Industrial Relations

Two Recent Decisions may have Far-reaching Consequences

Two recent decisions, the first by the High Court of Australia, and the second, by a full-bench of the Fair Work Commission (FWC), as part of the Four Yearly Review of Modern Awards, potentially will influence the way business owners in the fitness industry will structure their workforces in the ‘post-pandemic’ economy’. Read More

Courtesy of Michael Taylor, HMT Consulting
September 1, 2020

The recent National Minimum Wage decision highlights need for a national ‘Outdoor Leaders’ Award.

In a majority decision, the full bench determined that, the minimum wage and all Modern Award rates of pay would be increased by 1.75%; however, in a departure from usual practice, the award-rates would be increased at different points between 1st July (the ‘usual’, operative date for such adjustments), 1st November or 1st February 2021 … read more

Impact on the Outdoor Sector
Depending upon their location, nature of services offered, skills-base
requirements, and operational hours/days, Outdoor Recreation Employers have
relied upon a wide variety of Modern Awards to underpin the terms and
conditions of their workforces. This particular decision sees differing operative
dates for the increased rates application… read more

Need for National Outdoor Leaders Award

Courtesy of Michael Taylor, HMT Consulting
June 2020

The Fair Work Commission has announced a 1.75% increase to the National Minimum Wage (NMW) following its 2020 Annual Wage Review and the increase also applies to modern awards.

A common misconception is that employees are not award covered because you’re paying them more than the award rates, however the majority of employees in Australia are award or enterprise agreement covered and cannot “buy-out” of the award by simply paying a higher rate. They will still be entitled to others conditions of the award, eg overtime, penalty rates and leave loading, It’s imperative that you know the award/s that cover your organisation to ensure compliance as fines are hefty for non-compliance. (Claire Harrison)

Learn more: Fair Work Commission

Not for Profit – Employer Guide during COVID-19

This is a general guide intended to provide not-for-profit employers with some practical guidance for dealing with COVID-19. This guide does not take into account individual employment agreements, enterprise agreements and awards which may apply to your workforce and alter the position set out below. If you require specific advice in this regard, please contact us.

While this guide is intended to help businesses comply with their minimum legal requirements in response to COVID-19, there may, of course, be other moral and reputational considerations for an employer when deciding on an appropriate response. We are seeing a wide and imaginative range of immediate and temporary steps being taken by employers in particular in response to the COVID-19.

Update: Proposed FWC Changes – what it means for the outdoor sector

In recent days the Fair Work Commission (FWC) has moved promptly to provide employers and employees more options in addressing the ongoing challenges of the COVID 19 pandemic. Read More

(Courtesy of Michael Taylor, HMT Consulting)
April 2020

Minister’s Submission to Full Bench on proposed COVID-19 pandemic award variations

A Submission on behalf of the Federal Minister for IR & AG, has recently been posted on the Fair Work Commission website.

Note paragraph 9, in which it is confirmed that it’s the Commonwealth’s intention to pay the proposed ‘Job keepers’ payment to persons on “unpaid” leave. This clears one important matter up which impacts upon all organisations contemplating their next moves.

(Courtesy of Michael Taylor, HMT Consulting)
April 2020

Proposed Fair Work Commission COVID-19 Changes

What it means for the outdoor sector

In recent days the Fair Work Commission (FWC) has moved promptly to provide employers and employees more options in addressing the ongoing challenges of the COVID 19 pandemic.

Two widely used Modern Awards – the Hospitality Industry (General) Award and the Clerks – Private Sector Award 2010, have been varied to address some structural impediments/uncertainties relating to employer and employee rights and entitlements during the pandemic.

READ MORE
(Courtesy of Michael Taylor, HMT Consulting)
April 2020

‘Multiple functions’ – the potential of unintentional obligations.

Two Federal Circuit Court decisions highlight potential problems arising from engaging employees to perform multiple functions in your workplace.

In the most recent case, an employee originally engaged as a ‘fitness instructor’ in 1994, and then later, and additionally, as a part-time ‘customer service officer’, (initially at a separate location operated by her employer, then subsequently, doing both roles at the same venue), argued that the roles had “merged” into one substantive position.

The employee cited the fact that they regularly and routinely moved directly from one function to the other, during a shift, and often, back again on the same day. This, it was argued, was a framework for hours of employment giving rise to a claim for non-payment, or underpayment, of overtime totalling approximately $119,000.

READ MORE
(Courtesy of Michael Taylor, HMT Consulting)
October 2019

The Federal Government moves to block ‘Double-dipping’ in relation to casuals

On 16 August, 2018, the Federal Court of Australia handed down its decision in ‘WorkPac Pty Ltd v Skene’; the court decided that engaging an employee as a casual and paying a casual loading does not mean than an employee will necessarily be a casual for the purposes of the National Employment Standards (NES) in the ‘Fair Work Act 2009 (Cmth)’.

In essence the decision ruled that an employee who was treated as a casual – and paid a casual loading – was in fact entitled to be paid annual leave because of his regular pattern of hours and expectation of continuing work.

(Courtesy of Michael Taylor, HMT Consulting)
January 2019

Fair Work Ombudsman (FWO) advice on Award coverage for outdoor leaders

The FWO recently released a statement of advice relevant to outdoor leaders and outdoor business operators who are not covered by an existing industry or occupation-based award.

The advice states that if an employee is not covered by an industry or occupation-based award, they can/may be covered by the Miscellaneous Award. This applies to different occupations the FWO has previously considered may be award-free, including outdoor leaders.

A full summary of this advice can be found at Award coverage for outdoor leaders.

Workplace bullying and why the ‘rough and tumble’ of a job is no excuse

Politics is known for being a tough business, but multiple Liberal parliamentarians say their colleagues crossed a line during the recent leadership spill.

Lucy Gichuhi has threatened to name bullies. Julia Banks referred to intimidation when announcing she was quitting politics. Kelly O’Dwyer says she knows of MPs who were threatened.

We spoke to experts to find out what defines workplace bullying and why professions like politics, as well as law and the military, are fertile ground for it …

Source: ABC News

Sick days, employment contracts and overtime: Your workplace rights, explained

Have you ever wondered if it’s OK to text in sick? Or worried about how much notice you need to give if you’re planning a holiday?

If you don’t know the answer to these questions, you’re not alone.

While your rights and responsibilities at work may have been outlined on your first day, remembering them when the time is right isn’t easy.

Source: ABC LIFE

FWC Incorporates ‘Domestic violence clause’ into Modern Awards

As part of the ‘Four yearly review’ of all Modern Awards, the Fair Work Commission (FWC) recently heard a test case with regard to leave for victims of domestic violence; a Full Bench of the Commission headed by His Honour President Ross, found that it was within the authority granted by the Fair Work Act 2009 to determine a standard provision to be incorporated in Modern Awards.

Subsequently, most Modern Awards have now been varied to reflect the terms of a new ‘Leave to deal with Family and Domestic Violence’ provision.

(Courtesy of Michael Taylor, HMT Consulting)
July 2018

Fair Work Commission Determines ‘Proper’ Requirements for EBAs containing “Loaded Hourly Rates”

On 28^th June 2018, a Full Bench of the Fair Work Commission (FWC) headed by the President, Justice Ross, handed down a decision concerning appeals relating to five applications for approval of enterprise agreements (EBAs); the common feature of the five is that they “provide for “loaded” or higher rates of pay which are intended to incorporate, in part or whole, penalty rates and other monetary benefits for which separate provision is made in the applicable modern awards

(Courtesy of Michael Taylor, HMT Consulting)
July 2018

Dilemma – ‘Regular Casual’ or ‘Permanent’

The Outdoor Recreation & Fitness Sectors sector relies heavily on a casualised workforce, with many individuals rostered on regular days and in some instances at, or over, weekly hours that would otherwise be more applicable to fulltime (permanent) employment.

Both employers and employees regard such arrangements as constituting ‘permanent casual’ employment.  Unfortunately, such a mind-set can have significant and often unintended consequences …

(Courtesy of Michael Taylor, HMT Consulting)
February 2018

Fair Work Ombudsman on the case for Young Worker’s Rights

The Fair Work Ombudsman, Natalie James, recently place all employers on notice in regard to the exploitation of young workers around Australia:

“It’s time to address the myths that have achieved widespread levels of acceptance and are resulting in employers short-changing young workers…”

Courtesy of Michael Taylor, HMT Consulting)
May 2017

Fair Work Commission Reshapes Penalty Rates Regime

On the 23^rd February, the Fair Work Commission handed down its decision relating to Penalty Rates in six awards in the Hospitality & Retail sectors ….

As a community we need to resolve the questions “Do we want & need all services delivered on a 24/7 basis?” AND “What price do we want to pay or be paid for them?”

(Courtesy of Michael Taylor, HMT Consulting)
February 2017

How Heatwave Conditions impact your Obligations as an Employer

2016 was the hottest year on record in Australia. January/February has seen regional centres record their hottest days with temperatures approaching the high 40’s in Victoria, NSW and Qld.

Therefore, now is an opportune time to revisit the issue of employer obligations to staff engaged in physically challenging activities in enclosed environments or the

(Courtesy of Michael Taylor, HMT Consulting)
February 2017

Checklist: Essential Steps to take in Engaging Employees

Several points are essential in establishing an employment relationship consistent with best practice and the requirements of current federal legislation.

The order in which they appear should be reflected in the Company’s actions when engaging any and all staff (although, particularly in the case of emergencies/unforeseen circumstances, this may not always be practicable).

(Courtesy of Michael Taylor, HMT Consulting)
December, 2016

Volunteers Are Human Resources…or Are They?

The complexity of volunteer involvement often amazes people. Given the consequences to employees of ineffective volunteer involvement, how can a Human Resources Department not be connected to the daily issues of employee/volunteer relationships?

Managing Performance – some tips.

Many small to medium-sized businesses are experiencing difficulties in an ever increasingly competitive environment; gaining and maintaining the best from your team is fraught with many challenges, some of which are explored here.

Above all else, consistency, transparency and excellent communications are the keystones to managing performance in the modern workplace.

(Courtesy of Michael Taylor, HMT Consulting)
March, 2016

Drugs in the workplace – an escalating problem.

A recent decision by a member of the Fair Work Commission (F.W.C), that it was “not unjust or unreasonable” to require employees to provide oral fluid (saliva) and urine samples as part of a bona-fide workplace drug testing regime, canvassed many issues in regard to this urgent and escalating workplace matter.

(Courtesy of Michael Taylor, HMT Consulting)
May, 2015

Rostering Challenges

The Outdoor Recreation Industry operates over a wide spread of hours and in very challenging conditions. Employees are routinely called upon to work extended periods “in the field”, and often in remote locations, well removed from their home-base. Coincidently, Outdoor Leadership entails the delivery of training to novices, relating to complex/ physically and often demanding activities, in hazardous conditions.

The combination of the environment, nature, and the organisation of the work, pose significant challenges to the workforce and those who manage them. This article explores the ramifications.

Custom & Practice:
Whilst the Fair Work Act 2009, and the Modern Awards made in accordance with its dictates, anticipates ordinary hours being worked over an average (over four or six weeks) of thirty eight, with undisturbed periods of eight to ten hours between work on consecutive days; the Outdoor Recreation Sector works to a very different model.

Periods of work are organised around shifts easily exceeding the award-base “norm” of eight to ten hours, over a span of nine to eleven consecutive hours (inclusive of unpaid breaks). Often enterprise-specific arrangements facilitate work being scheduled:

• over spans of twelve to sixteen consecutive hours, rostered in blocks of two or more periods per day;
• regularly exceeding thirty eight over seven days;
• on more than six consecutive days.

Sometimes distinctions are drawn between “active” and “passive” time; the former involving the provision of training or support to Clients (being paid time) and the latter involving rest periods,(that entail the employee being available to meet extenuating circumstances, with little or no delay), and or, traveling to and from remote locations (being unpaid).

Risks:
Working long and irregular hours associated with physically and or mentally arduous activities can pose significant health and safety risks, as well as organisational risks. Employers have obligations to minimise these risks to workers, and clients, alike, stemming from a general duty to provide safe systems of work and a safe working environment.

From a health perspective; stress, fatigue, depression, headaches, high blood pressure and increased risks of developing stomach ulcers and heart disease, can all be contributed to by poorly designed and managed patterns of work.

From an organisational perspective, productivity and efficiency suffers, often manifested by:

• Increased absenteeism and higher than average staff turnover;
• Degraded staff morale;

Prolonged work periods often see employees at their least competent and watchful, therefore vulnerable to making errors of judgement if unexpectedly recalled to duty to address an emergency. Further, hand-over arrangements suffer, as essential information to ensuring a transition from one team to the next is prone to being overlooked, incomplete or miss-communicated, increasing the potential for mischance/accidents.

Team members who have worked continuously for 8-10 hours in a remote location, are not the best candidates to act as drivers for people and equipment back to home-base.

Whilst payment can be an inducement to perform “over and beyond”, dollars cannot reduce the loss of efficiency associated with fatigue.

Strategies:
Acknowledging that organisations in Outdoor Recreation are routinely dealing with a diverse group of Clients, with significantly different needs/requirements; the following framework is recommended in relation to the organisation of “scheduled” work:

• Work should be rostered over not more than six consecutive days (and ideally not exceeding 48 hours of ‘active’ duty);
• Minimise the number of occasions where either active or passive activities are required over seven consecutive days;
• Shifts of twelve or more ‘ordinary hours of active duty’, should not be rostered over more than four consecutive days;
• Keep work requiring both day and night active duty to a minimum – if a program has an “after dark” component, consideration should be given to having a specific team to cover these requirements; concurrently, a nominated team member(s) should be rostered on “standby”, to cover any night time contingencies;
• Periods of active duty, (either scheduled or unscheduled – in the case of ‘call-outs’), should be separated by at least eight continuous hours off-duty, before the commencement of any further work. This is an imperative for team members undertaking high-risk work;
• Ensure that team members have sufficient (paid or unpaid) breaks during work periods, particularly those working shifts in excess of eight hours, in inclement conditions, or undertaking high-risk work;
• Always ensure that time is allocated to ensure that there is an effective hand-over between work teams; (co-incidentally, documented ‘hand-over policies’ should be put in place well beforehand);
• Either prior to engagement, (in the case of casuals), and or on each occasion (in the case of weekly employees), that a program is delivered or assignment undertaken, ensure that a formal ‘fitness for work assessment’ is implemented in relation to all team members, from the Supervisor down. At the very least this should entail observing and communicating with the workers to ensure they are able to perform their allocated tasks, in the environment, within the timeframe required, and using the available resources.

A final point; stress and fatigue related issues impact equally on team members, regardless of their employment status, or history. On occasions, unfortunately, casual employees are treated differently to ‘permanent’ team members in relation to rostering. This is a counter-productive, and potentially dangerous.

(Courtesy of Michael Taylor, HMT Consulting)

The Blurred Line between ‘Casual’ & ‘Part-time’ Employment

Many employers in the Fitness, Leisure, Retail and Hospitality sectors require maximum flexibility to ensure the continuing success of their businesses. Significant numbers have plumped for ‘casualised’ workforces when faced with dynamic market conditions for their goods or services. In the process, some have fallen foul of recent developments in workplace law by overlooking obligations they assumed they did not incur through engaging (regular) casuals.

A casual employee has traditionally been viewed as an employee who is employed to perform work on an “as needs” basis, without a regular work pattern. Each time a casual is engaged they enter a separate and distinct contract. In other words, their employment comprises a series of contracts as opposed to one continuous contract and there is no guarantee of continued employment. However, confusion lies in the fact that there is not a strict legal definition of a casual employee. The High Court of Australia has held that “the term “casual worker” is not a precise legal term but rather a colloquial expression. In the absence of a definition, the facts of each arrangement would need to be examined on a case by case basis in order to determine whether a worker is a casual.”

The Application of Modern Awards

The contents of awards have usually been a significant determination of the nature of the employment relationship; a typical example being, Clause 13 of the Fitness Industry Award 2010 provides that: “A casual employee is an employee engaged and paid as such.”

On the face of it, a fairly straightforward proposition.

Further, at clause 12.1, the award goes on to say that:

“A part-time employee is an employee who:

(a) Works less than full-time hours of 38 hours per week;
(b) Has reasonably predictable hours of work; and
(c) ……..

and clause 12.5 “An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13 –Casual employment.”

Again, an apparently straightforward proposition, that is until you look at how the Courts have viewed the nature of casual employment in recent times.

In practical terms, casual employment involves employment for fewer hours than the normal full-time working week (38 hours), usually arranged in a non-regular pattern (a concept carried through in the excerpts of the award quoted above).

Where a court finds that a “casual” employee is actually a permanent employee, the employee will be entitled to all the legal protections available to permanent employees on termination. They may also make a claim for any unpaid leave entitlements (reserved for permanent employees), back to the point in time that the Court finds that the permanent employment actually began. A matter of considerable “financial shock” to employers faced with bills for back-payment of Long Service and Annual Leave, and possibly redundancy and termination notice periods.

It is not uncommon that a relationship ‘morphs’ over time from a “true” casual to that of a “permanent part-time” employee, as the parties get into a regular (comfortable) pattern of hours, suitable to both parties.

Matters to be considered

In a recent Federal Magistrates Court decision, it was found that even though the employee’s contract described them as being casually engaged, and paid accordingly, on a proper analysis of their working situation, they were not a “true casual”. The key factors the Court took into account to reach this conclusion included that the work was regular and performed in accordance with a stable, organised and certain roster, which was published significantly in advance, and that the employee in question was to work on an ongoing basis until the contract came to end. Importantly, the employee was not free to refuse work on the basis of other commitments.

Employers who seek to codify the terms and conditions of ‘casuals’ through making them parties to a formal “employment contract”(as opposed to an Enterprise Agreement or Individual Flexibility Agreement), are inadvertently pushing the ‘flavour’ of the relationship from casual to ‘weekly’ (part-time, or fixed-term), as the work patterns defined in the “contract” will make the employment more regular, stable, and organised.

So even though the intention of the parties (particularly the employer), may fit nicely with the contents of the definition found in the applicable Modern Award, it is the close examination of the totality of the relationship that will ultimately determine the true employment relationship.

(Courtesy of Michael Taylor, HMT Consulting)

Historically federal and state governments have sought to regulate industrial interaction of ‘groups’ (employers and their organisations and employees and their organisations – unions). Issues were dealt with at the macro level (across industries and sectors of the economy); the emphasis being on resolution, or avoidance, of ‘disputes’– given the title of ‘Industrial Relations’.

During the 1990s the emphasis moved down to the enterprise level, however the focus was still on collective interactions, primarily dealing with bargaining processes.

In 2006 the Howard Government’s Work Choices legislative package created a significant, (in Australian terms), departure from the traditional ‘Industrial’ (third party resolution approach) to  that of  ‘Workplace Relations’, with the relationship between an employer and the individual worker as its core. Instead of ‘disputes’ and ‘bargaining’, the new legislative package had front and centre – rights & obligations.

The 2009 Fair Work Act, whilst retaining many of the least controversial aspects of its predecessor, seeks to go beyond the relationship between employers and their employees; with an emerging trend to address, in the broader context, the balance of work and lifestyle. Legislation now deals, or is intended to deal, with both employment and inter-personal relationships.

The latest manifestation of this trend is the Anti-bullying measures that came into being on the 1st of January, as part of the Fair Work Amendment Act 2013.

What constitutes bullying?
For the purposes of the new federal law, bullying occurs when:

• A person or group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; and
• The behaviour creates a risk to health and safety.

Examples of bullying behaviour could be:

• Aggressive or intimidating conduct;
• Belittling or humiliating comments;
• Spreading malicious rumours;
• Teasing, practical jokes or ‘initiation ceremonies’
• Exclusion from work-related events,
• Unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level;
• Displaying offensive material;
• Pressure to behave in an inappropriate manner.

What does not constitute bullying?
Reasonable management action carried out in a reasonable manner does not constitute bully.

• Performance management processes;
• Disciplinary action for misconduct;
• Informing a worker about unsatisfactory work performance or inappropriate work behaviour;
• Directing a worker to perform duties in keeping with their job;
• Maintaining reasonable workplace goals and standards.

Whilst the above are all examples of management action occurring in all workplaces on a day to day basis, if mishandled, they have the potential to fall foul of the new law.

Who is covered by the new law:
As mentioned in the introduction, industrial laws, until recently, have sought to regulate the relationship between employers and their employees (workers). The provisions of the Act have an expanded definition of ‘a worker’ which includes:

• an employee
• a contractor or subcontractor
• an employee of a contractor or subcontractor
• an employee of a labour hire company who has been assigned to work in a particular business or organisation
• an outworker
• an apprentice or trainee
• a student gaining work experience
• a volunteer.

The term ‘Worker’ is only qualified by the requirement that the ‘Employer’ is a ‘constitutionally-covered business’ [i.e; a constitutional corporation – a proprietary limited company or an incorporated association conducting trading or financial operations]. Consequently, a far wider population falls within the umbrella of the new provisions, than has historically been the case.

How to minimise the risk of bullying:
When all is said and done, bullying is a workplace health and safety matter; and as such employers have a duty of care to provide a safe workplace (free of intimidation and fear).
As with other workplace grievances, complaints of bullying are best dealt with promptly and effectively, within a recognised and observed framework; Managers should encourage subordinates to raise issues within the workplace in the first instance. Employees should be encouraged to communicate their concerns to:

• Their supervisor/manager;
• A Health & Safety Representative;
• The company’s Human Resources Department; or
• Their union representatives.

Organisations both large and small should have detailed policies and procedures in place to cover a raft of workplace matters, including Bullying. These documents must be widely available to all employees and regularly reviewed to ensure that they meet the needs of the organisation and all stakeholders (Management, employees and clients).

The trends referred to in the introduction to this article put greater emphasis on the importance of recruiting and promoting the right candidates in the workplace. A mis-alignment of an individual, their abilities and personalities with their role and responsibilities has the potential to cause stress to the employee and those around them in a working environment. Bullying is but one symptom of poor or under-resourced human resource management.

Therefore it is important that persons in a position of authority (from the proprietor to first-line supervisors) are aware of their responsibilities under the new law and are provided appropriate training to deal with circumstances as they arise.

Bullying in the workplace and associated inter-personal matters requires a mix of skills and experience that many persons in authority in the workplace may not have, or if they do would benefit by outside assistance. Employer organisations, industry or trade groups, chambers of commerce, Department of Business in most states or territories offer help and advice to small business operators. The Fair Work Commission website has contact details for many such organisations www.fwc.gov.au; concurrently, Lifeline has a 24 hour service to assist individuals suffering from stress related issues 13 11 14.

(Courtesy of Michael Taylor, HMT Consulting)

An employer has an obligation to make certain terms and conditions of employment clear to employees. A good time to do this is in a letter confirming the Offer of Employment.

The letter should cover the following:

• Starting date, time and place (the date is important, particularly in regard to the period of probation that impacts on the period of notice of termination that the person must be given);
• Name of the industrial instrument (Modern Award or EBA) under which the person will be employed (or alternatively, a simple confirmation that a separate employment contract will be drawn up and issued in due course):
• The employee’s job classification and employment status (part-time, casual etc);
• The duration of probationary employment and the period of notice that will apply in relation to termination during that period, by either side:
• Leave arrangements, personal/carers, annual and any other paid or unpaid leave agreed by the parties;
• Pay details including pay day and method and regularity of payment:
  Need to provide special equipment (if necessary);
• Offer subject to a satisfactory Police check, and presentation of ‘Working with Children’ credentials (if applicable);
• A brief description of the main duties involved.

It is strongly recommended that accompanying the Letter of Employment, should be a copy of the National Employment Standard relating to ‘Employee Information’.

Managing Terminations – Forward With Fairness Legislation

Introduction:
From 1st July, 2009, the Fair Work Act 2009, gives access to unfair dismissal laws to a larger population by removing the ‘more than 100 employees’ limit imposed under the former Work Choices Regime and replacing it with a new ’15 or more employee’ standard. Concurrently, employees earning up to $106,000 p.a (indexed), also have rights to seek redress under the new legislation.

This section touches upon the main aspects of the new system, but notes that some areas, particularly regarding representational rights and ‘general protections’ are yet, (as at May 2010), to be fully tested.

Unfair Dismissals:
To address the concerns of small business, the federal government has limited the operation of the “Unfair Dismissal” regime. Certain employees are precluded from making an application to Fair Work Australia (FWA) for redress of their termination:

Employees excluded from making a claim:

• Employees of businesses of 15 or more employees who have been employed for fewer than 6 months;
• Employees of businesses with less than 15 employees, employed for fewer than 12 months;
• Employees dismissed due to *genuine redundancy;
• Employees of a business of less than 15 full-time equivalent employees, (or “simply 15” employees after 1.1.11), employed for more than 12 months, where the employer can demonstrate that they have followed the ‘Small Business Fair Dismissal Code’,(a copy of which is incorporated in this Module). Concurrently, the “Unsatisfactory Work Performance/Conduct Policy”, incorporated in this Module is designed to meet the Employer’s obligations under the Code and the Act;
• Casuals who do not meet the requisite minimum employment period as permanent employees and who are not engaged on a regular basis with a reasonable expectation of continuing employment;
• Persons making a claim more than 14 days after being dismissed, (although FWA has some discretionary powers).

FWA will seek to mediate matters, with an emphasis on re-instatement, although they have power to make orders for compensation of up to 26 weeks pay.

FWA will conduct an “inquiry” at the workplace or through teleconferencing, in a timely fashion. During the ‘conciliation stage the employer and employee may be represented (in the employer’s case, by a paid agent, industry association or lawyer). However, the Act precludes representation generally by Lawyers or Paid Agents in the case of matters going to formal submissions (see note in introduction).

N,B: Within this system procedural fairness is to the fore, with every opportunity to be given to the employee to be made aware of their short-comings and to be given reasonable opportunity to address them, before their employment is terminated. All steps must be well documented, to avoid an ‘unfair dismissal’ claim being sustained.

*Redundancy:
A person’s dismissal will be a case of genuine redundancy if:
(a) The person’s employer no longer required the person’s job to be perform by anyone because of changes in operational requirements of the employer’s enterprise; and
(b) The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
However, a person’s dismissal will not be a case of genuine redundancy if it would have been reasonable in all circumstances for the person to be redeployed within:
(a) The employer’s enterprise; or
(b) The enterprise of an associated entity of the employer.

Under the National Employment Standards, applicable from 1.1.10, employees of employers having 15 or more employees will have obligations to pay severance pay, based on the employee’s length of service and age, up to a maximum of 16 weeks pay.

Further, an employer making 15 or more employees redundant, must notify Centrelink.

Unlawful Dismissals:
Employees have a range of protections from an employer taking unlawful actions to either terminate or “harm” their employment.

Under the General Protections provisions of the Fair Work Act 2009, employee’s workplace rights are guaranteed, through the provision of effective relief of persons who have been discriminated against, victimised or otherwise adversely affected.

Indeed a prospective employee is taken to have rights he or she would have if he or she were employed in the prospective employment by the prospective employer.

Adverse action includes, but is not limited to:

• Altering the position of the employee to the employee’s prejudice; or discriminates between the employee and other employees of the employer;
• Refuses to make use of, or agree to make use of, services offered by an independent contractor; or
• Refuses to supply, or agree to supply goods or services to an independent contractor. “Unlawful Terminations” relate to:
• An employee’s temporary absence from work due to illness or injury
• Trade union activity
• Non-membership of a trade union
• Filing a complaint against the employer
• Race, colour, sex, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin
• Community service
• Maternity or paternity leave .

N.B. In relation to allegations of unlawful terminations, the onus of proof remains on the employer to prove that the dismissal was not because of, or did not include, one or more of the previously listed grounds.

Claims are heard by the Fair Work divisions of the Federal Court and Federal Magistrates’ Court.

In relation to General Protections applications, there is a 60 day limit on lodgements; further costs can be ordered by the Courts, with few limitations on damages awards.

Small businesses are not excluded from “Unlawful Termination” claims.

Best Practice – Managing Performance
There is a strong link between the steps taken to:

• Recruit new staff
• Manage the performance of staff
• In the event that the employment relationship fails, manage the termination of the individual.

Appropriate action in all phases will minimise the risk to both the reputation of the Employer, through avoiding unnecessary litigation, and to the morale of the workforce.

Accompanying is a set of sample letters with explanatory memorandum relating to each of, appointment, performance management and termination of staff. They, due to their very nature, cannot anticipate all contingencies; therefore some discretion is needed to reflect the circumstances.For instance, should the employee’s action warrant it, there is no restraint on the C.E.O or other authorised person, instantly terminating an individual for criminal action or other wilful misconduct.

All current employees and future inductees, should be issued a copy of the‘Unsatisfactory Work/Performance /Conduct Procedures’, template document contained herein, to ensure that all team members understand how and why actions they take in their employment will be addressed by the Organisation.

PERFORMANCE – First Written Warning

Introduction:

The first written warning should include the following key elements:

• Reinforce the standard of performance or conduct expected, the employee’s failure to
  meet the standard and the severity of the situation;
• Ask for the employee’s response. The response and the Manager’s consideration of
  the response should be noted and recorded in the warning;
• Nominate a suitable review period to monitor performance/conduct;
• Outline the consequences of continuing the unsatisfactory performance/conduct; and
• Make reference to previous oral warnings and their dates.

Date:
Name:
Address:

Dear_____________,

RE: First Official Warning in relation to Conduct/Performance.

As you know, (insert the name of the staff member in authority over the employee concerned,
if not the person actually signing the letter) has been working with you to improve your
performance (insert period of time). But unfortunately performance issues remain unresolved.
This is your first official warning (specify details of unacceptable conduct/performance).

The warning follows the counselling/disciplinary interview held on (date) in relation to the
issue(s).

During this interview, you made (the following) or (no) comments in relation to your
(misconduct) or (performance) (insert response if applicable).

(Repetition of this conduct or failure to improve) may result in the termination of your
employment.

Your (conduct/performance) will be reviewed (date).

This warning will be placed on your personnel file, and will remain current, in relation to the
issues addressed above for a period of ___ months.

If you would like to discuss this matter further, please do not hesitate to contact the
undersigned.

Yours faithfully,
———————–
(relevant officer).

Unsatisfactory Work Performance/ Conduct Procedures

It is important that all team members have a clear understanding of the consistent process for all employees regarding Unsatisfactory Work Performance and Misconduct.

Conditions leading to action pursuant to this policy include the following:

• Inefficiency or negligence in the performance of the specified duties of the position held; or
• Misbehaviour or misconduct which includes committing acts which impede the carrying out of the employee’s work, or that of colleagues, or failure to comply with a reasonable instruction from a team member on authority; or
• Action which is prejudicial to the health or safety or other employees; or
• Breach of Skills Alliance’s policies or procedures.
• Conduct causing harm to the relationship between the organisation and its clients or stakeholders.
• Dishonest or unethical behaviour.

Consistent with the requirements of the Fair Work Act 2009, your employer has developed the following disciplinary procedures for unsatisfactory work performance:

• Stage 1 – Training and counselling of the employee concerned through discussion with their Manager.
• Stage 2 – First written warning in the event the agreed actions / measures have not been achieved.
• Stage 3 – Second and final written warning in the event the agreed actions / measures have not been achieved.
• Stage 4 – Termination of employment in the event the agreed actions / measures have not been achieved.

Throughout all stages the employee may be represented by an individual or organisation of their choosing.

Employees are guaranteed that all information will be treated with the strictest confidence.

Award Coverage in the Outdoor Recreation Sector – an overview

There are four awards that are likely to cover employees in outdoor recreation. Click each award name to view on the Fair Work Commission website.

• Amusement, Events and Recreation
• Miscellaneous
• Hospitality
• Fitness

Guides (from HMT Consulting) for:

• Miscellaneous
• Hospitality
• Fitness

Please Note:

The Outdoor Leaders Award (2005) was terminated on July 29, 2011. Since then, there has been no “dedicated” Industrial Award governing the minimum term and conditions of workers in in Outdoor Recreation.

A series of determinations by Fair Work Australia, relating to applications for approval, under section 185 of the Fair Work Act 2009, of Enterprise Agreements have given strong guidance to employers and their representatives as to the issue of Award Coverage in this Sector.

READ MORE (Courtesy of Michael Taylor, HMT Consulting)

Jewell Hancock Employment Lawyers

A full-service employment law firm exclusively for employees

BLOG (Potentially useful blog articles on employment related matters

Employee, contractor or volunteer?

At times, it can be difficult to assess if someone at your organisation would be considered an ’employee’. The Not-for-profit Law Guide: Employees, contractor or volunteer can help you to undertake an assessment of whether employment laws apply (but as this can be complex, it can be a good idea to get some legal advice). The fact sheet below has more information about:

• definitions of employees, independent contractors and volunteers, and
• legal obligations owed by community organisations.

DOWNLOAD: Employee, contractor or volunteer? (PDF)

Labour Hire Licensing Scheme

The Queensland Government has established a mandatory labour hire licensing scheme to protect workers from exploitation and promote the integrity of the labour hire industry in Queensland.

The scheme requires labour hire providers to be licensed and users of labour hire to use only licensed providers.

Employing People

• Human resources: the basics
• Taking on staff
• Employee rights, awards and entitlements
• Payroll tax
• Managing staff
• Developing staff
• Ending employment

Source
Queensland Government Business and Industry Portal

Workplace Relations in Australia

The Australian national workplace relations system establishes a safety net of minimum terms and conditions of employment and a range of other workplace rights and responsibilities.

Source: Australian Government

Fair Work Commission

Helping Australians create fair and productive workplaces

Fair Work Ombudsman

The gateway to information and advice about Australia’s workplace rights and rules.

Modern Awards provide pay rates and conditions of employment such as minimum wages, leave entitlements, overtime and shift work, amongst other workplace related conditions.

The awards relate to specific industries or occupations. There are currently 122 modern awards.

These awards, with the National Employment Standards, provide a minimum safety net of terms and conditions of employment for all national system employees.

Queensland Training Ombudsman

The QTO provides a free, confidential, and independent service to review and resolve enquiries and complaints from apprentices, trainees, students, employers and other stakeholders about the VET system.

The QTO can help you navigate the complex VET sector and find the best way to address your concerns as well as provide free and impartial advice about rights and responsibilities within the VET sector.

The QTO will look at your circumstances and assist you to resolve issues appropriately by:

• reviewing the issue and recommending the most appropriate action to take
• referring the complaint to another agency if they are best suited to assist
• mediating between parties to come to a mutually beneficial solution.

The QTO also plays an advocacy role for the VET sector by reporting on systemic issues and advising the State Government on ways to improve the VET system.

Read More

Workplace/Info

A subscription based online resource that gives HR/IR managers and professionals up-to-the-minute news, tools and expert guidance, to arm you with the necessary insights to help you manage your HR requirements. (from Paul Munro)

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