Paulette - Employment Relations Expert, Author at Fresh HR Insights Human Resource Experts |Gold Coast | South East Queensland | Brisbane
Casual Conversion – Steps to take AFTER 27th September 2021.

Casual Conversion – Steps to take AFTER 27th September 2021.

Steps for Businesses with more than 15 employees to take AFTER 27 September 2021.

 Step One:

  1. Have they been employed for 12-months?
  2. In the previous 6-months have they worked a regular and systematic pattern of hours that without a significant adjustment they could continue working in the capacity of full-time or part-time.
  • If they have not been employed for 12-months (yet) – no steps to take. Do not need to provide written notice.
  • If they do not meet the requirement at 9b), must give written notice as per Step 2(A)

Note: this is a one-off obligation on employees 12-month anniversary – not every 12 months

  • Still need to offer conversion to employee at the 12-month mark who are not offered conversion in the transitional period (period up to 27th September 2021)

Step Two (A)

If the casual has been employed for you for 12-months or has not work regular and systematic pattern of work for at least 6-months which without a significant adjustment they could continue working in the capacity of full-time or part-time then:

  • Give the employee a written notice setting out.
    • That a written offer of conversion will not be given
    • The reasons why a written offer is not being given. This may include.
      • Not employed for 12-months
      • Work pattern not regular or systematic for a period of 6-months which the employee could continue as a full-time or part-time employee.
      • Or any other reasonable grounds such as known business changes coming up that.
  • Employees cannot request conversion until they have worked regularly and systematically for 6-months.

Step Two (B)

If the causal has been employed for a period of 12-month and has worked at least 6-months in a regular and systematic pattern of work which can be continued in a full-time or part-time capacity without significant adjustments, then.

  • Consider if there are any reasonable grounds for not making the offer.
  • If reasonable ground exists, then give written notice as per step three (A)

 What are reasonable grounds?

  • The employees’ position will cease to exist in the period of 12 months after the time of deciding not to make the offer.
  • The hours of work which the employee is required to perform will be significantly reduced in that period.
  • There will be a significant change in either or both of the following in that period.
    • The days on which the employees’ hours of work are required to be performed.
    • The times at which the employees’ hours of work are required to be performed.

Which cannot be accommodated within the days or times the employee is available to work during that period?

  • Making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or Territory.

 Step Three (A)

If there are reasonable business grounds for not making the offer of permanent employment the employer must give the employee a written notice setting out

  • The employer is not giving a written offer of conversion.
  • The reasons why the employer is not giving an offer of conversion (e.g. what the reasonable grounds for not making an offer are)
  • Must be given within 21 days of the 12-month anniversary.
  • Such an employee cannot make a request for conversion for a further 6-months.

 Step Three (A)

If the casual employee has been employed for 12 months and has worked at least 6 months in a regular and systematic pattern of hours which the employee could continue in a full-time or part-time capacity without any significant adjustments needing to be made and there are no reasonable grounds for not making the offer of conversion, then.

  • The employer must give the employee a written offer to convert.
    • Either on a full-time of part-time basis depending on the pattern of hours worked
    • Make this offer within 21 days of the date of assessment (but before 27th September 2021)

 Step Four (A)

If the employee declines the offer or does not respond within 21 days of the offer being made, then they can continue as a casual employee.

  • An employee cannot make a request to convert for a further 6 months.
  • Recommended that a letter is given to employees confirming they will not convert.

 Step Four (B)

If the employee accepts the offer to convert the employer must within 21 days of acceptance

  • Discuss with the employee the following matters and then give the employee a written notice confirming.
    • Whether the employee is converting to full-time or part-time employment
    • The hours of work after the conversion takes effect.
    • The date the conversion takes effect (which must be the first day of the employees first full pay period that starts after the day the notice is given unless the employee and the employer agree another day)

 

SEE DIAGRAM BELOW.

Steps AFTER 27Sept2021 Casuals - Casual Conversion - Steps to take AFTER 27th September 2021.

Need help and support with your casual employees including the updated contracts of employment? Contact our team and book a 30-minute FREE discovery session by using the button below 

schedule an appt - Casual Conversion - Steps to take AFTER 27th September 2021.

 

Managing Employees – Policies and Procedures

Managing Employees – Policies and Procedures

Managing Employees – Policies and Procedures: Do You Need Them and If So Which Ones

Having company policies and procedures in place, not only for new employees to signoff on but for all staff to adhere to, building compliance, leadership, and culture; It’s just good business practice.

policies and Procedures - Managing Employees - Policies and ProceduresImplementing defined systems in the workplace, not just around the HR function but also around business operations, codes of conduct, personal mobile devices, and health and safety keeps the business running right. This definition of systems provides clarity to everyone involved. Policies and procedures do not discriminate between one employee to another. Everyone receives the same treatment.

Policies and procedures for new employees set up an operational order. I’m sure you’d like all your employees to do what you want them to do all of the time. In order to achieve this, you need to make your expectations apparent.

Someone walks into work on their first day, “Let’s go. Well, there’s your job.” And if:

  • They don’t do it right;
  • They don’t have their break when they’re meant to;
  • They don’t go home when they’re meant to; or
  • They take leave, and they don’t tell you

It’s your fault if you haven’t sat down and discussed what the employee is supposed to do.

With precise policies and procedures in place, it’s basically like having a work Bible of the way things are done. Remember to include a code of conduct, which is one of the important ones to have in place:

  • This is the way we treat each other.
  • This is what we don’t do.
  • This is what we do and set it out clear as well.
  • They know exactly what to do when to do it, and how to do it. Yes.

Like, when you pick up a new car – I’ll admit that I don’t do it all the time myself – but when you pick up a new car, you will pull out the manual, wouldn’t you?

The employee handbook (policy manual) isn’t any different. If something’s going wrong or not quite working, it’s something for you to go back to get things sorted. The employee handbook adds the same value as a car manual does.

The benefits to having and following an employee handbook are numerous; if something does go wrong, you’ve got a reference and guidance to fall back on. And, say, for example, an employee wants to take leave. Now, in a lot of the central policies I put in place is do not assign consent until it’s been authorized. Don’t book your travel or you might have to cancel it. Set it out clearly, so staff knows that, “Okay this is the process I need to follow; the same process all employees follow:

  • I need to fill in the leave form.
  • I need to put it in.
  • I can’t book my travel first until I’ve got the authorization back.”

Illustrated policies make that expectation very clear. Another important strategy is the absence of policy. If someone’s going to be sick, the administration clearly outlines:

  • Who do, they call and what number(s) to dial?
  • How far in advance from their shift do they need to call?
  • What happens if they are sick on a Monday or a Friday, or before or after a period of leave?

Give it to everyone and make sure they sign and a record of their signing off is filed in their file. When this is done as part of your policies and procedures, they have signed and acknowledged that they understand and agree to abide by the policies and procedures, you have a mechanism then to take managerial action up to and including disciplinaries.

You can call someone to a meeting and say, Hey look, you haven’t followed our procedure. You are aware of it. You signed it on this date. We are looking at taking formal action against you.”

I’m not going to discuss disciplinaries currently because there’s a whole process around that, and I don’t want to confuse matters, but by having the policies in place, you have a professional mechanism in place to be able to enforce a fair disciplinary process.

Everyone understands the expectations. Ensure individuals are all treated fairly, and disciplinaries are consistent. That’s important, so there’s no discrimination, no harassment, no accusations of bullying, or treating people differently because of a particular characteristic.

Employee handbooks should include all the expectations of the company. I would recommend but not limited to these sections in a Handbook, complete with a fact sheet and sign of sheet:

  • Our General Business Principles
  • How We Conduct Ourselves
  • Employee Duties and Responsibilities
  • Understanding attitudes of success
  • Diversity
  • Open Door Policy
  • Code of Conduct
  • Disclosure of Personal Information
  • Conflict of Interest
  • Attendance and Absenteeism 
  • Leave Policy
  • Leave without Pay
  • Internet, Email and Computer Use Policy
  • Social Media Policy
  • Personal Phone Calls at Work
  • Mobile Phones

Make sure to update the handbook when new laws come into effect, or there are significant changes. The handbook sets out some of the signs of policy breach and then what the employer will do if that happens. A directive may be to go home. If they’re intoxication, they won’t be driving. The directions that you’ll need to make and what the consequences are. It’s essential to make sure that everyone knows the results. If you need one Fresh HR Insights have you covered. 

FOM6 - Managing Employees - Policies and Procedures

 

 

 

Internet, Email, and Social Media Use

Employers need to consider these policies seriously. I’ve had a past client who dismissed someone when they turned up at work because they had written something on social media that wasn’t particularly polite. However, they had no policy in place. That’s considered unfair dismissal. They didn’t follow a process, and they ended up having to pay about four and a half grands because the employee made a claim, and they didn’t have a written policy in place. The expectations weren’t clear, and they didn’t follow a procedure. They got fined for that.

  • Privacy policy: that’s to do with giving out the records of your staff, which is crucial because we have the privacy act. So, you need to make that clear as well.
  • Workplace bullying. That’s another big one — the legislation changes with workplace bullying. An employee does not have to go through the company processes. They can go straight to Fair Work Commission now, – and lodge a claim.
  • Health and safety as well. Very important.

If you’ve got staff, the first thing you need to do is make sure you’ve got your Worker’s Compensation Insurance.

Make sure that you aren’t cheap protecting them in their environment. Provide a safe work environment. I was talking to a Worker’s Health and Safety expert the other day, and there are fines from 50 to 100 thousand. They can be, for breach in not providing a safe workplace for someone. Can you afford that?

Not having the right policies and procedures in place is a considerable risk to your business. You need to have a lot of things, and the system’s not going to cover every eventuality. A lot depends on your business model and your operations. If you’re operating in the construction business, then I would recommend you have a full workplace health and safety policies, process, and procedures handbook regarding just that.

It’s vital to have systems and procedures for HR as well as for all areas of your business. I find that being a business owner, having the systems in place makes my life a lot easier; I can work all my business, not in my business all the time.

For small business owners, don’t go in there to work 23 hours a day and sleep for one hour.

PACKAGES FOR SMALL BUSINESS

Office policies and procedures v4 - Managing Employees - Policies and Procedures

Trades Policies v5 - Managing Employees - Policies and Procedures

When It’s Time to Bring Employees on Board

When It’s Time to Bring Employees on Board

The Right Time to Start Hiring Employees

Onboarding: the action or process of integrating a new employee into an organization or familiarizing a new customer or client with one’s products or services.

Onboarding employees can be tricky. But getting it wrong can prove detrimental to your business. Not only can you open yourself up to potential legal ramifications, but you can also cause unsettled cultural issues within the existing team.

The employee onboarding process, as shown above in the meaning of onboarding, involves bringing a new employee into the organisation. You need to consider the totality of employee relations in taking on the new employee’s in their first month on the job. Employee onboarding includes new hire forms, structural familiarizations, and training as well as meeting essential team members, socializing with company employees, and learning how your company’s processes work – the way we do things around here. Its not all paperwork and compliance however – there is the settling into new norms, new ways or doing things, new process and new personalities to navigate.

Truth time – “The lack of effective onboarding is a major reason why companies lose 17% of their new hires within the first three months and why 20% of all staff turnover occurs within 45 days of employment” Jeff Hyman 2018

Here’s the thing to remember – employees cost not only your time, but they also cost money. You have the wages, the superannuation, Work cover insurance and taxation obligations as well as the services of a bookkeeper/ payroll expert (unless running it yourself) – you also have the required equipment (computer, phone, desk, stationary etc.). This can soon mount up so it’s a really good idea – and one that I promote that you get the budget in order.

Before you decided that yep I am ready to start the process of recruitment and selection and taking on an employee you need to make sure that you’re financially prepared. As mentioned above what I suggest for the small business owners out there is to think about how much they’re going to pay the particular employee. This consideration should be straightforward because payment should be directly associated with the position being occupied (you can get the payrates at the Fair Work Ombudsman – https://www.fairwork.gov.au/pay).

Payment as the first consideration it’s obviously to make sure that as a small business owner you can cover the remuneration that is applicable within the award associated with your industry as well as the level within that Award. It’s essential for a business owner to put aside money to cover the employee’s award for at least three months. You can find all the award information at Fair Work Ombudsman – https://www.fairwork.gov.au/awards-and-agreements/awards)

When the lump sum amount is put into a high-interest savings account and then allowed to just sit there to gain interest over time. Let the savings work for you collecting interest until you need it. And when the time comes that you can afford to pay the award amount every single week for three months, then it looks like you’ll be financially able to employ someone.  You also have a nice little financial back stop – so leave it alone!

There’s nothing worse than bringing someone on board and finding out that you cannot pay them their wage on a consistent basis. 

Book Chapter 1 - When It’s Time to Bring Employees on Board

That’s not a situation that you want to experience as a business owner – it can be sole destroying and if not handled correctly you may end up the legal ramifications (Redundancy v Unfair Dismissal).If you get to the three-month mark of putting the money aside and find that it’s not the right thing for right now because you’ve had to think about it, then no worries you’ve got a little investment money for your troubles.

 

Remember, once you bring someone on board, depending on what kind of employee you’re bringing on, you want to be covered. If your situation requires an occasional, then you’ve got a bit more flexibility. But if you’re looking for a permanent part-time/permanent full-time, you’ve got a notice period to consider on top of the weekly. I can’t stress this enough – be prepared. You don’t want to back yourself into a corner; that’s for sure.

“Set aside at least three months saving in a high-interest savings account!”

 When you bring a person on board as a small business owner, it’s tempting to carry on wanting to manage the entire process and not letting go. Starting to map out the letting process is critical. There’s no point bringing an employee on board and becoming that helicopter. Nobody likes a micromanager. Not to mention, it’s a waste of time and resources.

You want to free up time to work on your business, not create more time working in your business. And that’s why you’re going to bring on an employee.

You also need to ensure you have the workload and workflow for them to stay busy. It’s annoying if you’re paying a wage to someone and they are just sitting there doing nothing. And you’d be lying if you said, “No, won’t.” you will. Again, this comes down to what business you’re running and what you need the employee to do.

Within the first three months, you have a three-month grace period to examine the working relationship between your operations and the new employee. Use this time to work out the role and everything. Now, if your business is fluctuating where some weeks are busy, and other weeks it’s quiet, I would recommend you look at getting casual.

A casual employee doesn’t have set hours. Each day is placed into their contract, and then they start again the next time you have them in. One week you might only need them three days out of the week. And the following week you might need them four days. And the next week you might only need them for one day. With a casual, you’ve got that flexibility. Whereas for the permanent part-time person or a permanent full-time, they have consistent, regular hours and you must pay them even if there’s no work for them. So that’s why casual for specific circumstances is a much better option.

Now, there is casual for conversions across all the awards,  so you need to be mindful of that.

But that doesn’t apply to an irregular or casual. Someone who’s hours are all over the place. You don’t need to worry about it if you’ve got a regular casual, only if you’ve got a systematic or consistent casual when their hours are predictable does it apply; this is something that I can help you navigate.

Here’s a free hiring checklist so you can go and have a look at what the employer/employee relationship can be. The list also shows all the different categories of staff personnel that you can employ. Checklist the expanded directory is available on the business.gov.au website. Use this checklist as a guide when you’re looking to hire people.

  • What kind of employment are you offering?
  • Is your worker an employee or a contractor?
  • Can your employee legally work in Australia?
  • What are your employee’s rights under anti-discrimination laws?
  • What are your recordkeeping requirements?
  • Are you paying the correct wages and entitlements?
  • What tax do you need to deduct from your employee’s pay?

All onboarding is essentially induction and assimilation of a new employee into a company or organization. The onboarding process gives new employees an upfront and in-depth understanding of company’s brand, values, and environment. On boarding done correctly helps to clarify the workplace culture, institutional expectations, and performance benchmarks. In short, it is the process by which employees get acquainted and are successfully assimilated into their positions within your company.

From the initial welcome, paperwork, and job requirements, the entire process can become very time consuming and frustrating. If handled poorly, it can decrease attrition and increase turnover rates. But if done systematically, employees can be developed into satisfied team players.

Key hiring and onboarding essential to keep top of mind:

  • Compliance: Legal compliance and compliance with organization rules;
  • Explanation: Ensuring employees understand their new jobs;
  • Logistics: Help new employees show up at the right place to do their jobs.
  • Culture: Providing employees with a sense of organizational norms;
  • Management: Good management removes silos and provides support in the process of getting their job done right; and
  • Training: Consistently provide new employees with learning opportunities that will bring them up to speed quickly.

These are some pillars of a company’s potential onboarding strategy, that if built well can positively affects a company’s growth over the long term.

Jump on over and Grab our ebook/ manual Induction, Orientation, and Onboarding of New Employees

Induction Orientation and Onboarding Cover - When It’s Time to Bring Employees on Boardion 

Annual Wage Review 2021

Annual Wage Review 2021

The Fair Work Commission has announced a 2.5 per cent increase in the minimum wage and related award minimum wages. Effective from the first full pay period after 1 July 2021

The NMW will be $772.60 per week or $20.33 per hour. The hourly rate has been calculated by dividing the weekly rate by 38, on the basis of the 38-hour week for a full-time employee. This constitutes an increase of $18.80 per week to the weekly rate or 49 cents per hour to the hourly rate.

1
  • All Modern Awards except those in group 2 and 3 below
1 July 2021
2
  • General Retail Industry Award 2020
1 September 2021
3
  • Air Pilots Award 2020
  • Aircraft Cabin Crew Award 2020
  • Airline Operations – Ground Staff Award 2020
  • Airport Employees Award 2020
  • Airservices Australia Enterprise Award 2016
  • Alpine Resorts Award 2020
  • Amusement, Events and Recreation Award 2020
  • Dry Cleaning and Laundry Industry Award 2020
  • Fitness Industry Award 2020​​​​
  • Hair and Beauty Industry Award 2010
  • Hospitality Industry (General) Award 2020
  • Live Performance Award 2020
  • Mannequins and Models Award 2020
  • Marine Tourism and Charter Vessels Award 2020
  • Nursery Award 2020
  • Racing Clubs Events Award 2020
  • Racing Industry Ground Maintenance Award 2020
  • Registered and Licensed Clubs Award 2020
  • Restaurant Industry Award 2020
  • Sporting Organisations Award 2020
  • Travelling Shows Award 2020​​​​​​
  • Wine Industry Award 2020.
1 November 2021

Next steps for businesses

Following this wage increase, employers will be required to:

  • Review the wages of their employees;
  • Ensure that processes are in place to implement the required changes;
  • Consult with employees to ensure that they are aware of changes that apply to them.
Workplace Bullying – what happens when you are a Volunteer?

Workplace Bullying – what happens when you are a Volunteer?

Workplace Bullying – Never acceptable in today’s workplace’s but what about when you are a volunteer?

Section 7 of the Work Health and Safety Act 2011 (‘WHS Act’) defines who is a worker for the purposes of that Act. Section 7(1) provides:

Meaning of worker – A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

  • an employee; or
  • a contractor or subcontractor; or
  • an employee of a contractor or subcontractor; or
  • an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
  • an outworker; or
  • an apprentice or trainee; or
  • a student gaining work experience; or
  • a volunteer; or
  • a person of a prescribed class.

The term volunteer used in s 7(1)(h) is defined in s 4 of the WHS Act as “a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).

s 789FC of the Fair Work Act 2009 – Broadly, for the purposes of the Work Health and Safety Act 2011, a worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others (C2018/7096) Volunteer participant in Government-funded program – Found to be a worker

Bibawi v Stepping Stone Clubhouse Inc t/a Stepping Stone & Others showed that a person who was both a client and a volunteer with a service was ultimately considered a worker. The appeal judge overturned the original finding, that Mr. Bibawi was not a worker. The original finding, that he was not a worker, was made in part because he benefitted from the service he participated in as a volunteer. Initially, the Commission dismissed Mr. Bibawi’s application for an order to stop bullying. The Commission found that Mr. Bibawi did not satisfy the definition of a worker and held no jurisdiction to determine the application. On appeal, Mr. Bibawi contended he undertook work in any capacity for’ Stepping Stone consistent with the WHS Act definition. The Full Bench found Mr. Bibawi satisfied the definition of ‘worker’ and was thus competent to make an application for an order to stop bullying under s.789FC. The Full Bench Found that even though the work performed by Mr. Bibawi was done as part of a program funded by the Government, there was nothing in s.7(1) of the WHS Act (or elsewhere) which would exclude Mr. Bibawi from the definition for this reason.

Was the person AT WORK when the alleged bullying behavior occurred?

Under the WHS Act – the definition of workplace isAny place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. This may include offices, factories, shops, construction sites, vehicles, ships, aircraft or other mobile structures on land or water”.

WHAT DOES BULLYING MEANING?

  1. Workplace bullying is a psychological hazard that has the potential to harm a person, and it also creates a psychological risk as there is a possibility that a person may be harmed if exposed to it.
  2. It is defined as repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
  3. Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.
  4. Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.
  5. Please note that a single incident of unreasonable behaviour is not considered to be workplace bullying, however it may have the potential to escalate and should not be ignored.
Supporting case law

In a recent application the Fair Work Commission by Ms A [2018] FWC 4147, a strata management company in Brisbane, was successful in obtaining an order to stop bullying behavior from the chairperson of a strata committee. Deputy president Asbury ruled that a “war engaged in by email” was not an appropriate way to raise management issues. Particularly, the use of sarcastic and derogatory language in emails, combined with the excessive number of emails, and the publication of those exchanges to other members of the committee was unreasonable. An order to stop Bullying was successful.

Section 28 of the WHS Act imposes four specific duties on a worker. While at work, the worker must:

  • take reasonable care for his or her own health and safety.
  • take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.
  • Comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the ‘person conducting a business or undertaking’ (PCBU) to allow the PCBU to comply with the WHS Act and the Work Health and Safety Regulations 2011(WHS Regulations)
  • co-operate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers.

For support when it comes to complaints of Bullying within a workplace contact the team at Fresh HR Insights

Casual Conversion – More than 15 Employees – steps to take before 27September 2021

Casual Conversion – More than 15 Employees – steps to take before 27September 2021

Steps for Businesses with more than 15 employees to take before 27 September 2021.

 Step One:

Assess all Casual employees employed as at 27th March 2021 to see if you are required to offer conversion to permanent Full-time or part-time employment.

  • This can be carried out at any time before 27th September 2021.
  • Applies to all casuals, regardless of whether or not they meet the new statutory definition of casual employee.
  • Questions to ask at time of assessment.
    • Have they been employed for 12-months?
    • In the previous 6-months have they worked a regular and systematic pattern of hours that without a significant adjustment they could continue working in the capacity of full-time or part-time.

 

Step Two (A)

If the casual has not been employed for you for 12-months or has not work regular and systematic pattern of work for at least 6-monthd which without a significant adjustment they could continue working in the capacity of full-time or part-time then:

  • Give the employee a written notice setting out.
    • That a written offer of conversion will not be given
    • The reasons why a written offer is not being given. This may include.
      • Not employed for 12-months
      • Work pattern not regular or systematic for a period of 6-months which the employee could continue as a full-time or part-time employee.
      • Or any other reasonable grounds such as known business changes coming up that.
  • The conversion will need to be considered again if the employee completes 12-months service after 27th September 2021.
  • Employee cannot make a request for conversion until after the 27th of September 2021.

 

Step Two (B)

If the causal has been employed for a period of 12-month and has worked at least 6-months in a regular and systematic pattern of work which can be continued in a full-time or part-time capacity without significant adjustments, then.

  • Consider if there are any reasonable grounds for not making the offer.
  • If reasonable ground exists, then given written notice as per step Two (A) above

 What are reasonable grounds?

  • The employees’ position will cease to exist in the period of 12 months after the time of deciding not to make the offer.
  • The hours of work which the employee is required to perform will be significantly reduced in that period.
  • There will be a significant change in either or both of the following in that period.
    • The days on which the employees’ hours of work are required to be performed.
    • The times at which the employees’ hours of work are required to be performed.

Which cannot be accommodated within the days or times the employee is available to work during that period?

  • Making the offer would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or Territory.

Step Three:

If the casual employee has been employed for 12 months and has worked at least 6 months in a regular and systematic pattern of hours which the employee could continue in a full-time or part-time capacity without any significant adjustments needing to be made and there are no reasonable grounds for not making the offer of conversion, then.

  • The employer must give the employee a written offer to convert.
    • Either on a full-time of part-time bases depending on the pattern of hours worked
    • Make this offer within 21 days of the date of assessment (but before 27th September 2021)

 Step Four (A)

If the employee declines the offer or does not respond within 21 days of the offer being made, then they can continue as a casual employee.

  • An employee cannot make a request to convert for a further 6 months.
  • Recommended that a letter is given to employees confirming they will not convert.

  Step Four (B)

If the employee accepts the offer to convert the employer must within 21 days of acceptance

  • Discuss with the employee the following matters and then give the employee a written notice confirming.
  • Whether the employee is converting to full-time or part-time employment
  • The hours of work after the conversion takes effect.
  • The date the conversion takes effect (which must be the first day of the employees first full pay period that starts after the day the notice is given unless the employee and the employer agree another day)

 SEE DIAGRAM BELOW

Steps before 27Sept2021 Casuals - Casual Conversion - More than 15 Employees - steps to take before 27September 2021

Need help or support when it comes to the casual employee conversion process then book in a FREE 30-minute discovery session using the link below

schedule an appt - Casual Conversion - More than 15 Employees - steps to take before 27September 2021

CASUAL UPDATES – March 2021

CASUAL UPDATES – March 2021

CASUAL UPDATES 

March 2021 – What you need to know

Entitlement for casuals to convert to permanent employment after 12-months of employment.

Small business (this is businesses with less than 15 employees)

  • no obligation to offer casual conversion.
  • obligation to consider any requests for casual conversion.

 Business with more than 15 employees

  • Transitional period of 6 months (ending 26 September 2021)
  • Requirement to assess existing casual workforce before 27th September 2021 and where it is appropriate to do so offer casual conversion.

 

 New Definition of a casual

 15A – Meaning of a casual

  • A person is a casual employee of an employer if;
    1. An offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and
    2. The person accepts the offer on that basis; and
    3. The person is an employee as a result of that acceptance.
  • For the purpose of subsection (1), in determining whether, at the time the offer is made, the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regards must be had only to the following consideration.
    1. Whether the employer can elect to offer work and whether the person can elect to accept or reject the work.
    2. Whether the person will work as required according to the needs of the employer.
    3. Whether the employment is described as casual employment
    4. Whether the person will be entitled to a casual loading or a specific rate of pay for casual employees under the terms of the offer or a fair work instrument.
  • To avoid doubt, a regular pattern of hours does not of itself indicate a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
  • To avoid doubt, the question of whether a person is a casual employee of an employer is to be assessed on the basis of the offer of employment and the acceptance of that offer, not on the basis of any subsequent conduct of either party.
  • A person who commences employment as a result of acceptance of an offer of employment in accordance with subsection (1) remains a casual employee of the employer until.
    1. The employee’s employment is converted to full-time or part-time under division 4A of part 2-2; or
    2. The employee accepts an alternative offer of employment (other than as a casual employee) by the employer and commences work on that basis.

 

Important Considerations
  • Newly engaged casual need to have contracts that reflect the new definition.
  • New definition applied from the time employment commences. Existing casual employers or casuals cannot simply bring them in line with the new definition by providing a new contract. They need to follow the process.
  • Recommended so that employers can take advantage of the off-set rule to provide all existing and new casual employees with new contracts.

 

Double-Dipping
  • Where an employee is engaged as a casual, but it is later determined that they are in reality a perm employee an employer will be able to off-set any causal loading paid to the employees against any permanent entitlements that arise (e.g., Annual Leave etc)
  • In order to have the benefit of this offset arrangement, the following requirements must be followed.
    • The employment must be described and identified as casual employment.
    • The casual loading paid must have had components that can be identified as being paid to the employee instead of one or more perm employee entitlements.

           

Employment contracts for casuals should contain the following.
  •  Employment type – casual
  • Work will be offered on an as and when needed basis.
  • Employee may accept or decline work offered by the employer.
  • Casual rates of pay and entitlements are in satisfaction of Award/EA rates including casual loading.
  • Casual loading is expressed as a separately identifiable amount, paid in compensation for the employee not having at least one of more of the following entitlement;
    • Paid annual leave;
    • Paid personal/ carers leave;
    • Paid compassionate leave;
    • Payment for absence on a public holiday;
    • Payment in lieu of notice of termination; or
    • Redundancy pay.

 

What you need to do
  • Non-small business;
    • Need to assess and notify all existing casuals before 27th September 2021.
    • Going forward, need to offer conversion after 12-months service – make a note of when this is coming up.
  • Small business
    • Need to respond to conversion requests as they arise.

Make sure offers of employment reflect the new arrangement and that this is reflected in the wording of contracts.

If you need help or support in your casual employment arrangements then please book in a 30-minute FREE discovery session with our team using the below button.

schedule an appt - CASUAL UPDATES – March 2021

Workplace disciplinary procedure – updated blog

Workplace disciplinary procedure – updated blog

What Is the Definition of a Disciplinary Action?

Disciplinary action is a reprimand or corrective action in response to employee misconduct, rule violation, or poor performance. Depending on the severity of the case, a disciplinary action can take different forms, including:

  • A verbal warning
  • A written warning
  • A poor performance review or evaluation
  • A performance improvement plan
  •  A reduction in rank or pay
  • Termination

Employers are sometimes confronted with having to discipline employees ‚ possibly leading to dismissal ‚ over a range of matters. What is regarded as reasonable criteria for a workplace disciplinary procedure? This question was sent to Workplace Info’s editorial team in 2013.

QUESTION: We are currently reviewing our company policies and procedures. Our counselling/disciplinary procedure currently refers to an employee receiving a verbal warning initially, then three written warnings, then possible dismissal. While the Fair Work Act 2009 identifies factors that Fair Work Australia (FWA) takes into account when determining the harshness, etc, of a dismissal, it makes no mention of an appropriate disciplinary procedure.

Because our company employs more than 100 employees, we are not subject to the Small Business Fair Dismissal Code. Is there a counselling/disciplinary process that could be regarded as ‚ ‘fair’ when defending an unfair dismissal application before FWA?

ANSWER: The Fair Work Act (s387) provides the criteria for considering harshness, etc, which FWA must take into account when determining an unfair dismissal application. These criteria are:

  • whether there was a valid reason for the termination related to the employee’s capacity or conduct
  • whether the employee was notified of that reason
  • any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal
  • if the termination related to unsatisfactory performance by the employee, whether the employee had been warned about that unsatisfactory behaviour before termination (disciplinary procedure)
  • the degree to which the size of the employer’s business would be likely to impact on the procedures followed in effecting the termination
  • the degree to which the absence of dedicated HR personnel would be likely to impact on the procedures followed in effecting the termination
  • any other matters that FWA considers relevant. Reasonable . . .

The company’s current disciplinary procedure would appear adequate on the issue of ‚ ≤procedural fairness’, although an employee must be given a reasonable chance to rectifying the problem before a subsequent warning is issued, which may involve counselling the employee or providing additional training.

Warnings While a warning plays a critical role in the context of the fairness, or otherwise, of an employee’s dismissal, other important matters may need to be applied in addition to an appropriate warning procedure. The disciplinary procedure is not unbreakable in that certain types of misconduct could alter the procedure by issuing (say) a final written warning to the employee. However, in the normal course of events, failure to warn an employee that their conduct or behaviour may lead to dismissal would be considered a major omission by FWA.

There are certain instances that should always result in disciplinary action because of the egregious nature of the misconduct. These include:

  • Threats or acts of violence, especially if against employees or customers
  • Sexual harassment or assault, especially in the workplace
  • Fraud, including unauthorized use and misappropriation of funds
  • Theft
  • Discrimination

It is always recommended that an investigation is carried out prior to any action being taken. A workplace investigation is a process of fact-finding. An investigation should commence as soon as possible after you become aware of a serious conflict or allegation of misconduct in your workplace. Why? because ultimately, engaging in timely and effective workplace investigations will save your business time and money. Workplace investigations may be subject to challenge. It is therefore important that you establish a process for investigating conflicts and allegations that is rigorous and procedurally fair.

Need more help with either a workplace investigation or alternatively a disciplianry process? Fresh HR Insights can assist you with your specific people management issues and problems. Contact us today to book yourself in on 0452471960 or paulette@freshhrinsights.com.au

Casual Employment Information Statement (CEIS)

Casual Employment Information Statement (CEIS)

The Fair Work Act 2009 was amended on 26 March 2021 to make changes to workplace rights and obligations for casual employees and these changes apply from 27 March 2021.

The amendment includes a new definition of a casual employee.

An employer (except a small business employer with less than 15 employees) has to offer their casual employee the option to convert to full-time or part-time (permanent) when the employee has worked for them for 12 months, has worked a regular pattern of hours for at least the last 6 of those 12 months on an ongoing basis and could continue working those hours as a permanent employee without significant changes.

There’s now a new proactive obligation on employers, they have an obligation to offer conversion rather than the previous situation of employees making the request.

The obligation to offer casual conversion doesn’t apply to small business employers with less than 15 employees.

There’s also a new Casual Employment Information Statement (CEIS), it’s similar to the Fair Work Information Statement (FWIS) and it needs to be given to every new casual employee before, or as soon as possible after, they start their new job. This is in addition to providing the FWIS.

Click HERE for the CEIS below

Termination – No opportunity to respond – unfair dismissal  (from 2012)

Termination – No opportunity to respond – unfair dismissal (from 2012)

Recently we have written an article – Termination and Making it less stressful for Everyone. We gave some tips and advice on how to handle terminations which let’s face it no one ever said that they actually like doing them. We often hear from employers “its impossible to terminate employees” which we get when you see time and time again case law (like the below) pops up in the media. This does not show the true extent of unfair dismissal claims however as many are settled at conciliation and never make it to public knowledge. 

If a termination procedure is not managed appropriately and carefully, employers can be subject to numerous post-termination claims, including unfair dismissal, adverse action, discrimination and harassment, workers’ compensation and breach of contract – among others. Even if the termination is by mutual agreement or the employee resigns, the employer should ensure they have proper termination procedures in place so as to best protect the employer’s goodwill and property. 

Below are some key areas to watch out for when you are looking to terminate an employee – you can also get some guidance from our Termination Checklist which you can find as a FREE resource HERE 

      1. Ensure that you have workplace policies and procedures in place including code of conduct, performance management, disciplinary, and termination;
      2. Ensure that the expectations are clear to all employees and where someone is not meeting those expectations have a meeting to set them out – ensure you document this process and follow up in writing with the employee the expectations, support to be provided, and timelines to improve;
      3. If the employee is not improving despite support and guidelines being clear you can start the formal process;
      4. When you invite to a meeting make it clear that it is a formal process and ensure that a support person is allowed. You would also give a reasonable time frame of notice for the meeting;
      5. In your communications make sure you include consequences of the conduct or performance is not improved – such as further disciplinary action leading up to and including termination of employment
      6. If a serious conduct issue comes to light, ensure the employee is given a reasonable opportunity to respond prior to any final decision being made;
      7. Ensure overall that the employee is generally given ‘a fair go all round’.

If you need support then you can book a discovery call in with our team by using the button below

schedule an appt - Termination - No opportunity to respond - unfair dismissal  (from 2012)

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No opportunity to respond ‚ unfair dismissal

The dismissal of an employee for poor work performance has been deemed to be unfair. The poor performance had only been one of the reasons for the dismissal ‚ the other being unacceptable behaviour towards colleagues and superiors ‚ and the employee had not been given an opportunity to respond to either of the reasons.

[Full text of this case: B v SPI PowerNet Pty Ltd [2012] FWA 5962 (25 July 2012)]

Unacceptable behaviour due to domestic stress

A procurement coordinator employed by an electricity provider was short-tempered at work and received a written warning on 25 March 2010 because of his behaviour. He was under serious stress because his former wife would not give him access to his young son (who had just started walking) and because he had been involved in a car accident and the person liable for damage to his car was refusing to pay.

In October 2010, the employee also had run-ins with some of his superiors because he thought they were breaching the company’s purchasing policy and exposed it to monetary losses. He then received a final warning in January 2011. In June 2011, he requested to work part-time until early 2012 so that he could care for his son two days a week, but the employer did not respond to his request.

The employee went on leave and returned on 12 September 2011. He was put under pressure because the employer had introduced new software and gave him only half an hour’s training on the new system. Another employee felt frustrated by the new system too, even though she had been given two hours of training.

On 7 October 2011, the employee was told there were concerns about his performance and behaviour and he was given a performance improvement plan. Over three weeks, weekly meetings were held to assess his performance against the plan. At the third meeting, on 28 October 2011, his behaviour and conduct were raised but issues relating to work performance were not. He was dismissed after the meeting, and the reason given was that his work performance had not improved sufficiently.

The employee applied to Fair Work Australia for an unfair dismissal remedy according to s394 of the Fair Work Act 2009, claiming the termination of his employment had been harsh, unjust or unreasonable. A conciliation conference on 29 December 2011 was not successful.

Evidence before Fair Work Australia

Before Fair Work Australia (Commissioner Cribb), the employer claimed a number of formal and informal conversations had been held with the employee about his conduct. He had frequently absented himself from work without permission and had raised his voice in uncontrolled and aggressive outbursts towards his colleagues and manager at work. He had not completed the majority of the tasks set for him, and the quality of his completed work had been poor.

The employee claimed his employer had set him up to fail after he returned from leave. It had changed his job, provided inadequate training in the new system, and made it difficult for him to convert to part-time in order to care for his child. He also alleged that the performance management process had been a sham ‚ a process set up in order to manage him out of his job. The performance plan had been unachievable because it had required him to complete not only his regular weekly work but also a backlog of eight months of work that had not been done while he had been on leave.

Poor work performance

During the three-week performance improvement review period, the employee had worked three days a week and had been on sick leave for two and a half days; so, instead of assessing his performance over three weeks, it had been assessed on only 6.5 days of work.

The tribunal accepted that at the final meeting on 28 October 2011 the employee had not been told where he had not met the performance plan and had not been given an opportunity to speak about the tasks he had completed. Although the behavioural concerns had not been mentioned in the dismissal letter, it was clear that they had also been part of the reason for the dismissal.

The tribunal found that the employer had not established that there had been a valid reason for the employee’s dismissal based on his work performance.

Unacceptable behaviour

The employee’s behaviour at work, with uncontrolled and aggressive outbursts, had undoubtedly been unacceptable. In his witness statement, he said that he had been diagnosed with depression and anxiety already some 21 years previously and that it had been successfully controlled then. His employer, however, had not been aware of his history of depression, but at the same time, it had not enquired either whether his inappropriate behaviour could be related to a medical condition.

The tribunal found that on the basis of his unacceptable behaviour there had been a valid reason for the employee’s dismissal.

Conclusions – compensation awarded

As the employee had not been notified of one of the two reasons for his dismissal, he had not been given the opportunity to respond to that reason. Even in relation to the work performance reason, his performance during the final week had not been discussed at the meeting on 28 October 2009, so it could be argued that he had not been given the opportunity to respond to that either. The tribunal concluded that the dismissal had been harsh, unjust, or unreasonable.

The tribunal was satisfied that reinstatement was inappropriate as a remedy. In calculating compensation, it took into account the employee’s 22 years of service and his salary at the time of the dismissal. It determined that he was entitled to $19,939.28 in compensation. Up until 3 February 2012, he had not been able to undertake alternative work, and after that, he had been able to work two days a week. Hence, a discount of 15% was deemed to be appropriate, leaving the compensation as $16,948.38. However, the figure could not be finalised until the tribunal had information of any other possible payments the employee had received since 3 February 2012.

B v SPI PowerNet Pty Ltd [2012] FWA 5962 (25 July 2012)

Source: http://www.workplaceinfo.com.au (06/09/2012)

Review of Post – Early intervention critical in addressing bullying

Review of Post – Early intervention critical in addressing bullying

Back in September 2012, we wrote the below article. 8 years on what has changed. Not much in reality other than the voice against workplace bully and harassment has only got stronger and the stand against the treatment of women louder. The state of bullying at work in 2021 is at a point where 79% of working professionals have experienced or witnessed bullying at work. Of those that become a bully 52% are co-workers, 33% direct managers, 8% external managers ad 6% other company employees.  

When we look at what makes us bullying in the workplace the most common types are

  • Being picked  on or getting regularly undermined (women 66% vs men 55%)  – 60%
  • Becoming a victim of malicious rumours  – 30%
  • Having someone interfere with your work – 29%
  • Receiving aggressive texts, emails, or phone calls – 23%
  • Getting your work sabotaged – 12% 

It turns out—49% of employees don’t report workplace bullying and prefer to keep it under wraps. The remaining 51% of workers report getting bullied to:

  • Their own boss – 24%
  • Senior manager – 20%
  • HR – 16%
  • Lawyer – 1%

Interestingly, more experienced employees that have been in the workforce for 6–10 years are more willing to come forward and report bullying than their younger colleagues with only 1–2 years of professional experience (59% vs. 46%).  Similarly, working professionals with some university experience (but without a degree) prefer to keep things a secret from others, unlike those with a Bachelor’s or Associate’s degree (37% vs. 52%)

But what can we do about Bullying

Workplace Bullying, Harassment, and Discrimination not only lead to psychological harm to employees but can significantly affect a companies reputation. A failure to understand and manage these issues can result in liability for employers and employees involved in a breach.

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.

It is a risk to health and safety because it may affect the mental and physical health of workers. Taking steps to prevent it from occurring and responding quickly if it does is the best way to deal with workplace bullying.

Bullying can take different forms including psychological, physical or even indirect—for example deliberately excluding someone from work-related activities. It can be obvious and it can be subtle, which means it’s not always easy to spot.

Some examples of workplace bullying include:

  • abusive or offensive language or comments
  • aggressive and intimidating behaviour
  • belittling or humiliating comments
  • practical jokes or initiation
  • unjustified criticism or complaints.

According to Safe Work Australia Managing the risk of workplace bullying involves the following

Organisations can minimise the risk of workplace bullying by taking a proactive approach to identify early, any unreasonable behaviour and situations likely to increase the risk of workplace bullying occurring.

Organisations should implement control measures to manage these risks, and monitor and review the effectiveness of these measures. This could include activities such as:

  • Regularly consulting with workers and health and safety representatives to find out if bullying is occurring or if there are factors likely to increase the risk of workplace bullying.
  • Setting the standard of workplace behaviour, for example through a code of conduct or workplace bullying policy.
  • Designing safe systems of work by clearly defining jobs and providing workers with the resources, information and training they need to carry out their work safely.
  • Implementing workplace bullying reporting and response procedures.
  • Developing productive and respectful workplace relationships through good management practices and effective communication.
  • Providing information and training on workplace bullying policies and procedures, available support and assistance, and how to prevent and respond to workplace bullying.
  • Prioritising measures that foster and protect the psychological health of employees.

If you as a business owner or Manager need help when it comes to your workplace book in a virtual appointment with us today by clicking on the link below. Bullying in the workplace will only stop if we all take a stand and say NO MORE.

schedule an appt - Review of Post - Early intervention critical in addressing bullying

 

 

 

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Post from 10th September 2012

Early intervention critical in addressing bullying: lawyer

Bullying in the workplace – Despite its ‚ ‘symbolic importance’, Brodie’s Law is a deeply flawed response to workplace bullying, according to prominent employment and industrial lawyer who also says the issue should not be confined to the‚ ‘realms of WHS’.

In Sept 2012, Josh Bornstein, principal for Maurice Blackburn Lawyers told a legal forum in Melbourne that a new policy and legislative approach to workplace bullying is‚ ‘overdue’ because the current system does little to afford victims with effective options for relief.

‘One of the keys to sensible legislative and policy reform on workplace bullying is to remove it from its current legal and cultural designation as an occupational health and safety issue,’ he said. Confining [workplace bullying] to the realms of WHS hasn’t worked and won’t work.’

Brodie’s Law – symbolic, but flawed

Bornstein explained that Australia has, for too long, accepted a‚ second-rate system wherein the regulation and policing of this issue is entrusted to state-based WHS regulators, which are ‚ simply not resourced sufficiently to manage the volume of workplace bullying complaints [they receive]’.

He also took aim at the Crimes Amendment (Bullying) Act 2011, dubbed‚ ‘Brodie’s Law’, which took effect in Victoria in June 2011. The legislation extends existing criminal laws that deal with ‘stalking’ under the Crimes Act 1958 so that they apply to cases of serious bullying. This means that people can face up to ten years jail in ‘extremely serious’ cases of workplace bullying.

Brodie’s Law was prompted by the tragic 2006 suicide of 19-year-old Melbourne waitress Brodie Panlock, who was relentlessly bullied during work hours. Bornstein said that while Brodie’s Law is‚ ‘strong as a symbol’ those affected by workplace bullying need‚ ‘better, earlier protection’. Brodie’s law is not a bullying law but a stalking law, he said.

In reality, it’s useless in about 95 percent of workplace bullying cases. Even if it was amended to change that, it is deeply flawed. To give but one illustration of its flaws, imagine you are an employer and an employee turns up to work on Monday brandishing an intervention order prohibiting another employee from going within 100 metres of him or her.’

Criminalization is not a workable model

Bornstein disagreed with calls for Brodie’s Law to be adopted nationally. He also rejected the use of criminal law to address workplace bullying. It is not a workable model, he said. Criminal law should only intrude into the workplace in extreme situations. Most bullying cases are not criminal matters. The criminalization of workplace bullying is a misguided and ineffective way to address workplace bullying and provide victims with remedies.’

Early intervention, education and hard work . . .

Bornstein said that workplace bullying should be addressed by national workplace laws, which establish a ‚ user-friendly, proactive system; wherein, victims can take a complaint to a tribunal or court ‚ well before the situation has escalated to the point of damage to an employee’s health. Early intervention is often critical. Amending the Fair Work Act to allow this to occur would be a step in the right direction. Furthermore, Bornstein said that an investment in an educational campaign about workplace bullying, together with legal reform, would ‚ ‘reap a huge dividend by saving millions in lost productivity, healthcare costs, and social welfare payments.It would enhance managerial skills and improve the quality of our work environment. Also, Bornstein advised employers that implementing codes of conduct and policies is not the solution.

The era of the workplace policy or code of conduct being the key to managing workplace culture is well and truly over. It is one thing for employers to purchase a vanilla workplace policy off the internet. It’s altogether another to actually manage workplace culture. The gulf between culture and policy can and is often significant. Bridging that gulf requires sustained hard work and strong management.’

Myths debunked

During the forum, Bornstein debunked a number of myths about workplace bullying, including the belief that bullying is ‚ ‘unlawful and actionable’. This assumption is wrong,’ he said. Contrary to popular belief and despite the apparent scale of the phenomenon, there is no statutory scheme in Australia that proscribes bullying. The lack of a law that explicitly deals with workplace bullying is quite anomalous.’

Another myth was that workplace bullying is a ‚ ‘misguided reference to a personality conflict’. It has become fashionable by some to claim that bullying allegations are unfounded and simply the result of a personality conflict or relationship breakdown,’ he said. This is a myth generated principally by jaded OH&S regulators and bottom-feeding consultants seeking to drum up work.’ Mental health damage is often invisible to the eye. Bullying behaviors are often subtle or Machiavellian and an accomplished bully can often construct a defense of plausible deniability.’ He also said the view that there is no definition of workplace bullying is wrong.

Most OH&S regulators use working definitions of bullying that are remarkably similar,’ he said. The Draft Code of Practice released on Preventing and Responding to Workplace Bullying, Safe Work Australia defined the term to mean repeated, unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

Source: http://www.workplaceinfo.com.au

A Look At Casual Employee Engagement, Termination And Definitions

A Look At Casual Employee Engagement, Termination And Definitions

Casual employees are quick workforce solutions for the unseasonal, unexpected or inconsistent workload. Casual is a misleading word because it does not place the ‘casual employees’ casual treatment in a good light.

Some casual employment relationships become ‘regular’ or ‘systematic’. Take note that this may allow entitlements not available to casual employees. Here are some case study overviews.

Casual Versus Regular

A truck driver, employed on a casual basis, could be recategorised as a regular even with varying hours week on week and a three week period away from the employer.

The Fair Work Commission (FWC) found that the work commenced at the same time, involved similar functions and occurred for similar reasons as thus was regular and systematic.

A telemarketer was also reclassified as a regular and systematic casual employee. Their weekly hours varied from 20 – 70 hours per week and had different start/end times. The FWC ruled the employee had worked consistently.

Breaks. Including seasonality, between periods of casual employment do not disrupt the regular and systematic nature of the casual employment.

Another case study example is a dump-truck driver employed to work a rotating roster, preset for twelve months, twelve-hour days, every 2nd week and with a flat rate payment. At the time of their ‘casual employee termination”, they disputed their casual employee status, declaring permanent employee status with benefits due.

The Court confirmed that true casual employment is irregular, unpredictable and intermittent.  There is a lack of pattern in the work and no forward commitment.

The employee was recategorised as a permanent employee with accrued benefits due upon termination of the employment.

What Employers Need To Know

It is prudent to examine casual employment arrangements currently in place. Employment must be on an ad hoc basis. Ensure you are aware of any minimum engagement periods for casual employees and any obligations to notify casual employees of conversion-to-full-time rights.

As a casual employee, there is no guarantee of ongoing or regular work and there are no minimum or maximum hours that are guaranteed. Hours worked will be as directed by the employer and may include weekend work. There is no obligation on you to accept the hours as offered. As a casual employee, you are not entitled to paid annual leave or paid personal/carer’s leave. Your unpaid leave entitlements are set out in the National Employment Standards.

Any termination or dismissal has to be valid as ruled by FWC. A written termination letter or explanation must be issued and a Statement of Service. An Individual Flexibility Agreement (IFA) with an employee requires a 4 weeks’ notice of termination by either party.

Under most modern awards, a “regular casual employee” can request to convert their employment if they have worked:

  • for a period of 6 or 12 months or more; and
  • a pattern of hours on an ongoing basis, which the employee could continue to perform as a full-time employee or part-time employee (as applicable), without significant adjustment.

Recent decisions impacting on Casual employment

In WorkPac Pty Ltd v Rossato [2020] FCAFC 84 the Full Federal Court determined that Mr Rossato had entitlements under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act) and the relevant Enterprise Agreement; These were – being paid annual leave, paid personal/carer’s leave, paid compassionate leave, and payment for public holidays.  This came about when the court made the finding that Mr Rossato was not a casual but a permanent employee.

The essential question asked was – “ if an employee agrees to a contract that labels them a casual but their work is systematic (rostered well in advance for example) and regular (set hours and days) and longer-term (happening for years) are they still a casual?”

In the WorkPac decision, the Federal Court says NO

Conclusion

If a casual employee has become a regular and systematic casual employee, the employee will have to serve a minimum qualifying period before being entitled to file an unfair dismissal claim.

It is, however, advisable to seek H.R. professional advice before proceeding with any terminations.

Contact our experienced, efficient professionals for the management of your casual employees’ engagement and termination.  We can work in-house or remotely within your budget.

Changes in relation to Casual employees – Omnibus Bill

Changes in relation to Casual employees – Omnibus Bill

The much-anticipated changes have been passed by Parliament. Of particular interest to small business owners is the changes in relation to casual employees.

But what are these changes?

  • The introduction to the definition of ‘casual employee’ into the Fair Work Act 2009 (Cth) for the first time. This focuses on the offer and acceptance of the employment relationship rather than the current pattern of work.
  • The National Employment Standards (NES) will also change so that it includes an entitlement for regular and systematic casual employees to request to be moved to full-time or part-time employment.
  • The Court will be allowed to offset any casual loading paid to the employee against any claim for unpaid entitlements (e.g annual leave, personal leave) where an employee was properly characterized as a perm employee.

An exciting change for many small business owners that will be a welcome relief is the power of the Fair work Commission to dismiss frivolous and vexatious claims has been increased.

As a business, we encourage you to take this opportunity to review the way that you staff your business, and those casuals that are regular and systematic seek to start the casual conversion process. Below are out 5 steps to ensure compliance with casual conversion clauses. 

CASUAL CONVERSIONS

ENSURING COMPLIANCE IN 5 STEPS

 Under most modern awards, a “regular casual employee” can request to convert their employment if they have worked:
for a period of 6 or 12 months; and

  • a pattern of hours on an ongoing basis, which the employee could continue to perform as a full-time employee or part-time employee (as applicable), without significant adjustment.

The casual employee must put their request to convert in writing.

STEP 1 – Provide new and existing award-covered employees with a copy of the casual conversion clause

Ensure you read the award that applies to your employees carefully. Some awards contain more onerous requirements on employers to notify casual employees of their right to request casual conversion at 6 or 12 months of ‘regular and systematic’ casual employment. This means you will need to be keeping a close eye on any casual employees that are reaching these milestones.

Once you have checked your award you can notify your employees regarding the casual conversion clause. You can use our Notification of Casual Conversion Clause. Also copy the applicable section from the Award and staple to the back of the letter.

You will need to provide the clause within 6 to 12 months of their employment commencing.

Shortly after the Notification of Casual Conversion Clause you will send a follow up letter that sets out the nature of a casual and that of a perm employee as well as the rates of pay for both. Also included is the Casual Conversion Election Form where the employees can advise if they wish to convert.

Employees have 4-weeks to consider if they would like their employment converted to permanent employment or remain as a casual.

 STEP 2: Respond to any casual conversion requests

Respond to any requests to convert to permanent in writing within 21 days to accept or reject the employee’s request for conversion. You can only reject a request convert to permanent in accordance with the terms of the relevant award. Sometimes an award will include the ‘reasonable grounds’ on which you can refuse a request.

 legally responding to requests for casual conversion
Your business must comply with the obligations contained in any casual conversion clause in a modern award, this includes:

  • Providing new and existing casual employees with a copy of the casual conversion clause;
  • Responding to any request to convert within 21 day’s;
  • If you reject a request, complying with the requirements in the relevant award such as rejecting the request on ‘reasonable grounds’ or ‘not unreasonably refusing’ a request;
  • If you agree to convert a casual to permanent employment, complying with the provisions of any part-time employment clause in the relevant award and providing the employee with set days, hours and patterns of work (and a new contract of employment).

How to legally refuse the request for casual conversion
It is important to note that the new clause does not mean you have to approve all requests. It is best to double check the relevant award but generally, the scenarios where you may refuse on reasonable grounds include but not limited to:

  • The conversion would require a significant adjustment to the employee’s hours of work as a full-time or part-time employee;
  • It is known, or reasonably foreseeable that the employee’s position will cease to exist within the next 12 months or the hours of work which the employee is required to perform will be significantly reduced in the next 12 months;
  • The employee’s hours of work will significantly change or be reduced within the next 12 months.

STEP 3: Review your existing workforce

Review the use of casual employment in your business, particularly where the arrangement involves long-term, regular work patterns. We recommend that you consider doing a cost analysis between that of the cost of wages for casual employees compared to that of Perm employees.

The 25% loading is designed to compensate employees for not receiving some of the benefits of perm employees as well as for the insecurity of their employment. You may well find that the bottom-line figure is more favorable to employee permanent employees compared to casual.

  • Ask us about our analysis sheet that we have created for you to easily see over 12-months the cost differences to help you form your decision.
  •  For those employees, consider offering conversion to permanent employment to protect your business ask us about our casual employment contracts/ agreements.

STEP 4: Update your employment contracts

Update your employment contracts and ensure you at least include provisions that make clear that the position of casual

  • has no guaranteed hours of work;
  • will usually work irregular hours;
  • has no sick or annual leave entitlements
  • They are not obligated to always be available; and
  • can have their employment ended without notice, unless notice is required by a registered agreement, award, or employment contract.

We have casual employment contracts/ agreements available and highly recommend that if you have not done so in the last 12-24 months updated these then you do so.

 STEP 5: Document and save the casual conversion process

If it isn’t written down, then it didn’t happen”. ALWAYS protect yourself and the business by ensuring that you keep documentation about any changes to workplace relationships. Keep these documents for at least 7-years so that any retrospective claims can be defended with copies of the clear and documented process.

 

The temporary JobKeeper Payment scheme will end on 28 March 2021

The temporary JobKeeper Payment scheme will end on 28 March 2021

Treasury Secretary Steven Kennedy said the end of JobKeeper would result in thousands of job losses – but what happens when you need to let some team members go as a way to reduce your overheads.

Can you just say “I’m sorry there is no role for you anymoreWell, it depends, but the answer is not really as this is likely to trigger a redundancy or even unfair dismissal. For blog purpose, we will look at the redundancy.

But what is redundancy?

Redundancy is when an employer reduces their workforce because a job or jobs are no longer needed.

Common reasons for redundancy

There are lots of reasons why you might be made redundant, and they usually aren’t a reflection on your ability to do the job…

  • New technology has made your job unnecessary.
  • The job you were hired to do no longer exists.
  • Your employer needs to cut costs by reducing staff numbers.
  • The business is closing down or moving.
  • The business has been bought by another company.

When an employee’s job is made redundant their employer has to give them redundancy pay, also known as severance pay.

Redundancy pay doesn’t need to be paid in some circumstances.

  • employees whose period of continuous service with the employer is less than 12 months.
  • employees employed for:
    • a stated period of time
    • an identified task or project
    • a particular season
  • employees terminated because of serious misconduct.
  • casual employees
  • trainees engaged only for the length of the training agreement.
  • apprentices
  • employees terminated because of ordinary and customary turnover of labour.

For small Business owners you may find some relief that a small business is one that employs fewer than 15 employees. Some small businesses don’t have to pay redundancy pay when making an employee redundant.

But you have to do it the right way and it needs to be a genuine redundancy.

genuine redundancy is when:

  • the person’s job doesn’t need to be done by anyone.
  • the employer followed any consultation requirements in the award, enterprise agreement or other registered agreement.

It won’t be a genuine redundancy if.

  • still needs the employee’s job to be done by someone.
  • could have reasonably, in the circumstances, given the employee another job within the employer’s business (or associated entity)
  • has not followed consultation requirements as provided by the relevant Modern Award or enterprise or other registered agreement (if applicable)

Let’s focus on the consultation 

You are generally required to consult with the employee before ending their employment. This means that you must notify the employees of the proposed change to their employment, invite them to a meeting to further discuss the matter and take any suggestions the employee might offer to keep their job into consideration before making a final decision.

As part of the consultation process you must offer the employee any vacant job within the business or an associated entity that the employee can reasonably do.

You should also consider jobs that pay less or that are not as senior, as the employee may want to take them for a number of reasons.

If you are a manager or owner, it is highly encouraged that you arm yourself with the knowledge and get to need to know about the procedures of disciplinaries and the associated risks along the way.  Since 2012 we have been creating, writing and updating our support manuals which are now available to you.

Our manual – Effective and risk free disciplinaries, A guide for Manager and Business owners  – consists of all this information you need. Managing employees can be complex, but a claim-free and happy workplace with motivated, loyal, and productive employees, is possible through a few simple steps and a fair and transparent process, free from discrimination, or harsh, unjust or unfair treatment.

This disciplinary manual will guide you through the disciplinary process step by step and provide you with the templates, tips and advice. However, it is not a replacement for expert advice.

Use this manual to help you understand.

  • what makes a dismissal unlawful;
  • when and how you can lawfully dismiss and employee;
  • how your policies and procedures can help you to manage dismissal in your workplace;
  • the alternatives to dismissal; and
  • your notice and termination pay requirements.

Grab our manual now and be one step aheadit’s the crazy price of $97.  If you need advice and extra support along the way the team at Fresh HR Insights is just a call away

Reasons for having written policies

Reasons for having written policies

Reasons for having written policies

Number of reasons

There are a number of good reasons for having written workplace policies in place. Not the least of these is the fact that workplace policies are useful documents to rely on when a legal dispute arises between an employer and an employee. In many cases, where the employer can point to a policy to show that the employee ought to have known what his or her responsibilities were in relation to the disputed matter, the employer is likely to be in a much stronger position before a court or tribunal. Well-written company policies aim to help businesses in many ways.  Policies demonstrate that the organisation is being operated in an efficient and businesslike manner, raise stability and ensure consistency in the decision-making and operational procedures.

Other reasons for putting policies in place are explained below.

Legislative requirements

Some employment related laws include a requirement that a policy be in place and that the policy fulfils certain specifications. For example, workplace health and safety laws require employers to put in place a rehabilitation policy outlining the responsibilities of the employer. Where no policy is in place this will constitute an offence under the legislation. In other areas of the law, such as equal opportunity, there is no specific requirement in the legislation that policies be put in place. However, where an employer can point to a policy, that will go some way towards substantiating the employer’s compliance with the law should the matter arise before a court or tribunal. To this end, many organisations have policies on EEO, workplace harassment and grievance handling procedures.

Policies that are required by the law, either directly or indirectly, serve the function of stating in the least what the minimum legal rights and responsibilities of both the employer and the employees are. This gives employees a clear indication of what is expected of them and what they can expect from their employer. Some employers choose to have policies that set a standard higher than that required under the law.

Codes of conduct

Many companies introduce policies relating to matters that are not regulated by law but are based on standards set by the employer in an effort to ensure a high standard of behaviour in the workplace. Such policies usually deal with employees’ behaviour at work, including the way employees relate to each other, as well as their responsibilities towards the employer and to company property. Setting policies in these areas again indicates to employees the standard of behaviour that is expected of them at work and what the consequences of a breach will be.

Policies can deal with such matters as: fighting, language, dress standards, alcohol, drugs, smoking, confidentiality, other employment, maintaining the workplace, borrowing of company property, theft, and statements to media.

Examples we have in our code of conduct are;

  • Be honest and fair in dealings with customers, clients, suppliers, co-workers, management and the general public.
  • Display the appropriate image of professionalism at your workplace. Wear the required uniform, safety equipment or work clothes, and if a workplace participant wears their own clothes, ensure their appearance is neat and tidy.
  • Treat customers, clients, suppliers, co-workers, company management and the general public in a non-discriminatory manner with proper regard for their rights and dignity. In this regard, discrimination, victimisation or harassment based on a person’s race, colour, creed, religion, national origin, citizenship, age, sex, sexual orientation, marital status, union membership or non-membership, mental or physical disability, or any other classification protected by law will not be tolerated.
  • Promptly report any violations of law, ethical principles, policies and this Code.
  • Maintain punctuality. If a workplace participant is late or cannot report for work, please telephone and let the supervisor know as soon as possible.
  • Do not use work time for private gain. If a workplace participant is required to leave the work premises for personal reasons, they should advise their Manager well in advance.
  • Maintain and develop the knowledge and skills necessary to carry out duties and responsibilities.

 

Conditions of employment

There is a whole range of conditions of employment that may not be prescribed by law but which are agreed to by the employer and the employee at the commencement of the employment contract. Some companies issue policies on such matters so that employees are clear on what their rights and responsibilities are. Conditions of employment that may fall within this category include: attendance, absenteeism, punctuality, transfer, training, promotion, probation, performance review, discipline, abandonment of employment, exit interviews, notice, and termination.

Employee entitlements

It is useful to develop policies on employee entitlements that are prescribed by award or legislation so that employees and human resources staff are easily able to ascertain what the entitlements are. Policies included within this category will include annual leave, long service leave, bereavement leave, parental leave, carer’s leave, jury leave, special leave, overtime, shift work etc. This also now includes Family and Domestic violence leave.

Employee benefits

Some companies provide a whole range of benefits that employees enjoy as part of their job. These are often not prescribed by legislation or award but are provided by the employer for the benefit of employees – sometimes as incentives aimed at increasing productivity. Other benefits are provided with the idea of increasing employee morale. These can relate to such things as employee health, or assisting employees to balance work and family responsibilities. It is important to clarify how such benefits are awarded to employees in a company policy in order to ensure that all employees know of their availability, they are distributed fairly, and that any conditions applying are understood.

Employee benefits that fall into this category and which should be included in policies include company cars, mobile phones, employee assistance programs, salary packaging, career breaks, and study assistance.

Running a company without a rulebook is like going on a voyage without a sail.  Don’t gamble with your policies, don’t gamble with your goals. Contact us today to find out some more

You can also grab our checklist –

  • Why do you need to have Policies and Procedures
  • Communicating Policies
  • What are the benefits to my business
  • What is included in an employee handbook policy
  • What are the essentials (Must-Have) Policies that a company needs
  • How to Implement workplace policies effectively

Click HERE

 

 

HR Support – Bundaberg, Toowoomba, Stanthorpe, Coffs Harbour and places inbetween

HR Support – Bundaberg, Toowoomba, Stanthorpe, Coffs Harbour and places inbetween

Fresh HR Insights is going mobile and are now servicing businesses with their HR support requirements not only virtually but also now within a 300km radius of the Gold Coast – this includes right up to Bundaberg, out to Toowoomba, and down to Coffs Harbor.

We have always had the intention to move what we do on the road and to travel as we work and with the pending arrival of our mobile office, we will now be able to do that. This means that businesses in the more remote locations can have access to professional and experienced HR support.

If you are a business within these areas or know of a business within this area, then contact us today by using our 30-minute free online consultation. Book HERE

Areas Covered Include (but not limited to) – Bundaberg, Childers, Woowoonga, Maryborough, Gympie, Cooroy, Noosa Heads, Beerwah, Burpengary, Caboolture, Deception Bay, North Lakes, Sandgate, Chermside, Mount Gravatt, Springfield, Amberley, Ipswich, Gatton, Toowoomba, Pittsworth, Warwick, Stanthorpe, Glen Innes, Grafton, Coffs Harbour, Yamba, Evans Heads, Woodburn, Ballina, Lennox Heads, Bangalow, Casino, Lismore, Byron Bay, Murwillumbah, Tweed, Tweed Heads and of course our Hometown the Gold Coast.