year old worker who had been employed since 2010 before being sacked in February. 

The Evidence

The employer claimed that the worker was sacked for a variety of reasons such as disposing of produce, bullying, threatening and making racist comments to other staff, being rude to customers and taking time off for health reasons. 

However, the employee denied the reasons given by the employer and said that he hadn’t been told why he was sacked. He told the Fair Work Commission that he was told by his employer to take a week off while new staff were trained and that turned into 5 weeks during which time he wasn’t paid and was denied annual leave.

Then he said he was sacked without being told why.

The Compliance Complications 

There was firstly, the question of whether the employee was unfairly dismissed and, based on the evidence, he clearly was on both substantive and procedural grounds.

There were then a number of compliance issues that emerged in the course of proceedings in that the employee claimed that:

  • Throughout the period of his employment, he had been paid a flat rate of $13.50 per hour which is well below award rates and the federal minimum wage
  • He had illegally been stood down without pay and denied annual leave 
  • He had not been paid any notice or his final leave entitlements on termination of employment
  • He had only ever received one payslip over the whole course of his employment

Other factors

In considering unfair dismissal claims, the FWC will have regard to whether the termination is harsh, unjust and unreasonable. In the absence of a valid reason or process, the termination is clearly unjust and unreasonable.

Taking into account the employee’s age and length of service, termination would also be seen to be especially harsh, perhaps even if there had been a valid reason.

The Outcomes 

FWC Deputy President Ian Masson accepted the employee’s evidence, noting that the employer had not challenged it. 

He awarded the maximum compensation available ie 6 months wages which amounted to more than $20,000 based on award rates at the time of termination.

The employer has also been referred to the Fair Work Ombudsman for investigation and enforcement action relative to the reported underpayments of wages.

Those investigations won’t be restricted to this ex-employee’s case as there would clearly be a probability that other workers have also been underpaid.

As a result, the employer will be likely to have a substantial underpayment bill to pay as well as the prospect of very significant fines for breaches of the Fair Work Act.There could also be issues around superannuation (referral to the Australian Taxation Office) and wage theft (referral to Wage Inspectorate Victoria). 

The Lessons

This an extreme case where the employer has clearly done the wrong thing on a number of counts but it does underline the importance of ensuring that:

  1.  You have your house in order in terms of your compliance with employment laws, minimum wages and modern awards.
  2. You implement fair and demonstrable processes for dealing with performance and conduct issues so that you can demonstrate the fairness of any termination of employment that you might have to enact.
  3. You have access to competent professional advice on employment matters and you access that before taking such significant action as terminating employment.

We can assist with all of that. For you free first consultation, contact us on 1300 108 488 or use the “Tell us what you need help with” box below and we will give you a call.

 

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Your Swiss Army knife

Your Swiss Army knife

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Your Swiss Army knife

example flexible working arrangement

 

One of the psychosocial hazards that research is showing to be at the forefront of the list that organisations need to address is that of lack of role clarity.

One of the tools that we can use to help to address that is the humble Position Description (PD) which has been around for decades and can be found in lots of different forms. 

In most places where I have worked as an employee or as a consultant, PDs are commonly treated as something we have to have for our quality accreditation or our HR compliance or something that we give people when we advertise a job or when they start employment with us. They are then filed away and forgotten about. 

This is really unfortunate because the PD is a very versatile tool and arguably one of the most powerful in a manager’s toolbox. 

So how can PDs be used to good effect? Here are 5 ways that we have used them.

#1. Compliance satisfaction

Every employer has a statutory duty to ensure that every employee is properly instructed in their duties and has the skills and abilities to perform their tasks safely for themselves and others. This is enshrined in workplace health and safety law and is also an important part of employment law in general.   

The PD is an effective aid to that instruction and skills assessment and enablement. It helps with documentary evidence of satisfaction of the statutory duties that all employers have as well as in dealing with employee grievances and actions against the employer (eg in demonstrating reasonable management action in response to an adverse action or bullying complaint).  

#2. Recruitment effectiveness

If you are going to be effective in recruitment, you first want to know what the attributes required for competent performance of a role are so that you can prepare a fit advertisement. 

You then need to identify selection criteria and the how to assess candidates by considering the attributes required in the role and the best ways to test candidates for those attributes. 

You also want to communicate what attributes are required to candidates (so that the right ones apply).  

A properly constructed PD helps with all of that and assists you to make an informed and evidence-based selection decision.

 #3. Targeted development

The content in PDs that details the skills, knowledge and attributes required provides a great foundation for assessing the technical strengths and weaknesses of an employee and why that is the way they are.  

That, in turn, can lead to targeted development that leverages those strengths or builds on areas of weakness. That will deliver the optimal return on investment in learning and provide the best support and recognition for the individual employee.  

It is also a great aid to onboarding of employees and getting them up and running quickly because their role and responsibilities are clearly communicated and easily understood from day one.

 #4. Performance management

Clearly, if we are going to expect people to perform their roles effectively, we have to tell them what their roles and responsibilities are and what performance standards are expected. A good PD does this and helps employees to be more productive and aligned in performance as a result.

Conversely, when performance management concerns arise, it is very important to go through a methodical, relevant and procedurally fair process that is supported by documentary evidence.  

The PD plays a critical part in this as it describes what is expected of the role the person is performing and the attributes required to meet those expectations. It also provides documentary evidence that the employer has clearly communicated the duties and expectations to the employee.  

Additionally, as with development of employees, the PD can be a useful tool for analysing why an employee might not be meeting expectations eg because they are lacking in some particular attribute (skill, ability or knowledge) required for the role.  

#5. Better employee engagement and wellbeing

Study after study tells us that key elements in good employee engagement and wellbeing practice include: 

  • giving people clarity about their roles and the expectations of them
  • providing the support that they need as an individual to be successful in their roles
  • having clear meaning and purpose in the work that they do and
  • feeling psychologically safe by feeling included and informed and involved in their work, in their relationships and in their team.

 A well-structured PD helps with all of these factors when all of the PD purposes outlined above are part of everyday practice in organisations.

 So that is why I think of the PD as the HR Swiss Army Knife – it can be used constructively in so many different ways. 

 Of course, it is just a tool and there are many others in the HR toolkit that need to be used to deliver best practice in People and Culture management.

Do you need to reimagine how you use PDs in your business?

How can we help?

We can provide you with tools like Position Descriptions and coaching in how to apply these tools effectively to control psychosocial hazards, otherwise meet your compliance obligations and build better communications and employee engagement.

If you want to know more, give us a call on 0438 533 311.



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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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Changes to the Child Employment Act

Changes to the Child Employment Act

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Changes to the Child Employment Act

children on laptop

Did you know that you need a child work permit to have an employee under the age of 15 work in your business? In this article we’ll outline how they work and what exemptions there are as well as the changes coming on 1 July 2023.

How it works

Children under 15 can be employed in a business subject to a few qualifications:

  • They must be at least 11 years old to do delivery work or 13 to work in retail or hospitality and must be supervised at all times by someone who possesses a valid Working with Children Clearance.
  • An employer must have a permit before they engage an under 15 year old. Failure to have a permit is a crime and employers may be penalised accordingly.
  • There are restrictions on how many hours they are allowed to work and when those hours can be, including start and finish times.
  • Employees under 15 years of age have increased break times and frequency compared to older employees.

What exemptions are there?

While most businesses are subject to the above rules family businesses are exempt from needing a child workers permit and some of the rules regarding age restrictions, hours of work and rest breaks do not apply so long as they are directly supervised by a parent or guardian. If someone other than a parent or guardian is supervising the employee then the exemption does not apply.

Similarly the entertainment and advertising industry have their own rules that differ from the rules that apply to most other industries. They can be found in more detail by following this link. Child employment permits – entertainment and advertising

Changes

As of July 1 2023 the Child Employment (Amendment) Act 2022 is being introduced. This Act changes the system of employing children from having to apply for individual permits for every child to employers being able to hold a licence under which they can employ multiple children.

it also clarifies several grey areas including definitions regarding what constitutes a family business, what employment means in several contexts in different industries and supervision rules. 

For more information on the changes please look at this page. Changes to the Child Employment Act

Child employment laws are enforced by the Wage Inspectorate Victoria.

If you need any assistance with anything mentioned please check the Victorian Governments web page regarding child employment here 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.

 

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