Dealing with the positive duty to prevent sexual harassment

Dealing with the positive duty to prevent sexual harassment

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Dealing with the positive duty to prevent sexual harassment

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As people will be aware, there has been a huge amount of publicity on the subjects of sexual harassment and gender inequalities in recent times and there are significant changes that have happened or are about to happen in multiple jurisdictions.

Arrival of positive duties

One of those changes is the relatively new positive duty to prevent sexual harassment, sex discrimination and gender-based behaviours which became enforceable under the Commonwealth “Sex Discrimination Act 1984” in December 2023.

The Australian Human Rights Commission has compliance and enforcement powers whereby it can enter workplaces for inspections, interview staff and initiate prosecutions for breach of that positive duty.

We have also seen new positive duties to eliminate or control risks associated with psychosocial hazards which include sexual harassment and gender-based behaviours become operative in most States and Territories of Australia under Workplace Health and Safety laws. It has recently been announced that this will happen in Victoria late this year and there is already a panel of Psychosocial Hazard Worksafe Inspectors operating in Victoria.

What difference do positive duties make?

The traditional approach to dealing with such issues as sexual harassment has been to have a policy to express commitments, procedures for dealing with issues and training to educate people on expectations and then to act on any complaints or breaches reported.

That has proven to be ineffective in preventing sexual harassment.

The positive duty means that organisations now have to conduct risk assessments to determine whether there are any hazards that give rise to risks of sexual harassment and related behaviours and, if there are any such hazards, to implement appropriate control plans, much as has been required for physical WHS risks for many years.

Risk factors in construction

Here are some of the risk factors that are featured in publications by the AHRC:

·       most of your workers are men

·       most of the supervisors or managers in your workplace are men

·       your business involves interacting with third parties (such as clients, customers and/or others)

·       you employ casual staff and/or workers on short-term contracts

·       your workplace is very hierarchical

·       your workplace lacks diversity

·       your workplace is isolated or remote

·       your workplace is divided by gender (for example, women in the office, men ‘on the tools’)

·       alcohol is consumed, especially at work social events

·       you and/or your staff do not understand sex discrimination, sexual harassment, and other unlawful behaviours

·       disrespectful behaviour is generally accepted or common in your workplace

·       you don’t have a policy or code of conduct which sets expected standards of behaviour

·       you have not responded appropriately or held people accountable for unlawful behaviours in the past (or have not applied a policy or code of conduct consistently).

How many of those risk factors are present in your workplace? If you are in civil construction, probably most of them.

The Australian Human Rights Commission Framework

The AHRC has developed a set of 7 standards for complying with the positive duty in preventing and responding to sexual harassment and related behaviours and these are:

1.    Leadership

2.    Culture:

3.    Knowledge

4.    Risk management

5.    Support

6.    Reporting and response

7.    Monitoring, evaluation and transparency

There is some excellent guidance material available at https://humanrights.gov.au

The Leadership Standard

Of those 7 standards, the one that has been called out as the most important is “Leadership” because that is where it all starts.

The standard describes the leadership responsibilities as follows:

1.     Senior leaders understand their obligations under the Sex Discrimination Act and have up-to-date knowledge about relevant unlawful conduct.

2.     Senior leaders are responsible for ensuring that appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented. Senior leaders regularly review the effectiveness of these measures and update workers.

3.     Senior leaders are visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality. They set clear expectations and role model respectful behaviour.

‘Senior leader’ refers to any person with responsibility for the management and governance of the organisation or business.

In a small organisation or business, this will usually be the owner and any manager.

In larger organisations and businesses, this will usually include the board (or equivalent), chief executive officer (CEO), executive leadership team (ELT), partners or executive manager.

Senior leaders hold ultimate responsibility and accountability for the governance and legal compliance of their organisation or business.

They are responsible for their own actions, the actions of those who they lead and influence, allocation of resources, oversight of compliance and shaping the broader workplace culture.

They set the ‘tone from the top’ – meaning that what they say and do gives a strong message to workers about what is acceptable, important and valued.

What the Australian Institute of Company Directors has to say

The Australian Human Rights Commissioner called on the AICD to help in education of directors about sexual harassment, its drivers and things that they need to be doing to meet their duties as directors in this context.

The AICD has developed: “A director’s guide to preventing and responding to sexual harassment at work”. In essence, it follows the 7 standards published by the AHRC. It also notes some really important questions that Boards should be considering including:

·       Do all directors have an adequate understanding of workplace sexual harassment and its drivers?

·       Are you confident directors’ personal communication styles and behaviour model the desired culture?

·       Do you discuss this at board level?

·       Are you comfortable that the board understands the dynamics and prevalence of sexual harassment in the organisation and how it relates to the organisational culture?

·       Does the board, or relevant board committee, consider workplace sexual harassment risks in overall risk management and governance?

So, you can see that the expectations of senior leaders go a long way beyond just putting policies in place – they need to be leading from the front and that starts at board level.

The Queensland development

From 1 March 2025, if a risk has been identified, employers must also implement a comprehensive, written prevention plan that identifies risks, control measures for managing these risks if elimination is not practicable and the process for consulting with employees during its development.

Employers will need to consider specific worker, workplace and work environment characteristics, such as lack of diversity or isolated work, which may heighten the risk of sexual harassment and sex or gendered-based harassment occurring in their workplace.

In essence, this means that any business needs to conduct a risk assessment in line with regulations and the Code of Practice and develop a control plan on how each identified risk will be mitigated.

This applies to all Persons Conducting a Business or Undertaking which has people working in Queensland.

New jurisdictions at the Fair Work Commission

The FWC has been able to issue stop sexual harassment orders for some years, but it isn’t a jurisdiction that saw a lot of activity for the simple reason that, unless the alleged perpetrator was still working in the organisation, there was essentially nothing to stop, and often cases could fail to result in any action on jurisdictional grounds.

If the alleged sexual harassment happened after 6 March 2023, the FWC can also conciliate on sexual harassment disputes and either issue a certificate to allow a court application to proceed or arbitrate itself and has powers to award compensation among other things. 

Conclusion

The challenge starts with senior leadership in our organisations which means, in an industry such as ours, it predominantly starts with the men in those senior leadership roles, whether on boards or executive teams in larger organisations or business owners and managers in smaller ones.

And the process starts with understanding the truths about sexual harassment and gender-based behaviours, what drives them and what impacts they have on people plus what your obligations as a senior leader involve.

Beyond that, it is playing your part individually and collectively to drive the cultural change that is necessary to make the industry a psychologically and emotionally safe place for people and women in particular.

Who is up for that challenge?

This article was originally produced for CCF Victoria’s Bulletin publication.

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.

 

 

 

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The results are in – what next?

The results are in – what next?

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The results are in – what next?

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The Albanese Government has had a landslide victory at the federal election – so what does that mean for employers?

One thing that this resounding election victory for Labor signals is that we have certainty about what the future of federal government looks like for at least the next 2 terms.

The Liberal/National Coalition is in disarray and its agenda, attitude and culture have been emphatically rejected by the Australian people.

I believe that our democracy is healthier when we have a strong Liberal Party as a responsible and influential balance in Parliament. So this is a sad state of affairs and it does mean that it will be years before we can hope for that to happen with what they have left in the Parliament.

So what does that mean if you are an employer?

Accept reality

If you were banking on the cavalry arriving via the return of a coalition government, forget it – it ain’t happening and won’t be for the foreseeable future.

So, all of those changes that Labor has made to employment laws in the last 3 years and which have flown on to modern awards are here to stay.

The right to disconnect (which for most businesses isn’t really a problem if they understand properly how it works) is staying.

Wage theft as a criminal offence (which is only a problem for someone who knowingly and deliberately rips employees off) is staying.

Employee expectations about flexible and hybrid working are also here to stay judging by the public backlash against the Coalition’s rhetoric on getting people back to the office and their subsequent and embarrassing backflip on that policy.

The demographic has shifted – we now have more millennials and Gen Zs and younger than Baby Boomers in the workforce and they are demanding honesty and transparency and purpose. So it is time to rethink your value proposition as an employer if you are going to attract and retain the talent you need and have a productive and happy workforce.

What else is coming?

The Albanese Government has already done most of what it wants to do in relation to changes to employment laws.

It has already forecast two areas for change:

  • The prohibition on restraint clauses in employment contracts for people whose remuneration is less than the High Income Threshold; and
  • Legislating protections of penalty rates due to some employer associations making application to the FWC to vary awards via annualised wage arrangements that might provide relief from penalty rates

There are also further reviews going on in the Fair Work Commission relative to Gender Wage Equality and with respect to “work and care” and they could deliver more changes in the next year or two.

The other area that businesses of all sizes need to be paying attention to are the positive duties which have come into play federally in relation to the prevention of sexual harassment and gender-based behaviours and, by State or Territory, in relation to the elimination or control of psychosocial hazards

In Queensland, the positive duty to prevent sexual harassment etc has also been subject to State legislation with all businesses having to assess risk sand put in place control plans by 1 March 2025.

What employers need to do

We developed our HEART model to provide simple guidance on the steps that organisations now need to take to be able to demonstrate true compliance in the new positive duty regime. It provides a roadmap for transparency and engagement as well as for effective compliance.

HONESTY

Educate yourself about what psychosocial hazards and sexual and other forms of harassment and discrimination are. Then have a good hard and honest look at yourself, your policies and practices and your peoples’ behaviour.

ENGAGEMENT

Consult with your people, educate them and listen to what they have to say. Build a culture of collaboration and shared interest.

ACCOUNTABILITY

Develop and implement positive policies and practical procedures to drive positive changes in language and behaviours and hold everyone responsible for playing their part.

REVIEW

This isn’t a transaction – it is a continuing journey and you need to continue to monitor and measure progress in collaboration and partnership with your people.

TRUST

Exercise empathy and vulnerability in leadership. Encourage and recognise diversity and peoples’ contributions and perspectives. Build trust, ensuring psychological safety for all.

Conclusion

We think that the election outcome is a victory for Australin culture and it has no doubt been fuelled by rejection of what we are seeing happening overseas and especially in the USA. We don’t want to be like that.

It is also a great opportunity for all leaders in business to take stock of exactly how aligned their workplace behaviours are with the desired Australin cultures.

Rather than thinking of the positive duties that have been introduced as just more compliance burdens, look at them as opportunities to explore, reflect and improve workplaces to be the best that they can be…..where people want to work.

If you would like to explore ways to take positive action to deal with all of these challenges, check out our suite of PosWork services at poswork.com.au or call us on 0438 533 311.

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What are the big HR issues for SMBs in 2025?

What are the big HR issues for SMBs in 2025?

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What are the big HR issues for SMBs in 2025?

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Hey everyone, 2025 is already shaping up as another big year of legal change so we are running a free webinar to give you the heads up on what the big issues are this year. 
Headlining that list is the new criminal offence of wage theft and the Voluntary Small Business Wage Compliance Code that became operative from 1 January. 
But there is lots more with changes already happening with a number of awards, people being able to prosecute unfair contract claims next month, the new positive duties regarding psychosocial hazards and sexual harassment to really kick in plus more to talk about.
Joining me to discuss all of that is the wonderful Jessy Warn from HR Gurus who are specialists in helping SMBs with PEOPLE STUFF with NO FLUFF.
They have just celebrated their 15th birthday so they aren’t new kids on the block – they know their stuff.
See you there.

 

 

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Why we call it people business

Why we call it people business

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Why we call it people business

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Human Resources Management is a business function developed in large organisations with large work forces where scale is important and, in most of those organisations,  policy, process and risk management are the priority. So does that work for SMBs? We don’t think so (in fact, we don’t think it works well in most organisations).      

A story from long ago

Early in my career as what was then called a Personnel Management practitioner, a very wise and loved boss of mine taught me a life lesson. Let’s call him Mike. It was that, if you are going to be successful in the field, you had to earn people’s trust. Mike spent a lot of time getting to know people and letting them get to know him. People came to Mike with all sorts of issues with confidence and he showed them that he was there for them by acting on them or advising them. They would even accept a “no” from him because it was Mike and they trusted him to be honest with them. From an organisational perspective, being informed about things happening out in the business equipped Mike to strategically deal with emerging issues before they became a problem and to lean in and provide support if someone was struggling with something at work or otherwise in life.

That is a lesson that I have used repeatedly in the work that I do.

When Mike moved on, the organisation’s first HR Manager replaced him and he liaised with senior management and issued instructions and policies from his office. People then came to me with their issues, saying “you’re not Mike but we trust you and you are all we’ve got”.

What is Human Resources Management?

According to Wikipedia:

  • “Human Resources Management is the strategic and coherent approach to the effective and efficient management of people in a company or organisation such that they help their business gain a competitive advantage”; and
  • HR professionals manage the human capital of an organisation and focus on implementing policies and processes.”

Not very inspiring, is it?

And the language is hardly engaging, is it?

And not very people focused either?

The concept that people are human resources to be managed is perhaps, in itself, dehumanising, don’t you think?

In too many organisations, HR is seen as the enforcer of corporate risk management via policies and procedures. That approach really sends a message that, rather than people being an organisation’s greatest assets in truth, they are seen as the organisation’s greatest risks.

And that is one of the reasons why HR doesn’t work as it was perhaps intended to – that, in the pursuit of risk management and legal compliance, organisations placed those above people.

What is people business?

In small to medium businesses, the primary driver of success is the quality of the people and the relationships between them and with other key stakeholders like customers and suppliers.

So, unlike traditional HRM, it is very human-centred and that is why we call it “PEOPLE BUSINESS” – it about how we get the right people in the right roles doing the right stuff in the right way so that they and the business flourish together.

Of course, we need some policy and procedures but they are designed to help people to perform and behave to the standards expected so that work is enjoyable and productive for everyone…..and of course there are legal compliance requirements that need to be dealt with and actions that need to occur in the event of non-compliances but they are the footnote rather than the headline.

We use our 4c model to help our clients with their PEOPLE BUSINESS:

  • Commitment – the fundamentals that deliver purpose and compliance
  • Capability – the tools and systems that enable good people practice
  • Competency – the skills and knowledge that deliver positive outcomes for businesses and people
  • Culture – the integration of all of that to deliver everyday employee engagement and high performance.

That is what PEOPLE BUSINESS looks like.

Conclusion

If you are an SMB, you need to assure your compliance with legal requirements but the way that you do that sends messages to your people and you want these to be the right ones.

It isn’t just about making people follow rules – it is about how you get them engaged and happy to follow the rules because they know that the rules are right and they want to be successful in their role and relationships at work.

If you would like to learn more about ways that we can help you with your PEOPLE BUSINESS, please call us on 0438 533 311 or email us at enquiries@ridgelinehr.com.au.

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ABN : 24 091 644 094

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0438 533 311

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Has the penny dropped for you?

Has the penny dropped for you?

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Has the penny dropped for you?

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One of the most significant changes that has been introduced in the last few years is the new “positive duty” standard of compliance relative to sexual harassment, gender-based behaviour and psychosocial hazards. Current signs suggest that the “penny hasn’t dropped” with lots of organisations about what this really means. Has it dropped with you?

A positive duty means that we have to do things differently

Positive duties have been introduced for 3 reasons:

  1. We have real problems in our workplaces with mental health issues associated with psychosocial hazards and harm caused primarily to women by gender-based behaviour such as sexual harassment
  2. The existing “risk management” model of compliance commonly used by organisations doesn’t work and, in many cases, not only doesn’t help but aggravates the harm and
  3. It is not sustainable in terms of the harm caused to people and the associated costs in lost productivity and escalating health costs.

You see, putting out policies, telling people that they have to follow them and running education sessions on respect at work just isn’t enough.

We have been doing that for decades with issues like bullying and sexual harassment but have they made any real difference where it matters ie in changing behaviour so that they don’t happen in the first place? 

The simple answer to that is “no” as evidenced by the fact that these positive duties have been imposed because we need to do things differently. 

A timely reality check

Former Federal Sex Discrimination Commissioner, Kate Jenkins, conducted the national enquiry into sexual harassment which resulted in the Respect@Work Report,  introduction of the positive duty to prevent sexual harassment, victimisation and gender-based behaviours.

In an article on HR Daily, Ms Jenkins is reported as saying that:

  • many workplace managers told the inquiry that they were tackling sexual harassment through a policy, some training and a complaint procedure
  • organisational processes were primarily a defence mechanism
  • the focus of workplace leaders wasn’t on preventing sexual harassment but preventing complaints
  • for those who are trying to make people more comfortable complaining, her message was “if your focus is on asking people to complain about psychosocial hazard concerns, then your focus is not on preventing them”
  • Leaders should be asking why harassment is occurring and what can we do to change this
  • Of the 7 compliance standards in the Respect@Work Guidelines, leadership is the most important.

What she is essentially saying is that it is about action to change behaviour and that starts with commitment and action from the top. It is about making it real in your workplace culture and not just words in a policy or training session.

Has the penny dropped?

What should you do

Unfortunately, what we are seeing is a “risk management response” from most organisations and HR/WHS Consultants – they are writing new policies, running education sessions and telling people to behave which just perpetuates the problems that the positive duty is intended to address. Clearly, the penny hasn’t dropped.

As with any matter around people and culture, we encourage you to look at these things on 3 levels – organisational, team and individual – and please do that by engaging with your people in determining what the realities for your business and people are and covering off all of the bases. 

Remember it is about your business and your people so don’t just borrow or buy a policy statement from someone else and remember our 4C compliance model because unless you do all 4Cs, you are not truly compliant:

  • Commitment – the fundamentals that deliver purpose and compliance
  • Capability – the tools and systems that enable good people practice
  • Competency – the skills and knowledge that deliver positive outcomes for businesses and people
  • Culture – the integration of all of that to deliver everyday employee engagement and high performance.

We can help

We developed our 4C compliance model 20 years ago and that is how long we have been practising to that standard so it isn’t new for us. We could say that the law has caught up now but the truth is that, while positive duties have brought the flaws in the existing compliance models into sharp focus, we have known that they have been there all along.  

And that is because what we are dealing with is PEOPLE BUSINESS – it is about people and relationships.

We have put together blogs and accompanying explainer videos on each of the 14 psychosocial hazards in the Model code for managing psychosocial hazards at work published by Safe Work Australia. One of those covers sexual harassment. They are designed to give businesses an understanding of the sorts of questions you should be asking in your workplace to identify any issues that you might need to address. You can access them for free on the News Events page on our website and we encourage you to use them to do a preliminary risk assessment.

If you would like to learn more about ways that we help with this or any other HR issue, please call us on 0438 533 311 or email us at enquiries@ridgelinehr.com.au.

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

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How to manage the right to disconnect

How to manage the right to disconnect

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How to manage the right to disconnect

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From 26 August 2024, employers with 15 or more employees have to respect employees’ right to disconnect from work outside their contracted working hours. Smaller employers will have those obligations 12 months later. What does it mean for your business and what do you need to do?  

What is the right to disconnect?

Here is how it is described in the Fact Sheet published by the Department of Employment and Workplace Relations:

“The right to disconnect will inform how employers and employees interact outside  of working hours. The right does not prohibit employers from contacting their employees, nor does it prevent employees from contacting each other, including across time zones. Rather, the employee will be able to refuse to monitor, read or respond to contact, or attempted contact outside of working hours, when they are not expected to be working or paid to be working, so long as doing so is not unreasonable.” 

So it doesn’t prohibit making contact with employees outside their contracted working hours – it just provides that they don’t have to respond to such contact outside their contracted working hours other than in limited circumstances.

The real obligations on employers are to not unreasonably require someone to respond to contact after hours and not to penalise people for exercising their right to disconnect. 

Inclusion in modern awards

The Fair Work Commission has been tasked with inserting “right to disconnect” clauses in modern awards. 

The approach it is taking is to have a standard clause which is customised according to existing provisions in Awards which might have relevance to contact after hours such as standby or call back or roster change provisions. 

So you need to consider which awards cover your employees, what provisions they might have in regard to out of hours contact and how those provisions relate to your own operations.

It is also something that you will need to consider in enterprise agreements.

What do you need to do?

In our blog back in February on Managing disconnection from work, we noted that this really should not be that big an issue for most organisations so the first thing you should do is ignore all of the hype about it. 

Then you should undertake a constructive assessment of the effects for your organisation and your people by answering the following questions:

  • Are there any situations where employees in your organisations need to be responsive to contact outside their standard working hours for genuine operational reasons?
  • Are there provisions in a modern award or enterprise agreement which deal with the specific type or cause of contact eg someone being on standby or being called back or being contacted about a roster change or some other prescribed matter outside their standard working hours?
  • Are employees remunerated for making themselves available for contact outside working hours under the provisions of a modern award or enterprise agreement or otherwise under their contract of employment?
  • Do you have any employees who have flexibility in their hours and location of work and whose working hours might fall outside standard operating hours via a flexible working arrangement or agreement or by individual choice?
  • Do you have any protocols in place regarding out of hours contact for people who may be working outside standard working hours eg contact to other staff or external parties should only be via email with the scheduling function used to delay transmission until the start of the following working day?
  • Do you have any protocols in place with external parties in relation to their contact and their response expectations with your staff outside standard working hours?
  • Do any of your people have to operate across timezones which might cause communications to occur outside an employee’s standard working hours?
  • Do any of your managers unreasonably or unnecessarily send communications to their people outside their standard working hours, expecting them to respond outside those hours?
  • Do any external parties unreasonably and unnecessarily send communications to your people outside their standard working hours, expecting them to respond outside those hours?
  • Do you have people who you know will respond to out of hours contacts even if you don’t want them to?
  • Do you deal with out of hours contact requirements in your contracts of employment?
  • Do you verify adequacy of remuneration having regard to out of hours contact requirements where an employee is expected to respond to specified contacts?
  • Do you deal with out of hours contact happenings in your performance and development conversations?
  • Do you have a properly structured and communicated “Life balance policy” which includes details on the organisation’s expectations and processes for management of out of hours contact and the employee right to disconnect? 

Other tips

As with any matter around people and culture, we encourage you to look at these things on 3 levels – organisational, team and individual – and please do that by engaging with your people in determining what the realities for your business and people are and covering off all of the bases. 

Remember it is about your business and your people so don’t just borrow or buy a policy statement from someone else and remember our 4C compliance model because unless you do all 4Cs, you are not truly compliant:

  • Commitment – the fundamentals that deliver purpose and compliance
  • Capability – the tools and systems that enable good people practice
  • Competency – the skills and knowledge that deliver positive outcomes for businesses and people
  • Culture – the integration of all of that to deliver everyday employee engagement and high performance.

How we can help?

We can hep you to get the right answers to all of the questions that we have said you need to be asking in determining how your business is going to responsibly manage your employees’ right to disconnect.

We can advise you on remuneration in line wth award provisions and we can be-you with policies and employment contracts as well as advices to ay “problem individuals” who might need to modify their habits so as not to interfere with other employees’ right to disconnect.

If you would like to learn more about ways that we help with this or any other HR issue, please call us on 0438 533 311 or email us at enquiries@ridgelinehr.com.au.

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