Category: Employment Law Advice (page 1 of 4)

Check Out This Industrial Relations Podcast

If you have an interest in Australian employment law but find it hard to keep up with the latest developments, The IR Simplified Podcast could be just what you’re after.

Hosted by Industrial Relations specialist Cameron Blewett, the podcast is going from strength to strength as it covers a range of employment issues.

The show is relaxed and informal whilst covering a range of industrial relations challenges such as: IR Simplified Podcast

  • Practical application of employment law
  • Sick leave issues
  • Enterprise agreements
  • Union behaviour (and misbehaviour)
  • Organisational change
  • Employee engagement
  • Policy drafting and implementation
  • Workplace investigations
  • Unfair dismissal
  • Organisational development
  • Performance management challenges

You can access the podcast here.

You may want to subscribe and then listen to the episodes during your commute – a great way to keep up to date whilst making the best use of travel time.

Enjoy the podcast.

What Does ‘Reasonably Practicable’ Mean In Australia’s Workplace Health & Safety Act? [& Free WHS Guide]

What Does ‘Reasonably Practicable’ Mean In Australia’s Workplace Health & Safety Act? [& Free WHS Guide]

Many Australian business managers and HR professionals have struggled with the question of what is ‘reasonably practicable’ when it comes to the national model workplace health & safety obligations? What Does 'Reasonably Practicable' Mean

The Workplace Health & Safety Act requires that everyone is given the highest level of health and safety protection from hazards arising from work, as far as ‘reasonably practicable.’

There are a number of factors to consider when deciding what ‘reasonably practicable’ actually means.

NEED SOME HELP WITH YOUR DUE DILIGENCE OBLIGATIONS? 

Click here to get a free half-hour telephone consultation with a safety expert to analyse your due diligence obligations. You’ll be able to ask questions and leave with a customised due diligence action plan to use straight away to protect your business. Click Here To Get Your Free Due Diligence Action Plan.

Here’s what the Government has to say about what is ‘reasonably practicable’ when it comes to the employer’s workplace health & safety obligations:

  • „The likelihood of a hazard or risk occurring (in essence the probability of a person being exposed to harm).
  • „The degree of harm that might result if the hazard or risk occurred (in essence the potential seriousness of injury or harm).
  • „What the person concerned knows, or ought to reasonably know, about the hazard or risk and ways of eliminating or minimising it.
  • „The availability of suitable ways to eliminate or minimise the hazard or risk.
  • The cost of eliminating or minimising the hazard or risk. Costs may only be considered after assessing the extent of the risk and the available ways of eliminating or minimising the risk. Ordinarily cost will not be the key factor in determining what it is reasonably practicable for a duty holder to do unless it can be shown to be ‘grossly disproportionate’ to the risk. If the risk is particularly severe a PCBU will need to demonstrate that costly safety measures are not reasonably practicable due to their expense and that other less costly measures could also effectively eliminate or minimise the risk.

Finally, if you are looking for more information on the national model workplace health & safety legislation, download the government guide here.

Remember To Get Your Free Due Diligence Action Plan

Click here to get a free half-hour telephone consultation with a safety expert to analyse your due diligence obligations. You’ll be able to ask questions and leave with a customised due diligence action plan to use straight away to protect your business. Click Here To Get Your Free Due Diligence Action Plan.

HRwisdom

Pros And Cons Of Zero Hour Contracts

Pros And Cons Of Zero Hour Contracts

HRwisdom looks at workforce-related issues around the world.

Today, HRwisdom contributor Joe Errington looks at the pros and cons of zero hour contracts in the UK.

Don’t forget to access all the latest free HRwisdom resources and special gifts – just click here.

Over to Joe . . .

Zero Hour Contracts Examined

New research claims that one million British workers are employed on zero hours contracts. Under these, they are not guaranteed hours and are only paid for the work they put in. Is this a fair system though? What are the benefits and drawbacks? Is there a better solution for businesses?

A zero hour contract is essentially a formal agreement of casual employment. As the name suggests, employees are given a proper contract but with no set hours. In difficult times, it is useful for employers to have this kind of flexibility, but it can be open to abuse.

Retailer Sports Direct has found itself thrown into the stoplight again following the revelations that 90% of its staff are employed this way. With many workers at Sports Direct’s beck and call, not knowing from one day to the next whether they will be working, many have been quick to point the finger and accuse them of exploitation.

So are workers being exploited, or is this an essential means of fighting unemployment? Here are the main arguments for and against the zero hour contract.

Flexibility

Zero hours contracts allow small and mediums sized companies to cope with varying demand. In consumer facing industries, you cannot know for sure how busy you will be tomorrow, and zero hour contracts are a way of reducing overheads and minimising risk.

It is this kind of flexibility that kept many people in jobs during the worst of the recession. Where full time contracts would have required redundancies, zero hours allows employers to shave a little time off everyone’s workload, reducing the wage bill without any drastic measures.

Motivation

Both employers and employees will relay their frustrations at lazy or unmotivated colleagues. In the same way that a zero hour is open to abuse from employers, full-time contracts can be abused by employees.

Unproductive workers cost companies thousands, and heap more pressure on their colleagues. As a result, many employers are reluctant to offer staff a full-time contract unless they are 100% sure they are right for the job. Another way which zero hour contracts help to minimise risk.

Better Than Casual

Most UK companies will need to employ casual labour at some point; whilst technically illegal, this is necessary and should be tolerated to a point.

The casual labour market costs the government millions in unpaid tax though. Zero hour contracts are a way of bringing this back above ground, recouping money for the government and helping to protect worker’s rights.

Exploitative

In times of economic hardship, more people are willing to take any job available to them. Many unscrupulous employers know this and use zero hours contracts as a way of reducing costs at the expense of their employees.

By employing people this way, they can get around many employee’s benefits which we now take for granted. Sick pay, holidays and pensions are all avoided, affecting the financial security of many workers.

Damages Economy

Workers who do not feel financially secure are less likely to spend money. The decision to buy a home for example, will be put back for a few more years, hindering our economic growth.

With the lack of quality, secure jobs available, there is little incentive for people to get back to work. Although living off benefits is not ideal, it is much more stable than a job with no guaranteed hours.

The Solution

Employers, unions and the government need to come together to reach an agreement that is in everyone’s best interests. There are ways in which a company can stay flexible, without compromising job security.

Flexible hours contracts allow employers tailor their rotas to meet varying demand, while at the same time offering their staff a guaranteed income. For smaller businesses, or those affected by seasonal changes, this can be an ideal way of reducing risk for both their employees and themselves.

For larger organisations, outsourcing peripheral parts of their business may be the answer. Specialist facilities management services can take care of tasks such as cleaning, catering and security, allowing companies to offload the risk and focus on their core functions.

HRwisdom

Joe Errington is a marketing executive for MITIE, a strategic outsourcing company who specialise in facilities management.

Australian 457 Temporary Work Visa Controversy [Watch The 30 Second Video]

Australian 457 Temporary Work Visa Controversy [Watch The 30 Second Video]

Skilled migration to Australia and employer-sponsored work visas is an area that can become a political battleground when politics gets involved.

With the federal election campaign in full swing, the Australian 457 temporary work visa debate continues to rage. Australian 457 Temporary Work Visa

The powerful construction union, the CFMEU, is continuing its million dollar anti-457 employer-sponsored work visa campaign.

HRwisdom previously shared an entertaining video produced by the union movement for a previous election campaign.

This CFMEU campaign features the anti-457 work visa video shown below.

Need answers to any of your questions about individual or employment-related Australian visas?

You can get them for free from a migration expert thanks to HRwisdom.

For free migration visa advice, click here: Australian visa advice.

Australian 457 Temporary Work Visa Video

The CFMEU’s anti-temporary work visa video in Australia:

Remember, to get free migration visa advice for individuals and employers, click here: Australian visa advice.

The Temporary Work (Skilled) visa (subclass 457) allows skilled workers to come to Australia and work for an approved business for up to four years. The employee must be sponsored by an approved business. A business can sponsor someone for this visa if they cannot find an Australian citizen or permanent resident to do the skilled work. The person can be in or outside Australia when the application gets lodged.

According to the Australian Government, the person must meet several criteria:

  • Be nominated  to work in an approved occupation on the Skilled Occupation Lists (Formerly Known as Form 1121i)
  • Meet the skill requirements for the nominated occupation
  • Meet registration and licensing obligations
  • Speak vocational English
  • Have been nominated by an approved business.

 

Free Australian 457 Temporary Work Visa Advice

Have your questions answered regarding all Australian visa types.

For free workplace visa advice, click here: Australian visa advice.

HRwisdom

 

Recent Job Losses In Australia [Plus Free Interview On Managing Redundancies]

It’s been a rough few weeks for redundancies and job losses in the Australian labour market. Job Losses Image

Today we’re looking at the recent announcements.

We’re also sharing another helpful free HRwisdom resource on the right way to handle redundancies.

Before we get started, you may also be interested in these other HRwisdom articles (they will open in a new window):

Bizarre – Why Did They Fire This Punctual, Top Performing Employee?

Free Information Sessions On Workplace Law For Employers

How To Really Freak Out Your Workforce

Recent Job Losses

This week, it was announced that the national cleaning company Swan Services was going into administration with the loss of nearly 2500 jobs.

Nine hundred of those job losses were in NSW and 578 were in Victoria.

A further 583 people lost their jobs in Queensland, 184 in Western Australia, 156 in South Australia and 64 in the ACT.

Job Losses Australia

The Sydney Morning Herald reported that the union was now involved:

[quote] The national president of the union United Voice, Michael Crosby, yesterday said Swan had been one of the five biggest cleaning businesses in the country, and its woes followed a string of collapses in the industry. “Swan Services could potentially owe cleaners hundreds of thousands of dollars in entitlements, including annual leave, sick leave, unpaid wages, superannuation and we want to ensure they are protected,” Mr Crosby said.[/quote]

To add to these woes, Ford Australia announced major job losses in its Victorian operations. 

The Age summarised the job losses in this media report

[quote]Ford Australia has announced it will slash jobs — and production — at its Broadmeadows and Geelong plants by almost a third as slow sales of its Falcon large family car bite hard. The company today announced up to 440 workers, mainly from its factories, would be offered voluntary redundancies as part of a massive restructure of its workforce taking place over the next three months.[/quote] 

The public sector isn’t safe either, it would seem according to the Federal Opposition Leader Tony Abbott in his recent Budget reply speech (although he says it will happen through natural attrition):

[quote]”We’ve announced that we’ll reduce by at least 12,000, through natural attrition, the size of the Commonwealth public sector that’s now 20,000 bureaucrats bigger than in 2007.” [/quote]

Difficult times indeed.

The Right Way To Handle Redundancies

For any employer seeking advice on how to handle redundancies and job losses, we recommend you listen to our excellent redundancies information interview.

The interview is free and it provides you with thoughtful insights into how to manage redundancies without destroying all employee goodwill.

HRwisdom

Australian Government Gives $20 Million To Combat Workplace Bullying [So Here’s Your Free Workplace Bullying E-Learning Module]

Workplace Bullying is a major problem in all economies. Workplace Bullying E-Learning

The Australian Government estimates that workplace bullying costs the national economy over $36 million dollars per year in lost productivity.

As a result, the recent Federal Budget allocated over $20 million dollars to the Fair Work Commission so that it could do more in this troublesome area.

Free Workplace Bullying E-Learning Module

HRwisdom has a special limited-time bonus: One week of free E-learning for employers.

Please Note: This special bonus is only available within Australia.

HRwisdom has arranged for you to get one free week’s use of one of Savv-e’s popular compliance training modules, including the excellent module on workplace bullying.

Obviously, this bonus will only be available for a very limited time.

We suggest you grab the workplace bullying module right now.

Get Your Free Workplace Bullying E-Learning Now

Workplace Bullying E-Learning

If you would like one week’s free use of one of the online compliance modules we have chosen for HRwisdom, fill in the form below

This bonus will only be available for a very limited time so we suggest you grab it now.

Feel free to forward this message on to your friends and colleagues.

To request the free trial, please put your contact details and your preferred training module in the box below.

Request Your Special 1 Week Free E-Learning Module Now 


HRwisdom

 

Workplace Sexual Harassment [Powerful Video]

A major issue for any employer is how to prevent workplace bullying and sexual harassment.

Under Occupational Health and Safety and anti-discrimination law, employers have a legal responsibility to provide a safe workplace.

This short video explains:

  • What is workplace sexual harassment.
  • The social and economic effects
  • What employers should do.

Feel free to share the video with friends and colleagues using the sharing buttons below.

 

 

Get $30 and a free transfer when you use CurrencyFair to send money overseas via this special HRwisdom offer code: https://www.currencyfair.com/?channel=RCFL11

Get $30 and a free transfer when you use CurrencyFair to send money overseas via this special HRwisdom offer link.

 

Workplace Sexual Harassment Video

 

Remember, it is important to be proactive when it comes to this area.

The Australian Human Rights Commission explains:

[quote] Employers have a duty of care for employee health and well-being whilst at work. Any employer that allows bullying to occur in the workplace is not meeting this responsibility.  Workplace bullying is verbal, physical, social or psychological abuse by your employer (or manager), another person or group of people at work. Workplace bullying can happen in any type of workplace, from offices to shops, cafes, restaurants, workshops, community groups and government organisations. Workplace bullying can happen to volunteers, work experience students, interns, apprentices, casual and permanent employees. Some types of workplace bullying are criminal offences. [/quote]

For more information, click here to download a government resource for employers.

The resource aims to assist small, medium and large employers to understand and meet their legal obligations under the Sex Discrimination Act. It also provides practical guidance on how employers can prevent sexual harassment and how to respond effectively when it occurs. In addition, the resource discusses recent legal developments concerning workplace sexual harassment and canvasses some of the new and innovative approaches to addressing sexual harassment.

Legal Responsibilities of Employers [Checklist]

The Australian Government regularly makes changes to the legal responsibilities of employers, particularly in the area of wage rates.

Today we are sharing a government checklist of the legal responsibilities of employers.

[box type=”alert”]

FREE WORKPLACE LAW ONLINE BRIEFINGS: 

See available session times here: Free Workplace Law Briefings For Employers [/box]

Legal Responsibilities of Employers – A Checklist

1. Are you providing the National Employment Standards (NES) that are relevant to your employees?

  • 38 hour standard week Legal Responsibilities of Employers
  • Unpaid parental leave 
  • 10 days paid personal/carer’s leave 
  • Notice of termination and redundancy 
  • Long service leave 
  • Flexible working arrangements 
  • 4 weeks paid annual leave 
  • Community service leave 
  • Public holidays 
  • Fair Work Information Statement

2. Do you know the award(s) or agreement (if any) that covers your business?

3. Do you know how to find the rates of pay from your award or agreement?

4. Do you know the correct:

  • penalty rates? 
  • casual loadings (if any)? 
  • overtime payments? 
  • meal breaks? 
  • allowances (e.g. uniform, travel)?

5. Are you providing accurate time and wage records for you employees?

Do you:

  • record start and finish times? 
  • keep time and wage records for seven (7) years?
  • provide pay slips within one (1) 
  • working day of employees being paid? 
  • know what to include on a pay slip? 
  • maintain a record of leave entitlements?

6. Do you know about your responsibilities when dismissing staff including:

  • unfair dismissal laws? 
  • what to do if a position becomes redundant? 
  • minimum notice periods? 
  • final payment requirements?

7. Do you know what an Individual Flexibility Arrangement is?

8. Are you aware of your options for making an enterprise agreement with employees?

9. Are you aware that the Fair Work Act 2009 provides General Protections including the right to be free from unlawful discrimination, undue influence, coercion and misrepresentation?

[box type=”alert”]

FREE WORKPLACE LAW ONLINE BRIEFINGS: 

See available session times here: Free Workplace Law Briefings For Employers [/box]

How To Get Help?

If you have questions you need answering, you have two main options:

Remember, be proactive to minimise the risks.

HRwisdom

Conflict and Resolution At Work – Some Government Advice

Today we are looking at the issue of conflict and resolution at work and we are sharing some handy government advice.

Thanks to regular HRwisdom contributor Wendy Takasch for sharing this very useful information.

Over to Wendy . . .

Conflict and Resolution At Work

The challenge of running a business successfully can be very intense for anyone, no matter the person.

Conflict and Resolution at WorkThere is a substantial amount of work that goes into running a business and it can take its toll. In some cases it can all become a bit much, especially when it comes to areas such as employment and staff management.

So how do we manage our employees? Is there a correct way?

We can talk all day long about all the ‘right’ way to manage employees but in reality there is no one definite answer to offer.

The reason being is that every business is different and what works for you may not necessarily work for another company.

[box type=”alert”]

FREE WORKPLACE LAW ONLINE BRIEFINGS: 

See available session times here: Free Workplace Law Briefings For Employers [/box]

There are of course certain jurisdictional and industry guidelines and obligations that each and every employer must abide by in respect to employees and their entitlements (if you don’t know them, maybe you should go check them out). These obligations are vast and it is important to not cut corners when it comes to employees or you may find yourself with more disputes then you can poke a stick at! Excuses won’t cut it, so we encourage you to do the right thing by your business and your employees.

The following tips, presented by Nicholas Wilson of the Australian Fairwork Ombudsman (and a little help from us) are excellent starting points to managing employees and keeping a positive and conflict free workplace;

  • Always abide by state and federal legislation and obligations
  • Keep all records regarding every employee 
  • Make sure there is open communication in the workplace (make sure nobody feels discouraged or that they are talking to a brick wall!)
  • Lead. Have a good leadership program in place that motivates and engages employees and keeps them happy and productive.
  • Encourage expressions of opinions. Other people hold opinions that might not match your own. 
  • Focus on the interests of people rather than personalities and job positions 
  • Make all instructions and procedures, such as grievance and harassment, clear and easily accessible
  • Look out for people’s emotions. It doesn’t mean you have to be their counsellor, or best friend, but make a conscious effort to try and understand someone else’s point of view and feelings

As always, be proactive when it comes to conflict and resolution at work and managing your workforce will always be just that little bit easier.

[box type=”alert”]

FREE WORKPLACE LAW ONLINE BRIEFINGS: 

See available session times here: Free Workplace Law Briefings For Employers [/box]

HRwisdom

 

 

Employment Restraint of Trade – Advice From A Lawyer

Writing an employment contract? In this special article, a guest expert takes a look at the concept of employment restraint of trade.

George Haros is a highly experienced workplace lawyer and today he is answering some tricky employment contract questions:

  • What is a restraint of trade clause?
  • What should we make of the Emeco v O’Shea case?
  • Will your restraint of trade clause be enforced?
  • What you can do to get it right?

[box type=”alert”]

FREE LEGAL BRIEFINGS: 

See available session times here: Free Workplace Law Briefings For Employers [/box]

Over to George . . .

What is an employment restraint of trade clause?

An employment restraint of trade clause is commonly found in an employment agreement and used by employers in an attempt to protect the employer’s business interests.

Employment Restraint of TradeWhy is a restraint of trade clause important?

A restraint of trade clause attempts to regulate an employee’s conduct while still engaged in the employment relationship or a former employee’s conduct once the employment relationship has ended.

However, employers must also take extreme care when considering the inclusion of such restraint clauses.

Where the clauses are ambiguous or too broad, a court may find the restraint unenforceable.

The main principle is that the restraint can only be upheld if it protects the legitimate interests of the employer, and the clause is not wider than is reasonably necessary to protect those interests.

Although there is no precise rule as to what restraint terms are considered reasonable; what is required in each case is an evaluative judgement taking into account the specific circumstances of each party and their relationship.

The Emeco v O’Shea Case

The recent case of Emeco v O’Shea [2012] WASC 348 demonstrates how the Courts of Western Australia have considered restraint clauses.

Emeco v O’Shea [2012] WASC 348 Facts: Emeco operated in the highly competitive industry of dry hiring mobile mining equipment in Australia and internationally.

Mr O’Shea was employed by Emeco as a business development manager for 21 months.

As a senior employee, he built up close relationships with important clients of Emeco and was entrusted with confidential information.

After Mr O’Shea resigned from Emeco, he immediately took up employment with one of Emeco’s major competitors, National Plant and Equipment (NPE). Emeco sought an injunction to enforce the restraints in Mr O’Shea’s employment contract, amongst which he would be prevented from working for Emeco’s competitors, soliciting any of its clients, or providing services to any of its clients within Western Australia, for a period of 6 months after the termination of employment.

The Decision: Endelman J accepted that Emeco’s legitimate interests included its customer connections and confidential information, and Emeco was entitled to restrain its employees to the extent necessary to protect its legitimate interests.

The Court found that in Mr O’Shea’s role as a business development manager at Emeco, he retained confidential information about the business and its individual clients, which could be used to the detriment of Emeco.  

[box type=”alert”]

FREE WORKPLACE LAW ONLINE BRIEFINGS: 

See available session times here: Free Workplace Law Briefings For Employers [/box]

On that basis, the Court held that it was reasonable for Emeco to restrain Mr O’Shea from undertaking employment with any competitor, including NPE, for a period of 6 months. However, the non-solicitation and client restraints were found to be unenforceable due mainly to the broad definition of “client”, which covered both actual and potential customers of Emeco, and were not limited to those with whom Mr O’Shea had personal contact.

The Court was therefore of the opinion that these restraints could go further than was reasonable to protect the legitimate interests of Emeco in protecting those customer connections developed by the employee. As a part of its judgment, the Court also considered the fact that the restraint clauses were subject to the express qualification that Mr O’Shea will not engage in the restrained activities “without the prior written consent of Emeco”.

This qualification implies that Emeco would not unreasonably withhold consent, and was a factor that played some part in the Court’s determination that the competitor restraint was reasonable. However, the Court also noted that such qualification could not operate to make a very wide restraint clause enforceable.

Will your restraint of trade clause be enforced?

Based on the case law in this area it is clear that whether or not your clause will be enforceable will depend on the construction of the restraint clause and of course, the circumstances.

The onus is on the employer to prove that the restraint clause is valid and enforceable where a business can demonstrate that it has a legitimate interest to protect and that the clause is reasonable.

What you can do to get it right?

Consider:

  1. Is there a genuine and legitimate interest that needs protecting?
  2. Is your restraint clause for a time period that is longer than necessary to protect that interest?
  3. Does the restraint clause cover a geographical area that is larger than necessary to protect that interest?
  4. Take particular care to ensure that the restraint is not so broad as to prevent the employee from working at all; and For Employers, seek advice on the construction of your clause.

[box type=”alert”]

FREE WORKPLACE LAW ONLINE BRIEFINGS: 

See available session times here: Free Workplace Law Briefings For Employers [/box]

Thanks to George for this excellent information.

HRwisdom

Older posts