By Ron Jones
HR Management & Workplace Relations Consultant
Much has been written recently on the need for improvements in the Fair Work Act 2009. The groundswell of opinion has been mounting for some time, and has intensified in recent weeks.
There may be a number of reasons for this: genuine concerns as to limitations of the Act; the build up of pressure for a review that must be conducted soon anyway; and the possibility of adding a further nail in the coffin of a Labor Government.
It must also be remembered that much of the bleating coming from various lobby groups is just sour grapes: bodies such as ACCI and the Australian Industry Group were heavily involved in the proceedings that led to the current system. They predominantly represent the interests of large corporations which have the resources to deal with the changes. To listen to them now, you would think they had been asleep for the last few years. Actually, they probably were if they failed to fully comprehend how the new system would play out. Such groups need to be careful to avoid an accusation that they are really only complaining now because they failed to advise their members how to deal with changes and how to defend themselves against the unions.
In my view, there is much to be applauded with the new modern award system: it has removed many of the problems of Work Choices and created a genuine attempt to build a stronger enterprise focus for workplace management.
However, there are areas where reform to the new modern award and individual flexibility arrangements is needed.
Some examples of areas of concern are: differences in implementing time and a half and double time for overtime; minimum times for employment of casual staff; clarity around when a casual ceases to be deemed a casual and what arrangements should be implemented when a casual is converted to part time or full time; transition arrangements from old awards; clarity as to the determination of award free status.
It is also important to recognise that the changes have had, and continue to have, a significant impact on many small to medium size businesses. Many business owners are struggling to fully comprehend the changes and what they need to do to ensure compliance. There is a real need for a moratorium on prosecutions until a full education campaign has been conducted.
Showing posts with label fair work. Show all posts
Showing posts with label fair work. Show all posts
Thursday, September 8, 2011
Thursday, June 30, 2011
How confident are you that your workplace meets the required standards?
By Ron Jones
HR Management & Workplace Relations Consultant
It is now 18 months since the commencement of the modern awards under the Fair Work Act and a lot has changed during that time.
It is more than likely that your payroll system has made the changes necessary to ensure staff are receiving the right pay and allowances.
Hopefully you have included redundancy entitlements in the conditions of employment offered to staff.
You will also have your staff on either a contract of employment which refers specifically to the award or you will have a negotiated enterprise agreement.
Your leave entitlements will also follow the National Employment Standards so that permanent and long term staff, including casuals, can obtain benefits for carer’s leave, community service leave and long service leave.
Of course, you will have also made sure that you don’t have any long term casual staff performing regular work.
And, your policies and procedures preclude the possibility of an adverse action or unfair dismissal claim against you.
The reason why all of these things will be in place is because you want to do the right thing as well as avoiding any possibility of being fined $33,000 each time you make a mistake.
Perhaps you are not sure if all of this is in place.
Just to be on the safe side it might be timely to have someone do a review and advise if there are any compliance issues.
You can help safeguard your organisation for just a small investment.
Please contact Ron Jones Consulting to discuss further.
HR Management & Workplace Relations Consultant
It is now 18 months since the commencement of the modern awards under the Fair Work Act and a lot has changed during that time.
It is more than likely that your payroll system has made the changes necessary to ensure staff are receiving the right pay and allowances.
Hopefully you have included redundancy entitlements in the conditions of employment offered to staff.
You will also have your staff on either a contract of employment which refers specifically to the award or you will have a negotiated enterprise agreement.
Your leave entitlements will also follow the National Employment Standards so that permanent and long term staff, including casuals, can obtain benefits for carer’s leave, community service leave and long service leave.
Of course, you will have also made sure that you don’t have any long term casual staff performing regular work.
And, your policies and procedures preclude the possibility of an adverse action or unfair dismissal claim against you.
The reason why all of these things will be in place is because you want to do the right thing as well as avoiding any possibility of being fined $33,000 each time you make a mistake.
Perhaps you are not sure if all of this is in place.
Just to be on the safe side it might be timely to have someone do a review and advise if there are any compliance issues.
You can help safeguard your organisation for just a small investment.
Please contact Ron Jones Consulting to discuss further.
Thursday, April 28, 2011
ADVERSE ACTION – THIS IS REALLY SCARY!!
Adverse Action: The sleeping giant of the Fair Work Act is slowly waking up and will soon be terrorising SMEs everywhere!
Adverse action means that just when you think you’ve dealt with an employee and that a workplace problem has been finalised, it hasn’t.
Adverse action means that just when you think the termination for poor performance has been finalised, it hasn’t.
Adverse action means that just when you think you’ve selected your best candidate and that the recruitment process has now been finalised, it hasn’t.
Adverse action means that just when you think all your managers have been trained effectively in how to treat their staff, they haven’t.
In effect, adverse action can result from any situation where an employee has a workplace right and the exercise of that right is impacted in some way or other by decisions of the employer. More significantly, it can occur when decisions are made on behalf of the employer by staff who don’t fully understand the implications of their decision or have not adequately followed a process which led to the particular decision.
The Fair Work Act contains general protection provisions which state that an employer must not take any adverse action against an employee, or contractor or prospective employee or contractor, because that person has exercised or proposes to exercise a workplace right.
Workplace rights are very broad and include, for example, rights as a union member, the right to make complaints about their employment, the right to enquire about terms and conditions of employment, the right to request flexible work arrangements.
An action is adverse if it affects the employee adversely. Any reasonable or normal action taken by the employer in exercising their role, such as instituting performance management or disciplinary procedures, or implementing a work change, or refusing overtime or TOIL, could be adverse if the employee believes the action was taken because they were exercising a workplace right.
Some examples:
Recent cases heard by Fair Work Australia or dealt with in other jurisdictions have covered situations where managers failed to adequately train staff; where overtime was required without any additional payment; where termination resulted from union activities.
Adverse action claims can be lodged up to 6 years after the event! And the penalties are not limited to, for example, 6 month’s pay for an unfair dismissal. Each breach can result in fines of $33,000 for the organisation and $6,000 FOR INDIVIDUALS.
Oh, and an HR Manager who acts in a way that leads to the adverse action, can also be fined!
Protecting yourself from adverse action complaints requires a disciplined culture of HR and IR compliance: a culture that acknowledges and supports the role of the HR Manager in ensuring line managers adhere to policies and procedures; a culture that trains and supports managers in their decision making and which rewards them accordingly.
Policies and procedures need to be updated and enforced and record keeping needs to be maintained.
HR Managers will need to be especially diligent in ensuring the actions of managers do not lead to claims of adverse treatment: the penalties and consequences are too great.
Adverse action means that just when you think you’ve dealt with an employee and that a workplace problem has been finalised, it hasn’t.
Adverse action means that just when you think the termination for poor performance has been finalised, it hasn’t.
Adverse action means that just when you think you’ve selected your best candidate and that the recruitment process has now been finalised, it hasn’t.
Adverse action means that just when you think all your managers have been trained effectively in how to treat their staff, they haven’t.
In effect, adverse action can result from any situation where an employee has a workplace right and the exercise of that right is impacted in some way or other by decisions of the employer. More significantly, it can occur when decisions are made on behalf of the employer by staff who don’t fully understand the implications of their decision or have not adequately followed a process which led to the particular decision.
The Fair Work Act contains general protection provisions which state that an employer must not take any adverse action against an employee, or contractor or prospective employee or contractor, because that person has exercised or proposes to exercise a workplace right.
Workplace rights are very broad and include, for example, rights as a union member, the right to make complaints about their employment, the right to enquire about terms and conditions of employment, the right to request flexible work arrangements.
An action is adverse if it affects the employee adversely. Any reasonable or normal action taken by the employer in exercising their role, such as instituting performance management or disciplinary procedures, or implementing a work change, or refusing overtime or TOIL, could be adverse if the employee believes the action was taken because they were exercising a workplace right.
Some examples:
Recent cases heard by Fair Work Australia or dealt with in other jurisdictions have covered situations where managers failed to adequately train staff; where overtime was required without any additional payment; where termination resulted from union activities.
Adverse action claims can be lodged up to 6 years after the event! And the penalties are not limited to, for example, 6 month’s pay for an unfair dismissal. Each breach can result in fines of $33,000 for the organisation and $6,000 FOR INDIVIDUALS.
Oh, and an HR Manager who acts in a way that leads to the adverse action, can also be fined!
Protecting yourself from adverse action complaints requires a disciplined culture of HR and IR compliance: a culture that acknowledges and supports the role of the HR Manager in ensuring line managers adhere to policies and procedures; a culture that trains and supports managers in their decision making and which rewards them accordingly.
Policies and procedures need to be updated and enforced and record keeping needs to be maintained.
HR Managers will need to be especially diligent in ensuring the actions of managers do not lead to claims of adverse treatment: the penalties and consequences are too great.
Monday, October 4, 2010
SMALL BUSINESS - URGENT ACTION
WHEN IT COMES TO FAIR WORK, SMALL MEANS BIG
Urgent action is required by small business to address change in definition
The Fair Work Act has defined a small business as one with fewer than 15 employees. Employees may be full time, part time or casuals employed on a regular and systematic basis.
An employee of a small business is unable to pursue a claim for unfair dismissal unless he or she has been employed for at least 12 months.
A small business is also exempted from paying redundancy benefits in the event that the business makes an employee’s position redundant.
These measures have been introduced to assist small business growth and development and to help insulate them from some of the costs which would impede that growth.
Under the provisions of the Act, it is anticipated that as business grow, they will be able to meet the same costs as larger businesses.
However, the definition of small business has another twist: for the period up to 31 December, 2010, the number of employees is calculated according to an assessment of ‘full time equivalent’ status.
This means, for example, a business employing 20 long term casual and part time staff whose total hours over a 4 week period were less than 2280, would be classified as a small business.
If the number of hours was greater than 2280, then it would not be a small business.
From 1 January 2011, the definition applies to head count only. In other words, the business employing 20 casual and part time staff whose total hours over 4 weeks are less 2280, will be a small business because of the total number of people employed.
The implications for many businesses are significant and will force a complete reassessment of the cost structures which apply to the organisation.
In the example given above, there has been no change in the size of the business, no increase in revenue or sales, and no improvement in productivity: all that has changed is the definition.
This business will now be subject to the application of unfair dismissal and redundancy provisions: if it wants to dismiss anyone, it better do it in December and not wait to January!
Australia’s definition of small business defies logic. Whilst other developed economies have a higher headcount figure (for example, 500 in America and 100 in Europe) they usually also have a revenue or profit component as well.
Australia has opted for a simplistic definition – one which will not serve the interests of small business and may act to stifle growth across many industries.
Businesses and organisations which currently operate under the protected definition of 15 FTE have less than 3 months to review their current staffing profile and take the necessary steps to ensure compliance with the new requirements from 1 January 2011.
You will need to act now – contact Ron Jones Consulting for confidential advice and assistance.
Or email ron@rightworkadvice.com.au
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