We all love a FAQ (Frequently Asked Question) especially when we are time poor and we just need to get an answer.

We have developed a comprehensive list (and growing) of FAQ for every day business owners just like you. We have already answered some questions and working through the others so keep checking back. 

These questions have been developed from years of workplace matters coming up over and over again. We have thrown some more curly ones in there as well. Do please note that these responses are GENERAL in nature and should not be relied upon as a definite response. You MUST always seek further clarification as every situation has slightly different background, mitigating facts, and things you may not have thought of yet. 

Please feel free to contact us at paulette@freshhrinsights.com.au. We reply to everyone. 

Why do I need to give my employees a Fair Work Information Statement

Employers have to give every new employee a copy of the Fair Work Information Statement (the Statement) before, or as soon as possible after, they start their new job. The Statement provides new employees with information about their conditions of employment.

The Statement has information on:

  • the National Employment Standards
  • right to request flexible working arrangements
  • modern awards
  • making agreements under the Fair Work Act 2009
  • individual flexibility arrangements
  • freedom of association and workplace rights (general protections)
  • termination of employment
  • right of entry
  • the role of the Fair Work Ombudsman and the Fair Work Commission.

Providing the Statement

The Statement can be given to new employees:

  • in person
  • by mail
  • by email
  • by emailing a link to our website
  • by fax.

Grab you up to date Fair-Work-Information-Statement here

Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Should my Business have up-to-date contracts of employment?

Yes as it makes the employer employee relationship super clear.

If not, it is time to review and update your employment contract before your next employee arrives.  Does your template have the five contractual essentials?

  • general obligations clause
  • set-off clause
  • notice of termination clause
  • policies and procedures clause
  • surveillance clause

Fresh HR Insights can review your employment contracts and provide recommendations to ensure they comply with employment law. For peace of mind, please contact www.freshhrinsights.com,au on 0452471960 to learn more.

Do they make any changes to Modern Awards?

All businesses should be aware of what Modern Awards apply to them (including those awards which underpin their EAs). Modern Awards will continue to change as the Four-yearly Review continues into its seventh year. Are you up-to-date on award entitlements in relation to flexibility requests?

Are you aware that Family and Domestic Violence leave is no longer an Award entitlement (but instead is now in the National Employment Standards)?

Have you been providing casual employees with conversion notices?

It’s time to review your award to ensure your compliance.

Where can I find what my employees “entitlements” are (Sick Leave, Superannuation, types of leave etc.) ?

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Do I need to have compliant and effective workplace policies and employees be aware of them?

At an absolute minimum, in addition to a current Code of Conduct, all workplaces should have the following policies in place:

  • Work Health and Safety Policy – Workplace injuries can affect your business in a number of ways including decreased productivity, sick pay obligations and the cost of finding a replacement. 
  • Bullying, Harassment and Discrimination Policy – A business must have taken all reasonable steps to prevent discrimination or harassment from occurring. Without a comprehensive policy, this is almost impossible! You, as a business must communicates clearly to employees what constitutes bullying, sexual harassment, discrimination and any other form of inappropriate behaviour at work. A good policy will also outline procedures for dealing with complaints.
  • Drug and Alcohol Policy – The use of drug and alcohol during and outside of work hours can present significant safety risks and costs to your business through injuries, absenteeism and lost productivity. A drug and alcohol policy can promote and maintain a risk-free work environment while outlining the rights a business to test employees for drug-use.
  • Leave Policy – For businesses that experience seasonal busy periods, a leave policy can be extremely valuable. A leave policy can include ‘blackout’ periods during busy periods with increased notice periods for employees applying for leave, to ensure you aren’t understaffed.
  • Grievance Policy –  Having a grievance policy in place acts as an important tool for employees to understand what steps they should follow when handling a complaint.
  • Performance Counselling and Discipline Policy – Performance management is a common practice within any business. A policy will assist you in remaining compliant with requirements of procedural fairness and provide guidance on how unacceptable conduct will be dealt with.
  • Internet and Email Policy –  An internet and email policy will define what is inappropriate use of company computers and internet resources, as well as the consequences an employee may face for breaching the policy.
  • Social Media Policy –  A social media policy is essential to protecting your company’s reputation, especially if employees list their place of employment on their profiles. On social media, lines between professional and personal networks can become blurred, so it is a good idea to let employees know that how they behave on social media reflects on the business, and therefore will be regulated.
  • Privacy Policy – Employers have a responsibility to safeguard the personal information of employees and customers. Therefore, businesses must have a policy in place articulating how their private information is used and managed. A privacy policy makes it clear what information is allowed to be made public and what is required to stay private or within the walls of the company. 

Workplace policies should be clear as to what your expectations are as an employer, while providing enough flexibility for you to run your business.  As a general rule, these workplace policies should not form part of an employment contract.

Is your business covered by the new whistle-blower laws which came into effect on 1 July 2019?  If so, you will need to have in place a compliant whistle-blower policy which is consistent with the new regime.

 

What should we include in our driver safety policy?

Under s 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act), employers have a duty or responsibility to ensure so far as is reasonably practicable, the health and safety of their workers

Workers also have a duty under this legislation to take reasonable care for their own safety and for the safety of others, as well as a duty to comply with workplace policies and procedures. Any workplace safety policy should be designed with these primary duties in mind.

Additionally, policies pertaining specifically to driver safety should also bear in mind the road safety laws.

A driver safety policy may cover topics such as:

  • fatigue management:
    • employers should schedule work in such a way that manages the risks of fatigue;
    • employees should refrain from driving when tired and take regular breaks;
    • ensuring all drivers have the requisite drivers’ licence and qualifications specific to the tasks they are carrying out;
    • a commitment to ensure regular training; and
  • a commitment by drivers to abide by all road rules including:
    • speed limits;
    • wearing of seat-belts;
    • not driving while intoxicated;
    • ensuring drivers are adequately informed about the safe use of the particular vehicles being used;
    • a procedure for ensuring the vehicles are adequately maintained and inspected; and
    • procedures for incident reporting
Do I have to have a Super default fund? If so, how do I choose it?

A simple yet not so simple question and answer.

As an employer you do have to have a default fund. The question of which one is not an easy one to answer however. 

Typically an employer default fund is the MySuper option within a basic industry fund. This is often the fund that most closely aligns with the employers industry ie Qsuper for government employees such as nurses or Club Plus or HOST plus for people working within the hospitality industry. This isn’t a requirement, just a union marketing tactic.

SunSuper is one that really has no distinct industry alliance and is therefore acceptable to everyone, is highly competitive on fees and is easy for an employer to use. They also have a good media profile and are more closely correlated to our part of the country (South East Queensland) so suggested as a likely candidate.

We  highly (and strongly) recommend Lloyd Thomas from Thomas Cardwell & Associates for all your superannuation questions including what fund to join. Drop him an email on lloyd@thomascardwell.com.au or call on 0401189004 – it’s always best to seek advice first even if it’s just a phone call.

Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

What can we do if workers don’t disclose pre-existing medical conditions

If the worker is unable to fulfil the inherent requirements of the role, this gives rise to a right to terminate the agreement.

It may be preferable for you to focus on this rather than making allegations of misrepresentations in the pre-employment medical condition questionnaire.

If you do make allegations of dishonesty, you should ensure that you have good evidence for doing so. You may consider seeking medical evidence about their capacity to support you

Should I always give my employee a letter of offer or a contract?

An employment contract is an agreement between an employer and employee that sets out terms and conditions of employment. A contract can be in writing or verbal. It is a legally binding document.

An employment contract cannot provide for less than the legal minimum set out in:

  • the National Employment Standards (NES)
  • awards, enterprise agreements or other registered agreements that may apply.

All employees are covered by the NES, regardless of whether they’ve signed a contract. A contract can’t make employees worse off than their minimum legal entitlements.

Employment contracts are an essential document for both staff and employers, legally establishing the working relationship and setting out important frameworks and policies. Contracts provide both employee and employer with a clear agreement of what is to be expected from each party, while outlining all rights, responsibilities and obligations. This works to protect the job security and rights of the employee, and also protects the employer from certain risks such as breaches of confidentiality

What is included in a contract

  • Name and personal details of the employer and employee
  • Commencement date of employment
  • Job title and description
  • Number of hours worked per week
  • Type of employment (i.e. full-time, part-time or casual)
  • Method of payment and when payment is made (weekly, fortnightly or monthly)
  • Amount of notice required to be given by the employer and employee to end the employment relationship
  • Confidentiality agreement

Fresh HR Insights can review your employment contracts and provide recommendations to ensure they comply with employment law. For peace of mind, please contact www.freshhrinsights.com,au on 0452471960 to learn more.

Is photographing shoddy work bullying?

If the photographing occurs on more than one occasion or is part of a broader pattern of behaviour directed toward the worker, it could constitute workplace bullying.

Workplace bullying is defined under the Fair Work Act 2009 (Cth) (FW Act) as repeated unreasonable behaviour directed toward a worker that creates a risk to health and safety. Bullying behaviour may be either intentional or unintentional.

Workplace bullying may give an employee a right to make an application to the Fair Work Commission for a stop bullying order under the FW Act.

If the worker being photographed does have quality issues with their work, some form of performance management may be warranted. However, a performance management process may still give rise to bullying if the performance management actions are unreasonable.

Some of the relevant considerations to determine whether a performance management action is reasonable includes:

  • the impact of the performance management action on the worker;
  • the way the performance management action has been carried out, e.g. whether the action is consistent with workplace policies and procedures; and
  • the circumstances that have led to the performance management action.

 

What is bullying at work?

Bullying at work occurs when:

  • a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work

AND

  • the behaviour creates a risk to health and safety.

Bullying does not include reasonable management action carried out in a reasonable manner.

Bullying behaviour may involve, for example, any of the following types of behaviour:

  • aggressive or intimidating conduct
  • belittling or humiliating comments
  • spreading malicious rumours
  • teasing, practical jokes or ‘initiation ceremonies’
  • exclusion from work-related events
  • unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level
  • displaying offensive material
  • pressure to behave in an inappropriate manner.

However, in order for it to be bullying the behaviour must be repeated and unreasonable and must create a risk to health and safety.

What is the minimum info that I should give an employee on commencement?

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

When is the best time for an induction process to occur?

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Does workers’ compensation insurance cover travel between worksites?

Travel-related workers’ compensation claims

Around Australia, several jurisdictions treat ‘travel to and from work claims’ (i.e. daily commute to and from work) and ‘work-related travel claims’ (i.e. travelling somewhere as directed by your employer) differently.

Generally, injuries that occur where a worker has been directed to travel from one place of work to another are compensable where it can be shown that a worker’s employment was a significant or substantial cause of the injury.

In the example of a worker travelling from one place of work to another on a bicycle, it may be determined that the worker’s employment was not a significant or substantial cause of the injury if, for example and without limitation:

  • there was serious and wilful misconduct of the worker (such as alcohol or drug use); or
  • the injury resulted from a medical or other condition of the worker and the journey did not cause or contribute to the injury.

Public liability claim

An injury to a worker will be covered by either public liability or workers’ compensation. In practical terms the worker would lodge a workers’ compensation claim. If accepted, it is up to the workers’ compensation insurer to recover amounts from the public liability insurer if it can. Any other damage/claim as a result of an accident may or may not fall under your public liability insurance depending on its terms.

What’s important to keep workplace culture positive and also can be managed?

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

As an employer what are my priorities to consider in the workplace for employees?

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Is it a good idea to always have a position description?

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

How do I implement drug and alcohol testing to current employees?

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

My employee comes to work and I can smell alcohol and is a truck driver, what do I do?

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

How do I change the Company's culture

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

I haven't got policies in place, are you able to assist.

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Staff have become disengaged - help

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

I'm hearing negative things back employees are saying, but deny it when asked.

We are still working on this response – check back soon or give a call on the number below.  Fresh HR Insights can support you with all your employee/employer obligations.  For peace of mind in times of turbulence, please contact www.freshhrinsights.com.au on 0452471960 to learn more.

Can we terminate an employee who is not a ‘cultural fit’? - The termination would be three months into the six month probation period.

It depends what is meant by ‘cultural fit’. The employee will not have met the eligibility for an unfair dismissal claim, but you still cannot dismiss an employee for reasons of sex, age, race, gender, religious belief or political belief (among others). If you just cite ‘cultural fit’ as a reason for dismissal then it is possible that a discrimination claim may be brought against you in that the employee was dismissed for one of these prohibited reasons. You need to assess the likelihood of this occurring as well as your ability to defend a potential claim (i.e. do you have evidence, of which the termination letter will form part, that the termination was for a reason other than the protected attribute).

It is always best to cite valid, performance or conduct based reasons in the termination letter.

Question and response from workplace bulletin 23/9/2019

 

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