 Hello and welcome to today's Business Skills webinar, Understanding Your Fair Work Obligations. My name is Jeff and I'm Employee of RedVac Conferencing and I'll be your facilitator for today's session. From her previous role as a Generalist Human Resource Manager for 170 staff, Corinne has extensive experience in policy development and implementation, performance management, return to work coordination, and strategy development for effective staff performance. Corinne's expertise lays in the customer service industry with over 13 years' experience throughout the restaurant, hospitality, and licensed club industries. Her ability lies in being able to understand and relate to practical realities facing small businesses and effectively managing their staff. I'll now hand you over to Corinne to begin. Thank you, Jeff, and good morning everyone and thank you for joining me for today's webinar. Thank you once again for that awesome introduction, Jeff. Now, I'm a field consultant for EmployeeShore, and that means, day in, day out, I'm visiting small business owners and managers such as yourself, and looking at ways we can address compliance and best practice issues in your business. Now, the best way to look at EmployeeShore is as your workplace relations specialist. So we handle both matters of human resources and work health and safety, and are the ones that shop for compliance under the Fair Work Act and under the Work Health and Safety Act. For the purpose of today's webinar, we're going to take an in-depth look into our Fair Work obligations to understand as a business owner what rules apply to you and how we can better manage them. So, let's start from basics. Now, we have a very complicated workplace relations system here in Australia, which makes it very difficult for employers to understand. Generally, what we see in our practice is that business owners become familiar with the employment relations system because something's gone wrong, because you've had a disgruntled employee that's made a claim, or potentially you've been audited by the Fair Work ombudsman, or someone's made an underpayment claim against the business. It is a very difficult system to navigate, and that's why EmployeeShore exists to assist with this. So, to start at the very bottom, we have our Fair Work Act of 2009. Now, this acts as an umbrella which provides a minimum safety net of entitlements for all employees. So, this is covering things such as annual leave, sick leave, and notice of termination. However, there are also 122 modern awards that sit underneath the Act and regulate minimum conditions of employment in certain industries. So, depending on the industry or the occupation you hire, that's going to determine what penalty rates apply, what ordinary hours of work are, what minimum rates of pay are, which also have a significant effect on your business. And we've also got a whole raft of state-based legislation around work health and safety to comply with. So, we want to look at how these three interact and what we can do to ensure our compliance. Now, under the Fair Work Act, we have the National Employment Standards, which are these minimum-key entitlements you can see on the screen now in front of you. Now, some of these will look more familiar to you than others, but it's important that we have a look at a few in-depth to understand what our obligations are as an employer. The first thing I want to point out to you in the bottom-left corner is our Fair Work Information Statement. Now, this is a document that not a lot of employers are familiar with. Essentially, it's a two-page fact sheet, a double-sided piece of paper that goes through these 10 minimum entitlements on the screen. We as an employer have an obligation to give this fact sheet to every single employee when they start working and also retain a record that we have done so. Now, if we fail to do so and are audited by the Fair Work Ombudsman, this can result in a $2,200 fine per person which we haven't given this statement to. But as you can see here, there are a few bits and pieces here where we might not be familiar with that has newly exposed our business to some risk already. Another one I want to point out to you is our Compassionate Leave on our left-hand side. Now, people seem to be familiar with sick leave or personal care leave so today being commonly known as and rebranded as, Compassionate Leave is actually an entitlement that's hit separately to sick leave. Now, Compassionate Leave is applicable when an immediate family member, such as a spouse, defacto partner, child, grandparent, grandchild, sibling, or a child, parent, grandparent, or sibling of the employee's spouse or defacto partner either dies or suffers a life-threatening illness and injury. And the entitlement there is two days per occasion. So the example I like to give as an employee myself is having to be in a horrible situation my husband's grandfather has a stroke. In that situation, I would be entitled to two days paid Compassionate Leave. If, unfortunately, down the track he doesn't make it and he passes away, I would then be entitled to another two days paid Compassionate Leave for the death of my husband's grandfather. Now, this is not a limited entitlement. This is per occasion per family member. So in this situation, you could be paying nothing into you or you could be paying a lot depending on those circumstances. And this is separate to those 10 days paid sick leave. As important to be aware of this, if one of these situations happens, an employee asks the questions about their entitlement here. One thing as well that we have covered in this protection is our notice of termination and redundancy pay. So we as employers need to use an employee notice in accordance with these national minimum standards. Now, the most common notice you'll see is our table that represents a week's notice based on years of service. But there isn't actually anything governing how much notice an employee needs to give if they resign. So that's where we start to look at effective employment contracts and policy documentation to protect our business in that sense. And we'll look at that in a little bit more detail later on. Now, I mentioned before, we're also dealing with other legislation that we want to look at how this interacts. So on the bottom of our pyramid here, you can see our Fair Work Act. Now, as I mentioned, that has our 10 minimum entitlements under the National Employment Standards and it acts as that minimum safety net. So regardless of industry, regardless of classification, these basic protections apply to every employee. Moving up the table, we then have our modern awards. So as I mentioned, we have 120 modern awards based on both industry and or occupation. So in this instance, the industry rules and conditions that are going to cover someone's day in the building and construction industry are going to be quite different to those working in the hospitality or fast food industry based on the way the industry operates. So I like to look at the modern awards as that goalpost of minimum standards that we need to get between before building a more comprehensive framework for the business. That modern award always needs to act as the reference point. And if you're not referring to one or you're referring to the incorrect one, your whole framework is going to be flawed. So it's so important to get this right and the very first step. Now on top of that, we have individual contracts of employment and we will look in a little bit more depth why these are important. But essentially, we want to use that contract to cover issues that aren't otherwise covered in the Fair Work Act and modern award and also add a little bit of protection for you. Things like what is the rules around intellectual property around the dissemination of confidential information, documenting all of these things to protect your business. Moving on now, I want to have a look at a few risks that employers should be aware of that we're seeing more and more come through the courts at the moment. So three key risks I want to touch on today are unfair dismissal, adverse action and discrimination, and bullying and harassment. Unfair dismissal is probably the most common of the three that you've heard of. Now a dismissal of an employee will be deemed unfair unless there is a valid reason or is a genuine redundancy and a fair process has been followed. So what I want to do here is separate those two arms that we have. We've got two reasons why dismissal may be unfair. One, because the reason was harsh or unjust. Or two, because a fair process in the way that employee was terminated was not allowed. And it's so important to make sure we tick off both of these boxes to protect yourself from unfair dismissal. One thing you'll notice in our definitions here is that it's the reverse oneness of proof that guilty and filled for even innocent. An employee may be dismissed. They can go online to the Fair Work Commission, pay $86 and fill out a form online, and then it's up to you to prove that it was not unfair. And how do you do that? Documentation and proving those processes. Now jumping back in terms of unfair dismissal, there is a limited jurisdiction to the Fair Work Commission. So the employees that are able to apply for unfair dismissal if you are a business owner with less than 15 employees, i.e. a small business, then an employee needs to have 12 months or more continuous service before making a claim for unfair dismissal. If you are a business with more than 15 employees, an employee needs to have 6 months continuous service or more before making a claim. Now casual employees ordinarily do not have access to the Fair Work Commission jurisdiction for unfair dismissal. Having said that, if they are a regular and systematic casual, i.e. they've been on the books for a couple of months or a couple of years, they're regularly on your roster working similar days, similar hours, there is a genuine risk that they could be deemed regular and systematic casual and in which case they would be deemed a permanent employee that could access this realm. This is also the case for contractors where you have an independent contractor who is not an employee, but again, if they look like an employee in that you're dictating their hours, you're dictating their uniform, you're supplying them tools, they're driving your vehicles, they're supervising your apprentices, they're completing work for the business as opposed to separate to the business. Again, there's a real risk that they could be covered here. Now, the jurisdiction of the Fair Work Commission only applies up to employees that earn under $142,000 per annum. So if any of those are senior-level management roles that are earning in excess of $142,000, this protection does not apply to them. Now, to give you an example, jumping back to the reasons why dismissal might be considered unfair. As an example, we had a recent case in which a truck driver was terminated for urinating outside the entrance to a customer's warehouse. Now, although that is a valid reason for termination, the employee was awarded $16,000 because the employer terminated the employee without giving the employee an opportunity to respond to the allegations. And if they were to do so, they would have understood that this employee had diabetes, which means he suffered from urinary urgency. Now, whether or not that would have changed the employer's decision of whether or not they terminate will never know that the fact that he wasn't given an opportunity to respond in and of itself made this decision unfair, and we saw this five-figure payout from that. So it's really important to make sure that we're documenting our processes and we're ticking all those boxes, which we'll look at shortly. Also, keep in mind, we want to use probationary periods of employment wisely. We can set these probation periods for our permanent employers and look at it like a try before you buy. You know, during this period of time, they can be terminated for any reason. We also want to make sure we're giving continuous feedback to our employees. We don't want to wait for an annual appraisal to give someone all of their performance feedback. We want to address something as soon as it becomes an issue and notice it and document it down. Moving on to the next risk that we face as business owners and something that I personally think is the scariest risk of them all is adverse action and discrimination. Now, I like to refer to this as the sleeping giant of the Fair Work Act because it not only protects employees and all employees, but also prospective employees and current employees. So an employee can still be employed by you and still working with you and put in one of these kinds. So what is adverse action? Basically, you can't take any action to the detriment of an employee because of a prohibited ground. This includes termination, but it could also include a change of roster, cutting their hours, discipline reaction, even not giving them a pay rise, promotional training opportunity. So the next question we want to look at is what is a prohibited ground? Now, this could be anything from discrimination based on their personal attributes. So their race, their gender, their sexual orientation, their religion. It could also be because they exercised a workplace life and they raised the grievance. They questioned their pay slip. They made an underpayment claim. They submitted a worker's compensation claim. All of these reasons, we cannot take any action to the detriment of an employee. Now, the biggest issue with these claims is that, again, there's a reverse illness of proof. So you as an employer are basically guilty until proven innocence. So when an employee makes a claim like this, it's up to you as an employer to show that the action you took was not connected to that prohibited ground. So that if someone's had their roster cut, you need to show that it wasn't because they questioned their pay slip the week before. You know, it's a matter of making sure that we can provide evidence for this and documentation to protect ourselves here. In terms of penalties and remedies, the issue here is that compensation is uncapped. So it could be any amount of money awarded and you often have those no-win, no-see solicitors will advertise, you know, trying to get clients that way. So, again, for an employee, it's no skin off their nose to make these claims but it's going to cause a big headache for you as you don't have your housekeeping in order. For an example, in a recent case, an employee claims she was terminated because she made a bullying complaint. But because the employer could show records of meetings to discuss poor performance and that they had followed their comprehensive performance management process, the claim fails. So this is how we protect ourselves. So last risk we want to look at before looking at a good process is bullying harassment. Now, it's estimated that the financial cost of bullying to Australian businesses is up to $13 billion per year when we think about how widespread it is and how it can really affect business in more ways than once. Now, bullying has always been protected under work health and safety legislation but since 2014, workers are now able to make claims to the fair work commission directly. It's easy to watch the claim. The last time I checked the price, it was $67.20 and we're seeing a rise in claims again because this is becoming more and more accessible. So looking at bullying and harassment, there is a difference between the two types of behaviour. Now, bullying is where a person or a group of people repeatedly behave unreasonably towards a worker or a group of workers at work and the problem here is we're saying the definition of at work. You know, where do our obligations there as an employer end? You know, we've seen bullying cases where people have been contacted on social medias outside of work hours on Facebook Messenger but it's still considered at work when the employer is reading them at work. So these are the kinds of things we need to be concerned with. In terms of harassment, we're talking about unwelcome conduct that offend, humiliate or intimidate the person or a protected characteristics under anti-discrimination legislation which is gender, race, ethnicity, disability, etc. The behaviour doesn't need to be repeated. It could be a one-off comment that offends or humiliates. It's really important that we have a comprehensive policy in place not only because we're legally required to be able to prove a fair process and to have something in place that acts not only as a resource for the employee, but also for your frontline managers if you're a bigger business. How do they deal with these issues? They then have in that policy a go-to guide that they can look at and go through that process without causing any risk to the business. As I mentioned, it's really important to look at what that bullying conduct at work encompasses. So we're talking about both the performance of work, be it at any time or any location, and where the worker is engaged in some activity which is otherwise permitted by their employer. So social staff gatherings or staff parties, internet usage during breaks at work, these things are extended to be the definition of at work. Now, this is not to say that as an employer we never want to performance manage employees the risk of a bullying claim made against ourselves. But again, it's very important to be able to protect yourself by spelling out what is bullying and what is not bullying. So in that instance, reasonable management action conducted in a reasonable manner is not bullying. And spelling that out to our employees so they understand if they might be a little bit too precious for lack of a better word, spelling out that what's happening right now is not bullying, that you're speaking to someone about genuine performance issues. Now, we've spoken a lot about the risk to the business, but how do we mitigate these risks? It's important to look at what a fair process is. So in an instance where we want to have a disciplinary meeting with an employee, we want to notify the employee that there's going to be a disciplinary meeting. So a notice of meeting letter that's going to spell out where the meeting is, when the meeting is that the employee is welcome to bring a support person if they're choosing and items to be discussed to be specific allegations of misconduct, true to performance issues and KPIs that they're not hitting. We then want to give them the opportunity to respond so it's no good turning up to a disciplinary meeting with a tight letter of termination ready to issue because you're not showing that what they had to say during that meeting was taken into consideration. So giving that person an opportunity to respond to the allegations or respond to the performance issues during the meeting to really get to the bottom of the issue and understand what is going to be a viable step moving forward in this performance management cycle. As I mentioned, we always want to allow the employee to bring a support person as their choice and it's really in your best interest to have them there so that they can't make a claim to say they were denied a support person. We did see this recently in the Channel 7 cases of harassment that was made that was really publicised last week and the main claim from the employee that she was not provided as a support person. So, you know, it's something that can bring people on so quickly and in that instance they are exactly that they're a support person. They're not there to advocate on the employee's behalf. They're there to pause the meeting in case things get emotional. They're there to offer that support but they're not there to run the meeting on their behalf. And I always recommend when we start the meeting outlining those ground rules from the start. Now, depending on the reasons for the disciplinary action if we're talking about performance issues we need to give the employee an opportunity to improve. So where the employee has failed to meet key performance indicators or failed to adhere to their job description during that meeting we want to find out why, what's going wrong, do they need more tools, more resources, more training and we want to give them time to be able to address those performance issues. So if the issue is something simply is the lightness you know, that an employee is constantly late to work we're only going to give them a week. A week maybe two to be able to get their act together and get to work on time. But for the example of if you're in a real estate business and you're not needing sales targets of properties an employee is going to need eight to twelve weeks to be able to action that and see some improvement. So where we do set those measures for improvement we really need to be providing reasonable timelines and considering what that is. In the instance of misconduct so we're having a meeting for workplace violence or theft you don't necessarily need to give the employee an opportunity to respond or sorry, an opportunity to improve. We no longer work on these three strikes in your outlaw it's really based on the nature and severity of the conduct but we still do need to follow the steps proceeding that. Now I do want to change pace a little bit and look at our contracts and policies and why they're so important. Now I'm preaching to the choir myself because my job day in, day out is writing employment contracts and policies for business and what I see in them being so important overall for business is it spells out exactly what's expected from employees. So our contracts from our legally binding perspective they're a bit of a set and forget unless they change classifications or their employment terms and conditions very significantly we're going to set them up and leave them there. So it's going to create certainty around what you are entitled to what you aren't entitled to. Will you be paid annual leave wordings for periods of annual leave? Will you be paid penalty rates? All of these things we want to be covering off in our contract. It also means that we can set contractual obligations for the employee saying that they must adhere to all policies and procedures as an expectation in their contract. Now we want to be able to provide protection for yourself as employers so spelling out causes regarding post termination restraints and non-flocation causes so your employees can't take clients with them. Setting up what a reason for someone being terminated might be so you've already got the process to show that this is why you may be terminated so the reason can't be considered harsh and unjust. Looking at things like confidential information intellectual property, these are all the kinds of things we want to still add in contracts. I also like to still add in contracts what I would consider essential requirements of roles. So if you are a health practitioner you must be registered through APRA and you must maintain that registration so that to me is very important to put in contract. If someone requires their car to travel to client's clients it's going to be very important that they maintain their driver's license but they maintain their car that is insured. If they are working in the building and construction industry they are going to need a white car, they may need working at height clearances, forklift clearances. These are all the kinds of things we want to still add in contracts to put the obligation on the employee to maintain these qualifications because where they don't this can impact the business as well and if someone loses their license to present driving and they need to get to client's rights that's going to put a burden on the business. So making sure we spell this out to protect you. In terms of policies this is where we look at setting and enforcing expectations so spelling out everything from job description to how people are to request time off to how people are to clock in and clock off every day at work is going to be so important and really take a lot of the headache out of managing staff for you. Small business owners it's quite difficult because you often they're side by side day in day out with employees and you can't help but forge friendships with them so it can be quite awkward to have those difficult conversations about needing expectations. When everything's written down in paper and black and white it's written here it's black and white it makes it much easier to point out conversation because it takes the personal side and the emotional side out of it. I'm looking at a simple perspective of morale and productivity. I personally as an employee much prefer when I start a job and I'm giving these documents because that way I know what's exactly expected of me. I don't have any questions or uncertainties lingering about what does my pay include and what exactly is expected of me before termination so it's definitely works both ways here as well. In terms of looking at policies and contracts and what should be in each of them I did touch in terms of looking at policies and contracts and what should be in each of them I did touch on this before but just to clarify our contract is our legally binding terms and it is legally enforceable so looking at those bare bones terms and conditions as an example in a contract for a full-time employee we might say you are entitled to four weeks annual leave in accordance with the Fair Workout. The policy however on annual leave might say I need X amount of weeks notice before you take annual leave because our very busy times are during December you can't ordinarily take leave before Christmas you need to make these requests and fill out a form before making any holiday arrangements like booking flights or accommodation spelling all of these things out would be in the policy side of things. Because the contract can't be amended without the employee consent that's why we spell out the bare bones and leave it there but the policies they are your rules they are your expectations you can amend it any time they can acknowledge that they have received a copy of that document and you can change it at any time. One thing I like to also say is not to incorporate policies in the contract and I see it so often with employers they have a letter of offer that's kind of turned into employment contract that also has a few policies regarding work health and safety and drugs and alcohol the problem with that is when it's in the contract it's legally binding so something as simple as you're saying you will be paid weekly on a Wednesday and you change the payroll date to Thursday you've breached your contractual obligations as an employer so it's really important to make sure we separate those two. Now I've spoken to you about what you need and I hope I haven't overwhelmed you too much when we look at the basic framework for employment relations here but to give you a little bit of idea of where I'm coming from and spelling all this out this is what EmployeeShore does where essentially your HR manages. So myself for another field consultant would come out to your business do a comprehensive review and gap analysis of where we're at we would advise on things like award coverage we would draft our comprehensive contracts in the way that you want your business run and a comprehensive employment handbook as well. So once you have that framework set up you're on the track to success but the best part I like about our service even though I am a little bit biased is our advice line. So we have a offices based in Sydney, Perth and New Zealand and in those call centres if you will we have employment relations and work health and safety experts that are there to answer your call 24-7 everything from I have a trainee or a new starter I need to know the correct rate of pay to offer them under the relevant award through to have had a customer complaint or an employee has made a complaint about bullying and not sure where to go from here we can walk you through the investigation process and disciplinary process step by step in the instance where you need to have a disciplinary meeting we write the notice of meeting letter for you we write the notice of termination for you we do all of the correspondence for you pretty much everything through to job advertisements recruitment questionnaires choose to performance management performance improvement plans commission schemes everything you need for your business and some of these tools and documents we can do for you. When you call our advice line follow our advice that's where our insurance package comes into it so if we give you advice about terminating an employee if you follow our advice and they still come back and make a claim against you you are protected through QBE insurance and this is all included in our membership fee right or wrong whether you follow our advice or not we offer legal representation for every step of the process so when we're talking about any kind of mediation through their work we have a claim team that will handle that for you and when we're talking about going to court we outsource the sparkle lines is it not a cost to use a business leader so it's really important to get us on board for peace of mind and knowing that we're always there to help you work through all of your compliance with the business and this is for both HR and human resources and work health and safety so I hope that's giving you a great overview and I believe Jeff is going to jump in and help us facilitate a bit of a Q&A with any questions that you might have Thanks Karin so we do have some questions already if you would like to ask a question please use the chat facility on the left-hand side of your screen so the first question we have is how binding is a probation period written into an employment contract? Yeah, very good question so with the probation periods into employment contracts they are binding for long as they are compliant with what the law says now there's no black and white rule under the law regarding probation periods so I won't find that word mentioned in the legislation but what you will find are those jurisdictional issues regarding unsettlement so as I mentioned a business with more than 15 employees you've got to have 6 months service or more so a business with less than 15 employees you need to have 12 months service or more so as long as your probation period is under those numbers for the size of your business it will be compliant it will be enforceable but the recommendation of what I personally like to include in client contracts is to say an option of 3 months sorry a probation period is 3 months with an option to extend the reason why I like to do that is it encourages proactive performance management before everyone's gotten a little bit too settled and a little bit too complacent so you have that opportunity at 3 months to have a meeting and say okay I think you're doing excellently at ABC but you need to improve on XYZ I'm going to extend your probation period for 4 weeks and we'll review again then in that situation our clients are able to give us a call we can write the letter for the probationary meeting we can write the outcome letter for the probationary meeting an email of AC to give to the client excuse the employees so again every step of the process is covered I hope that answers the question Thanks Karim while we wait you'll see the in-room survey pop up on the right hand side of your screen please ensure you hit the orange submit button once you've completed the question our next question can an employee's support person speak at a meeting on the employee's behalf look it's a really tricky one there and I would like to take that on a case-by-case basis I think depending on the nature of the issue that you're addressing and the employee themselves what we often find with claims about bullying or fair processes that a lot of it comes down to employee interpretation we're all speaking English but the way I say something might be interpreted differently by someone else so what we really need the employer to do is to set that space and explain that we're not here to reprimand you they're here to get to the bottom of what's going on because ideally and what I like to fill out during performance management meetings is no one's sitting here wanting someone to get fired you know it's a horrible thing to do as an employer and you essentially want that employer to improve and to become your star performer again and it's a matter of spelling that out to the employer saying this is a safe space this is what we want to discuss you need to help us help you and how can we get through it now in terms of a black and white rule of whether or not they can talk on their behalf like I unfortunately can't say yes or no I'd really like to look at it on case-by-case basis I'd prefer that our advice line can do this someone you know we can talk in-depth confidentiality not confidentiality about the person's personality traits against their clients there's allegations made against them in a meeting through to you know what their previous history is and we can work out a strategy there that's going to be specific to that set of circumstances thanks Jeff thanks Karin so just if you do have any final questions in the chat box on the left-hand side of your screen wait a few moments to see if any come through thanks Jeff and one thing I want to point out as well is while I have given you a general overview today of the framework as you can see there are a lot of specific things that are important to a business and if you would like one of our team members to get in touch with you to work out a time where we can come out in one on one speak to your obligation free regarding your workplace compliance just let us know in that survey on the right-hand side of the screen and I'll have a team member get in touch and we can work that out together well Karin it appears as though we have no further questions coming through so did you have any closing remark look I just want to thank everyone for your time today I hope I haven't over overwhelmed you too much yes we do have a complicated workplace relations framework but it's understanding that there's a solution out there and that's exactly what we do day in day out so give us a call give our advice one call for anything that can help you with step by step that's exactly what we're here for so hopefully I've provided some light for you today on this issue and I'll really thank you for your attendance and listening in Thanks Karin and thank you to everyone for joining today's webinar we hope you gained some valuable insights and found the technology easy and engaging just a reminder that you will receive a copy of the webinar recording within 48 hours we look forward to seeing you at our next event thank you