workplace relations advice – Page 2 – HRwisdom

Tag: workplace relations advice (Page 2 of 5)

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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Change In Organisational Culture – Here’s Where It’s Needed Most

Today, HRwisdom is sharing an interesting article on a place that is in desperate need of change in organisational culture.

This place has the ability to drive us all a little crazy at times.

The article is from one of the most influential business thinkers of this era, Seth Godin.

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Seth shares powerful observations of the modern airport which he suggests is an organisation we should try to avoid when it comes to developing our own company culture.

Change In Organisational Culture

Change In Organisational CultureHere are some of Seth Godin’s observations of an airport and how these blunders can positively help your organisation when you apply the lessons:

  • You never see the CEO or whoever is the person in charge of the airport. If the person at the top seems not to care, it will reflect down to the lowest level of the organization and it will definitely show on the service.
  • Problems persist because organizations defend their territories instead of finding ways to solve the problem. Someone blames someone and the blaming goes on and on. Things change only when the user’s problem is the driver of behavior.
  • Airports see customers as fleeting people. They are here today and gone tomorrow. New customers will come everyday.
  • An anxiety-filled system is what airports create. They assume customers care more of their money than their anxiety. They try to make as many flights as they can to increase profit thereby spares, downtime, or resilience are neglected.
  • There are mostly bad surprises, never heard of any good one yet.
  • There seems to be no connections whatever in airports. No one feels particularly welcome.
  • Airport system seems to be so industrialized that personal expression seems to be taboo.”

By carefully considering these observations, you will surely find a way to improve your company culture.

To read the full article by Seth Godin and see more of his interesting observations, go to: Eleven Things Organisations Can Learn From Airports

Remember, you can always share this article to your colleagues.

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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.

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Controversial Presentation On A New Employment Model – Microworking

New Employment Model - Microworking

In today’s HRwisdom Blog, we are sharing a controversial video presentation which deals with a proposed new employment model – microworking.

Plenty of people need jobs with very flexible hours — but it’s difficult for those people to connect with the employers who need them. Wingham Rowan is working on that. He explains how the same technology that powers modern financial markets can help employers book workers for slivers of time.

Wingham Rowan is the founder of social business Slivers-of-Time, which runs online markets for microworking and micro-volunteering.

There has been heated discussion around this presentation.

New Employment Model – Microworking

Here is the original presentation.

Feel free to share this page via the social media icons below.

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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

 

The Employment Contract Process Explained (HR Infographic)

In today’s HRwisdom Blog post, we are sharing our HR infographic on the employment contract process.

Whilst we share many document templates to use in your organisation, it is important to remember the process that supports the use of the employment documents.

Getting the hiring process correct means fewer problems down the track should things take a turn for the worse.

A proper hiring contract process also enhances your standing as an efficient, effective and professional employer.

Employment Contract ProcessThe diagram called ‘The Right Way To Create Employment Contracts’ explains:

  • What to cover
  • When to get legal advice
  • How to discuss the contract with the prospective employee.
  • The review and general administration process.

To view a large version of the management infographic, just click on the picture on the left.

As always, feel free to share this with colleagues and friends.

Employment Contract Assistance Video

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How To Really Freak Out Your Workforce

Employers everywhere are facing many different challenges and this makes staff motivation very difficult.

Some companies are struggling with the decline of the manufacturing sector and related job losses.

Organisations in the resources-rich states are facing rising labour costs and skills shortage issues.

Businesses in the retail sector are trying to protect tight profit margins and decreasing sales volumes against the flight to online shopping.

No matter what the economic environment or challenges, all organisations need to maximise the efficiency and effectiveness of their workforce.

Maximising this efficiency and effectiveness can be done in all sorts of ways such as:

  • Employee Value Propositions (EVP)
  • Process improvement programmes
  • Training and development
  • Employee engagement initiatives
  • Employee retention systems
  • Performance improvement plans

There are all sorts of ways to successfully manage your workforce and many of these good ideas are discussed in the free HRwisdom Employee Attraction & Retention Guide.

 

Not Our Recommended Approach To Staff Motivation

One method of staff motivation that is NOT RECOMMENDED is to give employees $10 if they can successfully guess which of their colleagues is the next to be fired.

In a post a couple of years ago on the US ABC News website, details were reported of a court case in the United States in which an employer found himself in hot water for trying to motivate his staff by running a “firing contest.”

Apparently the employer sent a company-wide memo telling staff they could win if they successfully guessed which of their colleagues would be fired next.

Once the winner had been chosen, the contest started all over again.

Unfortunately for the business, a number of staff resigned after they realised the whole thing was not actually a joke as they first thought.

Some might call this an “interesting” approach to employee engagement and employee retention.

Staff MotivationThe judge called it “egregious and deplorable.”

Either way, this employer won’t be winning any Employer of Choice awards anytime soon.

And in case you’re wondering, yes there were penalties involved.

The employer was required to pay large fines for issues relating to what we in Australia might refer to as constructive dismissal and harassment.

So, if you are thinking about implementing this novel method of employee motivation, perhaps you may be better serviced sticking with the good ol’ Employee Of The Month award until something better comes along . . .

You can download the HRwisdom Employee Attraction & Retention Guide now.  

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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:

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