 Hello and welcome to today's webinar, Managing Staff in Line with the Fair Work Act. My name is Sarah Gonzalez, I am an employee of RedBat Conference and I will be your facilitator for today's session. Today we will be discussing the top employment relations issues businesses will face this year. So let's get started. I would like to welcome today's presenter, Andrew Stisteri from EmployeeShore. In his capacity as an Employment Relations Advisor, Andrew provides timely and business-focused advice to a diverse pool of clients and industries on a wide variety of human resources, employment relations and industrial relations matters. Welcome Andrew, how are you today? I'm very well Sarah, how are you? Very well, thank you. I'll leave it to you to get started and I'll be back shortly to discuss any questions that come through. Wonderful, thank you very much Sarah. Hello everybody, I hope you're well out there looking through the weather here. It seems pretty hot where everybody is, so hopefully we can give you some good advice here and we'll give you a hand and we'll talk about managing staff in line with workplace performance. So who are we? Who am I? We're EmployeeShore, we're Australia's leading specialist in workplace fairness and safety. We help employers stay on top of the rapidly changing legislation and especially in this field we take care of all your employment relations and work health and safety needs. Our comprehensive service includes a tailored workplace documentation, 24-7 access to expert advisors, professional representation in courts and tribunals as well as comprehensive insurance in the event of a claim. No other business in Australia offers this level of protection. And who am I? Well as Sarah said I'm one of the advisors in our team. We service well over 8,000 clients now and we action at least 700 pieces of advice every day, 24-7, 365 days a year. So today's agenda, we'll be talking firstly about a few of the potential liabilities that every business in Australia really has. We'll be looking at some bullying and harassment and how to deal with that. The claims that often find themselves in front of the fair work ombudsman and commissions such as unfair dismissal and adverse actions will look at misconduct and poor performance and also independent contractors and the liabilities that they propose to a business. So workplace relations in Australia, it's tricky. It's one of the most complicated and diverse systems in the world. Ever since the Fair Work Act came in in 2009 we've developed over 130 modern awards. I know we've got 120 there but we've had a few add-ons since then. And we can help you, we can look at which one applies to your business and we can help you mitigate those risks for things if they go wrong. Now there's also state and territory based health and safety legislation as well as long service legislation and work cover legislation. But we can help you with all of that. Now it's important that employers are aware of their obligations under both the act and the awards. One of the things that changed recently guys there was a 2.5% minimum wage increase. So this could mean a lot of things for your business. Do you know that the increase happened? Do you know what happens to your allowances? How does this all occur? Then there's a whole half of legislation that sits underneath that. That's what we're there for. So what are the liabilities? Here's a couple of quick figures to show you that the risk of a claim should not be underestimated. They really are more common than you think. Last year there was over 37,000 applications to the Fair Work Commission. 25,000 complaints were dealt with by the ombudsman. And there's claims coming in all the time. 66% of those claims occurred in small to medium businesses. And that's the sort of people that we're really, really great at helping people that can't get an industrial relations expert in because hey it costs a bomb but we can be there to support you. So who are the Fair Work ombudsman? I want to make something really clear with this that the Fair Work ombudsman are wonderful at what they do. They're regulators but they're not advisors. And this is the difference with employer. We're an advisor. We work with you. We help you achieve your outcomes and we understand what you want. We want to provide advice that will consider your legal obligations and your business needs. Whereas those Fair Work ombudsman, they're there to promote harmonious, productive and cooperative workplace relations and to monitor, inquire into, investigate and enforce compliance with the relevant workplace laws. Now it's really important that when we talk about them enforcing compliance with the relevant workplace laws one of the things that the ombudsman like to do is be sure that the employers are compliant. They're notoriously in favour of employees and it's only fair that you get someone to support you. So what are the liabilities here? When we're talking about liabilities that could face any business in Australia and especially small businesses we're talking about bullying and harassment, adverse actions and discrimination claims, unfair dismissals, there's independent contractor concerns and breaches of employee entitlements. Now what I'll do here is I'll just ask Sarah to put up a quick poll on bullying and harassment and if you can answer the question there. Great. It would be great to understand our audience a little better and the history within your workplace or anywhere else that you've worked. So have you ever had an employee raise a bullying and harassment claim and we've got a pretty fair split coming through here Andrew. As you can see around 45, 46% of people yes and around the 50% mark say no. So is this what you would expect? Yeah, I'm not surprised. This is certainly the sort of numbers we'd expect to see. Bullying and harassment does happen quite commonly. I'm probably a little more surprised that more of you haven't had it or at least had some sort of employee complaint about bullying and harassment. A lot of these things can stay hidden. What we want to give you is the tools that not only when these occur but how you can deal with them. But we also want to give you the tools so people can bring them forward without fear and we want to be sure that reporting is part of your culture and bringing those issues up is part of your culture. Bullying and harassment is huge, guys. It happens to 8 out of 10 employees have experienced some sort of inappropriate behavior. So let's look at what constitutes bullying and what constitutes harassment where your obligations start and end and what is reasonable management action is not bullying. So bullying has always been protected under work health safety legislation. But since 2014, workers have been able to make claims to the Fair Work Commission for an order to stop bullying. It's cheap and easy to lodge. They're about 68 bucks and we're seeing a rising number of these claims being lodged and more generally, allegations being made in the workplace without actually getting to the Fair Work Commission. So what's bullying and what is harassment? Bullying is defined as when a person or a group of people repeatedly behave unreasonably towards a worker or a group of workers at work and it creates a risk to health and safety. Now the key words there are repeatedly and unreasonably. That repeated behavior really defines bullying and when we're talking about creating a risk to health and safety it could be a mental health issue. It could raise stress and anxiety. It could lead to a lot of lost time. Now harassment is defined as unwelcome conduct that offends, humiliates or intimidates a person and it's related to what we call a protected characteristic which is protected under the anti-discrimination legislation. So we're talking about things like gender, race, race, ethnicity, sexual orientation, whether or not they're pregnant, part of a union, something like that. And this behavior doesn't necessarily need to be repeated but it certainly is something that can cause an issue at work. Now harassment includes things like intimidating conduct as well. Unreasonable work expectations and exclusion from social events. So this is where the employer needs to be careful in the sense that what you may not believe to be bullying could lead to bullying. And it's a matter of perception as well. It could be two employees are saying something to each other in a joking manner and someone overhears it. If they're offended by that can lead to harassment claim. So where do your obligations end? At work can include actions out of work or during breaks and there's been a few cases that have upheld this in the Fair Work Commission. The Fair Work Commission found that in a case of Bowker versus DP word Melbourne Limited that a bullying conducted at work encompasses both the performance of work and when the worker is engaged in some other activity which is authorized or permitted by their employer. So this could mean inappropriate internet use during breaks because you as an employer allowed them to access the internet. And it's also not necessary for the employee to be physically at work. In this case for example social media posts made outside of ours still conducted, still constituted conduct at work because the worker to whom they were directed read them at work. The commission also confirmed that the relevant behavior continues for as long as the comments remain on Facebook. So once they're there they're there and they can't be taken down. So what does this mean? It means employers need to ensure that they have and enforce policies around appropriate conduct in relation to work colleagues at all time, conduct on social media and also internet use. Now what's a reasonable management action and is this bullying and harassment? Reasonable actions by management are conducted in a reasonable manner and that's not bullying. We see a lot of employees who are being performance managed claiming that they feel bullied. Be assured that reasonable management action if conducted in a reasonable manner is not bullying. What we need to be conscious of guys is just how and where you give your feedback. So what can we help you with? We can help you. We can develop policies. We can draft policies and help you implement those policies and training to help ensure you've got a harmonious workplace. We can help you with managing a bullying allegation. We can talk you through what happens if you don't do it and how we support you. So let's go through all of that now. So we always emphasize the importance of having appropriate policies and training to set out expectations in relation to conduct and ensure a harmonious workplace. So things like code of conduct, equal opportunity policies, social media and internet use policies, even things like mobile phone policies. That way it's there in black and white for all employees and we'll provide you with these policies so you can set those expectations from the outset. There's a thing that people you always think if they have their head in the sand and they didn't have the policies and they can't be in trouble for it. Nowadays having your head in the sand may make you liable. We need to have those policies really clear and explicitly stated. That way the employees don't have an excuse and they have no reason for acting in an inappropriate way. So what do you do if an employee makes an allegation? If an employee makes a bullying allegation it needs to be taken seriously and we have to conduct a fair and transparent investigation. There are always two sides to the story. We'll provide you with a bullying harassment policy confirming how any allegations along these lines will be handled. If you receive a complaint you can call the advice line 24-7. We'll talk about your options and the approach that you can take for the investigation. Now for our Employee Shore Plus clients we may even come out and be able to come out and conduct an investigation where it would be best practice to have an internal investigator. So this can occur if there's a complaint or a bullying and harassment claim made against a manager or perhaps a direct line supervisor that would have otherwise been involved in the investigation. So what happens if we don't deal with these allegations? There can be a bullying claim. There can be adverse actions or discrimination claims and we'll touch on those a little bit later on. Liability for failing to protect the employee's health and safety and the recent Work Health Safety Act that came in, the Harmonized Act and the Board of our States in line really the key responsibility and obligation of every employer in Australia is to provide a safe work environment. The other thing is that an employee may leave and claim constructive dismissal because you failed to take any relevant action and you've made it impossible for them to remain in the workplace. So what do we do to support you? As I said, we'll set you up with the right policies, the right procedures. If you ever get a complaint about inappropriate behaviour you can call us. We'll advise on the options and the approach that you can take to your investigation and we'll provide you with all the invitation letters and meeting guidance and then we'll advise you on the outcome. We will be there absolutely every step of the way. Now I'm going to move on to some unfair dismissal information here and what I'd like to do, Sarah, if it's okay if you could put up a bit of a pop quiz about unfair dismissal penalties, please. Let's go. So this quiz is what is the maximum financial penalty for unfair dismissal? Is it 13 weeks wages? Do you think it's 26 weeks wages or 56 weeks wages? And some people also ask regarding the other poll how many people we have online. So we've got 107 people online now so that will give you some indication as we see those results come through. And as we're seeing that come through we can see a few different responses there. Just quickly from Deidre there, Andrew. So can a claim be logged after two to three years? Look, a claim can be logged but the more distance you have from a claim or from a report the harder it is to deal with it. It's really going to be a challenge for an employee to come forward and say, hey, this happened three years ago and now I want to dealt with. What we could do is go back to that employee and say, look, it's not really reasonable that we deal with this one. It's not being dealt with in a timely fashion. We want those reports coming through early and one of those things that the policies and procedures we can draft for our clients really helps is a reporting culture. One where we get people saying, hey, you're protected to come and speak to us. You're protected to come and raise your claim. You will be treated with respect to be treated in confidence. And we spell that out really clearly in our policies and procedures so staff know that they can make those reports in a timely fashion. So I hope that answers your question, Deidre. And as you can see now, I'm going to stop the poll and most people are saying 26 weeks wages. Let's hear the correct answer. We've got a lot of clever cookies out there. 26 weeks wages is absolutely the maximum financial penalty that you can receive for unfair dismissal for an employee. Now one of the things that's really important is the employees always think, oh, you know, great, I'll get 26 weeks wages and the employer thinks that's not a problem. You know what, I'd pay that to get him out of my business. One thing that's really important with unfair dismissal, guys, is the first recourse and the first course of action an employee can request is reinstatement. So this is why we want to keep unfair dismissals away as much as possible and make sure we follow those processes because 99% of the time you certainly don't want them back in your business. So unfair dismissals. Let's look at the definitions here. Under fair works and in fair works eyes, a dismissal will be unfair unless it was for a valid reason or a genuine redundancy and a fair process was followed in relation to the termination. So what we'll look at is what is a valid reason, which employees have protection and how we avoid those claims. So it's always a high risk area, dismissal and termination of employment. You need to know what the potential risks are so you can follow the right process and have the right evidence. Now what is a valid reason for termination or a dismissal of an employee? We look at certain things like whether it's ongoing performance issues or breaches of policies. Now performance issues, we're talking about someone that's trying their best. They're doing everything right, but they're just not performing in the role and it may mean we need to go through some sort of performance management plan to move them on from the business. Otherwise we're looking at breaches of policies. So these are people that know they're doing a product and they're actually just purposely trying to do something. One of the great ones we always ask is a lot of our clients have policies that say you must call up when you're sick or if you're not going to be at work and they get someone that sends across a text that says can't come in today in a winky face and Modecon and everyone looks at it and goes well great, they're not following procedure, they know what they're supposed to be doing and we can certainly look at that as breacher policy, bring them in, bring them out to termination after the right amount of time. Now which employees have protection from unfair dismissal? All employees that are covered by the Fair Work Act and under the federal legislative system have some form of protection after a certain amount of time. So employees that have completed six month service in a business that has more than 15 employees, sorry 15 or more employees have access to unfair dismissal, but if your business has 14 employees or less, your employees don't get access to unfair dismissal for 12 months. Now the other thing is that there's also a threshold. So the threshold sits at about $137,000 a year and they must also be covered by an award. So they may also still have access to unfair dismissal depending on award coverage, the amount they earn and the length of service they've given and the size of your business. It's a pretty convoluted world out there guys and this is where you can come through to us for advice. The other thing that's important to remember is that every employee has protection from what we call adverse actions but we'll touch on those a little later. So how do we avoid a claim? To avoid a claim, you need to show that there was a valid reason for the dismissal. So it's either relating to performance or misconduct and that you followed a fair process in relation to the dismissal. Now touching back on that example of people texting in and saying they're not coming into work, look it's a breach of policy yes, is it enough to terminate but what we do is if that behaviour is repeated and it keeps happening 2, 3, 4, 5, 6 times then we can keep having those discussions and move towards a termination based on a fair process and fair reason. Now the process is absolutely key guys, I can't stress this enough. If you don't follow a fair process you're essentially handing the claim to an employee on a plate. Now this one, we have a bit of an example about this, it's a bit of a funny one. Now there was a recent case where a truck driver was terminated for terminating on the entrance to a customer's warehouse. I know that sounds like a joke guys but these are the calls that we get at Employee Shore. Now this is absolutely a valid reason for termination, however the employee was awarded $16,000 because the employer terminated the employee without giving the employee an opportunity to respond to the allegation. We also didn't put the CCT evidence in front of the employee and we found out later that the employee actually had diabetes which meant he suffered it with veterinary urgency. So these are the sorts of things that can fall in front of the commission. If we don't follow that process we can find ourselves in a bit of heat. One of the examples I like to give is if I've had a bad day and decide to throw my computer against a brick wall and my boss says to me get out well then I can actually go for an unfair dismissal claim despite breaking a $2,000 computer and showing fits of rage at work. If the processes are followed I probably have a pretty strong claim for unfair delivery. Much like bullying and harassment we set you up with your policies. We'll really clearly outline what conduct and what serious misconduct and what sort of expectations we have for your employees. We'll advise you on your options and in every step of the process we'll provide you with all the invitation letters and meeting guidance again and advise you on an outcome. If a claim is issued we'll support you through it as well. We have a really wonderful claims team that can certainly help you out. A poll about adverse actions. I'm learning quite a lot from these quizzes. Have you heard of general protections applications before? Once again a yes or no question and we've got yes coming in a little bit lower actually quite a fair bit lower and a no. Wow, certainly interesting results. It's a real eye-opener when I ask this question and we see the results come through. I can't imagine there's an employee in Australia that has not heard of unfair dismissal. I'm sure everyone's heard that term thrown around before but I can absolutely understand that a lot of employers haven't heard of adverse actions or general protections claims. We're going to have a little talk about these now. I'll just get to the slide here and what we're talking about is employees having their protections based on action taken against them on a prohibited ground. We'll look at what are prohibited grounds and why this is such an issue. We call these the sleeping giant of the Fair Work Act. It protects not only employees but prospective employees, people going through the recruitment process and can cover a range of actions not just terminations guys. It's a key issue for all employers to be aware of and I think this slide is going to be really informative for you. It's important to understand that all employees are entitled to protection against adverse action because of a prohibited ground and this is from the moment they start working with you and if not beforehand. Now adverse action can be any action that is to the detriment of the employee. So what type of actions are we talking about? It basically means you can't take any action to the detriment of an employee because of prohibited grounds. Things like terminations, change in hours, disciplinary action or reduction in hours or not even giving them a pay rise or a promotion, excluding them from events. Now what are prohibited grounds? There is a huge amount of prohibited grounds. The first ones are discrimination which are protected not only by the Fair Work Act but also by law. We're talking here about race, colour, gender, age, any mental or physical health concerns, family or care is responsibilities, trade union activities, all sorts of things. The exercise of a workplace right. Now this is where an employee might ask a question about their work conditions. So think about all of those entitlements we've covered earlier on in those presentations. You can't take adverse action against an employee for exercising their right to something like parental leave, annual leave, personal leave if they're sick or care is leave if they've got an injured member of the family or ill member of the family. Absences for illness or injury. You can't actually take action against employees specifically for being absent because of an injury or illness unless their absence has hit a three month period and that's where we're talking about three months of leave without pay and there's still a process that we need to go through to make sure we can prove that we're not taking adverse action against the employee. Now why is this such an issue? And this is really the real eye opener here guys. It's got what we call a reverse onus of proof. So basically you're guilty until proven innocent. If an employee makes an adverse action claim against you, the Fair Work Commission will look into it and say this is what the employee has claimed. Prove to us that this did not happen and you really have to work hard to do that. Now it's up to you as an employer to show that the action you took was not connected to a prohibited ground. Penalties and remedies for this huge compensation is uncapped. It's what I like to say kills businesses unfortunately. Unfair dismissal claims cost you money. Adverse action claims force you to close the doors. An employee can ask for a quarter of a million dollars for something if they want and if you've got a commission that's gotten out of bed on the wrong side of the bed, stepped on the kids toys walking down the stairs, knocked the door out and lost his keys and has had to get the bus to work. He might have a bad day and slam the gavel down and give you the penalty of $250,000. It's something that no-win, no-fee solicitors advertise heavily when trying to win employees as clients as well. Now it doesn't mean that you can't terminate or discipline these employees. We advise our clients on this all the time. I had a couple of calls on this this morning actually before I came in to do the webinar but you just need to be able to provide evidence that the transaction was not connected to a prohibited ground. Now there was a case in 2014 of Walsh vs GMC where the employee claimed she was terminated because she made a bullying complaint which is exercising a workplace right. Now what the employer could show was records of meetings to discuss poor performance they had followed their performance management policy. That claim failed. So how do we put all this into practice? This is a little bit of a real-life scenario and we'll run through this. So we've got an engineering firm with 20 employees one of whom has been underperforming. The employee is a full-time employee and has been with the company for nine months. The employee has been warned about his lack of performance on a number of occasions. The employee has previously made a complaint that his manager is bullying him and placing unreasonable work demands on him. If you want to pop a quick yes or no in the text box, do you think we can dismiss this employee? A lot of people are actually coming back with no. It's probably 50-50 now. Sorry, we privatize the chat box guys. The topics are a little bit sensitive so people do want to ask questions. That's why I want to keep the chat box privatized. And then we've also got someone saying that it's not a binary answer possibly but you have to follow due process. So over to you then Andrew. Wonderful. So let's look at this. We had this case come across our desk and we advised that the client felt the employee was likely to lodge a claim. So what did we do? We took the manager out of the performance management process that the bullying claim had been placed against. We investigated the complaint and found it to be unjustified. So we recommended performance management and gave the employee a final chance to improve their performance and then move to termination. The process took four weeks in total to terminate and no claim was received. It just shows the importance of working through the process to mitigate the risks as much as possible here. If we had just terminated that employee they would certainly have had the grounds to raise an unfair dismissal claim because of their length of service and the size of the firm and also an adverse actions claim. The potential cost to the company is unknown. So does this advice change if the employer has less than 15 employees? Absolutely it does. The employee would not be entitled to an unfair dismissal claim for the first 12 months. So this means it's much easier to terminate without providing further opportunities to improve or respond to any performance issues. However, it's still important that we mitigate that potential adverse action risks. So we'd need to establish that the complaint was not one of the reasons for termination. The moral of the story of this guys is that you need detailed guidance on the process and try and make use of that probationary period. So how do we manage poor performance? Something that we talked about with that little case study there. One of the keys is to distinguish whether it's poor performance or misconduct. What are the differences and how do we identify those differences? And looking at things like what's the difference is not hitting a KPI performance or misconduct is swearing performance or misconduct not following instructions. Why does this matter and what is the end result? So I'm just going to spend a little bit of time looking at these issues. Why is managing employees an inappropriate behavior difficult? It's because they involve uncomfortable and difficult conversations and decisions. I see clients struggling with this every day. I'm fortunate enough to be on the other side of the phone and providing the advice. I understand the difficult nature of those conversations having had them myself in previous positions. They throw in a host of regulatory and protection to consider and it becomes even more difficult because it's difficult we sometimes shy away from it and we sometimes shy away from dealing with these issues. But these problems will get worse if we let them go unchecked. We can guide you through these discussions and give you the tools and confidence you need to effectively manage your employees and put you in a good position to defend a claim if one is made against you. So what's the difference between poor performance or misconduct? As I like to call it, skill or will? Skill. Do they have the knowledge and skill to perform the role? And that's just poor performance. The will. And this is what we talk about. Willful behavior. Choosing not to perform the work. That's misconduct. So not hitting KPIs. That's certainly a performance issue. Absolutely a misconduct issue. Not following on instructions. Now this depends a little bit. Are they refusing to do so? Which is misconduct because they're willfully choosing not to perform the work. Or do they not understand the instructions? If that's the case, it's more of a performance issue. So how do we manage this? As you can see on the slide that's just popped up there. There's a disciplinary process when managing misconduct. So the first thing we need is a valid reason. And you have to have a valid reason to go through the managing misconduct process and going through this disciplinary process. You might have sufficient information and evidence to go straight to a disciplinary. But you also need to think about investigating further to establish the allegations first. So the invitation is a really important step. We provide notice of the allegations through the employee. Now it's best practice to provide this in writing. We'd be specific with those allegations. And we give at least 24 hours notice of a disciplinary meeting. And Employee Show will draft those invitations for you. We'll step out the allegations. We'll talk about why it's a risk to your business. And we'll show which policies the employee would have breached as part of that misconduct. The next step is to hold the meeting. Now at the meeting we allow the employee an opportunity to bring a support person. And that can be anybody that they choose. A lot of employees often choose to bring people from the union. Some employees may bring their parents, friends or colleagues. To bring their pet they can. Really they can bring anybody they want. So what do we do? We put the allegations to them and we allow them to respond. And we'll give you guidance notes and even a script on how to run these meetings to make sure it runs smoothly. That you stay in control, that you drive the meeting and that if you do get someone from the unions who often have to cause a bit of trouble that they don't overrun your meeting. Now the outcome is the next important step. What's key is that we don't make that decision at the meeting. We really need to honestly take into account the employee's response. And that's why we'd never advise you on the outcome until you call us back after the meeting. We can assist you on a decision. This might be to issue either a warning, a final warning, or could possibly lead to termination. So how can we assist you here guys? What we do is we assist you by advising on a strategy, drafting the invitation letter, providing meeting guidance, advising on the outcome and preparing the outcome decision letter. It's a really important process and really important to make sure we manage that carefully. So poor performance. The idea of someone just not getting the job. When we have performance issues, they do also need to be carefully managed. So what we'll look at is, how an employee is given the opportunity to improve, what are the outcomes, collecting evidence, and how we can support them. So the key difference is that employees must be given that opportunity to improve. So performance management takes a little bit longer than misconduct. And the outcome is often less certain. This means that you generally need to give them the time to improve as well as the necessary training. Now what is reasonable time will depend on the circumstances including things like the length of service. So for an example, an admin assistant might need a week to show an improvement in filing ability, a piece rate worker or an assembly worker might need a couple of days to show that they can hit their targets as set out, but a salesperson might need a couple of months to actually show an improvement in sales figures. The outcomes with managing performance management, there's really two options. You either manage up or you manage out. If we can manage up, then everybody wins. The employee keeps the job, they're performing in the role and you've got someone that can actually contribute to your business. If they don't hit the mark and they can't reach their KPIs or improve, then we manage them out of your business and then all of a sudden you'll have one less rusty cog in the wheel. So specific evidence is important. In relation to the process, you should collect specific examples of mistakes. We don't want to make general statements like get better or needs to improve. What we want is to have objective measures, set KPIs and numbers if we can and something that's really measurable that we can go up against and say, here's where we need you to be and here's how we want you to get there. So as part of the process, we invite the employee to a meeting and allow them to explain the reason for their poor performance. Do they need extra training? Were they aware of the processes and policies in place and procedures in place? Are they having issues with things at home? Are they being bullied at work? Again, the employer will draft these invitations to the meeting and the specific performance issues will be listed in there. Then the next step is to create what we call performance improvement plan. We always recommend using a formal performance improvement plan because this can assist you and we can assist you with reviewing these. They set a clear and measurable targets and timeframes for your achievement. For example, if we go back to the sales person, we might ask them to get five sales in the next two months. They've only been really getting two or three and their target is eight. We'll give them a bit of a middle ground, give them that chance to improve and try and increase that. We need to be clear on the consequences of failing to achieve the targets. For example, are we looking at issuing a warning if they don't achieve their targets or could this lead to eventual termination? As I said, we'll assist you. We'll advise you on the right process. We'll draft the invitation and the guidance notes you need. We'll review the performance improvement plans and advice on outcomes and help you with documenting this. Now Sarah, if it's okay, I'd like to ask you to put up the last poll for the day. Don't worry guys, I won't be grilling you anymore after this one, I promise. Great. So poll number four and this is our final poll. So do you engage independent contractors and once again, simple yes or no? Thank you also for your questions coming through their grade. In a moment we're going to get to those questions and if we don't get through all those questions because I am conscious of time, Andrew, is it something that I can compile the Q&A transcript and then send to you and have you answer something that we can send out with a recording after this? Absolutely. We'll bunch them together and try to collate them as best we can and get a response back. You can imagine how many are coming through. I'm going to stop the poll now. We've got 65% of people saying yes and 34% of people saying no. That's not a surprise at all. Independent contractors are wonderful. They're great. They can really provide you with flexibility. They can really be supportive of your business as well. What we ask is are they the solution? There's a few concerns that do pop up with independent contractors and the major risk is what we call sham contracting. Now what we'll look at is how you can tell the difference between an employee and a contractor and the other liabilities that just might still apply. So with independent contractors, because of the level of regulation and employee entitlements, some businesses look at other methods of engagement such as independent contractors. Now it's not always a quick fix and it can land you in hot water. They're often a legitimate and sensible way of engaging consultants and freelancers. However, if the relationship is not a genuine contractor arrangement and it's simply being used to avoid paying entitlements like annual leave, this will amount to what we call sham contracting. Now the risks are really significant. There's huge fines and penalties both for the business and for the business owners, directors there's potential underpayments, back pay of annual leave and other entitlements, things like long service leave, possible redundancy payments if a position was terminated, notice periods and all sorts of things. So how can we tell the difference between contractors and employees? I always say if it looks like an employee and it quacks like an employee, it's probably an employee. We can really apply that very much to independent contractors as well. Now the problem is this is a little bit of a grey area. So we need to make sure that the arrangement is genuine or not. And there's a few key things that the Fair Work Ombudsman will look at, things like control of the job. Do you tell the contractor what to do, how to do it and when they do their work, or are they able to dictate how they do their work? Do they work for others and do they have the opportunity to work for others or do they work for you five days a week, eight hours a day? Do they provide their own equipment and tools? Do they wear your uniform? It can even be something that is looked at. Do we pay superannuation? A range of other things that we need to consider. And superannuation is one of the big liabilities. So superannuation payroll and workers comp may still be payable. It's best to not assume that they're not payable. There was in a few cases, it was one in 2011 where a HR manager of Centennial Finance Services was actually personally fine almost $4000 for being involved in moving employees onto sham independent contracting arrangements. The fact that the HR manager was following the CEO's instructions was actually irrelevant. As the HR manager was aware that the arrangement was unlawful and should have advised the board of its obligations. It's really important you can't get past all these claims just by calling someone an independent contractor. It's a question I often get asked actually is, I don't want this person to be an employee anymore, but can I often get asked actually is, I don't want this person to be an employee anymore, but can I sack them and bring them back to a potential sham contractor? The unfair dismissal risk starts ringing alarm bells, the adverse action risk starts ringing alarm bells, but it's also important to notify that and identify that risk of potential sham contracting. If you get rid of someone as an employee and bring them back two days later doing the same job for the same hours, as I said guys, if it looks like an employee and it quacks like an employee, it's probably an employee. So complying with the Fair Work Act is hard guys, and this is where we really can be helpful. I love the service. I love the help that we can provide to businesses. We help mum and dad dairish corner shops, we help sole trader plumbers, we help law firms, we help registered clubs. If you name a business there's a good chance and a name in industries, there's a good chance we help them out. We've got people involved in mining, we've got road transport, you name it, we're there. And what can we do for you? We're there for compliance advice, insurance and representation. We'll do a thorough documentation and processes for a fraction of the cost of using a law firm. Unlimited advice is huge. You can call as much as you want, as much as you need, without fear of a variable cost. We're available 24-7, 365 days a year. We have top class representation in disputes by Spark Helmholt and our insurance is underwritten by QBE and they're a market leader in business insurance. We also have zero excess on $2 million worth of cover. That's right, $2 million worth of cover. I still get dumbfounded every time I see that figure. And the ability to reduce the risk of claims. But in the event one arises you've got the peace of mind that we're there to assist you and that the associated costs are insured. And that's all I've got for today, guys. We'll try and get through a few questions here as well. And to find out more about Employee Sure, you can always contact us. The details are there and we'll be able to assist you. You can also register for other events that we have coming up too. Yeah, what sort of questions have we got coming through? Everything that you can imagine, Andrew. So first of all, I'd just like to thank everyone for joining. Also, let you know there's a server that we would love for you to complete on the right-hand side to get feedback for our business skills series. And also find out if you want to learn more about Employee Sure. Please feel free to opt in there. What we will also do now is go to some Q&A. But just a reminder that today's copy of the recording will be sent out within 48 hours and any supporting documentation. We aren't going to get through all the questions, unfortunately. But like we said earlier, we will actually make a copy of them from the transcript provided and we will send them to Andrew and he will complete them and we'll send that with the recording. No pressure there within the 48 hour time frame though. So first of all, we had some pre-questions that came through from people who actually submitted them before the webinar. So it's fair to get to them first. And one was actually about stress leave. So an employee has been on stress leave for 13 months and the employer does not want them back because I think there might be obvious reasons there. How do we work around this? What do we do? Okay wonderful. Now that's certainly a situation we've faced before and one that we've been able to guide our clients through. So stress leave especially for 13 months is quite a long time. What we want to look at is a few different things. Was the stress caused by work or was the stress a personal issue? And has a worker's compensation claim been raised? If a worker's compensation claim has been raised and that's currently open then what we're looking at is the risks of those adverse actions claims guys. So what we need to do is work with either the regulator or your insurance company, whoever owns that claim and look to get that claim closed and then see if we can get that employee onto a period of leave without pay for three months and look to make what we call a capability decision. If the 13 months is not related to work and they've just been away from personal stress and they've had that three months of leave without pay then we can call an employer and we can guide you through the capabilities dismissal which is again that process of if an employee has been on leave without pay for three months. And a few questions around not-for-profits and also volunteers. So does Fair Work Australia conditions do the Fair Work Australia conditions also apply to incorporated not-for-profits? And then also when we talk about volunteers so someone's keen to hear what the particular challenges are for volunteer organisations with non-paid and paid volunteers so some thoughts around that? Sure, yes. So not-for-profits with paid employees and anyone that's a registered business and has that title will certainly be covered by the Fair Work Act and the relevant legislation. Volunteers are a really interesting one. I guess they're still covered in the sense that they have protection from things like work health and safety. A volunteer is defined as a worker under the Work Health Safety Act for 2009 but they don't receive entitlements. They don't receive leave entitlements. They don't receive pay. But what we can do is help you by drafting up a volunteer agreement so that it's an understanding that that agreement can be terminated. There's no real financial penalties involved with volunteers though because they don't get paid but we want to avoid any risks. What about, is there a breach for the following circumstance? So another situation here. So an employee has worked for a business for seven years in an agreed, employee is at short notice told by SMS to attend for work on three set days, so not the normal work days, for the week about to commence and not to come in on the other days because they will not be allowed entry. Yeah. It's an interesting one. This will depend on the modern award that covers the employee. The awards will have different regulations and different rules around how we amend a roster for an employee. Now with someone having set hours for seven years, five days a week, flexible working arrangements, in a situation like this and this is very generally speaking, we'd want to have mutual agreement that the roster is going to change. We want to have some sort of consultation period at least and a consultation process discussing this with the employee, asking them for considerations, how it may impact them, their family, their flexible work arrangements, maybe they're for some other personal reason. So we want to have a conversation with them and make sure that these changes and taking them a text message and asking them to not come in for a couple of days and change the rosters may not work in your favour. Great. I hope that helps. And a few questions around bullying and complaints against the head of organisations or directors. How do we go about that? Is it the same process? Yep, exactly the same process. We still want to work through the same processes and the processes are really well stepped out by fair work and what we need to do. If that formal complaint comes through and it's against the head of an organisation or a director, someone that's in a position of power, we still want to give the employees the power to come forward and report that. One of the wonderful policies we can draft up for you is a whistleblowers policy which essentially says if you come forward and if you raise a concern at work you will not be treated any differently and we set that out as an expectation from the employers to the employees. We want to protect people from and encourage people to come forward and report these issues. I've been in previous workplaces and they've always been managed and dealt with very seriously and at Employee Sure, what we would do is guide you through that process, be sure that the investigation is conducted fairly and that the bullying and harassment complaint is treated very seriously. It's one of those things that falls under the idea of providing a safe working environment for your employee and we do need to treat that very seriously otherwise there can be some serious penalties. Great, and just on that as well, so what are the best preventative actions to ensure employees are protected from bullying and harassment in the workplace? Is that only one type of measure? Are there other things that we can put in place to protect them? I like to be proactive with these things. It's always better if we can get on the front foot and this is where our policies and procedures come into play really well. If someone's being bullied and harassed then that's going to come under misconduct from the employee that's doing that and we'll follow the investigation properly. But if we have clear evidence and clear examples of employees that are doing the wrong thing then we'll actually stop them and say before this turns into a claim of bullying and harassment we can see what you're doing is the wrong thing. We've witnessed it, we've got evidence, we've got people that have actually seen this and can support the stories and we're going to deal with this in a disciplinary way and we can look to deal with that. But the good thing is having those policies and procedures in place, it steps out right from the start what the expectations of the employer are makes it really clear and really easy for your employees to understand this is how I should behave at work and this is how I should not behave at work really clearly from the start, try and get on the front foot. In an ideal world I'd never see a bullying and harassment claim come across my desk Sarah but unfortunately we have some people that like to just play up and do silly things. There's a lot of specific questions about harassment as you can probably imagine specific to certain situations people have been in so just one final meeting just around the mediation piece and you spoke about that earlier so firstly can those meetings be recorded and what role does the support person take in the meeting so are they allowed to be the driver or do they just sit there sit back and not say a word? One of the things with recording meetings I always say you can do it with consent if an employee comes into a meeting and you'd like to record it on your phone or if you have an old fashioned tape recorder or a microphone set up absolutely you can say look I would like to record this meeting can I please have your consent to do so and as a sweet note you may even offer to give them a recording of the meeting you know just a way to kind of show that you're extending that olive branch so to speak with the support person coming in and driving the meeting I've seen this happen too many times someone from the union comes in stamps their foot crosses their arms and starts saying I'm going to do this and I'm going to do that and I'm going to do all these things the support person is there to be just that a support person they are not there to advocate on behalf of the employee and with the guidance notes and the scripts that we can give you at the start of that meeting you outline that very clearly you say to the support person this is your role, we'll give you the words to say to them this is your role is to be a support person you're not here to advocate when they try and derail that meeting you pull them back until they say I'm sorry you're here as a support person if you wish to discuss another matter or if you'd like to talk to me about something we can discuss this at the end of the meeting for now I would like to hear from the employee if they continue to push it and if the employee chooses to leave with them you can say you can choose to bring another support person if you wish or this person can come back and act in support capacity but the meeting needs to be driven by the employer it's really important that you have that I mean it's your business, it's your baby this is the thing that puts the roof over the head the food on the tables and the courts over the kids at night so we want to make sure that your business is protected and that you drive it thank you so much, no doubt we could sit here and talk about this all day I think we're different organisations definitely, so thank you for today it's been great to have you guys on board obviously a lot of insight and like I said it's going to change per organisation but it's good to just have an overall of you on what you should be and what you shouldn't be doing I think would you agree, yeah absolutely, yeah it's a minefield out there guys and we hope to just guide you through it so we'll be out there with the sticks making sure nothing blows up in front of you but thank you very much Sarah for having me in today and I really want to thank everybody out there that's stuck around and listened to the end I appreciate you all coming in and I hope to see you soon thank you everyone for joining it's great to have you online we had so much engagement so please keep a look out for that survey sorry for the transcript with the responses and also the recording we hope to see you at future events and enjoy the rest of your day thanks a lot, bye