Good Workplace Law Advice Victoria – HRwisdom

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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 


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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?

[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

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.

Webinars Now Closed

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

 

Understanding The Reasons Why Employees Underperform

Employers often ask us for information on the reasons why employees underperform.

Reasons why employees underperformToday the HRwisdom Blog is sharing some useful information for you to use.

However, first we should remind you to always seek legal advice before you commence any performance management proceedings which might ultimately end in termination of employment.

Depending on your location, click the appropriate link to get our recommendations for specific workplace law advice:

Each of the sites above contain a link to a free downloadable performance management documents, HR templates including a written warning letter template for you to use in your organisation.

As for information and hints on how to handle employee underperformance, we recommend following the details below as advised by Fair Work Australia.

Underperformance or poor performance can be exhibited in the following ways:

  • Unsatisfactory work performance, that is, a failure to perform the duties of the position or to perform them to the standard required
  • Non-compliance with workplace policies,
  • Rules or procedures
  • Unacceptable behaviour in the workplace
  • Disruptive or negative behaviour that impacts on co-workers.

Underperformance is not the same as misconduct.

Misconduct is very serious behaviour such as theft or assault which may warrant instant dismissal.

In cases of misconduct employers should seek specific legal advice about how to proceed before taking any action.

What are the reasons why employees underperform? 

There are many reasons why an employee may perform poorly.

Some of the common reasons include:

  • An employee doesn’t know what is expected because goals and/or standards or workplace policies and consequences are not clear (or have not been set)
  • Interpersonal differences
  • There is a mismatch between an employee’s capabilities and the job they are required to undertake, or the employee does not have the knowledge or skills to do the job expected of them
  • An employee does not know whether they are doing a good job because there is no counselling or feedback on their performance
  • Lack of personal motivation, low morale in the workplace and/or poor work environment
  • Personal issues such as family stress, physical and/or mental health problems or problems with drugs or alcohol
  • Cultural misunderstandings
  • Workplace bullying.

Underperformance should be dealt with promptly and appropriately by an employer, as employees are often unaware they are not performing well and so are unlikely to change their performance.

Best practice employers understand that issues that are not addressed promptly also have the potential to become more serious over time. This can have a negative effect on the business as a whole as it can affect the productivity and performance of the entire workplace.

Helpful hints

Dealing with underperformance can be challenging and confronting for employees and employers alike, but it does need to be addressed.

Managers need clear procedures, organisational support and the courage and willingness to manage the issue.

Provide training to managers on how to handle underperformance issues. It may be helpful to include role play workshops in the training material so that managers can learn how to approach matters in real-life scenarios. Well trained managers are better able to identify and address issues of underperformance.

If performance problems arise, it is crucial that they be resolved early. The longer that poor performance is allowed to continue, the more difficult a satisfactory resolution becomes, and the more the overall credibility of the system may suffer.

Not every underperformance issue needs a structured process. Explore other options for improving performance, such as the use of continuous feedback.

Remember that for performance management to be successful, the culture of the business should be one which encourages ongoing feedback and discussion about performance issues in open and supportive environments.

Ultimately, of course, an employee may choose to submit a complaint or claim against you (e.g. unfair dismissal, discrimination) even if you follow a very clear and proper process.

This is why we recommend you seeking early expert advice from here:

HRwisdom

Free Information Sessions On Workplace Law For Employers

HRwisdom will soon be rolling out free information sessions on workplace law for employers on a variety of employment law topics. Click to tweet this to your colleagues.

Update On Workplace Law For Employers

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

 

 

For a short time only, you will be able to tell us which topics you would like our guest experts to discuss.

To request a particular topic or vote on the broad topics below, please click here.

When the free employer briefings are ready, we will let you know by email.

So, make sure you have used the form over on the right to keep informed.

  • Unfair DismissalFree Information On Workplace Law For Employers
  • Managing Redundancies
  • Adverse Actions Claims
  • Enterprise Agreements
  • Contracts of Employment
  • Organisational Restructuring
  • Divestments. & Acquisitions
  • Workplace Health & Safety
  • Workers Compensation
  • Trade Unions
  • Managing Underperformers
  • Modern Awards
  • Employment Law For Small Business
  • Employment Law For The Public Sector

Employment Law Advice Video


HRwsidom

Download End Of Probation Letter (Unsuccessful) Template

At HRwisdom, we always recommend being proactive and having standard employment contracts, employee letters and Human Resources policies and procedures ready so that you can manage your staff properly in the eyes of the law.

End Of Probation LetterWe also know that managing staff can take up so much of your time.

So, HRwisdom has made things a little easier for you:

We have found for you a free download of an End of Probation Letter template to be used for an unsatisfactory employee.

You can download this unsatisfactory employment probation letter template for free. (Click here to Tweet this free download) More on this below.

We have also discovered a paid service which gives you all the staff management policy and procedure templates you need. To learn more, click here.

Due to the complexity and ever-changing nature of workplace law in Australia, HRwisdom often draws upon legal experts to provide high quality workplace relations advice through the HRwisdom Blog and through other methods.

You are encouraged to take good advantage of the resources shared on this site and to always be proactive when it comes to staff-management in general.

End of Probation Letter Template For Unsuccessful Employees

Just download the template, just login using your normal email address (no password required).

HRwisdom

New HR Infographic On The Right Way To Create Employment Contracts

Recently, here on the HRwisdom Facebook Page, we shared a new HR infographic explaining the right way to create employment contracts.

The new HR infographic explains the key elements to ensuring that you have a good employment contract development process in place. Tweet This Infographic New HR Infographic - How To Create Employment Contracts

The picture quickly outlines aspects such as:

  • Drafting your employment contract.
  • Understanding minimum entitlements.
  • Legal advice on social media and other tricky areas.
  • How to explain the contract to your new employee.
  • The employee contract review process.
  • Documenting the agreement.

The diagram is a very handy guide for any organisation trying to ensure that there are no hiring contract issues down the track.

Interested? Jump over to the HRwisdom Facebook Page now to see the new HR infographic.

For more workforce management information, watch the following HR video:


Local Workplace Law Advice For Employers

HRwisdom

 

Do You Agree That Australia’s Employment System Needs This Change?

A recent edition of The Australian newspaper led with a strong call for change to Australia’s employment system.

Australia's Employment SystemThe editorial was up-front and very clear in its argument that the workplace relations system was unwieldy, complex, and very costly in a variety of ways.

As part of its case, the newspaper quoted a study which found that four out of five employers felt the current labour laws had made business more difficult.

Here’s a brief extract of the editorial – we wonder what you think?

Here’s something for politicians to think about on the beach. Who is benefiting from Australia’s inflexible industrial relations system? Not the young workers and other casual staff missing out on shifts in shops, hot bread kitchens and cafes across the suburbs and even in tourist areas. Not their employers who find it more economical to close over the holiday season than pay the prescribed $40, $50 or more an hour. And not the customers paying more in the outlets that are open.

For five years, Julia Gillard’s Fair Work system has unwound 20 years of hard-won industrial relations reforms achieved primarily by the Howard government, but also by the Hawke-Keating governments, that encouraged decentralisation and insisted on workplace efficiencies in return for wage rises.

For the sake of prosperity over the next 20 years, especially in the slower sectors of the two-speed economy such as retail, tourism and manufacturing, both sides of politics must focus in the new year on more productive workplace relations.

The editorial then moved on to describe the expected consequences of not making changes to the national industrial relations system:

Youth unemployment in parts of Australia is already close to 20 per cent and will worsen as the economy slows. Tweet this statistic

As reported yesterday, a survey of 562 small and medium-sized businesses in NSW, Victoria and Queensland found that four out of five employers said the current labour laws had made business more difficult because of the compliance costs and complexity associated with the Fair Work Act (tweet this statistic) and the modern award system. One respondent to the survey, Mudgee-based earthmoving business Kodiak, spent $30,000 on legal fees to negotiate the intricacies of the act to strike an enterprise bargaining agreement with drivers and equipment operators. Tweet this statistic

Nor has Fair Work ushered in the harmony promised by Labor. Strikes in the construction industry, as well as in state public services, pushed the number of working days lost in the September quarter to their highest level in eight years. Tweet this statistic

The newspaper editorial continued with further such arguments and there was no sitting on the fence. It’s worth a read.

In an election year, we can be sure that Australia’s employment system will be up for a lot more intense scrutiny and debate.

We’ll keep you posted . . .

HRwisdom

Best Employment Law Advice Australia

Best Employment Law Advice Australia

At HRwisdom, as an HR resources website that helps Australian organisations with staff and human resources issues, we have high standards when it comes to the best providers of employment law advice in Australia.

Best Employment Law Advice AustraliaThis is especially important when we continue to face ongoing changes to legislation that affects employment across the country.

This includes pay and conditions, unfair dismissal, OHS, anti-discrimination and other such areas.

[box type=”note”]Click here to see your: Best Employment Law Advice Australia [/box]

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

There are many types of employment-related problems that employers in Australia regularly face.

These types of challenges that can seriously affect the performance, profitability, and standing of any business.

HRwisdom have been fortunate to find a selection of friendly and professional workplace law advice firms that really know their stuff.

One of the big things we prefer 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, hiring contract disputes and other such hassles tend to appear right when your all-important report is due or just as you’re about to give a major briefing.

[box type=”note”]Click here to see your: Local Employment Law Experts [/box]

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

Best Employment Law Advice in Australia

Whilst it is up to you which lawyer you use, HRwisdom trusts and enjoys working with these smart, friendly and forward-thinking employment legislation firms.

You can find their background information right here:

Click here to see your: Local Employment Law Experts

HRwisdom

Best Employment Law Advice in Australia Related Video

 



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Good Workplace Law Advice Victoria

At HRwisdom, as an advisory website that helps Victoria organisations with staff management and human resources issues, we have high standards when it comes to providers of good workplace law advice Victoria.

Good Workplace Law Advice VictoriaThis is especially important when we continue to face ongoing changes to legislation that affects employment in Victoria.

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

[box type=”note”]Click here to get: Victorian Employment Law Advice [/box]

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

 

Good Workplace Law Advice of Victoria

The types of {problems|topics|issues} that {businesses|organisations|employers} in Victoria regularly seek {trusted|expert|well-considered} advice on include:

  • {Handling|Managing|Dealing with} unfair and adverse action claims
  • Restraint of trade clauses
  • {Handling|Managing|Dealing with} under-performing employees
  • {Handling|Managing|Dealing with} workplace redundancies
  • Drafting of employment contracts
  • {Correctly following|Working with|Dealing with|Interpreting} awards
  • {Occupational|Workplace} health & safety incidents
  • Discrimination and {bullying|harassment} {claims|allegations}
  • Fair Work Ombudsman {issues|claims|investigations}
  • {Bargaining for|Negotiating|Establishing} enterprise agreements
  • Buying and selling {enterprises|businesses}
  • {Union official|Union representative|Union} right of entry
  • {Managing|Dealing with|Responding to} government inspectors
  • And other such legal issues

These are the types of {problems|issues|challenges|hurdles} that can seriously {impact on|affect|drag down} the performance, profitability, and {standing|reputation|well-being} of any {organisaation|business|employer}.

{HRwisdom|We} have been {fortunate|lucky} to find a selection|handful|number} of friendly and professional Workplace Law Advice firms that really know their {topics|stuff|area}.

One of the {big|main|key} things we {prefer|like} about these {law firms|firms|legal firms} is their focus on being {fast-moving|proactive} so that you can prevent {dramas|problems} before they arise.

This is important because unfair {termination|dismissal} claims, {hiring|employment} {documentation|contract} {disputes|arguments} and other such {problems|hassles} tend to {arise|appear} {just|right} when your {important|major|all-important} report is due or just as you’re about to give a {significant|major} {talk|briefing|presentation}.

[box type=”note”]Click here to get: Local Employment Law Advice [/box]

Having your {workplace|employment} systems and processes {assessed|audited} and {correctly|quickly|properly} in place is definitely the best way to prevent the majority of {employment|workplace} claims and disputes.

Good Workplace Law Advice in Victoria

Whilst it is up to you which lawyer you use, HRwisdom respects and enjoys working with these smart, friendly and proactive workplace law teams.

You can find their contact information here:

Click here to see your: Workplace Law Advice” href=”http://hrwisdom.com.au/employment-lawyers/” target=”_blank”>Local Employment Law Experts

HRwisdom

Good Workplace Law Advice in Victoria Related Video

 

[youtube http://www.youtube.com/watch?v=NkVveW5-lSQ]



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