Category: Employment Lawyers

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.

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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?

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How To Get Help?

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

Remember, be proactive to minimise the risks.

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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.

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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.

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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?

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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.  

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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.

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Thanks to George for this excellent information.

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Workplace Law Explained (For Free)

Did you know these workplace law facts . . . ?

  • Last year there were over 14,000 claims of unfair dismissal.
  • On average, unfair dismissal claims take over 150 days to resolve.
  • Compensation for an employee who suffers from ‘Adverse Action’ is uncapped.
  • In Adverse Action, the onus of proof is against you, the employer.
  • The process of making employees redundant is always a challenging one.

Attend a free ‘Workplace Law Explained’ online briefing with leading Australian employment lawyers.

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Sorry, the webinars have now finished.

Workplace Law

Instead, click here: employment law advice.

Workplace Law Explained

The highly experienced Australian workplace lawyers will talk you through:

  • Unfair Dismissal: What are the risks and what you should do.
  • Adverse Action: What are the risks and what you should do.
  • Redundancies: What are the risks and what you should do.

HRwisdom

 

Workplace Law Employer Briefings

Workplace Law Employer Briefings

HRwisdom recently undertook a survey of Australian employers to find out what were the key issues in the area of workplace law.

The following issues were the clear leaders:

  • Unfair Dismissal
  • Adverse Action
  • Managing Redundancies
  • Managing Underperformers

We have now begun a series of free online employer briefings to help you with these topics.

Update On Workplace Law For Employers

UPDATE: The webinars are now here: Free Employment Law Webinars

 

Good Workplace Law Advice SA

At HRwisdom, as an HR resources website that helps SA businesses with staff and human resources issues, we have high expectations when it comes to providers of good workplace law advice SA.

Good Workplace Law Advice SAThis is particularly important when we continue to face ongoing changes to legislation that affects employers in SA.

This includes pay and conditions, unfair termination, occupational health & safety, anti-discrimination and other such areas.

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Being well-organised and having the right advice before things go wrong is the best thing to manage any business.

 

Good Workplace Law Advice of SA

The types of problems that businesses in SA regularly seek expert advice on include:

  • Handling unfair and adverse action claims
  • Restraint of trade clauses
  • Dealing with} under-performing employees
  • Handling workplace redundancies
  • Drafting of employment contracts
  • Dealing with awards
  • Occupational health & safety incidents
  • Discrimination and harassment claims
  • Fair Work Ombudsman issues
  • Bargaining for enterprise agreements
  • Buying and selling businesses
  • Union representative right of entry
  • Responding to government inspectors
  • And other such legal issues

These are the types of hurdles that can seriously impact on the performance, profitability, and well-being of any employer.

We have been lucky to find a number of friendly and professional workplace law advice firms that really know their stuff.

One of the key things we like about these legal firms is their focus on being proactive so that you can prevent dramas before they arise.

This is important because unfair dismissal claims, employment documentation disputes and other such hassles tend to appear just when your major report is due or just as you’re about to give a significant briefing.

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Having your workplace systems and processes audited and properly in place is definitely the best way to prevent the majority of workplace claims and disputes.

Good Workplace Law Advice in SA

Whilst it is your decision which lawyer you use, HRwisdom trusts and enjoys dealing with these smart, pleasant and on the ball workplace legislation advisors.

You can find their contact details right here:

Click here to see your: Local Employment Law Experts

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Good Workplace Law Advice in SA Related Video

 



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Employment Law and Social Media Part 2

In this HRwisdom Blog post, we bring you the second half of our article on employment law and social media.

Employment Law and Social MediaThe post comes courtesy of Tim Capelin, a Partner based in the Sydney office of law firm Piper Alderman.

Tim has acted for leading organisations in most industry sectors including food and beverage, retail, health & hospitality, pharmaceutical, logistics, resources, construction, government, finance and insurance. He frequently presents on workplace law topics, is a regular contributor to industry and legal publications and is sought by the media for comment on workplace law issues.

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Over to Tim for the second half of his HRwisdom Blog update on employment law and social media . . .

When drafting a social media policy, the content should be organisation specific to a certain degree, but should address the following topics:

  • A definition of social media.
  • Your organisation’s view of and approach to social media.
  • Who is authorised to use social media as a representative of the organisation.
  • If authorised to represent the organisation within social media, what guidelines should be followed.
  • Whether non-authorised people are allowed to identify themselves as someone connected with the organisation when using social media in their private lives.
  • Whether access to social media will be allowed during work hours and if so, what limits should be followed.
  • How the organisation will monitor usage and what it will do with information gained from such monitoring.
  • The need to protect the organisation’s confidential information.
  • Whether employees have a positive obligation to inform the organisation if they become aware, even in their private use of social media, of comments made about the organisation.
  • Potential ramifications of breaching policy.
  • Who the policy applies to, namely does it only apply to employees or does it apply to all workplace participants.

Further to Tim’s excellent advice, HRwisdom always recommends that employers be proactive and plan ahead.

Such an approach is just smart business, particularly when it comes to the new world of social media.

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To get in touch with Tim Capelin, you can find his contact details here: employment law advice Sydney.

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The Australian Union Movement vs Monty Python

In a recent HRwisdom Blog post, we looked at how industrial action and strikes in Australia are measured and reported.

We also looked at the recent change in the number of working days lost to industrial action.

The article drew on information from both the ABS (Australian Bureau of Statistics) and the Sydney Morning Herald.

To see the specific HRwisdom Blog post, click here: Strike Action On The Rise?

Australian Unions Re-Work A Classic

Australian Union CampaignHowever, as a sidebar, our investigation into Australian strike activity led us to a golden oldy from an old union campaign.

The union movement’s ‘YourRights At Work’ was, by most assessments, an extremely successful media campaign which had a significant impact on Australian politics at the time.

Here at HRwisdom we’re wondering if the video below rings any bells for fans of Monty Python?

If so, feel free to share this excellent re-working of an old classic.

Enjoy . . .

Warning: A couple of rude words make an appearance during the video.

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Strike Action On The Rise?

With high profile strikes being seen in recent times in the education sector, aviation industry as well as the construction sector, HRwisdom has taken a quick peek at what’s actually happening from a numbers perspective.

This investigation also led us to a golden oldy…

How Strikes Are Measured In Australia

The Australian Bureau of Statistics (ABS) produces regular updates on industrial action and strikes in Australia.

ABS Strike Activity Statistics

Here’s how the ABS measures industrial disputes in Australia . . .

The Industrial Disputes (ID) collection produces quarterly statistics on the number of industrial disputes, employees involved in industrial disputes, working days lost and working days lost per thousand employees where at least ten working days are lost as a result of the dispute.

The following types of industrial disputes are within the scope of the ID collection:

  • unauthorised stopwork meetings;
  • general strikes;
  • sympathetic strikes (e.g. strikes in support of a group of workers already on strike);
  • political or protest strikes;
  • rotating or revolving strikes (i.e. strikes which occur when workers at different locations take turns to stop work);
  • unofficial strikes;
  • work stoppages initiated by employers (e.g. lockouts).

Excluded from the scope of the collection are work-to-rules, go-slows and bans (eg. overtime bans).

Also excluded are effects of disputes on locations other than where the stoppages occurred, such as stand downs because of lack of materials, disruption of transport services and power cuts.

Knowing the categories and definitions is useful to understanding what’s going on for employers.

Highest Number of Working Days Lost To Industrial Action Since 2004

Now let’s turn our attention to what’s actually happening in the bigger picture.

According to the Sydney Morning Herald which reviewed the recent ABS data release:

“The highest number of working days lost to industrial action since June 2004 was recorded in the June 2012 quarter.

A total of 101,700 working days were lost in April, May and June – almost three times more than in the March quarter.

They involved 70,000 employees in 53 disputes.

In the 12 months to June, the number of disputes dropped by one from the previous year, but almost double the number of working days were lost.”

A Golden Oldy From The Union Movement

Finally, as mentioned above, this investigation into Australian strike activity led us to a golden oldy from an old union campaign.

Enjoy . . .

Warning: A rude word makes an appearance during the video.

Share/Like This

As always, feel free to Like/Share this HRwisdom Blog Post on Facebook and Twitter.

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