Planning

Your Next Christmas Party

With Christmas on the horizon, companies are preparing to raise their glasses and say “cheers” to the end of the year. Some are already sensing an impending headache as end of year parties are notorious for workplace incidents. Unfortunately, this is due to a mix of alcohol and festivity which inevitably increases the risk of employees displaying inappropriate behaviour and failing to meet your HR obligations is not a risk worth taking. To help you avoid an HR disaster, here are our top tips for the festive season:

TIPS

The Venue

We advise to go with a venue that has minimal risk of accident or injury. An accessible venue with good access to transport and with plenty of food and non-alcoholic drink options is preferable. Food should be hearty and substantial particularly if alcohol is being served. It can be a good idea to conduct a risk assessment of the venue and location prior to the event and mitigating any risks. We also recommend providing a range of options including vegetarian and vegan as some staff may not eat meat or may have allergies to specific foods.

Communicate

Ensure your policies specifically cover employee behaviour at social functions. This should be communicated to all employees along with the function’s details to ensure employees understand their obligations at the party. Employees need to understand that these are work functions and employees must comply with the company’s policies and procedures. This provides evidence that the employer took all reasonably practicable steps to prevent conduct in breach of its policies.

Alcohol

Many people are able to enjoy a couple of drinks without incident. However, there are always one or two who take it too far. For this reason, it is not recommended to have self-serve alcohol. Ensure that professionally trained bar staff have the responsibility of serving alcohol and ask them to let a Supervisor or Manager know if anyone is appearing inebriated or acting inappropriately. We also recommend providing non-alcoholic beverages for staff who do not wish to consume alcohol. Getting people home safely is important. Providing a private bus, taxi vouchers, or the company Uber account will ensure that employees are less likely to get behind the wheel if they have chosen to have a couple of drinks

Represent

Nominate employees from the management team to supervise the Party and who are capable of dealing with any issues that may arise at the event. These supervisors should be prepared to take action such as ceasing alcohol service or safely sending people home if it looks like negative behaviour might escalate.

Mental Health

Family tension, financial pressure, loneliness, combined with pressure to attend a myriad of parties and events can be a perfect storm with devastating results. Ensure that your employees are not pressured to attend events and try to incorporate some non-alcohol activity as part of your celebration if possible. Furthermore, keep an eye on vulnerable employees, noting your awareness that this time of year can be difficult for some. Don’t start next year with a stress claim on your desk!

Post Function

Many organisations include the cost of taxi vouchers in Christmas function budget and offer a voucher to all staff who may wish to have more than a couple of drinks and who request one. Alternatively, the organisation may wish to organise employees into end of function taxi pools so that staff who live in the same direction or area share a taxi home.

Other Functions

Finally it should not be forgotten that many employees also attend other organisation’s functions in the course of employment, particularly at Christmas. For example, a manager may attend a string of parties or events held by advisers, suppliers or contractors to the organisation. These events present the same risk and liability issues as internal functions so organisation’s need to ensure that employees attending outside gatherings in the course of their employment understand the required standard of conduct.

How Can We Help

We believe that Outsource providers and in-house Human Resource representatives should understand their client or Employer’s business requirements and how Human Resource influences business operations. HR Pay Solutions has worked with a wide array of Australian businesses across many industries and helped them achieve operational excellence and compliance. We are a Government licensed Payroll provider and our staff possess over 15 years in the field of Human Resources and Payroll, with the “know how” to deal with your requirements.

We provide our customers with a platform and services to mitigate compliance risk, deliver business insight and gain operational efficiencies. From software to outsourcing solutions, organisations of all sizes can take advantage of HR Pay Solutions deep expertise to free their team resources and help them focus on driving greater business results.

Information provided in this blog is not legal advice and should not be relied upon.

The Employment Relationship

Consider these points the next time you create an Employment Contract

The relationship between employee and employer is a complex and vital element to any employment arrangement. To manage this, most businesses attempt to cement the terms of the employment arrangement in a single document known as the Employment Contract however employers may go wrong if they don’t mention the important elements of an employment arrangement, such as location of work, duties of the parties and, critically, termination of employment. Such elements, if not mentioned, can be essential to the function and eventual termination of the employment relationship.

In this article, we explore the important elements of the employment contract, with a focus on the termination clause.

National Employment Standards

 Regularly review

Legislative Changes

As a general rule of thumb, the employment contract must not and cannot provide less than what is set out in National Employment Standards (NES) and any applicable Award. These legislative terms and instruments are designed to protect employees and ensure that everyone is paid at least the minimum wage.

Other industrial instruments such as Workplace Health and Safety legislation and Discrimination legislation will also apply to your employment relationship.  Any employment contract that does not comply, or attempts to circumvent legislation, will be rendered void and possibly give rise to criminal and personal penalties.

Remuneration

 Be Specific

The employment contract should not only confirm wages, but should clearly define whether wages include bonuses, commission, overtime hours, penalty hours and/or any other payment made such as incentives and employee expenses

Straight forward annual or hourly contracts may be simple enough to draft, but if the employment contract contains performance-based payments, commissions or other complex formulas it may be wise to get some expert advice.

Role and Location

The employment contract should clearly define the role, including where and when the work is to be performed. If the role so requires, then outcomes and targets should be defined and measurable.

We recommend a detailed Job Description to cover the requirements of the role.

Termination and Notice

 Set out the

Notice Period

Notice of termination clauses set out the amount of notice a party is required to give the other before they end the employment relationship. This clause should set out the notice that both the employer and the employee must provide so that each knows exactly what to expect from the other. The issue of reasonable notice usually arises in circumstance where an employer has decided they wish to terminate the employment relationship, but they have no notice of termination clause in a contract to refer to.

For example, in 2014, the Fair Work Commission (FWC) held that an employee was entitled to four months’ notice (or payment in lieu). To provide a summary, the employee was a founder, shareholder and the managing director of a small printing company. He was a party to a shareholder’s deed that did not contain a notice of termination clause. The employee was summarily dismissed for allegedly diverting business away. He was successful in claiming that his summary dismissal was harsh. The FWC stated that a dismissal with notice would have been appropriate and went on to consider that the employee was entitled to four months’ notice (or payment in lieu). The FWC further commented that in this situation, a longer notice period was appropriate and reasonable and that the minimum notice periods will not apply.

In 2010, an employee filed an unfair dismissal claim with the FWC. He was employed in a fixed-term arrangement and was ended before its expiry . The contract of employment stated that, if the employment was not renewed, the employee would be entitled to payment of notice and redundancy. However, the period of notice was not specified. The FWC stated that he was entitled to payment in lieu of eight months’ notice. The Commission noted that the primary purpose of reasonable notice is to allow the employee enough time to find work of a similar kind. The FWC further noted that the minimum notice periods within the Fair Work Act 2009, state only the minimum periods of entitlement and in this case, were not appropriate.

How can we Help

When a court or tribunal implies the common law term of reasonable notice into an employment contract, it usually results in providing months of notice for the employee. For this reason, we recommend businesses ensure that their employment contracts contain a notice of termination clause which sets out in clear terms how much notice the employer will provide the employee upon termination of their employment. We can assist your business to ensure it remains compliant. Our staff possess the experience in this field and have the “know how” on how to deal your HR requirements.

Information provided in this blog is not legal advice and should not be relied upon.

When It Goes Wrong!

Workplace functions can be fun and can also cause a lot of headaches for employers

Case by the Fair Work Commission

An employee had consumed large amounts of alcohol at a work function and was involved in a number of inappropriate incidents with fellow employees and management. The Employee conducted himself in an inappropriate manner.

The Facts:

• Sexually harassed multiple employees both physically and verbally

• Bullied another employee on multiple occasions

• Swore at his manager

• Harassed an employee on multiple occasions

The Result

The employer decided to terminate this employee due to his behaviour and actions however the Fair Work Commission held that the dismissal was unfair.

There reason behind this decision was their claim that the allegations against him were never truly put to him. The Commission concluded that during the investigation, the employee was not provided with procedural fairness because he was asked general, open handed questions and therefore unable to respond appropriately. Furthermore, the Employee was not provided with a support person throughout the investigation.

Our Advice

When an investigation takes place, ensure you conduct a thorough investigation by paying attention to the entirety of the incident. There are many points to consider when conducting an investigation however as a general rule of thumb, we recommend the following:

• Gain details of the incident

• Use Witnesses

• Explain in detail, the allegations against the employee

• Advise the employee that their role may be terminated as a result of this incident

• Allow the employee a support person throughout the investigation

• Provide an opportunity and enough time to respond

• Always afford the employee investigated with procedural fairness

How can we Help

Our staff possess over 15 years experience in Human Resources and we can help your business with the “know how” on how to deal with employee issues.

Outsource your HR and Payroll to us and focus on what really matters, your business!

Unfair Dismissal and Flexible Working Arrangements

Employer fined $20,882

Ms Khutson, a full-time employee of Pay Per Click has been with her company since November 2014 and was recently informed that her hours of work will change from 9am to 5pm with a 30-minute lunch break to 9am-5.30pm with a 60-minute lunch break.

Initially, Ms Khutson agreed to the change however she advised her employer that this will affect personal commitments on Mondays and Wednesdays thus requesting to leave at 5:15pm and shortening her lunch break by 15 minutes.

The employer refused and Ms Khutson was advised that if she did not sign her revised employment contract, her employment may be terminated. Ms Khutson refused and as a result, her employment was terminated by email.

When the Fair Work Commission (FWC) heard this case, they found that the employer was guilty of contravening the NES Standards. Specifically, by not providing Ms Khutson her right to request Flexible Working Arrangements. As a result, Ms Khutson was awarded 17 weeks of salary worth $22, 882 and the employer was fined $20, 882.

Advice for Employers

Flexible Working Arrangements

Are Part of the NES Standards

Under the Fair Work Act, Employees are entitled to request a flexible work arrangement and it is unlawful to refuse any request unless reasonable grounds have been determined.

Upon a request for a flexible working arrangement, we recommend businesses consider the following:

• Nature of the work performed by the employee
• The employee’s parental or carer responsibilities.
• The timing of the request
• How much the arrangement will cost.
• What effect the arrangement will have on other employees and your business.
• The positives and negatives to your business and the employee
• Whether other legal obligations will be breached by modifying the work arrangement, e.g. health and safety laws.

How can we Help

Our experts can provide your business with tailored advice and solutions to help your business meet their legislative requirements.

We offer Employment life-cycle services spanning Payroll advice & outsourcing, Human Resources advice & outsourcing as well as Safety documentation all through our cloud based customised software solution.

Outsource your HR and Payroll to us and focus on what really matters, your business.

Changes to Casuals!

Changes to the

Modern Awards

The Fair Work is releasing significant changes to Casual conversion that may lead to many businesses, including those within the Labour Hire sector, to change the way they make hiring decisions and manage their labour. Subject to the applicable legislation, casual conversion is where casual employees are the given the right after a certain period of employment, to request a change to their employment arrangement to full time or part time.

As a part of the Modern Award review in 2017, the Fair Work Commission determined that all Modern Awards should include a casual conversion term. On 09 August 2018, the Commission finalised the clauses relating to casual conversion, and as of 01 October 2018, 84 modern Awards will be changed. Modern Awards that already contain a casual conversion term will not, at this point in time, be affected by these changes.

The changes listed by the Fair Work Commission do not take effect until the start of the first full pay period on or after 01 October 2018.

A Summary

The casual employee must be employed with the employer for a period of 12 months or more and must, over the previous 12 month period, have worked regular hours of work, which could be continued as a full time or part time employee. Casual employees looking to convert must also make the a request to convert in writing upon occurrence, must be begin at the next pay cycle.

A request may be rejected provided that consultation has occurred between the employee and employer, there are reasonable grounds based on facts which are known or reasonably foreseeable, and refusal must be in writing with all reasons set out clearly. Casual employees engaged for short periods and/or work irregular shifts or hours will not meet the criteria to convert.

All disputes relating to this matter must be resolved through the dispute resolution provision of the applicable Award.

Our Advice

HR Pay Solutions
can provide your
business with advice

It is important for business to ensure compliance with the changes as recent cases have proven that non-compliance may result in major penalties. HR Pay Solutions recommends that businesses:

• Check the applicable Modern Award to determine and understand the requirements thus ensuring compliance; and

• Give all casual employees a copy of the conversion clause within the first 12 months of their initial engagement. For casual employees already employed, businesses must provide a copy of the conversion clause by 01 January 2019.

The content of this article does not constitute legal advice or guidance. Please contact HR Pay Solutions for information and advice regarding this matter or other matters relating to Payroll, Human Resources and Safety

Unfair Dismissal!

HR Pay Solutions
can provide your
business with advice

Throughout my time in HR, I’ve come across many scenarios that led to the lawful dismissal of employees due to misconduct, harassment, bullying, theft and many other reasons.
When managing dismissal, it is important that the correct procedures are followed and the reason for dismissal is valid and fair.

It starts at the beginning

When dismissing employees, follow the correct process

It is vital for businesses to ensure that all steps involved with addressing employment concerns with employees are followed correctly. If the termination process is not managed correctly, businesses may face unfair dismissal claims, adverse action,
discrimination claims, workers’ compensation claims, bullying and/or harassment claims and union involvement.

For instance, when managing issues of poor performance or misconduct and behaviour, every stage must be followed and implemented fairly and correctly. Employees must be given the opportunity to improve their performance. This includes providing the employee the time required to improve, any training requirements, outlining your expectations and providing the employee with the opportunity to provide feedback. Furthermore, when managing redundancy, you must ensure that consultation and redeployment is provided. This will ensure the redundancy process is in line with Fair Work legislation.

It is important to note that in many cases, the Fair work Commission has found that dismissal was either harsh, unjust or unreasonable and ordered the employer to reinstate the employee. That is why it is extremely important to ensure all stakeholders are provided “procedural fairness”. This means that that the employee understands what the issues are and be provided with the opportunity to respond to any allegation or issue before you make a decision about their employment. To keep things tighter, I recommend providing the employee with a support person and/or representative.

The Exit

The Fair Work Commission will assess everything, when dealing with
any claims raised to its attention!

The Fair Work Act requires notice of termination of employment to be given in writing and be conducted face to face.
Therefore, when managing termination, we at HR Pay Solutions, advise that the whole procedure be documented, delivered face to face, provide the employee the opportunity to bring a support person

and / or a personal representative, and when completing the termination letter, provide the employee the reasons for and date of the termination.

Other requirements that must be provided upon termination include the Centrelink Separation Certificate, Statement of Service and a termination payslip. Remember to provide a hard copy of all documents required, if you are not using an online HR or Payroll System.

Why are you leaving?

Staff turnover can be unsettling for any business and exit interviews are a great countermeasure tool.

When conducting exit interviews, I’ve found some of the most diverse and honest reasons behind why employees are leaving, and it’s not always about pay.

Reasons have included, bad management, toxic work environment, cultural fit, no Career progression, workload, unfair Practices, nepotism, bad performance reviews, head hunted and much more.

So why conduct them?

Exit interviews are not just about the person leaving, they are also about the next employee

Staff turnover can have a negative effect on any business, not to mention the expense. The cost of replacing an employee may reach up to 150% of that person’s salary. Therefore, it is imperative to understand why employees are leaving.
Why are they staying? Why are they leaving? What can the business do to create change? The exit interview can help businesses understand these points and make positive change.
If done well, an exit interview whether it be a face-to-face conversation, a questionnaire, a survey, or a combination, can really help businesses gain insight and achieve competitive intelligence. An effective exit interview can signal to employees that their view matters.

Preventative Measures

You can never completely stop employees from leaving however you can minimise departure.

Exit interviews are a great way to identify why people leave. By doing so, businesses can adopt strategies and practices to minimise departures.
A common practice that many businesses adopt are employee satisfaction surveys. These are great tools to really find out what is going on in your employees’ minds.
For this to work, businesses will need to use the data gained and adopt strategies to make the necessary changes. A great way to achieve this is to involve the employees in the changes.

Other preventative measures are to create opportunities in the business. For example, some employees only take jobs in a business as a way to make money until they find the right job for them. A great way to counteract this is to create roles in your business that employees will be interested in therefore retaining the time invested in development.

Questions to ask?

Get the most out of your exit interview

When conducting exit interviews, it is important that you are able to gain the most honest feedback possible. It helps to use an
employee who does not have a direct relationship with the departing individual.

Here are some questions that I have had great success with

1.    What changes would you like to see changed within this business?
2.    If you were the manager, what would you change?
3.    What does your new company/position offer that made you decide to leave?

Contact us for more!